The Federal Court of Appeals for the DC Circuit today denied an appeal by Guantanamo detainees, challenging the constitutionality of the law that would allow them to be tried by a military tribunal. The law also allows government prosecutors to use hearsay evidence; it also allows the court to consider evidence that has been withheld from the defendant and defendant’s counsel because of national security concerns.
WASHINGTON – Foreign nationals held at the US-run prison at Guantanamo Bay, Cuba are barred from using the US court system to challenge their detentions, a federal appeals court ruled.
The DC Circuit Court in a two-to-one opinion rejected the detainees’ argument that their cases were not covered by the Military Commissions Act of 2006, enacted by Congress last October after the Supreme Court challenged the legality of the panels initially set up by President George W. Bush.
That’s not strictly true. In Hamdan v. Rumsfeld, the Court decided 5-3 (without newly-confirmed Chief Justice Roberts, who recused himself because he had already heard the case at the appellate level) that the Guantanamo detainees were owed due process rights, along with other basic rights recognized by the Geneva Convention and international criminal law, and that US federal courts did have jurisdiction to decide habeas corpus petitions. The Military Commissions Act is a cowardly, craven, and unconstitutional attempt to do an end-run around the Hamdan decision. Today’s decision will be appealed to the SCOTUS. And in light of what has come out since the decision about the brief filed by Senators Kyl and Graham that was so influential on Justice Scalia’s dissent, this one might go 7-2.