By now you may have heard of Senator Lindsey Graham’s recent amendment that would strip all prisoners in Guantanamo Bay (specifically!) of their rights to habeas corpus.

Being a curious individual, I wanted to go straight to the text itself instead of relying on the media to tell me what happened.  I also will delve into exactly what habeas corpus is and why Graham’s actions are so significant.
Let’s start with the facts.  First, there is a major Defense spending bill now known as Senate 1042, which was introduced last May.  As with all big spending bills, several dozen amendments have been proposed.  On Thursday, Graham introduced a resolution (2516) which was passed.  The exact text of this amendment can be found by browsing the Congressional Record, page S12699.  I will quote the relevant portion of it for you:

(1) IN GENERAL.–Section 2241 of title 28, United States Code, is amended by adding at the end the following:

“(e) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba.”.

So what exactly is USC28 Section 2241?  Well it USC 28 deals with judicial procedures and Section 2241 specifically deals with habeas corpus.  Essentially it says that a prisoner may seek a writ of habeas corpus from the corresponding district court.  In other words, you’ve got to apply to it from the court with the corresponding jurisdiction over where you’re being held.

But what exactly is this habeas corpus stuff?  Not all of us are lawyers and since this is a Latin term, it deserves an explanation.  Since I’m not a lawyer either, I’ll rely on a lawyer’s website to explain it:

Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

According to the same source, habeas corpus writs are effective in making sure that the government complies with the law.  If a prisoner (one not in Guantanamo Bay) feels he or she was wrongfully imprisoned, they can use a habeas corpus to get in front of a judge to have the very terms of their imprisonment reviewed.  It has nothing to do with evidence or trials or guilt or innocence, only a review that the rules pertaining to locking up people were themselves followed.

Normally it’s used by prisoners who say that their trials were not conducted fairly or legally, that evidence was repressed, that sort of thing.  In the case of the people in Guantanamo, they had no trials, so they are asking that simply their arrest be reviewed for legality.  And that’s what Senator Graham wanted to do – deny them even their ability to have the circumstances surrounding their arrest reviewed.

If you’ve ever been arrested, you might be confusing the above habeas corpus (full name – habeas corpus ad subjiciendum) with a different kind of habeas corpus called habeas corpus ad testificandum, which was what was written on the warrant for your arrest.  The first HC refers to examining why the “corpus” (body/person) is being held and the second one orders law enforcement to produce the “corpus” to testify (appear in court).  For more on this, see Wikipedia.

Graham’s amendment was passed by a vote of 49-42 with 9 abstentions.  You can find the complete list of who voted and how they voted here.  Here are the Democrats who voted for it or did not vote:

  • Conrad – North Dakota (voted for it)
  • Corzine – New Jersey (didn’t vote)
  • Inouye – Hawaii (didn’t vote)
  • Landrieu – Lousiana (voted for it)
  • Lieberman – Connecticut (voted for it)
  • Nelson – Nebraska (voted for it)
  • Wyden – Oregon (voted for it

So we’ve got 5 Democratic senators who voted for it and 2 didn’t vote.  If they had all voted against it, it wouldn’t have passed!

As the Times article above states, it’s quite possible that the Graham amendment will be stripped out of the final version of the bill later on.  The point however is that 49 men and women decided to strip prisoners of the United States of one of the most fundamental rights under the law.

Habeas corpus is one of the backbones of English Common Law, on which the laws of the United States are based.  In fact, in one form or another, it’s been a basis of law for 700 years.

It’s so important in the United States that Wikipedia reminds us:

This procedure, part of English common law, was considered important enough to be specifically mentioned in the U.S. Constitution, which says, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (Article One, section nine).

In the entire history of the United States, including dozens of wars, rebellions, insurrections and invasions, it’s only been suspended twice, both during and immediately after the Civil War.  President Lincoln suspended it in 1861 for parts of the country to control riots.  Yet a court later overturned it in two separate actions.  The most noteworthy of these court decisions is known as Ex Parte Milligan.

In short, the Supreme Court decided that habeas corpus’ suspension was unconstitutional because civilian courts were operating normally and prisoners could seek judicial relief there.  In fact, the ruling stated that habeas should only be suspended if the normal civilian courts were closed, as in non-operational.  Military tribunals could not try civilians where civilian courts existed, even during wartime.

So how on earth could the current “War on Terror” outrank the Civil War in terms of seriousness and/or threat to the safety of the United States?  I also am reminded that all previous suspensions of habeas corpus were done by executive order from the President.  They weren’t decided by some tacky amendment snuck onto a defense spending bill where nobody would notice, but out in the open because the country was at war.

Again, the writ of habeas corpus has nothing to do with determining a person’s innocence or guilt.  It is simply a fundamental legal right to challenge why a person is being detained in the first place.  If the prisoners at Guantanamo Bay are being held legally, then any reasonable judge will hear their habeas corpus petition and rule that they are being held according to the laws of the United States.

Lindsey Graham said his amendment was “justified” because otherwise the prisoners would file a “blizzard” of legal claims.  Let’s get something straight.  First of all, the prisoners can’t file a single claim, much less a “blizzard”, because they have no access to the courts.  The claims heard so far by the courts were filed on their behalf.  Most prisoners have never seen a lawyer since that “right” has been abridged as well.

