The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens

From 2001 to 2004, the constitutional order of the United States was severely tested. In Hamdi v. Rumsfeld, the Supreme Court held that the writ of habeas corpus extended to a United States citizen held at Guantanamo Bay. Eight of the nine Justices agreed that the executive branch did not have the power to hold a citizen indefinitely, without access to basic due process protections enforceable in open court. This case was properly seen as a watershed, a rejection of theories of executive detention that were incompatible with the basic tenets of our common law tradition.

However, the clear right to habeas corpus is only slightly over three hundred years old—the right not to be killed without due process of law is twice as old and considerably more fundamental. As Blackstone made clear, habeas corpus was originally necessary because it was a prophylactic protection for Magna Carta’s right not to be killed.