Stop This Amendment.

by hilzoy

From the AP:

"A Senate Republican wants to bar suspected foreign terrorists held at the U.S. prison in Guantanamo Bay, Cuba, from challenging their detentions in U.S. courts, a proposal that is drawing protest from human rights groups.

Sen. Lindsey Graham, R-S.C., said he also faces some resistance from Senate colleagues and the White House as he considers whether to try attaching his proposal to a defense bill the Senate is debating this week. Senators could vote on the proposal as early as Thursday."

To repeat: this could come up for a vote tomorrow. TalkLeft has posted a pdf of the amendment. The relevant text:

"(1) In General: Section 2241 of Title 28, United States Code, is amended by adding at the end the following new subsection:

"(e) No court, justice, or judge shall have jurisdiction to consider -

(1) An application for a writ of habeas corpus based on policies established by the Secretary of Defense under Section 1071 (a) of the National Defense Authorization Act for Fiscal Year 2006 filed by an alien who is detained by the Secretary of Defense, or

(2) any other action, challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant."

(2) Effective Date: The amendment made by paragraph 1 shall apply to any application or other action pending on or after the date of the enactment of this Act."

This is seriously bad news. As best I can tell, it strips the courts of all power to hear any habeas motion from a detainee, or any other challenge to a detainee's detention, and that this applies to any cases that have already been brought and are now pending.

This would be bad enough if we did not have any reason to distrust the administration. But now, when people have been held for years without any sort of trial or review, when there have been stories of abuse and mistreatment, and when the administration is asserting its right to do whatever it wants with detainees, bound by neither laws nor treaties, is the worst possible time to propose a bill like this.

The right of habeas corpus -- the right to challenge the legality of your detention -- is one of the foundations of our legal system. As Justice Stevens wrote in Rasul v. Bush:

"What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims."

In Rasul, the Supreme Court held that detainees do have the rights Senator Graham now wants to strip them of. And the Court was right: our system of justice does not and should not countenance the indefinite detention, without any right to appeal, of anyone at all.

I urge you to contact your Senators and urge them to oppose this amendment. The Center for Constitutional Rights says that the following are particularly important:

Lincoln Chaffee (R-RI) (202) 224-2921
Olympia Snowe (R-Maine) (202) 224-5344
Susan Collins (R-Maine) (202) 224-2523
Pete Domenici (R-NM) (202) 224-6621
Bill Nelson (D-Fl) (202) 224-5274
Arlen Specter (R-Pa) (202) 224-4254
Mike Dewine (R-Oh) (202) 224-2315
Sam Brownback (R- KS) (202) 224-6521

But call or email your Senators whether they are on this list or not, especially if they are Democrats who have shown some inclination to vote with the Republicans in the past, or Republicans who have shown some willingness to break with their party. (This should not be a partisan issue.)

This is just wrong.

Thanks.

Comments

[bob mcmanus]

Wow. I was just heading here from TalkLeft.
Lindsay Graham. Jeez. Lindsay Graham. Maybe some kind of deal for the McCain amendment?
Lindsay Graham. I will say it in the form of a question:

Are there any decent Republicans left?

[bob mcmanus]

Unbelievable. I am sorry I am in shock.

"According to Graham's talking points for the bill (which I received by e-mail) his amendment would prohibit detainees from using the court to challenge:

The legality of their detentions
The propriety of returning detainees to their home countries
Adequacy of medical care at Guantanamo
Quality of the food
Speed of mail delivery
Allotment of exercise time and other conditions of confinement" ...Jeralyn, TL

Evil. Pure-D Evil.

[bob mcmanus]

3 in a row;I'll go away. For anyone who doesn't understand what Lindsay Graham is trying to do here, it is explained by "punchy" in TL comments:

"I dont get it. First, the courts and Congress has already allowed Bush to declare anyone they want an "enemy-combatant". Now, they're attempting to remove any ability for one to prove one's NOT.

Ok, is this a logical conclusion: Anyone Bush doesn't like can be suddenly declared an "enemy", then locked up, and have NO recourse to prove otherwise?

Am I crazy, or would this be a dictatorship???"

[CharleyCarp]

The Graham talking points are an interesting combination of Lame and Evil. He's got a few more that are so lame no one will even put them on paper. They just whisper them.

