Goodbye Habeas Corpus

11 November 2005

The US Senate has just approved the Graham amendment, a last minute attachment to the Military Authorisation Bill, which would deprive the prisoners in Guantanamo of access to the US courts and leave them entirely at the mercy of administrative whim or military kangaroo courts. Many of the prisoners in Guantanamo have already been incarcerated for up to four years without trial; some have been physically abused, others are on hunger strike and suicide attempts are common. Despite their being labelled evil men by the Bush adminsitration, only a tiny handful out of hundreds of detainees who have passed through Guantanamo has been charged and, even in these few cases, the charges  are thin.  Justice is long overdue for these prisoners. Guantanamo is a long assault on the rule of law and it affects us all.  This weekend, concerned lawyers are working to see if this amendment may yet be overturned. Below, a statement from the Centre for Constitutional Rights in New York lays out what is at stake.


Bush’s New Assault on Democracy: Habeas Corpus Stabbed in the Back

The Bush Administration, through an amendment introduced by South Carolina Senator Lindsey Graham, has just successfully stripped federal courts of jurisdiction to hear applications for habeas corpus brought by those unilaterally declared enemy combatants without any process and held by the U.S. indefinitely throughout the world and even in the United States.  This was accomplished by means of a last minute amendment to the Military Authorization Bill, brought up on the floor of the Senate without committee deliberations and virtually no advance warning to the American people that it was happening.

It was not only human rights groups like the Center for Constitutional Rights, but many in the military or retired from the military who opposed the Graham amendment:  Judge John Gibbons, who argued the landmark CCR case Rasul v. Bush before the Supreme Court, John Hutson, Dean of Franklin Pierce Law Center and former Judge Advocate General of the U.S. Navy, and the National Institute for Military Justice, among others, wrote open letters to the Senate to oppose the dismantling of habeas corpus.

The Graham amendment will create a thousand points of darkness across the globe where the

United States

will be free to hold people indefinitely without a hearing and beyond the reach of


law and the checks and balances of the courts enshrined in our Constitution. The last time this country suspended habeas corpus was for the internment of tens of thousands of Japanese Americans during World War II, a travesty that is now universally recognized as a blot on our nation’s history. The purpose of the writ of habeas corpus has always been to relieve those wrongfully held from the oppression of unchecked executive power.  The most reliable way to determine whether someone is properly held or a victim of injustice is to have a right to judicial review of the detention.  This has been understood at least since the proclamation of the Magna Carta in 1215. 

While the Administration and its supporters have tried to characterize the men being held at Guantánamo as the worst of the worst against all evidence, the fact is that even the military has admitted that they often apprehended the wrong people.  Most have no ties to Al Qaida, many were turned over to the


for bounty, and many more were just in the wrong place at the wrong time.  If they have no way to appeal their innocence or their status, they will be left to rot in detention indefinitely.

Senator Graham's jurisdiction-stripping efforts come as allegations of secret CIA detention facilities around the world dominate headlines; the Bush Administration has consistently sought to put itself above the law and evade oversight and accountability for torture and other abuse.  It is no secret that arbitrary indefinite detention and widespread prisoner mistreatment have taken and continue to take place at Guantánamo and other U.S.-run facilities.  The Graham Amendment will only serve to reinforce the growing perception in the world that the

United States

has become an enemy of human rights. 

As has been the practice of this Administration, this latest scheme was accomplished stealthily and in secret.  The Center for Constitutional Rights vows to continue to fight for the rule of law.  We will not allow American democracy to be eroded a little at a time, until, finally looking around, we can longer recognize what has become of this democratic nation.

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