The Graham Amendment, GTMO, and Habeas

A very important development in the Senate today, one that may have profound consequences for the pending habeas litigation involving GTMO detainees. The development concerns an amendment to S.1042 (the ’06 Defense Department Authorization bill) offered by Senator Graham. The Amendment is No. 2516, and its text is available here.

Consider first section (d)(1) of the amendment, which amends the federal habeas statute (28 U.S.C. 2241) to include the following language: “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 [as defined in 8 U.S.C. 1101(a)(38)] who is detained by the Department of Defense at Guantanamo Bay, Cuba.” Wow. This would overturn the Supreme Court’s 2004 decision in Rasul v. Bush, which found a statutory basis for extending habeas jurisdiction to GTMO. In doing so, it arguably would bring to an end all 173+ habeas petitions currently pending on behalf of several hundred GTMO detainees, including, notably, the Hamdan case as to which the Supreme Court recently granted cert, and also the pending D.C. Circuit appeals from the conflicting lower court decisions by Senior Judge Green (In re Guantanamo Detainees, finding that detainees have constitutional rights) and Judge Leon (Boumediene, reaching a contrary conclusion). Now that does not mean that there is no possibility for the detainees to pursue habeas; they still may attempt to establish a constitutional basis for habeas, notwithstanding Johnson v. Eisentrager. Certainly there are elements of Justice Steven’s opinion in Rasul that might support such an argument, but the question is far from clear (and might be impacted by the changing composition of the Supreme Court; Stevens was joined by Souter, Ginsburg, Breyer, and O’Connor, and Kennedy concurred in a separate opinion).

Now, this is not all that the Graham amendment does. It also has the effect of conferring Congressional approval on Combatant Status Review Tribunals as the proper vehicle for determining whether a detainee is properly classified as an “enemy combatant.” The amendment permits a limited form of judicial review of CSRT determinations, with the D.C. Circuit permitted to review whether the tribunal in a given instance acted “consisent with the procedures and standards” governing that process.

As I understand it, the Graham Amendment was adopted 49-42 today. Whether it will become law ultimately, of course, is far from clear for now. Note that nine senators were not present during this vote, and that Senator Bingaman (D-NM) is expected to offer an amendment on Monday that would remove the habeas-stripping portions of Graham’s amendment.