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Lindsey Graham Gets an “F” in Constitutional Law

Yesterday’s Supreme Court decision reaffirming the right of habeas corpus to Gitmo detainees didn’t just repudiate the Bush Administration’s six year effort to shield their shameful Gitmo prison system from judicial scrutiny. The Supreme Court majority also gave Senator and former Navy JAG Lindsey Graham an "F" for unconstitutional lawyering.

It was Graham who assured his colleagues that the procedures employed under the Combatant Status Review Tribunals (CSRTs) were both reasonable and an "acceptable substitute" for a federal habeas corpus hearing, even though the CSRT rules denied detainees the right to counsel and to know or challenge all the "evidence" used to justify their detention. In November 2005, Graham offered and vouched for the less than due process measures used by the CSRTs and then sponsored the amendments to strip federal courts of the right to hear habeas petitions.

It was Graham who argued Congress should replace normal court habeas review with a severely restricted review by the D.C. Circuit Court of CSRT decisions. And it was Graham who led efforts to defeat habeas’ restoration and fostered the sham that what eventually became the infamous Military Commissions Act was reasonable because it was superficially "better" than what the Administration originally proposed, an argument Justice Roberts relied on.

And who can forget that it was Graham, along with Senator Kyl, who also tried to deceive the Supreme Court about Congressional intent by inserting into a Conference Report a colloquy that in fact never occurred, to the effect that Congress intended to strip federal courts of habeas jurisdiction in Gitmo detainee cases on both pending and future cases.

Yesterday’s decision was a repudiation of Lindsey Graham’s lawyering. The court emphatically rejected the notion that the meager procedures used by the CSRTs were an adequate substitute for a normal habeas proceeding. And they rejected the view, strongly defended by Graham, that the Constitution allows Congress to strip federal courts of the power to hear habeas petitions in detainee cases.

Like the Bush Administration, Lindsey Graham pretended that the Supreme Court would accept sham procedures when the Constitution calls for due process. He pretended the Supreme Court would allow an Administration that has repeatedly lied — even to the courts — about its detention and interrogation practices and covered up senior officials’ role in ordering and orchestrating torture, to continue that system without Court oversight. And he bet that despite repeated Court warnings that the Great Writ was fundamental to human liberty and could not be diluted, that the Supreme Court would allow Congress and the Administration to restrict one of the most indispensable weapons federal courts have in checking egregiously unconstitutional behavior.

Given this history, the Supreme Court majority was simply not going to let an unprincipled Administration trample the Constitution, even if the outrage were perpetrated outside the US on non-US citizens. Marty Lederman at Balkinization cites the key signal:

On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.

(And see Lederman’s further discussion and the comments there on whether the Court’s habeas oversight might extend beyond Gitmo to other US detention facilities in other countries. Marcy has more at emptywheel.)

Cases like this are why we have a Supreme Court, why we call the Supreme Court a "co-equal" branch, and why the Court, at its best, has always served as the last defender of human dignity, but Lindsey Graham bet that was no longer true. His misunderstanding of the most basic role of the Court would get any second year law student an "F" in Constitutional Law. And John McCain, who apparently thinks the Great Writ is not that important, wants his Court appointments to be people like Roberts or Scalia, so they can fix his buddy Lindsey’s grade.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley