The White House bill in Congress would strip courts of jurisdiction.
In a significant but little-discussed move, the Bush administration is asking Congress to strip the federal courts of jurisdiction to hear cases brought by Guantánamo detainees challenging the legality of their confinement.
The move marks the second time in less than a year that the Bush administration is seeking to achieve in Congress what it was unable to win in court. In December, Congress passed the Detainee Treatment Act – a measure that sharply limited judicial jurisdiction to hear detainee challenges. Administration lawyers even argued that the US Supreme Court itself had been stripped of the power to decide the case handed down last June that invalided military commission trials at Guantánamo.
The high court rejected that view and issued its landmark ruling. Now, Congress is again considering limiting federal court jurisdiction.
The effort is aimed at by-passing a 2004 Supreme Court decision in which the high court ruled 6-to-3 that the US detainee camp at Guantánamo is not a legal black hole. The majority justices, in a case called Rasul v. Bush, said detainees were entitled to file lawsuits under a federal habeas corpus law, and that federal courts had jurisdiction to hear and decide their cases.
The decision prompted scores of American lawyers to offer their services free of charge to Guantánamo detainees. This army of volunteer lawyers, known unofficially as the Guantánamo Bar Association, includes some of the best legal talent in the country. Lawyers began to pick apart the administration's terror policies while investigating reports of harsh treatment, including allegations of torture. Perhaps most important, they began to win significant decisions.
Now, with hundreds of detainee cases pending in both the US district and federal appeals courts in Washington, D.C., Congress is being asked to stop the flood of litigation by limiting detainees' access.