- The Washington Times - Friday, October 20, 2006


Hundreds of detainees received notice from the Justice Department this week that because of a new law signed by President Bush the U.S. court system is no longer open to them.

The fate of this law is now in the hands of the federal appeals court — and ultimately the Supreme Court — which will decide the fate of prisoners who have spent years arguing that the U.S. government is illegally holding them at overseas military bases.

A prisoner’s right to challenge his detention is one of the basic tenets of the Constitution — a right known as habeas corpus. Under the law signed Tuesday by Mr. Bush, however, the courts no longer have authority over such petitions in cases involving “enemy combatants.”

The law gives the military the authority to decide whether to charge prisoners before special commissions or, if necessary, hold them indefinitely.

Attorney General Alberto R. Gonzales said yesterday that the new law gives more access to appeals “than has ever been available to any enemy combatant in the past.”

But the habeas corpus exemption has drawn criticism from lawyers, civil rights groups and even members of Mr. Bush’s own party, such as Sen. Arlen Specter, Pennsylvania Republican, the chairman of the Senate Judiciary Committee.

“Habeas protects against the executive taking a person and locking them up without a chance to prove their innocence,” said Jonathan Hafetz, who handles many detainee cases for the Brennan Center for Justice at New York University School of Law. “Habeas is what stands between us and a system of secret detentions, a police state.”

The Justice Department filed notices with several federal judges Wednesday, telling them the law renders detainee cases in their courts moot.

The judges probably will not rule on that issue, however, until an appeals court decides how to handle the law. The U.S. Court of Appeals for the District of Columbia Circuit, which was considering two detainee cases, ordered lawyers to make their case for what should happen next.

Mr. Bush cited the victims of the 2001 terrorist attacks when he signed the bill. He said the law allows the nation to bring to trial such detainees as Khalid Sheikh Mohammed, the accused mastermind of the September 11 attacks, and Ramzi Binalshibh, a suspected would-be hijacker.

The law was passed in response to a Supreme Court ruling in June that the Bush administration’s original plan for military tribunals violated U.S. and international law.

“The judiciary has provided guidance, and the president acted on it with bipartisan support,” said Glenn Sulmasy, a law professor at the U.S. Coast Guard Academy and an early supporter of creating new courts to try terror suspects.

“It will be difficult for the court to attack what’s going on and intervene in what’s really warfare. It would be a broad step by the judicial branch,” Mr. Sulmasy said.

The three-member appeals court ordered a month of briefs on the law, which means a ruling will not come before late November or December, well after the Nov. 7 elections.

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