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torture, habeas corpus and the rights of the accused
I don't know about you, but I'm having trouble keeping up with latest proposed bills & "compromises". Marty Lederman at Balkinization has been the go to site for the documents and analysis of last week's McCain/Warner/Graham "compromise" and yesterday's "update". There appears to be so many problems with these proposals, that I'm left to conclude that the purpose is to allow President Bush wide latitude in determining who is an "unlawful enemy combatant" and how they can be treated and tried - while limiting the rights of the detained and making the laws so complicated and vague that President Bush can claim them to mean whatever he wants them too mean.
Glenn Greenwald's latest at Salon.com, "The president's power to imprison people forever", is a must read for legal and political analysis:
The administration is obviously aware of the transparent, and really quite pitiful, election-based fear that is consuming Democrats and rendering them unwilling to impede (or even object to) the administration's seizure of more and more unchecked power in the name of fighting terrorism. As a result of this abdication by the Democrats, the Washington Post reports, the administration spent the weekend expanding even further the already-extraordinary torture and detention powers vested in it by the McCain-Warner-Graham "compromise."
The CCR, Amnesty International and the ACLU are heros, fighting this every step of the way. The National Council of Churches has taken out a full page advertisement, "Torture is a Moral Issue"....The tyrannical nature of these powers is not merely theoretical. The Bush administration has already imprisoned two American citizens -- Jose Padilla and Yaser Esam Hamdi -- and held them in solitary confinement in a military prison while claiming the power to do so indefinitely and without ever having to bring charges. And now, it is about to obtain (with the acquiescence, if not outright support, of Senate Democrats) the express statutory power to detain people permanently (while subjecting them, for good measure, to torture) without providing any venue to contest the validity of their detention. And as Democrats sit meekly by, the detention authority the administration is about to obtain continues -- literally each day -- to expand, and now includes some of the most dangerous and unchecked powers a government can have.
Where is the Democratic leadership on this? Only one Democrat bothered to show up (thank you Senator Leahy) at yesterday's Senate Judiciary Committee Hearing, "Examining Proposals to Limit Guantanamo Detainees’ Access to Habeas Corpus Review" (audio of the hearing at the link). Now, I'm inclined to give Senator Kennedy a pass since he had a death in the family last week and was out of town until today.... But where are the rest of the Democrats - not just at this most recent hearing, who's standing up ANYWHERE on this critical issue? Very few as far as I can tell (in MA, Representative Markey is one).
I called Senator Kerry's office again this morning and was told that his position is that new legislation must 1. prohibit torture, 2. hold the President accountable, and 3. give the courts the power to check the President and prohibit indefinite illegal detentions. When I asked if Senator Kerry thought ANY of the proposed bills met his criteria, and by the way what is Senator Kerry's definition of torture, I was told I'd have to speak with a member of Senator Kerry's staff, Chris Wyman the Veterans’ Affairs Senior Policy Advisor. I was forwarded to voicemail, where I left a message with my questions, my phone number and my email addy. No response as of yet. What is so hard about this? There's been plenty of time to review the legislation - if it is considered an important issue.
I’m so frustrated, I don’t what to say.... I actually have no idea what Senator Kerry’s “three tests” mean in the context of current legislative/administration proposals and the current situation in gitmo (and elsewhere). For example, even President Bush says we do not torture. The questions being debated are “what is torture?", “who gets to define what is torture?” and "how will the requirements of Geneva Convention's common article 3 apply?". What kind of legal protections does Senator Kerry think will "prohibit torture"?
Are Democratic Party Leadership trying to demoralize the base? I think it's even worse that... I'm one the people who doesn't think it's impossible to reach out to Republicans, and have been trying to do so. These have been the issues that have resonated with conservatives - the immorality of torture, the rule of law and the constitutional issues. I am going to have NO chance to move conservatives into voting D this November if the Democrats won't defend these basic, fundamental issues.
As Redshift says, "the reason the GOP is able to paint the Dems as “weak” is not because they’re not tough-guy warmongers, it’s because they won’t stand up for what they believe in".
Here are my 9 tests, and any Democrat who doesn't support them has no right to expect my support:
1. a narrow definition for "unlawful enemy combatants" that applies only to battlefield detainees
2. military tribunals for battlefield detainees only
3. no indefinite detention
4. no secret evidence
5. no coerced evidence
6. habeas corpus rights for detainees
7. no redefining the Geneva Conventions
8. no amending the War Crimes Act
9. any proposal must provide justice in the Arar, El-Masri, Padilla and Hamdi cases
NOTE: graphic is from dave's postcard.
