The Senate passed on Thursday an amendment to the defense policy bill that would strip all U.S. courts – including the Supreme Court – of the power to hear any cases concerning prisoners’ challenges to their detention held at Guantanamo Bay. But the Senate is expected to revisit these issues early next week. The amendment, introduced by Sen. Lindsey Graham (R-SC), deprives U.S. federal courts of jurisdiction over detainees’ petitions for writs of habeas corpus and limits judicial inquiry at Guantanamo Bay to the narrow question of the military's compliance with its own regulations relating to so-called “enemy combatants.” It would also prevent detainees from challenging the legality of their detention and treatment, including torture and abuse in interrogation. The amendment passed by a vote of 49-42.
“This amendment would -- for the first time since the Civil War -- suspend the writ of habeas corpus, this time for those held on U.S. territory at Guantanamo Bay. It undermines the independence of the judiciary, particularly in resolving cases already pending in U.S. courts, and will further undermine America’s standing in the world as a reliable and effective ally in the fight against terrorism,” said Elisa Massimino, Washington director of Human Rights First.
On the provision of the bill that would deny the detainees the right to challenge any aspect of their detention – including any torture or abuse suffered at Guantanamo, Massimino added: “The Graham bill would undo two centuries of U.S. commitment to enforcing in its courts the universal prohibition against torture.”
The restriction on court oversight is particularly striking following the Supreme Court’s ruling, 6-3, last year, finding that the U.S. courts had full jurisdiction to consider challenges to the legality of detentions at Guantanamo Bay. The bill also presents serious constitutional questions in that it purports to cover cases that are currently being heard by courts in Washington, D.C. and even a case that the Supreme Court agreed to hear this week concerning the constitutionality of military commissions. Under the amendment, the U.S. Court of Appeals for the District of Columbia Circuit has limited authority to review claims regarding whether the Defense Department is following its own procedures for novel “Combatant Status Review Tribunals” and “Administrative Review Boards” created for Guantanamo alone.
“The action is an unwarranted usurpation of judicial authority by Congress,” added Massimino. “Instead of providing substantive guidance and congressional oversight, this amendment would strip authority from the one branch of our government that so far has forced reexamination of troubling detention and interrogation policies -- the courts."
The Senate will take up this issue again as early as Monday of next week, and a vote on further amendments that would ameliorate these provisions is expected.
Read Letter to Sen. Arlen Specter (R-PA) from Rear Admiral John D. Hutson, USN (Ret.) (PDF-371KB)
Read Sen. Specter’s statement opposing Graham Amendment (PDF-17KB)
