Four years into the war against al Qaida, core questions remain unsettled: How should U.S. law define and treat the detainees the United States is holding at the Guantanamo Navy Base in Cuba: as captured soldiers, as accused criminals, or as members of some undefined category between soldiers and criminals?
And who gets to decide their status and their rights — the Supreme Court or Congress?
After four years of deferring to the Supreme Court and lower federal courts, the Senate last week wrested the Guantanamo detainee issue away from the justices and judges.
“For those who want to turn an enemy combatant into a criminal defendant in U.S. courts and give that person the same rights as a U.S. citizen to go into federal court, count me out,” Sen. Lindsey Graham, R-S.C., told the Senate Thursday.
“Never in the history of the law of armed conflict has an enemy combatant, irregular combatant, or POW been given access to civilian court systems to question military authority and control, except here,” he said.
Over-ruling the Supreme Court
Graham was reacting to last year’s landmark Supreme Court decision called Rasul v. Bush, which ruled for the first time that non-citizens captured by the U.S. military and held outside the United States could sue in federal court to challenge their detention.
The justices said the Guantanamo detainees had a right to a writ of habeas corpus which allows them to go before a judge who would decide whether the evidence justifies their being held.
On Thursday the Senate, by a vote of 49 to 42, effectively negated the Rasul decision.
The measure, which Graham offered as an amendment to the Defense Department spending bill, tells the courts they can not consider an application for a writ of habeas corpus filed by a non-U.S. citizen held by the Defense Department at Guantanamo.
Graham’s amendment would allow Guantanamo detainees to go to the Court of Appeals for the District of Columbia Circuit, but only to ask judges to see whether the Defense Department is following its own rules in operating the panels of military officers the Pentagon uses to decide whether someone at Guantanamo is an enemy combatant.
Up to now, Congress silent
Graham said the court had issued its Rasul decision only because “Congress has been silent on how to treat these people. The Supreme Court has looked at … the habeas statute, and they are saying to us: Since you haven't spoken, we are going to confer habeas rights until you act.”
Graham’s amendment would need approval by the House and President Bush’s signature to become law.
Can Congress undo what the Supreme Court did in the Rasul decision?
Yes, say legal experts, because the court in the Rasul case was interpreting a law, the habeas corpus statute, and not interpreting a provision of the Constitution itself.
“There’s a good argument that that kind of line drawing is acceptable,” said Cass Sunstein, University of Chicago law professor, a leading liberal legal scholar.
“Congress does have the power to suspend the writ of habeas corpus.” The Graham amendment “is not clearly unconstitutional by any means, although it does raise some new issues,” he said.
Why Congress acted
Sunstein said the Senate could reason that the high court’s decision in the Rasul case “may have been right as a matter of existing law, but it is causing an unanticipated problem and that this (Graham amendment) is the correction.”
“The best argument for this is that there are hundreds of people in Guantanamo who are filling up the court system in a way that is making it hard to interrogate people,” Sunstein said. “And if that is true, then there is an argument for it.”
But, he also said, “habeas corpus is a fundamental part of our liberties and to eliminate habeas corpus is a grave and unusual act. If doing that is necessary to protect national security, then the burden ought to be very heavy on the executive branch to show that national security so requires.”
John Yoo, a law professor at the University of California, Berkeley and a former Justice Department official in the Bush administration who helped write its policies on treatment of al Qaida prisoners, said “This statute just restores the law to what it was before last summer when the court, I think inappropriately, extended habeas jurisdiction to Guantanamo. Congress has always had the authority to dictate how habeas corpus is administered. Certainly before last summer the understanding was that habeas corpus did not extend outside the United States to enemy aliens.”
He added, “I don’t think it would be unusual for Congress to say (to the Supreme Court) ‘You misinterpreted what we wanted in passing the habeas corpus statute in the first place.’”
Uphold Rasul decision, Democrat says
Led by Sen. Jeff Bingaman, D-N.M., 38 Democrats opposed Graham’s amendment. Bingaman will make another effort this week to over-ride Graham’s amendment and provide federal court hearings for Guantanamo detainees.
“The right to file a petition challenging the legality of a prisoner's detention was specifically recognized by our Supreme Court in the Rasul case,” Bingaman said.
“Considering that many prisoners have been held there for over three years, that the administration has argued they can be held there indefinitely, it would be a major mistake for us to remove the very limited judicial review the Supreme Court has recognized that these prisoners still have.”
Even as he supports the Bush administration by moving to overturn the Rasul decision, Graham is also supporting a measure offered by Sen. John McCain, R-Ariz., which may lead the president to veto the entire Defense Department spending bill, even if it includes the Graham measure.
McCain’s amendment would re-affirm that those held by the U.S. government will not be treated in a way that is cruel, inhumane, and degrading. That ban already exists in treaties the United States has ratified including the 1984 Convention against Torture.
“The McCain amendment says if you are an enemy combatant, we will treat you humanely, even though you may be part of the most inhuman group the world has ever known,” Graham said.
“I think Graham is trying to be a moderate; this is his attempt to compromise,” said Yoo, who opposes the McCain amendment because, he argued, it “is duplicative of existing law in every case — except the interrogation of al Qaida operatives. The question is whether it makes sense as a matter of law to foreclose the aggressive interrogation of al Qaida operatives.”