Terror Law: Court Challenges Likely

Actor Ted Danson, left, and his wife, actress Mary Steenburgen, arrive for Artists for a New South Africa's 20th anniversary celebration "Jabulani" in Los Angeles, Tuesday, Sept. 22, 2009. AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.



Without overwhelming fanfare, U.S. Attorney General Alberto Gonzales yesterday "hosted" what the White House called an "online interactive forum" to answer questions about the landmark terror detainee legislation his friend and boss, President George W. Bush, signed into law earlier this week. The attorney general, one of the architects of the administration's terror law policies, prefaced the Internet session by telling his fellow online chatters that the new law will "protect the rights of accused terrorists and the safety of the American people."

The transcript of the event reads like the pep rally it was intended to be (and if the attorney general actually typed out his responses I'll be a monkey's uncle). But one theme struck me as particularly interesting. Over and over again, Gonzales was forced to explain that the most onerous provision contained in the Military Commissions Act of 2006 does not on its face apply to U.S. citizens. And, indeed, this is true. The suspension of the writ of habeas corpus — the ability of an imprisoned person to challenge his or her confinement in court — applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad.

So while the new law dramatically reduces the legal rights and remedies of resident aliens, it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted. That's the good news. The bad news is that the Bush administration, on at least two occasions before the new law was passed, tried to suspend the writ of habeas corpus for U.S. citizens. The men, Jose Padilla and Yaser Esam Hamdi, both were designated as "enemy combatants" by the White House and held for years in military custody without charges or due process before the U.S. Supreme Court essentially bailed them out.

So while there is nothing in the Military Commissions Act that makes it easier for the White House to point an accusatory finger at a U.S. citizen, label that person a terrorist or an "enemy combatant" and then suspend his or her rights, there is nothing in that act that makes it harder, either. Perhaps that is what helps explain the level of curiosity, if not downright distrust, implicit in some of the e-questions fired at the attorney general yesterday. "Brad from San Jose," for example, started his question to Gonzales this way: "I am concerned about the potential for abuse of the new rules. What legal recourse does an innocent suspect have under the new legislation?" Gonzales wisely did not answer the question.

The habeas component of the Military Commissions Act is likely to generate the most legal scrutiny from the federal courts. The question will be: Can the executive branch prohibit resident aliens (and others) from seeking access to the courts after they are designated as "enemy combatants" — even if they are apprehended here at home? The White House asked for this prohibition, and Congress granted it, because the executive and legislative branches have been stung by significant legal losses that have come about as a result of habeas petitions and, because of those losses, the federal courts currently are clogged with other habeas petitions, many of which similarly would succeed. Soon, the federal courts will decide whether the other two branches went too far in trying to freeze the judiciary out of the process.

The other controversial part of the act, as several of the attorney general's online pen pals noted, was its explicit endorsement of "alternate" interrogations methods. This gives the White House the legislative go-ahead to continue to use such measures against terror suspects all over the world. It also gives the executive branch a measure of legal and political and perhaps even diplomatic "cover" for this conduct, and it allows the White House essentially to judge for itself whether it is complying with the anti-torture provisions of Common Article 3 of the Geneva Conventions. That's the provision, remember, that the U.S. Supreme Court relied upon this past summer in striking down the administration's plan to try the terror detainees at Guantanamo Bay.

The irony of all of us, of course, is that the least controversial part of the commissions act is … wait for it … the part that deals with military commissions set up to finally process and prosecute the hundreds of detainees now being held at Gitmo. In fact, if you are inclined to bet upon the progress of this new law, bet that the Supreme Court embraces the new rules governing the tribunal proceedings at Gitmo — those rules being a significant improvement on what came before — but is skeptical of, with gusts up to hostile to the other moving parts of the Military Commissions Act. This means that this grand legislation "solution" we've been hearing about for the past few months isn't guaranteed to do anything but tie up the federal courts for a few more years — a point that didn't happen to come up during the attorney general's online schmooze-fest.

By Andrew Cohen
  • Lloyd Vries

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