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Retired US judges urge Congress not to limit court review of Gitmo detentions

[JURIST] A group of 12 retired federal judges on Thursday urged [official press release] US lawmakers not to pass legislation that would strip federal courts of the power to hear habeas corpus claims brought by detainees held at the US naval base at Guantanamo Bay [JURIST news archive]. In a letter to Congress [PDF text], the judges, mostly retired from federal courts of appeals, voiced their concern that if the law is enacted, it would sharply limit the long-established authority of federal courts to review executive detentions, and would thus seriously harm the long tradition of federal courts ensuring the rule of law under the Constitution. They wrote:

We appreciate the goal of avoiding an influx of frivolous claims, but no judge has found any filing of a Guantánamo detainee to be frivolous. In any event, federal judges are well-experienced and well-equipped in the task of sifting out frivolous claims from meritorious ones. Moreover, even cursory examination of the Amendment suggests that it raises more questions than it settles, and will increase litigation rather than limiting it.

For example, in plain defiance of our long separation-of-powers tradition, the Amendment casts a cloud over ongoing cases, including Hamdan v. Rumsfeld, which the Supreme Court of the United States accepted for review only weeks ago. Congress has not attempted to short-circuit Supreme Court review of a habeas case since 1867, and there is no evidence that it considered the consequences of such a momentous decision here.
The Senate passed the bill, known as the Graham-Levin-Kyl Amendment [JURIST report] with very little floor debate after Democratic Senator Carl Levin brokered a compromise on an earlier stricter version, known simply as the Graham Amendment [JURIST report]. If enacted, the Graham-Levin-Kyl Amendment would allow Guantanamo detainees the ability to appeal decisions from military tribunals, but would close off all other routes to judicial review. The earlier version would have blocked all federal court review of prisoner detentions at Guantanamo.

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