Habeas and Guantanamo: Breaking News

All right. There are two new amendments:

Graham has proposed an amendment to his own amendment, which is co-sponsored by Carl Levin and John Kyl. Here is a PDF of it. It still cuts off habeas but it allows more judicial review than the version that Graham stuck into the appropriations bill last Friday. Bingaman has also proposed a new amendment. Here's a PDF of that. It allows habeas, but it cuts off lawsuits challenging the conditions of confinement.

I know Graham's new amendment is an improvement over his Friday amendment, while Bingaman's amendment is, in an effort to garner votes, worse than his earlier amendment. I don't really know how much better and worse in either case. Of the four cosponsors of those amendments, I trust Levin and Bingaman quite a lot and Graham (after this episode) and Kyl (as always) not at all. And Levin has stated that he prefers Bingaman's amendment to the one he co-wrote with Graham and Kyl, but that one is still far preferable to the one that passed Friday.

The AP, Reuters, and the Washington Post have all written articles on these provisions. The Post article says the Levin/Kyl/Graham Amendment might be linked to the McCain amendment in an effort to get both of them through conference. I don't know if that's true, and I don't know if it's a good deal or a bad deal if it is true. At this point I don't trust Graham at all, and I don't trust McCain much. The only advice I can give is to name a few of the Congressmen in Washington who I think are the most trustworthy and dedicated on this issue: Levin, Durbin, Bingaman, Leahy, Feingold, Kennedy. Markey and I think also Murtha in the House. If you don't know what's going on, find out what they're doing and ask your own reps. to do the same.

I apologize for leaving everyone hanging like this. I can't tell you how frustrating it is to have done as much as possible to research this issue, which has such a huge effect on hundreds of people's lives and on what kind of country the United States will be, and to not even really understand what these bills mean on the day before the Senate votes on them. I went to law school, and have very smart people who know a lot about this issue trying to explain this to me, and I still feel like  I've wandered into this scene. As Judge Joyce Hens Green said of Moustafa Idr's trial, it would be funny if the stakes weren't so horribly high.

Unfortunately I don't think I can update this tomorrow, so hopefully some of our commenters can fill the gaps.

I should say, despite the negative tone of this post: the situation looks a lot better now than it looked Friday or last night. Thanks to everyone who linked or called their Senators.

(Graham, by the way, is still being a horrible demagogue about this:

"Graham said the Senate‘s support last week for his original amendment reflected lawmakers‘ frustration that habeas corpus claims "were being exercised by noncitizen foreign terrorist suspects to the point that they were flooding our courts."

Granting enemy combatants such access to federal courts gives "an enemy prisoner a right that an enemy prisoner has never enjoyed before in the law of armed conflict," he said."

False and false.)

Comments

[Katherine]

(oh, and I wrote this, not hilzoy)

[rd]

The compromise seems to be a step forward, but has a huge stumbling block. After setting forth some reasonable limits on the evidence and procedure to be used, it also makes the appropriate allowance of giving the Goverment's evidence a rebuttable presumption of truth. I would also include a requirement of military counsel with security clearance during the hearings. But the amendment then authorizes general review of the whole procedure according to the "Constitution and laws of the United States"
I have no idea what it means to authorize a review of a law by other laws. Which takes precedence and why? Second, a provision for generalized constitutional review basically
invites the courts to make something else up if they don't like what Congress has done. Since courts could assert this power if they wanted to anyway, it betrays a general tenativeness, an unwillingess to actually make a decision. It opens up the possibility of a drift towards something like an indirect version of a full blown civilian trial, with courts of appeals constantly kicking back decisions to the review panels until the results look like starting in federal district court. Some people like this possibility, others ensure me it will never happen. Congress should assert its own power to postitively define procedures, and if the courts want to balk, let them come in under their own steam in full awareness that the other two branches have crafted a solution in the firm belief that its a valid exercise of their constitutional authority.

