A Tentative Defense of the Graham GTMO Amendment
Here is the full text of the “Graham Amendment” Bobby helpfully pointed out yesterday. The Washington Post has an analysis here. I must run off to help interview candidates interviewing for faculty positions, but let me add a few thoughts. Not surprisingly, I’m not reflexively opposed to this amendment, at least on first glance.
(1) Congress plainly has constitutional authority to regulate the scope of federal court jurisdiction over the Guantanamo detainees. As Bobby pointed out, those detainees may certain have constitutional habeas rights, but the scope of those rights are somewhat uncertain and courts will certainly give Congress broad discretion to regulate those rights.
(2) The amendment would create congressional oversight over the procedures governing the detention of the Guantanamo detainees because the Defense Department would have to submit their procedures for determinations as to the legal status of those detainees to Congress as well as any changes in the procedure.
(3) The most controversial part of the Amendment is the part removing the jurisdiction of the federal courts from “any action” based on the DoD’s new policies on detention or “any action challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant.”
This provision may indeed remove federal courts from the process of reviewing the detention of Guantanamo detainees. But it is worth remembering that it was never clear that the federal courts had much authority in that area in the first place, and that the Supreme Court has relied on its sense that Congress had approved federal court intervention.
Basically, the Amendment replaces judicial review of the fairness of detainee detention procedures with congressional review. I think this does provide a non-trivial check on the President’s authority, but I’ll have to think more about whether this check is enough to ensure good policy and fundamental fairness.