Concern over Carl Levin/Lindsey Graham amendment
The New York Times published an editorial on 3/20/06 about "court-stripping--the attempt by another branch of government to prevent the court from deciding a particular issue.......A critical test of judicial independence will come this month, when the Supreme Court hears arguments in a case that has become a focus of Mr. Bush's imperial vision of the presidency."
An amendment introduced by Levin and Graham had the effect of allowing the Bush administration to further frustrate "unlawful enemy combatants" from due process.
Times article
A legal synopsis of the consequenses can be found at
Jurist article
I am surprised that Carl Levin would have been a part of this, and would be very interested in hearing from others. I assume that this was not the intention of the amendment, since both Levin and Graham seem unlikely participants in such an idea.
I've written Levin to see if there is an explanation of why this is happening.
Here is what is happening.....and indeed Levin's bill is being misinterpreted by the Bush administration, against the objections of its sponsers
Levin News Release
An amendment introduced by Levin and Graham had the effect of allowing the Bush administration to further frustrate "unlawful enemy combatants" from due process.
Times article
A legal synopsis of the consequenses can be found at
Jurist article
I am surprised that Carl Levin would have been a part of this, and would be very interested in hearing from others. I assume that this was not the intention of the amendment, since both Levin and Graham seem unlikely participants in such an idea.
I've written Levin to see if there is an explanation of why this is happening.
Here is what is happening.....and indeed Levin's bill is being misinterpreted by the Bush administration, against the objections of its sponsers
Levin News Release
posted by Anne Damm at 9:16 AM
1 Comments:
Carl Levin Replies to Benzie Dems Speak posting.
It is March 13, 2006 and I received a long email from Carl Levin explaining how and why the bill evolved.
Here is the reply, with another link from his site stating his reasoning....
Thank you for contacting me regarding the habeas corpus rights of individuals detained by the U.S. military as enemy combatants at Guantanamo Bay, Cuba. Our military, law enforcement, and intelligence agencies need to be able to use the range of legally available options in the fight against international terrorism. It is critical, however, that the United States conducts these activities in compliance with the Constitution, laws and treaties of the United States, and that all individuals held in U.S. custody receive the basic protections to which they are entitled under our laws.
As you may know, the Writ of Habeas Corpus can be traced to English Common Law and was recognized in the U.S. Constitution. Habeas Corpus rights allow those detained by the government to challenge the legality of their detention in a court of law. A court reviewing a habeas corpus petition does not determine the guilt or innocence of the petitioner, only whether the government has acted legally in detaining the individual. The Supreme Court has held that individuals detained as enemy combatants at Guantanamo Bay have the right to challenge their detention under the federal habeas statute.
In response to the U.S. Supreme Court’s decision, the Department of Defense (DoD) established a Combatant Status Review Tribunal (CSRT) for detainees held at Guantanamo Bay, Cuba, to allow detainees to challenge their enemy combatant status. In this process, detainees have a right to testify before the tribunal, call witnesses, and introduce any other evidence. Following the hearing, the presiding tribunal members determine in a closed-door session whether the detainee is properly held as an enemy combatant. Individuals determined not to be enemy combatants are then transferred to their country of citizenship consistent with U.S. domestic and international legal obligations. I raised a number of concerns about the standards and procedures for the CSRTs at the time they were established and see a continuing need for Congressional oversight in this area.
The Supreme Court’s decision also resulted in the filing of habeas corpus petitions in federal courts on behalf of detainees at Guantanamo. In response, Senator Lindsay Graham (R-SC) introduced an amendment to the Senate version of the Fiscal Year 2006 National Defense Authorization Act (S.1042). Among other things, Senator Graham’s amendment stripped federal courts of jurisdiction to hear habeas corpus challenges brought by detainees held at Guantanamo Bay, including pending cases, and established a limited appellate review of CSRT decisions regarding enemy combatant status. I voted against this amendment because of its negative impact on the rights of detainees under U.S. law to challenge their detention. However, the Senate adopted Senator Graham’s amendment by a vote of 49 to 42.
After the adoption of the Graham amendment, I supported an amendment offered by Senator Jeff Bingaman (D-NM), which would have preserved the rights of detainees to bring habeas challenges. Unfortunately, this amendment was defeated by a vote of 44 to 54.
Once it was clear that the Graham amendment would be included in the bill despite my opposition, I worked with Senator Graham, Senator Jon Kyl (R-AZ), and Senate Minority Leader Harry Reid (D-NV) to improve the language of the amendment. We worked out a compromise that improved the initial Graham amendment in three ways. First, the substitute amendment provided for a federal court review of not only CSRT decisions regarding a detainee’s status as an enemy combatant, but also convictions of detainees by a military commission.
Second, the substitute amendment broadened the scope of the federal courts’ review of the decisions of the tribunals and commissions. Whereas the initial Graham amendment only provided for the courts to determine whether these decisions were made consistent with the procedures established by the Defense Department, our substitute amendment also required the courts to look at whether those procedures were consistent with the Constitution and the laws of the United States.
Third, our substitute amendment, unlike the initial Graham amendment, allowed pending cases brought by detainees to continue. This substitute amendment was agreed to by the Senate by a vote of 84 to 14.
The Fiscal Year 2006 National Defense Authorization Act Conference Report, which was agreed to by House-Senate negotiators and which will soon become law, preserved much of the language in our substitute amendment. While I do not believe Congress should have enacted limits on the legal remedies available to detainees, I am pleased I was able to work with a bipartisan group of Senators to preserve the key elements of our substitute amendment and ensure a meaningful opportunity for Guantanamo detainees to challenge their detention in federal court. My complete statement on this matter can be found on my website at
Levin site
Thank you again for contacting me. I will be sure to keep your thoughts in mind as the legal rights of detainees continue to be debated in the Senate.
Sincerely,
Carl Levin
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