Thoughts on S.3707, Part I

By Benjamin Wittes
Friday, September 3, 2010, 4:54 PM

The much-discussed legislation by Sen. Lindsey Graham to guide habeas corpus cases brought by detainees at Guantánamo Bay, S.3707, was quietly introduced a few weeks ago. The bill represents an important maturation in the debate over detention, and it deserves careful review of its particulars, rather than the sort of reflexive response counterterrorism proposals often see. Unfortunately, judging from some of the initial reactions in this Politico story, that’s unlikely. The usual suspects are saying the usual-suspect kinds of things. For whatever it’s worth, I am going to offer my thoughts at some length.

I should begin with a word of disclosure: Bobby and I consulted extensively with Senator Graham's staff in the preparation of this legislation. Following the publication of our report earlier this year on the law of detention emerging from the Guantánamo habeas cases, Sen. Graham's staff asked us for recommendations for legislation to guide the habeas courts on the questions we had identified as disputed. We subsequently reviewed several drafts of the legislation and provided detailed comments on them. The legislation, in other words, both responds to Bobby’s and my work and is informed in part by our views. I certainly do not pretend to neutrality on the policy ambitions the bill reflects. At the same time, there are some judgments in the bill with which I do not agree, and several areas in which I think it could stand improvement.

The Graham bill is a serious attempt to legislate the parameters of America's already-existing military detention architecture. It is frank in its acknowledgement that non-criminal counterterrorism detentions can take place when military force has been authorized, accepting of the reality that at least some such detentions will fall under federal court review, and it is willing to face hard choices about the nature of—and the rules governing—that review. In significant part, it is a work of codification, conferring democratic legitimacy on areas of judicial consensus that already have emerged from the existing habeas cases. In other areas, where consensus has eluded the judiciary, the legislation not only provides democratic legitimacy but also supplies much-needed uniformity.  Along the way, it also provides a handful of original contributions to our detention architecture, some of which should be seen as benefitting the government and others the detainees.

The bill is by no means perfect. It could use changes or elaboration in spots, and there are some important questions that it simply does not address. Even if passed as is, however, it would constitute a great advance over the status quo. At a minimum, it provides a basis for a morally and legally serious societal discussion of the future of detention. I will lay out both the good and the bad of the bill in a series of posts over the next few days. I am doing this not because I think Sen. Graham’s bill is likely to go anywhere, but because I think it is a great discussion draft that warrants a serious conversation is doesn’t seem to be generating on its own.

I will attempt to describe, first, where the bill serves to codify existing understandings already emerging from the habeas case; second, what is new and valuable about the bill; and third, where it falls short or could stand improvement. Finally, I will compare the bill on a number of points of law with the law that is emerging from the D.C. Circuit and show how in many respects it is more favorable to detainees on key matters than we can expect the judge-made law to be.

(Note: This discussion is adapted from an informal memorandum that Bobby and I wrote analyzing the bill. The work underlying these posts is as much his as mine.)