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A Constitution of Convenience
The government can't have it both ways
Andrew P. Napolitano

Late last month the Defense Department charged one of its own, Air Force Senior Airman Ahmad I. al-Halibi, with espionage and with spying for his native Syria. According to court documents, many of the acts which constituted these charges took place while Airman al-Halibi was on active duty as an Air Force translator at Camp Delta in Guantanamo Bay, Cuba. If the government can prove the charges against him in court, he could receive the death penalty.

But problems of proof are the least of the government's concerns in this case. First, the government must confront the self-inflicted problem of federal jurisdiction—which it has claimed does not exist for acts committed in Cuba.

Here's how the government shot itself in the foot. The U.S. Constitution is the document that created the federal government. In broad general terms, it sets forth the government's powers, establishes limits on those powers, and guarantees rights to all persons under the government's jurisdiction. The most potent of the government's domestic powers are the powers to enact federal criminal statutes and prosecute violations of them.

Since the Constitution is the sheet anchor of the government's powers, one would expect that the government would contend that it exists and subsists wherever the government wants to enforce federal law. But the government only wants to enforce part of the Constitution.

Just last year, the government successfully argued to four federal courts that the U.S. Constitution does not apply at American military facilities in Cuba and, thus, no American court has jurisdiction over the acts of the U.S. government and its personnel there. The cases in which this perverse argument was made involved litigation filed by relatives of prisoners confined at Guantanamo Bay who sought to have federal courts order the government to explain and justify the prisoners' confinement. This right—the ancient right to habeas corpus—is guaranteed in the Constitution (except in time of war when Congress specifically suspends it) to all persons confined against their will by the government.

One would think that the government would gladly justify in open court its detention of prisoners of war. But in its zeal to keep its behavior away from judicial scrutiny, the government argued that the Guantanamo Bay detainees lacked the right to habeas corpus because the Constitution does not apply to the government when it is in Cuba. The government went on to persuade federal judges in Washington, D.C., Los Angeles, and San Francisco that, because the U.S. leases Guantanamo Bay from Cuba, the sovereign power over Camp Delta is not the U.S. government, but is rather Fidel Castro! Tell that to the commanding American officer.

Comes now the same government a year later to argue 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. Hence the government's jurisdiction headache: it cannot—under the doctrine of judicial estoppel—argue today contrary to what it argued last year on the same point of law.

Not only can the government not argue both ways, it cannot have it both ways. Either the Constitution, with all its powers to prosecute and with all its due process protections as well, applies fully or it does not apply at all....