In my last post, I asked the question: why are Lindsey Graham and the administration so eager to strip detainees of their legal rights? I considered various arguments that they have advanced, and as far as I can tell, they don't really hold up. Detainee cases are not clogging the courts, and while they might interfere with interrogations by, for example, breaking detainees' isolation and giving them a ray of hope, they do not in any way make it impossible for those interrogations to continue.
So why are they doing this? Everyone has probably figured this out long before I did, but: I was thinking of the habeas-stripping provisions from the point of view of a detainee, who might wonder: what legal recourse do I have if this bill goes through? How can I protest my detention if, for instance, I have been found innocent but not released, or if I have been tortured? The answer to that question is, as far as I can tell, 'you have no recourse'; and that horrified me.
But then it occurred to me to think of it from a different angle: from the perspective of the system of extraterritorial prisons that we seem to be setting up. From that point of view, the main question raised by the "compromise" bill (pdf) is a different one, namely: who has the right to question, in a court of law, any aspect of our treatment of alien combatants held outside the US? As far as I can tell, with very limited exceptions, the answer to this question is: no one but the very same government that set the system up in the first place.
This means, basically, that this bill will remove the entire system of detention, with the exception of its military commissions and combatant status review tribunals, from any judicial oversight at all.
Courts do not get to decide for themselves to investigate some activity that they suspect might violate the law. In order for a court to consider the question whether something is lawful, someone has to bring them a case that raises that question. By preventing anyone but the government from bringing any such case, this bill ensures that unless the government decides to bring one itself, no case that would give the courts a reason to consider anything that goes on during a prisoner's detention and interrogation can ever be brought. Which is to say: it removes the entire system of detention, except for its military commissions and CSRTs, from any judicial review. Literally anything could be going on during interrogation and detention, and the courts would have no way to pronounce on its legality, or to require anything to change.
To see why, consider some sections of the "compromise bill". First, it would add to the statute governing habeas corpus the following provision:
"(c)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who --
(A) is currently in United States custody; and
(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who --
(A) is currently in United States custody; and
(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (p. 82)
(Note: paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005 basically say that courts can hear cases brought by alien detainees only if those cases allege that their civilian status review board or military tribunal did not follow their own rules, or that those rules are not themselves consistent with the laws or the Constitution.)
This applies to all cases pending when the bill becomes law, and of course to any that are filed thereafter. What it means is: no alien detained by the US can file any civil suit about anything other than: whether his tribunal or commission followed its own rules, and whether those rules are legal or constitutional. Specifically, they cannot file suits alleging that they have been tortured during detention, that war crimes have been committed against them, that their rights are being interfered with outside their commission or tribunal, or anything else of the kind. Nor, if their commission or tribunal has found them innocent but the government does not release them, can they protest their continued detention in court.
Basically: no civil suits relating to the conditions in which detainees are detained or interrogated are allowed by this law. Civil suits can be brought by private individuals. Criminal charges, on the other hand, can be brought only by the government. By preventing detainees from bringing civil cases based on the conditions of their detention and interrogation, this bill prevents anyone other than the government from bringing those conditions to the attention of the courts. In so doing, it leaves the question whether the courts will ever have occasion to consider the conditions and practices in extraterritorial detention facilities entirely up to the very same government that instituted those conditions in the first place.
Specifically: the "compromise bill" bans certain forms of torture. As Marty Lederman and others have argued, it defines torture much too narrowly. However, even if its definition of torture were absolutely impeccable, ask yourself this question: how, exactly, would it be enforced? How could the Courts even take cognizance of any torture that might be going on, given that any habeas claim, and "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States" is prohibited?
As far as I can see, the answer is: unless the government brings criminal charges against someone, it couldn't. We could be waterboarding every single detainee every single day; we could be pulling out their toenails with pliers; we could be beating every one of them to a pulp, or asphyxiating them, or sending serious electric currents through their genitalia, or keeping them awake for weeks on end until they became psychotic, or running them over with trucks, and the courts would have no way to stop it.
