Balkinization  

Monday, September 11, 2006

Third Draft of Warner-Graham Bill on Military Commissions

JB

The third version of the Warner-Graham bill is here. Sad to say, this bill is not getting better than the previous draft, and in some ways it is getting worse. It prevents judicial suits for damages for violations of the Geneva Conventions, eliminates habeas relief for aliens held outside the United States, thus effectively reversing the Rasul decision, and narrows the War Crimes Act, substituting language about "grave breaches" for the general prohibition on violating Common Article 3. The new version would remove some (but not all) of the CIA interrogation techniques from prosecution under the War Crimes Act; I am not sure whether the ban on cruel, inhuman and degrading treatment as defined would cover waterboarding-- I certainly hope it would, but you never know.

Comments:

Is the idea here that aliens outside of the U.S. (per Kennedy, I assume Gitmo doesn't fit that bill) only receive habeas by the discretion of Congress? Stevens in Rasul implies the current law meets the reach of what the Constitution protects.

The wording of the command suggests the point. If under our control, habeas should apply ... unless it is "suspended," which suggests a temporary period. Scalia in his Hamdi dissent suggests suspension decisions are political questions left to Congress.

I know that ruling concerned citizens, but that principle would hold either way. It also is a debatable one that was dicta joined by two justices. Still, it opens up congressional discretion if the suspension is clear. But, the description here implicates removal of habeas protections, not temp. suspension.

Lindsey Graham's arguments that habeas was never meant to cover this area (broadly interpreted by him to mean military detainees who in the past clearly had coverage) underline the point. Maybe, a bit of clarification on the point would be helpful.
 

John Yoo summarizes the last 5 years in two short sentences, by Glen Greenwald:

UC Berkeley law Professor John Yoo, who as a Justice Department lawyer was one of the Bush administration's chief legal theorists, summarized its view in his forthcoming book, "War by Other Means":

"We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.''

 

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