- The Washington Times - Wednesday, March 22, 2006


Faced with hundreds of claims by detainees at U.S. Naval Base Guantanamo Bay in Cuba, a federal appeals court pressed the Bush administration yesterday to say how much power judges will have to determine the legality of the detentions.

The three-judge panel is being asked to decide whether the Detainee Treatment Act, signed by President Bush on Dec. 30, retroactively voids hundreds of lawsuits by abolishing a right to challenge detentions that has been part of U.S. legal principles since the nation’s founding.

Judges David B. Sentelle and A. Raymond Randolph seemed willing to accept the administration’s view that the act forces dismissal of more than 200 lawsuits filed in U.S. District Court for the District of Columbia on behalf of over 300 detainees.

But no one on the panel appeared to agree with the administration’s view on what would happen next if detainees sought to essentially transfer their challenges to the appeals court.

Under the act, detainees can file petitions challenging determinations by military tribunals that they are “enemy combatants” who can be held without charges indefinitely. Those appeals must be filed with the U.S. Court of Appeals for the District of Columbia Circuit.

For the three judges, the big issue was how much power they and their fellow appeals court judges will have to examine the detainees’ claims.

Gregory G. Katsas, a Justice Department lawyer, argued that judges would be limited to reviewing the sufficiency of the administrative hearings held by the military because the detainees — who are aliens held outside the United States — have no rights under the Constitution.

Judge Sentelle was incredulous. He reminded Mr. Katsas of a 2004 Supreme Court decision that cleared the way for detainees to file court challenges to their detentions.

“You are saying that every single one of their claims are going to fail,” Judge Sentelle said. “You are saying that all the Supreme Court did … was give [detainees] a right to file a piece of paper that cannot possibly grant release.”

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