Later that evening, near the end of the Senate session and before the Senate retired for the holiday weekend, Senator Lindsey Graham (R-SC) introduced a proposed amendment that explicitly stated that all pending and future Guantánamo habeas actions would be dismissed. No committee meetings were held and the vote took place late in the day. Senator Bingaman twice noted what he perceived as the impropriety of vanquishing a fundamental right, without hearings, on a Thursday evening before a holiday weekend:

This is an extremely serious issue. There have been no hearings on this issue in the Judiciary Committee. I s
ee the chairman of the Judiciary Committee on the Senate floor this afternoon. If we are going to seriously consider suspending the privilege of habeas corpus, of filing a petition for habeas corpus, the Judiciary Committee should be the committee that considers that type of a proposal and has hearings on it.

There have been no hearings in the Armed Services Committee. It would be a terrible mistake for us to do this sort of as a by-the-way kind of amendment on a Thursday afternoon as we are preparing to leave for the weekend….

It is an extraordinary step for this Congress to be taking as an amendment to the Defense bill. This is an issue that should be dealt with in the Judiciary Committee. Senator Specter has spoken against the amendment. Senator Levin has spoken against the amendment. Senator Leahy has spoken against the amendment. It is something that requires hearings. It is a very important issue, and we should not be dealing with it here on a late evening on Thursday as part of this authorization bill.

Still, the amendment passed by a vote of 49 – 42.

During the three-day Veterans Day weekend that followed, opposition to the amendment gathered steam. And so did an opposition to that opposition. On Monday, November 14, Senator Bingaman introduced an amendment that expressly allowed all pending and future Guantánamo actions to go forward. And Senator Graham introduced an amendment — called “In the Nature of a Substitute” — that was intended to replace the amendment that passed the previous Thursday. Senator Graham’s new amendment, now endorsed by senior Democrat Senator Carl Levin (D-MI), was very different. Notably, the new “Effective Date” section removed the language that called for the dismissal of pending habeas actions.

Senator Bingaman’s amendment lost. A few minutes before the vote on Senator Graham’s substituted amendment, Senator Harry Reid (D-NV) described his understanding of it:

As a supporter of the Graham-Levin amendment, let me state my understanding of several important issues. First, I agree with Senator Levin that his amendment does not divest the Supreme Court of jurisdiction to hear the pending case of Hamdan v. Rumsfeld. I believe the Effective Date provision of the amendment is properly understood to leave pending Supreme Court cases unaffected. It would be highly irregular for the Congress to interfere in the work of the Supreme Court in this fashion, and the amendment should not be read to do so.

Senator Graham’s substituted amendment passed, this time with a vote of 84 – 14.

The amendment went to the House for approval where it was “held at the desk”, which means the House could use it to further a bill already pending. And there was. H.R. 2863 would eventually become the Department of Defense Appropriations Act, and would eventually incorporate parts of this amendment.

In the House, the amendment was revised and changes were made primarily regarding the judicial review of determinations by “Combatant Status Review Tribunals” — tribunals where the military decides if someone is an “enemy combatant”. But the “Effective Date” language stayed the same. The amendment became Section 1005(e) of the Department of Defense Appropriations Act, and part of what is now known as the Detainee Treatment Act (DTA). The vote on the entire Appropriations Act was scheduled for December 21, 2005. Minutes before the vote took place, Senator Durbin (D-IL) said this:

A critical feature of this amendment is that it is forward looking. A law purporting to require a Federal Court to give up its jurisdiction over a case that is submitted and awaiting decision would raise grave constitutional questions. The amendment’s jurisdiction-stripping provisions clearly do not apply to pending cases, including the Hamdan v. Rumsfeld case, which is currently pending before the Supreme Court. In accordance with our traditions, this amendment does not apply retroactively to revoke the jurisdiction of the courts to consider pending claims invoking the Great Writ of Habeas Corpus challenging past enemy combatant determinations reached without the safeguards this amendment requires for future determinations. The amendment alters the original language introduced by Senator Graham so that those pending cases are not affected by this provision.

The Act (and the DTA it contained) passed with a vote of 93 – 0.