Sen. Hagel should be getting calls too. (202) 224-4224

This amendment was supposed to come up early yesterday afternoon, then this morning, and now maybe tomorrow. If at all -- there's a limit to the number of amendments permitted to the bill, and one can't be sure that the managers will want to waste one on this.

This one is absolutely winnable, folks, and worth making a call.

[CharleyCarp]

Bob, make a call!

[Katherine]

Can you whisper the too-lame-to-print ones here Charley?

[CharleyCarp]

I liked Rasul, but my favorite quote on the Great Writ is from Justice Story's Comments on the Constitution:

"This writ is most beneficially construed; and is applied to every case of illegal restraint, whatever it may be; for every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, in which the restraint is effected." (Sec. 1333)

Story goes on to note, quoting Blackstone, that "to bereave a man of life, or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tryranny throughout the whole kingdom. BUT CONFINEMENT OF THE PERSON BY SECRETLY HURRYING HIM TO GAOL, WHERE HIS SUFFERINGS ARE UNKNOWN OR FORGOTTEN, IS A LESS PUBLIC, A LESS STRIKING, AND THEREFORE A MORE DANGEROUS ENGINE OF ARBITRARY FORCE." (Sec. 1334).

[hilzoy]

CharleyCarp: if you ever find out about something like this before I post, please email me. I hate this stuff. And thanks again, if I haven't said it recently, for fighting it. And Katherine too.

[rilkefan]

I don't understand what Lindsay Graham is after here. I've kind of admired him for a while and find this very sad.

[CharleyCarp]

One last quote, my favorite from the discussions of strategy for dealing with Graham's talking points.

"Let them argue about what Eisentrager means. We'll argue about what 'American' means."

[bob mcmanus]

I have in this forum long expressed my feelings that my horror at the "illegal combatant" concept, the stateless, rightless non-person was greater than my horror of torture or burning the skin off children.

I can only try to explain it by saying the closest thing I have to a religion, the community I freely choose to join in reverence of something bigger than myself is the Constitution or the principles it embodies. I grant a lot of leeway, like most religious, in the precise manners and details of worship. But I react like a late-medieval Catholic to what I judge to be heresy, to attacks on the foundations of the faith.

Torture is a terrible sin, but only sin. Heresy endangers us all.

[Jesurgislac]

bob: I can only try to explain it by saying the closest thing I have to a religion, the community I freely choose to join in reverence of something bigger than myself is the Constitution or the principles it embodies.

It's not just your Constitution. Lord Irvine, the then-Lord Chancellor, speaking to on the spirit of the Magna Charter to the Canberra House of Representatives, Australia. (PDF file, sorry: but worth reading)

The Bush administration already claims the right, when any non-US citizen is entering the country, to hold that person in detention for an indefinite period, inside or outside the US. This is why I, who have regularly visited the US in past years, am never going there again until this "right" they claim is clearly overset. If besides the "right" to hold me for an indefinite period, your government also claims the "right" to deny me the right to appeal against unjust imprisonment, frankly, I cannot see why anyone not a US would take the risk of entering the US ever again, absent extreme necessity.

[Slartibartfast]

I cannot see why anyone not a US would take the risk of entering the US ever again, absent extreme necessity.

Clearly, though, many thousands (millions each year, if you believe the press) do, for the urgent necessity of visiting the Magic Kingdom. And, as far as we know, without being detained indefinitely. But as you said, this isn't an immediate danger to me.

I'm going to give Bill Nelson's office a call this morning. I can see that there are good reasons for keeping prisoners of war out of US courts while a war is going on, but we've pretty much rewired ourselves so that we can take anyone at all in the area of conflict, and we have neither a formal start nor end of a war that we can point to. It'd be one thing if these were obviously soldiers, or consistently reviewed by tribunal (which, have we even begun doing that?).

And yes, I know, the end may be obvious after we've passed it, but we don't even have a criterion for reaching it.

[cleek]

all ya gotta do is imagine how proponents of this proposal will use it in attack ads against opponents of this proposal, 8 months from now. i imagine that's reason enough to propose it.

[hilzoy]

Slarti -- thanks.

