Shame and worry

Last week, both houses of Congress approved one of the worst bills in the history of the Republic, the Military Commissions Act of 2006. It’s a complicated bill and I don’t know how closely you’ve followed it in the news. For a start, here’s what The New York Times editorialized about the bill the morning before the Senate passed it:

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.

I’m not a legal scholar, but from what I understand, once George W. Bush signs the bill into law, the following will be legal according to the Act:

  • The Secretary of Defense declares that you, a U.S. citizen, are an unlawful enemy combatant and are to be held for the duration of the “War on Terror.”
  • If you are not a U.S. citizen and are declared an enemy combatant, you are locked away and not allowed challenge your imprisonment in court because the writ of habeas corpus, a basic protection under the common law system since 1305, is suspended in your case.
  • CIA officers strap a non-citizen to a table, cover his face with cellophane, and pour water over his face so he can’t breath and believes he is drowning.

In the first great Supreme Court decision, Marbury v. Madison, Justice John C. Marshall wrote that the United States is “a government of laws, and not of men.” He continued, “It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Contrast that with this brief excerpt from the Military Commissions Act:

SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS. (a) IN GENERAL.—No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, 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.

I hope I’ve given you some idea of how bad this bill is. For an analysis by a group of top legal scholars, I recommend the group blog Balkinization. These guys understand the seriousness of the issues involved and they’ve been writing about virtually nothing else for the past couple of weeks.

The bill passed the House 253 to 168. In the Senate, a bill typically needs a supermajority of 60 to pass, since that’s the number required for the cloture that brings the actual bill to a vote. In this case, cloture wasn’t a problem: the bill passed 65 to 34. One Republican (Lincoln Chafee of Rhode Island) and one independent (Jim Jeffords of Vermont) voted nay; 12 Democrats voted yea. The actual situation may be worse: Typically, several of the nay votes on a controversial bill like this are votes of political convenience that would evaporate if the vote were actually close or a filibuster were possible.

Think about that: Fewer than a third of the senators were truly opposed to a bill that, among other things, makes the Geneva Conventions unenforceable in any court of the United States and allows the President to legalize through interpretation various forms of torture including sleep deprivation, “cold cells,” and the above-mentioned waterboarding.

What if “we” win in November? What if the amply documented incompetence and venality of the Republican Administration and Congress lead to Democrats taking control of both the House and the Senate? The rosiest predictions have the Democrats barely retaking the Senate, not picking up the extra sixteen or more votes that would be needed to repeal last week’s travesty. (Never mind that Bush would never sign such a repeal or that the political momentum to get it on the agenda can scarcely be imagined in anything like the present climate.) There is no indication that opposition to torture will command a majority in either house in the near future, and no indication that much of the public cares.

Consider further the circumstances of the bill’s passage. It was passed in a rush before Congress adjourned for the upcoming elections. Few if any members of Congress fully understood its complexities; not even John McCain knew which interrogation techniques it would or would not allow. But the rush wasn’t, as the Administration insisted, to protect the country from terrorists. Rather, the rush was to take advantage of a closing window of time in which it was possible to legislate around Hamdan v. Rumsfeld, the recent Supreme Court decision which, among other things, indicated that CIA and other government officials were in fact bound by U.S. law prohibiting torture and might possibly be open to prosecution for things they’ve already done. Depending on who authorized some of those actions, high officials in the Executive Branch might even be prosecuted.

It could be taken as a positive reflection on the rule of law that Bush saw the need to protect himself and his cronies from prosecution by getting Congress to pass a law to that effect, rather than by making himself Dictator for Life or declaring martial law or some other cheap trick. And it’s comforting to remember that we’ve had bad laws before and recovered. The Fugitive Slave Act of 1850, for example, was a doozy. (Never mind that it took a civil war to get rid of it.)

The Bush Administration has done some terrible things in the last five years, including authorizing torture by executive fiat. But until last week it was possible to believe the problem was just a single branch of government run amok. Hamdan and other court cases looked promising, and you could hold out hope that a Democratic majority in Congress might reverse our slide into the moral swamp.

