U.S. Senate passes amendment stripping Guantanamo detainees' access to courts

November 11, 2005 The U.S. Senate has adopted an amendment, proposed by Senator Lindsey Graham (R-SC), to a defense bill limiting detainees' court privileges.

The amendment would make the Combat Status Review Tribunal (CSRT) statutory law, the Annual Review Board (ARB) statutory law, require the designated civilian officer to be a government official who is appointed by the President with the advice and consent of the Senate, not allow the preponderance of evidence against a detainee be derived from undue coercion, and remove Guantanamo prisoners' right to file habeas corpus petitions in federal courts.

In regards to the habeas corpus provision, the amendment specifically states, "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba."

The amendment passed with a 49-42 vote. Five Democrats jumped party lines to vote for and four Republicans jumped party lines to vote against the amendment. Nine Senators, seven Republicans and two Democrats, did not vote on the amendment. Kent Conrad, Mary Landrieu, Joseph Lieberman, Ben Nelson, and Ron Wyden were the Democrats who voted for the amendment. Arlen Specter, Lincoln Chafee, Gordon Smith, and John Sununu were the Republicans who voted against the measure.

Senator Graham is quoted as saying, “The president has established procedures to determine who is an enemy combatant and to annually review their status. It’s now time for Congress to sign-off on these procedures and turn them into a statute, a move the courts will give great deference to.”

It should be noted that under Graham's amendment, detainees would be able to challenge only the narrow question of whether the procedures established by the Secretary of Defense at the time the military determined their status as an enemy combatant were followed. The Court of Appeals for the DC circuit would still retain the ability to rule on that question.

Civil liberties groups as well as human rights groups issued statements opposing the amendment. "The Graham amendment will create a thousand points of darkness across the globe where the United States will be free to hold people indefinitely without a hearing and beyond the reach of U.S. law and the checks and balances of the courts enshrined in our Constitution," the Center for Constitutional Rights said in a statement.

"The Graham amendment would strip all courts, including the Supreme Court, of jurisdiction to consider habeas corpus petitions or any other action challenging any aspect of the detention of foreign detainees held at Guantanamo Bay, except for the narrow question of whether status review boards follow their own rules," said a press release from the American Civil Liberties Union.