But whatever happens, mark this: either Gitmo becomes a workable solution or we are headed for a world of pure extraordinary rendition and/or ghost prisons overseas. If the procedures imposed in Gitmo are unworkable, making it impossible to reliably hold and try Al-Queada detainees captured in a variety of contexts overseas; or if they're rampantly uncertain and shifting, then it will empty out, mostly with detainees being transferred to prisons in their native land, most commonly the gentle realm of Saudi Arabia, where almost 100 come from. Meanwhile we'll contine to deal with Al-Queada detainees. The hunt will continue; for many years at least we won't go back to a system of waiting for something to blow up and then flying over a few FBI agents. There will be more detainees; we just won't see them. We'll use our friendly foreign "partners" or CIA ghost prisons. I suppose this will be a prettier solution, goodhearted people will be able to sleep at night knowing that the horrors of Gitmo are no more. But its a human rights victory only for those who care about appearances more than actual outcomes.

[Jackmormon]

My handwritten letters on the basis of Friday's concerns should be near arrival in Wahington.

Early tomorrow morning was to be my consitutient's call. I'd really like to be able to call in and offer specific arguments about the bill at hand, especially given that my Senators Schumer and Clinton have 1)both sometimes punted and 2) have future ambitions in national politics.

[Frank]

rd- Do you really think that anyone is going to forget about the secret CIA prisons?

[Jackmormon]

I have to wonder: Would referencing this blog in an handwritten letter to my politicians make my petition seem more sincere? Or would a reference to a blog automatically justify the dust-bifd
'

[Anna in Cairo]

Why are people trying to find a compromise? Why don't these people get full civil rights that AMerican criminals get? I don't understand what a compromise is for. I don't understand what is wrong with them having full rights to a civilian trial.

[Phil]

Yes, that's the irony, Anna: We talk a lot of big talk about spreading democracy, and freedom, and values. But when the rubber hits the road, and we're given an opportunity to show that we allow even the worst of the worst a certain basic level of human and civil rights, we balk. Beautiful.

[Anna in Cairo]

After all, we are giving Saddam a full trial. Or we are trying really hard to ensure that he gets one, at any rate.

[salò]

It has been noted a number of times that suspending habeas corpus is not only creating a massive legal black hole for an unaccountable executive to exploit, but also that it sets a dangerous precedent that might lead to a stripping of habeas corpus for US citizens as well. According to CCJR, the Senate Judiciary Committe will hold their second meeting on a bill threatening to do just that (and sponsored by no other than John Kyl) as early as tomorrow.

Thus, isn't the Bingaman amendment, which leaves habeas untouched, substantially different in nature?

[CharleyCarp]

I would also include a requirement of military counsel with security clearance during the hearings.

My guess would be that you would draw a veto.

RD, you raise a good issue, but basically we're just going to have to run the risk of government lawlessness. The McCain amendment, shutting down torture and abuse by the CIA wherever it's holding prisoners, should be of real value in shutting off what you fear.

Your fear of the DC Circuit getting into some kind of micromanagement might seem possible to you on paper -- I don't buy it -- but really becomes untenable when you think of it being applied by CJ Ginsburg, Js Randolph, Sentelle, Williams, Henderson, etc etc. This is not the Warren Court.

Finally, I agree with you (as noted on CT) that design of a comprehensive system would be a better thing than the current system. That's one very good reason why Graham's amendment should be completely stricken. A real bill out to go to Judiciary (or Armed Services), there ought to be testimony from everyone with a stake, and a system ought to be designed that accounts for the various permutations (including applying it, or some version of it, to prisons other than Guantanamo).

The first issue, I would say, would be whether whatever court review or congressional oversight there is going to be, it actually applies to the real prisoners currently held. Graham proposes that new procedures be promulgated by DOD, but does not mandate that they be applied. This is a big deal. Suppose the Texas legislature decided that the death sentence situation there was so out of hand that the system needed to be revamped: defense lawyers who would stay awake during the trial were to be appointed, and paid enough to attract better folks. And you create a special capital sentence review board to review all aspects of any case that results in a death penalty, with the power to overturn it should there be even a hint of injustice. In connection with this, you would deprive the existing appeals courts of jurisdiction to hear capital cases. This would be great for all future capital defendants. It wouldn't mean sh*t for people on death row. In fact, they'd be way worse off, as their pending appeals would be dismissed, and they couldn't file new ones.

Texas would have a great system of which it could be very proud. It would be executing people for a long time to come who had been convicted under a system acknowledged by all to be fundamentally flawed.

