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Bushwhacking the Constitution
U.S. Senate proves as disdainful of the Constitution as George W.
Bush. Be forewarned.
By Nat Hentoff
11/28/05 "Village
Voice" -- -- 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
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