Gitmo Detainees' Lawyers Attack Military Tribunal Bill

By Kate Monaghan | July 7, 2008 | 8:31 PM EDT

( - Prisoners at Guantanamo Bay, Cuba, could not petition the federal courts for their freedom under new legislation proposed by the Bush administration, according to lawyers representing several of the detainees. An expert in U.S. military law describes that assessment as "violence to the truth."

The Military Commissions Act of 2006 (H.R. 6054) would strip Guantanamo Bay detainees of the right to "habeas corpus," according to Gita Gutierrez of the Center for Constitutional Rights.

"Our government is poised -- our legislators are poised -- to strip this fundamental right from almost 450 men in Guantanamo," Gutierrez said at a press conference Thursday.

James Carafano, a former professor at West Point and the U.S. Naval War College, disputes Gutierrez's charges.

"That's just a flat lie. It's just a misinterpretation of the facts," Carafano told Cybercast News Service. "Every one of [the detainees] has the right to bring a habeas corpus suit in federal court."

Habeas corpus, Latin for "you have the body," is a writ of law filed by a prisoner challenging the right of the jailer or warden to continue his or her detention. If a judge finds merit in the arguments made in a habeas corpus writ, the government must prove that it has the legal authority to continue the incarceration.

The legislation would designate any "individual determined by or under the authority of the President or the Secretary of Defense ... to be part of or affiliated with a force or organization (including al Qaeda, the Taliban, any international terrorist organization, or associated forces) that is engaged in hostilities against the United States or its co-belligerents in violation of the law of war" as an "unlawful enemy combatant" subject to a military tribunal rather than civilian criminal courts.

According to a White House fact sheet, "the military commissions established under the administration's plan would provide fair trials affording unlawful enemy combatants substantial due process."

But Gutierrez charged that many of the detainees "are wrongfully imprisoned" in the first place.

"These men are there because of a series of mistakes that have happened because this administration has departed from fundamental military justice and fundamental military procedures," she said.

Carafano, who is now a senior fellow at the Heritage Foundation and also recently visited Guantanamo Bay, disputed that charge, as well.

"That's a lie," Carafano said. "[The detainees have] had their detention hearing, whether they should be detained as an enemy combatant. They've had their annual hearing, whether the detention should be renewed or not."

Carafano said the odds of someone being wrongly detained as an unlawful enemy combatant are low.

"There's always a possibility that somebody is wrongly detained, but that's true of every single legal system on the planet," he acknowledged. "The odds of that actually being true are probably pretty slim."

Carafano seemed shocked by the claims from the Center for Constitutional Rights.

"Most of the stuff ... is just abominable," responded Carafano. "There's more violence to the truth and the facts than ... I think I've ever [heard] in my 27 years of public service."

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