Graham Gets Tough [UPDATED]

From Talk Left via my new fave, PunditDrome:

Breaking: Senator Lindsay Graham is introducing an Amendment to the defense appropriations bill pending in the Senate (S. 1092) that would strip those designated by the Administration as enemy combatants of the ability to seek habeas review in federal courts. This is an end-run around the Supreme Court's decision in U.S. v. Rasul which held Guantanamo detainees have the right to challenge the legality of their detentions.

The amendment would have retroactive application and "would effectively end all litigation brought on behalf of the detainees at Guantanamo Bay, as well as any future litigation on behalf of those imprisoned at the CIA secret detention camps." Detainees classified as enemy combatants would no longer be able to challenge either the legality or the conditions of their detention, including the adequacy of medical care.

Here is the text of the amendment in .pdf. I haven't read it as I write this (because of the mild nuisance of .pdf), but will before I finish this post.

Talk Left naturally believes that this is a bad thing, and exhorts us to call our Senators and exhort them to block it. I do not know enough to judge, and would invite my readers to (try to) educate me. (That's presuming I'm educable.)

It seems to me that Senator (and Colonel) Graham, a judge in the Air Force reserves (a dual status which is now being challenged by a defendant) and a cosponsor of the "McCain Amendment" effectively banning torture of prisoners in U.S custody, may be seeking to demonstrate that he is tough on torture (as a disgrace to our values and a danger to our own soldiers), not soft on terrorists. (Ugh, sorry, that sentence has parenthetical parasites.) Not that I think Graham would do that purely out of political calculation (impurely, sure!); as one who has lived his life at the intersection of the law and the military, he presumably knows a thing or two about the Constitutional application of habeas corpus in wartime. As with the death penalty, though, one great concern about his amendment is that it will end up being applied indiscriminately to both the guilty and the innocent -- to both the tuna and the dolphins, as it were, swept up in some military dragnet.

So now I go read the text of the amendment (fear not, it's brief), and discover that it begins by setting some protective parameters for the review of detainees' status: The procedures for determining their status "may not consider statements derived from persons that [. . .] by the preponderance of the evidence, were obtained by undue coercion," and "the Designated Civilian Official shall be [. . . appointed] by the President, by and with the advice and consent of the Senate." Naturally, Talk Left isn't going to tell you that -- that Graham has tried to build in some safeguards against the misclassification of detainees. How effective those would be, however, I have no idea.

Please weigh in, O more knowledgeable ones.

UPDATE:

Comments

[Charlie (Colorado)]

Annie, I think the thing is that we're getting caught up in a category error. The deal with "unlawful combatants" isn't that we're holding them for committing some crime, we're holding them because if we let them go they're like to start shooting at us again. Same thing with POWs --- it's not a crime to fight us, but at the same time we don't want to let them go back to fighting us.

In the Napoleanic Wars, someone could give their parole, offer their word of honor not to rejoin the fighting, and be released or even repatriated. Everyone respected that. I don't think we can trust these guys that much, ergo we hold them. The Geneva Conventions as recently as WWII had a very simple solution for this: if you caught an "unlawful combatant" --- Resistance, or whatever --- you shot'em.

It's this very confusion that underlies a lot of the discussion: all the worries about due process for detainees, lawyers, and so on, are all tied up in the confusion between "imprisoned for committing an offense" and "held away from the fighting because we don't like to just shoot them."

[amba]

Thank you, that's a most useful distinction -- although it still requires a good-faith effort to determine who is an enemy combatant and who is not.

[Gwen]

Sec. 1071(a) states: "The Secretary of Defense shall establish the policy of the Department of Defense on the role of military medical and behavioral science personnel in the interrogation of persons detained by the Armed Forces. The policy shall apply uniformly throughout the Armed Forces." Graham's bill then has the Secretary of Defense report on how the status of detainees will be decided, and then places all those labelled enemy combatants as beyond the jurisdiction of any court, justice, or judge. I'm not up to locating "subtitle G of title X" (what the hell is that?) at this time of night, but hopefully it provides some requirements for the referenced tribunal and administrative review boards. However, I don't hold much faith that the requirements for either would satisfy the need for impartial oversight of the status determinations. I appreciate Charlie's distinction - couldn't they deal with this issue with a bill that stated such, that those determined to be enemy combatants would be held for those reasons until such time as [whatever]. But, no court, no judge, no justice anywhere ever...too draconic and too much room for abuse. I'm afraid this reads too much like "we will never have to answer publically for what we do in Gitmo."

