Legislative Priorities of the Chicago Council of Lawyers in regard to Persons Claimed To Be Enemy Combatants or Subject to Extraordinary Rendition
The Chicago Council of Lawyer will urge the 110th Congress to give priority to the following matters. Most of the legislation discussed below impacts those Guantanamo detainees and persons subject to extraordinary rendition who have not been charged with War Crimes. (Proposal II. C. below affects persons charged with War Crimes.)
I. Restoration of Habeas Corpus
The following provisions should be repealed:
A. Section 1005 of the Detainee Treatment Act of 2005 repealed the writ of Habeas Corpus as to Guantanamo detainees. The Supreme Court held that this section did not apply retroactively to pending cases. (Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).)
B. The Military Commissions Act of 2006 went even further. Section 7 of the Act bars courts from hearing habeas corpus claims from any alien detained as an enemy combatant (not just Guantanamo detainees), or who is “awaiting such determination,” regardless of how long the alien is held without being determined to be an enemy combatant. It applies by its terms to pending cases.
A. Restoration of Court Jurisdiction over Claims in regard to Illegal Detention
Section 7of the Military Commissions Act of 2006 (“MCA”) bars courts from hearing any claim against the United States or its agents relating to the “detention, transfer, treatment, trial or conditions of confinement” of an alien detained as an enemy combatant or who is “awaiting such determination.” This provision applies not only to Guantanamo detainees, but also to the practice of extraordinary rendition, by which the U.S. has seized aliens and secretly sent them to another country, such as Syria, for detention and interrogation.
B. Restoration of Jurisdiction of Federal Courts to consider international law and to hear claims under the Geneva Conventions
Section 5(a) of the MCA bars all persons from invoking the Geneva Conventions in any habeas or other civil proceeding in which the United States or its agent is a party.
Section 6(a) (2) of the MCA provides that “no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions” in the newly amended War Crimes Act. This provision eliminates the most significant sources of law for interpreting the Geneva Conventions.
Both sections should be repealed.
C. Barring of Testimony Obtained by Coercion in War Crimes Trials
A section of the MCA bars the use at trial of statements obtained by “torture,” but allows the use under certain circumstances of coerced testimony. (Section creating 10 U.S.C. § 948(r).) That section should be amended to bar not only statements obtained by torture but those obtained by "cruel, inhuman, or degrading treatment or punishment.” The McCain Amendment, Section 1003 of the Detainee Treatment Act of 2005, Pub. L. 109-148, 119 Stat. 2739, provides that no person in the custody or under the physical control of the United States Government shall be subject to "cruel, inhuman, or degrading treatment or punishment.” It defines this phrase as treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments to the Constitution.
The above statement of priorities was approved by the Council’s Board of Governors, and was developed by the Council’s Civil Liberties Committee, chaired by Gordon G. Waldron. The Committee meets monthly. For more information, please contact Gordon at 312-353-7525 or Malcolm Rich at 312-988-6552.