11/15/2005: Shame on Lindsey Graham....
who either lied to the Senate, or who else desperately needs a refresher course in the law of habeas corpus.
As Emily Bazelon points out in Slate yesterday, Graham had this to say in support of his rider stripping the right of "enemy combatants" to seek habeas relief:
Here is the one thing I can tell you for sure as a military lawyer. A POW or an enemy combatant facing law of armed conflict charges has not been given the right of habeas corpus for 200 years because our own people in our own military facing court-martials, who could be sentenced to death, do not have the right of habeas corpus. It is about military law. I am not changing anything. I am getting us back to what we have done for 200 years.Well, there's just two problems with this statement.
1) Enemy combatants have been allowed to seek habeas corpus relief from the actions of military commissions since at least the Civil War. Two important cases involving habeas relief sought by "enemy combatants": Ex parte Milligan, 71 US 2 (1866) (Confederate sympathizer), and Ex parte Quirin, 317 US 1 (1942) (German saboteurs).
2) U.S. servicemembers can avail themselves of habeas corpus relief, and it doesn't take much work to find U.S. Supreme Court opinions where the court considers an appeal from a lower court decision on a service member's petition for habeas relief. Just a few cases (all within the past 200 years): In re Grimley, 137 U.S. 147 (1890), Humphrey v. Smith, 336 U.S. 695 (1949), Parker, Warden, et al. v. Levy 417 U.S. 733 (1974).
I'll assume that Senator Graham didn't deliberately lie to his colleagues, even though he is a Republican (and therefore not really entitled to the benefit of the doubt). But I'm sorry to see him invoke his status as a military lawyer to lend support to a statement of law which is blatantly wrong. That's not an action which will redound to the credit of the military legal community.
Len on 11.15.05 @ 05:17 AM CST