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.

President Bush labeled him an “enemy combatant” and ordered the Justice Department to turn him over to the U.S. military. From that day to the present, he has been held at what most news outlets refer to as a Navy “brig,” a quaint and picturesque term for a military prison, this one in Charleston, South Carolina.

Bush continues to argue that as an enemy combatant, Padilla has no habeas corpus right or right to trial by jury, nor does he have a right to counsel. But the president says that unlike other enemy combatants, who are at least theoretically entitled to a military tribunal, Padilla is not — because he is a U.S. citizen. So the U.S. can hold Padilla incommunicado without charge or trial until the end of hostilities, an event that is to be determined by the president. And the president, by the way, claims untrammeled authority to determine, on his own, which U.S. citizens are and which are not enemy combatants. The upshot is that Bush claims the power to lock up any U.S. citizen forever.

The administration initially opposed court challenges on Padilla’s behalf, arguing that since Padilla had no lawyer — and they knew he had no lawyer, because they wouldn’t let him get one — no one was authorized to bring a case for him. They later relented and allowed a lawyer to confer with the accused. Or rather, the enemy, since he has not been accused. But only while the government recorded all conversations.

A federal appeals court in New York rejected the government’s broad claims of executive power, and the U.S. Supreme Court heard arguments on Padilla’s case in April. But the justices finally ducked the hard questions by ruling that the case was improperly filed. Padilla’s lawyers must now try again.


The court, at the same time, ruled in the case of Yaser Esam Hamdi, who turned himself in to the Northern Alliance in Afghanistan and was sent to Guantánamo. Then U.S. officials discovered that he was born in Louisiana, where his Saudi father had been working temporarily. That gave Hamdi, now with “enemy combatant” status, the right to be released from Cuba and to be sent instead to a Navy brig (that picturesque word, again) in Norfolk, Virginia, until this year, when he was sent up the coast to Padilla’s brig. Hamdi’s father filed a petition for habeas corpus.

The Supreme Court ruled that Congress gave Bush the power to hold Hamdi. But it also dealt the president a setback, ruling that Hamdi has the right to counsel and the right to claim, in court, that he is being held improperly.

If Hamdi, Padilla or any other Guantánamo Bay detainees ever do get to court, there’s a good chance proceedings will be as closely guarded as the bizarre secret case of Mohamed Kamel Bellahouel.

Bellahouel, a Florida waiter, was arrested in a government roundup of Muslim men in 2001. The Supreme Court has already rejected Bellahouel’s bid to lift the veil of secrecy from a habeas case in which even his name and the very existence of the case are officially suppressed. Trial and appeals court judges have sealed every record of the Algerian immigrant’s case.

We know it exists only because a reporter from the Miami Daily Business Review spotted the name on the list of appeals before a clerk quickly whisked the papers away. Bellahouel, who was held for five months, is free on bond in an immigration case and reportedly testified before a Zacarias Moussaoui grand jury, and is not charged in any terrorism matter. But his case suggests that there may be dozens, perhaps hundreds, of other proceedings that remain unknown because some clerk hasn’t yet slipped up and revealed their names.

The Justice Department has said about 1,200 Arab and Muslim men were rounded up after 9/11, and that some are being held — secretly — as “material witnesses” in the FBI’s terrorism probe code-named PENTTBOM.

Benamar Benatta, also of Algeria, was held without contact with the outside world from the time he was “swept up” in 2001 until April 2002, when he was granted a meeting with a federal public defender. Terrorism and immigration-fraud charges against him have been dropped, but he remains in jail.


The high court’s rulings may bear on other enemy combatants in the U.S. A few weeks after the 9/11 attacks, Ali Saleh Kahlah al-Marri, of Qatar, was arrested and charged with credit-card fraud. Charges were repeatedly dismissed and refiled until a year ago, when Bush named him an enemy combatant. He’s in the South Carolina brig.

Many of the arguments made in the cases of the “detained” prisoners, to trial courts or to the Supreme Court in April, just as easily could have echoed inside crowded 18th-century taverns or across town squares in Boston or Charleston. The proceedings continue to test the Bush administration’s unprecedented hold on sweeping executive power in its proclaimed war on terror and will shape the meaning of governmental authority in a democracy more than any single event since the Revolution.

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