MCA HEADED FOR SUPREMES

By William Fisher

Following an appeals court’s divided decision upholding the constitutionality of the Military Commissions Act, opponents of the measure are racing the clock to file an appeal to the US Supreme Court and have it heard during the court’s current term.

A spokesperson for the Center for Constitutional Rights, the New York-based legal advocacy group that brought the original suit, told IPS it expected the appeal to be filed within the next two weeks and heard in the spring.

Earlier this week, a federal appeals court ruled 2-1 that detainees in US custody at Guantanamo Bay, Cuba, have no right to challenge their imprisonment in federal courts. The decision upheld the core of the Military Commissions Act (MCA), which was passed in a close vote last year by a Republican-controlled congress. The law stripped federal civilian courts of jurisdiction to hear habeas corpus petitions, giving President George W. Bush the right to indefinitely hold detainees outside the US without charges. The ruling affects some 400 prisoners still held at Guantanamo Bay, but could also establish a precedent affecting prisoners held by the US in Afghanistan and in CIA “secret prisons” in other countries.

The Court’s majority decision found that overruling the MCA would “defy the will of congress,” and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.

Two other appeals courts as well as the US Supreme Court have previously upheld Guantanamo detainees' rights to contest their incarceration in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. But in its Hamdan decision, the high court also said that Congress could take further action on the issue. That action resulted in the Military Commissions Act, setting up special military trials for the detainees and stripping civilian courts of jurisdiction.

In her appeals court dissent, Judge Judith W. Rogers wrote that habeas corpus may indeed apply to foreign nationals outside the US and that the lawmakers’ action had "exceeded the powers of Congress.” The US Constitution stipulates that habeas may be suspended only "when in cases of rebellion or invasion the public safety may require it." This is likely to be at the heart of the appeal to the Supreme Court.

The US Justice Department (DOJ) expressed approval of the ruling. It believes that foreign detainees enjoy no constitutional rights when they are detained in other countries.

Shayana Kadidal, managing attorney of the Center for Constitutional Rights (CCR) Guantanamo Global Justice Initiative, told IPS that the MCA “also allows for evidence obtained through torture, - a violation of the Geneva Conventions - and greatly widens the scope of who the president can label an ‘enemy combatant.’

The non-profit New York-based CCR represents many of the Guantanamo detainees and has played a central role in mobilizing legal representation for many others in custody.

Attorney Kadidal said, "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. Two of the three judges held that the President and the military may hold even innocent persons for as long they want without ever charging them so long as they are held offshore.”

He added, “The opinion relies on hypertechnical analysis to circumvent the Supreme Court’s clear mandate in their 2004 ruling: the detainees have the right to test the legality of their detentions in federal court. In every respect – the status of Guantanamo, the history of habeas corpus – the opinion ignores reality in favor of abstractions in order to come to the conclusion that even people the military admits are innocent and can be released have no right of access to the federal courts.”

Kadidal charged that the court majority “is wrong on history as well – there are a myriad of examples of habeas review being granted to persons the king had detained in distant garrisons or islands like Jersey to keep them out of the reach of the English courts. Moreover, on the majority’s reading, the common-law and constitutional rights to habeas have been frozen in time since 1789, and their opinion suggests that even US citizens could be kept in detention as long as the president holds them outside the territory of the United States.”

He said he expects that “this will be the third time the DC Circuit’s Guantanamo rulings are reversed by the Supreme Court.”

Other human rights and legal advocacy groups have also condemned the appeal court ruling. Typical is Mary Shaw of Amnesty International USA, who said, “The appellate court's ruling that Guantanamo detainees may not challenge their detention in U.S. courts is an affront to the American justice system which had always been known for its commitment to due process and the rule of law. Hopefully an appeal to the Supreme Court will overturn this shameful decision. In the meantime, Amnesty International urges Congress to act quickly to reverse the damage caused by the Military Commissions Act of 2006.”

The lower court’s decision came as congress adjourned for the President’s Day week-long recess, but congressional Democrats -- now a majority in both houses -- have already introduced legislation, co-sponsored by a powerful Republican, to amend the Military Commissions Act and restore habeas rights for detainees.

Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee, and that committee's senior Republican, Senator Arlen Specter of Pennsylvania, have introduced a bill that would restore habeas corpus rights.

Another bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.

The proposed legislation also drew plaudits from parts of the US religious community. For example, The National Religious Campaign Against Torture (NRCAT) announced its support for the Dodd and Leahy-Specter legislation.

"This legislation is urgently needed," said Jeanne Herrick-Stare, Chair of NRCAT
Coordinating Committee, "to not only restore the core elements of due process to our treatment of detainees, but also to restore the United States' role as a world leader in human rights.”

Congressional sources say the appeals court decision is likely to accelerate legislative action, but point to the possibility that President Bush would exercise his veto power. Bush believes detainee policy is a central tenet of his “global war on terror.” He has used his veto power only once in his six years in office – to nullify an act to permit wider federal funding for embryonic stem cell research.

Overturning a presidential veto requires the votes of two-thirds of Congress and, even with many Republicans currently trying to distance themselves from an unpopular president, it is unclear whether that many votes could be mustered.

More cynical observers say congressional Democrats would welcome a Bush veto, since that will leave the issue on the table for the 2008 elections.

But even if that’s true, we can expect some passionate oratory on this issue when congress returns next week.