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October 20, 2006


By Karen DeYoung

Moving quickly to implement the bill signed by President Bush this
week that authorizes military trials of enemy combatants, the
administration has formally notified the U.S. District Court here that
it no longer has jurisdiction to consider hundreds of habeas corpus
petitions filed by inmates at the Guantanamo Bay prison in Cuba.

In a notice dated Wednesday, the Justice Department listed 196 pending
habeas cases, some of which cover groups of detainees. The new
Military Commissions Act (MCA), it said, provides that "no court,
justice, or judge" can consider those petitions or other actions
related to treatment or imprisonment filed by anyone designated as an
enemy combatant, now or in the future.

Beyond those already imprisoned at Guantanamo Bay or elsewhere, the
law applies to all non-U.S. citizens, including permanent U.S.

The new law already has been challenged as unconstitutional by lawyers
representing the petitioners. The issue of detainee rights is likely
to reach the Supreme Court for a third time.

Habeas corpus, a Latin term meaning "you have the body," is one of the
oldest principles of English and American law. It requires the
government to show a legal basis for holding a prisoner. A series of
unresolved federal court cases brought against the administration over
the last several years by lawyers representing the detainees had left
the question in limbo.

Two years ago, in Rasul v. Bush, which gave Guantanamo detainees the
right to challenge their detention before a U.S. court, and in this
year's Hamdan v. Rumsfeld , the Supreme Court appeared to settle the
issue in favor of the detainees. But the new legislation approved by
Congress last month, which gives Bush the authority to try detainees
before military commissions, included a provision removing judicial
review for all habeas claims.

Immediately after Bush signed the act into law Tuesday, the Justice
Department sent a letter to the U.S. Court of Appeals for the District
of Columbia Circuit asserting the new authorities and informing the
court that it no longer had jurisdiction over a combined habeas case
that had been under consideration since 2004. The U.S. District Court
cases, which had been stayed pending the appeals court decision, were
similarly invalid, the administration informed that court on

A number of legal scholars and members of Congress, including Senate
Judiciary Committee Chairman Arlen Specter (R-Pa.), have said that the
habeas provision of the new law violates a clause of the Constitution
that says the right to challenge detention "shall not be suspended"
except in cases of "rebellion or invasion." Historically, the
Constitution has been interpreted to apply equally to citizens and
noncitizens under U.S. jurisdiction.

The administration's persistence on the issue "demonstrates how
difficult it is for the courts to enforce [the clause] in the face of
a resolute executive branch that is bound and determined to resist
it," said Joseph Margulies, a Northwestern University law professor
involved in the detainee cases.

On Tuesday, the appeals court granted a petition by lawyers for the
detainees to argue against the new law. Vincent Warren, the executive
director of the Center for Constitutional Rights, which represents
many of the detainees, said yesterday that he expected the
administration to file a motion for dismissal of all the cases before
the defense challenge is heard.

"We and other habeas counsel are going to vigorously oppose dismissal
of these cases," Warren said. "We are going to challenge that law as
violating the Constitution on several grounds." Whichever side loses
in the upcoming court battles, he said, will then appeal to the
Supreme Court.

Staff researcher Julie Tate contributed to this report.

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