A federal appeals court is considering a case by lawyers for dozens of Guantanamo Bay detainees that a crucial part of US President George W. Bush's new military trials law is unconstitutional and should be scrapped.
The detainees' lawyers challenged the military's authority to arrest people overseas and detain them indefinitely without allowing them to use the US courts to contest their detention.
Bush gave the military that authority last month when he signed a law that sets up special commissions to hold trials for foreigners designated as "enemy combatants."
Bush hailed the law as a crucial tool in his campaign against terror and said it would allow prosecution of several high-level terror suspects.
In written arguments, attorneys for more than 100 detainees who are locked out of the regular US judicial system by the law asked the US Court of Appeals for the District of Columbia Circuit to let the detainees keep their already-filed legal challenges going in civilian courts.
On Wednesday, seven retired federal judges from both political parties attacked the law on other grounds. They filed legal briefs in the detainees case that argued the military commissions law would allow authorities to use evidence obtained by torture.
"We believe that compelling this court to sanction executive detentions based on evidence that has been condemned in the American legal system since our nation's founding erodes the vital role of the judiciary in safeguarding the rule of law," the judges wrote.
In their petition, the lawyers wrote that the framers of the US Constitution never would have permitted the government to hold people indefinitely without charges.
"Persons imprisoned without charge must retain the right to obtain a court inquiry into the factual and legal bases for their imprisonment," they wrote.
This argument echoes a Supreme Court ruling in June in which the justices ruled that the Bush administration's system for trying enemy combatants violated US and international law. Within weeks, the president persuaded Congress to pass a law that set up military commissions and barred detainees from using the civilian court system.
Shortly after the law was signed, the Justice Department told hundreds of detainees their cases in the US courts had been rendered moot.
Even if the court should decide not to declare the law unconstitutional, attorneys offered a creative way for the court to keep the case alive. They suggested the judges rule that the law does not mean what the Justice Department thinks it means, because if it did, it would be unconstitutional.
Although the law prohibits torture, the judges said that the military has not dealt with torture claims made by detainees. They also argued that the new law illegally strips courts of the power to question military decisions about the detainees' torture claims.
The Justice Department had no comment on the briefs Wednesday and has until Nov. 13 to respond in court.
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