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WASHINGTON � When the U.S. military began shipping prisoners from the war on terror to Guantanamo Bay, Cuba, one goal was clear: to keep them outside the reach of the U.S. court system. But nearly five years later, those cases remain stuck exactly where the Bush administration didn’t want them to be. The most recent battle is over the Military Commissions Act, signed by the president just six weeks ago. A key piece of that law prevents those designated “enemy combatants” from challenging their detention in federal court. But the constitutionality of that provision is under consideration by two appellate courts, and lawyers for both the detainees and the Bush administration say it is likely the Supreme Court will again step in to decide the matter. “I’ll be surprised if the court doesn’t accept review in those cases or some others that pose similar questions,” says Neal Katyal, a professor at Georgetown University Law Center who successfully argued against the administration’s earlier military tribunal system in Hamdan v. Rumsfeld. The first hurdle for the White House comes in the D.C. Circuit U.S. Court of Appeals. There, a three-judge panel could deliver a verdict as soon as this winter in a tangled, 2-year-old case in which more than two dozen detainees at Guantanamo � some of whom have been held without trial for nearly five years � are seeking the right to file habeas corpus petitions in the U.S. District Court in Washington, D.C., challenging their indefinite imprisonment. Ninety miles south of the District, in the Fourth Circuit U.S. Court of Appeals based in Richmond, Va., lawyers for Ali Saleh Kahlah al-Marri, a Qatari national held in a naval brig in South Carolina, are challenging his designation as an enemy combatant and also arguing for the right to challenge his detention in federal court.
‘The big issue now is, if they’ve taken away the right to habeas corpus, have they given a reasonable substitute for us?’

Thomas Wilner Shearman & Sterling

Though the high court almost certainly wouldn’t hear arguments in an appeal of either case until next fall, that hasn’t stopped the Defense Department from moving forward with plans to try roughly 70 of the approximately 430 Guantanamo detainees on war-crimes charges. Last month the Pentagon said it would seek funds to build a $125 million courthouse complex at Guantanamo, with the goal of holding the first military commissions in July. But if the courts declare portions of the MCA unconstitutional, the Pentagon’s plans could be thrown into disarray � and any convictions it secures could be declared invalid. In addition, there’s the potential that Congress could act before the Supreme Court has a chance. With Democrats claiming congressional majorities in last month’s midterm elections, Congress could attempt to revise the MCA’s habeas provisions. Sen. Christopher Dodd, D-Conn., introduced a bill just last month that would undo those provisions. And Sen. Patrick Leahy, D-Vt., the incoming chairman of the Senate Judiciary Committee, has signaled his intention to re-examine the MCA. A GOOD SUBSTITUTE? Among the detainees contesting the law is Lakhdar Boumediene, one of six Algerian-born men taken into U.S. custody in Bosnia in 2002. The men, who worked for charities in Bosnia, were accused of plotting to blow up the U.S. Embassy in Sarajevo and affiliating with al Qaeda. Lawyers for Boumediene and the others have said the allegations are baseless, pointing to an official inquiry by Bosnian prosecutors into their detention in 2004 that formally cleared the men. The most substantive review of Boumediene’s status has been through his Combatant Status Review Tribunal in 2004 at Guantanamo. But those tribunals have been much criticized by human rights groups and U.S. allies for being rigged against the detainees. Boumediene v. Bush is one of two lead cases (the other is al Odah v. United States) that have been before the D.C. Circuit since early 2005 seeking the right of Guantanamo detainees to contest their detention in the District’s federal trial court. Though the petitions in the twin cases include the names of fewer than three dozen detainees, the court’s ruling in the case will almost certainly be applied to all those currently held at Guantanamo. The case itself has been buffeted by the shifts in the administration’s detention policy brought about by legislation from Congress and the high court’s decision in Hamdan. Two sets of oral arguments have already been held, and lawyers for the government and the detainees have filed five series of briefs. The most recent interruption has been the passage of the MCA, which included statutory language that says, “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by . . . an alien . . . who had been determined by the United States to have been properly detained as an enemy combatant.” In an exchange of briefs last month, lawyers for the Justice Department and detainees disputed whether the language effectively strips any statutory claim to habeas corpus and whether the Geneva Conventions trump the law and allow detainees to have their cases heard in federal court. But both sides agree that the key issue is whether the habeas language in the MCA is constitutional. The Constitution’s suspension clause says, “[T]he Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.” In the Boumediene case, the Justice Department is arguing that the MCA provides an “adequate substitute” to habeas protections, namely the Combatant Status Review Tribunals and the ability to appeal the determination of enemy-combatant status to the D.C. Circuit. But lawyers for Boumediene and others held at Guantanamo call the procedures a sham. They point out that the CSRTs have not been overseen by judges but by uniformed military officers, detainees have not been represented by lawyers but by military officers acting as “personal representatives,” and defendants have been tightly limited in which outside evidence and witnesses they could introduce. On appeal, they argue, the D.C. Circuit is limited to determining only whether the tribunals properly followed their own procedures, not whether the procedures themselves are adequate. Additionally, they argue that because the D.C. Circuit has no power to order a prisoner’s release � only to order another tribunal � the appellate review falls short of full habeas protections. “The big issue now is, if they’ve taken away the right to habeas corpus, have they given a reasonable substitute for us?” says Thomas Wilner, a lawyer at Shearman & Sterling who represents a number of detainees in the case. Wilner