By Ian Wallach

Jurist: Legal News and Research

March 6, 2006

Habeas actions are getting a lot of media attention lately. The unfortunate American military conduct in Abu Ghraib has begun to raise questions about the treatment of prisoners at the US Navy detention facility in Guantánamo Bay, Cuba, where incidents of torture and abuse have been reported and largely ignored over the past four years. The habeas question looms large on the heels of two recently-published case studies (by the National Journal and the Seton Hall University School of Law) that suggest that the majority of people held in Guantánamo are innocent, and the report by the United Nations seeking the closure of the facility. Americans seem split on whether federal judges should be involved at all. Some people want judges to be able to investigate whether the military is holding people for valid reasons, while others think that — in a time of war — how the military conducts itself is a matter for the President only, and judges’ interference might impair the President’s ability to protect America.

On the litigation front the dispute is largely the same, with pro bono habeas counsel on one side, and the Department of Justice, counsel to the Executive Branch, on the other. But in Congress, the dispute embodied itself in the passage and potential application of the Detainee Treatment Act (the “DTA”) — a part of the defense spending bill signed into law on December 30, 2005. Detainees’ counsel (such as me) thought the DTA was only going to stop future cases. The Executive Branch now maintains that the DTA knocks out pending cases too. The matter is before both the United States Supreme Court and the DC Circuit Court (argument is currently scheduled to take place before the Circuit Court on March 22nd).

This article will examine the timing and language used in Congress by those in support of, and against, the DTA, and try to answer three questions:

1. Was the timing of the events regarding, and coinciding with, the passage the DTA significant?

2. Were representations made in support of the DTA accurate, and why were some representations repeated with such frequency? and;

3. When Congress voted on the DTA, did most members believe they were voting to dismiss not only future habeas actions, but also those pending?

At this juncture, brief explanations of key terms might be helpful for some readers.

*“Habeas” is short for habeas corpus — Latin for “you have the body.” It is a rule that emerged in the 13th Century and one that has been written into the Magna Carta. In essence, it means that if a government holds someone, it must state why, and can’t hold a person indefinitely and without charge. Senator Jeff Bingaman (D-NM) provided a concise, clear definition of habeas to the Senate:

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