New test of the habeas writ
on Oct 3, 2006 at 1:22 pm
This is another in a continuing series of reports on the impact that Supreme Court decisions have on later controversies. The Court’s precedent discussed in this post is Rasul v. Bush, the 2004 decision permitting war-on-terrorism suspects at Guantanamo Bay, Cuba, to file habeas challenges to their detention.
In the first direct court test of the new federal legislation that withdraws habeas rights from detainees held in U.S. military custody — a lawsuit filed even before President Bush signs that measure into law, lawyers for 25 individuals now being held at an American air base in Afghanistan have asked a federal judge to order their prompt release. The new case, filed last Friday but docketed Monday, is Mohammed, et al., v. Rumsfeld (District Court docket 06-1680). The text can be found here.
The lawsuit, filed by the Center for Constitutional Rights, a progressive advocacy group based in New York City that has been aiding in the legal defense of war-on-terrorism detainees, argues that the prisoners at Bagram Air Base in Afghanistan have a right to bring habeas challenges to their original capture and their prolonged detention. They rely upon the Supreme Court’s 2004 decision extending habeas-filing rights to Guantanamo detainees (Rasul v. Bush). Like the U.S. Naval base at Guantanamo Bay, the lawsuit asserts, Bagram Air Base is “subject to the complete jurisdiction and control of the United States military,” and U.S. constitutional and statutory law applies there, making the air base “answerable to the federal judiciary.”
Not one of the 25, the lawsuit contends, has been ruled to be an “enemy combatant,” none has committed any hostilities toward the U.S. or is any part of Al Qaeda or the Taliban, none has been charged with any crime, and they are not “properly subject” to President Bush’s Nov. 13, 2001, order authorizing indefinite detention of war-on-terrorism suspects.
The complaint makes no direct reference to the newly enacted Military Commission Act of 2006, which abolishes habeas rights for detainees captured by the U.S. since the terrorist attacks of Sept. 11, 2001. President Bush is expected to sign that bill into law either this week or next.
But the complaint does argue that, to the extent the government contends that these detainees may not challenge the legality of their detention through habeas corpus, those actions constiute “an unlawful suspension of the writ of habeas corpus” under Article I of the Constitution.
That is the last of six claims for relief. The others assert:
** a violation of the detainees’ rights under habeas not to be detained “with no means to test the legal and factual basis” for their captivity.
** a violation of the due process clause of the Fifth Amendment for their original detention.
** a violation of the due process clause for their continued and “indefinite” detention.
** a violation of the detainees’ rights under customary international law, a global treaty on civil and political rights, and portions of the American Declaration on the Rights and Duties of Man.
** and, a violation of U.S. military regulations on the treatment of military prisoners of war, and of the various Geneva Conventions on prisoners’ rights.
The lawsuit was filed on behalf of the 25 detainees by relatives or others acting as “next friends.”
The case has been assigned to U.S. District Judge Richard J. Leon. He is one of the federal judges in Washington, D.C., who earlier ruled on habeas claims of Guantanamo detainees. Judge Leon concluded that the detainees, while allowed to file for habeas, could claim no legal remedies for their detention. That ruling, and a contradictory ruling by another federal judge, is now on review in the D.C. Circuit Court in two packets of cases.
