Police state : Habeus Corpus : Graham Amendment


Richard Moore


For background, see: 
Marjorie Cohn | Supreme Court: War No Blank Check for Bush

 Graham Amendment Invokes Constitutional Crisis 
By Marjorie Cohn 
t r u t h o u t | Perspective 

Monday 14 November 2005 

     The "accumulation of all powers, legislative, executive, 
     and judiciary, in the same hands ... may justly be
     pronounced the very definition of tyranny."
     --James Madison, Federalist Paper No. 47 

In blatant defiance of the Constitution's guarantees of
Habeas Corpus and separation of powers, the Senate on
Thursday approved the Graham Amendment to the Department
of Defense Authorization Act by a vote of 49 to 42. Five
Democrats joined all but 4 Republican Senators in giving
the President unfettered power to hold prisoners at
Guantánamo Bay, Cuba, for the rest of their lives, with no
criminal charges, and no right to challenge their
confinement by Habeas Corpus.

Last year, the Supreme Court held in Rasul v. Bush that
the Guantánamo detainees are entitled to file habeas
petitions in US courts to contest their detentions. The
high court determined that non-US citizens held at 
Guantánamo, "no less than American citizens, are entitled
to invoke the federal courts' authority" to hear
their petitions under 28 USC § 2241, the US Habeas
Corpus statute.

The Supreme Court stated firmly in Rasul, "Consistent with
the historic purpose of the writ, this Court has
recognized the federal courts' power to review
applications for habeas relief in a wide variety of cases 
 involving Executive detention, in wartime as well as in
times of peace."

The Graham Amendment is crafted to render Rasul a nullity
by cutting off the rights of Guantánamo prisoners to
have their habeas petitions considered by the federal
courts. The Amendment limits federal court review to
the narrow issue of the validity of decisions rendered by 
 Combatant Status Review Tribunals. These kangaroo courts
were set up to determine whether the Guantánamo
prisoners are "enemy combatants." They are not
independent judicial tribunals, but rather administrative 
 proceedings stacked with military officials who can use
secret or even fabricated evidence. The prisoner is not
entitled to be represented by an attorney.

Only a handful of prisoners at Guantánamo have been
charged with crimes. Their cases will be heard in
military commissions that George W. Bush established to
impose long sentences and even execute detainees with 
virtually no judicial oversight. Without habeas access to
federal courts, Bush and Donald Rumsfeld will
ostensibly serve as prosecutor, judge and executioner
in the military commissions. This flies in the face of
the constitutional doctrine of separation of powers. Three
days before the Graham Amendment was passed, the
Supreme Court announced it would review the legality of
those military commissions in Hamdan v. Rumsfeld.

Even though the majority of prisoners detained at
Guantánamo admittedly pose no threat to the United
States, they continue to languish in virtual isolation
under torturous conditions. Two hundred of them, who 
have decided death is preferable to life, are trying to
starve themselves in a hunger strike.

Last month, the Senate passed the McCain Amendment, which
makes it unlawful for any "individual in the custody or
under the physical control of the United States
Government, regardless of nationality or physical
location [to be] subject to cruel, inhuman, or degrading 
 treatment or punishment." Bush and Cheney have fought
this measure tooth-and-nail because it would interfere
with their ability to torture prisoners with impunity.
The Graham Amendment will undermine the ability of
tortured prisoners to enforce the McCain Amendment in
federal courts.

By foreclosing judicial review of sentences imposed by the
military commissions, the Graham Amendment also
violates Common Article 3 of the Geneva Conventions, a
ratified treaty and therefore part of US law under the
Supremacy Clause of the Constitution. That article
prohibits "the passing of sentences and the carrying
out of executions without previous judgment pronounced
by a regularly constituted court, affording all the 
judicial guarantees which are recognized as indispensable
by civilized peoples." Unlawful combatants are
protected by Common Article 3.

Violations of Common Article 3 constitute war crimes under
the federal War Crimes Act. Violators can receive life
in prison, or even the death penalty if the victim

Sen. Lindsey Graham's pernicious Amendment was proposed
and passed with no debate about its far-ranging
implications and without any hearings. The senators who
voted for it bought into Bush's "war on terror" mantra, 
 ignoring the basic constitutional principles that
inform our system of government.

These senators will have the opportunity to rectify this
grave threat to the Constitution. As early as today,
Senator Jeff Bingaman (D-NM) will attempt to strike from
the Graham Amendment the language barring Guantánamo
prisoners from habeas relief. Senator John McCain may
support a compromise. He said, "Based on ongoing
discussions, it is entirely possible that the current
version of the amendment will be modified to address
concerns about lawful treatment and the scope of
independent appeals."

More than 100 legal scholars, including this writer, have
signed a letter urging senators to adopt an amendment
of the kind proposed by Senator Bingaman. The Center
for Constitutional Rights concurs: "Habeas Corpus is
a fundamental right that our entire legal tradition is
founded on. Unfettered Executive power jeopardizes our
free and democratic society. Creating 'no law zones' of
unreviewable Executive power at Guantánamo undermines
the moral standing of the United State in the eyes 
of the world and endangers the lives of US soldiers

The Graham Amendment has also drawn opposition from Judge
John Gibbons, who argued Rasul v. Bush before the
Supreme Court; John Hutson, Dean of Franklin Pearce Law
Center and former Judge Advocate General of the US 
Navy; and the National Institute for Military Justice.
NIMJ President Eugene R. Fidell wrote, "We disable
ourselves from objecting to flagrant lawlessness
elsewhere when we shut the doors to our courts, which are 
 the jewel in the crown of our democracy."

Habeas Corpus, known as The Great Writ, is the final
bastion of liberty for those unjustly held. The last
time this country suspended Habeas Corpus was for the
internment of tens of thousands of Japanese-Americans 
during World War II. That travesty is now universally
recognized as a shameful chapter in our nation's
history. To suspend The Great Writ once again, while
allegations of systematic torture continue to emerge from 
 US prisons, will threaten our Constitution and render
"quaint" our democracy.

The Democrats who voted in favor of the Graham Amendment
were Joseph Lieberman (Conn.), Kent Conrad (N.D.), Ben
Nelson (Neb), Mary L. Landrieu (La), and Ron Wyden (Or).



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