Graham Amendment

Here's an interesting bit attached to the Defense Appropriations Bill. This is a quote from SCOTUSblog. I'll leave the links intact.

The Senate yesterday by a vote of 49-42 passed an amendment to the Defense Appropriations bill, offered by Lindsey Graham, section (d) of which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. This would, in effect, overrule the Supreme Court's June 2004 decision in Rasul v. Bush.

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.

The belief is that this will pass the House and be signed by the President.

I haven't found much on reasonable arguments against the Amendment. Obsidian Wings calls it an evil amendment, but doesn't make much of an argument against it.

This would be bad enough if we did not have any reason to distrust the administration. But now, when people have been held for years without any sort of trial or review, when there have been stories of abuse and mistreatment, and when the administration is asserting its right to do whatever it wants with detainees, bound by neither laws nor treaties, is the worst possible time to propose a bill like this.

The right of habeas corpus -- the right to challenge the legality of your detention -- is one of the foundations of our legal system. As Justice Stevens wrote in Rasul v. Bush:

"What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive'’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners'’ claims."

In Rasul, the Supreme Court held that detainees do have the rights Senator Graham now wants to strip them of. And the Court was right: our system of justice does not and should not countenance the indefinite detention, without any right to appeal, of anyone at all.

I don't see any relevance of their distrust of the present administration. The whole question appears to me to be more related to whether congress can change who has oversite in these cases. The Stevens quote is spot on though. Leaving detainees in limbo, especially if they are innocent, isn't justice.

I have found this article from Opinio Juris that states why the amendment is reasonable and one entry on a tenative defense. Which rather amusingly are the same post under different titles.

(1) Congress plainly has constitutional authority to regulate the scope of federal court jurisdiction over the Guantanamo detainees. As Bobby pointed out, those detainees may certain have constitutional habeas rights, but the scope of those rights are somewhat uncertain and courts will certainly give Congress broad discretion to regulate those rights.

(2) The amendment would create congressional oversight over the procedures governing the detention of the Guantanamo detainees because the Defense Department would have to submit their procedures for determinations as to the legal status of those detainees to Congress as well as any changes in the procedure.

(3) The most controversial part of the Amendment is the part removing the jurisdiction of the federal courts from "any action" based on the DoD's new policies on detention or "any action challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant."

Here is the congressional oversite part.

I suppose we'll have to wait and see if this stands a constitutional test before the SCOTUS.