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Senate Reaches “Compromise” on Habeas Corpus That Could Still Strip Guantánamo Detainees of Any Trial

StoryNovember 17, 2005
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The Senate this week approved what lawmakers hailed as a bipartisan “compromise” on legal rights for Guantánamo Bay detainees that can still strip them of a federal trial. We speak with attorneys Michael Ratner of the Center for Constitutional Rights and David Rivkin, who served in the administrations of President Reagan and George H.W. Bush. [includes rush transcript]

Facing intense criticism from human rights, legal and civil liberties groups, the Senate voted on Tuesday to restore some of the rights of detainees held at Guantanamo Bay. Under the deal–worked out by Republican Lindsey Graham and Democrat Carl Levin–detainees convicted by military tribunals can have their cases reviewed by federal courts.

Graham sponsored the original amendment hastily passed by the Senate last Thursday that stripped detainees of their right to Habeas Corpus which is their right to challenge their detention in federal courts. This amendment overturned a June 2004 Supreme Court ruling that had affirmed detainees right to habeas corpus.

The compromise, reached with Levin, still reverses the Supreme Court ruling but allows any detainee sentenced to death or at least 10 years in prison by a military tribunal, to automatically appeal the decision to the U.S. Court of Appeals for the District of Columbia Circuit.

In addition, the deal restores federal court jurisdiction over pending cases and provides for a court review of whether standards and procedures of the tribunals are consistent with the Constitution.

Graham also linked the legislation with another measure by Arizona Senator John McCain that forbids U.S. troops from torturing or abusing detainees. That measure was overwhelmingly passed by the Senate last month.

We will be discussing this issue with two attorneys who have followed this closely. But first I want to play a clip from an interview that I conducted with Professor Peter Linebaugh when I was in Ann Arbor Micghigan last March. Professor Linebaugh teaches history at the University of Toledo and is author of the article, “The Secret History of the Magna Carta.” The Magna Carta is the English charter signed in 1215 that articulates the right of habeas corpus and is the basis of much of American constitutional law.

  • Peter Linebaugh, University of Toledo professor and author of the article, “The Secret History of the Magna Carta.”

To talk about the Senate legislation on habeas corpus and detainees at Guantanamo Bay we are joined by two attorneys:

  • Michael Ratner, president of the Center for Constitutional Rights.
  • David Rivkin, a partner in the Washington law firm Baker & Hostetler. He served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. He is a member of the UN Sub-Commission on the Promotion and Protection of Human Rights.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’ll be discussing this issue with two attorneys who’ve followed this closely. But first, I wanted to play a clip from an interview that I did with Professor Peter Linebaugh when I was in Ann Arbor, University of Michigan, last March. Professor Linebaugh teaches history at University of Toledo and is author of the article, “The Secret History of the Magna Carta.” The Magna Carta is the English charter signed in 1215 that articulates the right of habeas corpus and is the basis of much of American constitutional law. I began by asking Professor Linebaugh to explain the significance of the Magna Carta.

PETER LINEBAUGH: It still plays a very important part in law against tyranny. For example, last summer in June 2004, when the Supreme Court admitted that the prisoners in Guantanamo Bay should have some kind of judicial hearing, Magna Carta was cited. Or two months ago in December, the House of Lords in England struck down the English equivalent to the PATRIOT bill on the grounds of arbitrary arrest, putting people away without a trial or an indictment. And we’ve seen in England, Ian McDonald, for example, a barrister, has resigned from any of the kangaroo courts on the grounds that this is a violation of Magna Carta.

AMY GOODMAN: I then asked Professor Linebaugh how the Magna Carta relates to the detentions at Guantanamo.

PETER LINEBAUGH: It prohibits torture, and it says that no man — no free man may be arrested or imprisoned without due process of law and judgment by his or her peers. So you can see already, in quoting that chapter, as I’ve just done, that its provisions are violated in Guantanamo Bay. All four that I cited. There’s no jury trial. There’s without due process of law, without habeas corpus. And by the exercise of torture. So these are the ways that in Guantanamo Bay it is violated.