The President signed the bill into law on December 30, 2005. On January 4, 2006, the Executive Branch notified the DC District Court that it intended to move to dismiss all the pending habeas actions based on the DTA.

The chronology raises questions. Normally, a motion to stay an action — on the grounds of potentially-related procedural issues on appeal — is of no great import. But in this case, the original motion to stay was filed by the Executive Branch, in apparently every pending case, on the same day – November 10 – that Senator Graham introduced legislation seeking to stop those pending cases. Perhaps this was coincidental. Or perhaps it was part of a coordinated effort to nullify the Supreme Court’s ruling in Rasul, and stop courts from seeing the evidence, or lack of it, regarding why people are being kept in Guantánamo.

Consider the abundance of recent case studies revealing that the majority of people being held in Guantánamo are innocent. The Seton Hall study found, among other conclusions, that 55% of those being detained have not been determined by the Executive Branch to have committed any hostile acts against the US or its allies, that only 8% have been characterized by the Executive Branch as having ties to al Queda, and 18% have been characterized by the Executive Branch has having no ties to either al Qaeda or the Taliban. The Seton Hall study also found that only 5% of detainees were captured by US forces (the rest being captured by Pakistani and Afghani forces that were paid by the US to bring in anyone with suspected al Qaeda or Taliban ties). The study also found that several deemed “not enemy combatants” had more serious charges against them than many later deemed enemy combatants. And many are being kept merely on grounds of affiliation with groups that even the Department of Homeland Security has not placed on its watch-list.

If these facts and studies are correct, the Executive Branch faced a “lose big versus gain little” scenario with regard to habeas actions. If a judge was to see evidence against a detainee, and the evidence was strong, then detention would continue. The only upside for the Executive Branch would be affirmation for doing its job. But what if the judges were to see the information and it was weak (as the Seton Hall and National Journal case studies have shown to be true in most cases)? Then the Executive Branch would look irresponsible and malevolent, and would likely need to release the detainee. And if the Executive Branch’s concerns later proved true — and the detainee, once released, actually became a threat — then the Executive Branch would be responsible.

So, knowing this battle was coming, and standing in the shoes of the Executive Branch, the best program — as unsettling as it may be — might have been to orchestrate and pursue a plan to keep judges away from the evidence.

If we accept the possibility that these events were coordinated, then that possibility becomes stronger in light of the timing: The motions to stay were filed in the morning of November 10. The original amendment was introduced that evening, right before the Senate adjourned for a three-day holiday. As we shall see below, the terms “suing our troops” was used throughout the effort to pass the amendment (although, again as discussed below, no troops have ever been sued or could be sued under Rasul or the habeas statute). “Keeping our troops free from lawsuits” sounds like
a good way to support them. And what could possibly be the best day to show support for our troops? Perhaps the day before Veterans Day.

The timing in which the Act was executed may be suspect, and reveals an eagerness on the part of the Executive Branch to try to dismiss pending cases. The President signed the bill into law on Friday, December 30, 2005. The next business day was Tuesday, January 4. And the Department of Justice filed papers in the pending habeas actions — informing the Court of its intent to dismiss them — on Wednesday, January 5. The Department of Justice’s document used to dismiss is 11 pages long and its substantive text is a single paragraph. But formatting the document, which lists every pending action, would normally take at least a day, if not more, to prepare and approve (however, the Department of Justice was aware that the bill had passed as of December 21, 2005, and would be signed, and may very well have had the documents ready).

On one hand, it’s possible that the Executive Branch’s request the morning of November 10, asking the Court to stand back until procedural issues are resolved on appeal, and Senator Graham’s introduction of legislation to stop those same habeas actions made that evening, were separate incidents that occurred on the same day by coincidence. And maybe it is irrelevant that it happened the day before Veterans Day. Or perhaps the chronology of these events, and the quickness in which the Department of Justice sought to dismiss the actions, suggests that there is a plan underway to keep the Executive Branch from ever having to show what evidence, if any, it has.

Throughout the efforts to pass the DTA, some questionable representations were made to the Senate, including, for example, that the press has access to Guantánamo (while a limited number of special visits to certain areas of Guantánamo Bay have been allowed, the author is not aware of any press interviews of detainees or the soldiers in charge of their detention).

