Fate of Hamdan case unclear
on Nov 14, 2005 at 11:03 pm
News stories out of the Senate Monday night indicated that a new version had been drafted of the proposal to limit access to U.S. courts for foreign nationals detained by the U.S. military during the war on terror.
A vote on the new measure, called a compromise by its draftsmen, was scheduled for Tuesday, according to the stories. Because the text of this version was not available Monday night, it was unclear whether it would block the Supreme Court’s planned review of Hamdan v. Rumsfeld (05-184), testing the constitutionality of the war crimes tribunals that are to operate at the U.S. Navy base at Guantanamo Bay, Cuba.
According to press accounts, federal courts would retain jurisdiction over detainees’ pending cases. But how far that jurisdiction would reach was unclear, since imprecision in the news stories left it uncertain whether the writ of habeas corpus was to be denied to detainees.
Sen. Lindsey Graham, South Carolina Republican, was said to be involved in drafting the supposed compromise. Last week, he persuaded the Senate to strip the detainees, in pending cases and in future cases, of any right to challenge their detention, military tribunals, or designation as “enemy combatants.” But Graham was quoted Monday night as saying that the new proposal, crafted by him and Sen. Carl Levin, Michigan Democrat, would allow the courts to determine the constitutionality of the war-crimes tribunals and the “combat status review tribunals” that decide whether to keep a detainee in military confinement.
The news accounts did agree on these specifics: that detainees tried and convicted of war crimes would have an automatic right to appeal to the D.C. Circuit if they had been sentenced to ten years in prison or more, or to a death sentence. If their punishment was less than ten years, the D.C. Circuit would have discretion not to hear the appeal.
A separate vote is expected on Tuesday, the news reports said, on a proposal by Sen. Jeff Bingaman, New Mexico Democrat, to modify the earlier Graham amendment seeking to deny habeas challenges. Bingaman’s alternative was said to have been modified to limit habeas cases to the D.C. Circuit. An additional change in his proposal would be to bar claims challenging living conditions at Guantanamo.
The text of his latest proposal also was not available Monday night.
