Little redress in US courts for detainees

Some 385 detainees are being held at Guantánamo Bay and many have been in US custody for more than five years without charge. US officials say under the law of war and the MCA they can be held indefinitely as enemy combatants.

It is unclear how the court might have ruled had it accepted and heard the cases. Since the Rasul decision, two justices have left the court and been replaced by new justices appointed by President Bush. They include Chief Justice John Roberts and Associate Justice Samuel Alito.

Lawyers for the detainees said that Congress overstepped its authority when it attempted in the MCA to strip federal court jurisdiction to hear detainee cases.

The Constitution says that the right to habeas corpus review "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Banning federal court review of detainee cases is the equivalent of suspending habeas review, detainee lawyers said. But the US is not facing a rebellion or an invasion, they said.

Government lawyers countered that detainees at Guantánamo do not have a constitutionally protected right to habeas corpus. The Supreme Court recognized a potential statutory right to habeas in its Rasul decision, not a constitutional right, said US Solicitor General Paul Clement in his brief to the court.

But since the 2004 Rasul decision, Congress has amended the habeas statute to withdraw federal court jurisdiction. In its place the Defense Department and Congress established a military review and appeals procedure.

The new procedure provides detainees a legal mechanism to challenge their detention both at Guantánamo and in federal court in the US that fully satisfies the habeas requirements, Mr. Clement said. Under Pentagon rules, detainees are brought before a panel of military officers called a combat status review tribunal (CSRT). The detainee is permitted to present any information that he is innocent and being wrongly held. The panel then weighs that information against evidence presented by the government justifying the individual's detention as an enemy combatant.

Such CSRT reviews must be conducted for each of the detainees at Guantánamo. Any final decision by a CSRT panel can be appealed to the federal appeals court in Washington.

Recent highly publicized statements by alleged 9/11 mastermind Khalid Sheikh Mohammed were made during his CSRT hearing on March 10.

Although Mr. Mohammed admitted many of the charges against him, he nonetheless told the panel that many other detainees at Guantánamo had no connection to Al Qaeda, terrorism, or hostilities against the US. He said they had been wrongly arrested and were being wrongly detained.

Lawyers for the detainees have been making a similar argument for more than four years.

"The government claims an immense power unprecedented in our history: to imprison foreign nationals, without bringing criminal charges or providing fair process, for an indefinite period," writes former US Solicitor General and Washington lawyer Seth Waxman in his brief filed on behalf of detainee Lakhdar Boumediene and others. "It is difficult to imagine a public controversy more in need of this court's guidance."

Mr. Boumediene is one of six Algerian immigrants to Bosnia arrested as terror suspects in 2001 by Bosnian authorities. The arrests came at the urging of the US. After an investigation, Bosnia's supreme court ordered the six released because of a lack of evidence of involvement in terrorism.

The six were released, but were then turned over to the US and flown to Guantánamo Bay where they have been held since January 2002.

Mr. Wilner represents Fawzi Al Odah, a Kuwaiti, and 38 other prisoners at Guantánamo, all of whom say they never engaged in combat against the US and are innocent of wrongdoing.

All 45 of the detainees in the two appeals were asking for the same remedy. They want a hearing before a neutral judge to decide the legality of their detention.

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