Baier uncritically reported Bush administration's baseless contention that critics of detainee bill are "just flat wrong"

››› ››› RAPHAEL SCHWEBER-KOREN

During a report on the Military Commissions Act of 2006, Fox News' Bret Baier uncritically reported the Bush administration's assertion that, under the bill, noncitizen detainees have a right to challenge their detention and designation as "unlawful enemy combatant[s]" and that critics of the bill who say otherwise are "just flat wrong." In fact, a detainee's ability to challenge his or her detention effectively depends on the government's willingness to provide an initial hearing, which the government can postpone indefinitely.

During the October 18 edition of Fox News' Special Report with Brit Hume, Fox News chief White House correspondent Bret Baier uncritically reported the Bush administration's assertion that, under the Military Commissions Act of 2006, noncitizen detainees have a right to challenge their detention and designation as "unlawful enemy combatant[s]" and that critics of the bill who say otherwise are "just flat wrong." But as Media Matters for America has explained, the measure allows a noncitizen who the government claims is an "unlawful enemy combatant" to challenge his or her detention only once the detainee has appeared before a review tribunal -- but the law does not impose a time limit on how long the government can delay bringing a detainee before that tribunal. The effect of the legislation, contrary to the Bush administration's claims, is to allow the president to detain any noncitizen within the United States or outside its borders for any reason, indefinitely. It is not the critics pointing this out who are "just flat wrong."

Baier's report opened with statements from Sen. Patrick Leahy (D-VT) and Jennifer Daskal, U.S. advocacy director for Human Rights Watch, condemning the law. Daskal explained that, under the legislation, "detainees who are locked up by the government cannot get to court to challenge the legality of their detention even if they're innocent, even if the government made a mistake."

But in his report, billed by host and Fox News Washington managing editor Brit Hume as explaining what "the bill actually do[es]," Baier repeated, unchallenged, the assertion by "senior administration officials" that critics like Daskal and Leahy "are just flat wrong," based on the text of the bill. Baier then described the review process:

BAIER: But senior administration officials say these statements are just flat wrong. They say it's all laid out in the 38 pages of the new law.

A detainee first goes through a process to determine his or her status. A U.S. military panel, called a Combatant Status Review Tribunal [CSRT], determines if the detainee is a, quote, "unlawful enemy combatant." The detainee has the right to challenge that status determination in federal court, specifically the D.C. Circuit Court of Appeals, considered the second most powerful court in the country. If the Court of Appeals upholds the tribunal's judgment, the detainee has the right to petition the most powerful court, the U.S. Supreme Court, to address the issue there.

Baier also reported the assertion by former George H.W. Bush and Reagan administration attorney David Rivkin Jr. that, contrary to the critics' claims, detainees can challenge their detention:

BAIER: He [Rivkin] points out, while detainees do not have the full judicial rights U.S. citizens have to challenge detention in U.S. courts, known as habeas corpus, under this law, contrary to the public statements of administration critics, detainees can challenge their detention.

RIVKIN: The way it works is, if you're properly classified as an enemy combatant, then your detention is appropriate. If you're not an enemy combatant, and obviously your detention is not appropriate, you should be released.

However, Baier's description of the challenge "process" and Rivkin's subsequent claim that "under this law ... detainees can challenge their detention" assume that the government will promptly provide a detainee with a hearing for a determination of whether a detainee is or isn't "properly classified" as an enemy combatant. But as Media Matters has noted, the law does not set a deadline for the government to provide a detainee with a hearing. This means that under the new law, the "process" that Baier described -- one that allows eventual limited review by a federal civilian court -- effectively begins at the government's discretion.

At the same time, the law specifically bars noncitizens awaiting a CSRT determination from directly challenging their detention in federal civilian court by asking for a writ of habeas corpus:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

So under the measure, when the government arrests any noncitizen based on the unreviewed assertion that he or she is an "unlawful enemy combatant," that person's ability to challenge the detention effectively depends entirely on the government's willingness to provide a hearing, which the government can postpone indefinitely. Effectively, the law grants the president the authority to detain any noncitizen within the United States or outside its borders, for any reason, for as long as the campaign against terrorism continues.

From the October 18 edition of Fox News' Special Report with Brit Hume:

HUME: That bill the president signed yesterday dealing with the treatment and trial of detainees is now the law of the land, but it remains a subject of intense controversy. So, what are critics saying the bill does, and what does the bill actually do?

Chief White House correspondent Bret Baier reports.

[begin video clip]

BAIER (voiceover): Even after the president signed the Military Commissions Act into law Tuesday, it was still stirring controversy. Critics have said for months the system the law sets up is unfair and unconstitutional.

LEAHY: It would perpetuate the indefinite detention of hundreds of individuals against whom the government has brought no charges and presented no evidence, without any recourse to justice whatsoever.

BAIER: This line of criticism continued even after the bill was signed into law.

DASKAL: What this means is that detainees who are locked up by the government cannot get to court to challenge the legality of their detention even if they're innocent, even if the government made a mistake.

BAIER: But senior administration officials say these statements are just flat wrong. They say it's all laid out in the 38 pages of the new law.

A detainee first goes through a process to determine his or her status. A U.S. military panel, called a Combatant Status Review Tribunal, determines if the detainee is a, quote, "unlawful enemy combatant." The detainee has the right to challenge that status determination in federal court, specifically the D.C. Circuit Court of Appeals, considered the second most powerful court in the country. If the Court of Appeals upholds the tribunal's judgment, the detainee has the right to petition the most powerful court, the U.S. Supreme Court, to address the issue there.

David Rivkin worked in the Reagan and first Bush administrations. He is now a United Nations human rights expert who has written extensively about the Military Commissions Act.

He points out while detainees do not have the full judicial rights U.S. citizens have to challenge detention in U.S. courts, known as habeas corpus, under this law, contrary to the public statements of administration critics, detainees can challenge their detention.

RIVKIN: The way it works is if you're properly classified as an enemy combatant, then your detention is appropriate. If you're not an enemy combatant, and obviously your detention is not appropriate, you should be released.

BAIER: But the appeals don't stop there. If a detainee is tried in a military commission and is found guilty, the entire commission record is first reviewed by the convening authority. Then the detainee has the right to appeal the commission's verdict in front of a three-judge panel sitting on a court of military commission review. If that panel upholds the conviction, the detainee has the right to appeal to the D.C. Circuit Court of Appeals. And if that court also upholds the commission's verdict, the detainee can petition to be heard at the U.S. Supreme Court.

RIVKIN: There's more due process and more involvement by the civilian courts than in any other situation in human history involving enemy combatants and, actually, in some ways, more than you would get as a U.S. serviceman who had been put for courts-martial, because you do have a shot at the Court of Appeals.

[end video clip]

BAIER: Detainee appeals built in to what White House officials now call a misunderstood and mischaracterized law. Brit.

HUME: Bret, so what's the view there of what will happen to this measure? Because you hear that it's going to be quickly challenged -- indeed, it may already be challenged in the court -- and will end up before the U.S. Supreme Court?

BAIER: Well, Brit, there's a confidence here. Senior White House officials say they expect it to be challenged in court, but they believe that if it ends up back at the U.S. Supreme Court, that the U.S. Supreme Court justices laid out all of their stipulations in the majority opinion back in June, essentially saying if Congress weighs in on this and lays out the guidelines and structure for these military commissions, that they are OK with them moving forward. They believe then it will be constitutional and will be upheld by the Supreme Court.

HUME: Bret, thank you.

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