Senate Passes Graham Detainee Plan
Amendment Sets Guidelines For the Detention of Enemy Combatants and Clarifies that Foreign Terrorists do not have Unlimited Access to US Courts
Today, by a vote of 49-42, the United States Senate expressed support for an plan authored by Senator Lindsey Graham (R-South Carolina) that strengthens the review process of detainees held at Guantanamo Bay, Cuba (GTMO) while clarifying that non-citizen terrorists do not have unlimited access to U.S. courts.
After the vote Graham made the following statement.
"I firmly believe that 9/11 was an act of war and not a crime. The detainees at GTMO are not American citizens facing criminal trial, rather, they are terrorists who have taken up arms against the United States.
"There has never been a time in our military history where an enemy combatant or prisoner of war has been allowed access to federal court to bring lawsuits against the people they are fighting. Habeas corpus rights have never been given to an enemy combatant and the Senate today reaffirmed that principal.
"Today the Senate voted to allow detainees a one-time appeal of their status to a single federal court and, at the same time, stopped the legal abuse. Currently, over 160 cases have been filed by terrorists suing our own troops over every action taken. The due process rights of enemy combatants at Guantanamo Bay are stronger than Geneva requirements, and with the addition of federal court review, are a model for the world.
"It is not fair to our troops fighting in the War on Terror to be sued in every court in the land by our enemies based on every possible complaint. We have done nothing today but return to the basics of the law of armed conflict where we are dealing with enemy combatants not common criminals."
Senator Lindsey Graham's amendment strengthens the review process of detainees held at Guantanamo Bay, Cuba (GTMO) while clarifying that non-citizen terrorists do not have access to U.S. courts.
The Current Situation at GTMO
* The detention status of all detainees at GTMO is assessed by an administrative process called the Combatant Status Review Tribunal (CSRT).
* CSRT determines the status of a detainee and whether they should be detained at GTMO as an unlawful enemy combatant.
* The CSRT is composed of three military officers. One officer is a judge advocate (military lawyer) while the senior ranking officer serves as president of the tribunal. Each detainee is assigned a military officer as a personal representative. The officer assists the detainee in preparing for the tribunal hearing.
* In the tribunal, detainees have the right to testify before the tribunal, call witnesses and introduce evidence.
* Following a hearing of testimony and introduction of evidence, the tribunal goes into closed-door session to determine whether the detainee is properly being termed an enemy combatant. Any detainee determined not to be an enemy combatant is transferred to their home country or handled in a manner consistent with domestic and international obligations and U.S. foreign policy.
* Enemy Combatants detained at GTMO also go before the Administrative Review Board (ARB) for an annual review of their status. The ARB is a three person panel comprised of military officers who determine if the individual is still an enemy combatant, still holds intelligence value or still presents a threat to the United States.
What Reforms Are Proposed in the Amendment?
The Graham amendment proposes several changes. They include:
* CSRT may not consider information that was proven by preponderance of the evidence to have been obtained with undue coercion.
* The Designated Civilian Official, the final authority on the Administrative Review Board, must be confirmed by the Senate. (Currently, the Acting Deputy Secretary of Defense Gordon England)
* Under the Graham amendment the determination of the CSRT would be subject to review by the D.C. Circuit Court of Appeals. This in an historic and unprecedented change.
The amendment also contains a provision authorizing the Secretary of Defense to change the procedures as long as they give notice to Congress in advance of implementation.
The CSRT / ARB Process and the Geneva Conventions
* Article 5 of the Third Geneva Convention of 1949 requires a party to an international armed conflict to use a "competent tribunal" to determine the status of a person when there is doubt as to whether the person qualifies as a Prisoner of War.
* While, by definition, Article 5 does not apply to Al Qaida (because they do not qualify as POW's and are not part of a state party), the United States established the CSRT and ARB to address the due process concerns expressed by the Supreme Court.
* The CSRT and ARB procedures, especially with the changes required in this amendment, more than satisfy the requirement for a "competent tribunal" provided for in the Geneva Convention.
The Need for Habeas Reform As it Concerns Enemy Combatants
* The Supreme Court's Rasul (2004) decision held that federal courts have jurisdiction to hear habeas petitions from Guantanamo detainees.
* For the first time foreign terrorists in U.S. custody have begun claiming the rights and benefits of the U.S. Constitution, our laws, and treaties.
* Over 160 habeas petitions on behalf of approximately 300 detainees have been filed in federal court to date.
* An array of habeas challenges have been filed including those questioning the quality of their food and speed of mail delivery. Others have questioned the legality of their detention, propriety of returning a detainee to their home country, and allotment of exercise time. The Department of Justice is devoting tremendous resources to the litigation of habeas petitions filed by GTMO detainees.
* The federal suits are also slowing our intelligence gathering efforts from detainees. Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous enemy combatants, boasts of this fact. He said, "The litigation is brutal for [the United States.] It's huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it much harder [for the U.S. military] to do what they're doing. You can't run an interrogation with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?"
* The amendment clarifies the previous understanding of the habeas statute that aliens outside the United States do not have access to our federal courts.
* The amendment only applies to NON-CITIZEN TERRORISTS.
Examples of Habeas Petitions Filed on Behalf of Detainees
* Canadian detainee who threw a grenade that killed an Army medic in firefight and who comes from family with longstanding al Qaeda ties moves for preliminary injunction forbidding interrogation of him or engaging in "cruel, inhuman, or degrading" treatment of him (n.b. this motion was denied by Judge Bates).
* "Al Odah motion for dictionary internet security forms" -- Kuwaiti detainees seek court orders that they be provided dictionaries in contravention of GTMO's force protection policy and that their counsel be given high-speed internet access at their lodging on the base and be allowed to use classified DoD telecommunications facilities, all on the theory that otherwise their "right to counsel" is unduly burdened.
* "Alladeen -- Motion for TRO re transfer" -- Egyptian detainee who Combatant Status Review Tribunal adjudicated as no longer an enemy combatant, and who was therefore due to be released by the US, files motion to block his repatriation to Egypt.
* "Paracha -- Motion for PI re Conditions" -- Motion by high level al Qaeda detainee complaining about base security procedures, speed of mail delivery, and medical treatment; seeking an order that he be transferred to the "least onerous conditions" at GTMO and asking the court to order that GTMO allow him to keep any books and reading materials sent to him and to "report to the Court" on "his opportunities for exercise, communication, recreation, worship, etc."
* "Motion for PI re Medical Records" -- Motion by detainee accusing military's health professionals of "gross and intentional medical malpractice" in alleged violation of the 4th, 5th, 8th, and 14th Amendments, 42 USC 1981, and unspecified international agreements.
* "Abdah -- Emergency Motion re DVDs" -- "emergency" motion seeking court order requiring GTMO to set aside its normal security policies and show detainees DVDs that are purported to be family videos.
* "Petitioners' Supp. Opposition" -- Filing by detainee requesting that, as a condition of a stay of litigation pending related appeals, the Court involve itself in his medical situation and set the stage for them to second-guess the provision of medical care and other conditions of confinement.
* "Al Odah Supplement to PI Motion" -- Motion by Kuwaiti detainees unsatisfied with the Koran they are provided as standard issue by GTMO, seeking court order that they be allowed to keep various other supplementary religious materials, such as a "tafsir" or 4-volume Koran with commentary, in their cells.