New legislative plea to overturn Hamdan
on Jul 18, 2006 at 10:18 am
This is another report in continuing coverage of the aftermath of the Supreme Court’s ruling June 29 in Hamdan v. Rumsfeld on issues in the war on terrorism.
Attorney General Alberto R. Gonzales on Tuesday urged Congress to pass a new law to provide for only limited court review of the status of war-on-terrorism detainees at the U.S. military prison at Guantanamo Bay, Cuba. In testimony before the Senate Judiciary Committee, Gonzales appeared to be proposing a new version of the Detainee Treatment Act to undo — or at least to modify — parts of the Supreme Court’s Hamdan decision. The text of Gonzales’ opening statement to the Committee can be found here.
The Detainee Treatment Act of 2005 sought to take away from U.S. District Courts any authority to hear challenges to war crimes “military commissions” at Guantanamo, or challenges to detention there of individuals not charged with any crime. In place of the wide-ranging review that would be available in District Court, the Act provided that the D.C. Circuit would have sole authority to hear any Guantanamo case. Controversy arose over whether this applied to already-pending cases, in the Supreme Court and in lower courts, brought by detainees.
In its Hamdan decision, the Court ruled that the 2005 Act had not taken away the Court’s authority to decide that case, involving the legality of the war crimes commissions. The commissions as presently set up were found to be illegal. The decision, however, left somewhat unclear whether the Court intended to keep alive the habeas cases previously filed by other detainees, not charged with any crimes. (The D.C. Circuit may shortly decide that exact issue in pending cases there.)
The Attorney General, in his Senate testimony, praised the 2005 Act as having “struck an appropriate balance.” He then added: “I ask Congress to confirm that it intended these provisions for limited and appropriate judicial review to apply to all of the existing Guantanamo detainee lawsuits.” That apparently would write into law, clearly, the Bush Administration view that the 2005 Act was intended to be fully retroactive. Thus, the Hamdan decision presumably would be overridden by such a new law, and the other pending cases would be wiped out, except for D.C. Circuit review.
Gonzales also discussed on Tuesday other issues raised by the Hamdan decision — including the future of the “military commissions” and the application of the Geneva Convention to Guantanamo detainees.
