The excerpt below is from a letter signed by one Erin Conata, covering the Democrat signatures that signify House agreement with the Conference Report. The letter was entered into the record by Mr. SKELTON.
However, I am concerned that Senator McCain's language could be undercut by the Graham-Levin Amendment. This amendment was negotiated largely in a closed process by the White House and a select few Majority members. It addresses many aspects of the Combatant Status Review Tribunals and military commissions in Guantanamo Bay but there are serious questions about the procedures and they are currently being challenged in federal court. There are also questions about the Amendment's impact on our judicial system and law that's been in existence since the founding of our nation. I expect the courts will have a real challenge interpreting the Amendment's meaning. At the very least--the Graham-Levin Amendment should not apply retroactively or to any pending cases. ...
At least, as Senator LEVIN has emphasized, the Graham-Levin amendment provisions do not apply to or alter pending habeas cases. The Senate voted to remove language from the original Graham amendment that would have applied the habeas-stripping provision to pending cases, affirming that it did not intend such application. Further, under the Supreme Court's ruling in Lindh v. Murphy, 521 U.S. 320 (1997), the fact that Congress chose not to explicitly apply the habeas-stripping provision to pending cases means that the courts retain jurisdiction to consider these appeals. Finally, the effective date language in the original Graham-Levin amendment, and Senate passed Defense Authorization Bill (S. 1042 section 1092), was retained in the final negotiated language for the Conference Report, thereby adopting the Senate position that the habeas-stripping provision does not strip the courts of jurisdiction in pending cases.
Again, I urger reading the material in the record that is represented by my ellipses in the above excerpt. I cut at least five paragraphs from the letter, and those paragraphs discuss the interplay between military tribunals, Article III Courts, McCain's torture amendment and the Graham/Levin amendment.
The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
Hamdan v. Rumsfeld (05-184), 2006
Case link not alive at time of posting -- expected to become valid in due course.