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Appeals Court: habeas corpus is dead
Yahoo News/AP
By HOPE YEN, Associated Press Writer
February 20, 2007

WASHINGTON - In a victory for President Bush, a divided federal appeals court ruled Tuesday that Guantanamo Bay detainees cannot use the U.S. court system to challenge their indefinite imprisonment. A Supreme Court appeal was promised.

The 2-1 decision by the U.S. Court of Appeals for the D.C. Circuit dismisses hundreds of cases filed by foreign-born detainees in federal court and also threatens to strip away court access to millions of lawful permanent residents currently in the United States.

It upholds a key provision of the Military Commissions Act, which Bush pushed through Congress last year to set up a Defense Department system to prosecute terrorism suspects. Now, detainees must prove to three-officer military panels that they don't pose a terror threat.

Democrats newly in charge of Congress promised legislation aimed at giving detainees legal rights. Attorneys for detainees said they would appeal Tuesday's ruling to the Supreme Court.

"We're disappointed," said Shayana Kadidal of the Center for Constitutional Rights. "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."

The two judges voting with the White House — Judge A. Raymond Randolph and Judge David B. Sentelle — were appointed by Republicans. Reagan appointed Sentelle, and the first President Bush appointed Randolph. The dissenter, Judge Judith W. Rogers, was appointed by Clinton.

White House deputy press secretary Dana Perino called the decision "a significant win" for the administration and said the Military Commissions Act provides "sufficient and fair access to courts for these detainees."

At the Justice Department, attorneys urged Chief Justice John G. Roberts to deny legal relief to Guantanamo prisoners. They also said that in the case of Sharaf al-Sanani, a Yemeni being held at Guantanamo, the government was no longer obligated to explain why he was being detained.

About 395 detainees are currently being held at the U.S. military base at Guantanamo Bay in Cuba. The first prisoners arrived more than five years ago, after the Sept. 11, 2001, terror attacks.

At issue is the right of habeas corpus, a basic tenet of the Constitution protecting detainees from unlawful imprisonment. Twice before, the Supreme Court ruled that right gave Guantanamo detainees full access to courts.

But in their latest ruling last June, justices suggested the president could ask Congress for more anti-terrorism authority, prompting passage of the commissions act that in part stripped federal court review.

Randolph, writing for the majority, said the new commissions act clearly blocked court access and was constitutional because a "foreign entity without property or presence in this country has no constitutional rights."

"The arguments are creative but not cogent. To accept them would be to defy the will of Congress," Randolph wrote in the 25-page opinion, which was joined by Sentelle.

In dissent, Judge Rogers said the cases should proceed. She argued that the military hearings — known as Combatant Status Review Tribunals, or CSRTs — deprive detainees of critical due process rights provided by the Constitution by putting the legal burden on detainees to prove they aren't terrorist threats.

"District courts are well able to adjust these proceedings in light of the government's significant interests in guarding national security," Rogers wrote. "More significant still, continued detention may be justified by a CSRT on the basis of evidence resulting from torture."

Under the commissions act, the government may indefinitely detain foreigners who have been designated as "enemy combatants" and authorizes the CIA to use aggressive but undefined interrogation tactics.

A spokeswoman for Senate Judiciary Committee Chairman Patrick Leahy (news, bio, voting record), D-Vt., said Leahy had prioritized a bill that would restore detainees' legal rights, noting that some 12 million lawful permanent residents currently in the U.S. could also be stripped of rights.

Leahy was referring to the case of Ali Saleh Kahlah Al-Marri, a citizen of Qatar, who was arrested in 2001 as an "enemy combatant" while studying in the United States. The Justice Department says the commissions law should apply to immigrants such as him, and the 4th U.S. Circuit Court of Appeals in Richmond, Va., is expected to issue a ruling soon.

A provision restoring detainees' rights, introduced by Leahy and then-Judiciary Chairman Arlen Specter (news, bio, voting record), R-Pa., narrowly failed last year on a 48-51 vote.

"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," Leahy said in a statement.

But Sen. John Cornyn (news, bio, voting record), R-Texas, who helped draft the new commission law, heralded the ruling as "respecting the will of Congress."

"The detainees held at Guantanamo Bay do not have an unfettered constitutional right," he said. "In fact, the legal and humane actions of the U.S. government stand in stark contrast to our al-Qaeda enemies who behead those they capture."

Rep. Ike Skelton (news, bio, voting record), D-Mo., who chairs the House Armed Services Committee, said he will launch a congressional review to determine whether military hearings offer detainees legal protections to which they are entitled.

"The last thing that we would want is to convict an individual for terrorism and then have that conviction overturned because of fatal flaws in the military commissions law passed in the previous Congress," Skelton said.

Jonathan Hafetz, an attorney at the Brennan Center for Justice, said the ruling sends the wrong message about justice to U.S. citizens and the international community. Ultimately, it will be the Supreme Court that will have to sort out the legal mess, he said.

"It's a terrible ruling that contradicts centuries of Anglo-American history and allows the indefinite detention of innocent people without charge or judicial review," Hafetz said.

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