Military Commissions Act Headed For Supremes

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Military Commissions Act Headed For Supremes
Sunday, 25 February 2007, 10:29 pm
Opinion: William Fisher
Military Commissions Act Headed For Supremes

By William Fisher

Following an appeals court's divided decision upholding the constitutionality of the Military Commissions Act, opponents of the measure are racing the clock to file an appeal to the US Supreme Court and have it heard during the court's current term.

A spokesperson for the Center for Constitutional Rights, the New York-based legal advocacy group that brought the original suit, told IPS it expected the appeal to be filed within the next two weeks and heard in the spring.

Earlier this week, a federal appeals court ruled 2-1 that detainees in US custody at Guantanamo Bay, Cuba, have no right to challenge their imprisonment in federal courts. The decision upheld the core of the Military Commissions Act (MCA), which was passed in a close vote last year by a Republican-controlled congress. The law stripped federal civilian courts of jurisdiction to hear habeas corpus petitions, giving President George W. Bush the right to indefinitely hold detainees outside the US without charges. The ruling affects some 400 prisoners still held at Guantanamo Bay, but could also establish a precedent affecting prisoners held by the US in Afghanistan and in CIA "secret prisons" in other countries.

The Court's majority decision found that overruling the MCA would "defy the will of congress," and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.

Two other appeals courts as well as the US Supreme Court have previously upheld Guantanamo detainees' rights to contest their incarceration in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. But in its Hamdan decision, the high court also said that Congress could take further action on the issue. That action resulted in the Military Commissions Act, setting up special military trials for the detainees and stripping civilian courts of jurisdiction.

In her appeals court dissent, Judge Judith W. Rogers wrote that habeas corpus may indeed apply to foreign nationals outside the US and that the lawmakers' action had "exceeded the powers of Congress." The US Constitution stipulates that habeas may be suspended only "when in cases of rebellion or invasion the public safety may require it." This is likely to be at the heart of the appeal to the Supreme Court.

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