Court Told It Lacks Power in Detainee Cases
By Karen DeYoung
Washington Post Staff Writer
10/20/06 "Washington Post" -- -- 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
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
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
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.
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.
© 2006 The Washington Post Company
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