The Corner

Re: Clarity Please

From someone familiar with these issues:

I do not wish to go on the record but would offer the following technical comment on your question about habeas corpus and the military tribunal bill.

The proposal which passed the House H.R. 6054 categorically has nothing to do with Americans. The Detainee Treatment Act which passed last year is already the law. This legislation was necessary because the United States Supreme Court in Hamdan interpreted the habeas corpus statute (28 USC 2241) as not applying to those detainees at GITMO who had already filed habeas petitions prior to the enactment of the DTA. The purpose of the habeas provisions in the military tribunal bill is to treat all detainees at GITMO similarly. Since the U.S. Supreme Court in Hamdan was interpreting the habeas statute this was easily addressed by Congressional legislation.

The provision itself provides that those GITMO detainees who have had their Combatant Status Review Tribunal determination (required for every detainee) or any final decision by a commission would automatically go to the United States Court of Appeals for the District of Columbia Circuit. I might mention that this is more liberal than the language in DTA passed last year which requires review only of sentences in excess of 10 years.

This has nothing to do with American citizens or anyone who is voluntarily within the United States. In fact those who have been found to be Americans (e.g. Hamdi and Padilla) cannot even be held at GITMO (see John Yoo’s new book where he describes in detail how this policy was arrived at).

The language in the Senate which is being pushed by Senator Kyl, Graham, and others I believe is identical to the House language …[snip] Nonetheless, it is not substantively different with respect to the issue of Americans from what I have described.

Also, I would note that the subject at hand relates the question of statutory habeas relief and has nothing to do with the Great Writ. The United States Supreme Court has recognized that the U.S. Congress has clear authority to amend statutory habeas corpus procedures.

I hope that this is helpful.

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