[John Thullen]

Anna in Cairo:

I can't answer your very good question regarding compromise. But let me try.

The deliberative body of the U.S. Senate, which was designed by the founding fathers to blunt various stupidities through the application of compromise is doing its nasty but necessary job.

I love compromise. But now the institutions of the United States Government are dealing with two entities for whom compromise is considered, well, compromisable: Al Qaeda and the Republican Administration of George W. Bush and its various personages in the U.S. Senate.

Both of these entities are slightly different than any phenomena as yet encountered by the world's traditional institutions. Why? Because they don't answer to this world's traditional institutions.

They apparently deal only with God, who in his wisdom and because he doesn't really want to be bothered, gives them the answer they want to hear: "You are absolutely right!"

So, now, in the midst of this crypto-religious insanity (a sort of worldwide flu pandemic which affects only the brain), the rest of us and our institutions are having the tool of compromise turned against us.

We are now bargaining away habeas corpus.

That's my take as the blind man who always seems to get hold of the elephant by the gland that secretes world-wrecking religious ideology.

[David]

I see two huge problems with the revised Graham amendment.

First: while it allows for review of whether the tribunal's standards were legal and constitutional, it does so only with respect to whether it would be legal and constitutional to apply them to "an alien enemy combatant." There doesn't seem to be any provision for review of the question whether a particular detainee _is_ an enemy combatant. Anything the government could do to someone who was clearly guilty, it will be permitted to do to someone completely innocent.

Second: the review protections of the revised Graham amendment only apply to decisions made by the Combatant Status Review Tribunal, not to whether someone gets a CSRT review at all. We could hold a detainee in limbo indefinately, and their completely failure to get a CSRT hearing wouldn't be reviewable by any court. And if we did give them a CSRT hearing and refused to release them after a finding that they were innocent, it looks like that wouldn't be reviewable either.

The revised Bingamin amendment is, as one would expect, significantly better. Its limitations on habeas review don't apply at all to someone who has been cleared by a CSRT, and the special habeas review by the D.C. Circuit for which it provides includes review of the sufficiency of the evidence against a detainee and the overall lawfulness of that detainee's detention. So if you're completely innocent and the (lack of) evidence so indicates, the judiciary will be able to recognize that and grant you your freedom.

The revised Bingamin amendment isn't perfect. I think district courts are better suited than a court of appeals to the factfinding that might be necessary in order to properly adjudicate a habeas petition. And barring review of "claims based on living conditions," as the revised Bingamin amendment does, is seriously problematic when those conditions have been like the ones that we've heard about. But at least the Bingamin revision preserves the basic principle that people are entitled to a court review of whether the executive can properly justify their detention.

[Anna in Cairo]

John Thullen, you write, referring to the Bush Admin and to Al Qaida:

"Both of these entities are slightly different than any phenomena as yet encountered by the world's traditional institutions. Why? Because they don't answer to this world's traditional institutions."

OK. I am allowing my stupidity to show here. But I always thought that normal criminals (not Al Qaida, but your run of the mill murderer, or bank robber) are "not answering to this world's traditional institutions" in that they are BREAKING the law, yet they are tried ACCORDING to the law they feel themselves above or outside. And that, in their case, this is what rule of law is all about.

Even though Al Qaida feels itself to be above the law in a different kind of way to a common criminal, I am missing the argument that states that any person who we think might possibly have a connection to them (which has not been proven in the case of the Gitmo people from how I understand it) does not deserve the civil protections accorded to other criminals who think themselves above of, our outside of, the law when they break it.

Where is this argument?

I am not really sure how to respond to your comments about the bush admin itself because I feel it is an entirely separate issue. We have checks and balances so that Congress can step in and control a rampant executive, right - so the idea of compromising with this rampant executive to be not quite so rampant seems to me just not really doing their full job.

The entire argument about suspending any civil rights at all, whether it is the defendant's right to a trial, to habeus corpus, or to suing the government for being unlawfully detained without any charges, is like being a little bit pregnant. To me this country (The US of which I am a citizen) either has a rule of law, or it does not. Our current laws were designed for protecting those who violate them and break them. I don't see why religious megalomaniacs are in a different category. After all, though you think they are a new thing, I don't really think so.

