Comments on: Government sees constitutional fight over detainee law

By: Alan Viard

Alan Viard — Wed, 15 Nov 2006 15:27:21 +0000

As a point of clarification, it should be stressed that D.C. Circuit review is NOT limited to detainees convicted by military tribunals. Two channels of review, both in the D.C. Circuit, are provided by the DTA, as amended by the MCA.

The first channel, which is not at issue in this litigation, involves appeals from convictions by military commissions. That channel does, by the way, appear to include challenges to the validity of the commissions, if the challenges are based on the Constitution or statutes, though not treaties.

The other channel, the one that is at stake in this litigation, is challenges to a Combatant Status Review Tribunal (CSRT)decision that a person is an enemy combatant. This channel does allow detainees to challenge their designations as combatants, at least if the designation was made by a CSRT, as is true for the Guantanamo detainees. Here, too, it appears that challenges to the tribunals themselves can be raised, if the challenges are based on the Constitution or statutes.

The main complaints about the review of CSRT decisions are that treaty-based claims are precluded, that review is limited to the CSRT record (compiled at a proceeding at which the detainee had a personal representative, but not counsel), and that there may be no review at all if the person is held as a combatant without a CSRT decision.

Those are serious concerns. But, it is inaccurate to state that the Guantanamo detainees are not allowed to challenge their combatant designations (which did arise from CSRT decisions).

By: Kent Scheidegger

Kent Scheidegger — Tue, 14 Nov 2006 23:48:53 +0000

A common law “privilege” is not “suspended” by a statute which applies only to people who did not have that privilege at common law. See the CJLF brief in Hamdan. The majority in Hamdan did not need to reach the Suspension Clause issue, because they found the statute did not apply. However, Justice Scalia did and found the claim “easily dispatched.” See dissent p. 16.

By: Andrew Oh-Willeke

Andrew Oh-Willeke — Tue, 14 Nov 2006 16:34:39 +0000

The decision to argue that there was no suspension of the writ, rather than that the writ was validly suspended, is surprising.

D.C. Circuit review applies only to people tried by military tribunals, and then, only after the tribunal hearing is complete. This seems as if it does not apply to people challenging enemy combatant designations at all, or people challenging the validity of the military tribunals themselves.

Thus, it would seem that rather than being insubstantial, the argument that there has been a suspension is rather obvious.

I had expected the constitutionality debate to turn on whether or not 9-11 and other suspected terrorist plots constituted an “invasion” such that a suspension might be valid, something that the AUMF would seem to support with a Congressional determination.

Doesn’t the Justice Department end up in front of the U.S. Supreme Court now, having conceded that this is no suspension of the writ, and trying to convince that justices that half of loaf of judicial review counts as habeas corpus, something that could have vast impact on ordinary civil cases?