- The Washington Times - Saturday, November 12, 2005

An amendment barring foreign terror suspects held at Guantanamo Bay from filing lawsuits in U.S. courts could nullify a challenge the Supreme Court agreed to hear last week about the special war crimes tribunals at the naval base.

The amendment would “appear to cut off” the Supreme Court’s pending review of the tribunals, according to a letter circulated yesterday among professors at the nation’s top law schools by the Brennan Center for Justice at New York University School of Law.

The letter was expected to be submitted to senators tomorrow. It calls for reconsideration of the amendment, which passed by a 49-42 vote Thursday after Sen. Lindsey Graham added it to a $445 billion military spending bill.

Mr. Graham, South Carolina Republican, scoffed at the notion legal scholars were on edge about the amendment.

“The only thing complicated about this legal scenario is that Congress has been AWOL,” he said.

The amendment’s goals, Mr. Graham said, are to end the burgeoning flow of habeas corpus lawsuits coming from Guantanamo and assert Congress’ role in governing how the war on terror is waged.

“What the courts do after my amendment passes will be up to the courts.”

Legal scholars say the amendment is likely to inflame an already contentious battle over the status of terror suspects deemed “enemy combatants.”

“Congress should get involved in the procedures for detainee treatment, but the appropriations process is not the correct route for something as important as habeas corpus and federal court jurisdiction stripping,” said Carl W. Tobias, of the University of Richmond School of Law.

The Supreme Court’s review of the special war crimes tribunal was born out of a challenge filed in lower federal courts by Guantanamo detainee Salim Ahmed Hamdan, one of nine terror suspects charged in the tribunals, officially called military commissions.

His case arrives under the auspices of a June 2004 Supreme Court ruling that granted U.S. federal courts jurisdiction to hear such challenges. Mr. Graham’s amendment would overturn the ruling that has resulted in more than 240 challenges filed in federal courts.

“I think the Supreme Court is out of bounds,” said Mr. Graham, a former Air Force Judge Advocate General officer. “I would dare say that no senator after 9/11 would have ever entertained the thought of allowing [Khalid] Shaikh Mohammed or people like that to have habeas rights … to file unlimited lawsuits having federal judges manage his interrogation and confinement rather than military personnel.”

His amendment met some resistance Thursday with Judiciary Committee Chairman Sen. Arlen Specter, who was among four Republicans to vote against it.

“When you undertake to remove habeas corpus, you better know where you are, and you better have a comprehensive plan,” the Pennsylvania senator said.

Aziz Huq, a lawyer with the Brennan Center at NYU, yesterday said the center had about 100 signatures from professors nationwide on its draft letter calling for a reconsideration of the amendment.

A primary concern is the amendment will widen the rift among the branches of government if its passage deems the Hamdan case to be in violation of federal law.

“It’s very surprising that Congress is unintentionally stepping in and potentially cutting off a case … that the rest of the world is looking at to judge whether the United States follows the rule of law.”

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