Last Thursday saw the day when the US as a nation formally decided that it no longer accepted the basic human rights that have been the foundation of its civil society since the time it adopted the Bill of Rights. In particular, the nation went on record as declaring that habeas corpus was expendable and torture was acceptable. Of course, torture has been practiced in the past by individuals, even individuals acting on behalf of the government. But when those things were revealed most recently at Abu Ghraib and Guantanamo, we could at least try and argue that these were the abhorrent actions of a few ‘rogue elements’ and ‘bad apples’ and did not represent the ideals of the people as a whole.
But when the House of Representatives and the Senate last week passed the Military Commissions Act of 2006 allowing these things, and when the president signs these practices into law, then we can no longer use such excuses. These people were all elected to their offices and can claim that they represent the people of their regions. Hence by passing this act America, as a nation, has now formally gone on record as saying that the Bill of Rights, the Universal Declaration of Human Rights, and the Geneva Conventions are all expendable, subservient to whatever measures, however extreme, the president deems necessary to fight his ‘war on terror.’ The American people, through their elected representatives, are in effect giving the president the powers eagerly sought by dictators.
In this Washington Post news report from September 28, 2006 we can read a description of the legislation.
Included in the bill, passed by Republican majorities in the Senate yesterday and the House on Wednesday, are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.
The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.
By writing into law for the first time the definition of an “unlawful enemy combatant,” the bill empowers the executive branch to detain indefinitely anyone it determines to have “purposefully and materially” supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death.
At the same time, the bill immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of detainees who the military and the CIA captured before the end of last year. It gives the president a dominant but not exclusive role in setting the rules for future interrogations of terrorism suspects.
. . .
Tom Malinowski, the Washington office director for Human Rights Watch, said Bush’s motivation is partly to protect his reputation by gaining congressional endorsement of controversial actions already taken. “He’s been accused of authorizing criminal torture in a way that has hurt America and could come back to haunt our troops. One of his purposes is to have Congress stand with him in the dock,” Malinowski said.
. . .
University of Texas constitutional law professor Sanford V. Levinson described the bill in an Internet posting as the mark of a “banana republic.” Yale Law School Dean Harold Koh said that “the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it’s not clear that most of the members understand what they’ve done.”
The New York Times wrote a primer on the legislation in its editorial on September 28, 2006:
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.
The craven Democrats not only did not filibuster this bill in the Senate, some of them even voted in favor of it. In the House, ‘liberals’ such as Sherrod Brown (now running for the Ohio Senate seat) and Ted Strickland (now running for Ohio governor) also voted in favor of it, thus reinforcing my long-held view that traditional political labels have ceased to have meaning in terms of policy positions that are favored by the pro-war/pro-business party.
(Incidentally, Strickland is also an ordained minister in my old church (Methodist) which suggests that for some ‘liberal’ clergy, torture is just fine with their idea of what Jesus stood for. The minister in the Methodist Church I grew up in, Rev. Arnold Cooper, passed away last month. He was a wonderful, humane man who had a great influence on me. He would have been revolted at the thought of a fellow clergyman in his church even thinking of condoning torture.)
[UPDATE: I stand corrected by Tom Maley in the comments. He is right that Strickland did not vote for or against the bill, but was absent. I have been trying to see if Strickland has made any statement either way about the bill but have not been able to find any mention of it, not even on his blog. So while his silence on such a major issue is disturbing, Strickland deserves my apologies for not verifying the facts of his vote. I should not have been depending on second-hand information.]
What this action has done is to make us all accomplices in these terrible things, while providing amnesty for those administration officials who actually carry them out. History is not going to judge us kindly.
POST SCRIPT: The Iraq war, lie by lie
The lies of this administration regarding the Iraq war are so numerous that one can be excused for feeling overwhelmed trying to keep track of them. Mother Jones has provided a great indexed timeline here. It is a terrific resource for anyone who cares about unearthing the truth that is being buried under high drifts of official duplicity and uncritical media reporting.