Late last month 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 acts which constituted these charges took place while Airman al-Halibi was on active duty as an Air Force translator at Camp Delta in Guantanamo Bay, Cuba. If the government can prove 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 problem 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. The U.S. Constitution is the document that created the federal government. In broad general terms, it 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 sheet anchor of the government's powers, one would expect that the government would contend that it exists and subsists wherever the government wants to enforce federal law. But the government only wants to enforce part of the Constitution.
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 litigation filed by relatives of prisoners confined at Guantanamo Bay who sought to have federal courts 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 when 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 Guantanamo Bay detainees lacked the right to habeas corpus because 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 U.S. leases Guantanamo Bay from Cuba, the sovereign power over Camp Delta is not the U.S. government, but is rather Fidel Castro! Tell that to the commanding American officer.
Comes now the same government a year later to argue that while one is not entitled to the protections of the Constitution when one is at an American military base in Cuba, one can still be prosecuted pursuant to powers given by the Constitution while at an American military base in Cuba. Hence the government's jurisdiction headache: it cannot—under the doctrine of judicial estoppel—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, with all its powers to prosecute and with all its due process protections as well, applies fully or it does not apply at all.
The government knows that it cannot escape the Constitution merely by leaving the U.S. mainland because the Supreme Court has told it so. In Ex parte Milligan, 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 over 100 years, the Court has ruled that federal courts 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, not the parts that restrain their exercise of it.
Unfortunately, the government's selective defense of the Constitution is not surprising or novel. Since 9/11, the government has willfully disobeyed the orders of federal judges in U.S. v. Moussaoui and in Padilla v. Rumsfeld; claimed it can lock up Americans and strip us of all our constitutional rights without judicial review in Rumsfeld v. Hamdi; and 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 fearsome, their guilt so palpable, and their knowledge of our secrets 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?