St. Louis Post-Dispatch
November 4, 2003
The Constitution: The Rights It Guarantees Are Not Optional
By Andrew P. Napolitano
Late in September, the Defense Department charged one of its own, Air Force Senior Airman Ahmad I. al-Halibi, with espionage and with spying for his native Syria. According to court documents, many of the alleged illegal acts took place while al-Halibi was on active duty as a translator at Camp Delta in Guantanamo Bay, Cuba. If the government proves the charges against him in court, he could receive the death penalty.
But problems of proof are the least of the government's concerns in this case. First, the government must confront the self-inflicted problems of federal jurisdiction which it has claimed does not exist for acts committed in Cuba.
Here's how the government shot itself in the foot:
In broad general terms, the U.S. Constitution sets forth the government's powers, establishes limits on those powers and guarantees rights to all persons under the government's jurisdiction.
The most potent of the government's domestic powers are the powers to enact federal criminal statutes and prosecute violations of them. Since the Constitution is the anchor of the government's powers, one would expect that the government would contend it applies wherever the government wants to enforce federal law.
But just last year, the government successfully argued to four federal courts that the U.S. Constitution does not apply at American military facilities in Cuba and, thus, no American court has jurisdiction over the acts of the U.S. government and its personnel there.
The cases in which this perverse argument was made involved relatives of prisoners confined at Guantanamo Bay who asked federal courts to order the government to explain and justify the prisoners' confinement. This right -- the ancient right to habeas corpus -- is guaranteed in the Constitution (except in time of war, and then only if Congress specifically suspends it) to all persons confined against their will by the government.
One would think that the government would gladly justify in open court its detention of prisoners of war. But in its zeal to keep its behavior away from judicial scrutiny, the government argued that the Constitution does not apply to the government when it is in Cuba.
The government went on to persuade federal judges in Washington, D.C., Los Angeles, and San Francisco that, because the United States leases Guantanamo Bay from Cuba, the sovereign power over Camp Delta is not the U.S. government; it's Fidel Castro!
Tell that to the commanding American officer.
So a year ago, the government said that the Constitution does not apply at an American military base in Cuba. Now it argues that it can prosecute someone for acts at an American military base in Cuba, based on powers given to the government by the Constitution.
Hence the government's headache: Under the doctrine of judicial estoppel, it cannot argue today contrary to what it argued last year on the same point of law.
Not only can the government not argue both ways, it cannot have it both ways. Either the Constitution applies fully, with all its powers to prosecute and with all its due-process protections as well, or it does not apply at all.
The government knows -- because the Supreme Court has told it so in previous decisions -- that it cannot escape the Constitution merely by leaving the U.S. mainland. In one case, the court declared that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." And in a consistent series of cases that goes back more than 100 years, the court has ruled that federal courts specifically have jurisdiction over acts of the U.S. military in Guantanamo Bay, Cuba.
Does the government really expect Americans to believe that nothing restrains it, and it need not respect our rights, when it leaves U.S. soil? The government's argument is nonsense. Wherever the government goes -- even to the moon -- the Constitution goes with it.
If there is strong evidence to believe that Airman al-Halibi is a spy, then the government should prosecute him, no matter where he was when he spied. But in its prosecution of the war on terror, it seems that government lawyers, from the attorney general on down, have self-interpreted their oaths to uphold the Constitution: They want to uphold the parts that grant them power, but not the parts that restrain their exercise of it.
Unfortunately, the government's selective defense of the Constitution is not surprising or novel. Since the Sept. 11, 2001, terrorist attacks, the government has willfully disobeyed the orders of federal judges in U.S. v. Moussaoui and in Padilla v. Rumsfeld. It has claimed it can lock up Americans and strip us of all our constitutional rights without judicial review in Rumsfeld v. Hamdi. It has successfully threatened to strip Americans of all rights in order to get confessions and guilty pleas in the Lackawanna Six case. So far, it has gotten away with all this.
The government argues that certain defendants are so fearful and their guilt is so palpable and their knowledge of our secrets is so volatile that we need not respect their liberties. This is the justification of tyrants.
When the government violates or ignores the Constitution it has sworn to uphold, it undermines the infrastructure of our culture, history, and jurisprudence. The Constitution is the supreme law of the land. No court has ever seriously suggested that the rights it guarantees are discretionary.
All this makes one wonder: Does this government take seriously its commitment to uphold the Constitution? Is the government defending constitutional liberties or attacking them? If the government doesn't defend liberty, what is it defending?
Andrew P. Napolitano, a lawyer and former judge and law professor, is the senior judicial analyst with the Fox News Channel.
November 4, 2003
The Constitution: The Rights It Guarantees Are Not Optional
By Andrew P. Napolitano
Late in September, the Defense Department charged one of its own, Air Force Senior Airman Ahmad I. al-Halibi, with espionage and with spying for his native Syria. According to court documents, many of the alleged illegal acts took place while al-Halibi was on active duty as a translator at Camp Delta in Guantanamo Bay, Cuba. If the government proves the charges against him in court, he could receive the death penalty.
But problems of proof are the least of the government's concerns in this case. First, the government must confront the self-inflicted problems of federal jurisdiction which it has claimed does not exist for acts committed in Cuba.
Here's how the government shot itself in the foot:
In broad general terms, the U.S. Constitution sets forth the government's powers, establishes limits on those powers and guarantees rights to all persons under the government's jurisdiction.
The most potent of the government's domestic powers are the powers to enact federal criminal statutes and prosecute violations of them. Since the Constitution is the anchor of the government's powers, one would expect that the government would contend it applies wherever the government wants to enforce federal law.
But just last year, the government successfully argued to four federal courts that the U.S. Constitution does not apply at American military facilities in Cuba and, thus, no American court has jurisdiction over the acts of the U.S. government and its personnel there.
The cases in which this perverse argument was made involved relatives of prisoners confined at Guantanamo Bay who asked federal courts to order the government to explain and justify the prisoners' confinement. This right -- the ancient right to habeas corpus -- is guaranteed in the Constitution (except in time of war, and then only if Congress specifically suspends it) to all persons confined against their will by the government.
One would think that the government would gladly justify in open court its detention of prisoners of war. But in its zeal to keep its behavior away from judicial scrutiny, the government argued that the Constitution does not apply to the government when it is in Cuba.
The government went on to persuade federal judges in Washington, D.C., Los Angeles, and San Francisco that, because the United States leases Guantanamo Bay from Cuba, the sovereign power over Camp Delta is not the U.S. government; it's Fidel Castro!
Tell that to the commanding American officer.
So a year ago, the government said that the Constitution does not apply at an American military base in Cuba. Now it argues that it can prosecute someone for acts at an American military base in Cuba, based on powers given to the government by the Constitution.
Hence the government's headache: Under the doctrine of judicial estoppel, it cannot argue today contrary to what it argued last year on the same point of law.
Not only can the government not argue both ways, it cannot have it both ways. Either the Constitution applies fully, with all its powers to prosecute and with all its due-process protections as well, or it does not apply at all.
The government knows -- because the Supreme Court has told it so in previous decisions -- that it cannot escape the Constitution merely by leaving the U.S. mainland. In one case, the court declared that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." And in a consistent series of cases that goes back more than 100 years, the court has ruled that federal courts specifically have jurisdiction over acts of the U.S. military in Guantanamo Bay, Cuba.
Does the government really expect Americans to believe that nothing restrains it, and it need not respect our rights, when it leaves U.S. soil? The government's argument is nonsense. Wherever the government goes -- even to the moon -- the Constitution goes with it.
If there is strong evidence to believe that Airman al-Halibi is a spy, then the government should prosecute him, no matter where he was when he spied. But in its prosecution of the war on terror, it seems that government lawyers, from the attorney general on down, have self-interpreted their oaths to uphold the Constitution: They want to uphold the parts that grant them power, but not the parts that restrain their exercise of it.
Unfortunately, the government's selective defense of the Constitution is not surprising or novel. Since the Sept. 11, 2001, terrorist attacks, the government has willfully disobeyed the orders of federal judges in U.S. v. Moussaoui and in Padilla v. Rumsfeld. It has claimed it can lock up Americans and strip us of all our constitutional rights without judicial review in Rumsfeld v. Hamdi. It has successfully threatened to strip Americans of all rights in order to get confessions and guilty pleas in the Lackawanna Six case. So far, it has gotten away with all this.
The government argues that certain defendants are so fearful and their guilt is so palpable and their knowledge of our secrets is so volatile that we need not respect their liberties. This is the justification of tyrants.
When the government violates or ignores the Constitution it has sworn to uphold, it undermines the infrastructure of our culture, history, and jurisprudence. The Constitution is the supreme law of the land. No court has ever seriously suggested that the rights it guarantees are discretionary.
All this makes one wonder: Does this government take seriously its commitment to uphold the Constitution? Is the government defending constitutional liberties or attacking them? If the government doesn't defend liberty, what is it defending?
Andrew P. Napolitano, a lawyer and former judge and law professor, is the senior judicial analyst with the Fox News Channel.
