Garrett falsely suggested that military commissions bill would still provide federal court review for all detainees

››› ››› RAPHAEL SCHWEBER-KOREN

On Special Report, Fox News' Major Garrett falsely suggested that the House's approval of a bill to govern detention and interrogations of U.S. detainees would allow all detainees to challenge their detention in court. In fact, the bill does not provide a procedure for a person who the government initially held as an enemy combatant but is subsequently determined not to be an "enemy combatant" or deemed release-eligible to appeal to a civilian court.

During a September 27 segment on Fox News' Special Report on the House's approval of a bill to govern detention and interrogations of U.S. detainees, Fox News correspondent Major Garrett falsely suggested that the bill would allow all detainees to challenge their detention in court.

In his report, Garrett noted that "the Senate rejected efforts to put habeas corpus protections in [the bill] for Gitmo detainees" (a second amendment dealing with habeas corpus review was defeated on September 28). Garrett then asserted: "A Democratic protest notwithstanding, this bill does give detainees the right to appeal their status as 'enemy combatants,' just not before civilian courts. They can appeal to a court of military review. If the court finds a detainee guilty, he can still appeal that ruling to a court of appeals here in the nation's capital."

However, Garrett's suggestion that the bill's substitute appeals procedure gives all detainees the ability to obtain a federal court review is false. The bill -- the "Military Commissions Act of 2006," which subsequently passed Congress on September 28 -- preserves access to civilian courts for detainees in only the two circumstances provided for in the Detainee Treatment Act of 2005: to appeal a determination of a military panel called a Combatant Status Review Tribunal (CSRT) that they are "enemy combatants" to the U.S. Court of Appeals for the D.C. Circuit and to appeal to the D.C. Circuit a guilty verdict by a military commission, authorized by the bill to try detainees. The bill does not provide a procedure for detainees who have not been determined to be an enemy combatant by a CSRT to appeal nor does it contain any time limit within which the administration must bring a detainee before a CSRT. Additionally, detainees who were once determined to be "enemy combatants" but are subsequently deemed no longer to be so also have no recourse to civilian court. The bill explicitly attempts to cut off the avenue that such detainees are currently using to challenge their detention -- writs of habeas corpus filed in civilian court.

A significant number of detainees were once determined to be "enemy combatants" but are no longer needed to be held in U.S. custody. According to a September 14 Department of Defense press release, out of about 455 detainees held at the base, "approximately 130 detainees remain at Guantánamo who the U.S. government has determined eligible for transfer [to another country's custody] or release through a comprehensive series of review processes." As of February 9, when the last round of review board hearings appears to have been completed, 134 detainees were declared eligible for transfer or release. At that time, 14 detainees were found to be release-eligible.

In one case, according to an August 15 New York Times article, five men of Uighur origin, an ethnic group from the northwestern portion of China, were held for more than a year at the Pentagon's detention facility at Guantánamo Bay after a review tribunal determined that they were not "enemy combatants." According to the article, the United States claimed it could not return detainees to their home country if they might be persecuted there. The Uighurs have been fighting a low-level insurgency against the Chinese, who control their homeland; the Chinese consider the Uighurs to be terrorists. Other countries reportedly faced pressure from the Chinese not to admit the Uighurs, who were released on May 5 to Albania.

The August 15 Times article suggests that the habeas proceeding placed pressure on the U.S. government to release the Uighurs. According to the article, the Uighurs were taken to Albania shortly before a scheduled U.S. appeals court hearing which was to review the denial of their petition for habeas corpus. A federal district court judge had agreed that the Uighurs' detention was illegal, but he ruled that he could not order the government to admit them to the United States. As for the timing of their release, which rendered the appeal moot, the Times quoted "a senior Justice Department official [who] said there had been an intense push to avoid a situation in which the appeals court could order the Uighurs admitted into the United States." However, an unnamed State Department official also told the Times that the timing was a "coincidence."

From the September 27 edition of Fox News' Special Report with Brit Hume:

GARRETT: Meanwhile, in the Senate, Democrats tried to amend the bill to give all Gitmo detainees the right to use the legal appeal known as habeas corpus to challenge their indefinite detention as enemy combatants. Advocates called the absence of these rights an invitation for Supreme Court intervention and likely rejection.

U.S. SENATOR PATRICK LEAHY (D-VT): Habeas provisions of this bill are wrongheaded. They're flagrantly unconstitutional. Tinkering with them would not make them less wrongheaded, but might make them less flagrantly unconstitutional.

(END VIDEO CLIP)

GARRETT (on camera): In a key vote late today, the Senate rejected efforts to put habeas corpus protections in there for Gitmo detainees. And just a moment ago, the president released a paper statement applauding the House action. A Democratic protest notwithstanding, this bill does give detainees the right to appeal their status as enemy combatants, just not before civilian courts. They can appeal to a court of military review. If the court finds a detainee guilty, he can still appeal that ruling to a court of appeals here in the nation's capital. Republicans said they can imagine no circumstances under which the Supreme Court would rule this process unconstitutional. Brit?

HUME: Major, thank you.

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