Published on Thursday, November 27, 2003 by the Hartford Courant
Amistad Revisited At Guantanamo?
by Jeremy Brecher
In the 1841 Amistad case - vividly portrayed in Stephen Spielberg's movie "Amistad" - the U.S. Supreme Court courageously held that human rights and the rule of law must apply to captives who had been seized in Africa and imprisoned in the United States. The Supreme Court recently agreed to hear the eerily parallel case of those seized in Afghanistan and imprisoned at the U.S. base at Guantanamo Bay, Cuba. It should reaffirm the Amistad precedent.
The Guantanamo captives, who the Bush administration alleges were "unlawful combatants," are held prisoner without lawyers, without a day in court, without even hearing the charges against them. The administration claims the authority to deny the captives the right of habeas corpus - the right to appear before a judge, a right dating to the Magna Carta, enshrined in the U.S. Constitution and necessary for protecting all other human rights. The administration claims, paradoxically, that its agents can do whatever they want because the U.S. base in Guantanamo Bay is in a foreign country and therefore not under the jurisdiction of U.S. courts.
The Amistad captives were seized in Africa, shipped to Cuba and sold as slaves. They revolted, seized control of the Amistad and sailed to New England. They were captured by the U.S. Navy and imprisoned in Connecticut. The U.S. attorney general demanded that the courts turn them over for delivery to Spanish authorities - even planning to send them on a U.S. government ship so Connecticut courts could not intercede with a writ of habeas corpus.
Both these cases raise the same two fundamental questions of human rights and the rule of law. Does the executive branch of government ever have the authority to seize people, imprison them and spirit them away to a foreign land with no appeal to a court? And does the executive ever have authority to act without any possibility of review by the judiciary? In the Amistad case, the Supreme Court answered no to both questions.
The executive's position in the Amistad case met withering scorn from former President John Quincy Adams - inspiringly portrayed in Spielberg's movie by Anthony Hopkins - who defended the Amistad captives before the Supreme Court.
Adams charged that the government was depriving the captives of the most fundamental rights. "Have the officers of the U.S. Navy a right to seize men by force, to fire at them, to overpower them, to disarm them, to put them on board of a vessel and carry them by force and against their will to another state, without warrant or form of law? ... Is there a right of habeas corpus in the land? ... Is it for this court to sanction such monstrous usurpation and executive tyranny?"
Adams pointed out that sending people overseas for trial was "one of the most odious of those acts of tyranny which occasioned the American Revolution." Indeed, the Declaration of Independence specifically condemns King George III for "transporting us beyond seas to be tried for pretended offences."
Adams also condemned the executive's attempt to usurp the authority of the courts. Perhaps, Adams conceded, it may be easy for the royal governor at Havana "to seize any man" and "send him beyond seas for any purpose." But "has the president of the United States any such powers? Can the American executive do such things?" The Spanish demand was no less than that "the executive of the United States, on his own authority, without evidence, without warrant of law, should seize, put on board a national armed ship and send beyond seas 40 men, to be tried for their lives."
When Spain demanded that the president issue a proclamation overriding the jurisdiction of the courts, it was demanding "what the executive could not do, by the Constitution. It would be the assumption of a control over the judiciary by the president, which would overthrow the whole fabric of the Constitution; it would violate the principles of our government generally and in every particular." Yet that is in essence what the Bush administration is asking the Supreme Court to accept in the Guantanamo case.
The Supreme Court ruled that U.S. courts were bound to protect the rights of the Amistad captives. The rights of the case "must be decided upon the eternal principles of justice and international law." To rule otherwise would "take away the equal rights of all foreigners, who should contest their claims before any of our courts, to equal justice," or "deprive such foreigners of the protection given them" by "the general law of nations."
In 1841, the Supreme Court took a bold stand against executive tyranny and for human rights and the rule of law. Let us hope the United States will remain a government under law, not a presidential dictatorship.
Jeremy Brecher of West Cornwall won the American Bar Association's 1997 Silver Gavel Award for the script of the video documentary "The Amistad Revolt."
Copyright 2003, Hartford Courant