The framers of the Constitution had a healthy anxiety about the potential of the new federal government to violate the habeas corpus rights of citizens. Recently I read an article by Eric M. Freedman, "Federal Habeas Corpus in Capital Cases," published in an edited volume, "America's Experiment with Capital Punishment," and I came across this fascinating passage from the Constitutional Convention. A debate was raging about how to deal with habeas corpus rights in the Constitution (this is relevant to the article because even since the Guantanamo debacle, the most common use of petitions for review of habeas corpus come in death penalty cases). Could it be suspended? For how long? And under what circumstances? Luther Martin, a delegate from Maryland, offered this commentary:
And it was urged, that if we gave this power [to suspend habeas corpus] to the general government, it would be an engine of oppression in its hands, since whenever a state should oppose its views, however arbitrary and unconstitutional, and refuse submission to them, the general government would declare it to be an act of rebellion, and suspending the habeas corpus act, may seize upon the persons of those advocates of freedom, who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleasure in the remotest part of the union, so that a citizen of Georgia might be bastiled in the furthest part of New-Hampshire - or a citizen of New-Hampshire in the furthest extreme of the south, cut off from their family, their friends, and their every connection.So, just as our founding fathers feared, we have supplanted New Hampshire with Guantanamo Bay, or with the vast number of other black sites across the world. The Supreme Court has since ruled that the government cannot declare a blanket suspension of habeas corpus for so-called "enemy combatants," whether they be US citizens (Hamdi v. Rumsfeld) or not (Hamdan v. Rumsfeld).
Even so, the Global War on Terror has unleashed a new geography of detention and torture specifically designed to circumvent the rights of prisoners to contest their detention or be treated humanely. Scholars like Trevor Paglen have tried to unravel and decode these new networks, not by relying on government admissions and documents, but by finding evidence on the ground. For example, the Terminal Air Project, who's work was featured in Paglen's book "Torture Taxi," is a community of researchers and aviation enthusiasts who have meticulously recorded tail numbers of unregistered flights as they took off and landed at airports around the world. Many of these secret flights were part of the Extraordinary Rendition program, and the group's website offers interactive maps of flights from places like Smithfield, North Carolina, near the headquarters of Xe (formerly Blackwater Worldwide) and Symany, Poland, or Amman, Jordan.
You can read more about Paglen's work on Extraordinary Rendition in "An Atlas of Radical Cartography," which includes a map of the rendition flights. That map was also incidentally turned into a billboard on LA's Wilshire Boulevard in 2006 (pictured below). But this trend is not limited to fighting terrorism. In the past we have also mentioned efforts to detain migrants in isolated areas beyond national borders - sort of like Ellis Island on steroids.
The founding fathers were afraid that the remote corners of our own republic, separated by vast distances, could afford an ill-intentioned government an easy means of ferretting away undesirable opponents. They probably never could have imagined the government holding prisoners on a foreign naval base, or in a secret CIA prison, or even aboard an aircraft that didn't touch down, to circumvent the right of habeas corpus. Though they probably knew quite a bit about prison ships.