AMY GOODMAN: Professor Peter Linebaugh, speaking recently in Ann Arbor. When we come back, we’ll be joined by Michael Ratner, President of the Center for Constitutional Rights. [break]

AMY GOODMAN: Our guests, Michael Ratner, President of the Center for Constitutional Rights; and David Rivkin, a partner at the Washington office of Baker & Hostetler, a visiting fellow at the Nixon Center and contributing editor of The National Review magazine, as well as a member of the U.N. Sub-Commission on the Promotion and Protection of Human Rights, which is an expert body supporting the U.N. Human Rights Commission. Juan?

JUAN GONZALEZ: Michael, I’d like to begin with you. Your assessment of the compromise that was reached by the Senate on this issue?

MICHAEL RATNER: Well, we don’t like it. I mean, since 1789 and really even since the Magna Carta — 1789 is when the habeas statute was put into our law, there has only been really a suspension of habeas corpus in the Civil War, and since then there really hasn’t been. And all of a sudden, really, without hearings, without any kind of real procedures, the Senate now, with a lot of the Democrats, strips out some of the major rights having to do with habeas corpus. And we at the Center of Constitutional Rights won this case, Rasul v. Bush, giving Guantanamo detainees the right to test their detention in a federal court, and what this statute purports to do is to take that right away.

The only thing I’ll say that’s positive about it, maybe, is that Senator Levin went on the floor and said it’s only prospective, which gives us a strong argument that it doesn’t apply to the current habeas cases we have filed. But look, Juan, it’s been four years. Our clients have not been charged with a crime. They haven’t been convicted of a crime. And they haven’t been sentenced. And they have not yet had a hearing in federal court, where they can contest why they’re in prison. This so-called compromise may give us two more years of litigation before we get them what they need.

JUAN GONZALEZ: And David Rivkin, your perspective on the compromise?

DAVID RIVKIN: I largely share Michael’s views. I think that the compromise is better than the original version of the amendment, which would have stripped all of habeas jurisdiction, not just prospectively, but applicable to pending cases, but effectively strip all the jurisdiction of federal courts to consider cases brought by aliens. Depending on which version you looked at, it would have applied to aliens, not only aliens held overseas, but in the United States. I certainly agree that Congress does have the power to suspend habeas corpus; I do not think it would have been justified in this case. Michael is right, it only happened last time in American history during the Civil War.

I also think — but to put things in perspective, it is burdensome and difficult for the federal government to litigate literally dozens and dozens and dozens of cases. But I think that’s a necessary price you pay. And to me, at least, the very existence of a strong habeas process is something that should reassure people who are concerned about possible abuses of executive power. That’s the price you have to pay in a democracy for your ability to detain individuals as enemy combatants.

And I think every time the courts have upheld the administration’s position, and I would say despite the loss in Rasul, most of the basic propositions involved in the administration’s legal paradigm, namely that individuals who are classified as enemy combatants, including U.S. citizens, can be held for the duration of hostilities, that it’s not a criminal process, they don’t have to be charged, they have to be treated humanely but can be, as I mentioned, held for a protracted period of time, the courts have upheld it. And I think it’s a good thing. Both decisions by the American judiciary legitimate hopefully, at least in my view and hopefully in the view of the critics, the executive branch’s position. So I think that was a very unfortunate and unnecessary effort.

AMY GOODMAN: Michael Ratner?

MICHAEL RATNER: Well, David, I’m really — you know, it’s really good to have you with us on this habeas issue. It is a fundamental right. It’s our protection, really, since the Magna Carta. So I think it’s essential. And I was really pleased to see your article speaking out against it. There’s still a chance, I hope, to reverse this. It goes into the conference. There’s still hope by pushing some of the senators to say ’Let’s get rid of this bad bill. This tinkers with habeas, not just tinkers, but wipes it out for a whole segment of people, particularly people detained at Guantanamo. So I think there’s still a good chance we can beat this back, because it is a nasty piece of legislation.

