Aziz Huq, associate counsel, the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law, offers this criticism of congressional attempts to limit the rights of Gitmo detainees to challenge their detention in federal courts. He writes, in part:
Congress is about to pass a bill that cuts off the only real route out of the Guantánamo mess: A path involving the meaningful review of the factual basis for detention decisions in an independent federal court. An amendment to the Defense Authorization bill, first introduced by Sen. Lindsey Graham, now threatens to constrain tightly federal courts’ historic habeas corpus jurisdiction on behalf of prisoners detained at Guantánamo. And the administration is adding language that would not only give those who commit abuse immunity in court, but would also allow detainees to be locked up based on evidence extracted by torture—a first ever in American law.
Justifying his proposal, Sen. Graham has argued that previous wartime prisoners did not have the right to challenge their detention. But unlike previous POW detention schemes, the Guantánamo regime is based on seriously flawed legal theories. The administration’s legal mistakes led it to detain many people, including children and innocents, who should not be held. It is these legal mistakes—which are unique in American wartime conduct —that justify a solution of federal court review....
Sen. Graham’s bill would curtail detainees’ access to American courts. It would consign many to a black hole, based on evidence gained by torture, perhaps conducted in other countries and allow no meaningful review. His provisions, which contradict the traditional access to courts that prisoners in the American Civil War and World War II had, would entrench the Guantánamo problem. The camp would fester, and continue to attract recruits to Al Qaeda. Only through a transparent, and transparently fair, legal process can the harms caused by Guantánamo be limited.
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