Posted on Mon, Oct. 23, 2006

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Tribunals likely to face test

Experts disagree on constitutionality of terror detainee compromise law

By JAMES ROSEN

jrosen@mcclatchydc.com

WASHINGTON — For weeks, as he and other senators held up President Bush’s proposal for trying terrorism suspects, U.S. Sen. Lindsey Graham, R-S.C., said the Supreme Court would reject Bush’s measure.

Now, after joining the president at the White House for the bill-signing ceremony, Graham is predicting that the high court will accept the compromise law produced by weeks of high-stakes negotiations.

Graham, a military lawyer who serves in the Air Force Reserve, already has counted heads on the nine-member Supreme Court.

“This could be 7-2” to uphold the new law, Graham said Thursday in an interview. “I think the court is going to find that the military commissions Congress has authorized are compliant with Common Article 3 of the Geneva Conventions and that they afford due process of a civilized nation.

“Everything we’ve done is consistent with the law of armed conflict, and the detainees have more rights than any other enemy prisoners have had in any other war.”

Legal scholars’ opinions vary.

Jonathan Hafetz represents a detainee as associate counsel at New York University’s Brennan Center for Justice.

The tribunals law “unconstitutionally suspends the writ of habeas corpus, and it denies any noncitizen held anywhere in the world his fundamental right to contest the lawfulness of his detention by the United States,” he said.

“It defines ‘enemy combatant’ in overly broad terms that exceed what the Constitution allows.”

Habeas corpus affords those accused of crimes access to court to respond to the charges against them. The Founding Fathers wrote it into the Constitution, preceding the Bill of Rights, which was added later as its first 10 amendments.

Randy Barnett, a constitutional law professor at Georgetown University, expressed confidence that the new law will pass Supreme Court muster, however.

“Most of the Supreme Court’s focus (in post-Sept. 11 detainee cases) has been about the failure of the Bush administration to get congressional authorization for what it was doing,” Barnett said. “Now the administration has such authorization. The odds of the Supreme Court saying that what Congress did was unconstitutional are extremely remote.”

No matter where they stand on habeas or the other substantive issues that the controversial law raises, legal experts of all stripes agree that it will end up before the Supreme Court.

According to legal scholars, much of the coming struggle over the tribunals law will focus on its stripping habeas rights from about 400 terrorism suspects, most of them detained at the U.S. military base in Guantanamo Bay, Cuba.

The high court probably also will examine the law’s definition of “enemy combatant” and explore whether it meets the U.S. government’s obligations under the Geneva Conventions.

In large measure, as the government continues to adapt laws and procedures to the Sept. 11 terrorist attacks, the 2006 Military Commissions Act is Congress’ answer to two key high-court rulings since the tragedy:

• In a June 2004 ruling on Rasul v. Bush, the justices said U.S. courts — not the military commissions — have the ultimate say in determining whether noncitizens captured overseas and held at Guantanamo Bay have been detained legally.

• In its June 2006 decision in the Hamdan v. Rumsfeld case, the court ruled that Bush had exceeded his presidential authority by creating, without congressional action, a system of military commissions to try the detainees.

On Sept. 8, almost three months after the Hamdan ruling, Bush sent Congress a proposal for interrogating the detainees and trying them before military tribunals. Almost immediately, Graham and two fellow Republican senators — John McCain of Arizona and John Warner of Virginia — criticized several of its main provisions, and others soon joined them.

Over the next month, White House lawyers led by national security adviser Stephen Hadley engaged in fevered talks with the three senators. When they reached a compromise, all said they had found common ground on the legal issues at stake.

The administration gave more ground on how the military commissions will work and how the trials will run, while the three senators yielded more on the controversial interrogation techniques, said John Radsan, who served as the CIA’s assistant general counsel from 2002 to 2004 and now runs the National Security Forum at the William Mitchell College of Law in St. Paul, Minn.

The law spells out nine “grave breaches” of Geneva Conventions protections and prohibits “cruel, inhumane or degrading” treatment of detainees, Radsan said. It retains “gray areas” in weighing which interrogation procedures are legal.

“I don’t know what Graham, McCain and Warner agreed to in that room with Hadley, and I don’t think the American people know,” Radsan said. “A lot of what was decided stayed in that room between Hadley and those three senators. We want to have some check on the CIA. This is being done in our name.”

Graham said the law provided more than enough guidance for CIA interrogations. And he said it protected detainees’ rights by allowing them to appeal the U.S. military’s classification of them as “enemy combatants” to the U.S. Circuit Court of Appeals in Washington.

Graham, though, also said the law properly dismissed hundreds of lawsuits already brought by detainees with a broad range of grievances over their confinement.

“Every detainee will have their day in court, and the court can determine whether the government properly defined them as an enemy combatant,” Graham said. “But they can no longer sue the government for better exercise, mail delivery, medical malpractice.”

Despite his confidence that the Supreme Court will uphold the law, Graham said he was far from cocky.

“If I’m wrong,” he said, “I will take the floor of the Senate and humbly say I was wrong.”

Rosen covers Washington for McClatchy newspapers in South Carolina.