Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.
It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.
Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.
These are some of the bill’s biggest flaws:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.
The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.
Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.
Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.
Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.
Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.
•There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.
We don’t blame the Democrats for being frightened. The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.
They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.
© Copyright 2006 The New York
McCain Bends Principles
by Nat Hentoff
October 10, 2006 by the Boulder Daily Camera / Colorado
Having achieved much attention for insisting that the president obey the Supreme Court and provide detainees with the protections of the Geneva Conventions, the three rebel Republican senators — John McCain, John Warner and Lindsey Graham — nonetheless have voted in the 65-to-34 majority for the Military Commissions Act of 2006. Also approved by the House, this bill has George W. Bush's approval. But why do these would-be dissenters support it?
Although these warriors for principle say they have now achieved their goal — "America can be proud," adds Graham — this unprecedented and far-reaching statute makes it impossible for our detainees anywhere in the world to protest in our courts that their conditions of confinement violate the humane standards of the Geneva Conventions.
The Military Commissions Act closes our federal courts to any habeas-corpus petitions on those conditions of confinement — despite the Supreme Court's instructions this June to the president and Congress that the military commissions dealing with these prisoners provide them with "all the judicial guarantees recognized as indispensable by civilized persons."
Habeas corpus, eminently civilized, requires that the government demonstrate that it is holding detainees lawfully...
John McCain, after his involvement in the "compromise" with the president that led to this dangerous law, including the revocation of habeas corpus, said: "We're all winners. I'm very proud of what we've accomplished."
Right in Danger
by Scot Lehigh
Oct. 12. 2006, Boston Globe
It's long been apparent that many US citizens would watch fundamental rights be swept away with hardly a shrug. But it's stunning that our congressmen, elected officials sworn to bear true faith and allegiance to the Constitution, would actually vote to strip US courts of the power to protect essential rights.
And yet that's exactly what happened when Congress recently approved the Military Commissions Act to govern the treatment and trial of detainees held at Guantanamo Bay and other US detention facilities abroad.
In denying the writ of habeas corpus to noncitizens detained by the United States outside the country, Congress has turned its back on one of the most venerable of Constitutional protections: A prisoner's ability to go to court to challenge the lawfulness of his detention.
It's hard to overstate the importance of that right.
''It really is the fundamental underpinning of the rule of law,'' says Boston attorney Harvey Silverglate, a well-known civil libertarian. ''If the president can just pick anyone up and hold them, tell me what meaning there is to a court system. That is what the rule of law is all about: that an independent judiciary can deter mine whether or not you are being held legally.'' Indeed, the establishment of habeas marks the historical transi tion away from the whims of a despot and toward constitutional government...
You Could be Labeled an Enemy Combatant...
by Heather Wokusch, Commondreams.org, Oct. 4, 2006
...Put it all together, and last week's passage of the Military Commissions Act is ominous for those in the US. As Bruce Ackerman noted recently in The Los Angeles Times (http://www.law.yale.edu/faculty/3531.htm), the legislation "authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any protections of the Bill of Rights." The vague criteria for being labeled an enemy combatant (taking part in "hostilities against the United States") don't help either. Would that include anti-war protestors? People who criticize Bush? Unclear.
In 2002, wacko former Attorney General John Ashcroft called for the indefinite detainment of US citizens he considered to be "enemy combatants," and while widely criticized at the time, Congress went ahead and fulfilled Ashcroft's nefarious vision last week. Ashcroft had also called for stateside internment camps, and accordingly, in January 2006 the US government awarded a Halliburton subsidiary $385 million to build detention centers to be used for, "an unexpected influx of immigrants or to house people after a natural disaster or for new programs that require additional detention space." New programs that require additional detention space. Hmm...
Bush Admitted His War Crimes
by Richard W. Behan
Sept. 30, 2006 Commondreams.org
...Hamdan v. Rumsfeld put on display the Bush Administration's guilt in committing war crimes. This is one of the huge dots. It will be connected to another one shortly.
