Under the Detainee Treatment Act (DTA), passed by Congress in 2005, judicial review of CSRT decisions is limited to a single court, the U.S. Court of Appeals for the District of Columbia.
Many in the legal and human rights communities see the upcoming arguments as potentially the first step in restoring one of America's founding tenets -- the rule of law - even to those whose goal might be to destroy the country.
Prof. David Cole of Georgetown University Law Center told us, "If our detentions of enemy combatants are ever to be accepted as legitimate by the rest of the world, we must be willing to conform our actions to basic principles of due process and fundamental fairness. Thus far, we have failed."
Cole's view is echoed by Prof. Peter Shane of the University of Ohio Law School. He told us, "When President Bush issued his November 2001 'Notice,' which set in motion the military commissions at Guantanamo, the Administration plainly hoped that the approach would provide a rough-and-ready version of 'Adjudication Lite' that, without anyone's interference, could provide the appearance of adhering to the rule of law without treating too fastidiously the rights of Guantanamo detainees."
Marjorie Cohn, a professor at the Thomas Jefferson School of Law and president of the National Lawyers Guild, expressed a similar opinion. She told us that the Supreme Court should "determine that the judicial review of the decisions of CSRTs do not provide an adequate substitute for constitutional habeas corpus."
Brian J. Foley, visiting associate professor at Drexel University College of Law, agrees. He told us that the CSRTs serve "no purpose other than to expand executive power. The CSRT simply rubberstamps the executive's earlier decision to imprison and interrogate suspects, by making it practically impossible for a prisoner to prove he is not an 'enemy combatant'."
The overwhelming view of the human rights community was expressed by Mary Shaw of Amnesty International USA. She told us, "The current system of legal tribunals suggests a lack of independent review, no guarantee of legal counsel, use of secret evidence that may be been obtained through unlawful methods such as torture, and no meaningful way for a defendant to confront the government's case against him. It's a no-win situation."
Some legal observers think there is another factor that might result in a ruling against the government. One source, who declined to be identified because he is not authorized to comment on the issue, told us, "The Supreme Court has an institutional aversion to being told by Congress or by the President which cases it can consider and which ones it can't. It's in the high court's DNA."
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