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DOJ asserts MCA bars enemy immigrants, Gitmo detainees from judicial review

[JURIST] The US Department of Justice [official website] argued Monday that immigrants arrested while in the US and labeled as enemy combatants [JURIST news archive] under an expansive definition [WP report] in the new Military Commissions Act of 2006 (MCA) [PDF text; JURIST news archive] can be indefinitely detained and are prohibited from challenging their detention in civilian courts. In a motion to dismiss [PDF text] filed Monday in the US Court of Appeals for the Fourth Circuit in the case of Ali Saleh Kahlah Al-Marri, a Qatari citizen detained while studying in the US, the DOJ argued:

the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366 (see Attachment 1), which took effect on October 17, 2006, removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al-Marri, except as provided in Section 1005(e)(2) and (e)(3) of the Detainee Treatment Act (DTA). In plain terms, the MCA removes this Court's jurisdiction (as well as the district court's) over al-Marri's habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.
Al-Marri is accused of being a sleeper agent for al Qaeda, and his case represents the first time the Bush administration has argued that the MCA strips a detainee held in the United States of habeas rights. Al-Marri's lawyers have said that his detention in a South Carolina prison allows him to challenge his detention in a civilian court like any other alien held for alleged immigration [JURIST news archive] or other legal violations, but the Justice Department said the anti-terrorism law applies to all enemy combatants no matter where they are held. AP has more.

The DOJ motion comes in al-Marri's appeal [brief, PDF] challenging the president's authority to designate civilians arrested in the US as enemy combatants and what level of due process a detainee should be afforded to challenge the enemy combatant designation. Jonathan Hafetz, counsel for al-Marri, told JURIST Tuesday that:
the President has announced that he can sweep any of the millions of non-citizens off the streets of America and imprison them for life in a military jail without charge, court review, or due process. It is unprecedented, unlawful, and un-American.
Also Monday, the Bush administration filed a brief [PDF text] Monday with the US Court of Appeals for the District of Columbia Circuit, petitioning the court to dismiss lawsuits brought by detainees [JURIST report] at Guantanamo Bay [JURIST news archive]. In the most detailed argument filed since President Bush signed [JURIST report] the MCA into law last month, the Justice Department argued that the MCA "unambiguously eliminated district court jurisdiction over these cases" and asserted that the detainees' arguments that the MCA is unconstitutional are "without merit." The government wrote:
First, as we have explained at length in our previous filings, petitioners, who are all aliens outside the United States, have no constitutional habeas rights to assert, and thus the elimination of the statutory right to seek habeas review does not implicate the Suspension Clause. Second, even if petitioners possessed constitutional habeas rights, given the review afforded, there is no suspension in this context because Congress has provided an adequate substitute. As set out in our prior briefs, the review afforded by Congress of the enemy combatant determinations by the Combatant Status Review Tribunals ("CSRTs") is greater than that afforded in habeas for alien enemies facing military criminal proceedings. ... Even outside of the military context, under traditional habeas review, "other than the question whether there was some evidence to support the order, the courts generally did not review the factual determinations made by the Executive." ... Petitioners' insistence that enemies captured during armed conflict, and detained by the military as enemy combatants have a right to de novo review of the ruling of the governing military tribunal is wholly unfounded, contrary to Supreme Court precedent, and would severely impair the military's ability to defend this country.
AP has more.

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