Government: detainees have no constitutional rights
on Feb 13, 2006 at 6:28 pm
The Bush Administration told the Supreme Court on Monday that the Justices could put a stop to a foreign national’s challenge to a military war crimes trial without worrying about any constitutional violations, since detainees like him have no rights under the Constitution. In the latest court filing by the Justice Department on the meaning of the new Detainee Treatment Act, the Justice Department argued: “The Constitution does not guarantee aliens held abroad a right to habeas corpus.” As a result, it said, Salim Ahmed Hamdan, a Yemeni national, “cannot claim the protection of our Constitution.”
The Supreme Court is scheduled to consider the government’s motion to dismiss the Hamdan case (Hamdan v. Rumsfeld, docket 05-184), at the Justices’ private Conference this Friday.
Since Congress enacted the new detainee law, taking away much of the power of federal courts to hear challenges by captives now at the U.S. Navy prison in Guanatanamo Bay, Cuba, the administration has been seeking to have that law applied to pending cases, as well as any future habeas filings by detainees. In most of those legal papers, the government’s emphasis has been on its interpretation of the specific language of the new Act, contending that it clearly expresses Congress’ intent to wipe out all habeas claims, and substitute a more restricted form of judicial review — one that would be confined to appeals to the D.C. Circuit.
Attorneys for Hamdan and other Guantanamo detainees, however, have countered that Congress only meant to apply the new review procedures to detainee cases filed after last year, and not to hundreds of already pending cases. If, however, the courts were to interpret the new law as covering pending cases, those attorneys have said, it would raise serious constitutional questions — including “grave” questions about Congress’ power to suspend the writ of habeas corpus, and its power to deny the Supreme Court authority to hear any form of habeas challenge by a detainee.
The defense lawyers have said that the Court’s role in the overall plan of the Constitution is at stake in this dispute.
But the Administration reply brief in the Supreme Court sought to remove any constitutional implications from the Hamdan case, contending that Congress clearly has the authority to wipe out all existing habeas remedies and to fashion a new, more restricted form of court review in place of those remedies.
The language of the Detainee Act, it contended, not only eliminates detainees’ rights to bring ordinary habeas challenges in the lower federal courts, with appeals to the Supreme Court, but also removes the highest Court’s jurisdiction to hear an “original” habeas petition — one that could be heard and decided only by the highest Court..
And, the argument went on, reading the Act that broadly does not raise any serious constitutional questions. The Court might consider the suspension-of-the-writ argument later, it suggested, if Hamdan is convicted by a military tribunal and then appeals that conviction. But, the brief’s main argument about a lack of any constitutional problem is that Hamdan, “as an alien enemy combatant detained outside the United States,” “is not entitled to any constitutional protection under the Suspension Clause.” That, it argued, has been settled at least since the Supreme Court’s World War II era decision in Johnson v. Eisentrager, in 1950.
