SAN FRANCISCO, Oct 19: The military tribunals legislation signed by President George Bush on Tuesday marks the first time in the history of the United States that the right of habeas corpus has been curtailed by law for about 12 million permanent residents or Green Card holders.

Although the debate about the new legislation focused on trials at the US prison facility at Guantanamo Bay, Cuba, it also takes away the right to go to court for non-citizens in the United States if they are declared ‘unlawful enemy combatants’.

This law creates two classes of persons inside the United States, citizens with rights and non-citizens — 12 million permanent residents without rights.

Till Oct 17, the principle of habeas corpus meant that anyone thrown into jail had a right to ask a judge to hear his case. He also had a right to go free if the government could not show a legal basis for holding him.

The new law says: “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 ... to have been properly detained as an enemy combatant or is awaiting such determination.”

In early drafts, the bill would have cut off habeas corpus only for unlawful combatants detained “outside the United States” and at Guantánamo Bay. However, the final version deleted that phrase.

Now it not only bars the men held at Guantánamo Bay from challenging their detention in court, but it closes the courthouse door to non-citizens (Green Card holders) who are arrested in US and held by the military as a possible ‘unlawful enemy combatant’.

The new law also defines this term broadly to include not just terrorists and fighters, but also people — including American citizens — who have “materially supported hostilities against the United States.”

Article 1, Section 9 of the US Constitution makes clear that habeas corpus can be “suspended,” but only during extreme emergencies. It says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”