Court Endorses Law’s Curbs on Detainees
By STEPHEN LABATON
Published: February 21, 2007
WASHINGTON, Feb. 20 — A divided federal appeals court on Tuesday upheld a
new law stripping federal judges of authority to review foreign prisoners’
challenges to their detention at Guantánamo Bay, Cuba.
The decision set the stage for a third trip to the Supreme Court for the
detainees, who will once again ask the justices to consider a complex issue
that tests the balance of power among the White House, Congress and the
courts in the murky context of the fight against international terrorism.
It also prompted some senior Democratic lawmakers, who have fought the Bush
administration on the matter before and who now hold sway in Congress, to
vow enactment of a law more favorable to the prisoners.
The Supreme Court previously ruled twice that federal statutes empowered the
courts to consider Guantánamo prisoners’ habeas corpus petitions challenging
the grounds for their detention. In response to those rulings, Congress
twice rewrote law to limit the detainees’ avenues of appeal. The most recent
rewriting was at issue in Tuesday’s 2-to-1 decision.
That law, the Military Commissions Act of 2006, was signed by President Bush
last October. Its enactment followed the Supreme Court’s rejection of his
administration’s earlier arguments that the right of habeas corpus — the
fundamental right, centuries old, to ask a judge for release from unjust
imprisonment — did not apply to foreigners being held outside the United
States as enemy combatants.
The new law explicitly eliminated the federal courts’ jurisdiction over
habeas challenges by such prisoners. It instead set up military panels to
review the justification of detention in individual cases, with limited
right of appeal to the courts afterward.
In its ruling Tuesday, the United States Court of Appeals for the District
of Columbia Circuit found that the new law did not violate the
constitutional provision that bars the government from suspending habeas
corpus except in “cases of rebellion or invasion.” Two of the three appeals
court judges, citing Supreme Court and other historical precedent, held that
the right of habeas corpus did not extend to foreign citizens detained
outside the United States.
The majority decision was written by Judge A. Raymond Randolph, whose two
earlier opinions on habeas corpus and Guantánamo prisoners had also favored
the Bush administration. Those opinions were reversed by the Supreme Court,
but on statutory grounds rather than constitutional ones.
The dissenting judge on Tuesday, Judith W. Rogers, said the new law did
violate the constitutional provision restricting the suspension of habeas
Administration officials welcomed the decision as a vindication of its
position on the rights of detainees, after years of its halting efforts to
create a legal process that would withstand tests in court.
“The decision,” said Erik Ablin, a Justice Department spokesman, “reaffirms
the validity of the framework that Congress established in the Military
Commissions Act permitting Guantánamo detainees to challenge their detention
through combatant status review tribunals with the opportunity for judicial
review before the D.C. Circuit.”
Tony Snow, the White House spokesman, said at his daily news briefing, “The
court decided the position that we put forward.” He declined to say more.
Lawyers representing the detainees vowed to seek a new review by the Supreme
Shayana Kadidal, a lawyer at the Center for Constitutional Rights, which
represents many of the detainees, said, “This decision empowers the
president to do whatever he wishes to prisoners without any legal limitation
as long as he does it offshore.”
Mr. Kadidal said the ruling encouraged “a contempt for international human
rights law” and “such notorious practices as extraordinary rendition”:
sending terrorism suspects abroad for interrogation, where, rights advocates
say, they may face torture.
Democrats now in control of Congress said they would move quickly on
legislation they recently introduced that would unambiguously give federal
courts the right to consider detainees’ habeas petitions.
“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 J. Leahy, the Vermont Democrat who heads
the Senate Judiciary Committee.
Last week Mr. Leahy joined a group of other Senate Democrats, including
Christopher J. Dodd of Connecticut, Russell D. Feingold of Wisconsin and
Robert Menendez of New Jersey, in introducing the legislation restoring
habeas rights for the Guantánamo prisoners. Senator Arlen Specter of
Pennsylvania, the Judiciary Committee’s ranking Republican, also endorsed
that measure last week, and said Tuesday that he believed the dissent from
the new appeals court decision would ultimately prevail in the Supreme
But other Republican lawmakers, including Senators John Cornyn of Texas and
Lindsey Graham of South Carolina, both of whom also serve on the committee,
applauded the ruling.
The decision, 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 federal district courts. One judge had ruled that she had the
authority to consider the cases, while another had ruled that he did not,
and granted the administration’s motion to dismiss the inmates’ habeas
Writing for the appeals court, Judge Randolph first turned to the statutory
issue. He said arguments put forward by the detainees’ lawyers that the new
law was not meant to apply to the prisoners at Guantánamo Bay “are creative
but not cogent.” Congress, he said, clearly meant to keep the federal courts
from considering the detainees’ cases.
Turning to the question of whether Congress had acted within the
Constitution, he said there had been no earlier cases in which a court had
granted a habeas corpus petition for a foreign national held at an overseas
military base. The Constitution, he said, “does not confer rights on aliens
without property or presence within the United States.”
The opinion was also signed by Judge David B. Sentelle.
In her dissent, Judge Rogers said: “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. The M.C.A. purports to
withdraw that right but does so in a manner that offends the constitutional
constraint on suspension.”