Detainees' Attorneys Ask Court to Allow Challenges

Attorneys for captives in the Guantanamo Bay military prison asked a federal appeals court yesterday to reject a provision of the new military-commission law that strips hundreds of detainees of their right to challenge their detention in U.S. courts.

The lawyers, joined by a group of retired judges from both political parties, argued that the United States cannot indefinitely imprison foreign nationals in a military prison without charging them with crimes and deny them the chance to test the evidence against them in the U.S. justice system.

President Bush sought Congress's approval this fall for the Military Commissions Act, which also set new rules for military trials of the detainees, and signed it into law Oct. 17. Government lawyers quickly moved to throw out hundreds of pending challenges by the detainees, known as habeas corpus cases. The issue is pending before the U.S. Court of Appeals for the District of Columbia Circuit.

But attorneys for detainees argue that the law does not apply to detainees with ongoing cases, in part because the government can take that drastic step only when the country is in the middle of an active war.

"We do not believe Congress wiped out our cases in this act, and we feel strongly if Congress had done that, it would be unconstitutional," said David H. Remes, one of the lawyers. "The only time Congress can suspend the writ of habeas is in cases of invasion and rebellion. We are not being invaded, and there is no rebellion."

The administration pressed for passage of the new law after the Supreme Court ruled this summer in Hamdan v. Rumsfeld that pending habeas cases could continue, despite administration arguments that a previous law had ended those rights.

Justice Department spokesman Charles Miller said yesterday that the government would not comment but would respond in a brief due to the appeals court Nov. 13.

An estimated 435 detainees remain at the military prison at Guantanamo Bay. The government has determined that about 100 could be released or transferred. Another group may be charged with crimes and tried before military commissions.

The habeas dispute involves the majority, who never will be charged but have been deemed "enemy combatants" by a three-member military panel.

A group of seven federal judges, who filed a separate friend-of-the-court brief, argued that the new law is fatally flawed for another reason. Under a separate provision, they noted, the military can imprison someone without any charges based on evidence produced through statements of the detainee or of someone else made during torture.

The government "created a tribunal that was permitted to accept evidence secured by torture and presume that evidence was genuine and accurate," the judges wrote. If U.S. courts have no role in testing the basis for holding detainees, they said, the U.S. government "cannot remove the stain of torture" from the military's decisions.

The detainee attorneys also argued that the law uses imprecise language in describing the effective date for the act to apply to specific categories of cases.

Staff researcher Julie Tate contributed to this report.