Lindsey Graham’s Independent Review for All Detainees in US Prisons

As I’ve said before, I think Carl Levin’s assurances that habeas corpus will prevent the Executive from holding people without cause under his new detainee provisions (and, frankly, under the status quo) is dangerously naive, because it ignores how badly the DC Circuit has gutted habeas.

That said, maybe this colloquy between Lindsey Graham and Carl Levin might help. (h/t to Lawfare for making transcripts available)

Mr. GRAHAM. If someone is picked up as a suspected enemy combatant under this narrow window, not only does the executive branch get to determine how best to do that–do you agree with me that, in this war, that every person picked up as an enemy combatant–citizen or not–here in the United States goes before a Federal judge, and our government has to prove to an independent judiciary outside the executive branch by a preponderance of the evidence that you are who we say you are and that you have fit in this narrow window? That if you are worried about some abuse of this, we have got a check and balance where the judiciary, under the law that we have created, has an independent review obligation to determine whether the executive branch has abused their power, and that decision can be appealed all the way to the Supreme Court?
Mr. LEVIN. That guarantee is called habeas corpus. It has been in our law. It is untouched by anything in this bill. Quite the opposite; we actually enhance the procedures here.


Mr. GRAHAM. In this case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don’t have to worry very long, because our Federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn’t go to a political rally. That has never happened in any other war. That is a check and balance here in this war. And let me tell you why it is necessary.
This is a war without end. There will never be a surrender ceremony signing on the USS Missouri. So what we have done, knowing that an enemy combatant determination could be a de facto life sentence, is we are requiring the courts to look over the military’s shoulder to create checks and balances. Quite frankly, I think that is a good accommodation.


I want to be able to tell anybody who is interested that no person in an American prison–civilian or military–held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. [my emphasis]

Not only does Graham insist the standard in habeas cases must be a “preponderance of the evidence” standard–something the DC Circuit has threatened to chip away at. But the language about courts having an obligation to make sure the government proves it case and courts looking over the shoulder sure implies a stronger review than Janice Rogers Brown understands it.

Furthermore, while Graham speaks explicitly at times about people caught in the US, his aspiration that “no person in an American prison … will be held without independent judicial review” would sure sound good the detainees in the American prison at Bagram, particularly taken in conjunction with Section 1036, which seems to suggest they get a review too.

Of course, passing a law stating that habeas corpus must consist of something more than a Circuit Court Judge rubber-stamping the government’s inaccurate intelligence files would be far better. But this language, showing legislative intent that habeas review remain real, is about all we get these days.


Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

22 replies
  1. P J Evans says:

    no person in an American prison–civilian or military–held as a suspected member of al-Qaida will be held without independent judicial review

    That may explain why they don’t want them any closer to the US than Cuba. They’d have to actually provide all those things, and they’re afraid that the courts would discover that most of the detainees should have been released about two days after they were turned over to us.

  2. MadDog says:

    I’ve been reading through some of the other parts of the Graham/Levin colloquy (and yes, h/t Lawfare blog). This outrageous lie from Senator Graham at the end of page 27 shouldn’t have gone without a correction, but the enthralled Senator Levin is too busy giving Lindsey a blowjob:

    “…Under domestic criminal law, we can’t hold someone indefinitely. The public safety law I will talk about in a bit, but I say to my good friend from California, the public safety exception was a very temporary ability to secure a crime scene. It was not written regarding terrorism. So our law enforcement officials cannot use the public safety exception to hold an al-Qaida operative for days and question them. The only way to do that legally is under the law of war…”

  3. marc says:

    This bill is very dangerous but I have to smile when I think about the fact that the right wing is so hot to give the President these powers.
    After all which end of the political spectrum openly discusses a potential need to violently overthrow the government. I have not seen a single sign at OWS gathering about the need for watering the tree of liberty. Nor have I heard of even one assault weapon or hand gun concealed or otherwise at these protests except for those carried by the police.

  4. emptywheel says:

    @marc: The president already has said he had these powers, has killed an AMerican using them. Congress affirming that changes little besides putting some semantic limits to it.

  5. MadDog says:

    @emptywheel: I enjoyed (not) how Lindsey Graham used the Executive branch assassinating Americans as his legal justification for military indefinite detention and interrogation.

    He repeatedly states that since it the Executive branch has determined it is legal to kill Americans without due process, then surely it must be acceptable for the military to indefinitely detain and interrogate them. In Lindsey’s mind [sic], two wrongs always make a right.

  6. MadDog says:

    @emptywheel: What really throws me, and I suspect you as a Michigander as well, is how thoroughly Carl Levin got played by Lindsey Graham in the SASC.

    Graham & Company (McCain and Kyl it seems foremost) knew damn well they could never get this travesty through the Senate Judiciary Committee, and the Senate Select Committee on Intelligence would’ve demurred too on military-only indefinite detention and interrogations.

    Whether Graham & Company flattered Levin into this by whispering sweet nothings into his ear or blackmailed him (I suspect the former), they really did a job on him.

    As the colloquy undeniably shows, here is Carl Levin standing shoulder to shoulder with some of the most conservative members in the Senate in Graham, Kyl and McCain. Who’da thunk it?

  7. MadDog says:

    @emptywheel: I’m less sure about the consequences than you. Wouldn’t it likely also influence the Federal courts with “legislative record and intent” should they ever overlookcome their reluctance to peek behind the Executive Branch’s now routinely invoked States Secret privilege?

  8. emptywheel says:

    @MadDog: Several points.

