Spring 2010

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The Not-So-Long Arm of the Law

THE SOURCE: “Beyond Protection” by Philip Hamburger, in Columbia Law Review, Dec. 2009.

For years, legislators, executive branch lawyers, and the courts have been tied up in knots over the scope of the rights that must be accorded suspected terrorists. Are they due a civilian jury? Can they be detained without being charged? Philip Hamburger, a professor at Columbia Law School, says that a more basic question must first be ad dressed: Do American legal protections even cover such people at all?

Hamburger argues that a legal doctrine prominent during the American Revolution, the “protection principle,” can help U.S. officials sort people into two groups: those who are protected by U.S. law and those who aren’t. The protection principle is based on the long-neglected idea that allegiance to a sovereign and the guarantee of that sovereign’s protection are reciprocal. Foreigners who enter the country in amity traditionally have enjoyed protec tion, but noncitizens who take up arms against the United States or pledge alleg iance to enemy countries are neither bound nor protected by U.S. laws. (Under this logic, 9/11 mastermind Khalid Sheikh Mohammed, whose trial in a civilian courts has been a subject of contro versy, would not be entitled to such a trial.)

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