News Release

End of Habeas Corpus?


While the Warner-Graham-McCain bill has gotten substantial attention with regards to its Geneva conventions provisions, the Center for Constitutional Rights has criticized both the bill and the administration’s proposal as gutting habeas corpus.

McCain and Graham were questioned separately about this yesterday, by Sam Husseini of the Institute for Public Accuracy, as they left the studios of Sunday morning talk shows in Washington. McCain replied that he was not familiar with those provisions of the legislation.

When Graham was asked if the bill, as the Center for Constitutional Rights has charged, “would prevent anyone taken into U.S. custody — anywhere in the world, past, present or future, innocent or not — from ever having their case heard in a court of law,” the South Carolina senator replied: “That is a complete false statement.”

Graham added: “Every person tried as a war criminal will now be able to appeal their conviction if there is one through our federal court system. … Everywhere we hold someone there are rules in place to appeal their status as enemy combatants.”

Video and transcript of the remarks by McCain and Graham are available here.

President of the Center for Constitutional Rights, Ratner said today: “The Warner-Graham-McCain bill denies habeas corpus to all aliens held outside the United States and currently in U.S. custody. And ‘outside’ includes Guantanamo.

“However in the case of those who have been found to be unlawful enemy combatants by Combatant Status Review Tribunal (combatant status review panels used at Guantanamo) it gives a meaningless court of appeals ‘review’ — a review that examines whether or not the U.S. complied with its own procedures — but not … a real court hearing with factual development as habeas corpus requires.

“For those aliens detained outside the U.S. that have not had CSRT hearings — the high majority — in facilities like Bagram in Afghanistan, the Warner bill simply abolished habeas or any other court review.

“The consequences are breathtaking. The U.S. can pick up any alien, even a legal permanent resident in the U.S., and take them to an off-shore prison and hold them forever without any kind of court hearing.

“While all the attention on this legislation has focused on Geneva conventions and military commissions, the Warner alternative, like the administration bill, authorizes lifelong detention without habeas or any genuine review whatsoever.”
More Information

Willett is a partner at the law firm Bingham McCutchen. One of his clients, Abu Bakker Qassim, who was imprisoned at Guantanamo from 2002 to May 2006, had an oped in the New York Times on Sunday.

Willett said today: “Sen. Graham refers to a provision in the Senate bill that gives the court of appeals a review of ‘enemy combatant’ findings made by the military’s Combatant Status Review Tribunals. But the devil is in the details. The Senate bill limits the court’s review to whether the CSRT [has] followed its own rules. … The irony of the new bill is that it would give more rights to Khaled Sheikh Muhammed, who stands accused of murdering nearly 3,000, than to men who’ve never been charged, and never will be charged, with anything.

“Judge Hens Green, the only judge to have looked closely at these CSRTs, roundly condemned them as arbitrary more than a year ago. The CSRTs branded as ‘enemy combatant’ not just enemy soldiers taken on the battlefield, but all kinds of people who were never soldiers at all. They based their findings on secret evidence and reached contradictory and inexplicable results.”

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167