Friday, March 31, 2006
Senators' briefs rejected12:12 PM | Lyle Denniston
The D.C. Circuit Court, pondering the meaning of the court-stripping law passed late last year by Congress (the Detainee Treatment Act), has refused to accept three senators' attempts to help shape the ruling. In a brief order, containing no explanation, the Circuit Court refused to allow the three key sponsors of the new law to file amici briefs in two packets of detainee cases now pending there. No one opposed the filing of those brfiefs. No other amicus briefs were turned aside.
The senators are Republicans Lindsey Graham of South Carolina and John Kyl of Arizona, who filed a brief together, and Democrat Carl Levin of Michigan.
There is an ongoing debate among those three as to the import of legislative history that the three of them created for the Congressional Record, but that did not actually occur on the floor of the Senate. The controversy centers on whether the Act was meant to withdraw the courts' jurisdiction over already-pending detainee cases -- an issue also before the Supreme Court in the case of Hamdan v. Rumsfeld (05-184).
The Circuit Court's order to return the briefs to the senators can be found here.
The excerpt below is from a letter signed by one Erin Conata, covering the Democrat signatures that signify House agreement with the Conference Report. The letter was entered into the record by Mr. SKELTON.
However, I am concerned that Senator McCain's language could be undercut by the Graham-Levin Amendment. This amendment was negotiated largely in a closed process by the White House and a select few Majority members. It addresses many aspects of the Combatant Status Review Tribunals and military commissions in Guantanamo Bay but there are serious questions about the procedures and they are currently being challenged in federal court. There are also questions about the Amendment's impact on our judicial system and law that's been in existence since the founding of our nation. I expect the courts will have a real challenge interpreting the Amendment's meaning. At the very least--the Graham-Levin Amendment should not apply retroactively or to any pending cases. ...
At least, as Senator LEVIN has emphasized, the Graham-Levin amendment provisions do not apply to or alter pending habeas cases. The Senate voted to remove language from the original Graham amendment that would have applied the habeas-stripping provision to pending cases, affirming that it did not intend such application. Further, under the Supreme Court's ruling in Lindh v. Murphy, 521 U.S. 320 (1997), the fact that Congress chose not to explicitly apply the habeas-stripping provision to pending cases means that the courts retain jurisdiction to consider these appeals. Finally, the effective date language in the original Graham-Levin amendment, and Senate passed Defense Authorization Bill (S. 1042 section 1092), was retained in the final negotiated language for the Conference Report, thereby adopting the Senate position that the habeas-stripping provision does not strip the courts of jurisdiction in pending cases.
Again, I urger reading the material in the record that is represented by my ellipses in the above excerpt. I cut at least five paragraphs from the letter, and those paragraphs discuss the interplay between military tribunals, Article III Courts, McCain's torture amendment and the Graham/Levin amendment.