For detainees: less access to US courts?
The White House bill in Congress would strip courts of jurisdiction.
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The judges say the proposed legislation may violate the Constitution's mandate that "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."Skip to next paragraph
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The so-called Great Writ is a bedrock principle of liberty dating to 1215 and the Magna Carta. It entitles a prisoner to demand to be brought before a neutral judge to force the government to prove the legality of his or her detention or be set free. It is the quintessential check on executive power.
"The writ has been suspended only four times in our nation's history, and never under circumstances like the present," the retired judges write. "Congress would be skating on thin constitutional ice in depriving the federal courts of their power to hear the cases of the Guantánamo detainees."
Richard Samp, chief counsel at the Washington Legal Foundation, says the habeas rights identified in the Rasul case are statutory and exist in excess of the bedrock habeas rights guaranteed in the US Constitution in 1789.
"One should not view it in any way as a challenge to the court's authority when from time to time Congress expands or contracts what sort of habeas review they will allow, so long as the core of habeas corpus remains intact," Mr. Samp says.
There is a fundamental difference between the habeas rights of US citizens and those of noncitizens being held overseas, he says.
"To say that aliens being held overseas have a right to review the basis of their detention is not something that ever existed in American law until two years ago, when the Supreme Court decided the Rasul case," Samp says.
Rather than court stripping or jurisdiction stripping, what the proposed bills create is a streamlined procedure that channels detainee challenges through the court system in a particular way. Samp says such channeling is legal, constitutional, and appropriate.
Others say the move is designed to muzzle the detainees and frustrate investigations into their treatment and detention by cutting off access to aggressive lawyers.
"It's a cover-up," says Jonathan Hafetz of the Brennan Center for Justice at New York University School of Law. "They don't want any judge looking into the facts. They don't want any Guantánamo detainee ever testifying in open court."
Some analysts say it is ironic that the Bush administration is pushing for more rights for those facing military commission trials while eliminating the rights of the vast majority of the 450 detainees who could be held for decades without ever receiving anything more than a cursory day in court.
"I just cannot conceive of a legal or national-security justification for protecting the rights of Khalid Sheikh Mohammed, the 9/11 architect, by giving him a fair trial, while denying hundreds of others any legitimate chance to contest potential life-long detention," says Joshua Colangelo-Bryan, a New York lawyer who represents three men at Guantánamo.