But three separate phrases, or paraphrases thereof, appeared repeatedly. These were (1) [Don’t give terrorists] “the same rights as U.S. citizens”; (2) [Stop allowing terrorists to] “sue our troops”; and (3) [Don’t open up] “floodgates of litigation”. The accuracy of these statements leaves room for doubt. But their effectiveness does not.

I hear the phrase “terrorists shouldn’t have the same rights as U.S. citizens” from colleagues and clients. It’s become part of our parlance. Versions of this statement were used repeatedly throughout the passage of the DTA, and here are some examples:

• “If you want to give a Guantánamo Bay detainee habeas corpus rights as a US citizen…. (Sen. Graham, Nov. 10, 2006).
• “Of all the people in the world who should enjoy the same rights of an American citizen in Federal Court, the people at Guantánamo Bay are the last we should confer it on” (Sen. Graham, Nov. 10, 2006).
• “So let’s be very clear about this Great Writ. It does not apply to terrorists, and it should not apply to terrorists, and nothing in this amendment goes any further than to say it applies to US citizens. It does not apply to terrorists.” (Sen. Kyl, Nov. 10, 2006)
• “But the Writ of habeas corpus, which was never intended to apply to prisoners of war, much less terrorists, does not apply in this case” (Sen. Kyl, Nov. 10, 2006).

I agree that terrorists should not have the same rights as U.S. citizens. But citizenship and habeas are unrelated concepts.

Habeas is not a right one acquires by virtue of being a US citizen — it is a right one acquires when held by US citizens. Unless you are reading this from a prison cell, or in a squad car, or in any other detention facility, you do not have a right to habeas. Even if you are a US citizen.

What makes this the above sound-bite even more troubling is that it presumes that those held in Guantánamo are terrorists, even though they have not been tried, or charged, or told why they are being held. And the majority of information available suggests that most detainees are completely innocent. Even the Department of Defense concedes it has locked up innocent individuals (according to a Wall Street Journal article, “American Commanders acknowledge that many of the prisoners shouldn’t have been locked up here in the first place because they weren’t dangerous and didn’t know anything of value. ‘Sometimes, we just didn’t get the right folks,’ says Brig. Gen. Jay Hood.” Christopher Cooper, Detention Plan: In Guantanamo, Prisoners Languish in a Sea of Red Tape, Wall St. J., Jan. 26, 2005). The argument that “those terrorists shouldn’t have the same rights as U.S. citizens” is circular and irrelevant to the issue. But it was effective.

Another repeated sound-bite was “protecting our troops from frivolous lawsuits”. The idea that troops could be sued was repeatedly presented to the Senate. Senator Graham made the following statements to the Senate on Nov. 10, 2005 (and similar ones later):

• “What I am concerned about is that an enemy prisoner, not someone charged with a crime, is having access to Federal courts to sue our own troops about the food, about the mail, about whether they should have Internet access, about whether they should get DVDs.”
• “Here is the question I will ask every Member of this body: Does the Senate want enemy terrorists, al-Qaida members being detained at Guantánamo Bay, to have unlimited access to our Federal courts to sue our troops about the following….”
• “But I will not now or ever sit on the sidelines and give rights to enemy combatants who have been caught on the battlefield in the war of terror the unending, endless right to think of every reason in the world to take our own troops into court.”
• “I do not want everyone to have habeas rights. I do not want the enemy combatant al-Qaeda terrorist to be able to go in our courts and start to sue our own troops. I don't want it. I don't think people in this body want it.”
• “[if] the American value system [is one] that [allows] people who are trying to kill you unfettered access to the Federal courts to sue your own troops, if that becomes our value, we are going to lose this war.”

But the “sue the troops” representation is completely false. A habeas action is not brought against an individual soldier — it is brought against an entity holding someone. A troop cannot be sued in a habeas action. Nothing in Rasul or in the habeas statute allows a soldier to be sued. And to this author’s knowledge, no soldier has ever been called as a witness in a habeas action. Even the abominable acts that occurred in Abu Ghraib — which were photographed — have not (to my knowledge) resulted in federal court civil actions against the perpetrators, and the same holds true for documented abuses in Guantánamo (see Jane Mayer, "The Memo, how an internal effort to ban the abuse and torture of detainees was thwarted," The New Yorker, February 27, 2006).

