Appeals Court Ruling Upholds Military Commissions Act

But that is far from the end of the story. Lawyers for Gitmo Detainees plan to appeal and Partick Leahy plans to revisit the dismantling of the Great Writ in the Senate.

By STEPHEN LABATON

WASHINGTON, Feb. 20—A federal appeals court today upheld the constitutionality of a new law that strips federal courts of the authority to review the cases of foreign prisoners held by the military at the Guantánamo Bay Naval Base in Cuba.

Twice before the United States Supreme Court has ruled that federal courts may consider habeas corpus petitions by the Guantánamo Bay detainees. In response to those decisions, Congress has twice rewritten the law in an attempt to limit the avenues of appeal by the detainees.

The most recent revision to the law, at issue in today’s decision, was signed by President Bush last October. It eliminated the jurisdiction of federal courts over habeas challenges by any non-citizens held as enemy combatants, and set up a military review for the prisoners at Guantánamo, with limited right of appeal to the federal courts afterwards.

By a 2-to-1 vote, the United States Court of Appeals for the District of Columbia found that the law, the Military Commissions Act of 2006, did not violate a provision in Article 1 of the Constitution that prevents the government from suspending habeas corpus — the right of a detained person to challenge the legality of the detention — except in “cases of rebellion or invasion.”

The court’s majority, citing Supreme Court and other precedent, held that the right of habeas corpus does not extend to foreign citizens detained outside the United States — the prisoners covered by the new law. A lower court in December followed the same logic to the same conclusion in a related case, involving Salim Ahmed Hamdan, whose earlier appeal to the Supreme Court had led to the overturning of the previous Congressional attempts to limit the prisoners’ avenues to the federal courts.

Bush administration officials hailed the latest decision.

“The decision reaffirms the validity of the framework that Congress established in the Military Commission Act permitting Guantánamo detainees to challenge their detention through combatant status review tribunals with the opportunity for judicial review before the D.C. Circuit,” said Erik Ablin, a Justice Department spokesman.

But lawyers representing the detainees vowed to once again seek a review by the Supreme Court.

“This decision empowers the president to do whatever he wishes to prisoners without any legal limitation as long as he does it off shore, and encourages such notorious practices as extraordinary rendition and a contempt for international human rights law,” said Shayana Kadidal , a lawyer at the Center for Constitutional Rights, which represents many of the detainees. “The matter will ultimately have to be resolved by the Supreme Court for a third time.”

Democrats now in control of Congress said they would move quickly to introduce legislation that would unambiguously give federal courts the right to consider habeas petitions by detainees.

“The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness,” said Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee.

The decision today, Lakhdar Boumediene v. George W. Bush, involved a consolidation of the cases of 63 detainees, all from foreign countries, who had sought review in two separate federal district courts in Washington. One federal district judge had ruled in 2005 that she had the authority to consider the cases, while another judge ruled that he did not, and granted the administration’s motion to dismiss the cases.

Writing for the court in today’s decision, Judge A. Raymond Randolph said that the arguments put forward by the lawyers for the detainees “are creative but not cogent” and that Congress clearly meant to preclude the federal courts from considering the detainees’ cases. He said that there were no cases in which the habeas corpus could be used by foreign nationals held at an overseas military base and that the constitution “does not confer rights on aliens without property or presence within the United States.”

His opinion was also signed by Judge David B. Sentelle.

In a dissenting opinion, Judge Judith W. Rogers said that the Military Commission Act had violated the constitutional provision that restricts the suspension of the writ of habeas corpus. She reasoned that the suspension clause limits Congressional powers, rather than conferring a right on the accused.

“Prior to the enactment of the Military Commissions Act, the Supreme Court acknowledged that the detainees held at Guantánamo had a statutory right to habeas corpus,” Judge Rogers wrote. “The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension.”


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