The Framers' concerns are borne out by recent events. The abuses documented at Guantánamo and the Abu Ghraib prison, and other U.S. facilities around the world, are reminders of what can happen when Madison's advice is cast aside. Further, were the Amendment enacted, it would undermine the ability to enforce in federal court the pending McCain Amendment. That Amendment, approved by the Senate 90-9, makes it unlawful for any "individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location [to be] subject to cruel, inhuman, or degrading treatment or punishment." The Graham Amendment departs from our commitment to checks-and-balances.

While these law professors quote James Madison, British journalist Andres Sullivan referrs to Winston Churchill's similarly strong words during World War II: 

The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist. 

Robert Novak, however, writes in the Conservative Voice:

"Never in the history of the law of armed conflict," Republican Sen. Lindsey Graham told the Senate Monday, "has a military prisoner, an enemy combatant, been granted access to any court system, federal or otherwise, to have a federal judge come in and start running the prison." Graham's proposal for the third time in American history would suspend habeas corpus, following Abraham Lincoln and Franklin D. Roosevelt. 

 
Slate senior editor Emily Bazelon quotes Senator Graham as saying "It is about military law. I am not changing anything. I am getting us back to what we have done for 200 years." and contends that he is breaking 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:"

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.

Hat tip to Obsidian Wings.
 

TalkLeft links to seventeen myths and distortions about the Graham amendment, collected and countered by The Center for Constitutional Rights.

More information about the recent Graham amendment in German: die tageszeitung

NOVEMBER 15TH, 2005: COMPROMISE

Less than a week after passing the Graham amendment, the Senate voted 84-14 for the revised Graham amendment, now known as the Graham/Levin amendment, to restrict court review of the U.S. military's dealings with detainees. According to the Associated Press:

Under the agreement, detainees who receive a punishment of 10 years in prison to death would receive an automatic appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Lesser sentences would not receive automatic review, but detainees still could petition the court to hear their cases.
In addition, the 500 or so detainees at the U.S. naval base in Cuba would be allowed to challenge in federal court the procedure under which they were labeled "enemy combatants."
The compromise proposal allows the federal court reviews in place of the one tool the Supreme Court gave detainees in 2004 to fight the legality of their detentions - the right to file habeas corpus petitions in federal courts.
"Instead of unlimited lawsuits, the courts now will be looking at whether you're properly determined to be an enemy combatant and, if you're tried, whether or not your conviction followed the military commission procedures in place,'' Sen. Lindsey Graham, R-S.C., said in an interview. He said courts also will determine the constitutionality of the Bush administration's processes for prosecuting terror suspects and determining whether they should continue to be detained.

 THE DEBATE ON TORTURE AND LIBERALL VALUES IN THE WAR ON TERRORISM

The amendments concerning the Guantanamo prisoners' right to challenge their detention in federal court are seen as attempts to "soften the administration's ardent opposition to McCain's anti-torture provision," writes the Washington Post.

However, Republican Senator Chuck Hagel said:  

Terrorism is a real threat and a present danger that we must confront and defeat. But we must not sacrifice the strengths and ideals of America that the world has come to respect and trust, and that define us. That is why I co-sponsored Senator McCain’s amendment to prohibit cruel, inhuman or degrading punishment or treatment of any detainee under the custody of any branch of the U.S. Government. I strongly oppose any exception to this prohibition. 

Republican Senator John McCain defended his amendment by saying "It's not about who they are. It's about who we are." This is not about sympathy with the Guantanamo detainees.

When the US violates its own values, it can't lead the free world. Guantanamo has unfortunately defined the US image to a large extent, alienated many long-time allies, and helped the terrorists to recruit new followers. Republican Senator Mel Martinez did a cost-benefit analysis of Guantanamo in June and suggests that the Bush administration should consider closing Guantanamo:  

It's become an icon for bad stories and at some point you wonder the cost-benefit ratio. How much do you get out of having that facility there? Is it serving all the purposes you thought it would serve when initially you began it, or can this be done some other way a little better?"