Using smoke and mirrors to tweak the constitutiona and bill of rights

Bush, allies try to shift oversight of detainees

New York Times

Sept. 21, 2006 12:00 AM

WASHINGTON - Although the effort has been partly obscured by the highly publicized wrangling over military commissions for war crimes trials, the Bush administration and its allies in Congress are trying to use the same legislation to strip federal courts of their authority to review the detentions of almost all suspected terrorists.

Both the legislation introduced on behalf of the administration and the competing bill sponsored by a group of largely Republican opponents in the Senate include a provision that would bar foreigners held abroad from using the federal trial courts for challenges to detention known as habeas corpus lawsuits. If the provision was enacted, it would mean that all of the lawsuits brought in federal court by about 430 detainees at Guantanamo Bay, Cuba, would be wiped from the books.

On Wednesday, the House Judiciary Committee rejected an effort by opponents to strike that provision from the House bill by a party-line vote, with all 15 Republicans present voting to leave it in and all 12 Democrats voting against it. Then, after some initial difficulty in getting approval for the bill, the committee passed it on to the full House.

Rep. Martin T. Meehan, D-Mass., who has taken a leading role in trying to counter the administration's efforts, said that stripping the federal courts of the right to hear habeas corpus challenges "raised grave constitutional questions."

Meehan, a member of both the Judiciary Committee and the Armed Services Committee that had earlier approved a bill with the provision ending habeas reviews, said that he believed the final legislation would not withstand a court challenge.

"This would take away habeas not only in all the pending cases at Guantanamo but on any future cases involving any alien detained outside the United States," he said.

Sen. Lindsey Graham, R-S.C., who is a sponsor of one of the bills eliminating habeas corpus filings by detainees, said Wednesday that the flood of such lawsuits had hampered the war effort and gave judges too much leeway to second-guess field commanders. He said his bill provided an alternative by allowing detainees to challenge the basis of their detentions in the federal appeals courts, but would bar them from raising the broad range of complaints that are allowable in habeas corpus lawsuits.

"These enemy prisoners should not have an unlimited right of access to our federal courts like a U.S. citizen," Graham said in an interview.

The administration's interest in eliminating habeas lawsuits for detainees held abroad intensified after a Supreme Court decision last June striking down the system of military commissions.

In addition to saying that the White House had overstepped its bounds in trying to put the commission system in place without congressional approval, the court brushed aside the Bush administration's argument that the recent Detainee Treatment Act eliminated habeas corpus jurisdiction retroactively.

The court said Congress had only eliminated habeas corpus jurisdiction in the future, impelling the administration to renew its effort to rid itself of the hundreds of challenges filed by Guantanamo detainees. After the Supreme Court ruled in 2004 that the detainees had access to the federal courts, the administration found itself facing legal challenges it had not anticipated.

The nature of the detention regime at Guantanamo changed markedly as detainees who had been isolated suddenly had access to U.S. lawyers who were able to provide public accounts of their treatment and defenses to the charges that they were terrorists.