More On The Physical Limits Of The Law

From Slate:

"Last Friday, the Supreme Court voted to take up the appeals of two American citizens being held by the United States in Iraq ... Both brought petitions in American courts challenging their detentions. Both are being detained not by the United States alone, but by the multinational force in Iraq, and given this custody, the Bush administration has argued that no American court can address their petitions."

It's as if the Court saw your "police action abroad" ("cross-border police initiatives", "war on drugs", "war against terror", and "other ambiguous wars that have taken our police power all over the globe") and raised it to a "battlefield in Iraq" -- i.e., an incredibly ambiguous situation involving a supposedly sovereign nation which shares the monopoly (duopoly?) over the use of force with the United States Armed Forces. If you thought determining the proper scope of constitutional rights was hard in those settings, imagine the difficulty of sorting through rights, sovereignty and the "traveling constitution" in a war zone.

The authors are correct to assert that these cases are "crucial to the Supreme Court's interventions in the war on terror", but they are clearly also crucial to our understanding of the geography of constitutional/statutory rights against the government. Note that the district courts and D.C. circuit court rejected the "hat" theory of constitutional rights (the courts held that their status as Americans didn't entitle them to any special rights), so if there is to be any relief for these plaintiffs, it would have to come from the "Spider-Man" theory.

Let's hope that the Court sees the Constitution that way -- as a system of necessary restraints on a powerful government -- instead of believing that constitutional rights, which are so critical for American citizens, suddenly become irrelevant and deleterious outside our borders.