November 07, 2003, 8:51 a.m.
Fox’s ACLU Lawyer
Judge Andrew Napolitano.

By Matthew J. Franck

I like Fox News Channel. I think it's "fair and balanced," just as its slogan claims (certainly it is by comparison with the other news outlets on television). An example of this is the daily appearance of New Jersey judge Andrew Napolitano on John Gibson's Big Story program. Napolitano's views on the law, at least when it comes to the war on terror, are indistinguishable from those of the ACLU. Unfortunately, Napolitano's arguments on this score are ill-informed at best, and disingenuous at worst.

On the website of Reason magazine, home of sleepless libertarians, Napolitano had a piece on November 3 entitled "A Constitution of Convenience." In it he says "government lawyers" in the Bush administration "want to uphold the parts [of the Constitution] that grant them power, not the parts that restrain their exercise of it."

His case in point? The government is now prosecuting an Air Force airman, Ahmad al-Halabi, for acts of espionage at Guantanamo Bay during his service as an Arabic translator involved in the interrogations of detainees there. But, Napolitano notes, the administration has strenuously argued — successfully so far — that habeas-corpus relief is not available for the detainees at Guantanamo because our naval base there is outside the sovereign jurisdiction of the United States, and therefore beyond the reach of our courts.

The government's view now, he says, is that "while one is not entitled to the protections of the Constitution when one is at an American military base in Cuba, one can still be prosecuted pursuant to powers given by the Constitution while at an American military base in Cuba." Gotcha! says the former judge. The government "cannot — under the doctrine of judicial estoppel — argue today contrary to what it argued last year on the same point of law."

Oh, dear. Have the Bush administration's legal eagles really painted themselves into a corner so clumsily? Not unless apples have suddenly become oranges. (Mixed-metaphor alert!)

The administration's argument that the Gitmo detainees are beyond the reach of habeas relief is based on the 1950 Supreme Court precedent of Johnson v. Eisentrager (never mentioned by Napolitano), which held that the protections of the U.S. Constitution had no extraterritorial application to German nationals — held in Germany under American control at an American-administered military prison — who had been convicted of war crimes as unlawful enemy combatants. In last spring's ruling in Al Odah v. United States, the D.C. Circuit held that the Eisentrager precedent applies to the detainees at Guantanamo, because the base is not sovereign U.S. territory but is administered by American forces under a lease agreement with Cuba. In both cases, the court held, the individuals in question simply had no rights an American court could vindicate — they were aliens, held overseas, for acts committed overseas, and the fact of their custody in the hands of the American military was not enough to trigger the protections of the Constitution in a court of law sitting in the United States. It remains to be seen whether the Supreme Court will review the D.C. circuit court's decision, and, if it does, what it will say about how similar the two situations are — or whether Eisentrager should survive as a precedent at all.

Napolitano is exercised about the argument that Guantanamo is outside U.S. jurisdiction, since it can hardly be said that the Cuban government has any say over what happens there. (And of course this limbo status is exactly why Gitmo was chosen as the detention center for captured combatants in the War on Terror.) But his oh-so-clever gotcha about the government's alleged self-contradiction rests on the success of its argument about the inability of American courts to reach what happens there.

So let's return to Airman al-Halabi. What exactly does the administration's so-far successful argument on Gitmo's extraterritoriality have to do with his case? Exactly nothing.

Al-Halabi is a member of the American armed forces, and as such is subject to the Uniform Code of Military Justice. He is punishable for any criminal acts he commits under that Code, no matter where he commits those acts. It is accepted as a matter of law that soldiers, sailors, airmen, and marines are liable for crimes under the UCMJ, and subject to court-martial, whether they commit them at Fort Campbell, Kentucky, or Ramstein Air Force Base in Germany, or anywhere else they happen to be stationed. And the reasons are simple: Military personnel's strict adherence to the Code is essential to the maintenance of duty and discipline at home and abroad, and — not least important — they have all sworn an oath that subjects them to it.

Napolitano begins his piece by noting that it's the Defense Department that has charged al-Halabi. But in his eagerness to score a polemical point, he fails to inform his readers of the difference this makes. If al-Halabi is tried, it will be by a court-martial, not by a civilian U.S. district court. Another servicemember, Capt. James Yee (who served as a Muslim chaplain at Gitmo) is likewise facing charges in the military justice system.

What matters in both these cases is not the place where their criminal acts are alleged to have occurred, but their status as military personnel. By contrast, what matters in the case of the Gitmo detainees is both their status and the place where they are being held. It might possibly be the case, given the nature of the offenses charged, that no civilian U.S. court can touch either Yee or al-Halabi for what they allegedly did outside American territorial jurisdiction. But the military can prosecute. By the same token, none of the detainees can be tried by — or protected by — a civilian U.S. court. But as we may soon see, they can be tried by the military commissions (closely analogous to courts-martial) that the president has authorized.

The government's attention to the details that Napolitano ignores is evident in the third case to arise out of Guantanamo, involving Ahmed Mehalba, a contract employee of the Defense Department who also worked as a camp translator. As a civilian, he cannot be charged under the UCMJ as Yee and al-Halabi have been. Instead, Mehalba was picked up at Boston's Logan Airport after extensive surveillance, interrogated by the FBI, and charged in civilian court with having lied to investigators about whether he was carrying classified materials at the time.

Notice that, Judge Napolitano. An American citizen, a civilian, charged in civilian court for acts allegedly committed on American soil. That looks to me like the government's lawyers know exactly what they're doing.

— Matthew J. Franck is professor and chairman of political science at Radford University.

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