- The Washington Times - Tuesday, February 20, 2007

A federal appeals court panel yesterday, in a 2-1 vote, upheld a key provision of anti-terrorism legislation signed by President Bush that blocks prisoners at Guantanamo Bay from challenging their detention in U.S. district courts.

“Federal courts have no jurisdiction in these cases,” wrote Judge A. Raymond Randolph in the 25-page majority ruling, which was supported by Judge David B. Sentelle.

In a key victory for the White House in its war on terrorism, Judge Randolph, named to the bench by President Reagan, and Judge Sentelle, appointed by President George Bush, argued that Congress had successfully stripped the detainees of their right to seek a hearing through a writ of habeas corpus.

“The arguments are creative, but not cogent,” Judge Randolph said in response to appeals by two detainees who asked the court to consider their unlawful-detention appeals.

“To accept them would be to defy the will of Congress. … It is almost as if the proponents of these words were slamming their fists on the table shouting ‘When we say “all,” we mean all — without exception!’ ” he said.

The U.S. Court of Appeals for the District of Columbia ruling will deny court hearings for hundreds of Guantanamo detainees with cases pending.

The dissenting opinion was written by Judge Judith W. Rogers, a Clinton appointee, who said the Defense Department had failed to create a fair substitute outside the federal courts where those detained at Guantanamo Bay, Cuba, could challenge their detention.

“While judgments of military necessity are entitled to deference by the courts, and while temporary custody during wartime may be justified in order properly to process those who have been captured, the executive has had ample opportunity during the past five years during which the detainees have been held at Guantanamo Bay to determine who is being held and for what reason,” she said.

Congress passed the Military Commissions Act of 2006, which the president signed into law on Oct. 17. It said no court, justice or judge has jurisdiction to consider an application for a writ of habeas corpus by or on behalf of an alien detained as an enemy combatant. The Defense Department is holding 395 enemy combatants at Guantanamo.

White House spokesman Dana Perino called the ruling a “significant win” for the administration, adding that the Military Commissions Act provides “sufficient and fair access to courts for these detainees.”

Justice Department spokesman Erik Ablin said the decision “reaffirms the validity of the framework that Congress established” in permitting Guantanamo detainees to challenge their detention through military hearings coordinated by the Defense Department.

Attorneys for the detainees said they were “disappointed” in the ruling and would appeal it to the Supreme Court.

“The bottom line is that according to two of the federal judges, the president can do whatever he wants without any legal limitations as long as he does it offshore,” said Shayana Kadidal of the Center for Constitutional Rights.

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