Forever Prisoners, by Judge Andrew P. Napolitano
“I consider a little rebellion once in a while to be a good thing, and as necessary in the political world as storms in the physical.” —Thomas Jefferson, January 30, 1787
When Thomas Jefferson wrote to his friend, neighbor and colleague, James Madison, his view that the basis of government should be to preserve liberty rather than order, the war of revolution against Britain had been won, the Articles of Confederation were in place, and Madison was beginning to prepare for her pivotal role in drafting the Constitution.
Jefferson was in Paris, as the United States Ambassador, and he wrote to Madison expressing his view that whatever amendments to the Articles of Confederation he planned to draft should pass the value of personal freedom as the default position. Madison and others were sent to Philadelphia to draft amendments to the articles. But Madison had no amendments in mind.
He arrived in the then new nation’s capital with a draft of a new constitution in his mind and in his notes. The draft would undergo many changes throughout the summer of negotiations in 1787, and the document would eventually receive the support of all delegates and be ratified by all 13 states, without Jefferson’s preferences for liberty over order.
Yet five of the ratifying states have made it clear that they might change their minds if a bill of rights embracing Jefferson’s sentiments were not added to the Constitution. Jefferson, 3,000 miles away, shared the same fear as wavering state ratifiers that the new government proposed by Madison and his colleagues must be shackled when it comes to personal liberty.
Again, it fell to Madison to use her language skills to craft 10 amendments to ensure that the new federal government would not assault individual liberty. The Bill of Rights was ratified in just a few months and with little resistance. Even many anti-federalists, who had opposed ratification of the Constitution, supported ratification of the Bill of Rights.
Among the amendments ratified was the fifth, which guarantees that “no person … shall be deprived of his life, liberty or property without due process”.
Due process means that all defendants in criminal cases and all people in government custody have the right to know the charges against them, have the right to a fair jury trial with a neutral judge, and have the right to appeal. of an unfavorable verdict. Due process also means that the government cannot imprison a person without filing a complaint at the time of imprisonment, or keep them detained after they have served their prison sentence.
I offer this sterile background in basic American constitutional history in order to address a lamentable constitutional mess that is currently unfolding at the US Naval Base in Guantanamo Bay, Cuba.
The age-old conflict between order and freedom, about which Jefferson wrote, often boils down to hard cases. Cases are difficult when the litigants whose rights are violated are unpopular, unsympathetic or unknown.
Two of those cases are making their way through the courts — and in both cases, the Trump administration and the Biden administration have argued that somehow, under the Constitution, the government can legally confine convicted criminals even after they have served their prison sentence and can even confine dangerous people without filing charges. These arguments are chilling.
The arguments are also immoral, un-American, and unconstitutional, and their effects are extremely illegal. Yet federal authorities — under both political parties — continue to get away with smearing the Constitution that, for one person, they’ve all sworn to uphold.
Majid Khan, who was tortured by the CIA for two years before being sent to Gitmo, pleaded guilty to embezzling $50,000 from a Pakistani organization to an Al-Qaida affiliate which used the funds in the 2003 Marriott hotel bombing in Jakarta, Indonesia During his sentencing, he was allowed to describe the torture inflicted on him by the CIA.
His uncontested testimony was so vivid and compelling that his military jury recommended leniency, and the judge agreed. His prison term ended three months ago, on March 1, 2022. He remains confined, unable to communicate with anyone other than his lawyers.
Worse still is the case of Abdul-salam al-Hela, who has been detained at Gitmo for almost 20 years and has yet to be charged with a crime. The government’s dilemma is its fixation on torture. The evidence he has against al-Hela was obtained through the torture of al-Hela himself and others. The government knows it cannot be used in any criminal prosecution in any US court. Yet under the administration of President George W. Bush, torture was encouraged, rewarded and never punished.
The CIA in the Bush years behaved as if the Constitution that its officers swore to support was just a piece of paper, without the force of law, without moral foundation, and without the guarantees of due process. And in both of these cases, a federal appeals court in Washington, DC, which has jurisdiction over constitutional profaners at Gitmo, allowed it to happen; in Khan’s case because he is not American, and in al-Hela’s case because he is too dangerous – even after 20 years of unjust imprisonment – to be released.
None of these excuses hold up under even the most rudimentary scrutiny. The plain language of the Fifth Amendment protects all people, not just Americans, and it protects them from the very deprivation of liberty that federal authorities are now causing. If the government can decide on its own whether to lock up prisoners after they have served their sentence or incarcerate them without complaint, then no one’s liberty is safe and the guarantees of the Constitution are null and void. of meaning.
As Jefferson wrote in the Declaration of Independence, when government attacks the very freedoms it was charged to protect, it is time to change them or abolish them.
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