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Restore the writ

Now that a federal appeals court has upheld the ban on habeas corpus at Guantanamo, Congress should act.

February 21, 2007

IN UPHOLDING A LAW that denies detainees at Guantanamo Bay Naval Base the ancient right of prisoners to challenge their confinement in court, a federal appeals court has presented the Democratic-controlled 110th Congress with a challenge. Does it have the fortitude to undo an injustice perpetrated by the Republican-controlled 109th?

The injustice came in the 2006 Military Commissions Act, which barred detainees at Guantanamo -- now numbering 395 -- from contesting their imprisonment by seeking writs of habeas corpus. This exclusion, like Guantanamo itself, has been an embarrassment to the United States.

In 2004, the Supreme Court ruled 6 to 3 that detainees at the facility (which the U.S. leases from Cuba) could seek relief under a federal habeas corpus statute because Congress had previously placed the area under the "complete jurisdiction and control" of the U.S. But on Tuesday, a 2-1 majority of the U.S. Circuit Court of Appeals for the District of Columbia ruled that the Military Commissions Act essentially overruled the Supreme Court and should apply to all detainee cases, even those filed before the law was passed.

The high court could still correct the situation by ruling that the detainees have a constitutional right to bring habeas actions. In the 2004 case, Justice John Paul Stevens noted that habeas corpus is a "writ antecedent to statute ... throwing its root deep into the genius of our common law." But in his opinion for the appeals court, Judge A. Raymond Randolph preempted that argument by claiming that, under English and early American law, habeas was not available to "an alien outside the territory of the sovereign." Congress, he suggested, has now placed Guantanamo in that "outside" category.

There's a good reason to suspect that the Supreme Court might actually affirm this disappointing decision: It's not the same court that ruled for the detainees in 2004.

Sandra Day O'Connor, one of the six justices in the 2004 majority, has been replaced by Samuel A. Alito Jr., who is more sympathetic to claims of government power. Justice Anthony M. Kennedy, who concurred in 2004 because "Guantanamo Bay is in every practical respect a United States territory," might defer, as the appeals court did, to the Military Commissions Act's exclusion of Guantanamo from habeas jurisdiction.

Rather than hope that the Supreme Court will rectify the act's flaws, Congress should act on its own to undo the law's habeas restrictions. Last year, 48 members of the Republican-controlled Senate voted for an amendment by Sen. Arlen Specter (R-Pa.) that would have allowed detainees to file such petitions. Of the 51 who voted no, six are no longer in the Senate.

That change -- plus dramatic Democratic gains in the House -- augur well for passage of the Habeas Corpus Restoration Act of 2007, co-sponsored by Specter and Sen. Patrick J. Leahy (D-Vt.), now chairman of the Senate Judiciary Committee. And although the margin for approval may not be veto-proof, President Bush would be wise to allow Congress to atone for its own mistake.

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