The Evil Amendment: Bad News; Still Hope

by hilzoy

The Senate passed a modified version of the amendment I wrote about last night. (Roll call here.) The modified version (text here (pdf)) still strips detainees of any right to a petition of habeas corpus, but allows the DC Circuit Court of Appeals to hear claims from them. The problem, though, is that those claims are very, very limited. To quote the new version: they

"shall be limited to the consideration of whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the procedures and standards specified by the Secretary of Defense for Combatant Status Review Tribunals."

What this means is that all the court gets to consider is whether or not the Combatant Status Review Tribunal Hearing for the detainee in question met the relevant standards. It does not get to consider such issues as: whether those standards are themselves legal or Constitutional. As far as I can tell, it also does not allow a detainee who has been determined to be innocent, but who has not been released, to ask the Court to be released: if the CSRT that found him innocent acted in accordance with its own standards, then the Court cannot consider such further details as whether he has in fact been released.

Don't think this can't happen. There are people who are being held despite the fact that they have been found not to be enemy combatants. An example from the Washington Post:

"In late 2003, the Pentagon quietly decided that 15 Chinese Muslims detained at the military prison in Guantanamo Bay, Cuba, could be released. Five were people who were in the wrong place at the wrong time, some of them picked up by Pakistani bounty hunters for U.S. payoffs. The other 10 were deemed low-risk detainees whose enemy was China's communist government -- not the United States, according to senior U.S. officials.

More than 20 months later, the 15 still languish at Guantanamo Bay, imprisoned and sometimes shackled, with most of their families unaware whether they are even alive."

But the good news is: We can still do something about this. Sen. Bingaman has an amendment which will strike the jurisdiction-stripping provision of Graham's amendment. It should come up for a vote early next week. So please, please, call your Senators again, and ask them to support Bingaman's amendment to Graham's amendment to S. 1042.

Some particularly crucial Senators:

Collins (ME) T: (202) 224-2523 F: (202) 224-2693

Dewine (OH) T: (202) 224-2315 F: (202) 224-6519

Mccain (AZ) T: (202) 224-2235 F: (202) 228-2862

Snowe (ME) T: (202) 224-5344 F: (202) 224-1946

Warner (VA) T: (202) 224-2023 F: (202) 224-6295

Hagel (NE ) T: (202) 224-4224 F: (202) 224-5213

Conrad (D Nd)T: (202) 224-2043 F: (202) 224-7776

Landrieu (D LA) T: (202)224-5824 F: (202) 224-9735

Lieberman (D CT) T: (202) 224-4041 F: (202) 224-9750

Nelson (D NEB) T: (202) 224-6551 F: (202) 228-0012

Wyden (D OR) T: (202) 224-5244 F: (202) 228-2717

Thanks to everyone who calls. And thanks to CharleyCarp, who is my personal hero just now. The knowledge that there are people who are willing to work to secure the freedom of detainees they do not even know is one of the things that gives me hope, and that makes me love my country.

Our country should never be the sort of place where the Secretary of Defense can just drop someone into a legal black hole, where the laws cannot reach, and whence there is no appeal. And we should not tolerate attempts to turn it into such a place. We claim to be a nation of laws; habeas corpus is one of the foundations of those laws, and it is too precious, and too important to the country we want to be, for us to throw it away.

Comments

[washerdreyer]

Any recommendations for what to do if it's very likely your Senators are already going to do the right thing here? I mean, I'm not in love with Sens. Schumer or Clinton, but they tend to be on the side of the angels in these matters.

[hilzoy]

I don't know what to do (I called my safe Senators, Sarbanes and Mikulski, anyways, just to be sure). If any of the various knowledgeable people who read this have some advice about anything else we can do, let us know.

And Washerdreyer: thanks for linking to this.

[hilzoy]

By 'this', I meant my earlier post. Naturally.

It's all a matter of who is to be master: us or the words. Or whatever Humpty Dumpty said ;)

[washerdreyer]

Thanks for the thanks, but I have ≈ no readers. I mentioned it in Unfogged comments as well, more likely to be noticed there.

[Ugh]

I note that the Washington press core thinks this is so important that it appears on page A7 of the Wpost. Though it is currently the top story on nytimes.com (but it's 6am so that may change).

Graham's quote in the Post couldn't be more sad: "We've got a chance here, if we work together, to bring clarity to confusion, to create a legal process that we as Americans can be proud of ...." I'm feeling proud this morning, but for some reason I want to go take a shower.

It's also interesting that the provision just refers to "an alien outside the United States ... who is detained by the Department of Defense at Guantanamo Bay Cuba." Presumably KSM, held somewhere else on God's great earth, can still file a petition.

And what if someone held at Gittmo claims he is a U.S. citizen?

Amerrrrrica, F*ck yeah!

[Dick Cheney]

Why do you hate America so much?

