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Friday, November 11, 2005

The Graham Amendment, Part II (or, Fancy Fodder for Your Federal Courts Final)

Back in the heady days when I thought the Graham Amendment, which would strip federal courts of the jurisdiction to entertain habeas petitions by Guantanamo detainees, was nothing more than a fun academic exercise (i.e., yesterday), I noted that there might be some fascinating and complicated constitutional questions arising out of its passage... (and sidestepped those questions in favor of the far-less-interesting topic of whether the Amendment was necessary to vindicate Justice Scalia's Rasul dissent).

[Note to self: Pick far less serious topics to bloawg about next week, like (1) why giving midterm examinations can be very bad to the social lives of young law professors; or (2) how to leave your apartment as a young law professor without running into at least ten of your students. Note to co-Prawfsblawggers: It was this or a fascinating account of my IM basketball team's thrilling 58-55 victory tonight... maybe I picked the wrong one?]

Well, late last night, the Senate passed the Amendment, 49-42. (The Dems who voted yes were Conrad, Landrieu, Lieberman, Nelson, and Wyden, who is curiously omitted from the Washington Post story, but who definitely voted "yea"; the Republicans who voted no were Chaffee, Smith, Specter, and Sununu). In short, the Amendment denies jurisdiction to any "court, justice, or judge" to consider a habeas petition brought by a Guanatanamo detainee, except as otherwise provided for by the Amendment, which includes limited review of decisions by "Combatant Status Review Tribunals" (CSRTs) in the D.C. Circuit.

The real question in the short term, then, is what this does to Monday's cert. grant in Hamdan [which I also had the ill-conceived notion to bloawg about earlier this week], since a fair reading of the Graham Amendment also cuts off the Supreme Court's jurisdiction to review Hamdan's habeas petition.

For students of federal courts (including the 25 who currently suffer through my blabbering every Tuesday and Thursday from 9:30 to 11 here at the U of M), this raises a fascinating confluence of four different important cases in the study of federal courts -- Marbury v. Madison, which bars Congress from altering the original jurisdiction of the Supreme Court; Ex parte McCardle, which sustains Congress's authority to deprive the Supreme Court of appellate jurisdiction, even though the Act depriving jurisdiction in that case was, like the Graham Amendment may eventually be, enacted while the appeal in that case was pending; Ex parte Yerger, which, following McCardle, held that the same statute at issue in McCardle did not deprive the Court of jurisdiction to consider habeas petitions filed in the Supreme Court in the first instance, and, in more modern times, Felker v. Turpin, which upheld the constitutionality of provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) that stripped the Supreme Court of jurisdiction to hear certain types of habeas appeals, entirely because petitioners could, as in Yerger, still file originally in the Supreme Court.

So where does Hamdan fit?

It seems to me that Hamdan raises the question implicitly reserved in McCardle and Yerger, and explicitly reserved by Chief Justice Rehnquist in Felker v. Turpin -- Would a statute barring the Supreme Court from reviewing an entire class of habeas petitions either on appeal or initially filed in the Supreme Court run afoul of the Due Process and Suspension Clauses?

[As an aside, Marbury turns out not to be a problem here because of an interesting analytical twist first adopted in Yerger -- even when a detainee files a habeas petition in the Supreme Court in the first instance, so bypassing the lower federal courts altogether, the Court is, under Yerger, only exercising its "appellate" jurisdiction. And that jurisdiction may be limited by Congress under McCardle. So there is no question whether the Graham Amendment alters the "original" jurisdiction of the Supreme Court, and therefore runs afoul of Marbury -- it doesn't.]

As to the deeper question that the case law doesn't resolve, I think the answer depends on two very different, but very important, constitutional questions: (1) Do Guantanamo detainees have any due process rights that such a statute would violate? (2) Does the Suspension Clause guarantee some form of habeas relief to the detainees? The first question has been already batted around throughout the blawgosphere.  The second question, far less so.

One thing is clear, however: If the Graham Amendment is enacted into law, the Court will almost certainly have to reconsider its jurisdiction to entertain Hamdan's appeal, and, in that regard, likely answer a federal courts question that has been left unanswered since 1869.

Caveat [what's Latin for "Federal Courts students"?].