One point that we have differed on in our various debates and I still differ with you about is whether they have actually — the courts have upheld the right to hold enemy combatants indefinitely. What they upheld was really the right in the Hamdi case to keep in prison somebody who had fought in the war in Afghanistan 'til the end of the duration of that war in Afghanistan. And I don't think they’ve gone farther to simply say that you can hold the people in Guantanamo forever based on being enemy combatants. That’s a point that you and I differ upon. But I’m glad to say that we agree on the nastiness of this legislation in the Senate.

DAVID RIVKIN: I would just add also technically it is utterly confusing. It’s not clear if it applies to prospective cases. I would hate to see the spectacle of another two years spending litigating what is the true meaning of this legislation. I don’t see how it helps anybody. It doesn’t help people who want to contest their detention, to which they’re fully entitled, nor does it help the administration that wants to lessen the burden of dealing with hundreds of cases and wants to actually move forward with military commission proceedings. This is a solution in search of a problem.

MICHAEL RATNER: I agree with you, David, that what should be clarified here is — first, I think it should be stripped out altogether. We should just get rid of this piece of legislation. But at a minimum, it should say that it doesn’t apply to current people litigating cases around Guantanamo, which is what Senator Levin says and which we think is right.

AMY GOODMAN: Isn’t this the administration’s worst nightmare, why we’re seeing President Bush, Vice President Cheney, really hitting hard on the issue of people criticizing the administration? I mean, here we have Michael Ratner, head of the Center for Constitutional Rights, and David Rivkin, who worked for Reagan, who worked for George H.W. Bush, writes for The National Review magazine. David Rivkin, what about this comment? Have you seen this in the 20 years, from the time of Reagan, really a quarter of a century ago, to now, this unanimity that we’re beginning to see now against the administration policies?

DAVID RIVKIN: Well, to be clear, Michael and I share the view that the jurisdiction stripping the habeas impairing provision is a bad thing. There are a number of other aspects of the administration’s policy that I think are more deserving of support. My concern, however, with this whole effort, and I think Michael mentioned it earlier, is the process effort. Look, for a long time I’ve been of a view that the executive branch would have been well advised early after September 11 to work together with Congress in coming out with a comprehensive legislation addressing issues relating to treatment, detention and interrogation of enemy combatants. Have serious hearings, have a serious national debate, and come up with a joint solution by both political branches. Unfortunately, it has not happened.

Now, Congress is being involved. How are they being involved? It’s being done in a typical Washington fashion, as amendments to defense authorization bill, with language switching literally overnight, without serious hearings.

Michael probably likes the McCain Amendment. Well, I’d say one thing about the McCain Amendment, that’s the one you mentioned earlier, dealing with the issue of inhumane and degrading treatment. Whatever you think about the merits of a McCain Amendment, I would submit to you the language of it is entirely confusing. I read the thing three times, and I talked to a number of colleagues in the administration, and even among congressional staffers. It’s not clear whether McCain means to suggest that the Fifth, Eighth and the 14th Amendment applies overseas or does not, which is a fundamentally different issue from level of treatment, because if those amendments do apply overseas, which they never held to apply, under the 14th Amendment, which incorporates other amendments in the Bill of Rights, enemy combatants held overseas would have a right to a lawyer to be present during all interrogations. I very much doubt that even Senator McCain would be willing to go that far. But what we’re going to have if this thing passes is the next three years of litigation about what exactly this thing means. That’s not very responsible. We should be able to do a better job dealing with those difficult issues.

JUAN GONZALEZ: Michael, your response?

MICHAEL RATNER: Well, I think the McCain Amendment is obviously crucial to me. It bans cruel, inhuman and degrading treatment. I think that’s already been banned. I think Gonzales’s interpretation of the Convention Against Torture, saying we can somehow use those techniques against non-citizens, was a really poor legal interpretation that I would have flunked any first-year law student for writing. And I think, in terms of the Fifth, Eighth and 14th Amendment, what McCain is saying, what the Convention Against Torture says, is really the substance of what those prohibitions are, applies, not that the amendments directly apply.

I will agree with David that the way this has been done in Congress, particularly the stripping of habeas, was like something I’ve never seen. I mean, there were no hearings. There was a bunch of senators puffed up, getting up in front of Congress. I thought I was looking at the Roman Forum; they could have been wearing togas, you know, just talking about how a series of lies about what this litigation has represented, that it wasn’t really about people’s freedom. that it was about what kind of CDs they could get. That’s just bull.

