The Senate passed a modified version of the amendment I wrote about last night. (Roll call here.) The modified version (text here (pdf)) still strips detainees of any right to a petition of habeas corpus, but allows the DC Circuit Court of Appeals to hear claims from them. The problem, though, is that those claims are very, very limited. To quote the new version: they
"shall be limited to the consideration of whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the procedures and standards specified by the Secretary of Defense for Combatant Status Review Tribunals."
What this means is that all the court gets to consider is whether or not the Combatant Status Review Tribunal Hearing for the detainee in question met the relevant standards. It does not get to consider such issues as: whether those standards are themselves legal or Constitutional. As far as I can tell, it also does not allow a detainee who has been determined to be innocent, but who has not been released, to ask the Court to be released: if the CSRT that found him innocent acted in accordance with its own standards, then the Court cannot consider such further details as whether he has in fact been released.
Don't think this can't happen. There are people who are being held despite the fact that they have been found not to be enemy combatants. An example from the Washington Post:
"In late 2003, the Pentagon quietly decided that 15 Chinese Muslims detained at the military prison in Guantanamo Bay, Cuba, could be released. Five were people who were in the wrong place at the wrong time, some of them picked up by Pakistani bounty hunters for U.S. payoffs. The other 10 were deemed low-risk detainees whose enemy was China's communist government -- not the United States, according to senior U.S. officials.
More than 20 months later, the 15 still languish at Guantanamo Bay, imprisoned and sometimes shackled, with most of their families unaware whether they are even alive."
But the good news is: We can still do something about this. Sen. Bingaman has an amendment which will strike the jurisdiction-stripping provision of Graham's amendment. It should come up for a vote early next week. So please, please, call your Senators again, and ask them to support Bingaman's amendment to Graham's amendment to S. 1042.
Some particularly crucial Senators:
Collins (ME) T: (202) 224-2523 F: (202) 224-2693
Dewine (OH) T: (202) 224-2315 F: (202) 224-6519
Mccain (AZ) T: (202) 224-2235 F: (202) 228-2862
Snowe (ME) T: (202) 224-5344 F: (202) 224-1946
Warner (VA) T: (202) 224-2023 F: (202) 224-6295
Hagel (NE ) T: (202) 224-4224 F: (202) 224-5213
Conrad (D Nd)T: (202) 224-2043 F: (202) 224-7776
Landrieu (D LA) T: (202)224-5824 F: (202) 224-9735
Lieberman (D CT) T: (202) 224-4041 F: (202) 224-9750
Nelson (D NEB) T: (202) 224-6551 F: (202) 228-0012
Wyden (D OR) T: (202) 224-5244 F: (202) 228-2717
Thanks to everyone who calls. And thanks to CharleyCarp, who is my personal hero just now. The knowledge that there are people who are willing to work to secure the freedom of detainees they do not even know is one of the things that gives me hope, and that makes me love my country.
Our country should never be the sort of place where the Secretary of Defense can just drop someone into a legal black hole, where the laws cannot reach, and whence there is no appeal. And we should not tolerate attempts to turn it into such a place. We claim to be a nation of laws; habeas corpus is one of the foundations of those laws, and it is too precious, and too important to the country we want to be, for us to throw it away.