The Importance of Due Process – 9-11 Case – (Ft. Meade) (Frank Garrett)

My name is Frank Garrett and I am a third-year law student at Indiana University, Robert H. McKinney School of Law. I leave tomorrow morning for Fort Meade, Maryland to attend the 9-11 hearings next week. This will be my first act as a member of the Guantanamo Bay, Cuba U.S. Military Commission Observation Project (“MCOP”).

I’m attending the hearings in order to help ensure that the 9-11 defendants get a fair trial. In my initial post, I’d like to explain why that’s important to me.

My interest in the MCOP stems from reading Boumediene v. Bush, 553 U.S. 723 (2008) in a Federal Courts class last spring. In Boumediene, the Supreme Court held a provision of the Military Commissions Act that stripped federal courts of jurisdiction to hear the habeas corpus petitions of Gitmo detainees unconstitutional. The government argued that the Constitution did not apply at Gitmo, or at least not to non-citizens, because the United States technically did not have sovereignty over Gitmo. When Cuba and the United States entered into a lease agreement in 1903, Cuba retained ultimate sovereignty over Gitmo. However, the United States has had complete  control over Gitmo for over 100 years.  In other words, the government argued in Boumediene that because the United States does not have legal sovereignty over Gitmo, the Constitution does not apply there – even though the United States actually has complete control over it.

The Court rejected this argument, pointing to the separation of powers concerns it raised. The government’s argument would allow the political branches to contract away the Constitution, i.e. the government could take control of a territory, disclaim formal sovereignty, and then operate without legal constraint. But the Court said that the political branches could not use this strategy to “switch the Constitution on or off at will.”

I wholeheartedly agree with the Court’s analysis. Our Constitution’s separation of powers is at the heart of the framers’ genius. It is one of the most important ways we ensure the rule of law and prevent tyranny. See, e.g., Federalist No. 51. A fundamental value of the American system of government is that no single person is judge, juror, and executioner. Rather, there are checks and balances to ensure that the state treats everyone impartially. If we allow Gitmo to be a “legal black hole,” in which our government may act without legal restraint, we renounce one of our most important values.

On the one hand, the 9-11 attacks were unbelievably horrific, and the people responsible must be brought to justice. On the other hand, we can’t let fear and anger cause us to abandon our most fundamental values. And this is a false dilemma. Demanding due process does not prevent us from bringing the people responsible for 9-11 to justice. It simply ensures that we are righteous in doing so.

I’ll post more on these issues in the future. But my next post will deal with the substance of next week’s hearings.

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