Senator Lindsay Graham on detainee standards

Senator Lindsay Graham defends his legislation for the treatment of detainees with respect to appeals, habeas corpus, etc., in this opinion piece in the Washington Post. With respect to habeas corpus, there has been much handwringing opinion expressed that this legislation would eviscerate the ancient right of habeas corpus. But of course, as a legal matter, habeas corpus as it exists today in federal law, as a matter of statute, bears little resemblance to the ancient common law right. High speed internet access as a matter of habeas corpus? The question of what is the proper care with respect to detainee treatment is a matter that should, in my view, be covered by appropriate legislation. But histrionic claims that the ancient right of habeas corpus is being washed away because legislation would not apply the extraordinarily complex and US-incarceration specific regime of statutory habeas corpus to detainee treatment does not exactly help matters. Excerpts:

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Rules for Our War

By Lindsey Graham
Tuesday, December 6, 2005; A29
Washington Post

In my view, the attacks of Sept. 11, 2001, were an act of war, not a mere crime. Our terrorist enemies don't represent a sovereign nation, wear a uniform, follow the rules of armed conflict or show any regard for humanity. The key difference between them and us is that we care about these things.

Even during a time of war, we have chosen to be a nation of laws, with a different, higher set of values than the terrorists. We should always remember that we are Americans, possessing values superior to those of our enemy, and that there is a proper balance between the protection of our troops and the humane treatment of detainees. This value system is our national strength, not a weakness.

I support President Bush's statement that all detainees should be treated humanely, and I agree with Sen. John McCain that his detainee treatment amendment is about us, not them. With these concepts in mind, the Senate recently acted in a bipartisan fashion in two critical areas of detainee policy.

First, by a vote of 90 to 9 we passed the McCain amendment, which would require all Defense Department interrogation techniques to be standardized and contained within the Army Field Manual. As a military lawyer, I know our original policies concerning interrogation were confusing and contradictory. Unfortunately, our troops have suffered in trying to implement these flawed policies.

By standardizing procedures in one document, our troops will know what's in and out of bounds. To attempt to recapture the moral high ground, we also reaffirm our long-held position that federal agencies will not engage in techniques that violate standards against torture or inhumane treatment of detainees under the laws of armed conflict.

Any efforts to create exemptions to the McCain amendment will, in my opinion, do far more harm than good, as they may set precedents that could jeopardize our troops in future conflicts. We will win this war by showcasing the differences between the United States and the enemy.
I believe we can have sound interrogation techniques and aggressive detention and prosecution policies for enemy combatants without eroding the values for which we are fighting.

The second bipartisan Senate action was the passage, 84 to 14, of the Graham-Levin-Kyl amendment, which would create a balanced approach to the laws governing detention and prosecution of enemy combatants.

Congress has been virtually AWOL on the status of enemy combatants, resulting in contradictory federal court decisions about detainees' legal rights. Because of Congress's inaction, the Supreme Court's ruling in the case of Rasul v. Bush allowed foreign national enemy combatants at Guantanamo Bay to be granted habeas corpus rights like American citizens.
In the past, federal courts have reviewed military tribunal verdicts involving enemy combatants who were charged with war crimes, but for the first time in the history of warfare, enemy prisoners were granted access to our federal courts to bring lawsuits against our own forces regarding their detention.

There are now close to 200 habeas petitions filed by enemy combatants requesting better mail delivery, more exercise, judge-supervised interrogation, Internet access and the right to view DVDs.

These lawsuits are undermining our ability to gain good intelligence and are placing federal courts in a role never before known in wartime.

Did we ever intend for enemy combatants captured on the battlefield to be given the same rights as U.S. citizens in our federal courts? The answer from a bipartisan majority in the Senate was a resounding no.

The courts asked Congress to get involved in these issues, and finally, through passage of the Graham-Levin-Kyl amendment, we did.

The amendment replaces unlimited habeas petitions with a one-time appeal right to the U.S. Court of Appeals for the District of Columbia Circuit. The review covers whether the formulation and implementation of the practices in place at Guantanamo Bay are constitutional and, in each individual case, whether the military correctly followed procedures.

In addition, the amendment requires federal court review of any military commission conviction involving a war crime and a sentence of 10 or more years. The court can choose to review cases with sentences of less than 10 years, and the Supreme Court will have the right to review lower court actions if petitioned.

The Senate has created legal and congressional oversight over enemy combatant interrogation, detention, and prosecution -- all in excess of what is required by the laws of armed conflict. This is something of which our nation can be proud.

The McCain and Graham-Levin-Kyl amendments, taken together, provide a package of detainee reforms recognizing that we're in a war and striking a balance between protecting our nation's interests and ensuring that we adhere to the values for which we are fighting. They should be adopted in the House-Senate conference committee and by Congress as a whole.

(The writer is a Republican senator from South Carolina.)