ADVERTISEMENTS

The Supreme Court, in a 5 to 4 ruling in Boumediene v. Bush, has delivered a resounding rebuke to the Administration's detainment program at Guantanamo.

One basis for the Administration's claim that the Constitution does not apply to these detainees was that there were noncitizens being held in "foreign" territory. The Court noted that the United States was conceded control of Cuba at the end of the Spanish American War. When the Cuban Republic was established, the US retained entered into a lease agreement by which it continued to maintain the same plenary control it had enjoyed since 1898 over Guantanamo. As Justice Kennedy wrote:

Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." ... Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another.

Too long we have tolerated an Administration that has wanted to switch off the basic rights that are the very reason for defending this country in the first place. The craven willingness of all too many people to give up our rights whenever some politician cries "danger," is the surest course we can chart to dictatorship.
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