15 Nov The Revised Graham Amendment: A Legal Analysis
As Bobby helpfully notes in a comment to my last post, the revised Graham Amendment has made it through the full Senate and will be presented to the House negotiators soon for approval on that side (see the Washington Post’s report here). It is a bit early, but it is worth thinking about the legal effect of the amendment, if enacted, on the existing wave of litigation coming out of Guantanamo. Here is my first effort, but I welcome thoughts from Bobby or anyone else. My goal here is not to argue in favor or against the amendment, but simply to try to predict the amendment’s legal effects on current litigation.
(1) Retroactivity: If enacted, the amendment might eliminate federal court jurisdiction over existing as well as future cases coming out of Guantanamo, including Hamdan v. Rumsfeld, the case challenging the legality of the military commissions, and the Guantanamo Detainee Cases, which challenge the legality of the detainees’ confinement and their lack of rights to challenge their confinement.
Section e reads: “no court, justice, or judge shall have jurisdiction to hear or consider an application for the writ of habeas corpus filed by or on behalf of an alien outside of the United States … who is detained by the Department of Defense in Guantanamo Bay, Cuba.”
The current Guantanamo detainees might argue that this language cannot eliminate their existing cases, e.g., that it cannot operate retroactively. This is a complicated issue and one that the federal courts have wrestled with before in the context of previous amendments to federal habeas jurisdiction. So it is at least possible that all of the existing cases could go forward.
(2) Constitutionality of Military Commissions: Even if the existing suits go forward, this amendment would almost certainly remove the main constitutional argument made by Hamdan and others challenging the military commissions because it either authorizes the commissions outright or recognizes the President’s authority to establish such commissions. Hamdan and the detainees facing military commission trials will have to try their luck with due process arguments, which are much, much harder, especially given the creation of limited judicial review.
(3) Compliance with Geneva Conventions: Guantanamo detainees have challenged the adequacy of the Combatant Status Review Tribunals (CSRTs) which are used by the military to determine their status as an unlawful enemy combatant by alleging that these tribunals violate the Geneva Conventions. Detainees facing military commission trials have also made this same treaty-based argument. I think this argument that the CSRTs or the Military Commissions violate the Geneva Conventions may be in serious trouble. The amendment approves the CSRTs and military commission trials as long as they apply “such standards and procedures consistent with the Constitution and laws of the United States.”
The key missing phrase here: “treaties of the United States.” The D.C. Circuit, which has exclusive jurisdiction, can only review the CSRT and military commission procedures for violations of the U.S. Constitution and federal statutory law. The Geneva Conventions, as a treaty of the United States, cannot serve as the basis for that court’s review. Any attempt to invoke the treaty would run into the “last in time” rule, which holds the a later in time treaty trumps an earlier enacted statute.
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In sum, the amendment is likely to be bad news for the existing litigation. But in a way, that litigation has served its purpose, by forcing Congress to clarify (and limit) the President’s policies toward the detainees. So while everyone lost a little bit, perhaps we can also say that everyone won as well?
Julian,I’m afraid our consensus of yesterday evaporates, partly due to your overly narrow reading of the amendment, but also due to second thoughts on my part having read Marty Lederman’s excellent analysis on the Balkinization blog, http://balkin.blogspot.com/.(1) On Hamdan, the last paragraph of the amendment specifies that the ‘no jurisdiction’-provision does NOT apply to claims already pending. Co-sponsor Levin emphasized this point on the Senate floor. It is part of the deal he struck with Graham, and even Scalia would go along because it is in the text. But there is indeed a question of whether Hamdan would have to wait until he can attack either a conviction of a review tribunal decision – one of the reasons I am increasingly unhappy with the legislation.(2) On international law, well, I consider international law part of US law when implemented, and you could anyway use Geneva standards by way of the Charming Betsy canon of interpretation when interpreting the relevant ‘standards’ as provided for in the amendment. However, as Co-Sponsor Graham pointed out on the Senate floor, the Geneva Conventions will probably not alter the results anyway, because if US procedural law is applied fairly, it will meet Geneva requirements.3) Why… Read more »
Now it’s a strictly legal analysis? What ever happened to “I’ll have to think more about whether this check is enough to ensure good policy and fundamental fairness” in your initial post on the Graham amendment (http://lawofnations.blogspot.com/2005/11/tentative-defense-of-graham-gtmo.html)? That didn’t sound strictly legal to me. Quite the contrary, and that’s why I complained then.
Sure, fine, you’re the professor and this is your blog, so you’re entitled to change the rules in the middle of the game. But isn’t it ironic that, in doing so (at the academic level), you are following the same pattern of conduct that the Republicans (in the Executive and the Legislative branch) are applying in their own field of action?
Please note that this legislation does not address claims where jurisdiction is based on 28 U.S.C. 1331 or 1350. Presumably lawyers could challenge detentions and tribunals without seeking habeas, as long as the remedy is not release from custody?
Also note that it is an open question whether the Geneva Conventions have direct effect in U.S. law. If not, the reference to the laws of the US is irrelevant. The weight of judicial authority is in one direction, the weight of academic is in the other.
A quick response:
(1) I’m not sure I understand what randomopinion’s complaint is. Sure I have policy views on whether things are good or bad, but I also have views on whether something is legal or what the legal effects of something might be. I suppose I could deplore this legislation on policy grounds, but it is more interesting to first try to understand what the legal effects will be before we take views on whether to oppose it.
2) Andreas: I don’t read the last paragraph in quite the same way. It seems to apply the paragraph 2 limitations on status determinations to actions that are “pending on or after the date of the enactment of this Act.” “On or after” seems to include prior determinations. But maybe I’m missing something.
3) Paul: I think you are right that the ATS door remains wide open. As are claims based on Bivens (constitutional violations).
Let’s see if it’s clearer now. Anyone can have a technical (in this case, legal) view of a subject and, at the same time, a policy (in this case, political) view of it. And that’s fine, no objection there. BUT, if one starts out wearing the partisan hat (i.e., analyzing an issue essentially from the policy angle), asks for more time to refine the position, and thereafter doesn’t conclude that analysis, but, instead, puts on the jurist hat and pretends to ignore the other angle – that, to me, isn’t intellectually coherent. Whichever role you wish to play, be it hawk with a lawyer’s costume or lawyer with a hawk’s costume (or a mix; or anything else), that’s fine, you’re entitled to it. But stick to the one you’ve intially chosen throughout the entire debate, don’t go changing character in the middle of the play.