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U.S. Defends Law on Detainee Rights

The government asked the D.C. Circuit Court of Appeals to side with Congress and President Bush against Guantánamo detainees' right to challenge their detention.

By Carol Rosenberg
The Miami Herald
November 14, 2006

The Bush administration Monday defended a new law that strips enemy combatants at GuantánamoBay of recourse to traditional civilian court challenge, setting the stage for a U.S. Supreme Court showdown.

In a brief, the Justice Department argued at the U.S. Court of Appeals for the D.C. Circuit that the U.S. district courts must close the files of several hundred habeas corpus petitions because the new Military Commissions Act eliminated their jurisdiction.

Attorneys for many of the 440 or so captives, some approaching five years held without charge at the remote U.S. Navy base in Cuba, argue the law is at odds with a fundamental, constitutional right to file a writ of habeas corpus -- their right to challenge their detention before a civilian judge.

Once the three-court appeals panel rules, both sides anticipate an overarching constitutional challenge of the new federal law to go before the Supreme Court, which earlier backed certain detainee rights in a series of rulings.

The brief signed by Solicitor General Paul Clement argues that Congress ''unambiguously'' stripped the U.S. district court of that right in the new legislation, which President Bush signed on Oct. 17.

''Because there can be no question that Congress has eliminated district court jurisdiction,'' Clement writes, ``petitioners are left to argue that the Act is unconstitutional. These arguments are without merit.''

Rather than have traditional review, he adds, Congress gave the circuit appeals court -- the same venue deciding the constitutionality of the law -- the power to review an enemy combatant's classification.

In that review, a captive cannot argue that he is being held illegally and indefinitely, but can challenge his designation as enemy combatant.

Moreover, the U.S. government added, the Pentagon has established its own annual review process at Guantánamo, a parole-like board of military officers, where any captive can argue why he should be set free.

For about two years now, defense attorneys for the men have sought case-by-case independent reviews, arguing that the military requires civilian oversight.

Federal judges, however, have been reluctant to intrude.

In one instance, U.S. District Judge James Robertson found that two Uighur Muslims of Chinese citizenship were unlawfully held in indefinite detention at the Guantánamo facility, but said he did not know how he could offer relief.

Some time afterward, the Pentagon arranged to airlift them and three other Uigurs to faraway Albania for resettlement.

U.S. policy prevented their repatriation, for fear they would be subjected to religious persecution, as Muslims, in their communist-ruled country.

The showdown over the Military Commissions Act is currently being played out in a pair of cases named for two of the current detainees at Guantánamo -- Fawzi al Odah, a Kuwaiti, and Lakhdar Boumediene, an Algerian -- who had separately filed suits in the lower court over their right to habeas corpus.

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