Real Cases. Real Experience.
UT Law students (left to right) Ariel Juarez, David Currie, Anh-Thu Nguyen and Kari Erickson. (Photo by Marsha Miller/UT Austin)
Today, the U.S. Supreme Court will hear arguments in Al Odah/Boumediene, perhaps the defining case dealing with the rights of detainees held by our government in Guantánamo Bay. The case centers on one of the most fundamental rights in our system of justice: the Great Writ of Habeas Corpus.
Dating to the Magna Carta, habeas allows a prisoner to challenge the legality of his detention before a court of law. Often described as the last bulwark against arbitrary executive power, habeas is the final line of defense between a free society and one in which the government detains whom, when and how it pleases, without accountability to the rule of law. The question before the Supreme Court is whether an attempt by Congress to deny habeas to the Guantánamo detainees violates the Constitution.
As students in the University of Texas School of Law National Security & Human Rights Clinic, we’ve been privileged to work on the Al Odah case. Working into the night arguing points of political and legal doctrine, we have picked apart ancient English cases with names like Three Spanish Sailors and dusted off old Army field manuals from Vietnam. Though at times we have disagreed on the details, we remained united by one idea: When confronting serious threats to our national security, we must uphold the rule of law as established by our Constitution.
In 2004, the Supreme Court held habeas extends to Guantánamo. Displeased, Congress passed legislation forbidding federal courts from hearing the habeas petitions of the detainees. The Constitution, however, prohibits Congress from suspending the writ of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it.” This provision was wisely insisted upon by framers of our republic, having just won a hard-fought victory against a tyrannical regime given to summary arrest and detention.
The rule of law is fundamental to a democracy, and its consistent observation is what distinguishes the United States. Lawyers in Pakistan take to the streets and throw rocks at the police to protest the arbitrary emergency rule imposed in the name of national security. Here, we go to the courts, where we are free to air our grievances without threat of censorship, arbitrary arrest or other abuse. America is the world’s freest society because its population jealously guards the gifts of liberty bequeathed by our founders and does not lightly trade in freedom for strong-arm security.
Critics have argued that “the Constitution is not a suicide pact.” As students who were in New York City and Washington, D.C., on 9/11, we are acutely aware of the threat posed by terrorism and the need to effectively guard against it. We agree, however, that any defensive policy that violates the rule of law does as much damage to our nation as those who wish to destroy it with bombs.
The United States is home to the world’s finest judicial system, and individuals in our custody and under our exclusive jurisdiction must be provided their day in court—even those we suspect of being terrorists. National security is upheld not only by our armed forces, but by those who ensure that in keeping our nation safe, we do not compromise its founding principles.
Throughout our work, we have drawn inspiration from those in our profession who have defended the rule of law in times of crisis. John Adams, before becoming president, sacrificed his personal safety to represent British soldiers accused of murdering his fellow patriots during the Boston Massacre. Our commitment to the rule of law is one of our great national treasures that every American can take pride in. But like any treasure, it must be guarded and preserved.
Today, we will watch the oral arguments before the Supreme Court in Washington. We hope the justices understand the import of this case and will not give into fear mongering but will instead, like we are striving to do, uphold the foundation of our democracy.
Contact: Laura Castro, UT Law, Director of Media Relations, 512-232-1229, email@example.com