The Ming Report

FURLING THE FLAG

April 21, 2004 - Ted Olson, the Solicitor General of the United States, argued yesterday that United States Courts have no jurisdiction over Guantanamo Bay because Cuba retained sovereignty over the territory when it signed the lease under which the United States occupies the base in perpetuity. Because Cuba is sovereign, his argument is, US Courts may not exercise jurisdiction over the base. It is an interesting twist in the Administration's drive to retain arbitrary and unchecked power over citizen and non-citizen alike by simply labeling them as an "enemy combatant". The corollary to the argument is, of course, that the sovereign – in this case, Cuba – does have jurisdiction to consider cases arising on that base. Is the administration seriously advancing the argument that if a legal remedy exists for the prisoners held at Guantanamo Bay it can be found only in Havana and not Washington?

The case argued yesterday does not consider what the remedy might be but whether the Federal judiciary can fulfill its Constitutional duty to insure that when the Executive acts it complies with the Constitution and Laws of the United States. At its most basic formulation the issue before the court is whether the President may, by announcing that the nation is at war, abrogate the Constitution and exercise arbitrary and dictatorial power over the individual. May he define away the individual’s unalienable rights merely by applying a label? Does the Constitution evaporate when the nation is at war?

The importance of the cases before the court cannot be understated. The decision will have an impact that is far more widespread than the fate of the Guantanamo detainees. It will either affirm the judiciary’s role as a bulwark against arbitrary power or redefine the relationship between the executive and the courts; the executive and the legislative; the executive and the people. The decision will go to the root of our Constitutional system of checks and balances.

If the Court permits the administration to create a zone in Cuba in which it may operate unrestrained by the rule of law; untrammeled by ideas of human rights; and free of Constitutional limitations on its power it is a short step to rounding up Enemies of the State and sending them beyond the Pale.

From the questions posed by the Justices yesterday it is apparent that the Court understands the momentous nature of the cases before it. It is hazardous to predict the outcome based upon the dialog between the bench and the lawyers before it. Whatever the result it will be far reaching and go to the very core of American liberty. It could well mark the end of American ideals of individual freedom and liberty. Throughout our history we have proclaimed that the Constitution follows the flag. Will the Court now furl that Star Spangled Banner.