t r u t h o u t – Marjorie Cohn: Graham Amendment Invokes Constitutional Crisis
The “accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
–James Madison, Federalist Paper No. 47In blatant defiance of the Constitution’s guarantees of Habeas Corpus and separation of powers, the Senate on Thursday approved the Graham Amendment to the Department of Defense Authorization Act by a vote of 49 to 42. Five Democrats joined all but 4 Republican Senators in giving the President unfettered power to hold prisoners at Guantánamo Bay, Cuba, for the rest of their lives, with no criminal charges, and no right to challenge their confinement by Habeas Corpus.
Last year, the Supreme Court held in Rasul v. Bush that the Guantánamo detainees are entitled to file habeas petitions in US courts to contest their detentions. The high court determined that non-US citizens held at Guantánamo, “no less than American citizens, are entitled to invoke the federal courts’ authority” to hear their petitions under 28 USC § 2241, the US Habeas Corpus statute.
The Supreme Court stated firmly in Rasul, “Consistent with the historic purpose of the writ, this Court has recognized the federal courts’ power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace.”
The Graham Amendment is crafted to render Rasul a nullity by cutting off the rights of Guantánamo prisoners to have their habeas petitions considered by the federal courts. The Amendment limits federal court review to the narrow issue of the validity of decisions rendered by Combatant Status Review Tribunals. These kangaroo courts were set up to determine whether the Guantánamo prisoners are “enemy combatants.” They are not independent judicial tribunals, but rather administrative proceedings stacked with military officials who can use secret or even fabricated evidence. The prisoner is not entitled to be represented by an attorney.
Habeas Corpus, known as The Great Writ, is the final bastion of liberty for those unjustly held. The last time this country suspended Habeas Corpus was for the internment of tens of thousands of Japanese-Americans during World War II. That travesty is now universally recognized as a shameful chapter in our nation’s history. To suspend The Great Writ once again, while allegations of systematic torture continue to emerge from US prisons, will threaten our Constitution and render “quaint” our democracy.
The Democrats who voted in favor of the Graham Amendment were Joseph Lieberman (Conn.), Kent Conrad (N.D.), Ben Nelson (Neb), Mary L. Landrieu (La), and Ron Wyden (Or).
These are not Democrats, they are Republicans playing Democrats. These people need to GO – if you live in these states, vote them OUT. Especially Lieberman – he’s been a thorn in the Democratic side long enough.
No Responses