The New Detainee Law Does Not Deny Habeas Corpus
Fear not,
New York Times, al Qaeda’s lawfare rights are still intact.
By Andrew C. McCarthy
There are innumerable positives in the Military Commissions Act of 2006, the new law on the treatment of enemy combatants that President Bush will soon sign. Among the best is Congress’s refusal to grant habeas-corpus rights to alien terrorists. After all, the terrorists already have them.
AL QAEDA TERRORISTS DO GET TO CHALLENGE THEIR DETENTION
But let’s ignore that the critics are wrong about the entitlement of al Qaeda terrorists to constitutional or treaty-based rights to habeas. There is an even more gaping hole in their attack on the new law.
Congress has already given al Qaeda detainees the very rights the critics claim have been denied.
Last December, Congress enacted the Detainee Treatment Act (DTA). It requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.
This was a revolutionary innovation. As we’ve seen,
Rasul did not (and could not) require Congress to allow enemy combatants access to the federal courts. Congress could lawfully have responded to
Rasul by amending the habeas statute to make clear that al Qaeda terrorists have no more right to petition our courts in wartime than any other enemy prisoners have had in the preceding two-plus centuries. Instead, Congress responded by giving the enemy what are in every meaningful way habeas rights.
For the enemy combatants, habeas corpus, to borrow the
Times’s articulation, is simply a “
right to challenge their imprisonment” in federal court. So what does the DTA do? It allows a detainee who has been found by the military to be properly held as an enemy combatant to challenge his incarceration in federal court. Under DTA section 1005(e)(2), that court (the D.C. Circuit) is expressly empowered to determine whether the detention is in violation of the Constitution and laws of the United States — which, of course, include treaties to whatever extent they may create individual rights.
Thus, the DTA has already granted to our enemies the very remedy critics claim is now being denied. Moreover, the new Military Commissions Act (MCA) does not repeal the DTA. It strengthens it. That is, because the Supreme Court’s
Hamdan decision created confusion about whether the DTA was meant to apply retroactively to the 400-plus habeas petitions that were already filed, the MCA clarifies that all detainees who wish to challenge their imprisonment must follow the DTA procedure for doing so. But, importantly, the right to challenge imprisonment is itself reaffirmed.
That the DTA does not refer to this right as
habeas corpus is irrelevant. It’s not the name of the remedy that counts; it’s the substance. The DTA gives the detainee exactly what habeas provides. Therefore, it would have been pointless for the MCA to add yet another round of habeas.
To understand why this is so, one need only consider the legal restrictions on imprisoned American citizens. If they wish to claim their detention is baseless, they are not permitted to file habeas petitions which simply re-allege claims they have already made (or at least had a fair opportunity to make) during prior legal proceedings (such as the appeal of a criminal conviction, or a previously filed habeas petition). Repetitious claims are instantly disregarded by courts as a form of procedural default known as “abuse of the writ” of habeas corpus.
Given that habeas would not be available to
an American for the purpose of rehashing a previously unsuccessful challenge to his imprisonment, why on earth should we extend habeas to
an alien al Qaeda terrorist so he can re-litigate under the MCA an argument against his detention that has already been heard and rejected by a federal appeals court under the DTA?
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