Last Thursday, in a close 49-42 vote, the Senate adopted South Carolina Senator Lindsey Graham’s amendment to a military budget bill restricting the authority of US courts to hold the executive branch accountable for its detainee policies. (Click here for the roll call.)

The measure would overrule a 2004 Supreme Court decision allowing detainees, even those the government has declared “unlawful combatants,” the right to appeal to American courts. This right–known as “habeas corpus”–is enshrined in the US Constitution and even strict constructionists like Justices Antonin Scalia and Clarence Thomas can’t be happy with this unprecedented encroachment on the judicial branch’s turf.

Graham is carrying water for the increasingly embattled Bush Administration on this one, and it may come back to haunt him. The rapid-fire opposition to his bill is being joined by far more than the usual suspects, as Jeremy Brecher and Brendan Smith write in a new piece on The “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 Resnik of Yale Law School, David Shapiro and Frank Michelman of Harvard Law School, and Burt Neuborne of New York University Law School circulated a blistering letter describing the legislation as “an effort to alter fundamental precepts of our constitutional order.”

It also seems to me that if there is nobody in detention who can be convicted of anything without special kangaroo courts, then the real terrorists have indeed won, in part by pushing us to abdicate all moral authority.

The tidal wave of opposition seems to having an effect and cooler heads in the Senate are already reconsidering its action. An amendment proposed by Senator Jeff Bingaman, Democrat of New Mexico, which would restore habeas corpus to detainees may come up as early as this week. The Center for Constitutional Rights, which sued the Justice Department on behalf of people held at Guantanamo, is calling for “emergency action” in support of the Bingaman amendment.

Click here to send a letter to your Senators imploring them to vote in favor of the Constitution (or call toll-free at 888-818-6641 or 888-355-3588), check out and circulate background resources put together by CCR, including an excellent primer exposing seventeen myths and distortions underlying the Graham amendment and click here to find contact info for your local newspaper editor and write him/her urging the paper to come out for Bingaman’s amendment.

As Hilzoy at the Obsidian Wings blog–who has penned a series of thirteen posts debunking the Graham amendment–rightly insists. “Our country should never be the sort of place where the Secretary of Defense can just drop someone into a legal black hole, where the laws cannot reach, and whence there is no appeal. And we should not tolerate attempts to turn it into such a place. We claim to be a nation of laws; habeas corpus is one of the foundations of those laws, and it is too precious, and too important to the country we want to be, for us to throw it away.”


And here’s a good update from Hilzoy.