Detainee Suits Caught Between Congress, High Court
MADELEINE BRAND, host:
The Supreme Court's decision in the Guantanamo case last week had to major parts. One said President Bush's system of military tribunals is illegal. The other: the majority said the Supreme Court had the right to decide the case. The dissenters on the Court argued that a law known as the Detainee Treatment Act took away the Court's authority to rule on the issue.
NPR's Ari Shapiro reports on what the Detainee Treatment Act says and the effect the Supreme Court's ruling will have on it.
ARI SHAPIRO reporting:
The Detainee Treatment Act is a court-stripping bill. Wait, don't turn off your radio. That just means Congress told detainees at Guantanamo Bay they could not file complaints in civilian court.
Bobby Chesney is a professor at Wake Forest Law School.
Professor BOBBY CHESNEY (National Security Law, Wake Forest University): The million dollar issue is, what do we do with the dozens upon dozens of petitions representing, you know, the bulk of the detainees who are currently at Guantanamo. What do we do with all them? They were already in play by the time the Act was enacted.
SHAPIRO: The detainee treatment act clearly barred future lawsuits, but cases involving more than three hundred detainees were already in court when Congress passed the Act. And there was no consensus on what should happen to them. The Justice Department said throw the cases out. And human rights lawyers said let them run their course. One of those lawsuits was Hamdan v. Rumsfeld. When the Supreme Court decided it last week, the justices said the Detainee Treatment Act did not apply to Hamdan retroactively.
Professor MARY ELLEN O'CONNELL (Notre Dame): Now, the way I read Hamdan is that that would apply to all the pending cases.
SHAPIRO: Mary Ellen O'Connell is law professor at Notre Dame. If the Hamdan ruling does apply across the board, then the hundreds of cases that have been on hold may be soon be in play once again.
Professor O'Connell: There are individual who have argued that they have been tortured, that they have had basic rights denied to them, medical treatment, access to religious objects and do forth. There is a good deal in the majority opinion in Hamdan that should give them encouragement to go forward with those cases.
SHAPIRO: And if those cases are successful, they could have a profound impact on the prison at Guantanamo Bay, says Beth Hilman. She is a military law expert at Rutgers.
Professor BETH HILMAN (Rutgers University): I mean it could close down the base effectively. It could end the legal imprisonment of all of these detainees there.
SHAPIRO: If Guantanamo closes, the government would like it to happen on it's terms, not those imposed by a judge. So it seems likely the government will argue that the Supreme Court's Hamdan ruling should only apply to Mr. Hamdan and not the others. The DC circuit appeals court will make this decision. Back in March the court heard arguments about whether the cases should proceed, but they haven't ruled on it yet. There's a chance that congress will pull the rug out from under this whole debate before the court can act. Bobby Chesney of Wake Forest Law School.
Professor CHESNEY: And so one of the things we're going to look for in the Congressional efforts to respond to the Hamdan case is whether or not there will be an attempt in Congress to cut off that litigation, which looks like, in light of Hamdan, it will go forward.
SHAPIRO: Those efforts are coming quickly. Senator Arlen Specter has scheduled a Judiciary Committee hearing for a week from today. It's title is Hamdan v. Rumsfeld: Establishing a Constitutional Process.
Ari Shapiro, NPR News, Washington.
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