Court Told It Lacks Power in Detainee Cases
By Karen DeYoung
Washington Post Staff Writer
Friday, October 20, 2006; A18
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.
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
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.
Staff researcher Julie Tate contributed to this report.
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