Does the Constitution Mean What It Says? by Andrew Napolitano

The US government has imprisoned a man for seventeen years without charges or a trial. From Andrew Napolitano at

“No person … shall be deprived of life, liberty, or property without due process of law.”
— Fifth Amendment to the U.S. Constitution

Abdulsalam al-Hela is a 53-year-old Yemeni cleric who has been incarcerated by the United States at the Guantanamo Bay Naval Station in Cuba since 2004. He has not been charged with any crime. His case has a long and complex legal history, but it is instructive to all who believe that the Constitution means what it says.

Hela is represented by competent counsel who have filed numerous petitions in his behalf asking the courts to compel the government to comply with the Constitution and justify his confinement. The underlying constitutional principles here are due process and habeas corpus. The obligations of complying with both are imposed upon the federal government by the Constitution.

Due process — which is guaranteed by the Fifth Amendment — means that every person confined or charged by the government is absolutely entitled to a notice of the charges against him, a fair hearing on those charges before a neutral judge and jury, and the right to appeal any adverse decision to other fair and neutral judges. Hela is also entitled to a writ of habeas corpus. It permits all confined persons to ask a judge to compel the government to justify the confinement.

When Hela asked for due process and habeas corpus relief in federal district court in Washington, D.C. — the judicial venue for all Guantanamo Bay detainees — a district court judge denied his petition because the government has called Hela an enemy combatant and the president, the court ruled, has the lawful power to confine him for the duration of whatever hostilities he and the U.S. were engaged in.

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