There’s a lot of confusion circulating about the so-called Graham amendment, and the Bingaman amendment currently set against it. The Graham amendment would strip prisoners at Gitmo of their right to file habeas corpus petitions in federal courts. As always, Obsidian Wings is a great source of information.
The thing to realize about this is that it’s an amendment which exists for the purpose of evading the McCain amendment. Graham essentially says “Sure, you can’t be tortured, but you also can’t complain when you are.”
The defense of this amendment amounts to “only criminals need to worry.” If the only people at Gitmo were honest-to-God combatants, then we have a broader debate about what to do with them now. (Answer: turn them over to some sort of Afghan war crimes tribunal/truth and reconciliation commission.)
But we know that there are people in Gitmo who were just swept up in raids and shipped off. Consider these 15 Chinese prisoners who were determined to be non-combatants or low-risk detainees, but are still sitting in Cuba. Or look at Adel, who used a habeas corpus petition to find out that the Combatant Status Review Tribunal decided he wasn’t a terrorist, combatant or a threat. Assuming that the Combatant Status Review Tribunals are fair and conducted appropriately, and that prisoners are actually getting released, some time in the next few decades, we’ll winnow the prisoners down to the hardest core. Meanwhile, honest, hardworking people are in a legal no man’s land.
We have a system of appellate courts because we don’t trust these assumptions about secret tribunals. We have a Constitutional requirement of a speedy trial because letting someone sit in jail forever without charging them is something only authoritarian states do. And only authoritarian states create these sorts of unreviewable secret courts and then say that you only have to worry if you’re a criminal. Everyone is innocent until proven guilty. When I say that, I’m not saying it because the Constitution says so, the Constitution and I agree on this point because it’s the only fair system.
The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial…“Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
Stripping these prisoners of their access to courts is unfair and unAmerican. The courts have shown great deference to the executive, and they have plenty of leeway to dump cases that seem bogus. But there are serious cases (an American citizen captured fighting in Afghanistan, a non-combatant civilian accidentally swept up in the heat of a guerrilla war, etc.) that really do deserve a full and public hearing.
The courts aren’t there for guilty people. If everyone accused of a crime were really guilty, we’d have the death penalty for any heinous crime. The courts are there to protect the innocent from the state, and the Constitution is there to protect human rights, not just the rights of some particular people.
(Yes, I know the habeas corpus petitions being eliminated are statutory rights to habeas, not constitutional rights, but that’s a thin line in Gitmo and for non-citizens.)