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The struggle for the rule of law: Guantanamo and torture

Torture and indefinite detention without trial at Guantanamo have been hot topics in Washington in recent weeks. Senator McCain wants to categorically ban torture, while Vice President Cheney wants to give the CIA the right to torture.  The Senate is looking for a compromise, writes the Washington Post:

By linking a provision to deny prisoners the right to challenge their detention in federal court with language restricting interrogation methods, senators hope to soften the administration's ardent opposition to McCain's anti-torture provision -- or possibly win its support.

Following is a list of the many different decisions made by the Supreme Court, federal courts and the Senate concerning the application of the law to terrorist suspects as well as appeals by three Republican Senators for defending liberal values in the war on terrorism and suggesting that Guantanamo should be closed based on a the cost-benefit analysis.


The struggle for the rule of law intensified, when the Supreme Court ruled that the government may hold terrorist suspects in Guantanamo without trial, but there must be judicial oversight, i.e. all detainees have the right to challenge their detention in a U.S. court on the basis of habeas corpus (wrongful imprisonment). Consequently the lawyers of many Guantanamo detainees went to the federal courts to appeal the decisions of the military tribunals.

The federal courts ruled in favor of many detainees, like Murat Kurnaz. The administration then went to the Court of Appeals.



The Senate did not want to wait for the ruling of the Court of Appeals and voted 49 to 42 for the Graham Amendment that would undermine the habeas corpus principle and the previous Supreme Court ruling concerning judicial oversight. 350 law professors oppose the amendment and argue

This Amendment, as currently drafted, seeks to eliminate existing habeas corpus jurisdiction over petitions now pending as well as those to be filed by detainees at Guantánamo Bay. We write because we believe this course of action unwise and contrary to the most fundamental precepts of American constitutional traditions. (…)

The Graham Amendment would dramatically erode our core constitutional commitment to separation of powers. The Amendment consigns the protection of fundamental human liberties to unilateral executive determination under which the Executive chooses the prisoners, chooses the charges, chooses the judges, chooses the punishment – and cuts off judicial review of its determinations. We should not forget the Framers' insight, expressed so eloquently by James Madison in the 47th Federalist Paper, that the "accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny."

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

More info and commentary in English at Beautiful HorizonsBalkin, DeepBlade, SCOTUS blog, Simply Appalling.



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 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?" 


Atlantic Review on : The Guantanamo detainee from Germany

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One of the more than 500 detainees at Guantanamo is the 23 years old Murat Kurnaz, who was born and raised in Bremen in northern Germany. He travelled to Pakistan in October 2001, was arrested shortly afterwards and detained at Guantanamo Bay since at lea

Atlantic Review on : Welcome to all new readers

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Welcome to all Instapundit readers, who came to this site due to Prof. Reynolds' highlighting of the German-American Carnival, which the Atlantic Review organizes with GM's Corner. A big welcome also to all readers of GM's Corner, David's Medienkritik, Ex

Atlantic Review on : German Chancellor calls for closure of Guantanamo

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Chancellor Merkel, who is scheduled to meet President Bush on Friday in Washington DC, told Der Spiegel (In English): "An institution like Guantanamo can and should not exist in the longer term." She would discuss the issue with President Bush,

Atlantic Review on : The Burden of Guantanamo

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Apparently Guantanamo is an image problem for everybody who is considered close to the Bush administration. As soon as the news about the suicide of three prisoners at Guantanamo spread, the German government stated that it assumes it will be briefed by t


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Gregory Kelly on :

Sen. McCain former POW in Vietnam is correct. One if we treat prisoners or "enemy combatants" according to the rule of law we can then expect our prisoners to be treated the same and if they are not then we hold the moral high ground in prosecution of crimes. Having worked for/with national governments when these sort of topics arise I am always reminded of a quote by C.S. Lewis: I live in the Managerial Age, in a world of "Admin." The greatest evil is not now done in those sordid "dens of crime" that Dickens loved to paint. It is not done even in concentration camps and labour camps. In those we see its final result. But it is conceived and ordered (moved, seconded, carried, and minuted) in clean, carpeted, warmed and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voices. Hence, naturally enough, my symbol for Hell is something like the bureaucracy of a police state or the office of a thoroughly nasty business concern. -BUREAUCRACY The Screwtape Letters Preface, para. 17, p. x.

Thomas on :

I agree. Timothy Garton Ash, a UK prof of history, wrote: "There may be a lesson here from the past century. That American writer's two-word summary – 'freedom won' - was actually not far wrong. It wasn't any of the CIA's covert assassinations or dirty tricks that won the cold war. It was the magnetic example of free, prosperous and law-abiding societies. That was worth a thousand nuclear bombs or stealth bombers. No weapon known to man is more powerful than liberty in law.",3604,1644028,00.html

Wong Online PoKér Hu on :

I don't agree with using torture as a way of interrogating people. some would endlessly reason out that in order to extract information, this method should be used. I completely disagree with this since yit's inhumane.

steve on :

The precedent of allowing enemy combatants captured on foreign soil access to the US court system is dangerous in the extreme. There are two possiblities: a) Uniformed enemy soldiers of a conventional variety will be covered by this policy. Then enemy governments will be able to paralyze the US in times of war by having every POW file legal actions disputing his confinement. The merits will not matter; the simple procedural burden will damage the US capacity to wage effective war, which, against a powerful foe, could result in defeat. b) Uniformed enemy soldiers of a conventional variety will NOT be covered by this policy. Then we will be creating a strong incentive for our enemies to get out of uniform, ignore the Geneva Conventions' prohibitions against hiding amongst civilians, etc. This is especially perverse, because the whole point of the Conventions is to encourage nations to fight wars using uniformed troops and to leave civilians out of the fighting. Under this policy, we would be undermining the Geneva Conventions and encouraging the spread of terrorism. Soft-headed moralism of this kind rarely works when applied to issues of the conduct of war.

Martin Hermann on :

Rumsfeld and Pace press conference: General Pace: "It is absolutely the responsibility of every U.S. service member, if they see inhumane treatment being conducted, to intervene to stop it," Rumsfeld: "But I don't think you mean they have an obligation to physically stop it; it's to report it." General Pace: "If they are physically present when inhumane treatment is taking place, sir, they have an obligation to try to stop it ." Thank you General-for demonstrating how a true military man should behave in a time of war while once again exposing Rumsfeld as the buffoon that he is.

joe on :

Would any of you please like to define torture as you are currently using it? Thanks in advance.

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