Things are happening fast in the Capitol.
First, as though the first “compromise” bill on the Geneva Conventions, military tribunals and detainee treatment wasn’t bad enough, Republicans over the weekend made more than 100 changes to the bill that, if such a thing were possible, made it worse.
The Washington Post is also now reporting that Democrats have caved in completely, and, far from filibustering the bill, have agreed to “debate the bill for less than a dozen hours and then vote on it.”
What’s wrong with the bill?
Well, you can go read it for yourself, but it’s kind of long. Here are the bad parts:
- The government gets to decide who is an “unlawful enemy combatant”, using whatever mechanism it chooses. US citizens can be so designated.
- Such people can be held indefinitely, without trial.
- Non-US citizens are barred from challenging their imprisonment on any grounds whatsoever. If the government feels like holding them for the rest of their life, with no evidence whatsoever and without ever convening a trial, the prisoner has absolutely no recourse. For good measure, this is backdated to 9/11.
- Non-US citizens are also specifically barred from challenging “any aspect of the detention, transfer, treatment, trial, or conditions of [their] confinement”. If the government feels like using, say, torture or rape, prisoners have absolutely no legal recourse. This is also backdated to 9/11.
- If the government chooses to bring a detainee to trial:
- Evidence obtained through coercion (but not outright torture) may be used if the presiding officer decides it’s OK
- Evidence obtained by any means (including torture), obtained before December 30th, 2005 (when the Detainee Treatment Act went into effect) may be used if the presiding officer decides it’s OK
- Hearsay evidence is usable, subject to a challenge where the burden is on the defense to demonstrate that the evidence is is unreliable
- Geneva Convention protections are substantially weakened. The government has already said that the bill will permit various “enhanced” CIA interrogation techniques that had to be suspended when the Supreme Court ruled that the Geneva Conventions apply to terror detainees.
- To ensure that courts cannot fully apply the Geneva Conventions, the bill forbids anybody whatsoever from ever claiming that the Geneva Conventions are a “source of rights”, in any court of law.
- The narrowing of the Geneva Conventions is backdated to November 26th, 1997, to ensure that anyone who may have committed felonies by violating the Conventions can never be brought to trial.
- Beyond the specific violations provided for by the bill, the President is granted the authority to interpret the Geneva Conventions for purposes of determining what is or is not a treaty violation. Of course, none of these determinations are reviewable by a court.
Here are some snippets of commentary on the bill from various legal observers:
Glenn Greenwald writing in Salon:
This entire controversy arose because the U.S. has been using “interrogation techniques” — such as induced hypothermia, “long standing,” threats directed at detainees’ families and waterboarding — that are widely considered to be torture, and therefore in violation of the Geneva Conventions. The only thing the president wanted was to ensure that the CIA could continue to use these techniques, and that, unquestionably, is precisely the outcome of this “compromise.”
[I]f a person at Guantanamo Bay isn’t in fact a terrorist and isn’t a danger to the United States, but never is subjected to a military commission hearing, there is no way they can get out if the military wants to hold them.
Similarly, if the Administration decides not to bring a particular detainee to trial before military commission but just use them as a source of information by repeatedly torturing them [...] there is no way for a person abused in this way to contest it and stop it, even if it violates the Geneva Conventions.
If the McCain-Graham-Warner bill is passed in its present form, it will also undermine America’s values. Because it will leave the innocent and the harmless, and those illegally abused but never brought to trial without a remedy.
It will perpetrate a mockery of justice.
David J. Luban writing in Slate:
Technicality now triumphs over conscience, and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain. It systematically distinguishes “severe pain”—the hallmark of torture—from (mere) “serious” pain—the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as “bodily injury that involves … extreme physical pain.” To untutored ears, “extreme” sounds very similar to “severe”; indeed, it sounds even worse than “severe.” But in any case, it certainly sounds worse than “serious.” Administration lawyers can have a field day rating painful interrogation tactics on the Three Adjective Scale, leaving the rest of us to shake our heads at the essential lunacy of the enterprise.
The provisions in the bill are so extreme that I had intended this morning to urge everyone reading this to call or write their senator to encourage them to filibuster the bill, which would be the only remaining way for Democrats to block it.
As I mentioned, though, it appears that the Democrats have given up entirely and that the bill may become law as early as this evening or tomorrow.
Have a nice day.