LAWMAKERS AND LAWYERS CHALLENGE BUSH ADMINISTRATION MILITARY COMMISSIONS

By William Fisher

In the face of multiple legal and legislative challenges, President George W. Bush this week issued an executive order to allow cases against prisoners at Guantanamo Bay, Cuba, to move forward to trials by military tribunals.

The challenges are to the constitutionality of the Military Commissions Act of 2006 (MCA), which Bush signed into law last October. The first three cases to be tried under the law involve an Australian, a Yemeni, and a Canadian, all held at Guantanamo.

The Australian, David Hicks, is expected to be formally charged by the military by the end of next week, along with Omar Khadr, a Canadian accused of killing a U.S. Army Special Forces soldier during a firefight in Afghanistan, and Salim Ahmed Hamdan, a Yemeni accused of supporting al-Qaida operatives.

Authorities drafted charges — including murder, conspiracy and providing material support for terrorism — against the three on Feb. 2. Once formal charges are filed, a timetable requires preliminary hearings within 30 days and the start of a jury trial within 120 days at Guantanamo, where nearly 400 men are still held on suspicion of links to al-Qaida or the Taliban.

On the legislative front, Senator Chris Dodd, a Connecticut Democrat and a candidate for the 2008 presidential nomination, this week introduced legislation that would make substantial changes to the MCA. He was joined by fellow Democrats Senator Patrick Leahy of Vermont, chairman of the powerful Judiciary Committee, Senator Russ Feingold of Wisconsin, and Senator Robert Menendez of New Jersey.

The Dodd legislation restores Habeas Corpus protections to detainees, narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants, bars information gained through coercion from being introduced as evidence in trials, empowers military judges to exclude hearsay evidence they deem to be unreliable, authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions, limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight, and provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions.

The principle of habeas corpus, originally contained in the Magna Carta, has been one of the cornerstones of U.S. law since the nation’s founding. It gives a detainee the right to go to court to challenge the authority of the prison or jail warden to continue to hold him or her.

Similar legislation was introduced earlier by Leahy and Republican Senator Arlen Specter of Pennsylvania. Leahy said the bill would “restore the habeas corpus protections to millions of legal residents.”

Both bills are strongly supported by civil and human rights advocacy groups. The American Civil Liberties Union (ACLU) recently sent an email to its 40,000- person email list voicing support for Sen. Dodd’s bill and asking its supporters to do the same. The bill is also supported by Amnesty International, Human Rights Watch, Human Rights First, the Center for Victims of Torture, Open Society Institute, and Torture Abolition and Survivors Support Coalition International.

On the legal side, lawyers representing detainees at Guantanamo Bay have petitioned the U.S. Court of Appeals for the District of Columbia Circuit to declare the suspension of habeas rights unconstitutional. In an amicus – friend of the court — brief in the case, seven retired federal judges urged the appeals court to rule that parts of the MCA violate the Constitution.

Multiple challenges to the MCA were filed even before President Bush signed the act into law. For example, the case of Ali al-Marri challenges the authority the law gives the President to declare a legal U.S. resident as an ‘enemy combatant’ and jail him forever without pressing charges.

Al-Marri’s lawyers warn that if the government prevails, it would expose more than twenty million non-citizens residing in the U.S. to the risk of indefinite detention on the basis of unfounded rumors, mistaken identity and lies.

Other suits were also filed before the MCA officially became law, with defense lawyers asking federal judges to strike down key parts of the measure as unconstitutional.

Two suits were filed last October in U.S. District Court challenging whether the MCA retroactively strips the courts of jurisdiction to hear detainee cases, and if so, contending that this would that amount to an unconstitutional suspension of the writ of Habeas Corpus.

The MCA bars judges from hearing detainee lawsuits. Instead, it sets up a much more limited appeals process for detainees who are seeking to challenge their designation as an enemy combatant or to challenge a war crimes conviction by a military commission.

One suit was filed on behalf of a detainee who is expected to be among the first to be tried under the new law, Majid Khan, one of the 14 so-called high-value Al Qaeda suspects recently transferred to Guantanamo from secret Central Intelligence Agency prisons. The other was filed on behalf of 25 detainees being held among some 500 men at Bagram Air Force Base in Afghanistan.

The Khan suit says that despite being held in secret CIA detention for 3-1/2 years, Khan, whose family lives in Baltimore, has never had a hearing before a neutral judge or military panel to determine the legality of his detention. It claims that as a CIA prisoner, Khan was subjected to torture and cruel, inhuman, or degrading treatment, and coerced into making false and unreliable statements.

These suits join more than 400 other detainee cases filed on behalf of prisoners at Guantánamo currently pending before U.S. district or appeals court judges in Washington.

Legal experts expect many of these cases to eventually be heard by the Supreme Court.

All the Guantánamo suits had been put on hold pending the high court’s ruling in the Hamdan case last June. In that case, the court struck down the Bush administration’s military commission process as illegal and ruled that a December 2005 law, the Detainee Treatment Act, had not retroactively stripped the Supreme Court of authority to decide the Hamdan case.

But, while preserving its own jurisdiction in the Hamdan case, the high court did not make clear whether other courts retained jurisdiction to hear and decide existing detainee cases.

Bush administration officials contend that the suits are a major distraction in the war on terror. They argue that Al Qaeda suspects are no more entitled to litigate legal claims against the U.S. in American courts than were German POWs in World War II.

These cases are all wending their way through the U.S. courts.

Meanwhile, lawyers for the three men expected to face Military Commission trials are claiming that tight deadlines, rules allowing hearsay evidence, and limited access to Guantanamo are hampering their efforts to defend their clients.

The government has proposed limiting contact between defense lawyers and detainees because detainees’ communications, such as news of world events, could incite the prisoners to violence.

The defense attorneys say the new tribunal rules have put them at a disadvantage even before the trials begin. They claim that one of their greatest obstacles is their inability to speak with clients unless they travel to Guantanamo.

Marine Lt. Col. Colby Vokey, an attorney for 20-year-old Khadr, said his client refused to leave his cell last week, and they were unable to meet during his visit to Guantanamo. He said Khadr is not told when he visits and likely chose not to move because it is one of his only ways of resisting his jailers.

"Everything about Guantanamo is an obstruction. It’s practically impossible to represent somebody down there," said Vokey, adding that he has not been able to show Khadr any evidence because guards have refused to let him bring it into their meetings.

The new rules would also tighten censorship of mail from attorneys and give the military more control over what lawyers can discuss with their clients. The number of face-to-face meetings between defense attorneys and detainees would be limited to a total of four. There are now no restrictions on the number of times they can meet.

The government says current rules have allowed detainees to receive books or articles about terrorist attacks in Iraq, London and Israel, as well as details of the prisoner abuse investigation at Iraq’s Abu Ghraib prison.

Numerous human rights organizations have weighed in on this issue. Mary Shaw of Amnesty International USA, probably sums it up best.

“With passage of the Military Commissions Act,” she says, “human rights violations perpetrated by the Bush administration in the ‘war on terror’ have in effect been given the congressional stamp of approval. This raises serious questions about the U.S. government’s commitment to due process and the rule of law.”

She adds, “The ‘war on terror’ must not be used as an excuse to deny the basic human rights of any person. Amnesty International will continue to campaign for U.S. ‘war on terror’ detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.”

President Bush may be racing the clock to get these Guantanamo trials underway before congress or the courts cut him off at the knees. But, at this point, it’s unclear whether he’s winning or losing.