The Graham Amendment on Guantanamo: A Middle Way That Fails?

In a move that could have dramatic implications for the detainees held by the U.S. military at Guantanamo Bay, the Senate yesterday passed a measure aimed at preventing them from challenging their detention in American courts.  The measure was proposed by Republican senator Lindsey Graham as an amendment to a defence spending bill and passed by 49 votes to 42.

The amendment will have to be passed by the House of Representatives and the bill signed by the President before it becomes law.  Passage by the House is considered likely, according to The New York Times. 

The measure would effectively overturn the decision of the Supreme Court in the Rasul case (decided in the summer of 2004), which said that the Guantanamo detainees could ask American courts to consider habeas corpus petitions on their behalf.  The precise extent of the rights given to the detainees by the Supreme Court is still being debated in lower courts.  Sen. Graham’s amendment would cut off these cases and – if it succeeds as planned – close the courts to almost all petitions from Guantanamo inmates.

It might also prevent the Supreme Court from considering the legality of the military tribunals set up by President Bush to try terrorist suspects.  Earlier this week, the Supreme Court announced that it would consider a habeas case brought by one detainee, Salim Ahmed Hamdan, challenging the tribunal process as a violation of U.S. law and the Geneva Conventions.

Senator Graham’s move may seem like the act of a simple partisan of the Bush administration, but that is far from the case.  For instance, he has been as tough as any Republican senator on the issue of torture (he warned former White House counsel Alberto Gonzales that the administration had “dramatically undermined” its fight against terrorism by “getting on a slippery slope in terms of playing cute with the law.”) 

Instead, Graham’s amendment must be understood as an attempt to “regularize” Guantanamo by bringing it within a conventional military law framework, albeit one viewed from a conservative perspective.  Graham is a serving officer in the Air Force Reserves and a long-time JAG lawyer who now sits as a Reserve Judge in the Air Force Court of Criminal Appeals.  Taken in full, his views on the war on terror give an opportunity of registering how far the conservative end of the military law establishment supports the White House, and where it remains fiercely opposed.

To put things at their simplest, the White House has argued that the shadowy nature of the enemy in its campaign against al-Qaeda requires a departure from the traditional law of war model.  Graham’s amendment is motivated by the aim of re-imposing this framework as conventionally interpreted.  But in the circumstances of the war on terror, traditional procedures may not be sufficient to protect fundamental human rights: the ambiguous and open-ended nature of the war on terror may in fact require a different level of protection of detainees' rights than is necessary and appropriate in conventional war.

Graham’s amendment does not by any means support the White House notion of executive privilege.  On the contrary – in a provision that has attracted less attention than the restriction of detainees’ habeas rights – it establishes Congressional oversight of the review procedures set up to determine whether people held at Guantanamo really are “enemy combatants,” and whether there is a continued need for holding them (known respectively as Combatant Status Review Tribunals and Administrative Review Boards).

It’s worth remembering that these procedures were only adopted by the Pentagon as a defensive measure after the Supreme Court ruled (in the Hamdi case) that U.S. citizen detainees were entitled to some test of whether they were really taking part in “hostilities” of some sort against the United States, and (in the Rasul case) that Guantanamo detainees could file for habeas petitions in U.S. courts. 

In her plurality opinion in the Hamdi case, Justice O’Connor had referred specifically, as a possible model for the neutral decision-maker she said was required, to the tribunals mandated by the 3rd Geneva Convention to decide whether detainees are entitled to prisoner of war status (sometimes known as “Article 5 tribunals”).  Announcing the establishment of the CSRTs, the Pentagon in fact argued that they provided greater rights than available in the Geneva Convention tribunals, since detainees were provided a representative to help them prepare their case.  Similarly the Administrative Review Boards are similar to the regular review boards required for civilian internees in the 4th Geneva Conventions.

Graham's amendment would take these Geneva-like measures -- reluctantly introduced by the administration in the face of the threat of a flood of litigation from detainees -- and establish them under Congressional protection.

Moreover – in another provision that hasn’t been much discussed – the Graham Amendment requires a change to the rules for both status tribunals and review boards so that all evidence based on “undue coercion” must be excluded.  It’s not quite clear what “undue coercion” means, but it must surely exclude any form of cruel or inhumane treatment or “torture lite” such as has clearly been practiced on the leading al-Qaeda figures in detention.

