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 legality 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 Monday, the Justice Department, in its full first defense of the new Act, filed a brief in D.C. Circuit Court responding to the detainees’ challenge, filed there Nov. 1. The exchanges and the Circuit Court’s coming response to them may set the stage for a new round in the Supreme Court, perhaps within a matter of months.

[The Justice Department argued on Monday that there is no way the federal courts can avoid ruling on the constitutionality of Congress’ new law seeking to bar U.S. District Courts from hearing any challenges to detention or military prison conditions by war-on-terrorism captives now held at Guantanamo Bay, Cuba. The Act, the government brief contended, cannot be narrowed in its scope by judicial interpretation in order to avoid confronting the constitutionality issue.

The Act, it argued, makes very clear that Congress did in fact take away any District Court authority to hear any detainee case, however fashioned. The brief went on to express confidence that, when the constitutional confrontation comes, the Act will be upheld. It does not suspend the writ of habeas corpus, the Department contended; it simply replaces it with a review process in the D.C. Circuit that is adequate.

In briefs filed early this month by the detainees’ lawyers, they contended that Congress actually chose language for the new Act that leaves detainees not charged with any crimes free to go forward with constitutional and treaty-based challenges to their original detention and continued imprisonment.

Rejecting that argument, the Justice Department said “the context of the enactment of [the court-stripping] provision…unambiguously demonstrates that the whole point…was to eliminate district court habeas jurisdiction over these pending cases.” The law was written to oust the District Courts from any role in “all cases, without exception,” the new brief argued. It adds that the legislative debate over this provision “establishes that, without exception, both the proponents and opponents of the sectioin understood the statute to reliminate habeas jurisdiction over the pending cases.”

It noted that additional habeas challenges have been brought by detainees in federal court, arguing that the court-stripping clauses ar eunconstitutional. Thus, it said, “the federal courts will have to determine whethe rCongress may eliminate…districts courts’ habeas jurisdiction and instead provide review” in the D.C. Circuit. “That issue is unavoiable.”

The Department then dismissed as “insubstantial” the argument that, if the Act did strip the District Courts of habeas powers regarding detainees, it would violate the Constitution’s clause against suspension of habeas rights.

When Congress passed the new Act, as well as when it enacted the Detainee Treatment Act at the end of last year, the Department said, it gave detainees at Guantanamo “an unprecedented level of judicial review for an enemy alien captured during an arbmed fonclit.” The review system set up in the D.C. Circuit is nowhere nearly as limited as the detainees’ lawyers contend, the Department said. They can raise any arguments they wish about the process for reviewing their status as “enemy combatants” and about whether they are to continue to be detained.

“This Court can determine the nature of [detainees’] rights, if any, under laws of the United States and the U.S. Constitution, and can adjudicate whether the [military process for deciding for or against continued detention) violated any applicable rights. While it argues that, in its view, the prisoners have no rights, it did suggest that if they are found to have any such rights, those do not include any right to a “searching factual inquiry” into the basis for continuing their detention. The Circuit Court is confined to judging whether military review panels, based on the record of their reviews, stayed within the law. But, if the detainees’ lawyers finding new material that they argue could help the detainees’ challenge, they could bring that up during the Pentagon’s annual review of its detainee-screening procedures.

In a late section of the new brief, the Justice Department seeks to refuye the detainees’ argument that the new Act is unconstitutional because it would bar detainees from insisting that they have rights under a series of treaties, the Geneva Conventions on the treatment of war prisoners. The Conventions themselves never provided any rights that could be enforced in court, and Congress has not given the detainees any pportunity to take to court their claims based on the Geneva treaties. Congress has full power to limit th enforcement of a treatpy to diplomatic and non-judicial processes, the brief concluded.

The detainees, the Department noted, are raising chlalenges to the way Congress crafted the new military commissions to try war crimes. But that is not argument that can be made in the pending cases, because these detainees do not face any war crimes charges. There are no pending cases in military commissions, because they have not been set up yet, it said.

The detainees’ reply brief is due next Monday.

The briefs apply to two packets of detainee cases in the D.C. Circuit, beginning with Boumediene v. Bush (05-5062).