Retired military leaders, human-rights activists outraged by Graham amendment

Several retired military leaders are urging Congress to reject Senate-passed legislation that would nullify a 2004 Supreme Court ruling that gives detainees at Guantanamo Bay, Cuba, the right to challenge their imprisonment.

The upper chamber last Thursday passed Sen. Lindsey Graham’s (R-S.C.) detainee amendment to the defense authorization bill, 49-42.

Since the Graham amendment passed, a flurry of letters from retired military officers has arrived in Senate offices.

The officers, together with human-rights activists, are extensively lobbying the Senate to vote for an amendment that Sen. Jeff Bingaman (D-N.M.) introduced last night.

Bingaman’s staff yesterday worked with Graham and Sen. Carl Levin (D-Mich.) to iron out language that would be accepted by Graham and would mollify the human-rights activists, as well as other critics, according to a source close to the negotiations.

Graham’s amendment is “very draconian and unnecessary,” said retired Rear Adm. John Hutson, a former Navy judge advocate general and now the president and dean of the Franklin Pierce Law Center in Concord, N.H.

Hutson sent a letter to Sen. Arlen Specter (R-Pa.) a day before Graham introduced the amendment, expressing  opposition to it.

The letter now has garnered strong support from at least nine other retired military leaders and was being been sent to all 100 senators yesterday.

Among the signatories are Army Lt. Gen. Robert Gard; Marine Maj. Gen. Fred Haynes, a Vietnam and Korea veteran who commanded the 2nd and 3rd Marine Division; Army Brig. Gen Evelyn Foote, the former commanding general at Fort Belvoir, Va.; Army Lt. Gen. Otstott, the former deputy chairman of the NATO military committee; and Army Brig. Gen. David Irvine, who taught prisoner interrogation and military law at the 6th Army Intelligence School.

“The amendment, however well intentioned, is the wrong law at the wrong time,” the officers wrote in the letter to be addressed to all senators. “It appears aimed at fixing a problem that does not exist and creates a raft of new problems of its own.”

The restriction on habeas corpus in the Graham amendment would be a “momentous” change, they wrote. “In any case, the practical effects of such a bill would be sweeping and negative.”

“I understand his [Graham’s] concerns, but what I would like to see happen is for it to go to the Judiciary Committee where with a little more time and expertise we would be able to fashion something that would satisfy everybody’s concerns,” Hutson said. “There are ways that his itch can be scratched, but it is going to take some thought and consideration.”

Habeas corpus is the last opportunity for someone to contest arbitrary and illegal detention, explained Kristine Huskey, an attorney with Shearman and Sterling who represents 11 Kuwaiti detainees at Guantanamo Bay. Five other of her clients were released from Guantanamo Bay and put under Kuwaiti custody. “The United States is acting out of fear and way out of conformity with its traditions,” she said.

A day before the amendment was introduced, Sen. John McCain (R-Ariz.) also received a letter from the National Institute of Military Justice strongly opposing Graham’s amendment.

“The proposed amendment would sanction unreviewable executive detention that cannot be harmonized with the nation’s longstanding adherence to the rule of law,” wrote Eugene Fidell, the institute’s president.

Graham says that his bill would eliminate numerous legal claims from prisoners that are tying up the resources of the Department of Justice and slowing the ability of interrogators to glean important information from the detainees. The measure would allow detainees to challenge whether the U.S. government at the time of capture followed Pentagon procedures that determine when a prisoner can be considered an enemy combatant.

The GOP members who rejected the amendment were Judiciary Committee Chairman Specter, and Sens. John Sununu (N.H.) and Gordon Smith (Ore.).

The five Democrats who backed it were Sens. Mary Landrieu (La.), Joe Lieberman (Conn.), Ben Nelson (Neb.), Ron Wyden (Ore.) and Kent Conrad (N.D.)

Two stalwarts who have been pushing for the humane and standardized treatment of military detainees together with Graham — McCain and Sen. John Warner (R-Va.), chairman of the Senate Armed Services Committee — voted in favor of the amendment.

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