Imagine you were arrested by the police.  I shouldn’t say “arrested” since that’s a legal term where someone is held and charged with a crime.  Ok, so imagine the police handcuffed you, threw you in a police car and drove you down to the jail.  You were put in a cell.  You never get charged with a crime.  You never see a judge.  There’s never a trial.  You cannot visit a lawyer, and if you do, your conversations are recorded and non-private.  After three years, someone files a claim on your behalf to try and figure out why you’re being held without charge.  And then some uppity Senator from South Carolina introduces a piece of legislation from even allowing you to do that.  Welcome to the USA!

Actually it sounds more like fun-lovin’ countries like North Korea or Saudi Arabia, doesn’t it?  Not the United States.  Not the home of “freedom” and “liberty”.  I used to work in law enforcement and believe it or not, we were actually proud to be enforcing the laws.  We used the laws of the land to catch people who broke them and we followed the laws of the land to get convictions in an open court so they were sent to jail to serve their sentences.  That’s what I got paid for.

The America I worked for knew that there were people who committed terrible acts.  Sometimes they were just preparing to commit terrible acts, but you see that’s a crime too!  If a man threatened to kill his ex-wife and then he was found outside her house with a loaded gun, guess what?  That’s a crime!

And the United States I worked for would give these people, these human beings who committed (or were in preparation to commit) access to lawyers.  Yes it’s true!  They got confidential meetings with lawyers whose sole purpose was to try and get their client off for doing the terrible act!  And then the America I worked for handed over all the evidence against the person, just so they could prepare themselves to defend themselves!  Yes it’s true!  And then 12 completely unconnected people were brought in to hear the discussion about this evidence and the person who committed the act had every chance in the world to convince them he or she was innocent.  And then, after all this, the 12 people often convicted them of being guilty of committing (or preparing to commit) the terrible act.  Sometimes however they let them go when they realized the government didn’t have enough evidence of their guilt!

All this was done openly.  Anyone from the public could attend the trial and anyone could listen to what was said.  Anyone could review the evidence for themselves after the trial was over and look at all the pictures and evidence.  Sometimes the trial was even broadcast live on television!  And then after all that, the public knew exactly what happened and the convicted person was led away to jail to pay for their crimes according to the laws of the land.  Or if someone was declared “not guilty”, the public could review the absence of evidence against the person.  That’s the America I used to work for.

In Lindsey Graham’s America, the people who are detained are not charged with a crime.  They are kept in a secret place that nobody can visit.  They aren’t charged with a crime, not even littering!  They are interrogated for years on end, perhaps up to and including the use of torture.  They are denied private and confidential access to a lawyer.  And in Lindsey Graham’s world, these people shouldn’t even have the ability to challenge why they are being held in the first place.  And since these people never have been convicted of any crime, they may be jailed indefinitely.  Or let go.  And we the people, the ones who pay Graham’s salary, must trust that the government knows what it’s doing.

Hmmm… isn’t blind obedience to the government the very hallmark of a dictatorship?  And isn’t the right to review and oversee the actions of the government the hallmark of a democracy?  I could be wrong…

And yet Graham thinks that these people in Guantanamo Bay need to be deprived of their rights because they are terrorists.  Terrorists who seek to deprive the people of America their rights.  So we’ve got to deny the terrorists’ rights so they don’t destroy the American people’s access to their rights.  How’s that for strange logic?

I don’t care what these people in Guantanamo Bay did or were preparing to do.  No matter how bad it is, no matter how awful, then there should be a law declaring it illegal.  They should be charged with a crime and given the normal legal option of defending themselves.  Then they can be convicted in an open court of law and the people of the United States will breathe easier knowing that justice was served.

What justice is being served when people are being held for years without being charged in secret jails?  If they are criminals, convict them.  If they are innocent, let them go.  And whatever you do, let the people see every step you take so that you don’t make any mistakes (such as torturing in our name).  That’s what makes America a good place.  Secret jails and no legal rights are what make places like Saudi Arabia a hellhole.

But wait a second, aren’t these people “Enemy Combatants”?  Ok let’s say they are.  Well then treat them the same as all the other people who have ever fought the United States, from Nazis to the British in the War of 1812.  People have fought against the United States before, you know.  According to the United States, anyone captured in a war whatsoever must be considered a Prisoner of War until a tribunal determines otherwise.  And yet the people in Guantanamo Bay haven’t even been granted access to that particular judicial review.

Ok ok, but maybe you say that this War on Terror is so darn important and critical that all the laws of the land must be ignored and that the President (and his designates) know what they’re doing.  Really?  Because very obviously innocent people have been held in Guantanamo for years.  And other people have been released from Guantanamo only to commit acts of terrorism.  So how on earth is this secret policy even working, even the way its staunchest defenders say it is???

Let’s review.  Graham says a system of secret detentions and torture and denial of legal rights is critical to win a “war” on terrorism, so important that the Constitution of the United States must be abridged.  This is because the terrorists want to destroy the United States, which is based on fundamental rights enshrined in the Constitution, which have to be abridged in order to preserve them.  And this secret system doesn’t even work, as innocent people are being held and murdering terrorists released!

I don’t live in the United States anymore.  And when people ask me how the American people could tolerate a world where people like Lindsey Graham make laws, I honestly have no answer.  No answer at all…

This is crossposted from Flogging the Simian


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