and the other lawyers in the case have also garnered support from an unlikely ally: former solicitor general and Whitewater independent counsel Kenneth Starr, who wrote to Senate Judiciary Committee Chairman Arlen Specter, R-Pa., this fall to express his concerns about the MCA’s attempt to strip habeas corpus from the detainees. “Although no one wants the War on Terror to be litigated in the courts,” Starr wrote in the letter, dated Sept. 24 (just before the MCA’s passage), “Congress should act cautiously to strike a balance between the need to detain enemy combatants during the present conflict and the need to honor the historic privilege of the writ of habeas corpus.” THE ENEMY WITHIN Like Boumediene and the other Guantanamo detainees, Ali Saleh Kahlah al-Marri has been declared an enemy combatant. But unlike Boumediene, who was taken into custody overseas, al-Marri was arrested by the FBI in Peoria, Ill., in 2001. The Justice Department brought a series of indictments against al-Marri, a Qatari who was beginning graduate studies at Bradley University, accusing him of credit-card fraud and lying to federal agents. But just weeks before al-Marri was scheduled to face criminal trial in 2003, President Bush declared him an enemy combatant and an al Qaeda “sleeper agent,” and al-Marri was transferred to military custody in South Carolina, where he was interrogated and held without access to a lawyer or International Red Cross monitors until the fall of 2004. Al-Marri’s lawyer, Jonathan Hafetz of the Brennan Center for Justice at New York University Law School, says the government chose to change al-Marri’s status after it became clear they had a poor criminal case. “If they have the evidence they say they have, why haven’t they tried him?” says Hafetz. The government contends that as the investigation of al-Marri continued, it became clear that he was intent on waging jihad � citing a call made from al-Marri’s cell phone to a suspected al Qaeda financier overseas and numerous files on al-Marri’s computer that included speeches by Osama bin Laden and Web sites where al-Marri allegedly researched hydrogen cyanide, a poisonous gas. “It became clear to us that [al-Marri] was, in fact, not just a run-of-the-mill felon but a very bad person linked up with al Qaeda,” says a Justice Department lawyer with knowledge of the detention cases. As in the Boumediene case before the D.C. Circuit, the Justice Department has told the Fourth Circuit to remand al-Marri’s habeas application for dismissal on the grounds that the MCA bars courts from hearing all habeas petitions from aliens designated as enemy combatants � not just those who were detained overseas. In many ways, al-Marri’s case resembles that of Jose Padilla, an American citizen whom the government detained in Chicago in 2002 and declared an enemy combatant. Later, after Padilla had been detained for nearly two years with no access to counsel, the government shifted course and asked that Padilla be transferred out of military custody and into the federal court system, drawing an angry rebuke from the usually supportive Fourth Circuit in the process. Like Boumediene, al-Marri’s case will test the constitutionality of the MCA’s habeas-stripping provisions under the suspension clause. But al-Marri’s lawyers are also arguing that denying him access to the courts violates the equal protection clause under the 14th Amendment. That’s because in the Hamdi v. Rumsfeld decision, the Supreme Court found that U.S. citizens cannot be detained as enemy combatants and, according to al-Marri’s argument, that protection should extend to legal aliens detained far from any battlefield. The government argues that a number of laws treat U.S. residents differently based on their immigration status. But the DOJ lawyer familiar with the cases says that although he’s confident in the government’s position in both Boumediene and al-Marri, the latter could prove more difficult for the government. “There is an additional legal argument in the al-Marri case,” he says. Al-Marri’s lawyers also have the advantage of a prominent ally: Former Attorney General Janet Reno, who has rarely criticized her successors, has signed off on an amicus brief with other former DOJ officials condemning the government’s handling of al-Marri. Oral arguments in al-Marri’s case likely won’t take place until early February, by which time the D.C. Circuit may have already ruled in Boumediene’s case. But by then the 110th Congress, with its newly elected Democratic majority, could well be applying new pressure to the administration’s habeas policies. Leahy, who will take the helm of the Senate Judiciary Committee in January, has referred to the election as an “intervention” and made no secret of his distaste for the MCA. “Congress had no justification for suspending the writ of habeas corpus � a core value in American law � in order to avoid judicial review that prevents government abuse,” said Leahy in a statement. Meanwhile, Dodd’s bill, which would restore habeas protections, will likely be reintroduced during the next session of Congress. This summer, during the debate over the MCA, an amendment sponsored by Specter granting detainees access to the courts fell just short in the Senate, failing with a vote of 51-48, though it garnered the votes of a handful of moderate GOP senators. Since then, the Senate’s composition has shifted further to the left, and Democrats will enjoy a 13-vote majority in the House. That still leaves the administration’s opponents well short of the two-thirds supermajority needed to override a veto, but lawyers for detainees are hoping that even without a change in the law, congressional hearings could put pressure on the administration to change course. “Guantanamo has only been allowed to exist because it’s been hidden from the public eye,” says Wilner, who represents some of the detainees with petitions before the D.C. Circuit. Of course, perceptions of Guantanamo are shaped by how one views the effort to stop terrorism, which the White House has cast as a war requiring the United States to adopt entirely new legal structures. “This basically comes down to: Their view of the world is, any process to hold these guys has to resemble a criminal trial in a [federal] court,” says a second DOJ official with knowledge of the habeas litigation. “Our view is, you have to look at what happens in armed conflict and what happens in international tribunals. . . . At the broadest level, this depends on what you think this is about.” Jason McLure is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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