Guantánamo, Courts and the Rule of Law

by Michael H. Hoffheimer

Michael H. Hoffheimer

First, the detainees include an unknown number of innocent people. Partly due to judicial review, about 300 detainees have been released, including one 10-year-old child. About 86 percent of the remaining detainees—431 people—were not captured by U.S. troops but by warlords and bounty hunters eager to collect a $5,000 bounty. Judicial review is important to assure the implementation of lawful procedures for identifying the real terrorists and bringing them to justice.

I believe that Guantánamo holds some of the worst criminals in world history, hellbent on doing even worse in the future. But terror suspects have also included U.S. Army Chaplain James Yee, who was accused of capital crimes and held in solitary confinement for months. Access to courts resulted in the dropping of all charges against Yee, who received an honorable discharge and Army commendation.

Second, as U.S. Sen. John McCain (R-Ariz.) recognized, our response to terrorism is not only about who they are. It is also about who we as Americans are. No American value is more important for the rule of law than robust and independent judicial review of unlawful detentions.
The Declaration of Independence protested against the refusal to establish judiciary powers, the denial of the right to trial by jury and the transport of criminal suspects for trial in foreign jurisdictions. The United States inherited a veneration for English common law, whose writ of habeas corpus guaranteed judicial review of wrongful detentions.

The only crime in England the king could not pardon was transporting someone beyond the habeas corpus jurisdiction of the common law courts. Even before the Bill of Rights, the Constitution expressed the assumption that habeas corpus will be available except in times of invasion or rebellion.

Like the Founding Fathers, I am troubled by efforts to delegate the unreviewable treatment of politically unpopular prisoners to the executive branch. I am troubled that Guantánamo, conceived as a visible symbol of America’s lawful and restrained response to terrorism, has morphed into Devil’s Island, where reliable accounts of caged, shackled detainees contradict official promises of humane treatment.

The measure of American justice is not how we treat our friends. The measure of justice is how we treat our hateful enemies, the powerless and the guilty. Election-year legislation has avoided a political solution to Guantánamo and leaves the final answer to the courts. I pray they get it right.

Michael Hoffheimer is professor of law and Mississippi Defense Lawyers Association Distinguished Lecturer. He teaches civil procedure, criminal law and legal history. He helped coordinate a conference on Guantánamo at the law school in October.

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