For years now, America has been faced with a constitutional crisis over what the Constitution means and who it applies to.
The passage of legislation such as the USA Patriot Act and the increasing government surveillance of American citizens has only served to deepen the crisis.
At present, the crisis is over the writ of habeas corpus, which is found in Article 1, Section 9, of our U.S. Constitution.
Latin for “bring forth the body,” this provision ensures that if you’re being held in a jail or prison and haven’t been charged with a crime, you have the right to go before an impartial judge and ask, “Why am I being held? What is the evidence against me?”
It doesn’t mean that you’ll be set free, but it does ensure that you’re not held without valid cause or kept in the dark about your detention - unless, that is, you happen to be one of 400 prisoners being held at Guantanamo Bay (Gitmo), Cuba, who have never had the lawfulness of their indefinite detention judicially reviewed.
What most Americans don’t realize is that only 8% of the detainees at Gitmo are even characterized as al-Qaeda fighters.
Many of the prisoners insist that they have no link to al-Qaeda or other extreme Islamist groups - and their statements are supported by documents provided by the U.S. military.
And only 20 of the detainees were captured by American forces; according to the BBC, 380 of them were captured by bounty hunters and handed over in exchange for money.
Yet in a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia recently declared that such enemy combatants at Gitmo may not challenge their detention in U.S. courts.
The court’s ruling hinges on the premise that the Constitution does not extend habeas corpus to non-citizens who are held outside the sovereign territory of this country. And it sets a dangerous precedent.
As an attorney with the Center for Constitutional Rights aptly observed, “This decision empowers the president to do whatever he wishes to prisoners without any legal limitation so long as he does it off shore.”
Not surprisingly, the White House is hailing the ruling as a victory. But whether prisoners are held within U.S. borders or on foreign shores, as long as they are in U.S. custody, our actions must be guided by the Constitution.
In fact, this principle was so important to our founding fathers - people like Thomas Jefferson and Alexander Hamilton - that, unlike the Bill of Rights, which were amendments to the Constitution, it was included in the original document.
And just because the politicians and courts seem to have broken faith with the spirit of our founders, it does not mean the American people should follow suit.
You cannot spread freedom and democracy around the world if you’re not practicing it at home. And how do you practice it at home?
You start by treating enemy combatants like human beings. And by that I mean you give them a fair hearing before an impartial judge. In that way, America can set the standard for the world.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute.