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Thursday, November 10, 2005

The Graham Amendment, or, Has Time Proven Justice Scalia Right?

An increasingly well-noted topic in law-blawging this week is the so-called "Graham Amendment" [Hat Tip to How Appealing for the link], which purports to strip all federal courts of jurisdiction to entertain habeas petitions brought by Guantanamo detainees. Forests could likely be felled on whether the Amendment, if enacted, would violate the Constitution's Suspension Clause, which forbids suspension of the "privilege of the writ of habeas corpus" except "when in cases of rebellion or invasion when the public safety may require it." Some of the constitutional questions include (1) whether the statute would truly "suspend habeas" by stripping federal jurisdiction; (2) if so, whether this is a "case[] of rebellion or invasion"; (3) if so, whether the "public safety" requires suspension; and so on. Even if the Amendment wouldn't technically be a "suspension" of habeas, it raises separate legal issues to the extent that it might deprive the detainees of a forum in which to enforce what (few) constitutional rights they may have.

Another point, that I have yet to see any posts on, is whether passage of the Amendment would divest the Supreme Court of jurisdiction over the recently granted Hamdan case, since the Amendment would apply "to any application or other action pending on or after the date of the enactment of this Act." [As federal courts scholars can attest, the Supreme Court famously affirmed the constitutionality of a statute depriving it of jurisdiction over an appeal enacted while that appeal was pending in Ex parte McCardle.] Thus, the Graham Amendment might provoke a modern reconsideration of McCardle...

But what's been bothering me today is something far more banal. The Amendment is, rather clearly, meant to override the Supreme Court's 2004 interpretation of the habeas statute, 28 U.S.C. [sec.] 2241, as extending to Guantanamo in Rasul v. Bush. Rasul held that the habeas statute did allow jurisdiction over habeas petitions filed by Guantanamo detainees, drawing a passionate, angry dissent from Justice Scalia. Decrying the majority's opinion as "a monstrous scheme" and "judicial adventurism of the worst sort," Justice Scalia was chiefly concerned with the fact that:

From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.

Here's my question: Has the "legion of ensuing claims" that Justice Scalia so dreadfully feared actually materialized?

To my mind, there are now only two major pending cases related to the Guantanamo detentions -- Hamdan, which the Court granted on Monday, and the "Guantanamo Detainee Cases," a series of appeals consolidated by the D.C. Circuit, and awaiting decision after oral argument. I may be missing one or two stray cases, but that's basically been it.

So, if a central rationale of Justice Scalia's dissent (and of Senator Graham's desire to overrule Rasul) was the possibility that the decision would open the floodgates to a slew of new cases filed in the federal courts, thus straining the resources of the judiciary, that concern just hasn't materialized in the 17 months since Rasul. Nor have the two principal cases following Rasul drawn into question "battlefield" decisions in the war on terror. Hamdan, at most, goes to (1) whether Congress has authorized the military tribunals at Guantanamo, or, if it hasn't, whether the President has inherent power to create them himself; and (2) what treaty-based, constitutional, and statutory rights Hamdan has before the tribunal.  The Detainee Cases go only toward the extent to which the detainees must be held in accordance with provisions of domestic and international law.

Until and unless those concerns do materialize, and I'd be the first to admit that they are not lightly to be ignored, any move to deprive the federal courts of jurisdiction to hear these claims strikes me as premature, to say the least. I imagine, however, that I'm hardly part of an overwhelming majority in so thinking...

Posted by Steve Vladeck on November 10, 2005 at 01:35 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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It aims to strip the federal courts of all ability to hear habeas petitions by Guantanamo detainees. Well, the good ol' folks at PrawfsBlawg (yes, the name says it all) have something to say about that: the floodgates that were supposed to open as a ... [Read More]

Tracked on Nov 16, 2005 3:10:17 PM


Hicks (Rasul) v. Bush 02cv299 is the senior case. The S. Ct. decision in Gherebi just after Rasul put all the cases in the D.D.C.

The CSRT's are bad joke: they are holding people on the basis of unfounded suspicions and tortured confessions according to the principle that they are guilty until proven innocent, which by the way, a good many of them have been, including a number who are still being detained becasue it would be so embarassing and onconvenient to release them. (See QASSIM and KIYEMBA).

Posted by: Charles Gittings | Nov 11, 2005 1:34:11 PM

I am certainly not defending Justice Scalia, but the result of the D.C. Circuit's decision could very easily be hundreds of individual trials where the district court may or may not have to defer to the CSRTs (depending on what the D.C. Circuit says about those). It seems like the only way there won't eventually be individual trials is if (1) the administration succeeds with its argument that as matter of law the executive's decision to hold the detainees (as well as the treatment of the detainees while in custody) is unreviewable or (2) if the detainees are released.

Posted by: BPC | Nov 10, 2005 11:20:25 AM

I'm aware of most of them, but the real question is how much will be left to decide in each of them once the decisions in Hamdan and the consolidated Detainee Cases are handed down... if the answer is almost nothing, is it really true that Justice Scalia has been proven correct?

It's certainly _not_ true that the cases have been filed "in all of the 94 federal judicial districts"; the Court's decision in Padilla, the Seventh Circuit's decision in al-Marri, and the Ninth Circuit's decision in Gherebi certainly saw to that...

Posted by: Steve Vladeck | Nov 10, 2005 11:03:30 AM

A few hundred cases have been filed in the D.C. District Court on behalf of Guantanamo Detainees. (Our firm represents two of the detainees.) These cases are essentially stayed pending the D.C. Circuit's decision. I am not sure how many of these cases were filed before Rasul and how many afterwards. While I strongly oppose the Graham Amendment, Justice Scalia was correct that a significant number of claims have been filed.

Posted by: BPC | Nov 10, 2005 10:47:44 AM

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