Little redress in US courts for detainees
The Supreme Court avoided a test of Bush's terror-fighting powers Monday, letting stand a ruling denying Guantánamo detainees access.
from the April 3, 2007 edition
Page 3 of 4
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 Since the Rasul decision, two justices have left the court and been replaced by new justices appointed by President Bush.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.
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