I have now read the new draft of the Graham/Warner bill on military commissions, which Jack Balkin has helpfully posted here (pdf). It's very bad.
* It would eliminate the right of any alien who is in US custody outside the US, or who "has been determined by the United States to have been properly detained as an enemy combatant", to file for habeas corpus.
*It would eliminate the right of any such alien to take any legal action against "the United States or its agents" concerning the conditions of his or her detention, other than to appeal the results of Civilian Status Review Commissions or military tribunals.
* Both of these provisions apply to all cases pending when the bill becomes law, which means that any of the cases currently wending their way through the legal system that haven't been resolved by that time become moot.
* It changes the definition of war crimes: currently, any conduct that violates Common Article 3 of the Geneva Conventions counts as a war crime; the draft bill changes this to "a grave breach of common Article 3".
* And it makes this paragraph from the Detainee Treatment Act applicable to any prosecution for war crimes involving violations of Common Article 3 after 9/11/2001:
"In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful."
Which basically means: if the government's lawyers said it was legal, and if a normal person would not have known that it wasn't legal, then the government and its agents can't be prosecuted for it. Given all the things the government's lawyers said were legal, this immunizes a lot of people for a lot of actions.
This is a terrible, terrible bill. What bothers me most is the denial of habeas rights. Denying the right to file for habeas corpus to all people detained outside the US, or who have been found to have been properly detained as an enemy combatant, means that virtually all detainees would have no legal recourse if they felt they had been unjustly imprisoned, or if their legal rights had been violated. As Katherine noted earlier, only ten detainees have been charged under military commissions so far. There are approximately 455 detainees at Guantanamo now; as of May, there were about 560 at Bagram, and who knows how many elsewhere. That means that even leaving aside the question of detainees who have already been released, in most cases after years of confinement, less than one percent of detainees face military commissions. This draft bill would strip the remaining 99% of any right to legally question the government's right to detain them.
Those stripped of the right to file habeas petitions would, I think, include those who have been found by Civilian Status Review Boards to be "no longer enemy combatants". Habeas rights are denied to anyone who has been determined "to have been properly detained as an enemy combatant"; finding that someone is "no longer an enemy combatant" does not imply that that person was never an enemy combatant, or that they were not properly detained in the first place, even though in practice, that is what it seems to mean. As I read this draft, if the government finds that someone was "properly detained", but that that person is no longer an enemy combatant, it can continue to detain that person indefinitely, and he or she has no legal recourse whatsoever. This is, of course, not just a hypothetical possibility, as the case of the Abu Bakker Qassim and Adel Abdu Hakim, two of the Uighurs who were detained for over two years after their CSRT had found that they were not enemy combatants, makes clear.
Our country ought to stand for certain values, including freedom, fairness, and the rule of law. But we do not stand for these values if we allow this bill to be passed in its current form. We do not stand for freedom if we allow our government to toss people in prison without any recourse at all. We do not stand for fairness if we do not allow them the chance to show that they are innocent, or require that the innocent be set free. And we do not stand for the rule of law if we allow our government to strip people of the right to argue that they have committed no act of aggression against us, and thus should not be imprisoned.
In a famous passage, Blackstone wrote:
"Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end of all other rights and immunities. (...) To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."
Blackstone added that "sometimes, when the state is in real danger, even this may be a necessary measure." But we should never undertake it without asking ourselves whether, in a given case, it is really necessary. To set aside our commitment to liberty and the rule of law because our security absolutely required it would be tragic. But to throw it away without good reason would be an ignoble act of folly.
To echo a point that Andrew made earlier, terrorists cannot possibly bring down this country and all that it stands for. Only we can do that. This bill represents one more step, and an important one, in our flight from the values that we want our country to stand for. And those values matter too much for us to let them go without a fight.
I would therefore urge all of you to write to Senators Warner, Graham, and McCain, and urge them to change those parts of their draft that strip detainees of habeas rights; and to write to your own Senators and Congresspeople urging them not to vote for any bill that does this. Contact information for Senators can be found here; for Representatives, it's here.