[Charlie (Colorado)]

Gwen, what crime or offense is the court going to adjudicate? That's the whole point: being as objective as possible, a combatant in opposition to the US isn't committing a crime. (Well, actually, being an active combatant without wearing a distinguishing uniform, and hiding in the population, is a war crime, but that's a separate issue.) We certainly don't think of US soldiers as committing crimes by the fact of being in combat.

But one of the people involved in this dispute was UBL's driver. If we'd have caught General Rommel and his driver, we would have held the driver; he wouldn't have committed a crime, and there'd be nothing to try him for --- but we'd want to know what he knew, and we wouldn't want him to be able to go back.

The "no court, no judge" point isn't really correct: both the UCMJ and the Geneva Conventions require each person held to be judged by a tribunal for status. This bill just takes it out of civilian courts.

As for never answering for Gitmo, well, it's an awfully public secret don't you think?

[Gwen]

But Charlie, this bill isn't about the courts adjudicating crimes or offenses on the part of the enemy combatant - it's about the person so designated having no recourse to legal remedies no matter what.

I understand what the bill is trying to accomplish, but I think it's written too broadly and thus has more potential for harm than good.

[Charlie (Colorado)]

Um, Gwen, it doesn't appear to say that. What it says is that they don't have recourse to the civilian courts. It's limiting jurisdiction to the military tribunals --- which is where the jurisdiction lies under the Geneva Conventions as I understand it. Unless you're arguing that courts under the UCMJ aren't really "courts", which I think would surprise a bunch of people.

[Tom Strong]

I'm a small-c conservative when it comes to habeas corpus; I tend to regard any attempt to suspend it with automatic hostility. That said, Graham's right that these cases shouldn't be allowed to descend into an endless series of suits and counter-suits.

The problem, however, is not habeas corpus, but the Bush Administration's insistence on keeping these guys from getting any trial, even a military tribunal. This indefinite incarceration bullshit is utterly unlawful, and is a slow-fuse threat to the republic.

I think Blair had the right idea - 90 days should be enough. If you can't try 'em after 90 days, let them go.

Finally - just to vent - the notion that the president should have wartime powers when we're not actually at war with anybody is borderline fascist. We won the wars with Iraq and Afghanistan, and the "war on terror" is bullshit. A democracy in the midst of a "forever war" is no democracy at all.

[Tom Strong]

Some able criticisms of the Graham amendment here and here.

[karen]

Tom, if the fighting is still going on... well, isn't that a war, or do you prefer conflict? I think as long as we are there and the job of rebuilding is still happening and we are defending and being blown up and shot at- that's war. When is a war less than? When we give power over to the Iraqis? When we leave?

[Charlie (Colorado)]

The problem, however, is not habeas corpus, but the Bush Administration's insistence on keeping these guys from getting any trial, even a military tribunal. This indefinite incarceration bullshit is utterly unlawful, and is a slow-fuse threat to the republic.

Tom, the problem is you're wrong on the facts and wrong on the law. Wrong on the law, because indefinite internment of combatants is perfectly lawful, both under US law and under the Geneva Conventions, and for good reason: if it weren't possible to intern prisoners, we'd have to kill them. Habeas corpus, as I understand it, doesn't come in: they not accused of a crime, they're being removed from the field of battle and kept away, for the good of everyone involved. (That's why, for example, POWs are supposed to receive their pay from their captors, although an unlawful combatant isn't entitled to pay.)

In fact --- this just occurred to me while I was slicing turkey for a sandwich, I'm not sure what THAT means --- it may well be a war crime under the Geneva Conventions if we did try these people under our criminal law. At least, it seems to me that some of the German war criminals were tried specifically for treating US POWs are criminals, and I'm pretty certain that when the North Koreans threatened to try the crew of the USS Pueblo as "common criminals" it was denounced as a war crime.

It all comes from the same reasoning: being a member of a military on the other side isn't considered to be criminal. If it were, then every time a soldier fired a weapon and someone died, all the other soldiers would be committing felonious murder.