In any other context, creating such a system would strike us as ludicrous. It would be crazy to set things up in such a way that the question whether the court could take cognizance of an act of recklessness or negligence, or a crime like bank robbery, were left up to the person who had committed it. "Hmm", one imagines someone whose reckless indifference to human life lead to thousands of deaths thinking to herself, "should I allow the courts to look into my conduct, and possibly sanction me? Gosh: what a tough question!" "Heavens," a rapist might add, "I am equally baffled by the question: should I allow the courts to take cognizance of my forcing people to have sex with me? What a conundrum!" And while they were sitting around scratching their heads, their actions would remain entirely beyond the law.
There's no reason I can think of why this should be different. Even if we knew that the present government scrupulously obeyed the law, it would be a terrible mistake to give the government, for the foreseeable future, the power to decide whether the courts could ever consider the conditions in which thousands of people were detained. In the case of this administration, however, it would be insane.
We know that this administration has consistently interpreted the laws governing detention to permit as much as possible. We also know that it takes the position that it has the right to break laws at will. (Article 2 powers, doncha know.) We know that it has a record of abusing detainees, and that in some cases they have tortured people to death. Why on earth would we want to let them completely remove their detention program from any judicial oversight?
Sandy Levinson writes:
"One of the first things contemporary law students learn is that one cannot separate "rights" from "remedies." This basically goes back to Oliver Wendell Holmes' argument, made most concisely in "The Path of the Law" (1897) that a "bad man" interested in knowing what "the law" is will be concerned not with "the law on the books" (Roscoe Pound's term), but, rather "the law in action" (ditto), which means, practically speaking, a "prediction" that the iron fist of the state, usually operating through courts, will be brought to bear if the "bad man" violates the law. If there is in fact no iron fist, then, for the "bad man" at least, there is no law, for there is no cost at all to violating it and the "bad man," by Holmesian definition, is a pure Chicago-type economist concerned only with calculation of costs (the "payment" exacted by the state) and benefits (the gains for one's actions)."
The "compromise bill" defines torture much too narrowly, and it inexcusably allows the President to decide what many of its prohibitions actually mean. But those rights it does create are virtually meaningless, since it not only fails to provide any remedy to those whose rights are violated; it goes to great lengths to ensure that no remedy is available to them. Especially in the hands of the Bush administration, its "protections" are not worth the paper they are printed on.
Levinson goes on to ask:
"So are we on our way toward an American version of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did?"
He then considers whether it's appropriate to compare the Bush administration to the Nazis. He answers 'no', as I would. But that concerns the question: would we be likely to use the sort of structure Fraenkel describes in ways that are comparably awful? Would we, for instance, embark on genocide? Presumably not.
But if we restrict ourselves to the much more straightforward question: are we, in fact, on our way to creating the sort of structure Fraenkel describes?, we don't need to get into those questions. We can say that we, like the Weimar Republic, have a legislature, without having to get into the question whether we and they have used our legislatures in the same ways. Likewise, we can ask whether we are on the way to creating a dual state, "in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy", without implying anything about whether, if so, we are likely to use it the ways the Nazis did. This is a simple question of legal structure*.
As far as I can tell, the answer to the question whether we are on the way to creating a dual state is: yes, and if the "compromise bill" passes, we will actually have arrived. We will, in fact, have two legal worlds: our world, in which people have legally enforceable rights, and the shadow world of the detainees, in which literally anything can be done with impunity, and there are no courts to appeal to.
A country that contains such a shadow world is not the country I love. And this bill is unworthy of my country.
You can find your Senators' contact information here, and your Representative's information here (enter zip code at top left.) Call them and let them know how you feel. This is not partisan; it's about whether or not we live under the rule of law, in a country that cares about basic justice.
* In saying that the question whether we have a dual state is a simple question of legal structure, I don't mean to imply that having such a structure wouldn't, in all likelihood, lead very bad things to happen. I only mean to distinguish the question: do we have that structure? from the quite different question: are we as bad as the Nazis? so that I can say 'no' to the second, and get back to the first.
Having a legal structure that's a standing invitation to torture is quite bad enough. Getting into questions about whether we're as bad as Nazis just makes it easier to overlook this while we congratulate ourselves on the dubious achievement of not being as bad as one of the worst countries in history. I am not interested in stupid comparisons; I care a lot more about trying to figure out how we can be the best country we can possibly be, and what I can to do help us get there.