Court Told It Lacks Power in Detainee Cases
Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba.In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that “no court, justice, or judge” can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.
Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.
This has of course inspired a whole lot of controversy. One thing that I have noted is that arguements of whether this is legal, and arguements of whether it is moral are often collated, resulting in more confusion.
For the legal side of the debate, it is prety clear to me that suspending habeus corpus in general can really only be done when the courts are unable to function, due to invasion or rebellion etc. That clearly is not the case here. However, on the other side, Habeus Corpus does not typically apply to enemy soldiers who are captured and held as prisoners of war.
The compromise fashioned between these two competing ideas is that Combatant Status Review Tribunals will be held (albiet with no specified time limit) do determine if the prisoner is an enemy combatant. The Federal Courts are able to review these decisions, but pretty much just from a position of determining if the correct procedure was followed or not, at least as I understand it. Basically, the D.C. Circuit court would not be able to review the factual findings of the Tribunals, only whether the Tribunals were conducted in a proper manner.
One can make a pretty strong arguement that Habeus Corpus hasn’t been stripped, simply moved to a new venue, by the Legislature using their power to constitute tribunals. I think that is a pretty good case for this law being legal and constitutional.
Of course a law can be constitutional and still be a bad idea. Clearly, there is the hazard that entirely innocent people will be hald for a long time, and subject to harsh treatment, until the military tribunal hears there case. I would be happier if an express time limit was placed on the tribunal, at least to begin hearings which would then have to proceed at a reasonable pace. The other criticism of this provision is that it will apply to American citizens, which would create quite a potential for abuse. My understanding though is that although this law doesn’t specifically exempt American citizens from being declared enemy combatant, previous rulings have made it clear that such an act would be unconstitutional. Certainly though, I would be happier if this were explicitly spelled out, in plain language.
Presuming that the non-citizen interpretation holds, and I am fairly certain it will, I don’t see a whole lot of threat to civil liberties from this bill. The only question that remains is whether this procedure is fair or not.
