ACS recently released an issue brief entitled "Guantanamo is Here: The Military Commissions Act and Noncitizen Vulnerability," by Muneer I. Ahmad, professor of law at American University Washington College of Law.
Professor Ahmad examines how the Military Commissions Act of 2006 allocates rights premised on a distinction between citizens and noncitizens, which, he argues, creates a rights differential supported by neither law nor reason.
Next week, the U.S. Supreme Court will hear argument in Boumediene v. Bush and Al Odah v. U.S., at the core of which is the question of whether the MCA constitutionally removes the right of habeas corpus for Guantanamo Bay detainees. Professor Ahmad argues the ramifications of the Court's decision may extend well beyond Guantanamo to encompass the rights of all noncitizens.
He writes:
When the Supreme Court takes up the Boumediene and Al Odah cases, it will be presented with the opportunity to clarify how, if at all, citizenship matters to the rights of nonterrorism suspects. But just as the MCA extends beyond Guantánamo, so does the vulnerability it creates for noncitizens extend beyond terrorist suspects.
At a doctrinal level, the MCA targets noncitizen “unlawful enemy combatants.” But law is more than doctrine, and it casts a long shadow in our culture and our politics. The fact that such core legal protections as habeas corpus and fundamental fairness in criminal proceedings have been stripped for noncitizens, and only noncitizens, both reflects and perpetuates the political vulnerability of immigrants.
Congress likely limited these provisions of the MCA to noncitizens not only because to apply them to citizens seems clearly unconstitutional, but because targeting noncitizens is politically possible in a way that depriving citizens of fundamental forms of protection against state power is not. Indeed, noncitizens are a quintessentially disenfranchised population, and their lack of electoral influence enables their targeting....
The bitter irony of the Supreme Court’s grant of certiorari in the Boumediene and Al Odah cases is that the Court now confronts the same fundamental issue as it did five years ago in Rasul—whether the detainees at Guantánamo can challenge the legality of their detention through habeas corpus. But Congress’s intervention since Rasul has sharpened the questions of how, and why, citizenship matters to the availability of the most fundamental protections against the exercise of state power.
Whether the Court addresses them or not, the MCA has thus insinuated these questions into the territorial United States, and in so doing has brought Guantánamo to our shores.
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