The Levin-Graham Amendment and Due Process at Guantanamo

Brian J. Foley

Posted Nov 20, 2005      •Permalink      • Printer-Friendly Version
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The Levin-Graham Amendment and Due Process at Guantanamo  


After four years of silence, the Senate on Tuesday voted 84-14 to limit federal court jurisdiction over cases filed by prisoners at Guantanamo Bay (GTMO). We still have time, however, to try to steer Congress toward the smarter option, which is to increase federal courts ability to review these cases, and to strengthen the legal process used at GTMO tribunals.

The Senate proposal results from a compromise over a defense bill amendment that Senator Lindsey Graham (R-S.C.) introduced last week, and which the Senate approved Thursday. That amendment would have nullified the US Supreme CourtҒs decision in Rasul v. Bush, 542 U.S. 466 (2004), which held that non-US citizen prisoners at GTMO may file habeas corpus petitions challenging their imprisonment as well as claims under federal law concerning the conditions of their confinement; Grahams amendment would have stripped foreign ғenemy combatants of any right to federal court review of their convictions by military commissions, and would have allowed only limited federal appellate review of GTMO tribunal determinations that prisoners are ԓenemy combatants who may be imprisoned indefinitely. The compromise amendment passed Tuesday, brokered Monday night by Senator Carl Levin (D-Mich.) and backed by Graham, permits some, albeit limited, federal appellate review over GTMO tribunals and military commissions. (There is no mention of prisoners held at CIA secret prisons in former Iron Curtain countries.) But the court review is too limited to provide any real benefits.

What 84 Senators apparently donԒt understand is that using rigorous legal process at GTMO to determine whether a prisoner is an enemy combatant,Ӕ or whether he is guilty of particular crimes, is an important weapon in the war on terror.Ӕ When our military and intelligence know that only solid evidence—instead of hearsay, coerced confessions, and evidence kept secret from the accused—can be used to support detentions, and that a federal judge will review the proceedings, they will investigate more thoroughly. We will be far more certain that were holding the right people, instead of, for example, mere dupes that the real terrorists have handed over, or innocent people captured by mistake. Imprisoning innocent people can spur others to violence against us. Shoddy investigations and kangaroo courts merely endanger the public.

On the other hand, requiring our officials to roll up their sleeves and ferret out reliable evidence would protect the public, by sharpening our investigatorsҒ skills and building knowledge about terrorists and their networks. In the long run, such seasoned and nuanced intelligence will protect us far more than convictions based on beatings and hearsay. Rigorous process also provides a check on Executive power. Without it, we cant know if our leaders are telling us the truth when they say theyҒre making progress and capturing dangerous terrorists our leaders can֒t even be certain themselves.

So the Senate made a grave mistake Tuesday. It did not strengthen GTMO procedures. It voted to limit the availability of court review of detentions that could have developed under Rasul v. Bush. The proposal limits court review to the D.C. Circuit (which limits fact-finding). All that can be appealed as of right is the Combatant Status Review Tribunals rulings on whether a prisoner is an ғenemy combatant, and a military commissionԒs conviction of an enemy combatant for particular crime where the accused was sentenced to death, or for more than 10 years. Constitutional challenges to the processes are also permitted, but how sweeping they may be is unclear.

Five major problems are apparent. First, the limited judicial review wont prevent the government from holding prisoners indefinitely; if ғenemy combatant status determinations for new prisoners are delayed indefinitely, there is nothing to review. There is no right to a speedy trial at GTMO; even if there were, the SenateԒs proposal would not let a prisoner, languishing in his cage, pursue that right on habeas.

Second, there is no right to review of military commission sentences that are less than 10 years; any review of these cases is at the D.C. Circuits discretion. Military commissions might regularly mete out sentences of just under ten years, to avoid review. In this way the Administration could protect convictions based on weak or unreliable evidence, or fraught with procedural error. The more the Administration can stack the D.C. Circuit with ғExecutive-friendly judges, the less likely there will be any discretionary reviews.

Third, the Senate proposal wonԒt fix the problems of capturing and holding the wrong people (increasing the risk that real terrorists will slip away, and that the injustice will increase their ranks). A review limited to ConstitutionalӔ problems will not reach evidentiary and procedural flaws that do not rise to that level but nonetheless cast doubt on the accuracy of a tribunals verdict.

Fourth, the SenateҒs proposal will not fix the problem that, when convictions are easy, our investigators can shirk their duty to develop and sharpen their investigative skills. The proposal, in fact, exacerbates this problem.

Fifth, the proposal is also misguided in its effort to promote GTMO tort reformӔ: it bars prisoners claims addressing their living conditions or treatment. (One Senator called such cases ғlawsuit abuse.) The result? There will be no real deterrence against torture and other mistreatment. The roundly applauded and overwhelmingly approved proposal by Senator John McCain (R-Ariz.) to prohibit inhumane treatment of any person detained by the US will be reduced to an empty, feel-good gesture. It canԒt be enforced outside the courts.

Limiting such lawsuit abuseӔ might make Senators feel good, but it endangers the public. Information including baseless allegations ֖ of torture and cruelty will slip through the bars of the GTMO cages, and travel to distant lands. Lacking a court as a forum, there will be no way for US officials to show that they arent torturing captives. Our leadersҒ objections, promises and assurances to the world will fall flat. Resentment and anger against our country will rise.

Perhaps most of all, the Senates (and, for that matter, the Supreme CourtҒs) distinction between US citizens and non-US citizens in the war on terrorӔ will ultimately collapse—to the detriment of US citizens. Why? Because its an irrational distinction, based on the mere sentimentality of nationalism. At some point, our leaders might decide that, if itҒs necessaryӔ in this warӔ to deny the right to full judicial process and review for non-US citizens, it will be doubly necessary to deny these rights to US citizens suspected of terrorism. Thats because American ғenemy combatants are much more dangerous than non-US citizens. Holding US passports, they can enter our country freely. They can blend in better than foreigners, and plot and plan undetected. If there is, as 84 Senators seem to believe, a relationship between the level of danger a person poses and the amount of judicial process we should give him, then common sense says that US citizens who are ԓenemy combatants should get the least process of all. ThatԒs where the Senates (and the AdministrationҒs) illogic is leading us, and it wont make us any safer.

We must recognize that using weak process, and preventing full and impartial review of GTMO tribunal decisions, is a wrongheaded plan that benefits no one but the politicians who are (all of a sudden) pushing it on us. Vigorous process is a powerful weapon for fighting elusive terrorists and their shadowy networks. When it comes to protecting the public against terrorism, the Executive should not be left to its own flawed and dangerous devices.

One of the most important pieces of legislation concerning our national security is now on its way to the House of Representatives. Its members must step up and correct the SenateҒs mistake.

Brian J. Foley is an assistant professor of law at Florida Coastal School of Law.  Visit his website at

Originally published at and reprinted in TAM with permission of the author.