To better understand what is at stake, even under this compromise, this letter by a group of law professors is enlightening.(PDF file). (Notably, the letter proper is only two pages long; it contains 11 pages of signatures.) Some excerpts:
Pursuant to the Military Order signed by President Bush on November 13, 2001, the Department of Defense has set up non-statutory military commissions and vested them with power to impose sentences on detainees of long imprisonment and even of death. Earlier this month, in Hamdan v. Rumsfeld, the Supreme Court agreed to review aspects of the legality of these military commissions. The Amendment apparently seeks to remove the Supreme Court’s appellate jurisdiction to resolve the important legal questions raised by the Hamdan appeal – purporting to leave the issues within the exclusive control of the Executive.The fact that a "compromise" has been approved does not mean "the right thing" has been done. The clear intent of the Bush Administration, in ignoring and prolonging the cases mentioned in the letter, and simply blocking other "detainees" from court access, is to enact in fact what they cannot win in law. Under the compromise amendment, they can actually do this more effectively. Appeals will be limited, and limited access to courts is even easier to control than the issue as it currently stands.
Furthermore, the Amendment, as currently drafted, renders it impossible to implement in the federal courts the full scope of the rulings of the Supreme Court in two recent cases, Hamdi v. Rumsfeld and Rasul v. Bush....
The Graham Amendment would dramatically erode our core constitutional commitment to separation of powers. The Amendment consigns the protection of fundamental human liberties to unilateral executive determination under which the Executive chooses the prisoners, chooses the charges, chooses the judges, chooses the punishment – and cuts off judicial review of its determinations. We should not forget the Framers’ insight, expressed so eloquently by James Madison in the 47th Federalist Paper, that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
The Framers’ concerns are borne out by recent events. The abuses documented at Guantánamo and the Abu Ghraib prison, and other U.S. facilities around the world, are reminders of what can happen when Madison’s advice is cast aside. Further, were the Amendment enacted, it would undermine the ability to enforce in federal court the pending McCain Amendment. That Amendment, approved by the Senate 90-9, makes it unlawful for any “individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location [to be] subject to cruel, inhuman, or degrading treatment or punishment.”
The Graham Amendment departs from our commitment to checks-and-balances. The Amendment’s passage occurred without hearings by committees such as the Senate Judiciary Committee and without time for sufficient public debate. No discussion has been had on the Amendment’s apparent effect that persons sentenced to long incarceration or to death would have no federal judicial review. The extraordinary sweep of the Graham Amendment, at a minimum, warrants the Congress’s full deliberative processes. Enactment of the Amendment as currently drafted does harm to the Constitution and to the rule of law.
Not to mention, any compromise on habeas corpus pits one part of the Constitution (grant of habeas rights) against another (the power of the Congress to set the jurisdiction of the federal courts). Let's linger on this a moment. Habeas comes into American law via tradition and, not insigificantly, the Habeas Act of 1679, enacted by the British Parliament. It enters the U.S. Constitution in Art. I, Sec. 9:
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.I would note again that the best defense Sen. Graham has for his amendment is that it "undermines the war effort" to allow "detainees" access to federal courts. As the law professors note, the Supreme Court begs to differ.
Will this offer grounds for appeal? The plain language of the Constitution is that habeas is not to be suspended except under circumstances in which the republic faces immediate peril: rebellion (the Civil War) or invasion.
We face neither in the case of the Iraqis, Afghans, and others in Guantanamo and other prisons run by the U.S.
Will this be enough to give the courts reason to overrule this attempt to abrogate their jurisdiction? It's an interesting question, but not one I want to see litigated.