Posted by Steve Vladeck on November 11, 2005 at 01:47 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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» Hamdan, Rasul, Etc. Imperiled from SCOTUSblog
The Senate yesterday by a vote of 49-42 passed an amendment to the Defense Appropriations bill, offered by Lindsey Graham, section (d) of which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of... [Read More]

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» A Vote for Unreviewable Injustice from Discourse.net
The Senate did a bad thing yesterday, voting for the so-called Graham Amendment, 49-42 (with McCain voting for it), which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. The poin... [Read More]

Tracked on Nov 11, 2005 11:29:54 AM

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Comments

Just because I couldn't read the infernally small print (using IE):

[Note to self: Pick far less serious topics to bloawg about next week, like (1) why giving midterm examinations can be very bad to the social lives of young law professors; or (2) how to leave your apartment as a young law professor without running into at least ten of your students. Note to co-Prawfsblawggers: It was this or a fascinating account of my IM basketball team's thrilling 58-55 victory tonight... maybe I picked the wrong one?]

Posted by: Eh Nonymous | Nov 11, 2005 9:24:22 AM

So what do you think the Supreme Court will do now with respect to Hamdan? It seems that the Court is obligated to address whether it has jurisdiction to hear the case, even though that issue was not presented below. Will the Court invite additional briefing on the newly raised jurisdictional question presented? Also - one thing not made clear in your post - is the Amendment now the law of the land, or has it just passed through the Senate (but not the House)?

Posted by: Lindsay | Nov 11, 2005 10:05:41 AM

Lindsay:

It has passed the Senate, but (1) the underlying bill (the National Defense Authorization Act for Fiscal Year 2006, S.1042) has not yet passed the Senate; (2) the House has apparently not yet considered a parallel amendment on its version of the defense authorization (see here); and (3) even if both houses pass the underlying bill with the amendment in place, the bill is still presumably subject to the President's threat to veto it if it contains Sen. McCain's amendment prohibiting torture and abusive treatment of prisoners.

(Also, as the link in (2) sets forth, the Senate is expected to consider a further amendment to the amendment on Monday that would remove the jurisdiction-stripping provisions.)

Finally, I'll leave it to the Supreme Court-practice experts to decide which is more likely, but I would guess there are multiple possibilities as to what the Court could do with Hamdan- either invite briefing on their jurisdiction, simply dismiss the cert. petition as improvidently granted, or vacate the court of appeals' decision and remand to allow the D.C. Circuit to reconsider its own jurisdiction. I'll add another twist, though --- if the Court does invite briefing on its jursidiction, will the Chief Justice adhere to his recusal? After all, the questions presented will be completely indepedent (at least at the jurisdictional level) from the questions he decided as a member of the D.C. Circuit panel.

Posted by: Russell | Nov 11, 2005 11:53:55 AM

Can someone provide a cite to the bill number or a link to the text? There are way too many "graham amendments" to various bills. (Of course, I might not be able to read it without vomiting or crying, so maybe this is good.)

Posted by: Paul Gowder | Nov 12, 2005 11:08:52 AM

http://www.scotusblog.com/movabletype/archives/graham.habeas.pdf

Posted by: Marty Lederman | Nov 12, 2005 10:21:03 PM

Doesn't Section 1 of the 14th amendment guarantee equality before the courts to all persons?

Posted by: Chris Beck | Nov 12, 2005 11:56:38 PM

It seems to me that Article 1, section 9 is very clear. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

It seems clear to me that anyone held in US custody has that right except in times of rebellion or invasion. Also, it seems clear that the inteded meaning is ONLY rebellion or invasion, as the reference to public safety is dependent on those cases. So it can't merely be a case of public safety, it must be a rebellion or invasion specifically, which is not the case except now except under the most tortured of definitions.

So from my perspective it seems clear they have the right to a writ of Habeas Corpus; the ambiguity is before whom.

Posted by: adamatari | Nov 14, 2005 5:32:37 AM

Is Art. 1, section 9 meant to apply to "enemy combatants"? i.e. Do they have constitutional rights to being with?

Posted by: agmnim | Nov 14, 2005 10:32:11 PM

The more fundamental question would seem to be, what's an "enemy combatant?" We know that it is a fiction created to pretend the Geneva Conventions don't control, but it is a term that has never been used in either military jurisprudence or international law [to include the law of armed conflict], until Jose Padilla got busted at O'Hare airport in May of 2002. What about the people who are bona fide POW's at Guantanamo? Or what about the fact that the Supremes took and decided [using the term loosely] Quirin, even though an Executive Order said that no collateral challenges were allowed? Or, that historically, we have always allowed POW's to bring habeas actions... the list goes on, but maybe Chicken Little was right [only prematurely so], the sky and everything else seems to be falling.....

Posted by: Don | Nov 15, 2005 10:30:56 PM

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