New detainee law upheld

Guantanamo prisoners have no right to challenge detention in U.S. courts, appeals panel says

WASHINGTON -- A federal appeals court ruled Tuesday that hundreds of detainees in U.S. custody in Guantanamo Bay, Cuba, do not have the right to challenge their imprisonment in federal courts, a victory for the Bush administration that could lead to the Supreme Court again addressing the issue.

In its 2-1 decision, the U.S. Court of Appeals for the District of Columbia upheld one of the central components of the Military Commissions Act, the law enacted last year by a then-Republican-controlled Congress that stripped Guantanamo detainees of their right to such habeas corpus petitions. Lawyers have filed habeas petitions on behalf of virtually all the nearly 400 detainees still at Guantanamo, challenging President Bush's right to hold them indefinitely without charges. Tuesday's ruling effectively dismisses the cases.

Attorneys for the detainees vowed to quickly petition the Supreme Court to hear the case.

Judge A. Raymond Randolph wrote in the majority opinion that to overrule the new law, which Bush signed in October, would "defy the will of Congress." He and Judge David Sentelle also found that historical interpretations of habeas corpus do not apply to foreign nationals not on U.S. soil, determining that the U.S. military prison in Guantanamo Bay is a leased property that falls under Cuban sovereignty.

In a lengthy dissent, Judge Judith Rogers raised two central questions of constitutional law that could form the basis of arguments before the Supreme Court, if it chooses to hear the case. She wrote the writ of habeas corpus can apply to foreign nationals outside the United States and that Congress has not properly suspended habeas corpus, something it has done only four previous times, including during the Civil War.

Justice Department lawyers have argued for years that foreign detainees should not enjoy constitutional rights when they are detained in other countries amid accusations of terrorism against the U.S. and its allies.

"We are pleased with the decision of the U.S. Court of Appeals for the D.C. Circuit upholding the constitutionality of the Military Commissions Act [MCA] and dismissing the consolidated Guantanamo detainee cases for lack of jurisdiction," Erik Ablin, a department spokesman, said in a statement.

Shayana Kadidal, a lawyer with the Center for Constitutional Rights, which represents hundreds of Guantanamo detainees, said defense attorneys will petition the Supreme Court "as quickly as possible." He said the decision grants government officials broad latitude in its treatment of detainees and gives detainees no legal way to address it.

"It seems inevitable that the Supreme Court is going to take the case," Erwin Chemerinsky, a Duke University law and political science professor, told The News & Observer. Chemerinsky has represented a Guantanamo detainee for nearly five years. His client, Salim Gherebi, was among those who lost at the appeals court Tuesday.

"I've been a lawyer too long to make bets on what the Supreme Court is going to do. But I think we have an excellent chance," he said.

Chemerinsky said the question for the Supreme Court will be whether the detainees have the right to challenge their detention through a writ of habeas corpus. "The question is whether or not the writ of habeas corpus applies to Guantanamo," he said.

In two previous decisions, the Supreme Court has upheld Guantanamo detainees' rights to contest their incarceration in federal courts. But the court also made clear that Congress could weigh in on the issue, which it did by approving the Military Commissions Act. That law mandated special military trials for the detainees.

Democrats, who now hold the majority in both houses, have vowed to amend the Military Commissions Act with provisions that would restore habeas rights for the detainees.

(Staff writer Benjamin Niolet contributed to this report.)