JUAN GONZALEZ: But, Michael, given the enormous dissatisfaction that members of Congress have evinced in recent weeks with the conduct of the war in Iraq, with questions of torture by American forces, with this whole issue of the secret detention facilities of the C.I.A., isn’t it surprising that yet you find on both the PATRIOT Act and on this compromise that Congress seems to be willing to go right ahead with the administration’s policies?

MICHAEL RATNER: And on Iraq, I should say, as well, a reporting requirement, and you and I have lived through that stuff in El Salvador and Vietnam, where all you got was Congress continuously reporting, reporting, reporting, and not actually telling the President anything about what really to do. So until there’s a lot more public pressure here, Juan, on each of these issues, on torture, on habeas and on the war, you’re going to see the congressmen essentially wrapping themselves in the flag and making, I think, very mild criticisms.

AMY GOODMAN: There’s a piece in the Chicago Sun-Times, “The United States has detained over 83,000 foreigners in the four years of the war on terror, enough to nearly fill the NFL’s largest stadium. The administration defends the practice of holding detainees in prisons from Afghanistan to Guantanamo Bay as a critical tool to stop the insurgency in Iraq, maintain stability in Afghanistan, get suspected terrorists off the streets. Roughly 14,500 detainees remain in U.S. custody, primarily in Iraq. The number has steadily grown since C.I.A. officers touched down in Afghanistan in 2001.” 83,000 foreigners, enough to fill the NFL’s largest stadium. I wanted to go to the issue of what the U.S. calls rendition, others call it kidnapping. But now increasing international opposition to countries when people in their countries learn about the use of their air fields to take prisoners that are kidnapped off the street from one country to another and these secret C.I.A. bases that Juan referred to.

MICHAEL RATNER: Well, it’s good to see this kind of opposition finally building up in these countries. We’ve had the indictments, of course, in Italy, where 13 C.I.A. people had been indicted, and their extradition has been asked for from the United States, for kidnapping an Egyptian cleric and sending him to Egypt. You just saw recently in Spain, where now people are saying that the Spanish airport — I think the one in Majorca — was actually used for these rendition planes. You’ve seen this in Sweden. So there’s a growing opposition to using airports in Europe right now for rendering people to other countries where they are tortured or to C.I.A. places where they’re tortured. It’s just the beginning. The Center has, as you know, the one case, Maher Arar, who was sent from the United States, actually, to Syria. We’re litigating that. The administration is fighting against it. But this is like a huge hidden elephant, because what we are doing is taking people from anywhere in the world and sending them to torture chambers. And one of the things they’re afraid of in the McCain Amendment is that they won’t be able to continue to torture people when they get them in these C.I.A. hellholes.

JUAN GONZALEZ: David Rivkin, what about this issue of these secret detention facilities abroad?

DAVID RIVKIN: Well, let me just say one thing, briefly. I agree with Michael that it is absolutely unacceptable to send people to be tortured by third parties. We have to be careful, however, not to extrapolate from that the broader proposition that we should not send anybody anywhere, because, look, the only way we can win this war is to do that in the multilateral context, cooperating at the military intelligence and economic level. I personally would not be comfortable sending anybody to Syria. Whether or not I would be prepared to send people to Jordan, a country like Jordan, for example, a country like Morocco, is a different story. Both are not exactly Jeffersonian democracies but have better track records when it comes to dealing with prisoners and especially for obtaining adequate assurances. All I’m saying is we cannot be absolutist about it, because, I mean, otherwise we’re getting in a situation where everybody would say Americans once again are being unilateral. So Syria and countries like that are probably in a different basket. I wouldn’t send people to Iran. I certainly wouldn’t send people to North Korea.

AMY GOODMAN: On that note, David Rivkin, we have to leave it there. David Rifkin, a partner at Baker & Hostetler, visiting fellow at the Nixon Center, worked under the Reagan and George H.W. Bush administrations; and Michael Ratner, President of the Center for Constitutional Rights.

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