When the Framers first wrote the Preamble, their dedication to establishing justice stemmed from British mistreatment of American soldiers during the Revolutionary War. In a letter instructing his troops to “treat [British prisoners of war] with humanity,” Washington cautioned his men against letting the prisoners have “reason to Complain of our Copying the brutal example of the British Army in their Treatment of our Unfortunate brethren who have fallen into their hands.” The Framers included Washington’s notion of humane treatment in the “establish justice” clause, providing prisoners with “the opportunity to hear and understand the charge… [and] have a fair and speedy trial,” as described by historian W. Cleon Skousen.
The first justice-establishing legislation was the Fifth Amendment, which was shaped by John Adams’s defense of the British soldiers in the Boston Massacre trial. Although it was an unpopular case, Adams determined that the soldiers, who had been accused of murdering colonial citizens, deserved to be tried before a jury. He later reflected that his defense was “one of the best pieces of service [he] ever rendered [his] country.” Jacob G. Hornberger, president of The Future of Freedom Foundation, agreed with Adams’s belief that justice should be established by affording trials to citizens and noncitizens alike. Hornberger argued that this was reflected in the Fifth Amendment, which uses the word “person” rather than “citizen” when decreeing that “[n]o person… shall be compelled in any criminal case to be… deprived of life, liberty, or property, without due process of law.”
Because the Fifth Amendment did not specify outright whether it applied to noncitizens, though, Congress later added the Fourteenth Amendment to ensure that the Fifth Amendment’s protections would extend to anyone in the States. The Fourteenth Amendment determined that “[no] State [shall] deny to any person within its jurisdiction the equal protection of the law.” This addition of a States’ Jurisdiction Clause led the Human Rights Committee to argue that the Constitution “appl[ies] to everyone… irrespective of his or her nationality or statelessness.”
As a result, the practice of denying terrorist suspects fair trials violates the ideology of the Fifth and Fourteenth Amendments. Georgetown Law Professor David Cole argued that foreign terrorist suspects should be protected by the Mathews v. Eldridge Test -- a Supreme Court standard, derived from the Constitution, which determines when it is appropriate for the government to remove a person’s liberty. The test does not differentiate between citizens and noncitizens. Therefore, terrorist suspects should be afforded trials before their liberty is removed; as Cole writes, “[i]t is generally just as much an imposition on a foreign national's physical freedom to be locked up as it is an imposition on a citizen's freedom.”
However, because Guantánamo prisoners’ treatment does not violate the actual wording of the Constitution (which asserts that people in the states must receive fair trials), the Bush Administration argued that its actions were constitutionally permissible. Because the detainment facility is in Cuba rather than in any of the fifty states, the Administration decided that the States’ Jurisdiction Clause did not apply to Guantánamo. When describing the Administration’s argument in the 2008 Supreme Court case Boumediene v. Bush, Justice Anthony Kennedy wrote that “[t]he Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights.”
However, the Supreme Court ruled in Boumediene that the laws of the Constitution also apply in U.S. territories, so the Bush Administration failed to uphold justice by denying Guantánamo detainees fair trials. As the Boumediene majority opinion said, “Even when the United States acts outside its borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution.’” The only way to right this constitutional wrong is to immediately provide each prisoner with a trial. The Obama Administration began to do this but encountered complications. However, as the Supreme Court indicated, the Constitution laid the foundation for justice that will allow it to prevail in America’s future. As Kennedy so eloquently put it, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”