Bingaman Amendment goes down, Graham-Levin "compromise" succeeds

Senate votes on C-SPAN aren't usually nail-biters, but the vote on the Bingaman Amendment had about it considerable drama. It was the Senate's moment to do over the disastrous approval of the Graham Amendment that strips the right of Habeas Corpus from executive-designated "enemy combatants."

The amendment failed, to the everlasting shame of the senators who voted against it. At least Ron Wyden was able to change his stance, from a Yes on the Graham Amendment to a Yes on Jeff Bingaman's revised language. I am a great admirer of Senator Wyden, and was particularly disturbed that he, of all people, had previously cast the vote he did.

Now the chamber has, by a considerable majority, passed a different amendment to the Graham Amendment, this one offered by Lindsay Graham himself along with Carl Levin. Their so-called "compromise" allows for judicial review of sentences passed by a military tribunal where the penalty is at least 10 years or death.

Marty Lederman at Balkinization says,

I have not had time to review the compromise carefully, let alone to consult with folks who know much more about these matters than I do. But my initial impression is that this bill, if amended, would still cut off numerous sorts of challenges to the Administration's detention policies and practices and GTMO, and would raise innumerable ambiguities and unanswered questions.

Presumably those "folks who know much more about these matters than I do" include the members of the Senate Judiciary Committee, in whose name Arlen Specter complained that there had been no time for review or debate, that the "compromise" had been hurriedly concocted without reference to the committee. Lederman calls it a "blunderbuss solution."

A great deal was at stake, is at stake — in these habeas-related amendments to the Defense Authorization Bill, which is now sailing to passage — complicated issues of justice that impinge directly on our bedrock values of fairness and the rule of law. Such complication, by its very nature, demands explication, unpacking, "disinfecting with sunshine." We have not had that. The Senate had the opportunity to regain for us at least some of the dignity lost when it agreed to the Graham Amendment. It did not do that. Sad. So very sad.