Bushwhacking the Constitution


These are weighty and momentous considerations that go far beyond the detainees at Guantánamo. . . .[This amendment] . . . takes away jurisdiction of the Supreme Court of the United States. It is untenable and unthinkable and ought to be rejected.

Senate Judiciary Committee chairman Arlen Specter , on the floor of the Senate, November 15, objecting to an amendment to the defense authorization bill by Lindsey Graham, Carl Levin, and Jon Kyl that would effectively close our federal courts to any charges of abuse, including tort ure, of Guantánamo prisoners. The amendment passed 84 to 14.

I learned long ago not to say the sky is falling when it’s only raining. However, the hard rain on our fundamental liberties has been persistently increasing since the White House rammed through the Patriot Act soon after 9-11. This nation has survived grave constitutional crises before, but recent events in the U.S. Senate that further strengthen and deepen presidential powers are reason to be alarmed at what can follow under the present administration.

On November 10, with the support of Bush’s Justice Department, the Senate had previously passed an amendment by the manipulatively mercurial Senator Lindsey Graham that the American Civil Liberties Union charged “would make the McCain anti-torture amendment nearly impossible to enforce at Guantánamo Bay.

“The [original] Graham amendment would strip all courts, including the Supreme Court, of jurisdiction to consider habeas [corpus] petitions or any other action challenging any aspect of the detention of foreign detainees [there], except for the narrow question of whether [Defense Department] status review boards follow their own rules.”

The vote on November 10 was 49 to 42. That action by the Senate so alarmed the law school deans at Georgetown, Harvard, Yale, and Stanford—Alexander Aleinikoff, Elena Kagan, Harold Hongu Koh, and Larry Kramer—that they wrote a letter to Senator Patrick Leahy, Democrat of Vermont, that he inserted in the November 15 Congressional Record. (Leahy, a firm constitutionalist, voted against Graham’s amendment.) I haven’t the space for all of the deans’ letter, but I quote from page S12802 and strongly recommend you read the entire Senate debate that day, which led to the eventual 84-14 vote that disgraces the majority of the Senate—and could place the liberties of all of us, not only the Guantánamo prisoners, at risk.

Said the deans: “We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of non-citizen detainees. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions [by the CIA], and the abuse of prisoners in Guantánamo, Iraq, and Afghanistan.

“The Graham Amendment will simply reinforce the public perception that Congress approves Executive Branch decisions to act beyond the reach of law. [Emphasis added.] As such, it undermines two core elements of the rule of law: congressionally sanctioned rules that limit and guide the exercise of Executive power, and judicial review to ensure that those rules have in fact been honored.

“When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government. We urge you to vote to remove the court-stripping provisions of the Graham Amendment from the pending legislation.”

The majority of the Senate continue to ignore all warnings on this subversion of the separation of powers. But there was a backlash to that first Graham amendment from civil liberties and human rights organizations and members of Congress. This resulted in various amendments and counter-amendments on the Senate floor to “improve” that initial startling Graham amendment. Adding minimal due-process protections, this “improvement” nonetheless remains dangerous to the future of the Constitution and its separation of powers because it continues to deny habeas protections to Guantánamo prisoners. Making that case, I quote from a November 17 letter to Senate Majority Leader Bill Frist from the justly prestigious Association of the Bar of the City of New York. Despite the attempts to perform cosmetic surgery on the original Graham amendment, said the New York City bar, the version that the Senate is sending to the House “leaves a gaping hole precisely where the Administration’s policies are most troublesome, and where the world is most carefully watching—the indefinite detention of persons whose status as an enemy combatant has not been adequately examined, and the treatment of those detainees.

“The ‘war on terror,’ unlike other U.S. wars, has no conceivable end point. . . . Therefore, there is every reason to believe that the detainees being held at Guantánamo could spend the rest of their lives as prisoners.”

The New York bar letter ends with this acutely telling point: “Just yesterday, we learned that our government expressed outrage over the torture of prisoners by Iraqi captors in an Iraqi ministry building. To have moral force, our expressions of outrage must be buttressed at home by protections that only the writ of habeas corpus can provide.”

The Graham-Levin-Kyl amendment passed on November 15 by a resounding vote of 84 to 14. It does not—as the ACLU emphasizes—”allow any habeas claim for protection against government-funded torture or abuse . . . and prohibits all habeas claims if the government decides it is going to hold a person with-
out ever determining their status.” (Distinguished civil libertarians Hillary Clinton and Chuck Schumer voted for the amendment.)

The “great writ” of habeas corpus goes back to the Magna Carta in 1215 and allows a prisoner to go to a court to make the government prove that he or she is being legally held. Making it impossible for a Guantánamo prisoner to go to a court on a habeas petition concerning torture makes the McCain amendment meaningless. I’ve left two messages with McCain’s press secretary to have the senator explain this clear inconsistency. There has been no response, in contrast with quick answers to previous queries.

I had thought John McCain was a man of principle, not just another presidential candidate in 2008.