From the Washington Post, Oct. 20:
Court Told It Lacks Power in Detainee Cases
Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba.
In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that “no court, justice, or judge” can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.
Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.
The new law already has been challenged as unconstitutional by lawyers representing the petitioners. The issue of detainee rights is likely to reach the Supreme Court for a third time.
Habeas corpus, a Latin term meaning “you have the body,” is one of the oldest principles of English and American law. It requires the government to show a legal basis for holding a prisoner. A series of unresolved federal court cases brought against the administration over the last several years by lawyers representing the detainees had left the question in limbo.
Two years ago, in Rasul v. Bush, which gave Guantanamo detainees the right to challenge their detention before a U.S. court, and in this year’s Hamdan v. Rumsfeld , the Supreme Court appeared to settle the issue in favor of the detainees. But the new legislation approved by Congress last month, which gives Bush the authority to try detainees before military commissions, included a provision removing judicial review for all habeas claims.
Immediately after Bush signed the act into law Tuesday, the Justice Department sent a letter to the U.S. Court of Appeals for the District of Columbia Circuit asserting the new authorities and informing the court that it no longer had jurisdiction over a combined habeas case that had been under consideration since 2004. The U.S. District Court cases, which had been stayed pending the appeals court decision, were similarly invalid, the administration informed that court on Wednesday.
A number of legal scholars and members of Congress, including Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), have said that the habeas provision of the new law violates a clause of the Constitution that says the right to challenge detention “shall not be suspended” except in cases of “rebellion or invasion.” Historically, the Constitution has been interpreted to apply equally to citizens and noncitizens under U.S. jurisdiction.
The administration’s persistence on the issue “demonstrates how difficult it is for the courts to enforce [the clause] in the face of a resolute executive branch that is bound and determined to resist it,” said Joseph Margulies, a Northwestern University law professor involved in the detainee cases.
On Tuesday, the appeals court granted a petition by lawyers for the detainees to argue against the new law. Vincent Warren, the executive director of the Center for Constitutional Rights, which represents many of the detainees, said yesterday that he expected the administration to file a motion for dismissal of all the cases before the defense challenge is heard.
“We and other habeas counsel are going to vigorously oppose dismissal of these cases,” Warren said. “We are going to challenge that law as violating the Constitution on several grounds.” Whichever side loses in the upcoming court battles, he said, will then appeal to the Supreme Court.
See our last post on the Military Commissions Act.