From the AP:
"A Senate Republican wants to bar suspected foreign terrorists held at the U.S. prison in Guantanamo Bay, Cuba, from challenging their detentions in U.S. courts, a proposal that is drawing protest from human rights groups.
Sen. Lindsey Graham, R-S.C., said he also faces some resistance from Senate colleagues and the White House as he considers whether to try attaching his proposal to a defense bill the Senate is debating this week. Senators could vote on the proposal as early as Thursday."
"(1) In General: Section 2241 of Title 28, United States Code, is amended by adding at the end the following new subsection:
"(e) No court, justice, or judge shall have jurisdiction to consider -(1) An application for a writ of habeas corpus based on policies established by the Secretary of Defense under Section 1071 (a) of the National Defense Authorization Act for Fiscal Year 2006 filed by an alien who is detained by the Secretary of Defense, or
(2) any other action, challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant."
(2) Effective Date: The amendment made by paragraph 1 shall apply to any application or other action pending on or after the date of the enactment of this Act."
This is seriously bad news. As best I can tell, it strips the courts of all power to hear any habeas motion from a detainee, or any other challenge to a detainee's detention, and that this applies to any cases that have already been brought and are now pending.
This would be bad enough if we did not have any reason to distrust the administration. But now, when people have been held for years without any sort of trial or review, when there have been stories of abuse and mistreatment, and when the administration is asserting its right to do whatever it wants with detainees, bound by neither laws nor treaties, is the worst possible time to propose a bill like this.
The right of habeas corpus -- the right to challenge the legality of your detention -- is one of the foundations of our legal system. As Justice Stevens wrote in Rasul v. Bush:
"What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims."
In Rasul, the Supreme Court held that detainees do have the rights Senator Graham now wants to strip them of. And the Court was right: our system of justice does not and should not countenance the indefinite detention, without any right to appeal, of anyone at all.
I urge you to contact your Senators and urge them to oppose this amendment. The Center for Constitutional Rights says that the following are particularly important:
Lincoln Chaffee (R-RI) (202) 224-2921
Olympia Snowe (R-Maine) (202) 224-5344
Susan Collins (R-Maine) (202) 224-2523
Pete Domenici (R-NM) (202) 224-6621
Bill Nelson (D-Fl) (202) 224-5274
Arlen Specter (R-Pa) (202) 224-4254
Mike Dewine (R-Oh) (202) 224-2315
Sam Brownback (R- KS) (202) 224-6521
But call or email your Senators whether they are on this list or not, especially if they are Democrats who have shown some inclination to vote with the Republicans in the past, or Republicans who have shown some willingness to break with their party. (This should not be a partisan issue.)
This is just wrong.