WASHINGTON -- The troubled Bush administration won a rare victory this week. The Senate voted to close federal courts to Salim Gherebi, an enemy combatant imprisoned at Guantanamo Bay. He is suing the president and the secretary of defense for $100 million in compensatory damages and $1 billion in punitive damages for violation of his rights under the U.S. Constitution. His is one of 174 suits filed on behalf of terrorist detainees, none of them U.S. citizens, that have undermined the war against terrorism.
That outcome is indeed the purpose of suits instigated by left-wing American lawyers. Court filings demanding high-speed Internet service, claiming medical malpractice and seeking DVDs fail to release many prisoners, but they do hamstring U.S. intelligence. The Senate's action this week keeps non-citizen aliens from using habeas corpus, invoked throughout the country's history to protect citizens from illegal imprisonment.
"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. Remarkably, 44 Senators voted Tuesday to permit legal harassment by enemy combatants.
Graham's legislation countermanded a June 28, 2004, decision by a 6 to 3 Supreme Court overturning a lower court ruling and opening the federal court system to alien enemy combatants in the absence of specific congressional action. That produced cases such as one filed by a man named Saifullah Paracha seeking an order to improve his mail delivery and medical treatment and establish judicial review over "opportunities for exercise, communication, recreation, worship, etc." Other suits call for judges to sit in on interrogation of prisoners.
The purpose behind this litigation was exposed this year by prominent leftist lawyer Michael Ratner in an interview with Mother Jones magazine. "The litigation is brutal [for the United States]," said Ratner. "We have over 100 lawyers now from big and small firms working to represent those detainees. Every time an attorney goes down there, it makes it much harder [for the U.S. military] to do what they're doing."
Yet, nearly half the Senate voted to keep the courtroom door open to aliens captured on the battlefield. The Senate often tries to give the impression of consensus when there really is none, and that is the case with Graham's amendment to the Armed Services authorization bill. Perhaps intentionally, critics of the administration's war policy have confused this issue with torture of prisoners, which the Senate overwhelmingly condemned by adopting Sen. John McCain's separate amendment.
An amendment by Democratic Sen. Jeff Bingaman to maintain habeas corpus access for enemy combatants was narrowly defeated, 49 to 42, in the Senate last week. The vote was largely decided along party lines with only five Democrats and four Republicans crossing over.
After that vote, Democrats put out the word that Graham had worked with Democratic Sen. Carl Levin for a "compromise." The new version did give a limited right of appeal for enemy combatants sentenced to more than 10 years or given the death penalty, but the flood of nuisance litigation by prisoners would still end.
But when Bingaman's proposal came up again Tuesday, it actually gained two votes, losing 54 to 44. Levin, co-sponsor of the "compromise," voted against Graham to continue habeas corpus access as he had the previous week.
Late on Monday, the day before the final vote on the issue, the need for the Graham amendment was underlined. District Judge Colleen Kollar-Kotelly, a Clinton appointee with a reputation for judicial activism, blocked the trial by a U.S. military commission of a captured enemy combatant who was the first litigant of Ratner's Center for Constitutional Rights. David Hicks, an Australian, was accused of fighting alongside the Taliban in Afghanistan and charged with attempted murder and conspiracy to attack civilians and commit terrorism. Under Graham's amendment, this case could go only to the District of Columbia Circuit Court of Appeals after a conviction and sentencing decision by a military commission.