Undeserving of Protection

If you haven't heard, the District of Columbia Circuit Court decided yesterday that Guantanamo Bay detainees do not have the right to petition for habaes corpus in US courts. The decision, available here, is quite long; however, there are some very interesting sub-points here that should be explored. One of the most egregious (in my opinion) involves the sovereignty classification of the military base itself: "The United States occupies the Guantanamo Bay Naval Base under an indefinite lease it entered into in 1903. See Al Odah, 321 F.3d at 1142. The text of the lease and decisions of circuit courts and the Supreme Court all make clear that Cuba – not the United States – has sovereignty over Guantanamo Bay. See Vermilya- Brown Co. v. Connell, 335 U.S. 377, 381 (1948); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412 (11th Cir. 1995). The “determination of sovereignty over an area,” the Supreme Court has held, “is for the legislative and executive departments.” Vermilya-Brown, 335 U.S. at 380. Here the political departments have firmly and clearly spoken: “‘United States,’ when used in a geographic sense . . . does not include the United States Naval Station, Guantanamo Bay, Cuba.” DTA § 1005(g)." This is simply ridiculous. The implication that Cuba has complete sovereignty over the Guantanamo Bay military encampment would say that the Cuban government could evict the American military (a foreign military on sovereign soil) whenever it desired. However, this is not the case, as Cuba wants the US out of Guantanamo, but cannot make it so. A quote from the WikiPedia entry on Guantanamo Bay: The current Cuban government rejects the Cuban-American Treaty on the grounds that it violates article 52 of the 1969 Vienna Convention on the Law of Treaties, and therefore considers the U.S. presence in Guantánamo to be an illegal occupation of the area. Article 52, however, declares a treaty void only if its conclusion has been procured by the threat or use of force in violation of international law. If the sovereign government of Guantanamo (Cuba) cannot control the occupation of the territory, it stand to reason that they are not sovereign. The Court seems to disagree. It is interesting, however, that they have ruled out the Suspension Clause by saying: “non-resident aliens . . . plainly cannot appeal to the protection of the Constitution or laws of the United States.” The law of this circuit is that a “foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.” I would agree with this if not for one simple observation: The detainees were forcibly extradited, against their will, and placed into their current situation. If the letter of Constitutional Law does not specifically prohibit kidnapping, detaining, and abusing non-resident aliens, the spirit of Constitutional protection and the declarative "ALL men are created equal", coupled with morality, conscious, and simple human dignity should prevail. Not so in the law. Continuing along the Suspension Clause vein: "the dissent offers the distinction that the Suspension Clause is a limitation on congressional power rather than a constitutional right. But this is no distinction at all. Constitutional rights are rights against the government and, as such, are restrictions on governmental power. See H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534 (1949) (“Even the Bill of Rights amendments were framed only as a limitation upon the powers of Congress.”).12 Consider the First Amendment. (In contrasting the Suspension Clause with provisions in the Bill of Rights, see Dissent at 3, the dissent is careful to ignore the First Amendment.) Like the Suspension Clause, the First Amendment is framed as a limitation on Congress: “Congress shall make no law . . ..” Yet no one would deny that the First Amendment protects the rights to free speech and religion and assembly." This is important to me because it highlights the difference between inherent rights and congressional limitation. The difference is important because of the long-term implications of each possibility. If people have inherent rights, than anything not specifically prohibited is assumed to be legal. Specific legislation must be created to amend the Constitution, with a 2/3 majority, if the government wants to remove a right. If, however, the Constitution only limits congressional power, than any right not specifically protected in the Constitution can be eliminated by a simple majority vote, instead of a 2/3 vote. The 17 vote difference (in the Senate) prohibits the controlling party from manipulating our rights ad hoc. The difference between the assumption of inherent rights and the assumption of state-granted allowances is immense. The courts, unfortunately, support the latter.