[Barry]

The Bush administration is not something new under the sun; it's just something uncommon in US history - an government with largely effective control over all branches of government, a sweet crisis to justify war powers, massive support among concentrated wealth, and among a strong sect of false priests and their followers (these people aren't Christian; they were rejectors of Christ long before 9/11).

We've rarely seen such. Even during WWII, there was a Republican opposition in Congress, and massive hatred of FDR among the wealthy.

[CaseyL]

I'm sorry: I havne't been able to keep up with which amendments are still to be voted on.

Did Bingaman withdraw his original amendment, or was it already voted on, or what?

Should we call our Congresspersons to support "anything" that has Bingaman's name on it, but oppose "anything" that has Graham's name on it?

Can a Senator propose tossing the whole damn mess out and starting over?

[sean]

So I've taken a look at the amendment, and there is a distinction that I don't really understand:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States ... who is detained by the Department of Defense at Guantanamo Bay, Cuba.

But it then goes on to state,

...the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any decision ... that an alien is properly detained as an enemy combatant.

I've been trying my best to decide what this means exactly and would appreciate some input.

[rd]

Sean, i think it means it creates a default rule of no habeas, but then carves out various exceptions allowing appeals to the DC Circuit, and then of course to the Supremes. But the exceptions seem to almost swallow up the rule, particularly in the instance of establishing a general constitutional review of the whole shebang.

[washerdreyer]

I'm watching C-SPAN right now, Bingaman amendment lost (54-44), then Graham spoke in favor of his and corrected part of his previous lies (mistakes?) where he had said that U.S. soldiers didn't have the ability to appeal military court decisions to U.S. civilian courts, then Specter noted that a comment Graham had made about the Supreme Court being able to issue certiorari went against the plain language of the bill placing exclusive jurisdiction in the D.C. Circuit, and Specter continued to decry that such an important idea as stripping habeas corpus was being voted upon so soon after its introduction, because it didn't allow for an opportunity for judiciary committee hearings. Now they're voting on the revised Graham amendment. They haven't announced a count yet, but it seems to have passed.

[John Thullen]

Anna:

I rave and you are reasonable. ;)

You are correct that religious megalomaniacs are nothing new under the sun and should not be in a different category.

My point, nuts as it is (actually, the literary critic and Humanities Professor Harold Bloom warned that we are entering the long, dark night of a new religious age, notably in "The Western Canon"), is that we are in the grip of a phenomenon which is nothing new, (the world has experienced this before, of course), but that our recent (time in the big sense) human institutions of compromise are not really equipped to deal with.

By the way, I am not anti-religion.

Al Qaeda's absolutism needs no explanation from me.

George W. Bush and his base are vastly different in degree, of course, but there is a similarity. (I am fully aware that George W. Bush considers himself in touch with absolutes, but that he also calculates the need for absolutism among
his base)

My point is that, as with Al Qaeda, so with the current inhabitants of the White House. No discussion, compromise, or appeal is permitted. Deliberation is irrelevant. To use those fallible, human modes of operation doesn't work because they merely short-circuit the base's direct line to their absolute: God.

Look, if a President of the United States can stand up and declare that the religious principle of intelligent design should be taught alongside the scientific theory of evolution in a classroom (it matters little to me any longer whether this President is a true believer or a cynical calculator; I think he believes he receives special dispensation for the latter), then we are dealing with people to whom there is no reasonable appeal. And yet they run the institutions which were designed to permit appeal.

Is this off-topic? No, it is the heart of every topic discussed here since November of 2000.

The election in Dover. Pa. which threw the intelligent design advocates off the school board was not an example of democratic compromise -- it is merely one mode of approaching the world as it is utterly but temporarily rejecting another mode of approaching the world. The intelligent design advocates have (as we all should) institutions (their churches) to fall back on. But they want their mode of thinking (believing) to operate all institutions -- pluralism is dead in their view.

I haven't noticed Enlightenment scientists arguing that the scientific theory of evolution be taught from the pulpit. ( I believe they should, but just for the fun that would ensue) In fact, enlightenment scientists permit the pulpit to exist in a tax-free space so that it may be used to teach very important and beautiful religious truth.

Yet, now my space to teach and be taught the beautiful scientific truths (not fully worked out -- that is part of the beauty) of evolution is threatened.

