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The Times Lies About Enemy Combatant Law



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The Times is flat dishonest in its campaign against subjecting enemy combatants to military proceedings, which the Grey Lady passes off as a page-one news article.  Correspondent Tim Golden writes:

Under a law passed by Congress and signed by President Bush in October, this double-wide trailer may be as close to a courtroom as most Guantánamo prisoners ever get. The law prohibits them from challenging their detention or treatment by writs of habeas corpus in the federal courts. Instead, they may only petition a single federal appeals court to examine whether the review boards followed the military’s own procedures in reviewing their status as “enemy combatants.”  [Emphasis added.]

It’s hard to quantify how inaccurate (and, one is compelled to conclude, disingenuous) this is.

First, the law that governs these detainees is not the Military Commissions Act that President Bush signed in October.  As that act makes clear, the review of Combatant Status Review Tribunals is actually governed by a law the president signed a year earlier, the Detainee Treatment Act of 2005 — specifically, Section 1005 of that law.

Second, by definition, a federal appeals court is not only a federal court; it is also a higher federal court than the single district court to which U.S. citizens must petition for a writ of habeas corpus.  Leaving aside, moreover, that it is unprecedented in the history of the United States for enemy prisoners to have access to our courts during wartime to challenge their status as enemy prisoners, the al Qaeda detainees at issue here have actually been given access to the United States Court of Appeals for the D.C. Circuit, which, aside from being superior to all district courts, is often regarded as second only to the Supreme Court in our judicial hierarchy.

Third, it is simply not true that the D.C. Circuit is limited to examining whether the military’s combatant status review tribunals “followed the military’s own procedures in reviewing their status as ‘enemy combatants.’”  To the contrary, in addition to determining whether the military followed its own procedures, Section 1005(e)(2) expressly calls on the court to consider “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” (Emphasis added.)

To be clear, I believe the alleged combatants — aliens with no U.S. immigration status held by the military outside the jurisdiction of the federal courts during wartime — have no rights under the Constitution, and have rights under federal statutes only to the limited, if any, extent Congress has expressly made those statutes applicable outside our borders.  Whether I am right or wrong about that, however, the detainees are still fully entitled to claim that the military’s standards and procedures are inconsistent with federal law.  They are not, as the Times asserts, limited to challenging whether the military’s standards and procedures have been followed.

Fourth, the essence of habeas corpus is the right to claim that one’s detention flouts fundamental rights under the Constitution and laws of the United States.  While the detainees access to the D.C. Circuit is not called “habeas corpus,” the Detainee Treatment Act precisely allows them to claim that their detention is in violation of their fundamental rights under U.S. law.  Thus, although aliens held outside the U.S. are not constitutionally entitled to habeas review in the federal courts, Congress has substantially given it to them anyway.

Other than that, the Times really did a bang up job on this one.



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