Can US government officials lock people up and throw away the key without having to prove their case to any court? This fundamental question of democratic government is hanging in the balance in the US Senate.
Last Thursday, the Senate voted to support the “Graham amendment” restricting the authority of American courts–specifically, their authority to make the government explain why it is holding foreign nationals. The measure would reverse a 2004 Supreme Court decision that detainees, even those the government has declared “unlawful combatants,” have the right to appeal to American courts. This right–technically known as “habeas corpus”–is enshrined in the US Constitution.
There was an immediate tidal wave of protest–and not just from the usual suspects. John Hutson, a retired rear admiral and former judge advocate general of the Navy, not only protested but organized 60 former military officers to object. The National Institute of Military Justice, the organization of military lawyers, denounced it. High-powered legal scholars like Judith Resnick of Yale Law School, David Shapiro and Frank Michelman of Harvard Law School, and Burt Neuborne of New York University Law School circulated a letter describing the legislation in the starkest of terms:
“The Graham amendment embodies an effort to alter fundamental precepts of our constitutional order. It consigns the protection of fundamental human liberties to unilateral executive determination.”
An editorial in the New York Times concurred: “History shows that in the wrong hands, the power to jail people without showing cause is a tool of despotism.”
Cooler heads in the Senate are already reconsidering its action. An amendment proposed by Senator Jeff Bingaman that would restore habeas corpus may come up as early as this week. Senator John McCain says it is “entirely possible” that the Graham amendment, which he supported, will be modified “to address concerns about lawful treatment and the scope of independent appeals.”
The five Democrats who provided the 49-42 margin of support for the bill–Senators Joseph I. Lieberman of Connecticut, Mary L. Landrieu of Louisiana, Ben Nelson of Nebraska, Kent Conrad of North Dakota and Ron Wyden of Oregon–may well be hearing from their constituents. But the Administration may try to make an end-run around all Senate-initiated limits on its powers by blocking them in the House. If so, this dubious battle could take weeks to unfold.
How did our country get into such a position? As the US military moved into Afghanistan, Bush administration officials in the Pentagon and Justice Department set the stage for the military to act in ways that were illegal under both national and international law, seizing people, locking them up, and treating them with a brutality that we know of only because of the testimony of whistleblowers and victims. The President’s lawyer, Alberto Gonzales, now Attorney-General recommended that the President simply “determine” that the Geneva Convention on the Treatment of Prisoners did not apply to those it captured.