The lawyers argue grave consequences if the administration lawyers are not reigned in. "The (U.S.) Constitution cannot be contorted into this senseless position without doing grave damage to the rule of law," the legal team wrote. "Concerns that the executive has usurped the function of the judiciary are at the highest when the executive seeks to deny access to a right as fundamental as habeas corpus.

"This right is part of our constitutional bulwark against tyranny," the brief states, quoting the Federalist Papers.

The brief notes that only once before did a sovereign attempt to do what the Bush administration and Pentagon is doing with the Guantanamo prisoners. That was in 1660, when a military commander attempted to move prisoners to an island off England to escape the reach of the courts. That maneuver was used against him in impeachment hearings, and actually became the basis for the writ of habeas corpus in England and ultimately the United States.

....The military lawyers say there is no direct precedent in the case because the government "has never before consciously created a trial process, courtroom and other accoutrements of judicial process outside the battlefield and housed them all in an area calculated to divest civilian jurisdiction."