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Congress Helped Prosecutors Avoid More of Those Embarassing Waiver Agreements

Since my earlier post on Yaser Hamdi’s express agreement not to sue the United States for his indefinite detention and mistreatment, Cornell Law Professor Michael Dorf, who analyzed the Hamdi agreement shortly after it was reached, has provided a helpful clue as to why we may not be seeing more of these explicit waivers of the right to sue in release agreements.

In the Military Commissions Act of 2006, the same act in which Congress unconstitutionally stripped “enemy combatants” of the right to habeas corpus — a right the Supreme Court eventually restored — “Section 7″ limits the ability of “enemy combatants” to sue the United States over their treatment.

‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The effect is, essentially, to shield government officials from liability for abuse, torture and other mistreatment of so-called “enemy combatants.” Another provision of the law makes it retroactive, back to September 11, 2001.

As Dorf puts it, the Military Commissions Act “eliminates any jurisdiction for a civil suit by someone who was detained as Hamdi was.”

Of course, not everyone held by U.S. authorities was deemed an “enemy combatant,” and some have successfully challenged that classification. The British former detainees suing over torture in the case of Rasul v. Rumsfeld, for example, which I’ve written about here, and the Canadian, Maher Arar, who’s suing over his extraordinary rendition and torture — which I’ve also written about — were never determined to be enemy combatants, at least as far as I can tell. And the government hasn’t tried to dismiss their cases based on the Military Commissions Act.

But those who were called “enemy combatants” appear to be out of luck.

In 2006, Congress helped the President and his Justice Department make it virtually impossible for illegally detained and abused prisoners to seek vindication. And, it obviated the need for prosecutors to require Gitmo detainees to sign these controversial waiver agreements promising not to sue for abuse or torture — if, that is, we were the kind of country that would ever do such things.

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