The Torture Bill’s Biggest Flaws

Ken AshfordWar on Terrorism/TortureLeave a Comment

From the New York Times:

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.

Nice summary.

Publius points to these quotes:

On this day, prescribed by law and marked by ceremony, we celebrate the durable wisdom of our Constitution, and recall the deep commitments that unite our country.

From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.

Advancing these ideals is the mission that created our Nation. It is the honorable achievement of our fathers. . . .

We will persistently clarify the choice before every ruler and every nation: The moral choice between oppression, which is always wrong, and freedom, which is eternally right.

We will encourage reform in other governments by making clear that success in our relations will require the decent treatment of their own people. America’s belief in human dignity will guide our policies.

Those quotes are all from Bush’s Second Inaugural Address, and every thing he said is belied by his advocacy of the torture bill — an unconstitutional bill which shows how Bush’s America is opposed to the principles of freedom, human dignity, and the rule of law.

Put another way: The writ of habeas corpus is one of those basic foundations of modern Democracy. Without it, words like liberty and freedom have no meaning.

UPDATE:  Law Professor Bruce Ackerman explains what the legislation means.  If you only remember one thing, remember this:

"The compromise legislation, which is racing toward the White House, 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 other of the normal protections of the Bill of Rights."

Glenn may sound hyperbolic, but the fact is, he’s not.

There really is no other way to put it. Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period.

But maybe the last word should go to founding father Patrick Henry:

Is the relinquishment of the trial by jury …necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings–give us that precious jewel, and you may take everything else! …Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

UPDATE – THE SILVER LINING:  Specter’s attempt to put habeus corpus back in the bill failed to pass the Senate by a 51-48 margin.

The good news is that this bill is so transparently unconstitutional (at least, the part suspending habeus corpus) that it simply will not surive the courts.

In the meantime, expect more of this: