Another View: New statute gives detainees fair review

As one who worked on the Military Commissions Act of 2006, it is necessary to comment on some of the misinformation surrounding this legislation that is so critical to our nation's security. As a result of the decision of the U.S. Supreme Court in Hamdan v. Rumsfeld, Congress was required to codify language relating to military commissions before Khalid Sheikh Mohammed, the principal architect of the 9/11 attacks, and other terrorists associated with al-Qaida and the Taliban can be prosecuted. Although The Bee acknowledged that the new law may be a "vital tool" against terrorists, I do not share the editor's skepticism concerning its constitutionality.

Much has been made of the restrictions on federal habeas petitions in the Military Commissions Act. Such confusion stems from a failure to distinguish the "Great Writ" of habeas corpus found in the U.S. Constitution and the habeas corpus procedures adopted by Congress as a statute. The latter provisions found in the U.S. Code are what were changed by the Military Commissions Act. The argument that a constitutional issue is raised because Congress has sought to revise a statute which it enacted in the first place is puzzling to say the least. Congress has the constitutional authority to alter procedures that it created and has done so on different occasions.

The habeas language in the Military Commissions Act became necessary because in Rasul v. Bush, the Supreme Court interpreted the federal habeas corpus statutory scheme to allow those detained at Guantánamo Bay, Cuba, to file habeas petitions for relief in the federal courts. The language in the new law was merely a clarification of the rule recognized by our nation's highest court for more than 50 years in Johnson v. Eisenstrager, that "there is no instance where a court, in this or any other country where the writ is known ... issued it on behalf of an alien enemy."

It is also important to note that the new statute retains the existing protections of the Detainee Treatment Act, to ensure that detainees will receive a full and fair consideration of their claims before the United States Court of Appeals for the D.C. Circuit. Detainees in Guantánamo Bay can also file a writ of certiorari with the Supreme Court.

Finally, in regard to the specific issue of detention, it should be observed that in Hamdi v. Rumsfeld, Justice Sandra Day O'Connor dispelled the notion that the detention of unlawful combatants for the duration of the conflict would give rise to a constitutional claim. Nevertheless, under the procedures adopted relating to the Guantánamo Bay military commissions, every detainee will be entitled to a hearing before a Combatant Status Review Tribunal.

Thus, although the new law does not contain the full panoply of "Miranda-like" rights accorded to American citizens, it certainly provides detainees with a full and fair review of their cases.