Tuesday, November 15, 2005

The Senate's Detainee Bill Makes Everyone Unhappy; This Must Be a Good Thing

According to this Washington Post report, the Senate may have reached a deal on the controversial "Graham Amendment" stripping federal courts of habeas jurisdiction over appeals by Guantanamo detainees (which Bobby and I have blogged about here and here and which SCOTUSBlog discusses here). (The full text is posted above).

    The bill on first glance seems pretty reasonable, especially since the Senate will demand that the bill be linked to the McCain Amendment establishing uniform standards for the treatment of detainees. But it is likely to make all sides unhappy.

    The Bush Administration is (wrongly, I think) opposing the McCain Amendment and is currently taking the position that the Guantanamo detainees have no constitutional rights cognizable in federal courts. The supporters of rights for Guantanamo detainees will hate the fact that this legislation confirms the constitutionality of trials by military commission. Moreover, while the compromise appears to confirm some federal court jurisdiction to review detainees appeals, it limits such review to the D.C. Circuit, which is likely to take a deferential view of such military commission trials and is less likely than the district courts of finding such trials constitutionally defective.

    So everyone loses, at least a little bit. This probably means, however, that the compromise is a good one. We'll see.


    Blogger Charles Gittings said...

    There's nothing reasonable about it:

    It's simply criminal and unconstitutional - 18 USC 2441(c)(2) pursuant to Hauge IV (1907) art. 23(h).

    This is the stuff that NAZIS are made of.

    11/15/2005 10:27 AM  
    Blogger randomopinion said...

    "The supporters of rights for Guantanamo detainees will hate the fact that this legislation confirms the constitutionality of trials by military commission."

    Pardon? Since when does enacting legislation confirm the constitutionality of the subject matter of that legislation? I was of the impression that only the Supreme Court had that capacity.

    To reverse the Supreme Court's decision via legislation is another thing. In this case Congress won't even wait until the Supreme Court decides.

    How (un)democratic.

    11/15/2005 11:29 AM  
    Blogger Andreas Paulus said...

    Because I had attacked the original version on this blog, here my initial feelings on this one:
    (1) On the most basic level, my concerns have been met: foreign detainees have the right to have their convictions or designations reconsidered by a civilian court. Jurisdiction is preserved in the cases pending, even if some of the underlying law has been changed. The DC Appeals Court will now also have the right to determine whether the procedures of the tribunals and commissions are constitutional.
    (2) A further positive point: Some (not enough) legislative control over the tribunal or commission process has been established, although Congress has still not fulfilled its duty to finally legislate the ominous 'military commission' procedure.
    (3) On the negative side, factual determinations of the review and military tribunals will stand, and the possibility of pre-trial review has been removed, even if torture is involved.
    I may be called naive, but I consider this new version, as a whole, a positive development. I find it still unclear whether or not international law is considered relevant "law" for Appellate Court review, but I suppose it does. In addition, as a German, I'm sensitive to the throwing around of the "Nazi" label, Charles, and, while highly critical of the whole Gitmo affair, frankly, I think this label is completely unacceptable here.
    Best, Andreas

    11/15/2005 12:57 PM  
    Blogger Julian Ku said...

    Two points:

    (1) To clarify my post in response to randomopinion. The main challenge to the commissions has been that the President lacks constitutional authority to establish the commissions absent congressional approval. This amendment almost certainly constitutes congressional approval of the commissions, thus removing that avenue of constitutional challenge. No doubt detainees can still challenge the tribunals as violating their rights and I agree that this legislation wouldn't affect their ability to make this challenge.

    (2) Andreas, I agree with almost all of your analysis (Big Surprise!). I think there is a fair amount of review here, and I think this will really have a fairly dramatic effect on the conduct of the military commission trials.

    11/15/2005 2:51 PM  

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