President Bush's proposal for trying the Guantanamo detainees does its best to fulfill a dear administration wish—no more embarrassing lawsuits. Throwing the detainees out of federal court may in fact be the legislation's underlying goal, and the one it's most likely to achieve. This isn't a problem that's solved by the alternative legislation circulated by Senate Republicans today.
Hundreds of Guantanamo detainees now have cases pending in the lower courts—habeas corpus petitions the Supreme Court gave a green light to more than two years ago. After the court's decision this past June in Hamdan v. Rumsfeld, it looked as if those habeas claims would get a full airing. The detainees, almost all of whom have never been charged with a crime, seemed poised to challenge the legality of their indefinite detentions and the flimsy procedures set up to designate them enemy combatants.
The new Bush bill purports to toss all of these cases out of court. Except as provided for in the bill itself, it eliminates the jurisdiction of any court over any suit, pending or otherwise, by any alien detained as an unlawful enemy combatant, "relating to any aspect of the alien's detention, transfer, treatment, or conditions of confinement." (Here's the full text.) That pretty much covers everything and everyone, doesn't it?
The two exceptions the bill makes to this blanket rule aren't reassuring: Detainees whom the administration sends before "combatant status review tribunals"—the panels that have designated the vast majority of detainees as enemy combatants based on hearsay finger-pointing—get to go to federal court. But the scope of review is limited. The detainees would have no right to challenge the CSRTs based on the due-process protections in the Geneva Conventions. And nothing in the Bush bill says that future detainees will even have a hearing before a CSRT at all. Which would leave them with nothing to appeal.
The bill's second exception to the sweeping rule of no judicial review applies to those detainees who have been tried and convicted by a military commission. These are the commissions the bill itself establishes—the ones that could prevent the defendants from seeing the evidence against them and that would permit coerced testimony and hearsay evidence. The bill provides that a detainee can't challenge those awful rules until after a "final judgment" has been issued, which means he can't appeal until after he has been convicted and sentenced. That would make perfect sense if the detainees were being tried by a regular military court-martial with long-established procedures. But, of course, that's not the case. These new commissions are brand-new knockoffs of the military's real-deal system of courts-martial. Bush's approach allows them to process dozens or hundreds of people before their procedures are ever tested in federal court.
Eventually, the detainees have the right to petition the Supreme Court. But the scope of review may be limited, because the Bush bill explicitly states that no one can sue to enforce the protections of the Geneva Conventions or any other international protocol. And the detainees' first layer of appeal is not a standard military court—the United States Court of Appeals for the Armed Forces—but instead a panel hand-picked by Secretary of Defense Donald Rumsfeld. Last summer, even prosecutors complained that the Rumsfeld gang initially selected to try the detainees would ensure that convictions were upheld.
There's more: Unlike the Detainee Treatment Act passed by Congress at the end of last year—which was bad enough—the new legislation doesn't restrict itself to Guantanamo Bay. If the administration wants to hold future detainees in military brigs on U.S. soil—as it did Jose Padilla, the big dirty-bomber fish turned minnow—it could do so without a care. And the bill's broad definition of an "enemy combatant" could be read to authorize the indefinite detention of U.S. citizens as well as foreigners and legal residents. That's an enormous grant of executive power.
So far at least, some Republican senators seem ready to beat back the parts of Bush's bill that have gotten the most attention for shredding traditional notions of fair process. "It would be unacceptable, legally, in my opinion, to give someone the death penalty in a trial where they never heard the evidence against them," Sen. Lindsey Graham, R-S.C., told the New York Times. That's a decent sound bite. And alternative legislation circulated today in draft form by both Graham and Sen. John Warner of Virginia would allow a detainee to be excluded from his trial only if there's a risk to someone's physical safety, or if he's being disruptive. That suggests he has a right to see the evidence against him.
But don't look to Republican senators to reinstate most of the judicial review that Bush would take away. Graham sponsored the Detainee Treatment Act and, as he announced at the very last minute before that bill passed, in his view its goal was to stop all the pending Guantanamo lawsuits, including Hamdan. The Graham-Warner draft gets rid of Rumsfeld's hand-picked appeals panel. But as far as I can tell, it leaves intact most of the provisions that kill off meaningful review. Maybe there's still some hope for the detainees, since these bills remain in play: Sen. Carl Levin, D-Mich., who co-sponsored the DTA with Graham, is said to be negotiating on behalf of the Democrats. The Senate doesn't have many voting days left before the election. If Levin stands up to the Republicans, it won't take long for the clock to run out.