an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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. Continuing coverage over at Obsidian Wings. [UPATE: Katherine and hilzoy over at OW are in the midst of a series of posts responding to Senator Graham's arguments in support of his amendment. The first of those posts includes a link to Graham's statements on the Senate floor.]
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.
It's conceivable that some of the GTMO detainees might still have a constitutional right to habeas -- but although the Rasul decision doesn't rule out the possibility, prevailing on such a constitutional claim would probably require the Court to overrule or sharply distinguish Johnson v. Eisentrager. Also, as Steve Vladeck explains here, there are complex Federal-Courts-final-exam-like questions about the constitutionality of the Graham Amendment itself. But the fate of such a constitutional challenge would be decidedly uncertain. Therefore the Graham Amendment could be a very serious development for several of the most important pending and future cases concerning the conflicts with Al Qaeda and the Taliban.
UPDATE: Mark Kleiman asks three questions. I'll provide some tentative answers that I think the proponents of the Graham Amendment would offer, and invite others to chime in in the comments section:
1. Can this be reconciled with the provision in Article 1, Section 9, forbidding the suspension of habeas corpus except in cases of rebellion or invasion?
A: The Graham Amendment almost certainly is intended, and would be construed, to withdraw only statutory habeas jurisdiction -- the sort currently authorized by 28 U.S.C. 2241, according to Rasul -- and not any jurisdiction to hear constitutional habeas petitions. I don't believe there's any caselaw on the question of whether the Suspension Clause of Article I, Section 9 applies to withdrawals of previously conferred statutory habeas -- but I'm doubtful: Typically (but not invariably), Congress can at point B take back a statutory benefit that it had conferred at Point A, including a statutory right to invoke federal court jurisdiction.
To be sure, if I'm right, courts would continue to have jurisdiction to hear constitutionally based habeas petitions. The problem, however, is that it's not clear that aliens overseas have constitutional rights to habeas -- not, in any event, unless the Court overrules or distinguishes Eisentrager. 2. If the Congress can deny aliens access to the courts to challenge their detention, what would keep it from doing the same to citizens?
A: Citizens undoubtedly do have a constitutional right to file habeas petitions in certain circumstances. Congress could eliminate that right, too, but in order to do so, it would have to find that public safety requires it, because of "Rebellion or Invasion." Article I, Section 9.
3. If the principle of court-stripping is valid, is there any Constitutional right that cannot be effectively abolished by a simple Congressional majority?
A. Congress isn't eliminating any substantive right, constitutional or otherwise. It is "only" eliminating a statutory right to file certain habeas petitions. Obviously, eliminating judicial review will have a dramatic impact on the ability of GTMO detainees to enforce any constitutional rights they may have -- but that only raises two further questions: (i) whether aliens overseas have constitutional rights (one of the principal questions in the pending Rasul/Al Odah case), and (ii) whether Congress must provide a judicial remedy for every violation of constitutional right. Posted
by Marty Lederman [link]
Very interesting post Marty. Here's a question:
The detainees at Guantanamo have been there since early 2002. Their cases really begin then, and if they are entitled to relief they are entitled to it then. Meanwhile, their cases have been dragged out and obsfucated by the government with this long series of really silly and dishonest appeals.
Why isn't Graham's amendment an ex post facto law here?
And I hate to be a broken record, but when you are dealing with a set of policies and an administration that are broken records, it's difficult not to...
The Graham amendment is a war crime in direct violation of 18 USC 2441(c)(1-3) in reference to Geneva grave breaches, violations of Hague Annex art. 23(h), and Geneva common art. 3 -- just like the administration's policies are.
But I suppose that I should welcome the amendment, because I firmly believe that the constitutional grounds for overturning Eisentrager, Yamashita, and Quirin are overwhelming and clear. Each is in fact MOOT under the current laws.
And I submitted a sworn statement to the Judiciary Committee that included a 20 page commentary on the Hamdan decision and several earlier briefs and articles which get well into the details of that opinion; see:
Wow. I'm really worried that we risk getting into a very dangerous standoff between two branches of government.
My old fed courts professor -- a very conservative type I might add -- used to harangue us to no end complicated questions about the constitutionality of these sorts of laws, but he always ended the lecture with something like this:
"We haven't gotten any clear answers to these questions because Congress knows better than to create a constitutional crisis. Politicians rattle their swords, but in the end, everybody knows the system would break down if they go too far. So cooler heads prevail, and they always back down."
It seems that the Rasul intimated that the Gitmo prisoners would be entitled by the Constitution to habeas.
If Gitmo is pretty much part of the U.S., as Rasul all but said, then the Gitmo prisoners would have the same constitutional rights as people picked up and detained in New York City.
The Supreme Court invited this showdown by ruling as they did in Rasul. If the Graham Amendment passes, then we'll see how serious the problem gets. My guess is that the Court will (and should) back off b/c now Congress has expressly backed up the executive.
I don't like Bush, and don't like Gitmo, but right or wrong the President and Congress have the right to determine how the U.S. conducts its foreign affairs. Maybe our allies will continue to shame us into performing better, but it's none of the business of federal judges.
Of course, the Court also botched the Hamdi case as well. U.S. citizens are entitled to criminal trials, as Stevens and Scalia said in dissent, not some bogus administrative hearing.
Given Hamdi, it's hard to imagine what sort of due process Gitmo prisoners would get, even if the Graham Amendment is held unconstitutional.
Here's a political question that might be outside of the legal focus of this blog: Why is Senator Graham sponsoring this bill? I find it very confusing that he leads the charge to restrict the availability of habeas while at the same time siding with McCain to reduce the availability of torture. Perhaps it is a reflection of faith in the operation of government -- review of detainment is less necessary when there are greater restrictions on government actions.
This is not a foreign policy question only. It is a question of rights. Admittedly, the adopted version provides for protections against torture. But it provides for little else. Otherwise, the basic message is: foreigners in US custody abroad have no rights, and if they have constitutional rights or international human rights, there is no remedy. No wonder that the rest of the world takes offense. A question on separation of powers: Of course it is not unheard of that the law changes during an ongoing court procedure. But to my mind it makes a huge difference if legislation is intended to take away jurisdiction. It may not be a technial violation of the Constitution, but it seems at least antithetical to the idea of an independent judiciary. And if constitutional rights are involved, is it permissible to take away any habeas jurisdiction? Best, Andreas
"(c) Definition.-- As used in this section the term "war crime" means any conduct-- * * *
"(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907[.]"
Geneva is included by (c)(1) & (c)(3), but Hague Annex Article 23(h) makes this all very plain:
"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."
The U.S. Senate has no authority to violate that law: Senator Graham is aiding and abetting WAR CRIMES.
See also the Martens Clause (Hague IV 1907, preamble):
"According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.
"It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice;
"On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.
"Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.
"They declare that it is in this sense especially that Articles 1 and 2 of the Regulations adopted must be understood."
Noting that Hague Regulations ("HR") arts. 1-2 are precisely those dealing with POW status and have been replaced by Geneva III POWs arts. 4-5.
Geneva Common Article 3 and the ICCPR also stand against Sen. Grahams criminal proposal.
As to why a USAFR JAG Col, who should and undoubtedly does know this law would sponser such an outrageously dihonest and criminal amendment, my theory is simple: he was BOUGHT. Graham is amibitous and Bill Frist is planning on running for president. I think the deal is either he will be the VP candidate or the new Senate Majority leader.