A Discussion of S. 3707 from the Horse's Mouth

By Benjamin Wittes
Monday, September 27, 2010, 11:51 PM

Here's an interesting addition to our discussion of Lindsey Graham's Guantanamo habeas legislation. Walter Kuhn, Minority Chief Counsel on the Senate Judiciary Committee's Subcommittee on Crime & Drugs, has written a forthcoming law review article entitled, "The Terrorist Detention Review Reform Act: Detention Policy and Political Reality." Kuhn was one of Sen. Graham's point people on the legislation, so his article, forthcoming in the Seton Hall Legislative Journal, offers a particularly useful window into the legislative ambition behind it. The abstract reads:

Since the Supreme Court’s 2008 decision in Boumediene, federal judges have fashioned a variety of procedural rules to govern habeas proceedings involving detainees held at Guantanamo Bay. While judges and commentators have called for statutory guidance, politics and substantive disagreement have prevented Congress and the President from clarifying the applicable procedural rules.

In the Terrorist Detention Review Reform Act, Senator Lindsey Graham offered legislation to untangle the many procedural issues facing the courts. From the scope of the President’s detention authority to the use of coerced testimony, the bill would construct a statutory framework for adjudicating habeas petitions by law of war detainees. The current political environment creates incentives for Congress and the President to abdicate their responsibility for detention policy to the courts, but the nation would be better served by the certainty of procedural rules considered and ratified by the political branches of government.