[Paul]

Wow. Suspension of habeas corpus. In 2001 I would have regarded that possibility as the sheerest tin-foil hattery. Today I regard it as just more evidence that as bad as I think the current crop of shysters are, they're probably worse.

[SomeCallMeTim]

I'm disappointed in Graham, too, but it shouldn't be considered that surprising. The underlying theory of "America" that these people have is substantially at odds with ours, and has been for close to 150 years. When things are good, nobody notices it. And when things are bad - well, we've (Northerners, progressives, Democrats, etc.) been in charge pretty much all the times that things have gone bad since the civil war, so who cared?

God willing, we'll be in charge some time again, and we'll be able to right the course. But until then - close your eyes and ignore it, because you really can't win an argument with people whose method of validating reasonable judgments is so very different from your own.

[lily]

Senator Obama is introducing the End Deceptive Practices and Voter Intimidation Act. While people are contacting their elected officals about the amendment, consider taking time to support this proposal. There's a write-up about it on DailyKos.

[Judy Kratochvil]

The talking points and bill are not evil and Sen. Graham is a decent republican as are many of those elected.

What is wrong with throwing the determination of detainee status to duly constitued tribunals under article I that would be controlled by the military. Status of detainees is a military issue. The civil courts can release redacted opinions of these cases do to intelligence while the military does not have to release the opinion for public consumption. The military tribunals and system are better suited to handle the classified nature of the cases than the civil court.

The military tribunal system would grant the detainees their rights to a proper hearing, representation, and other rights of due process, but it would be in a situation where we could also protect our intelligence. They couls appeal to a military court of a ppeal from the tribunal and actually would get a mandatory review after the triunal verdict was issued. This system works for our military personnel why not the detainees?

[Judy Kratochvil]

The talking points and bill are not evil and Sen. Graham is a decent republican as are many of those elected.

What is wrong with throwing the determination of detainee status to duly constitued military tribunals under article I?

Status of detainees is a military issue because they made the capture during war. The military tribunal system would grant the detainees their rights to a proper hearing, representation, and other rights of due process, but it would be in a situation where we could also protect our intelligence. The detainees could challenge decisions in a military court of appeal from the tribunal. They actually would get a mandatory review after the triunal verdict was issued.

The military system works for our military personnel so why not use it for the detainees?

[SomeCallMeTim]

Umm, CC can probably give up the pointers, but (IIRC) a number of the military lawyers associated with various hearings for detainees have indicated that the rules and regulations drawn up for the process are not, in fact, fair. So it seems reasonable to suspect that the military will not necessarily do justice to American notions of fairness and due process, and therefore there should be a review process.

If you were an American, this would be more obvious.

[Jesurgislac]

Slarti: but we've pretty much rewired ourselves so that we can take anyone at all in the area of conflict

Actually, the US has pretty much rewired itself so that that it can take anyone at all from anywhere in the world. And has.

Clearly, though, many thousands (millions each year, if you believe the press) do, for the urgent necessity of visiting the Magic Kingdom. And, as far as we know, without being detained indefinitely. But as you said, this isn't an immediate danger to me.

Nor to me: I am not Muslim, and I am white. Therefore, I can probably visit the US in perfect safety, so long as I don't object to being treated like a suspected criminal on entrance. But I'm frankly allergic to a system where I buy my safety by my religion or my race.

[CharleyCarp]

JK, I suppose if the prisoners were going to be given "rights to a proper hearing, representation, and other rights of due process" maybe there would be a point. This has nothing to do with either the ARBs or CSRTs. Neither allows lawyers, both allow hearsay evidence, neither gives the prisoner subpoena power, or confrontation. They don't even give the prisoner notice of all the charges. Both have allowed evidence obtained under torture -- or other abuse -- which Graham would ban going forward, but does not give any meaningful remedy for.

You need to distinguish between the military commissions -- which will try something less than a dozen prisoners, and allow extensive (although still inadequate) process -- from the ARB or CSRT proceedings, which give kangaroo courts a bad name.

Why not use the military justice system for prisoners? Good question. Maybe the government ought to propose doing so.

As for capture during war, this hits on a piece of the problem. It's one thing when we have a prisoner who raised his hands, and dropped his weapon, after a firefight with US soldiers. It's quite another when we get a guy turned over to us picked up by pakistani soldiers at a roadblock, based on a tip for which a substantial bounty was paid. With the first guy, you've got US soldiers who can certify that the guy was engaged in combat. The second guy can as well be the victim of a dispute over a girl. Or money, whatever.