In this respect, the Graham amendment should be seen as a companion to last week’s McCain amendment (a measure that Senator Graham was also involved in sponsoring) forbidding cruel or inhuman treatment of detainees by any government agent.

In all these ways, then, Senator Graham’s measure attempts to bring the Guantanamo system into line with the traditional military rules for the handling of enemy prisoners in wartime.  It also asserts a traditional understanding of legislative control against the White House’s expansive view of presidential power.

What the Graham amendment rejects though is the idea that the courts should be able to second-guess the conduct of the military and their handling of prisoners.  As Graham said on the Senate floor during the debate, “It is not fair to our troops fighting in the war on terror to be sued in every court in the land by our enemies based on every possible complaint…We have done nothing today but return to the basics of the law of armed conflict where we are dealing with enemy combatants, not common criminals.”

The question raised acutely by the Graham amendment is whether the procedures and guarantees associated with traditional armed conflict are appropriate to uphold humane standards in what the administration described as a “new kind of war.”  There are several strong reasons to believe that these traditional procedures are not adequate.

First – even assuming that the “war on terror” is really an armed conflict at all – it is much harder than in a traditional war to determine who is a member of the enemy and who is not.  The expansiveness of the possible definition was vividly demonstrated when an administration official argued in court that a little old lady in Switzerland who wrote cheques to a charity operating as a front for a terrorist group might qualify as an enemy combatant under some circumstances.  By contrast, the laws of war assume a situation in which there is little dispute about whether someone is taking part in hostilities (though there may be some uncertainty about whether he is entitled to prisoner of war status).

Secondly, the consequences of being incorrectly labelled as an enemy fighter are much more severe than they would be in a conventional war.  Unlike a conventional war, the “war on terror” looks likely to continue for the foreseeable future – so people detained as enemy combatants effectively face indefinite detention.

What’s more, “enemy combatants” are eligible to be tried by a military commission that provides substantially fewer due process protections than traditional courts martial (for instance there is no right of appeal to an independent civilian court, and defendants can be excluded from proceedings under some circumstances).  The Hamdan case challenging the military commission system is a habeas petition from a Guantanamo Bay detainee and would therefore be likely to be halted by the Graham amendment, if it is passed.

Taken together, these factors make the determination of the status of any detainee both more difficult and more significant than in conventional conflict, and seem to require a greater degree of due process.

Also, the administration’s decision to label the detainees as unlawful combatants unprotected by the Geneva Conventions and the priority it has attached to obtaining information from them have clearly led to widespread abuses.  Congress has so far demonstrated no appetite to exercise effective oversight of the way detainees are treated and that would probably continue to be the case even if it did assume oversight of the procedures by which they are classified.  Removing any possible judicial oversight of the treatment of detainees would leave them with little practical recourse against brutality and inhuman treatment.

Finally, the circumstances of the war on terror mean that habeas petitions would not impose the same kind of burdens on military forces as in a conventional war.  One of the traditional objections to the idea that military prisoners might challenge their detention in court is that it would require soldiers to leave ongoing campaigns in order to testify in court proceedings.  But in most cases, habeas proceedings for the Guantanamo detainees would not force military personnel to leave a battle that was still continuing.  Although fighting continues in Afghanistan, it is low-level and sporadic – and in any case many detainees were captured away from any recognizable battlefield, in places like Pakistan, Bosnia or even western Africa.

For these reasons, the Graham amendment that presents itself as a restoration of the traditional order could in fact have a devastating effect on the legitimate rights of Guantanamo detainees.  However, it is not a foregone conclusion that it will have the results intended.

The measure only affects the right to habeas corpus granted by U.S. statute – as opposed to the Constitutional right to habeas corpus, which the Senate alone cannot amend.  The reason this is significant is that the Supreme Court decision (in the Rasul case) that gave Guantanamo detainees access to American courts based its judgement on the statutory not Constitutional right.  It is possible that further cases could lead to the recognition of a Constitutional right to habeas corpus for the detainees – though that would involve tackling an apparent precedent set by an earlier Supreme Court decision (known as Eisentrager) that rejected claims to a habeas right for enemy prisoners held by U.S. forces abroad.

Editor's Note: The Graham Amendment and the McCain Amendment prohibiting the use of cruel, inhuman or degrading treatment on anyone in U.S. custody were signed into law by President Bush on December 30, 2005.  The version of the Graham Amendment that became law was slightly different to the version discussed in this article.  A forthcoming article on this site will discuss the passage of both amendments and assess their likely impact.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Torture

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