But now we have to wrap our minds around brute, unwelcome facts: that a law so bad, so contrary to our constitutional ideals and our very image of ourselves as a country, passed the Senate by nearly two-thirds. That it passed at a time when the majority party is supposedly so weak and the President’s approval ratings are so dismal. That the news media, apart from the big papers on the coasts that most Americans don’t read, gave it scarcely any coverage. That a “maverick” senator whose genuinely heroic past as a prisoner of war in Vietnam has made him the conscience of the Republican party hailed the bill as a victory for the right and the good.

It doesn’t take a radical to view this as a moment for great shame and grave worry. The principles at stake are basic and, supposedly, widely shared: respect for the rule of law, the right not to be tortured, basic rights to due process. What does it say about our country that we discarded these with hardly a fight?

7 responses to “Shame and worry”

  1. bryan says:

    what i just can’t figure out, dave, is how they got this through with their numbers so abysmally low right now. what in god’s name are these lawmakers thinking? what are the arguments for giving away these kinds of constitutional protections? i just can’t fathom how this is happening.

  2. Adriana says:

    Thanks, Dave, for posting on this. I’m so shocked and dumbfounded over this bill I’m not even sure what to do. More and more I’ve been wondering if it’s time to leave the country.

    But we can’t go without a fight, right? So what do we do? My first idea is to find out who voted how. Don’t know if this link will work, but I used it to find out Hillary voted Nay: http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00259

    I suppose we can write our representatives and tell them how we feel about how they voted (fat lot that will do for those of us in the blue states, but still worth the effort, right?). So then what?

  3. Scott Godfrey says:

    The 700-mile fence along the border with Mexico, is it to keep “illegals” out, or the first of four walls of the concentration camp? Extreme thought, I know, but I, like Adriana, am wondering when it’s time to get the hell out of Dodge.

    Thank you for the, as always, concise and important post.

  4. PB says:

    This is such a big issue, but it probably seems so “out there” to most Americans, it will only affect “bad” people right? And “they” torture out there, don’t they? We are just doing what everyone else does. A tiny glimpse for the everyday American. My collegue forgot a small box cutter, one of the flat ones with just a blade and a cover, in her pocket after working in the stockroom all day. She is a blond, blue eyed, middle aged, middle American soccer mom. She went through security at the Airport and of course all hell broke lose. Finally they let her go, supposedly satisfied that she was not going to attack anyone. No mention was made of any other repercussion. Several weeks later she receives a letter. It has been decided, after the fact, in her absence, that she should be arrested after all. She is demanded back to the state she left. A fancy lawyer later, she is just banned from the state for 6 months and fined and is on probation with a record. Gone is the the “you have a right to remain . . . ” They can arrest you after telling you you are not arrested. This is not a circumstance that falls under this law necessarily, but it did fall under some “homeland security” nonsense that is fueling the paranoia and bad decision making. The fact is that most American don’t give a shit until it impacts buying gas for their SUV or their golf game. My friend was beside herself. What if she had been of middle eastern descent? I think she would have disappeared.

  5. Scott Godfrey says:

    PB: that is exactly the kind of thing that scares the crap out of me. I’m sure that if your friend was brown, she would still be held, and her picture would’ve been on the front page of the USA Today: “Terror Plot Mom!”

    The argument that if you have nothing to hide, you shouldn’t care about being searched, wiretapped, surveilled, or whatever, is extremely disturbing to me. The fact is that when I comes to the (I hate saying it) “War on Terror,” the guiding principal is that it’s better to jail a hundred innocents along with one would-be terrorist, than to arrest no one and miss the terrorist.

    This SOP is based on the idea that what one terrorist can do is so extremely dangerous, that it’s worth jailing one hundred innocent Americans to prevent the next 9-11. This is a 180 degree flip form the basic tenants of the American judicial system, which state that it’s better to convict no one than to wrongly imprison one innocent.

  6. slade says:

    my concern is that we won’t know when it turns from having a box cutter in your pocket to writing a blog about cheney.

    my gut says the wall will eventually be used to keep us in.
    when the wall goes up along the canadian border, we leave.

  7. Lane says:

    http://www.nytimes.com/2006/10/08/books/review/Fukuyama.t.html

    Interesting essay on the American way of reacting, and overreacting to outside threat.