For Detainees: Less Access to US Courts? ; the White House Bill in Congress Would Strip Courts of Jurisdiction

Article excerpt

In a significant but little-discussed move, the Bush administration is asking Congress to strip the federal courts of jurisdiction to hear cases brought by Guantanamo detainees challenging the legality of their confinement.

The move marks the second time in less than a year that the Bush administration is seeking to achieve in Congress what it was unable to win in court. In December, Congress passed the Detainee Treatment Act - a measure that sharply limited judicial jurisdiction to hear detainee challenges. Administration lawyers even argued that the US Supreme Court itself had been stripped of the power to decide the case handed down last June that invalided military commission trials at Guantanamo.

The high court rejected that view and issued its landmark ruling. Now, Congress is again considering limiting federal court jurisdiction.

The effort is aimed at by-passing a 2004 Supreme Court decision in which the high court ruled 6-to-3 that the US detainee camp at Guantanamo is not a legal black hole. The majority justices, in a case called Rasul v. Bush, said detainees were entitled to file lawsuits under a federal habeas corpus law, and that federal courts had jurisdiction to hear and decide their cases.

Rise of 'Guantanamo Bar Association'

The decision prompted scores of American lawyers to offer their services free of charge to Guantanamo detainees. This army of volunteer lawyers, known unofficially as the Guantanamo Bar Association, includes some of the best legal talent in the country. Lawyers began to pick apart the administration's terror policies while investigating reports of harsh treatment, including allegations of torture. Perhaps most important, they began to win significant decisions.

Now, with hundreds of detainee cases pending in both the US district and federal appeals courts in Washington, D.C., Congress is being asked to stop the flood of litigation by limiting detainees' access.

"No court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this act," the administration's proposal reads in part. The law would apply to "any alien detained by the United States as an unlawful enemy combatant."

Legal analysts say the measure has sparked surprisingly little debate among lawmakers. For example, the main alternative to the administration's bill, legislation sponsored by Sens. John Warner (R) of Virginia and Lindsey Graham (R) of South Carolina, also calls for withdrawing federal court jurisdiction to hear such cases.

Nonetheless, there is opposition.

"We are told this legislation is important to the ineffable demands of national security, and that permitting the courts to play their traditional role will somehow undermine the military's effort in fighting terrorism. But this concern is simply misplaced," writes a group of prominent retired federal appeals court judges, in an open letter to members of Congress.

One of the judges, former Third US Circuit Court of Appeals Chief Judge John Gibbons, argued and won the Rasul case. …