I remember when. . .

“I do not espouse the unitarian (executive) position,..."

“President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”

NOVEMBER 14, 2005.

DEAR SENATOR LEAHY: We write to urge that the Senate adopt the amendment of Senator Bingaman removing the court-stripping provisions of the Graham Amendment to the Department of Defense authorization bill. As professors of law who serve as deans of American law schools, we believe that immunizing the executive branch from review of its treatment of persons held at the U.S. Naval Base at Guantanamo strikes at the heart of the idea of the rule of law and establishes a precedent we would not want other nations to emulate.

At the Guantanamo Naval Base, the Government has subjected foreign nationals believed to be linked to Al Qaeda to long-term
detention and has established military commissions to try a small number of the detainees for war crimes. It is entirely clear that one of the Executive Branch’s motivations for detaining noncitizens at Guantanamo was to put their treatment beyond
the examination of American courts.

The Supreme Court rejected the Government’s claim in Rasul v. Bush that federal habeas corpus review did not extend to
Guantanamo. The extent of the rights protected by federal habeas law is now before the Federal Court of Appeals for the D.C.
Circuit. Another challenge has been filed to the authority of the President, acting without congressional authorization, to convene military commissions at Guantanamo. Just last week the Supreme Court announced that it would review the case, Hamdan v. Rumsfeld.

The Graham Amendment would attempt to stop both of these cases from proceeding and would unwisely interrupt judicial processes in midcourse. Respect for the constitutional principle of separation of powers should counsel against such legislative interference in the ongoing work of the Supreme Court and independent judges.

Unfortunately, the Graham Amendment would do much more. With a minor exception, the legislation would prohibit challenges to detention practices, treatment of prisoners, adjudications of their guilt and their punishment. To put this most pointedly, were the Graham Amendment to become law, a person suspected of being a member of Al Qaeda could be arrested, transferred to Guantanamo, detained indefinitely (provided that proper procedures had been followed in deciding that the person is an ‘‘enemy combatant’’), subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals.

We do not object to the Graham Amendment’s procedural requirements for determining whether or not a detainee is an enemy combatant and providing for limited judicial review of such decisions. This kind of congressional structuring of the detention
of military prisoners is long overdue, and it highlights the absence of congressional regulation of standards of detainee treatment and the establishment of military commissions.

Curiously, the Graham Amendment recognizes the need for judicial review of the determination of enemy combatant status, but then purports to bar judicial review of far more momentous commission rulings regarding determinations of guilt and imposition of punishment.

We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of noncitizen detainees.
We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, and the abuse of prisoners in Guantanamo, Iraq and Afghanistan. The Graham Amendment will simply reinforce the public perception that Congress approves Executive Branch decisions to act beyond the reach of law. As such, it undermines two core elements of the rule of law: congressionally sanctioned rules that limit and guide the exercise of Executive power and judicial review to ensure that those rules have in fact been honored.

When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners,
our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.

We urge you to vote to remove the court-stripping provisions of the Graham amendment from the pending legislation.

T. ALEXANDER ALEINIKOFF,
Dean, Georgetown University Law Center.
ELENA KAGAN,
Dean and Charles Hamilton Houston Professor of Law, Harvard Law School.
HAROLD HONGJU KOH,
Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law, Yale Law School.
LARRY KRAMER,
Dean and Richard E. Lang Professor of Law, Stanford Law School./div]