Or, like outer space.
The Supreme Court did not venture onto this theoretical launch pad, but the Bush Administration has itself already compared Guantanamo Bay to outer space, as chronicled by Elizabeth Sepper:
A memo written for the Department of Defense discussed the fact that the Administration was considering possible detention sites on the basis of whether a federal court could exercise habeas jurisdiction over them, concluding that "a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base." Memorandum from Patrick F. Philbin, Deputy Assistant Attorney Gen. & John C. Yoo, Deputy Assistant Attorney Gen., to William J. Haynes, Gen. Counsel, Dep't of Def. 9 (Dec. 28, 2001). One former Administration attorney described Guantanamo as "the legal equivalent of outer space."See Elizabeth Sepper, The Ties that Bind: How the Constitution Limits the CIA's Actions in the War on Terror, N.Y.U. Law Review, n.118 (October 17, 2006) (citations omitted, emphasis supplied).
If Messrs. Philbin and Yoo were correct, then perhaps Boumediene would apply to the planned United States moon base, once occupied?
The 1967 Outer Space Treaty purports to forbid signatories, including the U.S., from asserting sovereignty over the moon or any other celestial body. But Boumediene makes clear that the existence or non-existence of sovereignty does not control whether Constitutional protections extend to a particular territory -- Guantanamo Bay is under Cuban, not U.S., sovereignty according to the government's position in Boumediene, for example. Moreover, parties to the 1967 Outer Space Treaty can opt out of the treaty with one year's notice.So once the moon base is occupied, a prompt habeas corpus hearing should be available to its occupants. Future little green detainees can now breathe a little easier.
Though they should remember that in space, no one can hear you petition.
Future Combatant Status Review Trial?
Extraordinary Rendition Vehicle?
3 comments:
Did our government really try to maintain that Cuba exercises sovereignty over a U.S. military base abroad? That's an exceptionally lame argument.
The contortions that have been necessary to try to justify torture, rendition, deprivation of habeas corpus, etc., are embarrassing, and I wouldn't think the Supreme Court would have to break a sweat to beat them back. It's a disgrace that we get a 5-4 decision on this crap. We're going to hell in a handbasket.
According to the notoriously unreliable Wikipedia, the origin of the terms "hell in a handbasket," though unknown, may be the fact that the head of those executed by beheading was often caught in a basket, so the executed went to hell with his head in a basket. In other words, he (or she) went down there quicker than might otherwise have been the case, consistent (somewhat) with the modern meaning. Certainly the current administration has made it more likely that our nation will suffer a disaster, and less likely that we would be able to recover from one should one occur, but I'd argue that we are still quite a robust entity, unlikely to be executed. I think the better analogy is that of the nation as a nice sports car owned by a reckless teenager for a few years. The oil went unchanged, the exterior unwashed, and it was driven aggressively and rudely, so everyone thinks the car is owned by a jerk. But a new buyer could repair it, drive it with class, and really get a lot of good miles out of it. It is, after all, a classic.
Perhaps I should have checked the origins of my phrase, because I meant to suggest merely a current trajectory, not an irreversible destiny. To run with the analogy, though, I actually think that lopping our country's head off (figuratively, of course, through Constitutional means) might slow its journey to hell, rather than hastening it.
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