Court: no habeas corpus for Gitmo detainees

The arrogance of invoking Cuban “sovereignty” to justify this trangression when the Cubans oppose everything Washington is doing at Guantánamo Bay is staggering even by the standards of our deeply cynical age. Oh and by the way, freedom’s on the march, eh? From the LAT, Feb. 21:

WASHINGTON — In a victory for the White House, a U.S. appeals court ruled Tuesday that the hundreds of prisoners held at Guantanamo Bay do not have a right to plead their innocence in an American court.

The decision sets the stage for a Supreme Court showdown over whether the White House and Congress can deny habeas corpus–the right to go before a judge and ask to be released–to some persons who are held for years without charges.

In a 2-1 ruling, judges said the Constitution does not extend habeas corpus to non-citizens who are held outside the sovereign territory of this country. “Cuba–not the United States–has sovereignty over Guantanamo Bay,” wrote Judge Raymond Randolph.

Tuesday’s decision by the U.S. Court of Appeals for the District of Columbia vindicates, at least for now, a tactical move made by White House lawyers shortly after the United States bombing of Afghanistan in late 2001.

Officials wanted the military to have power to indefinitely hold and intensively interrogate foreign fighters and suspected terrorists without interference from the federal courts. They chose the naval base at Guantanamo Bay, Cuba, because it was close but still outside U.S. territory.

For the nearly five years since then, civil libertarians and advocates for the detainees have been trying to win a hearing before an independent judge. There, they could argue that at least some of the men were not terrorists and were being held wrongly.

The Bush administration has fought to prevent them from having claims heard in court. Meanwhile, across Europe and throughout much of the world, Guantanamo Bay has come to symbolize what the administration’s critics say are harsh tactics and contempt for international opinion.

Late last year, the Republican-controlled Congress passed the Military Commissions Act, which made clear that “enemy combatants” held outside the United States may not file claims in U.S. courts. Tuesday’s ruling upheld that law.

Lawyers for the detainees condemned the ruling and said they will take their case to the Supreme Court.

“This decision empowers the president to do whatever he wishes to prisoners without any legal limitation so long as he does it off shore. [It] encourages such notorious practices as extraordinary rendition and contempt for international human-rights law,” said Shayana Kadidal, an attorney for the Center for Constitutional Rights.

Under pressure from lawsuits that reached the high court in 2004, the Pentagon agreed to give the detainees a “status review hearing” before several military officers. But often the detained men are not told in these hearings about the evidence that resulted in their being held. Last year, Congress also set rules for upcoming military trials for some detainees.

White House deputy press secretary Dana Perino called Tuesday’s decision “a significant win” for the administration and said the Military Commissions Act provides “sufficient and fair access to courts for these detainees.”

About 395 detainees are held at Guantanamo Bay. Pentagon officials say they expect about 80 of them to be put on trial. An additional 85 of the men are due to be released or transferred to another country.

That leaves about 230 detainees who remain in something of a legal limbo. They have no right to appeal the military’s decision to continue holding them. At the same time, military officials do not plan to put them on trial.

With Democrats in control of Congress, several senators vowed they would seek to amend the Military Commissions Act to restore the right to habeas corpus for all. But their efforts would face an almost certain veto by President Bush.

The Constitution says the “privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” While this provision makes clear that Congress cannot lightly strip the right from persons who are held within the United States, it is not clear whether this right extends to foreign prisoners who are held by U.S. officials outside the nation’s borders.

In Tuesday’s decision, Judges Randolph and David Sentelle said the right to habeas corpus is limited to sovereign U.S. territory.

“We are aware of no case” in the past that says habeas corpus is “available to aliens held at an overseas military base leased from a foreign government,” they said.

Randolph was appointed by President George H.W. Bush, while Sentelle was an appointee of President Ronald Reagan.

Judge Judith Rogers, an appointee of President Bill Clinton, dissented and said it was unconstitutional for Congress to deny habeas corpus to the detained men. In her view, the Constitution presumes habeas corpus exists for all persons in U.S. custody, and Congress’ power to suspend this right is “strictly limited to circumstances where the peace and security of the nation were jeopardized.”

Since this is not a time of national emergency, she wrote, Congress had no authority to restrict the right to habeas corpus through the Military Commissions Act.

Here’s what the Center for Constitutional Rights has to say about it (link added):

On February 20, 2007 CCR condemned the D.C. Circuit Court of Appeals ruling in the combined cases of Al Odah v. USA and Boumediene v. Bush, the first lawsuits challenging the Military Commissions Act of 2006 (MCA) to be addressed by the courts. The ruling states that the Guantanamo detainees have no constitutional right to habeas corpus, therefore the passage of the MCA by Congress eliminated the statutory right to challenge their detention in the courts.

On February 20, 2007 ,The Center for Constitutional Rights (CCR), which represents many of the Guantanamo detainees and coordinates the efforts of hundreds of pro bono attorneys across the country, condemned the two-to-one decision by the D.C. Circuit Court of Appeals in the combined cases of Al Odah v. USA and Boumediene v. Bush, the first lawsuits challenging the Military Commissions Act of 2006 (MCA) to be addressed by the courts. The ruling states that the Guantanamo detainees have no constitutional right to habeas corpus, therefore the passage of the MCA by Congress eliminated the statutory right to challenge their detention in the courts.

The MCA, which was signed into law by President Bush on October 17, 2006, is the second attempt by the Bush administration to strip detainees of their statutory right to challenge their detention in the courts, a right that the Supreme Court has already affirmed twice, in CCR’s landmark case Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld in 2006. The act also allows for evidence obtained through torture, – a violation of the Geneva Conventions – and greatly widens the scope of who the president can label an “enemy combatant.”

“This decision empowers the President to do whatever he wishes to prisoners without any legal limitation as long as he does it off shore, and encourages such notorious practices as extraordinary rendition and a contempt for international human rights law,” said Shayana Kadidal, managing attorney of the Center for Constitutional Rights Guantanamo Global Justice Initiative. “The matter will ultimately have to be resolved by the Supreme Court for a third time.”

Al Odah v. USA consists of the first eleven habeas petitions filed after the landmark Supreme Court decision in Rasul v. Bush. The Boumediene appeal, filed jointly by CCR and cooperating counsel Wilmer, Pickering, Cutler, Hale, & Dorr and Clifford Chance, is on behalf of six Bosnian humanitarian workers seized by the U.S. military in Bosnia after the Bosnian courts ordered local authorities to release them. In Al Odah, D.C. District Court Judge Joyce Hens Green stated that detainees possess “the fundamental right to due process of law under the Fifth Amendment.” Reaching an entirely different conclusion, Judge Richard Leon dismissed the Boumediene appeals, ruling that the detainees possess no constitutional rights to habeas corpus. Both cases were appealed, and the two cases were consolidated for oral arguments before the D.C. Circuit Court of Appeals, which were heard in November 2006.

“We call on the legal profession and all Americans concerned about the loss of liberty undertaken by the Bush Administration and now rubber stamped by the Court of Appeals to join with us in taking this fight to the United States Supreme Court. We call on Congress to take up the fight that the American people sent you to Washington to wage, to quickly enact legislation that will begin the process of restoring our most fundamental rights,” said CCR Legal Director Bill Goodman.

“Habeas corpus is a right that was enshrined in the Magna Carta to prevent kings from indefinitely and arbitrarily detaining anyone they chose-the combined actions of the Bush Administration, the previous Congress and two of the three judges today have taken us back 900 years and granted the right of kings to the president,” said CCR Executive Director Vincent Warren.

See our last post on the torture and detainment scandal. See our last posts on Gitmo and the MCA.