Today Congress amended, but did not fix Senator Graham’s flawed approach to detainees at Guantanamo Bay, Cuba. The new compromise amendment permits the courts to hear a detainee’s claim that his detention is unlawful or violates the Constitution. It will allow some review for those convicted by flawed military commissions. But the jurisdiction of the courts and the scope of review will be severely limited.
“This bill treats a symptom, but not the underlying cause of the problem with Guantanamo,” said Elisa Massimino, Washington Director of Human Rights First. “The real problem is that the Administration claims it can hold people forever, without charging them and without due process of law. These are still people to whom the Executive branch claims laws do not apply – they still exist in a law-free zone.”
“It is certainly past time for Congress to get involved in the issue of detention at Guantanamo,” said Massimino. “But congressional involvement should mean more than simply endorsing the Administration’s deeply flawed processes like the military commissions and combatant status review tribunals. Encroaching on the role of the courts does not solve the problem and in fact makes it worse.”
One thing is clear. By removing clear channels to judicial review, this amendment makes it even more important to have clear standards to govern the treatment of detainees. If the courts cannot oversee official actions, the Congress must insist that Senator McCain’s clear and unequivocal ban on cruel, inhuman and degrading treatment be enacted promptly.