What does this have to do with the fact that habeas corpus is being compromised?

Only that I don't trust those who wish to compromise it with compromising it just a little bit. The last 5 years (more than that) show me that those who wish to compromise it do not differentiate between terrorist murderers and those who might defend the rights of terrorist murderers under habeas corpus.

In other words, us. And I mean that absolutely.

P.S. I hope the Bush Administration defeats Al Qaeda. I suppose I would have hoped Stalin defeated Hitler on the eastern front, too. Not that Bush is Stalin (spare me the objections), but similar questions plague me.
Like, who will defeat George Bush's base? Since worldly defeat seems not an option for them, in their worldview.

P.S.S. It occurs to me, because I am me, that one big difference between Al Qaeda and Christian fundamentalists of the Dobson sort is that Al Qaeda cadres are surrounded by dozen of virgins after blowing themselves up. In Dobson's worldview, we only earn one virgin, but all we need do is get married.

Such are the narrow tradeoffs in the new Dark Age we've entered.

[John Thullen]

Anna: shorter version: I think we agree.

But I think religious megalomaniacs have their own categories. We don't get to be in them, even though we let them be in ours.

[Gary Farber]

"My point, nuts as it is (actually, the literary critic and Humanities Professor Harold Bloom warned that we are entering the long, dark night of a new religious age, notably in "The Western Canon")"

Digressing, I might have respect for Bloom if I didn't know people who had written books of his. I don't think much of academics who put out tons of work under their name that isn't theirs. (And when he does write his own stuff, I often think it's utterly idiotic and wrong-headed, although not always about everything, of course; but far too much.)

He's probably the most impressive example in a long time, if not of all time, of how to build a giant huge academic reputation, though. (Signing your name to the work of people you hire and put under contract to not reveal their work is very handy in that.)

[John Thullen]

Well, Gary, I agree that Bloom is mad as a hatter. Which is why I find many of his literary judgements to be spot-on.

But you say his literary judgments and much of his other work have been written by others, for pay.

Well, crap! By which I mean "Crap!" when I say "Crap!" when I look at Sammy Sosa's hitting stats. This is discouraging news.

I know absolutely citeless me asking you for a cite is ridiculous on its face. But I really would like to follow up on this. Or is this a common knowledge thing that everyone was keeping from me?

Thanks.

P.S. By the way, all of the words in my commments have been written by others before me, just not in the exact order in which I've written them. I admit that the particular order in which I write them may be evidence of idiocy.

[John Thullen]

"commments": The stretch limo version of "comments"

[Nell]

washerdreyer, thank you very much for the update. I've been unable to do anything on this since calling Warner's office yesterday morning (his defense L.A. hadn't heard of the [original] Bingaman amendment at that point). Specter and others who decry the rush to strip away habeas rights are absolutely right. This is worse than the railroading-through of the original Patriot Act, which at least included sunset provisions.

A new Senate and House in 2006 must make one of their first priorities to revisit the issues surrounding U.S. detention of foreign nationals and citizens, and restore the constitutional rights this Republican machine has stolen and eroded.

In light of what's happened in the Senate over the past week, it's clear that John McCain's anti-torture amendment was pure showboating. He thinks he can ride it to the White House, and that no one will pay attention to his own party's machinations that make it meaningless. He has another think coming.

[Gary Farber]

"But you say his literary judgments and much of his other work have been written by others, for pay."

Well, I expect not all of them. He certainly has opinions of his own, which he issues to his researchers and subeditors and writers. And, to be sure, I only have inside knowledge of several series of hundreds of volumes allegedly "edited" by him, and only partial or no knowledge of the rest of the vast number of works presented under his name.

And books put together by other people under his name can be quite good, or adequate, at least, to be sure.

And for the sake of any libel lawyers of Professor Bloom's, I'm just kidding.

[Gary Farber]

"I know absolutely citeless me asking you for a cite is ridiculous on its face. But I really would like to follow up on this."

Well, I wouldn't put a lot of effort into trying to find his contributions, beyond writing introductions (of whose provenance I can't speak) to the multitude of Chelsea House series of books that he's "edited," for instance.

The good news is that he can be just as prolific as V.C. Andrews, for just as long or longer, under the same conditions.

