Appeals Court Weighs Prisoners' Right to Fight Detention
By Neil A. Lewis
The New York Times
November 7, 2006
WASHINGTON, Nov. 6 -- The Bush administration's successful effort to have Congress eliminate the right of Guantanamo prisoners to challenge their detentions before federal judges is now moving toward what may be an epic battle in the courts.
And while lawsuits on the topic are spread across the judiciary, the principal battleground, legal experts say, is the federal appeals court in Washington. That court has been considering for three years whether the hundreds of prisoners at Guantanamo Bay, Cuba, have the right of habeas corpus -- that is, the ability to ask a federal judge to review the reasons for their detention.
But the law passed by Congress last month eliminating the habeas right supersedes almost all of the arguments that have gone before and is now the focus of the legal confrontation, government and civil liberties lawyers agree. In a ruling last June, the Supreme Court had said that an earlier measure did not eliminate habeas lawsuits that were already in the courts. However, in October, the administration used more explicit language, saying the new law retroactively blocked federal courts from entertaining habeas lawsuits by Guantanamo detainees.
The three-judge appeals court panel will have to decide whether the pending lawsuits brought by the 430 or so remaining detainees at Guantanamo should be thrown out, as the Bush administration has argued, or whether the new law is unconstitutional, as civil liberties groups have contended.
Whatever resolution is reached by the three appellate judges -- David B. Sentelle and A. Raymond Randolph, both appointees of Republican presidents, and Judith W. Rogers, appointed by a Democrat -- it will almost certainly end up before the Supreme Court. A decision could come from the appeals court before the end of the year.
Lawyers for the detainees said in a recent brief that despite the wording of the new law, Congress could not take away the right to bring such habeas corpus lawsuits because that would violate the Constitution.
Their brief notes that the Constitution provides that Congress may suspend the right only in cases of rebellion or invasion, as President Abraham Lincoln did during the Civil War. Congress may provide a substitute, but only one that is equivalent to a full-blown habeas action, the lawyers said in their brief.
Justice Department officials said they would argue that the law is constitutional when they issue their formal reply in a brief due next Monday.
David B. Rivkin Jr., a White House counsel in the administration of the first President Bush, said he believed the department would emphasize that the new law provided an adequate substitute method for a detainee to challenge his confinement.
A proceeding held for each prisoner at Guantanamo, called a Combatant Status Review Tribunal, is presumed to provide a legally sufficient justification for detention, under the new law. That proceeding, in which three military officers decide if a prisoner is rightfully deemed to be an unlawful enemy combatant, may be appealed directly to the Court of Appeals for the District of Columbia Circuit.
Mr. Rivkin, an authority on national security law who supports the administration, said the law did not suspend habeas corpus but instead provided a new way for it to be exercised.
''The government is saying, 'Look, we're not denying anyone's chance to get habeas,' '' he said. ''We're just providing a different way.''
Mr. Rivkin said the judges on the appeals court panel should be especially receptive to the idea that the process is fair because the law provides for that very court to hear any appeals from the military tribunals.
But the detainees' lawyers have argued that the law provides for only a limited review of the military tribunals by the appeals court. Under the new law, they said, the appeals court may not look behind the record of the military tribunal, and the judges, in effect, are required to accept all of the military's assertions.
Similar objections to the law are contained in a brief filed by seven former federal judges, who were appointed by both Democratic and Republican administrations. The judges say in their brief that the law has ''one specific and fundamental flaw,'' namely that the military tribunals may accept evidence obtained by torture. The judges said the limited review for the appeals court in the new law ''cannot remove the stain of torture because the court, at least according to the government, cannot alter or expand the record created by the military.''
They said that ''no habeas court would permit detentions based on evidence obtained in this manner.''