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ABA To Continue Fight Over Detainee Rights

Carl Jones
Law.com
October 13, 2006 

The American Bar Association said last week it will continue to challenge key provisions of a federal bill authorizing military tribunals to try terrorism suspects, even though the legislation ultimately passed by a lopsided margin in the Senate.

ABA members say they are most concerned about sections of the Military Commissions Act of 2006 that deny judicial review of habeas corpus claims filed on behalf of "enemy combatants" being held at facilities in Guantanamo Bay, Cuba, and other locations.

"It's a sweeping denial of habeas, so that any alien who is detained by the U.S. can be detained forever without any hope of ever getting to a court. That's just wrong," said Neal Sonnett, a Miami attorney who chairs the ABA's Task Force on Treatment of Enemy Combatants.

Although some detainees may be intent on harming the United States or its interests, the Department of Defense's own records make it clear that "many of the people in GuantanamoBay are not al-Qaida, not terrorists, and they're not dangerous," Sonnett said. "Unless they have an opportunity to contest their detention, there's no way for their innocence to be established."

According to Sonnett, the ABA could have another chance to help shape detainee rights if the upcoming elections create a Congress that is "friendlier to legislation" that would reverse the Military Commissions Act's habeas-related provisions. The ABA also needs to "monitor closely" the rules that the Department of Defense will be writing to put the legislation into practice, he said.

ABA LETTER CALLS EFFECT OF PROVISIONS 'UNJUST'

The Senate gave final approval to the Military Commissions Act by a vote of 65 to 34, despite a last-minute plea by the ABA, which takes positions on between 10 and 12 legislative issues per year.

In a three-page letter signed by ABA president Karen J. Mathis and sent to all senators the day before the Sept. 28 vote, the association renewed its objections to the act's denial of habeas corpus and to provisions that would allow the use of hearsay evidence or evidence obtained through coercion.

The letter said passage of the bill would reverse the rights established in the seminal Supreme Court rulings Rasul v. Bush and Hamdan v. Rumsfeld and would "effectively wipe out" many of the pending habeas cases involving Guantanamo detainees.

Mathis' letter also addressed the legislation's inclusion of language stating that "no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States" -- a provision that the ABA letter said "unnecessarily intrudes on" the judiciary's independence.

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