Senate Demerit

Lindsey Graham gets the law of detention wrong.

Last Thursday, the Senate voted to strip the foreign detainees being held at Guantanamo Bay of their right to go to federal court. Sen. Lindsey Graham, R-S.C., slapped on the provision as a last-minute amendment to a major defense bill. With Democrats who normally take the lead in this area caught flat-footed or out of the building, Graham spoke in support of the amendment virtually unchallenged. What he said may well have influenced moderate Republicans and the five Democrats who voted for his provision. But some of his statements were significantly, incontrovertibly wrong.

“Here is the one thing I can tell you for sure as a military lawyer,” Graham said, as quoted in the Congressional Record. “A POW or an enemy combatant facing law of armed conflict charges has not been given the right of habeas corpus for 200 years because our own people in our own military facing court-martials, who could be sentenced to death, do not have the right of habeas corpus. It is about military law. I am not changing anything. I am getting us back to what we have done for 200 years.”

Yet in reality, it’s Graham’s provision that breaks with the law of the last two centuries. The Supreme Court has heard and granted habeas corpus petitions brought by enemy combatants challenging their detentions since the Civil War. The cases from that era include Ex Parte Milligan—the basis for the charges faced by Salim Ahmed Hamdan, the Guantanamo detainee whose case the Supreme Court finally agreed to hear last week. Lambdin Milligan was charged with conspiring with the Southern resistance based on allegations that he’d helped to arm the enemy and break prisoners out of jail. He was tried before a military commission and sentenced to hang. When his appeal reached the Supreme Court in 1866—after President Andrew Johnson commuted Milligan’s death sentence—the justices unanimously ordered him to be released from military custody. Milligan wasn’t just allowed to go to federal court. He won there.

In 1942, eight Nazi saboteurs were captured in the United States along with evidence that they planned to blow up bridges and tunnels in major cities. Bush administration lawyers have argued that the saboteurs’ case, Ex Parte Quirin, supports the power of the president to set up military commissions to try the Guantanamo detainees. The court’s opinion in Quirin did recognize military commissions for the trial of “offenses against the law of war not ordinarily tried by courts martial.” But the court said that President Franklin Roosevelt’s decision to establish a commission could not bar “consideration by the courts” of the saboteurs’ contention that the Constitution forbade their trial. In 2004, the Rehnquist Court followed up on this lead, making way for the Guantanamo detainees to bring the habeas petitions they have since filed. The scope of the detainees’ right to basic procedural protections isn’t clear yet. That’s what Hamdan’s case, and the cases of the other detainees now moving through the courts, would presumably illuminate. Except that those cases will be blocked if Graham’s provision goes into effect.

Graham was also wrong to say that American troops, facing courts-martial, do not have the right to petition in federal court either. Service members convicted by a military court-martial, and whose liberty is restricted as a result, can seek a writ of habeas corpus in federal district court. They have been able to do so at least since the 1890 Supreme Court decision In re Grimley. Sometimes they have won. Despite Graham’s claim to the contrary, service members who are sentenced to death have the same habeas rights as everyone else. Indeed, the last person to be executed following a court-martial brought a habeas petition in federal court in Kansas and then before a federal appeals court. He lost, but there is no dispute that he had the right to have his claims heard.

Lindsey Graham must know all this: As he noted, he worked as a military lawyer when he served as an Air Force Reserve officer in the Judge Advocate General Corps. But other senators aren’t so clued in—which is why Graham’s distortions matter. To explain his vote in support of Graham’s provision, Kent Conrad, the North Dakota Democrat, said, ”I don’t think giving enemy combatants access to the federal court system is a precedent we want to set.” But the only precedent-setting going on is the Senate’s decision to take away the rights of hundreds of detainees who have already filed habeas petitions—all but nine of whom are still being held without charges, many for nearly four years. Tomorrow, the Senate will vote on a proposal by Sen. Jeff Bingaman, D-N.M., to strike the worst parts of Graham’s amendment. Let’s hope Graham has some competition on the Senate floor this time.