However, the idea that there is a connection between habeas and suing troops sounds good and believable. Every American supports the troops. And everyone hates lawsuits. Combining those two contemporary sentiments may have been a clever means to raise support for a bill designed to protect the Executive Branch from showing its evidence.

In addition, the term “floodgates of litigation”, or a nearly-identical substitute, was used at least ten times to get the amendment passed. One example is a collection of letters introduced by Senator Graham to combat letters introduced by Senator Bingaman.

To challenge the jurisdiction-stripping parts of Senator Graham’s amendment, Senator Bingaman introduced five well-reasoned independent letters gathered over the
weekend from educational groups and current and former members of the military and judiciary. The majority of these letters were independently drafted and — while sharing a common theme (i.e., don’t deprive habeas) and common concerns — did not share identical language. And one letter was jointly signed by 10 current and former members of the military who shared a singular opinion.

By contrast, Senator Graham also introduced a collection of eight letters. However, seven of these letters contained virtually identical language. Here are some excerpts:

There are several concerns with these letters, and the “floodgates of litigation” sound-bite they contain. First, these letters were from military officials commenting on the civilian legal system. Military officials’ interests are not affected by habeas actions. One wouldn’t ask military leaders about what makes civilian hospitals more or less efficient, so why is the Senate listening to military leaders talk about what makes civilian courts more or less efficient? Military leaders don’t have expertise on how the laws or the courts function.

The letters introduced by Senator Bingaman from military leaders talked about the importance of habeas to the military — an issue with which military leaders clearly have familiarity. But the letters introduced by Senator Graham from military leaders talked about the efficiency of the federal court system, an issue with which military leaders have no expertise.

The other — more apparent — problem with these letters is the clear “cut and paste” circulation of the content, a common practice perhaps, but in this instance, one that demonstrates a party line that is simply inaccurate. Allowing habeas will not, by any means, generate a “floodgate of litigation”. As of February 17, 2006, there were approximately 5,287 cases pending in the United States District Court for the District of Columbia. And approximately 180 of those were Guantánamo habeas actions. The cases that amount to the alleged “floodgates” comprise point zero three four percent (.034%) of the cases pending in that Court.

But more appropriate math would take into consideration Senator Graham’s statement that “there are 160 habeas corpus petitions in Federal Courts throughout the United States.” To my knowledge, there are about 180 habeas petitions, all of which were filed in one court — the United States District Court for the District of Columbia. If we assume that Senator Graham is correct and cases could be brought “throughout the United States”, then the math gets even less “floodgate” like. The DC District Court is a busy court. If we assume every District Court in the nation is half as active as the DC District Court and has only 2,643 cases, and if there are 94 District Courts, then there would be a total of about 248,442 (2,643 times 94) cases in federal courts. The 180 habeas actions would comprise about point zero zero zero seven two four five percent (.0007245%) of the Courts’ cases.

Another issue is whether the Senators thought the DTA stopped pending habeas actions when they voted for it. For the majority, it seems the short answer is no. The amendment that the Senate voted on, on November 15, contained the “Effective Date” language that removed the “pending actions” language from the earlier version. Right before the vote, Senator Reid clarified that the amendment was not intended to nullify pending actions. No one said otherwise, and the amendment passed with a vote of 84 – 14. In December, the Act containing the DTA was before the Senate, and contained the identical “Effective Date” language regarding habeas petitions. Just before the vote, Senator Durbin clarified that it was not intended to apply to pending habeas petitions. No one said otherwise. And the bill passed.

Later, aft
er the vote, Senators Graham and Kyl made statements that the bill was intended to shut down pending habeas actions (Senator Levin has repeatedly gone on record — before and after the vote — stating that the DTA was not intended to apply to actions that were pending when the bill was signed into law).

