In fulfillment of my promise last week to provide analysis of the various pieces of new Senate legislation, here are some thoughts on the new version of Senator Lindsey Graham’s habeas reform bill. The bill is largely a reintroduction of the one Sen. Graham wrote last year, S. 3707, on which Bobby and I consulted extensively. I wrote a long series of posts about it then (here, here, here, here, here, and here),Steve Vladeck and Peter Margulies and others have also commented on the bill. I will not repeat here my general thoughts on its virtues and vices. Instead, I will focus on the differences between this year’s version and last year’s.
There is one huge difference between the two bills–and several small difference. The huge difference, alas, is not a good change. Some of the smaller differences, however, are positive.
The big difference is that whereas last year’s bill would have codified the “preponderance of the evidence” standard the courts are now using in habeas cases, this year’s bill would codify a lower standard. Under its terms, a court would affirm the propriety of a detention based on a showing of mere probable cause that the habeas petitioner meets the statute’s definition of the detainable class. (The statute uses the same definition of the detainable class as the McCain detention bill, which I analyzed over the weekend.)