Today's Article
The Supreme Court
ruled in 2004 that 'a
state of war is not a
blank check for
the president'.
ruled in 2004 that 'a
state of war is not a
blank check for
the president'.
The American Spark
 |
 |
 |
 |
 |
George Bush, Accused 'Enemy Combatants' And Habeas Corpus
By Cliff Montgomery - May 19th, 2007
An interesting Congressional Research Service (CRS) report updated on Apr. 6th, 2007, discusses a pressing
issue for these times: the right of accused "enemy combatants" to habeas corpus.
We quote from the CRS report below:
"After the U.S. Supreme Court held that U.S. courts have jurisdiction...to hear legal challenges on behalf of
persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against
terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called “Combatant Status Review
Tribunals” (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of
their right to pursue relief in federal court by seeking a writ of habeas corpus.
"Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District
of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have
any enforceable rights to challenge their treatment and detention.
"In December 2005, Congress stepped into the fray, passing the Detainee Treatment Act of 2005 (DTA) to
require uniform standards for interrogation of persons in the custody of the Department of Defense, and
expressly to ban cruel, inhuman, or degrading treatment of detainees in the custody of any U.S. agency
anywhere overseas.
"The DTA also divested the courts of jurisdiction to hear some detainees’ challenges by eliminating the federal
courts’ statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay (as well as other
causes of action based on their treatment or living conditions). The DTA provides instead for limited appeals of
CSRT determinations or final decisions of military commissions.
"In Hamdi v. Rumsfeld [2004], a divided Supreme Court declared that 'a state of war is not a blank check for
the president' and ruled that persons deemed 'enemy combatants' have the right to challenge their detention
before a judge or other 'neutral decision-maker.'
"In Hamdan v. Rumsfeld [decided June 29, 2006], the Supreme Court rejected the view that the DTA left it
without jurisdiction to review a habeas challenge to the validity of military commissions established by President
Bush to try suspected terrorists.
"In holding the military commissions invalid, the Court did not revisit its 2004 opinion in Hamdi v. Rumsfeld
upholding the President’s authority to detain individuals in connection with anti-terrorism operations, but it did
hold that 'in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to
comply with the Rule of Law that prevails in this jurisdiction.'
"The Court’s decision led the 109th Congress to enact the Military Commissions Act of 2006 (MCA)...to
authorize the President to convene military commissions and to amend the DTA to further reduce the access
to federal courts by “alien enemy combatants,” by eliminating pending and future causes of action other than
the limited review of military proceedings permitted under the DTA.
"The Court of Appeals for the D.C. Circuit dismissed the Guantanamo detainees’ petitions for habeas corpus
on the basis of the DTA, as amended.
"Although the Court has denied the petitioners certiorari (Boumediene v. Bush), it may eventually take up
constitutional issues implicated by the MCA, including whether it violates the Suspension Clause (U.S. Const.
Art. 1, § 9, cl. 2), whether it amounts to an impermissible 'court-stripping' measure to deprive the judiciary of
jurisdiction over matters of law entrusted to it by the Constitution, and whether such constitutionally sensitive
issues can be avoided in light of the alternative procedures provided.
"In Hamdi v. Rumsfeld...the Court did not decide whether the same right applies to aliens held as enemy
combatants outside of the United States, but held in Rasul v. Bush that federal courts have jurisdiction to hear
habeas petitions by or on behalf of such detainees.
"The latter decision reversed the holding of the Court of Appeals for the District of Columbia Circuit, which had
agreed with the Bush Administration that no U.S. court has jurisdiction to hear petitions for habeas corpus by
or on behalf of the detainees because they are aliens and are detained outside the sovereign territory of the
United States."
By Cliff Montgomery - May 19th, 2007
An interesting Congressional Research Service (CRS) report updated on Apr. 6th, 2007, discusses a pressing
issue for these times: the right of accused "enemy combatants" to habeas corpus.
We quote from the CRS report below:
"After the U.S. Supreme Court held that U.S. courts have jurisdiction...to hear legal challenges on behalf of
persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against
terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called “Combatant Status Review
Tribunals” (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of
their right to pursue relief in federal court by seeking a writ of habeas corpus.
"Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District
of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have
any enforceable rights to challenge their treatment and detention.
"In December 2005, Congress stepped into the fray, passing the Detainee Treatment Act of 2005 (DTA) to
require uniform standards for interrogation of persons in the custody of the Department of Defense, and
expressly to ban cruel, inhuman, or degrading treatment of detainees in the custody of any U.S. agency
anywhere overseas.
"The DTA also divested the courts of jurisdiction to hear some detainees’ challenges by eliminating the federal
courts’ statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay (as well as other
causes of action based on their treatment or living conditions). The DTA provides instead for limited appeals of
CSRT determinations or final decisions of military commissions.
"In Hamdi v. Rumsfeld [2004], a divided Supreme Court declared that 'a state of war is not a blank check for
the president' and ruled that persons deemed 'enemy combatants' have the right to challenge their detention
before a judge or other 'neutral decision-maker.'
"In Hamdan v. Rumsfeld [decided June 29, 2006], the Supreme Court rejected the view that the DTA left it
without jurisdiction to review a habeas challenge to the validity of military commissions established by President
Bush to try suspected terrorists.
"In holding the military commissions invalid, the Court did not revisit its 2004 opinion in Hamdi v. Rumsfeld
upholding the President’s authority to detain individuals in connection with anti-terrorism operations, but it did
hold that 'in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to
comply with the Rule of Law that prevails in this jurisdiction.'
"The Court’s decision led the 109th Congress to enact the Military Commissions Act of 2006 (MCA)...to
authorize the President to convene military commissions and to amend the DTA to further reduce the access
to federal courts by “alien enemy combatants,” by eliminating pending and future causes of action other than
the limited review of military proceedings permitted under the DTA.
"The Court of Appeals for the D.C. Circuit dismissed the Guantanamo detainees’ petitions for habeas corpus
on the basis of the DTA, as amended.
"Although the Court has denied the petitioners certiorari (Boumediene v. Bush), it may eventually take up
constitutional issues implicated by the MCA, including whether it violates the Suspension Clause (U.S. Const.
Art. 1, § 9, cl. 2), whether it amounts to an impermissible 'court-stripping' measure to deprive the judiciary of
jurisdiction over matters of law entrusted to it by the Constitution, and whether such constitutionally sensitive
issues can be avoided in light of the alternative procedures provided.
"In Hamdi v. Rumsfeld...the Court did not decide whether the same right applies to aliens held as enemy
combatants outside of the United States, but held in Rasul v. Bush that federal courts have jurisdiction to hear
habeas petitions by or on behalf of such detainees.
"The latter decision reversed the holding of the Court of Appeals for the District of Columbia Circuit, which had
agreed with the Bush Administration that no U.S. court has jurisdiction to hear petitions for habeas corpus by
or on behalf of the detainees because they are aliens and are detained outside the sovereign territory of the
United States."