ABIPARTISAN Senate compromise yesterday significantly improved a proposal by Sen. Lindsey O. Graham (R-S.C.) to limit judicial review of the military's detention and trial procedures at Guantanamo Bay, Cuba. The legislative process that produced this bill has been terrible: The Senate passed a momentous change in policy governing the power of the courts, following backroom bargaining that bypassed normal Judiciary Committee consideration. The result, however, is less terrible: positive in certain respects, unfortunate in others.
One political benefit of the compromise -- struck by Sens. Graham, Jon Kyl (R-Ariz.), and Carl M. Levin (D-Mich.) -- is that it might make it easier for the Bush administration to swallow a separate amendment to the same defense authorization bill by Sen. John McCain (R-Ariz.) to ban cruel, inhuman and degrading treatment of detainees held overseas. The compromise proposal would stem the flood of litigation that followed the Supreme Court's assertion of jurisdiction over Guantanamo Bay last year. Depending on how it is interpreted by the courts, it might, like the original Graham amendment, require the dismissal of habeas corpus cases currently in the courts, including the case before the Supreme Court challenging the administration's plan for special military trials, called commissions. This would please the administration.
But unlike the original Graham amendment -- which would have created only the narrowest judicial oversight of the military's determination that someone is an "enemy combatant" -- the compromise bill gives both those designated as enemy combatants and those convicted by military commissions the right to appeal to the U.S. Court of Appeals for the D.C. Circuit. Those appealing would be able to challenge the lawfulness of the underlying processes, so the courts would be able to make sure that miscarriages of justice have not taken place. The compromise amendment therefore could substantially improve the commission process, and it represents a crucial beginning of congressional involvement in writing the rules under which detainees in the war on terrorism are judged.
But while creating a statutory regime for appeals, the proposal does nothing to establish the rules under which the trials are conducted or under which the military designates enemy combatants. Those would remain purely an executive matter, meaning that the administration would still lack the legitimacy and the limitations that operating under clear law would provide.
The major reason for the current litigation is that it isn't clear what legal rights, if any, U.S. law gives to inmates at Guantanamo Bay. If Congress wishes to play a constructive role, it should help define the rights that accused enemy combatants have when the government wishes to hold them indefinitely or try them for war crimes: What evidence should be admissible in their trials and detention hearings? How broad should their rights be to confront evidence against them? Creating an orderly appellate process doesn't answer these questions; it merely changes the time and forum in which the courts and the executive branch struggle with them.