The Bush Administration wasted no time drafting a law to legalize the military "commissions," as they came to be called. Senators McCain, Warner, and Graham initially and vigorously opposed it-and then caved in.
A "compromise" was worked out in Vice President Cheney's office. Trivial tweaks.
The law signed by the President precludes federal courts from any jurisdiction whatsoever, in direct contradiction to the Supreme Court's finding. It denies habeas corpus protections, also in direct contradiction.
And it prohibits explicitly the detainees from claiming rights under the Geneva Conventions. Here is the language that does so:
No person may invoke the Geneva Conventions, or any protocols thereto, in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Services, or other agent of the United States, is a party, as a source of rights in any court of the United States or its States or territories...
Numb to Torture
As America's politicians, media and citizens get used to wartime abuses, Bush's horrific policies get a pass.
by JoAnn Wypijewski, LA Times, Sept. 30, 2006
...So here is the bitter joke: England, the public emblem of torture, was convicted for nothing so awful as what the president and his flank have chosen to protect. Her crime was to smile, to pose, to jeer at naked, powerless men, and to fail to stop their humiliations or to report them afterward. She did not shackle men in stress positions, strip them of their clothes, deny them sleep, force them to stand for hours or days, douse them with icy water, deprive them of heat or food or subject them to incessant noise or screaming.
Despite Arizona Republican Sen. John McCain's compromise, none of those brutalities is expressly outlawed in the legislation that Congress just passed and the president is about to sign...
Bush's Torture Policy Hurts our Soldiers
by Carla Seaquist
Published on Wednesday, October 4, 2006 by the Christian Science Monitor
...Bush's policy on torture hurts our soldiers. Last week, Congress surrendered to Bush's "program" of "alternative interrogation methods" (read: torture). While Bush claimed "We do not torture" last month, his ongoing support for harsh tactics that amount to it heightens the risk that our soldiers will be tortured if taken captive - a distinct and dire likelihood as Iraq deteriorates into civil war and Afghanistan tips back into chaos...The fallout of these derelictions for our troops? Should they be captured and tortured, their commander-in-chief would have no grounds at all - legal or moral - to protest or to seek justice. This, from a "moral values" president who exhorts us to "support the troops"?
NOTE: HERE IS McCAIN'S POSITION ON BILL:
Names Practices Detainee Bill Would Bar
Senator Says 3 Interrogation Methods Are Among the 'Extreme Measures' the Plan Would Outlaw
By R. Jeffrey Smith
Washington Post Staff Writer
Monday, September 25, 2006; A05
A Republican senator who played a leading role in drafting new rules for U.S. interrogations of terrorism suspects said yesterday that he believes a compromise bill embraced by party leaders and the White House will bar some of the most extreme techniques said to have been used by the CIA.
Sen. John McCain (Ariz.) named three measures that he said would no longer be allowed under a provision barring techniques that cause serious mental or physical suffering by U.S. detainees: extreme sleep deprivation, forced hypothermia and "waterboarding," which simulates drowning. He also said other "extreme measures" would be banned.
McCain's remarks were unusual because public officials involved in the lengthy public debate about U.S. interrogation practices have rarely made specific references to the CIA's actions. Instead, they have made general claims about the need for rough interrogations or a desire to stop abusive behavior.
"It's clear we have to have the high moral ground," said McCain, a former POW tortured by prison guards in Vietnam, on CBS's "Face the Nation." "I am confident that some of the abuses that were reportedly committed in the past will be prohibited in the future."
McCain spoke after officials of Human Rights Watch and others pressed him to spell out ways in which the controversial draft legislation would constrain the CIA's actions. The bill, introduced in the Senate on Friday, does not mention specific interrogation methods, causing some experts to say it would leave room for abuses. President Bush endorsed the bill after CIA Director Michael V. Hayden said it meets his agency's needs.
