Letter to Senator Hillary Clinton on Habeas Stripping Provision – PDF

Matt—here is a quick note on the habeas stripping provision. It has nothing to do with the military commission issue—as explained.

Dear Senator Clinton:

There is a provision in the Warner/Graham proposed Military Commission bill that attempts to override the decision of the Supreme Court in the Hamdan case regarding the stripping of habeas corpus jurisdiction from federal courts. The provision, which is section 6 at pages 74-76 of the latest draft I have seen, would amend the DTA to strip the courts of jurisdiction over both pending and future habeas corpus and related petitions filed by alien detainees outside the United States.

This provision violates the Suspension Clause of the Constitution (I can send a one page memo on how it does so). More importantly, this provision deprives the detainees at Guantanamo of the right to obtain a fair and impartial hearing on their detentions.

It is ironic that the Warner/Graham bill would grant due process and improve the procedures for trying the Al Qaeda masterminds, such as Khalid Sheikh Mohammed and the others recently transferred to Guantanamo, while stripping the other 450 detainees there, who have not been charged with any wrongdoing and for the most part are not even alleged to have been part of Al Qaeda or other terrorist groups, of any meaningful opportunity to obtain a fair hearing. This provision would allow those detainees to languish in legal limbo potentially forever, on the basis of just the type of secret evidence and coerced statements that Senators Warner and Graham rightly oppose and refuse to allow to be used against the worst of the worst.

It is understandable that, in light of the President’s speech several days ago, Senators who cannot accept the Administration’s Military Commission are reluctant to oppose the Warner/Graham substitute.

However, section 6 of the Warner/Graham bill has nothing to do with military commissions and has no business being in the bill at all.

Therefore, I urge you work for the elimination of section 6 from the Warner/Graham bill. Alternatively, I urge you to persuade Senator Specter to have section 6 referred to his committee for further consideration.”

Michael Ratner