[Jesurgislac]

CharleyCarp: With the first guy, you've got US soldiers who can certify that the guy was engaged in combat. The second guy can as well be the victim of a dispute over a girl. Or money, whatever.

Or when you kidnap a businessman who made the mistake of flying while Muslim from Heathrow to the Gambia. Or when you kidnap a teacher from the house where he's staying in Pakistan. Or when you kidnap six men from Bosnia who have been cleared by the Bosnian Supreme Court because the CIA declined to present any evidence against them. All of these extra-legal methods have been used to take prisoners for Guantanamo Bay.

And now the Bush administration wants to take away any right they have to appeal against the illegality of their detention...

[CharleyCarp]

J: Precisely.

[CaseyL]

I called Senator Cantwell's office, where they took down my name and noted my opposition, but seemed not to have heard of the bill.

Senator Murray's office didn't ask for the spelling of my name, but did note my opposition, and knew which bill I was talking about before I'd finished identifying it.

Neither office said which way the Senator was likely to vote.

[CharleyCarp]

It's being debated on the floor right now (3:20 pm EST) C-Span 2.

[CaseyL]

Is teh debate being liveblogged anywhere?

[CaseyL]

Answered my own question: one of the diaries at dKos is covering the debate and the vote.

[Gary Farber]

"It'd be one thing if these were obviously soldiers, or consistently reviewed by tribunal (which, have we even begun doing that?)."

Well, they've started charging a few more, anyway. (I'm still hoping CharleyCarp will answer my question.)

[CharleyCarp]

GF:

Every prisoner at Gtmo has been through a CSRT. As one of my colleagues says, calling these tribunals kangaroo courts is an insult to kangaroos. They basically ask whether there is some evidence -- from whatever source, of whatever reliability -- that would justify holding the prisoner. Not a preponderance standard, but a scintilla standard. I could go on at length about all the ways these are worthless, but that wasn't really the question.

Very few prisoners will be tried by commissions, once the Supreme Court says that the current commissions are adequate under Geneva and the Constitution. Nine now, maybe half a dozen more. Nine out of 500.

And even there, there are issues. Can we really try a person for conduct in Afghanistan, during the Afghan civil war, that occurred prior to September 2001?

[CharleyCarp]

Looking at the revised Graham language, I'm struck by another category of case it would cut off: there are prisoners who have been cleared by the CSRTs. Not even a scintilla. A number of these people are still being held, even though, as noncombatants, the authority to hold them is less than clear.

Graham would cut off their right to challenge their continued detention. They wouldn't be able to use the new appeal procedure either.

[CharleyCarp]

Passed, 49-42. There's a Bingaman substitute, though, that may come up later in the evening if he can round up enough votes. Lieberman, Wyden, Landrieu, Snowe, Collins, McCain ought to be likely prospects.

[Jon H]

"Why not use the military justice system for prisoners? Good question. Maybe the government ought to propose doing so."

The military justice system seems to be set up for giving military personnel a slap on the wrist, and for making sure the grunts take all the heat.

I mean, they seem to think the end of a military career is a harsh punishment in and of itself.

In the real world, the end of your career is a side effect of the process, quite possibly happening when arrested, let alone convicted.

[washerdreyer]

Ok, so what's the case law on whether stripping federal jurisdiction to hear a habeas corpus petition is equivalent to suspending the writ of habeas corpus?

[Gary Farber]

I'm not clear what your response addressed to me is in regard to, CharleyCarp, but I'm still hoping you might clarify what I asked you here, if you feel inclined.

