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Senators move to reverse effects of Supreme Court decision against Guantanamo commissions

Michael Roston
Published: Thursday June 29, 2006

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Senators on Capitol Hill are already moving to undercut yesterday's Supreme Court ruling that military tribunals being held at Guantanamo Bay are illegal, RAW STORY has learned.

The Supreme Court ruled 5-3 in Hamdan v. Rumsfeld that the commissions created by a November 2001 military order to try suspected terrorists and their co-conspirators were not authorized by Congress and violated the Uniform Court of Military Justice and the laws of war as enunciated in the four Geneva Conventions.

But in a concurring opinion, Justice Stephen Breyer noted, “Nothing prevents the president from returning to Congress to seek the authority he believes necessary.”

During a mid-day press conference with visiting Japanese Prime Minister Junichiro Koizumi, President Bush observed that, “certain senators have already been out, expressing their desire to address what the Supreme Court found, and we will work with the Congress.”

In a joint statement, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona, noting Breyer’s opinion, declared their intention to “pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions.”

The same two senators, along with Democrat Carl Levin of Michigan, took similar action in response to the Supreme Court’s 2004 decision in Rasul v. Bush. The resulting Graham-Levin-Kyl amendment, incorporated in the Detainees Treatment Act of 2005, denied Guantanamo detainees the right to avail themselves of any federal court, effectively stripping the federal judiciary of jurisdiction over the detainees.

At the time of the bill’s passage, the American Civil Liberties Union warned that the bill “would eviscerate the protections of the McCain amendment and other anti-torture laws, violate the Constitution by denying the Supreme Court its role as the final authority on whether government actions are constitutional and legal and terminate nearly all court cases brought by military officers on behalf of detainees.”

The Hamdan decision in part repudiates the administration’s use of this legislation, stating that it runs against “ordinary principles of statutory construction.” It therefore seems possible that the Senate may take action to continue the Bush administration’s policy by passing new legislation, according to some experts on the legal battles in the war on terrorism.

“The administration has just received a major body blow, so they will try to drum up some things in Congress to legitimize their process,” said Michael Ratner, President of the Center for Constitutional Rights, an organization that submitted amicus briefs to the Supreme Court on the Hamdan case, in an interview with RAW STORY. “Kyl and Graham are the key people,” he added.

Senators Graham and Kyl failed to answer RAW STORY’s requests for comment, but earlier statements they have made indicate that any legislation they offer on military commissions will not be in line with what might be sought by critics of administration policy.

In an October 1, 2005 speech on the Senate floor, Graham declared, “I totally agree with the President that a member of al-Qaida should not be given Geneva Conventions status.” He later added, “We have a military commission at Guantanamo Bay that I totally support.” Similarly, Senator Kyl remarked on the Senate floor on June 16, 2005 that “Enemy combatants are not entitled to the protection of the Geneva accords to which prisoners of war are entitled.”

While Graham and Kyl’s precise plans are not known, it is certain that they will not be alone in proposing a legislative solution to the Court’s ruling.

Senator Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, argued in a statement issued by his office, “We can show by example how we expect our soldiers and citizens to be treated if they are swept into foreign courts or tribunals, and do it without ignoring our laws or our principles.”

A proposal provided to RAW STORY by Leahy’s staff referred to 2002 legislation that “establishes a legal framework for proceedings that are truly 'full and fair'… [tracking] very closely with recommendations arrived at independently by the American Bar Association… to provide due process guarantees similar to those used in courts-martial.”

Also yesterday, Senator Arlen Specter, the Chairman of the Judiciary Committee introduced the “Unprivileged Combatant Act of 2006,” according to a statement issued to RAW STORY. The bill seeks to balance “the need for national security with the need to afford detainees with sufficient due process” and “authorizes the president to establish military commissions for the trial of individuals” for a set of offenses that it defines.

Michael Ratner was pessimistic about these proposals for legislatively-authorized commissions, warning that such special courts “will always have weaknesses, they carve out certain rights that people no longer have.” He added, “Anything Congress does means 2 or 3 more years of litigation and 2 or 3 more years in Guantanamo Bay.”