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November 11, 2005

Graham gulag amendement, round 2

Yesterday I wrote about Sen. Lindsay Graham's proposed amendment to a military budget bill that would strip "enemy combatants" of habeus rights in U.S. courts. Unfortunately, yesterday the Senate passed the bill with a modified version of Graham's amendment.

If approved in its current form by both the Senate and the House, which has not yet considered the measure but where passage is considered likely, the law would nullify a June 2004 Supreme Court opinion* that detainees at Guantánamo Bay had a right to challenge their detentions in court.

Nearly 200 of roughly 500 detainees there have already filed habeas corpus motions, which are making their way up through the federal court system. As written, the amendment would void any suits pending at the time the law was passed. [NYT permalink]

Under the modified amendment, detainees retain very limited access to US courts. Courts will only be allowed to consider whether Combatant Status Review Tribunals followed their own rules, not whether the tribunals decided correctly, or whether the tribunal system is Constitutional.

There is still a chance to reverse the gulag amendment:

Five Democrats joined 44 Republicans in backing the amendment, but the vote on Thursday may only be a temporary triumph for Mr. Graham. Senate Democrats led by Jeff Bingaman of New Mexico said they would seek another vote, as early as Monday, to gut the part of Mr. Graham's measure that bans Guantánamo prisoners from challenging their incarceration by petitioning in civilian court for a writ of habeas corpus. [Ibid]

Hilzoy of Obsidian Wings has more, including contact information for key Senators.

*That opinion is Rasul v. Bush, see MoonOverPittsburgh for a clear explanation of the legal implications of Graham's amendment.


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I don't understand this law. Wouldn't this officially create second judicial system permanently? (ie. we do afterall have permanent base and detention centers all over the globe)

'mkay time to dig around, there are several constitutional law professor blogging to. maybe they post something.

Opinion and analysis start flowing in.


This amendment, if enacted, would by its terms appear to eliminate the jurisdiction of the courts -- and thus make meaningless the habeas petitions at issue -- in pending cases, such as, most importantly, the Hamdan case the Court decided to hear this week, and the extremely significant Rasul cases on remand, which are presently pending in the U.S. Court of Appeals for the D.C. Circuit. As Bobby Chesney explains in further detail, this would be a very momentous development, and would probably mean that most or all of the Administration's decisions on, and conduct regarding, detention, interrogation and abuse at GTMO, would be impervious to judicial review and oversight.

Senator Bingaman reportedly will offer an amendment to the Graham Amendment on Monday that would delete the withdrawal of habeas; but if that effort fails, the New York Times reports that the Graham amendment is likely to pass the House as well and to be signed by the President. Continuing coverage over at Obsidian Wings.

Senate Dems to Seek Reconsideration of Graham Amendment

Nine senators were absent from Thursday's vote on Sen. Graham's amendment to an appropriations bill that would strip Guantanamo detainees of the right to challenge the legality of their detentions in federal court using a writ of habeas corpus.

On Monday, Sen. Jeff Bingaman of New Mexico will seek a new vote on Graham's amendment, trying to convince Senators on the Judiciary Committee to gut the part of the Graham amendment that prevents detainees from using the writ.

So it is possible that some lawmakers could have it both ways, backing other provisions in Mr. Graham's measure that try to make the Guantánamo tribunal process more accountable to the Senate, but opposing the more exceptional element of the legislation that limits prerogatives of the judiciary.

No Habeas for Them, No Habeas for Us

Tinkering with habeas corpus is a dangerous thing. Today, Sen. Lindsay Graham and his fellow Senators told you they are only restricting habeas rights of enemy combatants, i.e., foreigners. But on November 16, the Senate Judiciary Committee will hold a second hearing on S. 1088 (pdf), a bill that would gut habeas corpus rights for Americans.

The legislation, known as the Streamlined Procedures Act, would effectively kill the writ of habeas corpus by stripping federal courts of jurisdiction to consider cases in which a prisoner's constitutional rights may have been violated. The legislation would apply to all criminal cases, including capital cases. The legislation is sponsored by Sen. Jon Kyl (R-AZ) in the Senate and Rep. Dan Lungren (R-CA) in the House.

I warned about the bill in July, quoting an LA Times article:

Virginia Rep. Bobby Scott, the ranking Democrat on the subcommittee considering the bill, conceded there was little chance of blocking it in the House. "The House has been very supportive of anything that would strip the innocent of a fair hearing. This bill will ensure that more innocent people will be put to death," he said in a telephone interview."

I don't understand this law. How can they expect it to stand up to a constitutional challenge?

Section I, Amendment XIV -
"nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Do they think that the Federal Government is not bound by the same strictures? The way I read it is as follows:

Person a is under your jurisdiction - they must be treated like a US citizens and afforded due process.
Person a is _not_ under your jurisdiction - you are holding them illegally.

Posted by: Chris Beck | November 11, 2005 at 11:29 AM

I think what they are trying to do with the amendment is saying 'Look, Dubya's military court is just as good. It's due process too. Really.'

>No Habeas for Them, No Habeas for Us

THANK you. This is what I was getting at in the other thread. The whole idea behind it is that Dubya, and those like him, are thinking, "well--we should make it so we can imprison whoever we want, with or without grounds. They'll never imprison a Bush, after all, so it works great for me!"

The problem is, of course, that eventually, someone with a different uniform will be doing the arresting. These precedents will be used against us. I'm afraid that real war is coming, and not just with a few Iraqi kidnappers.

Can the Graham amendment <>possibly be constitutional?

When I was writing about this last night, I went down a judicial rabbit hole and found this, withJustice Clark>telling the INS that a guy hasa right to his day in court.

The Founders abhorred arbitrary one-man imprisonments. Their belief was - our constitutional principles are - that no person of any faith, rich or poor, high or low, native or foreigner, white or colored, can have his life, liberty or property taken "without due process of law." This means to me that neither the federal police not federal prosecutors nor any other governmental official, whatever his title, can put or keep people in prison without accountability to courts of justice. It means that individual liberty is too highly prized in this country to allow executive officials to imprison and hold people on the basis of information kept secret from courts.

1953? Those were the days?

It's for the courts to say what the law is, but for the Congress to say what their jurisdiction is (within limits). Even if it was a jurisdiction-stripping provision I agreed with I'd be chary, as such changes are (hate this phrase but I'm gonna' use it) slippery slopes indeed.

Funny what some of the GOP were saying then, and what they are saying now. Here is Rep. Sensenbrenner wrote in February 2002 on the military tribunals,

"President Bush’s Military Order authorizing the use of military tribunals protects the principles of due process. The accused will receive full and fair trials; they will be informed of the charges against them; they will have a right to qualified counsel; and they will have the opportunity to present a defense. In addition, anyone tried before these tribunals will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in a federal court. These are the fact about how any military tribunals would operate.

All these rights protect due process – and are rights that were never afforded over 3,000 innocent victims from September 11th. We are taking the high road in a war being waged by extremists against not just the United States but against freedom, democracy and civilization."

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