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Senate Dems to Seek Reconsideration of Graham Amendment

By Jeralyn, Section Legislation
Posted on Fri Nov 11, 2005 at 12:17:49 AM EST
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Nine senators were absent from Thursday's vote on Sen. Graham's amendment to an appropriations bill that would strip Guantanamo detainees of the right to challenge the legality of their detentions in federal court using a writ of habeas corpus.

On Monday, Sen. Jeff Bingaman of New Mexico will seek a new vote on Graham's amendment, trying to convince Senators on the Judiciary Committee to gut the part of the Graham amendment that prevents detainees from using the writ.

So it is possible that some lawmakers could have it both ways, backing other provisions in Mr. Graham's measure that try to make the Guantánamo tribunal process more accountable to the Senate, but opposing the more exceptional element of the legislation that limits prerogatives of the judiciary.

Under Mr. Graham's measure, Guantánamo prisoners would be able to challenge only the narrow question of whether the government followed procedures established by the defense secretary at the time the military determined their status as enemy combatants, which is subject to an annual review. The District of Columbia Circuit would retain the right to rule on that, but not on other aspects of a prisoner's case.

Detainees would not be able to challenge the underlying rationale for their detention. "If it stands, it means detainees at Guantánamo Bay would have no access to any federal court for anything other than very simple procedural complaints dealing with annual status review," said Christopher E. Anders, a legislative counsel for the American Civil Liberties Union. "Otherwise, the federal courts' door is shut."

Hilary at Obsidian Wings has more, including the contact numbers for the key Judiciary Committee Senators.

< No Habeas for Them, No Habeas for Us | Waas: Rove Still In Legal Jeopardy >

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    Senate Dems to Seek Reconsideration of Graham Amendment | 5 comments (5 topical)
    Re: Senate Dems to Seek Reconsideration of Graham (none / 0) (#1)
    by john horse on Sat Dec 17, 2005 at 01:05:58 PM EST
    Where were the "moderate" Republicans on the Graham Amendment? Senator McCain and Senator Snowe voted for the Graham Amendment. Senator Hagel did not bother to vote.

    Re: Senate Dems to Seek Reconsideration of Graham (none / 0) (#2)
    by Peter G on Sat Dec 17, 2005 at 01:05:58 PM EST
    The four sane Republicans who voted No were Chafee (RI), Specter (PA), Smith (OR), and Sununu (NH).

    Re: Senate Dems to Seek Reconsideration of Graham (none / 0) (#3)
    by Peter G on Sat Dec 17, 2005 at 01:05:58 PM EST
    I'm also having a bit of a problem with this provision of Article I of the Constitution of the United States, which defines and limits the powers of Congress: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, sec. 9, cl. 2. Has Congress found that there is a necessity, grounded in public safety, to repel an invasion of our country by enacting this amendment? Nazi saboteurs seized on Long Island during World War II had recourse to habeas corpus. Confederate spies in the North during the Civil War had recourse to habeas corpus (until Lincoln suspended it -- a case of "Rebellion" for sure, although most historians seem to think that move was excessive and not "require[d]"). The Supreme Court 18 months ago in Rasul said alleged al Quaeda detainees at Guantanamo must have recourse to habeas corpus. The Gonzalez Justice Dept. and 49 senators apparently think they know better.

    Re: Senate Dems to Seek Reconsideration of Graham (none / 0) (#4)
    by BigTex on Sat Dec 17, 2005 at 01:05:58 PM EST
    If the measure is passed into law, there will be a challenge, and the Court can decide if this is a Constitutional law or not. Congress making a law in response to a Court ruling is nothing new. Neither is the Court striking down a law made in response to a ruling. Peter G probablly made the best point of all here.

    Re: Senate Dems to Seek Reconsideration of Graham (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:00 PM EST
    Peter G: Thanks for the sanity in this increasingly insane country of ours. When I heard this on NPR, I thought it was some kind of sick joke. Frankly, I am stunned that SENATORS could be so amazingly illiterate and uninformed when it comes to the very document from which the Congress derives its powers. They apparently are not history buffs either. What is truly frightening is that the Reps are now in overdrive in covering their flanks and if it means reducing themselves to pure-partisan whores making shameless attempts at GUTTING the Constitution, then so be it! Hell, let's just remove the Fourth Amendment while we're at it. The Dems that voted for this abomination should be crucified by the party.

    Senate Dems to Seek Reconsideration of Graham Amendment | 5 comments (5 topical)