Jill Savitt / Human Rights First & New York Times Editorial – 2006-09-30 00:01:35
Congress Bows to Bush; Defiles Constitution
Jill Savitt / Human Rights First
(September 29, 2006) — As you may have heard in the news today, the US Congress yesterday passed legislation that will deny individuals detained by the United States the ability to challenge their detentions and treatment in court.
“This was the moment for Congress to pass legislation that reflects the fundamental values of this country. Instead, it rushed to adopt an ill-considered law which history will judge harshly,” said Elisa Massimino, Washington Director of Human Rights First. “The many flaws in this law raise fundamental constitutional issues. It will result in prolonged legal challenges, instead of fair trials that ensure justice.”
The most serious flaws in the Act include:
• Grants unprecedented and unchecked authority to the Executive Branch to label as “unlawful enemy combatants” and detain an overly broad range of people, including US citizens and legal permanent residents inside the United States
• Denies any independent judicial review of these detentions
• Seeks to eliminate accountability for past violations of the law
• Permits evidence obtained through coercion
• Gives the Secretary of Defense authority to deviate from time-tested military justice standards for fair trials.
Despite these flaws, we still want to thank you for standing with Human Rights First and more than 50 retired military leaders to stop White House efforts seeking to redefine the humane treatment standards of Common Article 3 of the Geneva Conventions, as the administration had originally proposed.
The Act passed by Congress makes it clear that conduct in violation of Common Article 3 remains unlawful and that subjecting detainees to treatment that involves serious physical or mental pain or suffering is a war crime. In floor debate, the drafters of the bill said:
Senator John McCain (R-AZ):
“The President and his subordinates are… bound to comply with Geneva. That is clear to me and to all who have negotiated this legislation in good faith… We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act, but with all of our obligations under Common Article 3 of the Geneva Conventions.”
“To the CIA: Your program, whatever it may be in classified form, must comply with the War Crimes Act. And the War Crimes Act runs the gamut from torture to cruel, inhumane treatment, intentional infliction of serious bodily injury, or mental pain.”
Senator John Warner (R-VA):
“The types of conduct described in [the Kennedy] amendment, in my opinion, are in the category of grave breaches of Common Article 3 of the Geneva Conventions. These are clearlyprohibited by our bill.”
“The Kennedy Amendment specified acts including: ‘forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person;and depriving the person of necessary food, water, or medical care.'”
We hope you will continue to work with Human Rights First in the months ahead as we seek to uphold the rule law and work to ensure that these measures do not go unchallenged.
Jill Savitt is HRF’s Director of Campaigns. Human Rights First, 333 Seventh Avenue, 13th Floor, New York, NY 10001-5004 www.humanrightsfirst.org
Rushing Off a Cliff
Editorial / New York Times
NEW YORK (September 28, 2006) — Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists.
Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.
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 US 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.
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