Confusing Developments Senate-Side on GTMO Detention, Commissions and Habeas

Marty Lederman

(Cross-posted in part at SCOTUSblog.)

[UPDATE: The Senate approved the Graham/Levin "compromise" amendment (see below) by a vote of 84-14. All of the No votes but one (that of Sen. Specter) were cast by Democrats.]

The 9/11 Commissioners have lambasted the Administration for doing absolutely nothing to implement the 9/11 Commission's recommendation that the U.S. unequivocally adopt and implement the standards of Common Article 3 of the Geneva Conventions for our treatment of terrorism detainees. See pages 8-9 of the Commissioners' new Report.

Here's a modest and simple suggestion for Senator McCain and others who are valiantly trying to bring order to this chatoic situation: Wouldn't it be a major step forward for Congress to implement the 9/11 Commission's recommendation by expressly codifying the standards of Common Article 3 -- in order to set a statutory baseline for both treatment and trial of detainees across-the-board?

Meanwhile, over in the Senate, the plot thickens on the Graham habeas-stripping amendment that the Senate approved last week. Senator Bingaman is offering an amendment to ameliorate the effects of the Graham Amendment. A group of more than 350 law professors, in an effort organized by the Brennan Center for Justice at the NYU School of Law, brennan.habeas.letter.pdf">have urged the Senate to vote for the Bingaman Amendment and against the Graham Amendment. [UPDATE: The Senate voted 54-44 against the Bingaman Amendment. Four Republicans for (Chafee, Smith, Specter, Sununu); four Democrats against (Bayh, Conrad, Lieberman and Nelson (Neb.)).]

But the much more likely vehicle for Senate action this week -- any minute now, in fact -- is a compromise worked out between Senators Graham and Levin (among others). [UPDATE: The Senate has approved the "compromise."]

I have some questions and concerns about the compromise, discussed below. But first, on the tactical developments, here's the explanation from the Washington Post:

A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.

The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.

Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.

"McCain's amendment needs to be part of the overall package, because it deals with standardizing interrogation techniques and will reestablish moral high ground for the United States," Graham said.

Such broad legislation would be Congress's first attempt to assert some control over the detention of suspected terrorists, which the Bush administration has closely guarded as its sole prerogative. By linking a provision to deny prisoners the right to challenge their detention in federal court with language restricting interrogation methods, senators hope to soften the administration's ardent opposition to McCain's anti-torture provision -- or possibly win its support.

The Justice and Defense departments have expressed strong support for legislation that would curtail a flurry of civil litigation coming out of the military's detention camp at Guantanamo Bay, Cuba, according to some senators involved in the negotiation. "The truth is, this is something the administration would dearly like," Sen. Jeff Bingaman (D-N.M.) said of the language curtailing detainee access to the courts.

But Vice President Cheney, a major architect of the U.S. anti-terrorism effort, is strongly opposed to any compromise that includes the McCain provision, the senators said. Cheney personally lobbied against McCain's measure to ban abuse and torture, contending that its language was too broad and would prohibit the use of interrogation methods necessary to secure vital national security information. After the Senate approved the measure as part of a defense spending bill, he pushed to exempt the CIA from its provisions.

Now Cheney has turned to House Republican leaders to hold McCain's language back.

"It's fair to say the White House has made the case -- both the president and the vice president -- that the McCain amendment is harmful," acting House Majority Leader Roy Blunt (R-Mo.) said last week.

(More on this amendment from Katherine over at Obsidian Wings.)

I have not had time to review the compromise 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.

My initial, seat-of-the-pants 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.

Is it nevertheless worth enacting this "compromise" now if that's the cost of enacting the McCain Amendment prohibiting cruel, inhuman and degrading treatment? I'm not sure. What do others think?
Posted 10:46 AM by Marty Lederman [link]