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Senate Approves Limiting Rights of U.S. Detainees
By ERIC SCHMITT

WASHINGTON, Nov. 10 - The Senate voted Thursday to strip captured "enemy combatants" at Guantánamo Bay, Cuba, of the principal legal tool given to them last year by the Supreme Court when it allowed them to challenge their detentions in United States courts.

The vote, 49 to 42, on an amendment to a military budget bill by Senator Lindsey Graham, Republican of South Carolina, comes at a time of intense debate over the government's treatment of prisoners in American custody worldwide, and just days after the Senate passed a measure by Senator John McCain banning abusive treatment of them.

If approved in its current form by both the Senate and the House, which has not yet considered the measure but where passage is considered likely, the law would nullify a June 2004 Supreme Court opinion that detainees at Guantánamo Bay had a right to challenge their detentions in court.

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Measure would strip rights from detainees
Senate bill curbs court oversight in Guantanamo cases

By Charlie Savage, Globe Staff | November 11, 2005

WASHINGTON -- The US Senate yesterday voted to abolish the right of Guantanamo Bay prisoners to challenge the legality of their detention in federal court, a sweeping proposal that would reverse a 2004 Supreme Court ruling, end a pending Supreme Court review of military commissions at the base, and bring to an abrupt halt more than 150 individual detainee cases.

The proposal was contained in an amendment sponsored by Senator Lindsey Graham, Republican of South Carolina, to a Defense Department authorization bill. The Senate voted 49-42 to approve the amendment over the strenuous objections of a minority of senators, who argued that such a major change should first be discussed in committee.

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All this measure does is allow the tribunal system to work. We have never in our history allowed wartime detainees that were foriegn born into our courts to contest military detention. This amendment just does what the law used to do, restrict our courts to American citizens.

The proposal does not allow for any other than properly constituted tribunals that will give the detainees due process. The amendment bars detainees from the Articel III courts. I beleive they can still appeal through the Article I or military courts, which provide the same rights.

Hi Judy. Have you read the letter that the National Institute of Military Justice wrote concerning the Graham amendment? I like Lindsey, but I think he may be wrong on this one.

http://www.ccr-ny.org/v2/legal/september_1...iceOpenLttr.pdf

You can also read some other letters that address this topic at this website.

http://www.ccr-ny.org/v2/reports/report.as...FSC&Content=660

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Don't cross the habeas corpus line

By David B. Rivkin Jr. and Lee A. Casey, DAVID B. RIVKIN JR. and LEE A. CASEY are partners in a Washington law firm and served in the JusticeDepartment under Presidents Ronald Reagan and George H.W. Bush.

LIKE ALL WARS, the "war on terror" has resulted in expanded use of the government's power, and this is especially true with respect to the treatment of captured enemy combatants. The Bush administration has correctly held such individuals under the laws of war, without criminal trial, and has denied them the privileges of honorable "prisoners of war" under the Geneva Convention.

However, there are certain lines that have not been, and should not be, crossed — at least not unless things get much worse. Unfortunately, the Senate is poised to consider just such a move in the form of legislation that would strip the federal courts of jurisdiction to consider habeas corpus petitions from noncitizen detainees.

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From Talkleft:

No Habeas for Them, No Habeas for Us

Tinkering with habeas corpus is a dangerous thing. Today, Sen. Lindsay Graham and his fellow Senators told you they are only restricting habeas rights of enemy combatants, i.e., foreigners. But on November 16, the Senate Judiciary Committee will hold a second hearing on S. 1088 (pdf), a bill that would gut habeas corpus rights for Americans.

The legislation, known as the Streamlined Procedures Act, would effectively kill the writ of habeas corpus by stripping federal courts of jurisdiction to consider cases in which a prisoner's constitutional rights may have been violated. The legislation would apply to all criminal cases, including capital cases. The legislation is sponsored by Sen. Jon Kyl (R-AZ) in the Senate and Rep. Dan Lungren (R-CA) in the House.

Read the rest of the post here.

The timing of the NIMJ in coming out publicly for the first time on a matter of public policy is intriguing. This is the same organization that joined with the ACLU to write a brief to get Lindsey thrown off the panel in the Lane Case. Their real goal is to get him off the court, a position he earned.

