Graham/Levin amendment adopted
on Nov 15, 2005 at 4:07 pm
Update: The Senate at midday Tuesday approved the revised Graham amendment, now known as the Graham/Levin amendment, to restrict court review of the U.S. military’s dealings with detainees. The vote was 84-14, with one senator from each party not voting. That proposal passed after the Senate had rejected, by a 54-44 vote, a less-restrictive version offered by Sen. Jeff Bingaman. The amended version was attached to the National Defense Authorization Act, S. 1042. That bill was passed, 98-0, and sent to the House. Here is the roll call on the Graham/Levin amendment. All of the No votes but one (that of Sen. Specter) were cast by Democrats.
Here is the draft amendment-to-the-amendment that Lyle references in his story below. Apparently the Senate is on the verge of voting on it, if it has not done so already. (More on this amendment from Katherine over at Obsidian Wings.)
I have not had time to review it carefully, let alone to consult with folks who know much more about these matters than I do. But my initial impression is that this bill, if amended, would still cut off numerous sorts of challenges to the Administration’s detention policies and practices and GTMO, and would raise innumerable ambiguities and unanswered questions. (Major caveat: The examples that follow are the result of an extremely preliminary and superficial review of the amendment. Therefore, they are subject to change, and I welcome comments from those closer to the scene, and from those with more expertise on these issues.)
For example:
— The bill would appear to eliminate review — on habeas, anyway — for detainees found not to be “enemy combatants” by the Combatant Status Review Tribunals but who nevertheless remain in detention, and detainees who have not been evaluated by such tribunals but who are being held indefinitely.
— The bill would appear to cut off habeas petitions for GTMO detainees contesting the conditions of their confinement (e.g., that they have been tortured or subjected to cruel, inhuman, and degrading treatment).
— The bill appears to be limited to detainees at Guanatanamo, which ironically enough might give detainees elsewhere around the world greater habeas rights than GTMO detainees would have.
— By eliminating all habeas peititons for GTMO detainees, would the bill end the Rasul/Al Odah and Hamdan cases? The final paragraph appears to be intended to preserve such cases, but it is very oblique.
— If those cases are preserved, do they need to be re-filed in the U.S. Court of Appeals for the District of Columbia Circuit, under the new procedures — and then only after a conviction?
— What would “exclusive jurisdiction” of the D.C. Circuit mean? Would there be any appeal from that court’s decisions?
— Would the statute establish congressional approval/ratification of the President’s military commissions — in some or all their particulars?
— A military commission conviction could be challenged on grounds that subjecting the alien to the President’s military commision Order was not “consistent with the Constitution and laws of the United States.” What about treaties? Customary laws of armed conflict? Are those included in “laws”? Would this very statute change the “law” of the United States with respect to the President’s statutory authority to convene the commissions?
— Will all the CSRT and Commission proceedings be governed by the new, Graham-proposed definition of “unlawful enemy combatant,” which I believe was added to the DoD appropriations bill last month in the Senate? (This is a very important question that hasn’t received enough attention yet.)
I’m sure this list could be multiplied many times over.
(Update: The first scheduled trial before a military commission was postponed on Monday. See post below. The fate of that case, involving Australian David M. Hicks, may depend on the outcome of congressional consideration of the judicial review issues.)
[Note: Commentary ahead.] My first impression is that this is a blunderbuss solution that cries out for careful and deliberate consideration and debate by congressional committees, where experts can weigh in and various questions can be examined and answered. Alas, that doesn’t appear to be a realistic option any longer.