McCain, Sen. John W. Warner (R-Va.), Sen. Lindsey O. Graham (R-S.C.) and their staffs were heavily involved in drafting the bill's language, so McCain's reading of it may carry weight in any court battle over its meaning. Aides said he did not clear his remarks with the Bush administration in advance, and spokesmen for the CIA and the White House declined to say yesterday whether they accept McCain's conclusions.
"We cannot and will not comment on specific interrogation measures," CIA spokesman Mark Mansfield said, adding that the agency will act lawfully. The CIA has asserted unofficially that its most extreme measures were used on only a handful of detainees.
Senate Majority Leader Bill Frist (R-Tenn.), who wants to shepherd the detainee bill to congressional passage this week, also declined to give a specific reading of it yesterday. Asked repeatedly on ABC's "This Week" what the legislation would allow, Frist said, "I'm not going to comment on individual techniques," and he condemned doing so.
"No responsible person is going to come in and basically say, 'These are the 10 techniques we use and these are the 10 that are not used,' " said Frist, who is sometimes mentioned as a McCain rival for the Republican presidential nomination in 2008. "It helps the terrorists."
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) yesterday praised the bill as "a big improvement" over the administration's initial proposals. But he said on CNN's "Late Edition" that he opposes provisions in it that would bar terrorism suspects from challenging their detention or treatment in federal court. "That has to be changed," said Specter, who plans to hold a hearing on the issue this morning.
The proposed legislation does not say what interrogators can do. Instead, it states indirectly, in amendments to the 10-year-old War Crimes Act, that those who cause detainees "severe or serious physical or mental pain or suffering" can be charged with a felony. This includes, according to the bill's definitions, anyone who causes serious physical abuse, a substantial risk of death, extreme physical pain, burns or serious physical disfigurement, or a loss or impairment of "the function of a bodily member, organ, or mental faculty."
The bill would also replace an existing ban on interrogation practices that cause "prolonged" mental pain or suffering with a more sweeping ban on those that inflict "serious and non-transitory mental harm (which need not be prolonged)." This provision would be applicable only to interrogations that occur after the date the legislation is passed -- and thus it would effectively immunize from prosecution CIA interrogators who have inflicted short-term but serious mental harm on detainees.
The White House had preferred to bar questioning that caused "severe" and "prolonged" harm; McCain and his allies sought to obstruct interrogations that caused "almost instantaneous" mental harm. "If the detainee faints, that is not what we were trying to capture," said one of the congressional negotiators, who spoke on the condition of anonymity to discuss sensitive negotiations. "But we wanted to prohibit anything that would cause a lasting effect, or anything that would go up to that line."
The CIA exposed some of the estimated 100 people held at various times in its foreign prison system to temperature extremes, lengthy sleep deprivation and stress positions such as prolonged forced standing, officials said. But the agency never fully briefed McCain, Graham or their staffs on the interrogations, a circumstance that handicapped the discussions last week.
McCain was nonetheless particularly adamant that the CIA be permanently blocked from using waterboarding, which he regards as torture, even though intelligence officials have said privately that it has not been used for several years. McCain -- who has previously described being beaten and painfully bound by ropes in Vietnam -- said yesterday he recognizes that stress positions could be "important" and that while it "was never our intent" to stop the CIA interrogation program, he wanted to stop the "extreme application" of such techniques.
As lawmakers and officials struggled to find compromise language, they consulted a dictionary Web site's entries for the words "momentary," "temporary," "transitory" and "fleeting," two congressional sources said.
The key to the deal, congressional sources said, was the Senate lawmakers' acceptance of national security adviser Stephen J. Hadley's demand that violations of the ban on serious, non-transitory and not necessarily prolonged mental harm could bring prosecution only for future interrogations. The demand grew out of CIA and Justice Department concerns that interrogators would be exposed to war-crimes charges for their past actions.
Alberto J. Mora -- who opposed the administration's interrogation policies while serving as the Navy's judge advocate general from 2001 until the end of last year -- said in May that "we know the treatment may have reached the level of torture in some instances." Mora's remarks referred to detainees held at Guantanamo Bay, Cuba, and elsewhere.
© 2006 The Washington Post Company