Magazine article The Wilson Quarterly

The Not-So-Long Arm of the Law

Magazine article The Wilson Quarterly

The Not-So-Long Arm of the Law

Article excerpt

THE SOURCE: "Beyond Protection" by Philip Hamburger, in Columbia Law Review, Dec. 2009.

FOR YEARS, LEGISLATORS, executive branch lawyers, and the courts have been tied up in knots over the scope of the rights that must be accorded suspected terrorists. Are they due a civilian jury? Can they be detained without being charged? Philip Hamburger, a professor at Columbia Law School, says that a more basic question must first be addressed: Do American legal protections even cover such people at all?

Hamburger argues that a legal doctrine prominent during the American Revolution, the "protection principle" can help U.S. officials sort people into two groups: those who are protected by U.S. law and those who aren't. The protection principle is based on the long-neglected idea that allegiance to a sovereign and the guarantee of that sovereigns protection are reciprocal. Foreigners who enter the country in amity traditionally have enjoyed protection, but non-citizens who take up arms against the United States or pledge allegiance to enemy countries are neither bound nor protected by U.S. laws. (Under this logic, 9/11 mastermind Khalid Sheikh Mohammed, whose trial in a civilian courts has been a subject of controversy, would not be entitled to such a trial.)

Today, the U.S. government relies heavily on geography in deciding whether its laws apply. A Supreme Court decision in 1950 "left open the possibility that prisoners of war, if held domestically, might in some instances have a fight to habeas. …

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