Prisoners of the Senate

Por Anthony Lewis, a former Times columnist (THE NEW YORK TIMES, 15/11/05):

After the Northern victory in the Civil War, laws passed by Congress during the era of Reconstruction imposed military governments on the former Confederate states. A Mississippi editor, William H. McCardle, was arrested by the military and charged with publishing incendiary and libelous articles. He was held for trial before a military commission. But he went to a federal court and sought his release on a writ of habeas corpus, arguing that military rule of civilians was unconstitutional.

When McCardle lost in the trial court, he appealed to the Supreme Court, as the statute allowed. The Supreme Court agreed to decide the case and heard argument on it. Critics of the Reconstruction system thought, on the basis of recent decisions, that the court was about to return the South to civilian government.

But before the Supreme Court could hand down its decision, the Radical Republicans who controlled Congress repealed the law that allowed McCardle to bring forward his habeas corpus appeal. The justices then held that they had no power to decide the case. They dismissed the appeal. Military rule of the Southern states continued.

Ex Parte McCardle, as the case is called, was decided in 1869. Ever since, most legal scholars have regarded it as a terrible blot on the constitutional history of this country: a decision that Congress could thwart a test of an imprisonment's lawfulness even after the Supreme Court had taken the case.

The ghost of the McCardle case was brought to life last week when the Senate, by a vote of 49 to 42, approved an amendment to cut off habeas corpus petitions by detainees at the Guantánamo Bay, Cuba, prison camp. The amendment, sponsored by Senator Lindsey Graham, Republican of South Carolina, would nullify a June 2004 Supreme Court decision that, because the Guantánamo base was under American control, the prisoners there could challenge their detentions in federal courts.

The Graham amendment echoes the McCardle case closely. It threatens to cut off the Supreme Court's jurisdiction in a case that the court had just agreed to review. The issue in that case is the lawfulness of trials by military commission for certain Guantánamo prisoners whom the Bush administration has decided to prosecute.

That Senator Graham pressed to end what is often the Guantánamo prisoner's only chance for an unbiased look at his claims of innocence was something of a surprise. He has been a staunch supporter of the effort by Senator John McCain, Republican of Arizona, to forbid cruel, inhuman and degrading treatment of detainees in American custody.

The McCain proposal passed the Senate by a vote of 90 to 9. But the Graham amendment would make its enforcement difficult if it became law. Without habeas corpus, there would be no meaningful forum to deal with mistreatment.

Senator Graham explained that he wanted simply to "return to the basics of the law of armed conflict where we are dealing with enemy combatants, not common criminals." But the very issue in the case of at least some Guantánamo prisoners is whether they are in fact enemy combatants or, as they claim, were wrongly swept into prison.

Under the Geneva Conventions, which the United States honored for many years, anyone seized in a conflict is entitled to a hearing before a "competent tribunal" to decide whether he is rightly a prisoner. In the Persian Gulf war of 1991, American forces held 1,196 such hearings, and in nearly three-quarters of the cases, tribunals of American officers decided that the prisoners were wrongly held.

But the current President Bush decided that the prisoners at Guantánamo - most of them captured in the Afghanistan war but some brought from distant countries - were not covered by the Geneva Conventions. All, he decided, were "enemy combatants" outside the protection of the conventions because they were either Qaeda terrorists or Taliban soldiers.

It is only under the pressure of the Supreme Court's habeas corpus decision that the prisoners at Guantánamo have been given hearings. And the process in those hearings is deeply flawed, with the decisions often based on material withheld from the prisoners.

Senator Joseph Lieberman, Democrat of Connecticut, explained his vote for the Graham amendment by saying that it would affect only someone who was "determined to be an enemy combatant in the world war on terrorism." But that was "determined" by a generic order from President Bush, not by the individual process required by the Geneva Conventions. A spokeswoman for Senator Olympia Snowe, Republican of Maine, similarly said, "after all, we're talking about enemy combatants."

A substantial number of Guantánamo prisoners were evidently not "enemy combatants." They were finally sent back to their home countries - Britain, among others - which have not prosecuted them.

[Update: Senator Graham has now agreed to a “compromise” that would preserve some access to the courts, though not for all detainees. Its effect on the pending Supreme Court case is unclear. In any event, the Senate’s move toward court-stripping remains worrying.]

The Graham amendment is especially troubling at a time when much of the world, including American allies, is disturbed by the treatment of prisoners at Guantánamo. It is troubling as a precedent. And there is an ultimate irony in it. A senator from the Deep South has revived a principle, that of Ex Parte McCardle, that memorably victimized the South.