Will the Supreme Court shackle new tribunal law?
President Bush's signature Tuesday is likely to set off legal tests.
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The Republican-controlled Congress eagerly accepted the invitation. But if Justice Stevens's Hamdan decision was a rebuke of Bush's terror policies, as many analysts have opined, the Military Commissions Act is a counterrebuke of the liberal wing of the high court – including Kennedy.Skip to next paragraph
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The new law rejects much of the liberal wing's approach in the Rasul and Hamdan decisions.
•It rejects the high court's view (in the Rasul decision) that suspected Al Qaeda members detained at Guantánamo Bay, Cuba, must be afforded the right to file habeas corpus challenges in US courts.
•It rejects Stevens's majority opinion (in the Hamdan decision) that the Detainee Treatment Act of 2005 did not retroactively strip the Supreme Court (and other federal courts) of jurisdiction to hear habeas corpus challenges filed by Guantánamo detainees.
•It rejects the conclusion of four justices in the liberal wing (in Hamdan) that Al Qaeda defendants on trial before military commissions must be allowed to attend their entire trial and confront all evidence being used against them – even when the evidence is classified.
•It rejects the conclusion of the Stevens plurality in the Hamdan decision that conspiracy is not a war crime and thus cannot be the basis of a trial before a military commission operating under the Law of War.
•And it rejects the liberal wing's more expansive view (in Hamdan) of the applicability of Common Article 3 of the Geneva Conventions to Al Qaeda suspects. That provision gives a base line of human rights protections for detainees.
Although Congress and the Bush administration acknowledge that Common Article 3 applies in the war on terror, the Military Commissions Act interprets the treaty in a way that narrows its protections and retroactively provides a defense for US officials who engaged in harsh interrogation tactics such as simulated drowning and induced hypothermia.
Human rights workers say such harsh tactics violate the treaty. Administration officials deny that US personnel have engaged in torture or unlawfully cruel conduct during interrogations.
Ultimately, if the Military Commissions Act winds up before the high court, the outcome may turn on how Kennedy interprets a single paragraph in the 2004 Hamdi decision. At issue in that case was whether a US citizen could be held indefinitely as an enemy combatant. Justice Sandra Day O'Connor (who has since retired) wrote a plurality opinion joined by Kennedy. It said that a citizen-detainee accused of being an enemy combatant must be able to examine the factual basis for his detention and be given a fair opportunity to rebut the government's allegations before a neutral decisionmaker.
Allowing a detainee to file a habeas corpus petition to a federal judge would satisfy this standard, the court said. But the Hamdi opinion continues: "There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal." The opinion cites Army Regulation 190-8 as an appropriate substitute.
In the aftermath of both the Hamdi and Rasul decisions, the Defense Department was searching for a way to avoid a flood of habeas corpus petitions filed on behalf of Guantánamo detainees to federal judges in Washington. Defense officials relied on that key paragraph in the Hamdi decision and created the Combat Status Review Tribunal system, modeled on Army Regulation 190-8. It involves three officers who review evidence supporting a detainee's designation as an enemy combatant.