As I'm sure you all know, last week the US Senate voted to cut off habeas corpus petitions by prisoners being held at the Guantánamo Bay prison camp. The amendment they passed, sponsored by one Senator Lindsey Graham (R - SC), nullified the 2004 Supreme Court decision that said, because the Guantánamo base is under American control, the prisoners could challenge their detentions in federal courts.

The Senate passed John McCain's proposal to outlaw inhumane treatment of prisoners, by the wide - but not unanimous - margin of 90 to 9. However, the Graham amendment to that proposal effectively neuters that vote.

Put more simply, the majority of US Senators said: it's not ok for the US to torture prisoners, but if we do, there's nothing they can do about it.

Here are two perspectives on those votes.

The first is from Anthony Lewis, a former New York Times columnist and a Constitution historian. Lewis, via Common Dreams, offers a relevant history lesson.
Prisoners of the Senate
by Anthony Lewis

Boston - 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But before the Supreme Court could hand down its decision, the Radical Republicans who controlled Congress repealed the law that allowed McCardle to bring forward his habeas corpus appeal.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. [Read the rest here.
The other perspective is from Molly Ivins, writing in the Miami Herald, also brought to you here by Common Dreams, as I can't access the original piece. Ivins writes:
I can't get over this feeling of unreality, that I am actually sitting here writing about our country having a gulag of secret prisons in which it tortures people. I have loved America all my life, even though I have often disagreed with the government. But this seems to me so preposterous, so monstrous.

Maybe I should try to get a grip -- after all, it's just this one administration that I had more cause than most to realize was full of inadequate people going in. And even at that, it seems to be mostly Vice President Cheney. And after all, we were badly frightened by 9/11, which was a horrible event. "Only" nine senators voted against the prohibition of "cruel, inhuman or degrading treatment or punishment of persons under custody or control the United States." Nine out of 100. Should we be proud? Should we cry?

"We do not torture," said our inarticulate president, straining through emphasis and repetition to erase the obvious.

A string of prisons in Eastern Europe in which suspects are held and tortured indefinitely, without trial, without lawyers, without the right to confront their accusers, without knowing the evidence or the charges against them, if any. Forever. It's One Day in the Life of Ivan Denisovich. Another secret prison in the midst of a military camp on an island run by an infamous dictator. Prisoner without a name, cell without a number.

Who are we? What have we become?
Ivins answers her sad question with this conclusion:
Why did we bother to beat the Soviet Union if we were just going to become it? Shame. Shame. Shame.
Read her excellent essay here.

On a personal note, Allan and I have been doing a lot of reflecting on our lives together, brought on by the loss of our beloved friend. We both said how happy - how relieved and how proud - we are to have removed ourselves from the madness that is the United States.


James Redekop said...

I was reading a commentary on the habeas corpus decision by a US lawyer -- wish I could find it again. He was representing a prisoner in Guantanamo Bay who had been found innocent of any wrongdoing by the US military. However, to avoid embarassment, the Pentagon classified the finding of innocence and threw him back in the prison indefinitely -- because they found him innocent. The only reason anyone outside the Pentagon knows about this is habeas corpus.

laura k said...

Wow. That is positively, absolutely Orwellian. Chilling.

James Redekop said...

I managed to find the story.

By the way, this innocent person, Adel, ended up in custody because the Pentagon put up a $5000 for any terrorists. So a bounty hunter kidnapped Adel at random and turned him over to the US, walking away sive five grand.

Sorry, Dubya, no matter what you say about "The Land of the Free", this is totalitarian.

allan said...

Holy shit! That is amazing.

Can anyone -- even the mouthbreathers -- defend this?

They admit he's innocent.

laura k said...

James, thank you for looking for and posting that. Wow.

This goes to one of the key lessons I've learned about this government. Never think, "They wouldn't do that." There's apparently nothing they won't stoop to.

Peter Nellhaus said...

Just a note to say that www.alternet.org is a good source for commentaries by Molly Ivins.

laura k said...

Peter Nellhaus: thanks! Alternet is a great site, the more people who go there, the better.