Friday, September 29, 2006

Nice Constitution you've got there. Shame if something happened to it.

We usually try to keep things light and cheery around here, but the latest news from our nation's capital is not encouraging. My teacher Alan Wolfe wonders whether we are living in a Philip Roth novel. (I think he means this one.) In case you missed it, the Senate has approved the President's torture bill--the Military Commissions Act of 2006--and it now appears to be official US government policy that it is OK to hide people and torture them, to make those decisions in secret, and to not have to answer to anyone about it. Here's the Times:

The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated. … The legislation … strips detainees of a habeas corpus right to challenge their detentions in court and broadly defines what kind of treatment of detainees is prosecutable as a war crime. … The legislation broadens the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in this country as well as those in foreign countries, and also anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense. It strips detainees being held at Guantanamo Bay, Cuba, of a habeas right to challenge their detention in court, relying instead on procedures known as combatant status review trials, which have looser rules of evidence than the courts. It allows evidence seized in this country or abroad to be taken without a search warrant.


The bill was effectively railroaded through Congress by a panicy and corrupt majority party worried about how they're going to fare in the November elections and aware that the only credibility they still have (well, not with me, but undoubtedly with some Americans) is on the GWOT. I might be even a little bit reassured if I felt that the federal government, under the stewardship of George W. Bush, was doing all it is able to do to deal with the problem of terrorism properly, but, as they have shown time and agan, they aren't up to the task. (Bob Woodward's new book is the latest in a long stream of books by serious people demonstrating the utter imcompetance and mendacity of the Bush Administration, but that's the topic of another post. The Post is set to have excerpts all next week. Here's a taste.)

We ought to be clear about what the bill actually says and does. Yale law professor Jack Balkin has a nice post on his blog which makes several important points:

First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva's status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

Second, the President remains bound by the prohibitions against cruel, inhuman and degrading treatment found in the McCain Amendment, and the substantive tests of the Fifth, Fourteenth and Eighth Amendments, whether the conduct occurs in the United States our outside of it…. If the President violates these standards, or directs others to do so, he violates the law…. There is just no judicial remedy for the violation.

Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don't hold your breath.) The President wanted it this way: He wanted to be able to say that he was following the law, but, just in case he wasn't, he didn't want to be held to account for it in any court proceeding….

Third, although the MCA attempts to eliminate judicial review, and in particular the writ of habeas corpus, it is by no means certain that it has succeeded. The suspension of habeas may be unconstitutional. Any such suspension must be consistent with the Suspension Clause of Article I, section 9…. In addition, it is by no means clear that the MCA can successfully eliminate rights that detainees have under the Fifth Amendment's Due Process Clause.


To sum up, major parts of the MCA apply to American citizens, and there is essentially no judicial remedy for wrongs done under this new regime. I'm really not sure what this says about our country. It is, however, shocking to me that so many self-described conservatives are going along with this. It undoubtedly has something to do with the cult of Dubya. Can you imagine them entrusting this much power to Bill Clinton?

I have a feeling that this will be one of those episodes in American history--like the Faustian bargain over slavery, the Alien and Sedition Acts, and the internment of Japanese Americans during World War II--that we will one day look back on with considerable regret and shame.

Posted by jwb at 11:30 AM   

0 Comments:

Post a Comment
« home