LINDSEY GRAHAM has been a favorite senator among those who
criticize the Bush administration’s handling of the war on terror.
They have admired the political risks he has taken, as a member of
the president’s party, to challenge our terrible performance on
prisoner detention and interrogation in this war.
He’s not their favorite this month.
Sen. Graham has led the Senate to pass an amendment that
restricts the legal appeals of detainees at Guantanamo Bay, Cuba.
These appeals existed because the U.S. Supreme Court had, rejecting
the Bush administration’s maneuvers, decided that there was no legal
way to reject the cases.
Last week, the Senate passed 49-42 a set of rules on
interrogations that Sen. Graham sponsored. After talking with his
colleagues, especially Sen. Carl Levin, D-Mich., he submitted a
revised measure that passed 84-14. The senator points to that vote
margin when he says that he expects that civil libertarians will
think better of it after digesting it.
Why are critics unhappy? The measure ends the broad right of
foreign noncombatants held at Guantanamo (it does not affect U.S.
citizens) to bring habeas corpus suits in federal courts; they
cannot ask the Supreme Court to determine whether they are lawfully
held by the U.S. government. For civil rights attorneys, habeas
corpus is crucial.
The measure, an amendment to the main defense policy bill,
would:
• Give foreigners convicted by a
military panel as enemy combatants an appeal only to the U.S.
District Court in the District of Columbia. Those appeals would be
limited to the grounds that the military ruling was inappropriately
reached, not the conditions of detention.
• Call, at Sen. Levin’s
suggestion, for the federal court to review sentences greater than
10 years’ imprisonment, including the death penalty.
• Amend the rules of the military
trials, including an exclusion of evidence extracted elsewhere under
torture.
Sen. Graham and others intend to attach this measure in
conference to the amendment pushed by Sens. Graham and John McCain,
which affirms the Army Field Manual as the standard for detainee
detention. That’s a measure that the administration would love to
block; Sen. Graham thinks that his amendment, with the promise of
curtailing legal appeals by detainees (174 filed at last count),
would be an inducement to the White House to buy the lot. “I think
the whole package needs to be enacted.”
Well, that will be the trick. The administration is pushing House
negotiators to prune that McCain-backed amendment out before it even
gets to the president’s desk. They have even threatened to veto, a
tool that President Bush never has used.
Sen. Graham sees the package as restoring congressional oversight
of the legal aspects of the war on terror. He notes candidly that
“Congress has been AWOL” since 9/11 in its constitutional duty to
spell out how the government would handle those detained — something
that sorely needs doing for a global conflict in which the
traditional definitions of such things as prisoners of war and
hostile forces fall short.
Once the package becomes law, the senator says, “We’re back on
track now in dealing with these terrorists.”
Are we?
I wish I could share the senator’s confidence that passing the
bill would put America’s prisoner policies back in line with the
values we accept as Americans. But that would ignore a lot of what
has gotten the country into this position.
I agree with one of Sen. Graham’s core contentions: Noncitizens
detained at Guantanamo do not have to have habeas corpus access to
U.S. civil courts to be treated properly. The military tribunal
system, if done right, can deliver justice. It’s the right forum to
deal with these cases. The limited legal recourse set up with Sen.
Levin’s suggestions provides an appropriate venue for appeals of the
military rulings.
But even that, along with the amendment upholding the Army Field
Manual on detention, only changes the legal framework. The problem
started at the top, with Donald Rumsfeld and his civilian
colleagues. Amazingly given his performance, he is still our defense
secretary. Those he prodded to take off the gloves on our detention
policy — first at Guantanamo, then elsewhere — are mostly still at
their posts.
Congress has not dared to clean up that mess, or to force the
president to do so. Will congressional interest in overseeing our
policy last past the midterm elections that worry Republicans
so?
The habeas corpus filings have told America a lot about what has
been done at Guantanamo in its name; without a house-cleaning, we
should hesitate to close that courtroom door.
I hope a strong bill gets to the president’s desk; rather than
use his veto to protect a shameful detention record, he would sign
it. But without new leadership at the Pentagon and continued
congressional attention, that legislation alone isn’t a big enough
mop for this mess.
Write to Mr. Fitts at mfitts@thestate.com.
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