No, not the new Denzel Washington movie; I'm talking about Eugene's series on the status of detainees at Gitmo. I was planning to scribble a few notes in response to Old Skool's post on this topic earlier today. But my views track Volokh's perfectly, and he's done a fine job of laying them out. See:
I particularly like this observation, which I think really puts things in their proper perspective: "As a matter of constitutional history and military need, enemy soldiers have long been treated by military justice and military detention, with virtually no intervention by civilian courts. It is a harsh system, as is the system of shooting and trying to kill them (with no trial, arrest warrant, or anything else) before they're taken captive."
I'd add these thoughts, which really just emphasize points Eugene made:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
About the Preamble, Justice Story said, "Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution . . . " The Preamble is an insight into what was on the Framers' minds when they drafted our Constitution:
-A more perfect union . . . of American states.
-Justice . . . for Americans.
-[American] domestic tranquility.
-The common defense . . . of Americans.
-The general welfare . . . of Americans.
-The blessings of liberty . . . quite explicitly for Americans.
Really, isn't that the only sensible reading of the Preamble, and the Constitution more generally? Those who ordained and established the Constitution -- the American people and their states -- were its intended beneficiaries. I simply see no evidence that it was ever intended to benefit non-Americans. Period. (Does the term "the people" -- or, in my parlance, "Americans" -- mean solely American citizens? The Supreme Court says no, not necessarily. But that's largely if not completely irrelevant for the Gitmo detainees, most of whom have no connection whatsoever with the United States and have never even set foot on American soil.)
Does this mean our government is free to do anything it wishes to anyone it wishes (besides Americans), anywhere in the world, at any time? As far as constitutional law goes, yes I think it does -- as long as the constitutionally required decision makers agree on whatever it is that we're planning to do. That freedom is limited -- by treaties, by the democratic process, and by practical considerations involving trade, diplomacy, international relations and the like. It's limited by the very fact that we're Americans, and we generally worry quite a bit about doing the right thing. But it's not limited by the Constitution.
Can anyone point me to a single historical example that suggests the Framers could have imagined habeas corpus rights being extended to foreign combatants, lawful or otherwise, captured by American -- or English -- armed forces during war? I'm pretty confident that the answer is "no" -- and in my view, that's awfully telling. But I'll happily reconsider if someone can show me such an historical example.