International Herald Tribune
November 7, 2006
by Neil A. Lewis / New York Times

The Bush administration's successful effort to have Congress eliminate the right of prisoners at Guantánamo Bay, Cuba, 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 said, is the federal appeals court in Washington. That court has been considering for three years whether the hundreds of prisoners at Guantánamo have the right of habeas corpus - that is, the right 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 agreed.

In a ruling in June, the Supreme Court said that an earlier measure did not eliminate habeas lawsuits that were already in the courts. But in October the administration used more explicit language, saying the new law retroactively blocked federal courts from entertaining habeas lawsuits by Guantánamo prisoners.

The three-judge appeals-court panel will have to decide whether the pending lawsuits brought by the 430 or so remaining prisoners at Guantánamo 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 Sentelle and A. Raymond Randolph, both appointees of Republican presidents, and Judith 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 prisoners 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 U.S. 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 issued their formal reply in a brief due next Monday.

David Rivkin Jr., a White House counsel for President George H.W. Bush, the current president's father, said he believed the department would emphasize that the new law provided an adequate substitute method for a prisoner to challenge his confinement.

A proceeding held for each prisoner at Guantánamo, 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 U.S. Circuit Court of Appeals for the District of Columbia.

Rivkin, an authority on national security law who supports the administration, said the law did not suspend habeas corpus but provided a new way for it to be exercised.

He said the appeals-court judges should be receptive to the idea that the process was fair because the law provided for that very court to hear any appeals from the military tribunals.

But the prisoners' lawyers have argued that the law provides for only a limited review of the military tribunals by the appeals court. Under the 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.