Bush’s Purgatorio

Illustration by Winston Smith

So you have to pay a few extra cents for a tiny inked government stamp each time you buy a newspaper, or file a legal document, or pick up a sheaf of writing paper. It’s annoying, and it’s unfair. But is it really worth overthrowing the government?

Come on, now. Of course not.

But what if your friends are accused of buying a magazine without that official stamp, and they’re sent out of state for trial and you don’t get to call them or visit them or know when their hearing is? What if they’re bound up and shipped to some offshore outpost with a cleverly bizarre jurisdictional status, where the executive branch of our government is in charge and the rights we take for granted simply don’t apply? No jury, no speedy trial. No chance to prove their innocence. In some cases, no lawyer.

That was the deal with the Stamp Act of 1765 and all those later Intolerable Acts. It was the prospect of being sent on the king’s whim to a legal no man’s land, at least as much as some new tax or the sneering abuse of redcoats, that turned loyal British subjects into rebellious colonists into American patriots. Thomas Jefferson said as much when he listed the reasons for telling George III to take a hike. “For depriving us of the benefits of Trial by Jury,” he wrote in the Declaration of Independence. “For transporting us beyond Seas to be tried.”

An arrested person’s right to freedom if no charges are brought, and the right to a trial by a jury if they are, were so fundamental that the framers wrote them directly into the text of the original Constitution. They were there from the beginning, while Americans still waited for the Bill of Rights to guarantee their freedom to worship and to assemble and all the rest.

Now, nearly 250 years later, the premise of the ancient right of habeas corpus, that you cannot be held against your will without charges, has been challenged in Guantánamo Bay, Cuba. The 500 or so people held at a military base in the sort-of-is, sort-of-isn’t U.S. territory are suspected of far more harm than buying a magazine without a stamp on it. But most of them are uncharged, and until the final week of this year’s Supreme Court’s session had no hope of a hearing or of any contact with the outside world. They are not even deemed prisoners. They are officially “detained,” which makes it sounds like they missed their connecting flight. But they could remain “detained” forever, or until the president sees fit to relent.

The Supreme Court offered a tantalizing glimpse at relief in a case brought by the families of 16 people — British, Australian and Kuwaiti citizens — who were captured in Afghanistan or arrested in Pakistan and are now imprisoned in that small enclave of Cuba that is supposedly leased to the United States. As the Bush administration was waiting to hear the high court’s ruling, it finally filed charges against one of the Australians, David Hicks, perhaps in a bid to persuade the court against finding that trial judges around the nation have jurisdiction to hear claims by Hicks and the other detainees.

The weird status of Guantánamo is key to the U.S. approach to guarding and interrogating its war captives. The administration officially, and with a straight face, calls the region sovereign Cuban territory, although Fidel Castro would be arrested if he stopped in for lunch.

Bush’s people said the Judiciary Act of 1789 — one of the first laws passed by the first Congress — which refines the constitutional grant of rights and makes clear that it is not limited to U.S. citizens, does not extend to the zone. That assertion made Guantánamo even more of a legal no man’s land than the Caribbean islands and Canadian territories where British authorities sent colonists suspected of harboring rebellious sentiment.

The administration was hoping that in the cases known as Rasul and al Odah, the high court would uphold the Bush assertion that U.S. judges don’t have power to even hear habeas corpus claims by the families of prisoners who are held, for all practical purposes, in legal outer space. The justices disappointed Bush on that score. Families of Guantánamo detainees will now at least be able to argue to a judge that their loved ones are locked up by mistake.

Falen Gherebi had much at stake in the court’s decision. A federal appeals court’s ruled that Guantánamo is U.S. territory already gave Gherebi’s brother the right to seek habeas relief on his behalf. But the decision was on hold until after the Supreme Court ruled in the other cases.

 

The second key case involved the so-called dirty-bomb suspect, Jose Padilla, a former Chicago gang member who is charged — no, that’s not right, he’s not charged — who the government first claimed was planning to detonate a radiological device and now claims was planning to blow up high-rise apartment buildings. Padilla was arrested in May 2002 when he landed at O’Hare International Airport in Chicago. The FBI had been tailing him around the world.