[Michael John Keenan]

Subject: Where are the other secret torture chambers?
To: [email protected], [email protected]

The Minds Limit Today

In Jean Amery's, The Minds Limit, his capture and
descent into torture by German Nazi's, starts by
pointing out that his torturers showed no "banality of
evil" in their faces. First there is the "laugh" and
then the "first blow." The prisoner then realizes that
they are "helpless". Lost is the "trust in the world."
Certainly there is no "mutual aid in nature." No. It
is time for the "business room." But before describing
his own torture the author makes "good on a promise I
gave." Not that they where not specialists in torture,
but more so his conviction that "torture was the
essence of Nationalist Socialism....more accurately
stated, why it was precisely in torture that the Third
Reich materialized in all the density of its being." I
ask you dear citizens should we also "codify" that the
detainees at Camp Xray can also be children as
recently reported in the news? Not only does that
sound slightly like the rule of anti-man but I do
believe anti-child included. And if that is so then
the rule practiced as such has "expressly established
it as a princple." So just what else in "essence" does
go on at Camp Xray? "Tricks"? Plead mercy, pray tell?
And now comes Abu Graib. Refuse Himmlers offer for a
Certificate of Maturity in History and stop those jet
flights I would suggest, Mr. Cheney. Nay, to forsake
the Constitution and be depraved of our humanity would
be more painful in the end. Slavery to torture is all
you will get. Go tell that to the Marines. Why Mr.
Cheney haven't you already tendered your resignation?
At least Hitler was restrained from jettisoning the
Geneva Conventions even with his back against the wall
in February of 1945. I smell now the chief prosecutor
Jackson's closing arguments at the Nuremberg trials.

I am Citizen Michael John Keenan

[David Lamb]

Habeus corpus is not guaranteed to foreign nationals, engaged in actions against the security of the United States, captured abroad. Never has been. Never will be. None of the rights guaranteed by the Constitution apply to foreigners. They restrict what the US Government can do to *Americans*. Anything else is up to the Congress and the President. (That's why we have *treaties*.)

The Graham-Levin Amendment allows the DC Court of Appeals to review the final disposition of cases as judged by the military tribunals, to ensure that decisions were reached in accordance with the standards set down in law. That's good enough for me.

I am citizen David Andrew Lamb, and I want my government to declare war on the Islamofascism that seeks to enslave and subjugate every one of us to their interpretation of the Koran. Their kind of peace is no peace at all.

[LizardBreath]

None of the rights guaranteed by the Constitution apply to foreigners.

Wrong. Thanks for playing.

[Dragon'sLair]

The right to habeas corpus only extends to American Citizens. Even if the American is caught in a treasonous offence he is entitled to all his inalienable rights.

If an enemy combatant is detained then at least his family should be notified he's alive and well and will be released as soon as all hostilities are over.

Speaking of treason, any lawmaker that votes for the Patriot Act may be guilty of treason as the Act is a direct attack on the Constitution. As such any one voting for or signing such a law is guilty, in my opinion, of treason.

We have to start reminding these people we send to Washington that we send them there under the pretext that they represent the people and not American Industries. We sent these people to Washington because they to us they would represent us and our interests, which we all now know is a blatant lie, and therefore, these people are guilty of fraud. They are actually elected trustees in the United States, Inc. bankruptcy.

Americans have to understand that the United States, Federal Reserve System, the UN and the International banks have every reason to kill off as many baby boomers and older people as they can. This is why they pass all these crazy laws that take money from the elderly and infirm and give it to foreign countries where it lines the pockets of corrupt leaders. That's why the United States sends tons of food abroad while its own people die of starvation in the cold streets across the nation.

If you are alive and are retired or disabled you are a drain on the government. You are not able to produce the labor that the United States said you would in order to use you as collateral on a loan. If you're not working they have every intention on shortening your life span as possible. There is no vested interest in keeping you alive if you can't work and pay taxes.

The boomers are going to be a huge cost to Social Sec. and Pension Funds in the next decade or two. It would be foolish of any living person with common sense to think that any business or government would want that financial burden. So they just make things too costly for those who can't work or are retired to survive on the fixed income they have.

The elimination of habeas corpus will allow the government to pick up any critic of what's going on and hold them as political prisoners in America - the land of the free.

Perhaps the real political criminals are those doing the detaining....This is America where life is supposed to mean something...I don't believe I like knowing that my country is abusing humans that are allegedly enemy combatants along with genocide, forced suffering and starvation of its own people.

Since the United States is making Americans suffer cruel and abusive treatment, why should they treat anyone any different. Americans don't care if Washington abuses Americans, but we sure get pissed when they abuse people from other countries.

BTW fellow Americans, you don't have any Constitutional Rights, you have inalienable rights. There's a huge difference... learn it.

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