    1) I Graham and McCain are not the most conservative members. Kyl is different–and I’ll address how he’s different. But don’t kid yourself about how far right Congress has gotten.

    2) I don’t think it would take much to talk Levin into this. The military presumption is godawful and totally unjustified. But the indefinite detention stuff IS just stating what is already being treated as fact. And by codifying it, it may well put some brakes on the way the Executive continues to expand this indefinitely by never making public where they see the limits to this. It’s terrible and counter productive limits on the President, but the alternative offered–no limits on the President–is not better, just differently awful.

    3) I also think Levin tried (naively) to put together a compromise that would go largely unscathed through Conference. That is, faced with what might be a real choice between mandatory military detention with waivers and guaranteed review, or mandatory military detention with no possibility of waiver, he may have decided this was preferable.

    The way around this was for Obama to push to institutionalize this stuff in 2009, when he had a majority. He pissed that opportunity away by letting Rahm override DOJ.

  9. emptywheel says:

    @MadDog: Given that the Admin has to brief Congress on who can be targeted in this fashion, it actually limits their ability to invoke state secrets.

  10. JohnLopresti says:

    Senator Graham is not too fussy about legislative history. There was the DTA ‘colloquy’ appended to the Congressional Record, but rejected, on its face, as specious, at Scotus in re Hamdan; one version.

    Then there was the Lane vs US matter, in which LOGraham was banned from serving on an appeals panel. The opinion excluding the Senator applied concepts like “The Incompatibility Clause of the Constitution provides that “…no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”[cf Fn4]”…

    However, rhetorically, whatever works. Ah-hem.

  11. MadDog says:


    1) Graham and McCain are not the most conservative members. Kyl is different–and I’ll address how he’s different. But don’t kid yourself about how far right Congress has gotten.

    The American Conservative Union gives McCain a “Perfect 2010 ACU Rating of 100” which is more conservative than Kyl’s rating of 96 and they rate Graham at 92.

    But even with those high conservative rankings, let me qualify my earlier statement and make it about National Security (the military, the intelligence community and foreign policy). I am still of the opinion that in the National Security arena as I’ve defined it, Graham, McCain and Kyl are easily among the conservative leaders.

    On your points 2) and 3) regarding Levin, I’m more in agreement with you there. But I still think that Levin got deliberately rolled as Chair of the SASC with perhaps his naive attempts at “comity” where Graham would never have been able to get this through the SJC and Graham & Company knew that.

    Tying this to a Defense bill knowing full well that too few Congresscritters would ever vote against a Defense bill was a deliberate part of Graham & Company’s strategy, and that dimwit Levin should have known better than ever let it get out of committee this way.

    If the Repug SASC members threatened Levin in committee, he should have ignored them and reported out a less odious version on the strength of the Democratic committee majority alone.

    If the Repugs then insisted on delaying, amending or filibustering the Defense bill in order to include this crap, the Senate Democrats should have been able to PR-wise clean their clocks.

    I’m sorry, but I think Levin just really fooked up.

  12. bmaz says:

    @emptywheel: Agree, especially with number 2 in your list.

    @emptywheel: Not sure il limits their ability to invoke state secrets per se so much as maybe indirectly curbs the same because of having to declare the situation a priori.

  13. emptywheel says:

    @MadDog: I’m just saying there are respectable reasons to pass this bill. Not to presume military custody, but all the rest, arguably, is necessary law-making, even if I don’t agree with what the law they’ve come up with.

    The alternative is DiFi who trades away her parliamentary advantage with a compromise that serves only to confuse Americans.

  14. Bob Schacht says:



    1) Graham and McCain are not the most conservative members. Kyl is different–and I’ll address how he’s different. But don’t kid yourself about how far right Congress has gotten.

    The American Conservative Union gives McCain a “Perfect 2010 ACU Rating of 100″ which is more conservative than Kyl’s rating of 96 and they rate Graham at 92.

    But don’t forget that McCain had to take a hard right turn in 2010 to get re-elected, so the reporting period of the ACU scoring is important.

    Bob in AZ

  15. GKJames says:

    Why only by a preponderance? And, in the event, will it matter as long as the Executive Branch cannot/will not be compelled to disclose facts that it, unilaterally, deems “classified?” As for “requiring the courts to look over the judiciary’s shoulder,” how will that in fact work when, in virtually every instance, the judiciary abdicates by deferring to Executive Branch need for unfettered control of foreign and national security policy? Finally, we know what at least five Supremes think of legislative history.

  16. emptywheel says:

    @GKJames: I agree with all your problems. Part of the reason I’m pointing to this is bc some of this language MIGHT make a different in court cases currently wending through the courts. For example, there’s one that’s been bouncing back and forth between the District and the Circuit over whether detainees in Bagram get habeas. This would seem to provide a tool for the detainees’ lawyers to say that the law is intended to apply to BAgram, as well.

  17. jerryy says:

    I am wondering what these folks intend to do with their new government once they finish replacing our old one with the new improved version.

    So far, it seems they want a titular head (president), with a secret committee that determines active threats to the powers in charge (for the vocal opponents — juice up the threat via the media, call ’em ‘terrorists’ and use the military to disappear them — just disappear the rest.) and then funnel money to supporting corporations, all while trumpeting how the citiznes are free to enjoy their ‘liberties’. keep the majority of the citizens (un or under)employed or debt-laden so they have a difficult time opposing the govenrment.

    It sounds like they want a version of the Middle Eastern governments they are now so hot to remove after decades of supporting them.

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