The Supreme Court, in its decision last June in Hamdan v. Rumsfeld, ruled that Congress had not taken away the courts’ authority to rule on the constitutionality of war crimes trials for war-on-terrorism detainees at Guantanamo Bay, Cuba. In reaction, Congress passed and President Bush signed the new Military Commissions Act of 2006 — attempting to strip the courts of all authority to hear habeas challenges from detainees, whether or not they faced any charges. On Wednesday, lawyers for detainees filed in a federal appeals court the first full court briefs on the scope of that new court-stripping law. The federal government will file its interpretation Nov. 13. The exchanges very likely will set the stage for a new round in the Supreme Court, perhaps within a matter of months.

Lawyers for Guantanamo Bay prisoners argued in two briefs filed Wednesday in the D.C. Circuit Court that the language Congress chose in its new court-stripping law actually leaves detainees who have not been charged with any crimes free to go forward with constitutional and treaty-based challenges to their original detention and continued imprisonment. In essence, the lawyers contended, Congress’ new exercise in drafting should be read the same way as the Supreme Court did with the original attempt in its ruling in Hamdan v. Rumsfeld — leaving habeas rights intact.

Two briefs were filed in the Circuit Court in Washington as it continues to weigh two packets of cases by Guantanamo prisoners who face no charges but remain in indefinite captivity, now approaching five years for some of them. The two groups of cases arise out of conflicting District Court rulings on detainees’ rights. The Circuit Court called for new filings on the new law after being asked to do so by the detainees. The briefs filed Wednesday argued that, if the new Act is read to take away habeas rights, it would be an unconstitutional suspension of the writ. (The lawyers’ briefs can be found here and here.)

In a separate development, seven retired federal judges filed an amicus brief in the two Circuit Court cases, arguing that the new law is unconstitutional because it would allow the military to use evidence obtained by torture or “inhumane treatment” in detention proceedings, and the courts would not be able to review the legality of such evidence. (The judges’ brief can be found here.)

The new Act was put together in a flurry of negotiations between Bush Administration officials and Republican congressional leaders, as a way to overcome the effects of the Supreme Court’s Hamdan decision. As the measure finally emerged, it created a new system of war crimes tribunals (“military commissions”), and imposed tight new limits on any claims that detainees could make in court challenges, whether or not they had been charged with any crimes. Those who wrote the bill said that they understood it would end all existing and future habeas cases, and channel any detainees’ legal challenges into a restricted form of review by the D.C. Circuit. The Justice Department formally argued in recent filings in U.S. District Court that the new law does what was intended.

That view was challenged in the new detainee briefs. Citing “the plain text” of the new Act, they argued that Congress actually wrote three new sections dealing with detainee challenges: one that deals with habeas challenges, one that deals with “any other action” in court to challenge detention or prison conditions, and an effective date provision that says that courts are stripped of jurisdiction in “all cases, without exception,” in court now or filed in the future. But, the detainees’ lawyers argued, this effective date makes no reference to habeas cases already in court, because it uses the same language as the “any other action” section. “By its plain terms, therefore, [this jurisdiction section] does not strip courts of jurisdiction over pending habeas cases.”


Thus, the detainees’ lawyers said, Congress’ process of drafting suffered from the same defects as the Supreme Court in Hamdan had found in a former court-stripping law, the Detainee Treatment Act of 2005 — choosing words that did not. in fact, wipe out existing cases.

If habeas cases were included in the “any other action” section to which the effective date provision applies, the briefs argued, “there would have been no reason for Congress” to write a separate provision dealing only with habeas cases. Moreover, they said, to read the new sections to apply to pending habeas challenges would be a retroactive application of a law, and the Supreme Court frowns on that — unless Congress makes it specifically clear that that is what it meant. Moreover, there is a “longstanding rule,” the briefs said, against implied repeal of habeas laws, the briefs asserted.

The other ponts in the brief have been made before by detainees’ lawyers, in challenges to the Detainee Treatment Act of 2005 — challenges that succeeded in Hamdan, at least to keep alive habeas challenges to the now-scuttled original military commissions system set up by President Bush without Congress having a role.. The new law signed by Bush last month, the lawyers said, does not provide an adequate substitute for habeas, and rights to habeas under common law demand more stringent review of detention than the new Act would allow. And, as indicated, the briefs repeat the argument that Congress lacks the constitutional power to suspend the writ of habeas corpus, making the new law invalid if it is interpreted to go that far.

One of the new detainees’ briefs also argues that the new Act is unconstitutional in attempting to bar detainees from making any non-constitutional challeges to their detention — such as claims of rights under the Geneva Convention treaties on the treatment of prisoners captured during military conflict.

In the retired judges’ amicus brief, the argument is aimed solely at “one specific and fundamental flaw” in the new Act — that is, that Congress has created a system of military review of detainees’ continued confinement that is “permitted to accept evidence secured by torture and presume that evidence was genuine and accurate.” And, the limited reivew detainees would be allowed in the D.C. Circuit, the judges said, “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.”

The seven judges joining in that brief include retired Circuit Judges Shirley M. Hufstedler (Ninth), Nathaniel R. Jones (Sixth), and Abner J. Mikva and Patricia M. Wald (D.C.), and retired District Judges George N. Leighton and Frank J. McGarr (Illinois) and Timothy K. Lewis (Pennsylvania).

The new round of briefs will be completed with the government filing on Nov. 13 and the filing of a detainees’ reply on Nov. 20. The Circuit Court has not said whether it will hold a new hearing on the Act’s impact on the cases before it. It has already held two hearings on those cases, without reaching a decision.

Meanwhile, other challenges to the new military tribunals/detention law are going forward in U.S. District Court in Washington and in the Fourth Circuit Court in Richmond.

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