Author Archive for
Bobby Chesney

The Graham Amendment, GTMO, and Habeas

by Bobby Chesney

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.

Criminalized Association and Counterterrorism

by Bobby Chesney

As this is my first post as a guest blogger for Opinio Juris, I’d like to begin by saying thanks to Peggy, Chris, Julian, and Roger for their generosity in inviting me to participate. I really appreciate it, and hope that I can make some useful contributions. Now, on to the topic at hand….

In the course of studying the legal aspects of the U.S. response to terrorism both before and after 9/11, I’ve often been struck by the fact that federal criminal law – notwithstanding its considerable scope in this area – does not go so far as to overtly criminalize the mere act of being a member of certain terrorist organizations. To be sure, certain statutes (particularly, 18 U.S.C. 2339B, prohibiting material support to terrorist organizations) come rather close to outlawing membership in foreign terrorist organizations so designated by the Secretary of State. Indeed, I have argued elsewhere that during the prosecution of the “Lackawanna Six,” federal prosecutors employed an interpretation of the material support statute that was tantamount to a membership prohibition. The fact remains, however, that we have no post-9/11, terrorism-oriented parallel to the Cold War-era Smith Act membership prohibition that was upheld (albeit with a very important narrowing construction) by the Supreme Court in Scales v. United States.

Some European states, in contrast, have taken precisely this approach. In Brussels today, proceedings began in the trial of a group of 13 men on charges including the act/status of membership in the Moroccan Islamic Combat Group, an outlawed terrorist organization. According to a statement from the Beglian Federal Prosecutor’s Office reported by the AP, the membership ban makes it “easier for police and investigators to shut down suspected terror cells and detain those believed to be aiding and abetting terrorists . . . . Prosecutors do not have to prove that the defendants themselves were involved in carrying out an attack, only that they belong to terrorist groups.” (Note that the statement may be paraphrasing by the AP reporter).

That the U.S. Justice Department has not sought similar authority in the U.S. says something, I think, about the distinctive role that First Amendment freedoms play in our society. That, in turns, leads me to wonder about the status of the Belgian membership ban under Article 11 of the European Convention on Human Rights and Article 25 of the ICCPR. According to both, freedom of association may be restricted “in the interests of national security.” I can certainly see that argument’s theoretical applicability here, but am not certain whether this issue has been litigated previously under either convention (might this have come up in connection with UK law relating to the IRA, or Turkish law relating to the PKK?). I suspect that if this has been litigated such provisions have been upheld, particularly given the “margin of appreciation” often said to be owed to the state’s determination of its own national security interests.

That’s all for now. I hope some of you have some thoughts or insights to share!