Gitmo Lawyers to Stay in Business


A major decision on Gitmo detainees today:

Guantanamo Bay detainees may not challenge their detention in U.S. courts, a federal appeals court said Tuesday in a ruling upholding a key provision of a law at the center of President Bush's anti-terrorism plan.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that civilian courts no longer have the authority to consider whether the military is illegally holding foreigners.Barring detainees from the U.S. court system was a key provision in the Military Commissions Act, which Bush pushed through Congress last year to set up a system to prosecute terrorism suspects.

Reason has been all over this evolving debate; see Jacob Sullum on Jose Padilla back in 2002 all the way to Radley Balko last month. And check out our 2001 roundtable on how 9/11 would change settled civil liberties protections, including experts from Clint Bolick and Glenn Reynolds to Nadine Strossen and Nat Hentoff.

NEXT: Chodorov, Back in Step

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  1. Bob Menendez signed on as a co-sponsor of Chris Dodd’s bill to undo the abuses of the Military Commission Act, including restoring habeus corpus, forbidding “Alternate Interrogation Techniques” aka torture, forbidding the use of evidence gathered through torture in the military tribunals, and eliminating the President’s authority to unilaterally designate any person an “illegal enemy combatant.”

    It’s called the Constitution Restoration Act, and it should probably be linked to when discussing the Military Commissions Act or Gitmo.

  2. It’s called the Constitution Restoration Act

    Shouldn’t Congress be subject to truth in labeling laws?

  3. Shouldn’t Congress be subject to truth in labeling laws?

    Silly Bill. Congress subject to their own laws!? That would be outrageous.

  4. betcha the SCOTUS issued a sigh of relief when Bush signed the legislation forbidding terror detainees access to civilian US courts

    “whew, now we don’t have to be the one to point out that Bush is an epic scofflaw”

  5. Well, this was the obvious decision. I mean, haven’t you ever read that little clause near the end of the constitution? The one that states “Neither this Constitution nor any amendments hereto shall apply if the United States is at war”?

    Wait… don’t tell me it’s not there…. silly. It’s obvious that our President has told us this clause is there.

  6. It’s called the Constitution Restoration Act, and it should probably be linked to when discussing the Military Commissions Act or Gitmo.

    Does it have 2/3 majority support in both houses? It’s going to need it.

  7. Amendment V: “No person shall be held to answer…”

    Notice that it doesn’t say “No citizen,” or “no person within the borders of the United States.”

    Amendment VI: “In all criminal prosecutions, the accused shall enjoy…”

    Notice that it doesn’t say, “unless the accused is not a citizen, or tried outside the borders of the United States…”

    If they constrain anything, the Fifth Amendment and Sixth Amendments constrain our government — not just within our borders but anywhere it operates. Exceptions appear to be made for wartime, members of the military and militia, marque and reprisal situations, and piracy.

    But the gulags are not allowed, it seems to me.

  8. Merritt,
    the constitutional argument is not that they’re not citizens. (some people in gitmo are). The argument is jurisdictional under article III section 2 (laundry list of types of cases the federal courts have power over). Take a gander and see if a a citizen captured in a war overseas falls into any of those categories. I’m not sure that they do. Furthermore according to the rules of war and previous supreme court decisions its ok to hold anyone captured on the battlefield until the war is over. (otherwise they would just go back and fight). Furthermore there’s Johnson v. Eisentrager SCOTUS case during WWII where a group of people caught off the battlefield (spies who turned themselves in on American soil) including an American citizen (I believe) were denied habeas corpus and were quickly put to death. As Scalia said “not our finest hour” and probably not the best law. My point is that the people arguing for indefinite detentions without habeas have some strong textual and historical arguments to back them up.

  9. Wait a minute… there are LAWYERS involved in Gitmo? I thought the only lawyers involved with that whole debacle were being used to DEFEND it.

  10. Andronoid-The way I read Amendment III, foreign citizens must be tried in the federal court system, although Congress can set the place of trial. It does not say anything about “enemy combatants.”

  11. andronoid,

    People captured on the battlefield can be held AS POWs – with all the protections that status demands under American and international law – indefinitely, until the war they were fighting in is over.

    They cannot, however, be treated as criminals of any sort without “a regularly constituted tribunal.” Under our law, that means they have to be tried in a court.

  12. crimethink,

    “Does it have 2/3 majority support in both houses? It’s going to need it.”

    Probably not. You know what to do in Nov. 08.

  13. Tangentially related:

    I read an article in Time magazine this week about the DEA luring a potential GWOT ally to NY and arresting him for cultivating heroin poppys in Afghanistan.

    How does the DEA have jurisdiction to arrest a man for something he did not on US soil?

  14. Attention Comrades!
    Please visit to learn about our creative protest of the Military Commissions Act.
    Or watch our doubleplusgood video at
    Links to either URL are most helpful.

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