The newly passed legislation regulating the treatment of terrorism suspects is designed to limit the hundreds of habeas corpus petitions from detainees at Guantanamo Bay that have flooded federal courts, according to John Yoo, a former official of the Bush administration who helped formulate policies for dealing with enemy combatants.
The bill prohibits detainees held by the United States from filing lawsuits challenging their detention, known as habeas corpus pleadings.
A noncitizen who has been declared an enemy combatant has the right to go before a military tribunal for a hearing to challenge the evidence against him, but does not have the right to a lawyer.
"You have representation from an officer, but not necessarily one who's a military lawyer," Yoo explains. The defendant also does not have access to any classified evidence.
"Well, it's not a criminal trial," says Yoo, a law professor at the University of California, Berkeley, who served as a deputy assistant attorney general from 2001 to 2003.
"This is part of the way the rules of war have worked for a long time," he says. "The military proceedings to determine if you're an enemy combatant usually don't require as much proof. You know, the point of the war is not to collect evidence and solve crimes. It's to fight and defeat the enemy. So I think this sort of flexible process reflects the demands and the nature of warfare."
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