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