Measures Seek to Restrict Detainees’ Access to Courts
By NEIL A. LEWIS and KATE ZERNIKE
September 21, 2006
WASHINGTON, Sept. 20 — 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 terrorism suspects.
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 Guantánamo 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.
Representative Martin T. Meehan, Democrat of Massachusetts, 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.”
Mr. Meehan, a member of both the Judiciary Committee and the Armed Services
Committee, which had earlier approved a bill with the provision ending
habeas reviews, said he believed the final legislation would not withstand a
“This would take away habeas not only in all the pending cases at Guantánamo
but on any future cases involving any alien detained outside the United
States,” he said.
Senator Lindsey Graham, Republican of South Carolina and a sponsor of one of
the bills eliminating the habeas corpus filings, said Wednesday that the
flood of such lawsuits had hampered the war effort and given judges too much
leeway to second-guess field commanders.
Mr. Graham said his bill provided an alternative by allowing detainees to
challenge their detentions in the federal appeals courts but barring them
from raising the broad range of complaints that are allowable in habeas
“These enemy prisoners should not have an unlimited right of access to our
federal courts like a U.S. citizen,” he said in an interview.
The administration’s interest in eliminating the lawsuits for detainees held
abroad intensified after the Supreme Court struck down the system of
military commissions in June.
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 argument that the Detainee Treatment Act had
retroactively eliminated habeas corpus jurisdiction.
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 Guantánamo detainees.
After the Supreme Court ruled in 2004 that the detainees had access to the
federal courts, the administration found itself facing a flood of legal
challenges it had not anticipated.
The nature of the detention regime at Guantánamo changed markedly as
detainees who had been isolated suddenly had access to American lawyers who
were able to provide public accounts of their treatment and defenses to the
charges that they were terrorists. The military no longer had exclusive
control of information about Guantánamo.
This month, the Senate Armed Services Committee approved a similar version
of the bill sponsored by three Republicans, Mr. Graham, John McCain of
Arizona and John W. Warner of Virginia, and a Democrat, Carl Levin of
Unlike the administration’s legislation on military commissions, the bill
largely prohibits the use of secret evidence and hearsay in any war crimes
trials before military commissions but includes the provision removing
Joshua Colangelo-Bryan, a New York lawyer who has represented Guantánamo
prisoners, said habeas corpus proceedings had demonstrated how many people
have been detained on little evidence.
“There is also an irony in that people like Khalid Shaikh Mohammed who are
said to be responsible for the deaths of thousands will get a trial while
hundreds of others, who are not even charged with any crimes, may be kept at
Guantánamo forever without any court hearing,” he said.
The Judiciary Committee votes on Wednesday demonstrated to some that the
president’s proposed legislation faced increasing opposition in the House.
The Judiciary Committee first voted to reject it, with two Republicans
joining the Democrats. Republicans then rounded up two absent members, voted
to reconsider, and approved it, 20 to 19.
“I’m not sure it can pass on the floor,” said Representative Jeff Flake,
Republican of Arizona, who with Representative Bob Inglis of South Carolina
joined the Democrats on the committee in voting against the bill. “I think
there are a lot of people with concerns.”
Judge Orders Data Release
By The New York Times
A federal judge on Wednesday ordered the Defense Department to release
documents containing the identities of some detainees at the American prison
camp in Guantánamo Bay, Cuba, who were released or who suffered mistreatment
by their handlers or other detainees.
In ruling in a case brought by The Associated Press, the judge, Jed S.
Rakoff of Federal District Court, said the government could not keep the
names secret. He gave the government a week to provide the news organization
with the information despite government claims that doing so would violate