We have never allowed these detainees federal habeas. Why now? Are we getting week kneed? These people are not covered by the full protections of the Geneva Convention and even if they were, they would not be entitled to federal habeas.

I think Lindsey is right and the NIMJ is all wet on this one.

Judy, I hope that you will read this editorial in the NYT. It is not an editorial that trashes Lindsey. The editorial actually says some nice things about Lindsey, that I have also said, but it disagrees with section D of his amendment that concerns habeas corpus. I think that it is a well reasoned editorial and I hope that you will consider the merits of the argument. I have posted only part of the editorial here to comply with this forums rules but the entire editorial needs to be read (besides not all the good Graham parts are visible here).

November 12, 2005

Editorial
Playing With Fire

It certainly is a relief that the Senate is finally getting around to doing the job it so shamefully refused to do four years ago, after the 9/11 attacks: requiring the administration to follow the law and the Geneva Conventions in dealing with prisoners taken by the military and intelligence operatives.

But what started as an admirable attempt by Senator John McCain to stop the torture and abuse of prisoners has become a tangle of amendments and back-room deals that pose a real danger of undermining the sacred rule that the government cannot just lock people up forever without saying why. On Thursday, the Senate passed a measure that would deny foreigners declared to be "unlawful enemy combatants" the right to a hearing under the principle known as habeas corpus, which dates to Magna Carta.

Instead, the measure would mandate an automatic review by a federal court of the status of the inmates now at Guantánamo Bay and any future prisoners of that kind. It would exclude coerced confessions from that review, and place important new controls over Guantánamo operations.

These safeguards, proposed by Senator Lindsey Graham, the South Carolina Republican who has shown real courage in condemning prisoner abuse, are long overdue. Mr. Graham, a former military lawyer, also proposed the exemption to habeas corpus, arguing that it had never been meant to apply to prisoners of war, let alone to foreign terrorists. He says Guantánamo inmates are clogging the courts with petitions that hamper efforts to get vital intelligence.

http://www.nytimes.com/2005/11/12/opinion/...agewanted=print

It is well written and says many nice things about Lindsey. It only disagrees with Section D of the amendment. I understand the fear with creating exemptions to laws. However, I do not think that the habeas statute was meant to cover terrorism or wartime detainees. It was put in place to protect criminals who are incarcerated. The military is taking care of the terrorism so I think they should take care of the terrorists.

I wish I could get an answer to the question about when in history we have given eatime detainees picked up on the battle field federal habeas rights. If we haven't why start now?

Seems the "global economy" works for the Bush administration...but a "global justice system" doesn't. Can we really cherry pick and/or shut down the discussion when it comes to the "changing" world. After all, we are really just one big global family now, right?

We cannot deny a changing world. If we were to be detained by the other side in a war would we have access to that contry's legal system? If we want a place where everyone can be tried we need to argue for participation in the ICC.

The congress has to power to regulate the captures that occur during the war. If we are properly administering the tribunals then habeas writs shouldn't be necessary. The civl courts also do not have access to what the government has access to with regard to evidence that would justify the detainee being held. What the congress did was limit access to the federal circuit courts. The congress cannot restrict the habeas petitions that go there. The Supreme Court has sole jurisdiction in the cases of habeas petitions.

There may or may not have been habeas petitions filed by prisoners in the past (I don't know) but if none were filed in the past, it could be for the very simple reason that we never had a president like this one before who has used executive power in such a tyrannical way.

The fact is that if we write Lindsey's amendment into law that would mean that we have created a new exception to Habeas where none existed before. Prior to Lindsey's amendment the Supreme Court ruled that prisoners do have a right to habeas. This Supreme Court ruling may have been made because there was no prohibition written into law, like what Lindsey proposes to do now. If Lindsey's amendment passes it will become law unless the Supreme Court overrules it on Constititutional grounds.

I don't think the issue of habeas would have even come up if the Bush administration hadn't done what they did in locking people up without regard to whether they were guilty or innocent. It was their abusive behavior that sparked the habeas petititons in the first place. And now with this amendment it will close the door on the only tool that is available to innocent detainees to seek their freedom.

We know that there were all kinds of people locked up who were innnocent. We know this because of those habeas petitions and because after the petitions were filed there were a great many prisoners suddenly released.

I sure hope you reconsider your position. Like I said, I respect Lindsey but I really think he is wrong on this one.