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The D.C. Circuit U.S. Court of Appeals ruled Tuesday that Guantanamo Bay detainees do not have a right to petition for habeas corpus, letting stand a key piece of the Military Commissions Act passed by Congress late last year. The 2-1 decision was sharply critical of the plaintiffs, who had argued that the language of the act forbidding U.S. courts to hear challenges to the detention of aliens detained as enemy combatants was ambiguous and did not necessarily apply to detainees whose cases were already pending in court. “The arguments are creative but not cogent,” wrote Judge A. Raymond Randolph. “Everyone who has followed the interaction between Congress and the Supreme Court knows full well that one of the primary purposes of the MCA was to overrule Hamdan,” wrote Randolph, referring to the 2006 decision, Hamdan v. Rumsfeld, which ruled that the military commissions set up by the Bush administration to try military detainees violate both international and U.S. military law. “To accept them would be to defy the will of Congress,” Randolph added, later calling the plaintiffs’ argument “nonsense.” Randolph was joined in his decision by Judge David Sentelle. After dispensing with the detainees’ argument that the law was ambiguous, the court went on to assert the act’s constitutionality. The Constitution’s suspension clause, which says that the writ of habeas corpus can only be suspended for reasons of public safety during “rebellion or invasion,” does not apply to areas outside U.S. sovereignty. And it is Cuba, the court asserted, not the United States, that has sovereignty over Guantanamo Bay. In her dissent, Judge Judith Rogers strongly disagreed, writing that the majority opinion “fundamentally misconstrues” the nature of the suspension clause. “Far from conferring an individual right that might pertain only to persons substantially connected to the United States,” she wrote, “the Suspension Clause is a limitation on the powers of Congress.” The decision makes it likely that the issue of habeas rights for Guantanamo Bay detainees will end up in the U.S. Supreme Court. “The Supreme Court has given detainees cert three times � each time one of these cases has gone to them,” says Joshua Colangelo-Bryan, an associate at Dorsey & Whitney, who represents two Bahrainis still being detained in Guantanamo Bay. “These are very fundamental questions.” T.R. Goldman is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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