You're also wrong as to the facts: they are being tried by military tribunals. The military tribunals are what occasionally release people from Gitmo.

The notion that we're not at war --- not in a formally declared state of hostilities --- is just delusional.

[Tom Strong]

Charlie,

What, you want me to defend my rant with a well-supported logical argument? What kind of blog is this, anyway?

Well, I'll do what I can. From last to first:

The notion that we're not at war --- not in a formally declared state of hostilities --- is just delusional.

As your parenthetical remark hints, we are not at war. Congress has not declared war since 1942. It authorized the use of force, in Afghanistan and Iraq, but that is not the same thing.

Are we in a "formally declared state of hostilities"? Sure. But that's not the same as being at war and it never has been. I don't make this argument merely to be a smartass. There is a constitutional difference between Congress signing a formal declaration of war, versus authorizing the President to take military action.

This is a check on the President's ability to assume wartime powers on such things as, say, the ability to hold enemy combatants indefinitely. Yes, both Lincoln and FDR exercised this power - but both also had a clear declaration of war behind them, something Bush does not.

It should be said, too, that the struggle we're in is incredibly ill-defined. When the Constitution and the Geneva Conventions were written, "war" meant something very specific - a state of hostilities declared by one nation-state upon another, which ends with the surrender of either side. The current "War on Terror" cannot match that definition. In fact, it is unbound by definition - the terrorists cannot surrender because they are not a nation-state. If one group surrenders, another can easily rise in its place. And we can't annihilate them all, because all it takes to be a terrorist is a will to harm others for political gain.

This "war" also has no bounds on what constitutes a "battlefield." How does a Bosnian prison count as a battlefield? Unless the prisoners are in the midst of an armed riot, it can only be a battlefield if that term is reduced to meaninglessness.

So we have a "war" that has no defined ending, no criteria for winning or losing, and no limitation on the battlefields. In the midst of all that, you argue

indefinite internment of combatants is perfectly lawful, both under US law and under the Geneva Conventions, and for good reason: if it weren't possible to intern prisoners, we'd have to kill them.

Indefinite detention is perfectly lawful, assuming a state of war has been declared. The entire Geneva Conventions relies on this as basis. The authors of the Geneva Conventions assumed this because up to that point, that's what "war" meant. Without a declared war with a defined ending, indefinite detention comes to mean infinite detention. Which, if the president gets his way, is without judicial review.

Furthermore, no one's saying that it isn't OK to intern prisoners - just that it isn't OK to intern them without judicial review. That's what habeas corpus means - "showing the body." It requires that evidence be presented to a judge that is sufficient to warrant further detention - not necessarily a conviction. But the Graham amendment - which after more reading, I am all the more opposed to - circumvents habeas corpus by denying prisoners the right to file for habeas corpus review under most circumstances. If I understand it properly, it removes judicial review and replaces it with congressional review - which given the mass of work constantly before Congress, effectively means no review.

As for your "battlefield" comment, see above. There have also been way too many instances of men placed in Guantanamo or other locations who were not fighting, not on any battlefield per se, and have even been found innocent yet languish in prison. The military doesn't think Adel is about to return to the battlefield, so by your math, what is he doing still in prison?

Finally, Charlie - yes, you're right. Out of frustration and laziness, I did exaggerate about the military tribunals. They are happening. Although there is certainlyreason to be concerned about them.

[Tom Strong]

Just to clarify a few things -

My support for the Blair position is based on the definition of habeas corpus review. In other words, I do think it is lawful to detain a suspect past 90 days - but there must be judicial review of the evidence for doing so by that time.

Also, I'll admit to ignorance with regard to the War Powers Act of 1973, which currently empowers the actions in Iraq and Afghanistan. It may empower the President to take on the wartime power of enemy detention - but I don't know that it does. I may look it up later, when I have some more time.

Karen, this may be clear from my comment to Charlie, but I'm not really talking about the current Iraq conflict, over which I am reluctant to take a strong position. I wouldn't call it a "war" - war was not declared on Iraq, and in any case we've toppled the government that was opposed to us. In that sense, we've already won it, and the war is over. But I'm mostly concerned about executive overreach, and the Graham amendment's role in ennabling that.