Detainees Face Limited Access to Courts

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By Josh White
Washington Post Staff Writer
Saturday, December 24, 2005

The defense authorization bill approved by Congress this week includes landmark protections for military detainees suspected of terrorist activities from abuse or mistreatment at the hands of their U.S. captors.

But the measure awaiting President Bush's signature also would limit the access of detainees held at the U.S. prison at Guantanamo Bay, Cuba, to federal courts. And it would allow the military to use confessions elicited by torture when deciding whether a detainee is an enemy combatant.

The legislative action affecting the treatment and legal status of detainees reflects conflicting views in Congress about the administration's handling of the terrorism fight and concerns about the U.S. image. Congress overwhelmingly supported language sponsored by Sen. John McCain (R-Ariz.) to prohibit cruel, inhuman or degrading treatment of prisoners after revelations of torture and abuse that embarrassed the country.

Yet, members of Congress from both parties were willing to grant the Bush administration more power over detentions at Guantanamo Bay by largely pushing the federal courts aside.

An amendment sponsored by Sens. Lindsey O. Graham (R-S.C.), Carl M. Levin (D-Mich.) and Jon Kyl (R-Ariz.) eliminates detainees' ability to challenge the condition of their detentions through habeas corpus petitions. Graham, asserting that U.S. courts have become clogged by "frivolous" claims on behalf of nearly 300 detainees in Cuba, favored denying foreign terrorism suspects the same rights in federal court that are afforded to U.S. citizens.

Instead, he proposed allowing the U.S. Court of Appeals for the District of Columbia Circuit to review the Combatant Status Review Tribunal decisions, in which detainees are ruled "enemy combatants" or "no longer enemy combatants."

Those who are considered enemy combatants can be held indefinitely. Detainees convicted by military commissions -- of which there have been none completed in the four years the Guantanamo Bay prison has operated -- are afforded federal court review.

Graham has called it "a balanced approach" that will allow Congress more oversight and have the federal court "looking over the tribunal's shoulder."

Military law experts worry that the legislation actually strips the federal courts of some of the judicial branch's integrity, for the first time since the Civil War suspending of habeas corpus rights and removing the courts from evaluating the executive branch's decisions to hold detainees indefinitely.

"Increasingly, people are going to come to recognize that the federal courts are an important bulwark here, and that the interest is not just in the detainees but in our country and our values," said Eugene R. Fidell, a Washington lawyer who is an expert in military law. "This is a very unfortunate development."

Several lawyers who represent detainees in Cuba said they do not fear that the 160 or so previously filed habeas corpus cases will be dismissed automatically when the bill becomes law. However, they do expect the government to challenge those cases at all levels of the federal courts.

And they said the legislation effectively overturns the 2004 Supreme Court decision in Rasul v. Bush , which gave federal courts the authority "to determine the legality of the executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing," at least as it applies to Guantanamo Bay.

The measure before the president would prevent detainees transferred to Guantanamo Bay in the future from filing cases in U.S. courts, except to challenge their enemy combatant status or to appeal a verdict. Only 10 detainees have been moved into Guantanamo Bay since November 2003, and none in the past year, according to military spokesmen. The current population is just over 500.

Susan Baker Manning, a lawyer representing a group of ethnic Uighur detainees at Guantanamo Bay, said she believes the legislation is unconstitutional. She warned that it could create a legal bubble of sorts around the prison that would allow the government to do what it wants behind closed doors.

"We're looking at cutting off access and information about what our executive branch is up to," Manning said, adding that nine detainees who have been cleared for release are still being held in Cuba. "They are trying to isolate Guantanamo Bay."

Other lawyers are concerned that such isolation could mean bad things for U.S. citizens captured by foreign governments. David P. Sheldon, a Washington lawyer and military law expert, said the implications "are stunning."

"What ability would the U.S. have to challenge, in foreign courts, the detainment of Americans who are overseas?" Sheldon said.


© 2005 The Washington Post Company

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