In a significant but little-discussed move, the Bush administration is asking Congress to strip the federal courts of jurisdiction to hear cases brought by Guantánamo detainees challenging the legality of their confinement.
The move marks the second time in less than a year that the Bush administration is seeking to achieve in Congress what it was unable to win in court. In December, Congress passed the Detainee Treatment Act – a measure that sharply limited judicial jurisdiction to hear detainee challenges. Administration lawyers even argued that the US Supreme Court itself had been stripped of the power to decide the case handed down last June that invalided military commission trials at Guantánamo.
The high court rejected that view and issued its landmark ruling. Now, Congress is again considering limiting federal court jurisdiction.
The effort is aimed at by-passing a 2004 Supreme Court decision in which the high court ruled 6-to-3 that the US detainee camp at Guantánamo is not a legal black hole. The majority justices, in a case called Rasul v. Bush, said detainees were entitled to file lawsuits under a federal habeas corpus law, and that federal courts had jurisdiction to hear and decide their cases.
The decision prompted scores of American lawyers to offer their services free of charge to Guantánamo detainees. This army of volunteer lawyers, known unofficially as the Guantánamo Bar Association, includes some of the best legal talent in the country. Lawyers began to pick apart the administration's terror policies while investigating reports of harsh treatment, including allegations of torture. Perhaps most important, they began to win significant decisions.
Now, with hundreds of detainee cases pending in both the US district and federal appeals courts in Washington, D.C., Congress is being asked to stop the flood of litigation by limiting detainees' access.
"No court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this act," the administration's proposal reads in part. The law would apply to "any alien detained by the United States as an unlawful enemy combatant."
Legal analysts say the measure has sparked surprisingly little debate among lawmakers. For example, the main alternative to the administration's bill, legislation sponsored by Sens. John Warner (R) of Virginia and Lindsey Graham (R) of South Carolina, also calls for withdrawing federal court jurisdiction to hear such cases.
Nonetheless, there is opposition.
"We are told this legislation is important to the ineffable demands of national security, and that permitting the courts to play their traditional role will somehow undermine the military's effort in fighting terrorism. But this concern is simply misplaced," writes a group of prominent retired federal appeals court judges, in an open letter to members of Congress.
One of the judges, former Third US Circuit Court of Appeals Chief Judge John Gibbons, argued and won the Rasul case.
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."
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.