But the Executive Branch recently argued to the US Supreme Court that it doesn’t matter whether the Senators believed, or did not believe, that the DTA was intended to apply to pending actions. The Executive Branch argues that the DTA’s “Effective Date” section is irrelevant, and what matters is the blanket statement in the DTA that courts lack jurisdiction to hear habeas actions brought by Guantánamo detainees.

It is hard to figure out what any of this means. Will detainees — who have been held for four years — ever get the right of judicial review promised in the Rasul case? That depends on so many factors, including how or if the Supreme Court decides the issue on the DTA and how the DC Circuit Court addresses it. And even if the judiciary determines that habeas still exists for Guantánamo Bay detainees, past experience shows that the Executive Branch may be unwilling to give effect to what the judiciary says.

If there are lessons to be learned, they are difficult ones. For example, consider the misinformation disseminated and the tactics used by those who don’t want judicial involvement in Guantánamo. Irrelevant, untruthful, yet catchy sound-bites were repeated. Silence was used when appropriate — there were brief moments of time between the statements made to the Senate that the DTA was not intended to apply to pending actions (by Senator Reid and in November and Senator Durbin in December) and the Senate votes. Yet Senators Graham and Kyl said nothing after these statements were made, let the bill pass, and then later argued that it applied to pending actions. And the introduction of the legislation appears to have been coordinated with the filing of allegedly-unrelated papers in the pending habeas actions.

These factors suggest that an effective plan may be underway to stop judges, and American citizens, from learning what our leaders are doing in Guantánamo, and what they are doing to those held there.

On the other hand, Senator Bingaman’s approach of presenting factually-accurate logical arguments proved ineffective. But what if Senator Bingaman had used irrelevant, untruthful, yet catchy sound-bites to accomplish his goal? What if Senator Bingaman — instead of detailing the historical proof that establishes that denying habeas is bad practice (like the Japanese Internment), and instead of trying to show that denying habeas can hurt, and not help, soldiers — he had instead said things like “the Nazis persecuted men of a single faith. Slobodan MiloÅ¡ević did the same. Do we want to act like Nazis? Do we want to act like MiloÅ¡ević?”, and then repeated “I think not. I think we are better than Nazis! I think we are better than MiloÅ¡ević!” Or what if Senator Bingaman quoted the Bible, and said something like “the Gospel of St. Matthew contains God’s mandate that we visit and care for those imprisoned, and the Constitution itself gives Americans the obligation to give habeas to those in our custody and control. Are we just going to ignore the words of God and our founding fathers?”

Or what if Senator Bingaman had stretched the truth, like those supporting the amendment had done in the Senate? For a while, 8-year olds were being detained in Guantanamo (though, to my knowledge, the children have been released). And we know that some detainees died as a result of the conduct of US soldiers. One could combine these truths and make a stretched but plausible statement that the US was responsible for the deaths of children in Guantánamo. What if Senator Bingaman had said “Eight year old boys! This amendment allows American Soldiers to kill eight-year old boys in their custody, and not be held accountable! Are we going stand idly by while our brothers kill and torture children? Is that what America is about? Is that what any Senator in this room wants? Should we let American soldiers commit crimes that would put American citizens in jail? I don’t think so.”

I hope those who see the importance of habeas never need to stoop to using unrelated, irrelevant, but potentially-motivating catch-phrases to protect fundamental civil liberties. Thankfully, we still have a lot to lose. But maybe those who truly value these rights can learn from how this legislation was passed and how it is being used, and use similar tools, if necessary, the next time that such a right is in jeopardy.

Ian Wallach of Wallach Law Offices, P.C. is an attorney with a private practice in California and New York. He is a graduate of U.C. Hastings and completed its concentration in International Law. He clerked in the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, where he was part of a small team that drafted the indictment of Slobodan Milošević. He subsequently practiced general litigation in New York City, while providing pro bono services to the Legal Aid Society and the New York Civil Liberties Union. 1n 2005, he began representation of three Guantánamo Bay detainees in separate matters pending before the United States District Court for the District of Columbia, in cooperation with the Center for Constitutional Rights. He wishes to thank Jerod Gunsberg for his assistance with this article.
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