The Habeus Corpus Amendment

The Senate today approved, by a vote of 84 to 14, the Graham-Levin amendment to the Defense Appropriations bill, which is a modified version of the Graham amendment to the Defense Appropriations bill, passed last Friday by a vote of 49 to 42, stripping Guantanamo detainees of habeus corpus rights. Sen. Jeff Bingaman (D-NM), also sponsored an amendment; that one was voted down today, 54 to 44.

The main difference between Graham's original amendment and the Graham-Levin amendment seems to be that the first eliminated habeus corpus review entirely, whereas the "compromise" that passed today "merely" restricts such review. The Bingaman amendment was apparently a not-very-effective attempt to make the language a bit more acceptable to civil liberties advocates -- although Katherine at Obsidian Wings, if I'm understanding her correctly, thinks Bingaman's is worse than Graham's original. I think there may be an antecedent problem causing the confusion.

I know Graham's new amendment is an improvement over his Friday amendment, while Bingaman's amendment is, in an effort to garner votes, worse than his earlier amendment. I don't really know how much better and worse in either case. Of the four cosponsors of those amendments, I trust Levin and Bingaman quite a lot and Graham (after this episode) and Kyl (as always) not at all. And Levin has stated that he prefers Bingaman's amendment to the one he co-wrote with Graham and Kyl, but that one is still far preferable to the one that passed Friday.

(Does the "his" three words from the end of the first sentence refer to Graham's earlier amendment, or to an earlier amendment authored by Bingaman?)

The plan now is to present the Graham-Levin amendment together as a package with Sen. John McCain's legislation banning cruel, degrading, or inhumane treatment of detainees in U.S. custody, to Pres. Bush for his signature.

An article in today's Washington Post explains:

Graham and Levin indicated they would ... demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.

"McCain's amendment needs to be part of the overall package, because it deals with standardizing interrogation techniques and will reestablish moral high ground for the United States," Graham said.

Such broad legislation would be Congress's first attempt to assert some control over the detention of suspected terrorists, which the Bush administration has closely guarded as its sole prerogative. By linking a provision to deny prisoners the right to challenge their detention in federal court with language restricting interrogation methods, senators hope to soften the administration's ardent opposition to McCain's anti-torture provision -- or possibly win its support.

The Justice and Defense departments have expressed strong support for legislation that would curtail a flurry of civil litigation coming out of the military's detention camp at Guantanamo Bay, Cuba, according to some senators involved in the negotiation. "The truth is, this is something the administration would dearly like," Sen. Jeff Bingaman (D-N.M.) said of the language curtailing detainee access to the courts.

Put another way, the Senate is trying to persuade the president to approve McCain's bill prohibiting torture, without the exemption for the C.I.A. that Dick Cheney has been pushing for. As bait, they are offering Bush an amendment to a defense spending bill that will deny legal recourse to detainees -- in Guantanamo, at least -- if they are tortured. Cruel, inhuman, or degrading treatment will be forbidden; and detainees will not have the right to challenge cruel, inhuman, or degrading treatment. That's what it looks like to me, even though of course the Republicans and Democrats responsible for this "compromise" would not put it so baldly.

Pretty foxy, huh?

For abundant commentary on the differences between the various amendments, and on the progress and implications of the habeus corpus-stripping in general, Obsidian Wings is a superb resource -- especially the comments, which have a wealth of information and links. SCOTUSblog and Balkinization are other good resources.