[bob mcmanus]

"then it will empty out, mostly with detainees being transferred to prisons in their native land, most commonly the gentle realm of Saudi Arabia, where almost 100 come from." ...rd

rd, this will liely put me in disgrace, or in strong disfavor with my betters, but I would vastly prefer this to the current system.

As I understand the relevant conventions, al Qaeda would either be POW's or civilian criminals. But civilian criminals in the land where they were captured or the land of their nationality. Did Osama commit crimes in the US? I don't think so. He should be tried in Afghanistan, and would not have the protections American citizens have. By bringing the detainees under full American control, we have become responsible for them and by default granted them many of the protections of the Constitution.

Osama would be under slightly different legal systems in Afghanistan or Saudi Arabia.
America would be highly motivated to obtaining and exercising very strong influence over the relevant nation's treatment of the criminals. We might be at war with Pakistan.

Saddam is being tried in Iraq under Iraq law.
I suspect the results will be to your satisfaction. We could have treated all the detainees in much the same way we dealt with Saddam.

[bob mcmanus]

I ask charleycarp or whatever if I am making any sense at 3:28. I am I suppose totally ignorant of conspiracy laws and extradition issues etc.

And I grant that the implications of my position are very "hawkish". To wage the GWOT in compliance with relevant laws and conventions, with an satisfactory outcome, would have required a much larger and resource-draining war(s).

[Gary Farber]

"Did Osama commit crimes in the US? I don't think so."

If you believe in RICO, my understanding is that he did. Conspiracy law prior to RICO would likely also say so, as I inadequately semi-understand it. I could be wrong, of course, about either proposition.

Finding an unbiased jury and venue would seem a tad problematic, to be sure.

[Dantheman]

bob,

"Did Osama commit crimes in the US? I don't think so."

I am no expert on criminal law, but I am pretty sure that a criminal action alleging conspiracy to murder people in the US (i.e. 9/11) can be tried in the US, even if the conspirator never set foot in the the US.

[John Thullen]

Gary Farber:

O.K. I feel a little better, I think.

Like when I watch Emeril Lagasse and need to remind myself that his only contribution has been to add Bam! to Creole cuisine.

Or when Sammy Sosa sends Sammy Sosa lookalikes up to bat to hit three-run homers. It's a relief. It's all editing. At least he didn't take steroids.

Fairy tales and Mother Goose and Bill Bennett.

[Bostoniangirl]

Both of my Senators voted for the original Bingaman amendment. Kennedy chose to vote against the Graham/Levin amendment while Kerry voted for it. How am I supposed to feel about these votes? Should I write to Kennedy to thank him and tell Kerry that I'm extremely disappointed or was Kerry right to vote for this compromise, since it was better than what Graham's original amendment provided for.

[Gary Farber]

I was going to suggest reading what Senators Kennedy and Kerry had to say about their votes, and judging on that basis, but I see that, unfortunately, although Senator Kennedy has a statement here from yesterday on the Iraq bill, and has two subsequent press releases up today, he apparently has nothing to say about the Graham/Bingaman amendments.

Senator Kerry, as well, seems to have nothing to say on the subject, although his press release yesterday on "CONGRESSIONAL LEADERS MOVING FORWARD ON HOUSE AND SENATE BILLS TO HONOR ROSA PARKS IN NATIONAL STATUARY HALL" was stirring.

So I guess you could tell them what you think of that. (I might question their sense of priority and understanding of constitional rights, and ask where their leadership was at this vital moment; but that's me.)

[Gary Farber]

I should quote Senator Kerry directly on his priorities; he's very clear:

Senator John Kerry (D-Mass.) and Representative Jesse Jackson Jr. (D-Ill.) are turning up the pressure on the House and the Senate to pass their legislation honoring civil rights leader and American hero Rosa Parks with a statue in the U.S. Capitol's famed National Statuary Hall.

Kerry and Jackson want Congress to pass their bills by December 1, 2005 -- the 50th anniversary of Rosa Parks' courageous decision not to move to the back of the bus.

“Rosa Parks was one of our greatest American heroes, a woman whose quiet courage changed a country. She deserves the highest honors this country can give,” said Kerry. “There ought to be 100 Senators on this bill, and that's what I'm focusing on now.

Okay, then.

Statues.