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.
Gonzales's motivation was not only to evade the Geneva conventions, but to skirt US law. Declaring that the Geneva Convention did not apply, he wrote, "substantially reduced the threat of domestic criminal prosecution under the War Crimes Act. " This law "prohibits the commission of a 'war crime' by or against a US official. 'War crime' for these purposes is defined to include any grave breach" of the Geneva Convention on the Treatment of Prisoners."
The President proceeded to do just that. And the long string of abuses we associate with Abu Ghraib and Guantanamo followed, along with unknown others conducted in secret prisons or simply unreported.
When the Center for Constitutional Rights  sued on behalf of people held at Guantanamo, the Justice Department argued that the courts would not have jurisdiction even if the detainees were being summarily executed. As the Ninth Circuit Court wrote, "the US government has never before asserted such a grave and startling proposition...a position so extreme that it raises the gravest concerns under both American and international law." The Supreme Court ultimately rejected the notion that the actions of US officials were not subject to law.
When prosecutor Patrick Fitzgerald indicted I. Lewis Libby, for lying to federal investigators and perjury to a grand jury, certain Bush Administration officials must have shuddered. Alberto Gonzales wrote in his torture memo , "It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide[d] to pursue unwarranted charges" based on the War Crimes Act. Indeed, human rights groups are now calling for a special counsel to investigate torture.
Last month, Senator John McCain, a prisoner of war in Vietnam, made a passionate plea to his Senate colleagues to prohibit torture and prisoner abuse. Vice President Cheney campaigned against the measure, but it passed  the Senate 90-9. Now Cheney is campaigning to exclude the CIA from the torture ban.
Senator McCain voted to support the Graham amendment, even though it would strip the authority of the only institution outside the executive branch itself to which prisoners could appeal--the Supreme Court. Without Court oversight, the very officials who have been implicated in prisoner abuse will remain judge, jury, and jailer -- and will be in a position to permit torture with impunity. Those who support both the McCain amendment and the Graham amendment are caught in a contradiction, essentially saying that the government can outlaw torture and allow it too.
The Graham amendment is portrayed as a law that restricts the rights of detainees. But even more important, it restricts the power of courts to oversee the actions of government officials. It puts government officials above the law. The ultimate question is not just what are the rights of detainees at Guantànamo, but whether US government officials are subject to the rule of law.
The Supreme Court has described the writ of habeas corpus as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Some of the darkest hours in American history have resulted from its suspension--notably the internment of Japanese Americans during World War II, for which the US Congress voted a formal apology a few years ago.
The Center for Constitutional Rights has called for "emergency action" to preserve habeas corpus by supporting the Bingaman amendment. Michael Ratner, head of the Center, warns, "The conscience of our nation is up for grabs."