[Edward]

The Road to Tyranny is Paved with Good Intentions.

[cleek]

The Road to Tyranny is Paved with Good Intentions

...and irrational fear.

[SombreroFallout]

People!

Why call only your own Senators?

I just finished calling all eleven Senators on that list. (Not for the first time during the past 3+ years.)

My Senators are Kohl and Feingold. In many cases, your home state senators already agree with you. And the issue is of grave importance to the whole country, so the votes of ALL Senators are crucial to the citizens of ALL 50 states.

And let me tell you, it makes a HUGE difference. A few years ago, there are staffers in Lieberman's office who came to know precisely his immoral silence on Bush's lies were such a damning contradiction from his unctious 'stand' on Clinton's indiscretions. Sen Voinovich and others sat up and took notice when they realized that people knew who John Bolton was and what he had done.

Remember that these staffers and Senators are usually -- almost always -- less informed than you are about these breaking events. Many times they sit up and take notice if you've got specific pieces of information and can cite sources.

Also, today is Veteran's Day. You'll get a recording -- but you can use the date to your advantage, e.g.:

"Our soldiers died to make sure habeus corpus remained the law of the land, and America is the first country that needs to live up to it."

Also, habeus corpus is not "just" about defending individual rights, rather, it rest on the principle that all human beings are endowed with these rights by their Creator -- and that habeus corpus exists to LIMIT GOVERNMENT, to ensure that any government, first and foremost OUR government, lives up to that principle.

Period.

[dutchmarbel]

Magna Carta in 1215:

38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his "law", without credible witnesses brought for this purposes.

39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we refuse or delay, right or justice

[SombreroFallout]

Senator Graham's contact info

Washington Office
290 Russell Senate Office Building
Washington, DC 20510
(202) 224-5972 phone

Upstate Regional Office
101 East Washington Street, Suite 220
Greenville, South Carolina 29601
(864) 250-1417

Midlands Regional Office
508 Hampton Street, Suite 202
Columbia, South Carolina 29201
(803) 933-0112 phone

Pee Dee Regional Office
McMillan Federal Building
401 West Evans Street, Suite 226B
Florence, South Carolina 29501
(843) 669-1505 phone

Lowcountry Regional Office
530 Johnnie Dodds Boulevard, Suite 202
Mt. Pleasant, South Carolina 29464
(843) 849-3887 phone

Piedmont Regional Office
140 East Main Street, Suite 110
Rock Hill, South Carolina 29730
(803) 366-2828 phone

Golden Corner Regional Office (part-time)
135 Eagles Nest Drive, Suite B
Seneca, South Carolina 29678
(864) 888-3330

[KCinDC]

What the hell is Wyden thinking? Lieberman and the other Bush-supporting Democrats I've given up on expecting better from, but Wyman hasn't been with them in the past, has he?

[The Heretik]

You never fail to impress. Send the call out across the nation.

[John Thullen]

Meanwhile, avert thy eyes, oh heathens, from this trivial matter, and notice that Pat Robertson has called calamity and Christian fatwa down upon the heads of the voters of Dover, Pa., who have dared to exercise their franchise and oust ignorant design advocates from their Board of Education.

Now, think about this. Torture -- Whoop-to-doo! Evolution? Why, God, returned again as a man, the Supreme Commander of Christian Terrorism (according to ilky Robertson folk) must strap the explosives of vengeance to his heavenly body and board a bus in Dover, Pa., and kill.

Or should Dover merely expect some chickens with odd symptoms?

Should the Sheriff of Dover demand some arrests in this case of attempted mass murder?

Under my Democratic Adminstration, the Department of Homeland Security will be dispatched to Norfolk in full awful force, and in the shadow of the 7th Fleet, will take Robertson into custody and remand him to a hamlet in Eastern Europe for extensive and piercing questioning.

Make no mistake, Robertson has issued a terrorist threat against an American town in the heartland of the homeland.

Either our worthless government deals with this dangerous, contemptible, murderous fool and his God forthwith, or let vigilant citizens gather themselves (if they aren't too busy strapping guns to their beer guts and harassing Arnold Schwarzenegger's domestic staff as they cross the Mexican border and make their way to Sacramento) and make one hell of a mess in Norfolk.

This s*** stops now.

[Ugh]

Bush today:

evil men obsessed with ambition and unburdened by conscience must be taken very seriously and we must stop them before their crimes can multiply

Turn yourself in to the nearest secret service agent, thank you.

And good lord have we become such wusses that this would happen:

If the terrorists drive America out of Iraq, Bush said, they could develop weapons of mass destruction, intimidate Middle East regimes friendly to the West, attack the United States and "blackmail our government into isolation."

And isn't the latter part of this sort of what Churchill said in response to the threat from Nazi Germany:

"Against such an enemy, there is only one effective response: We will never back down, we will never give in, we will never accept anything less than complete victory."

And just before that:

"No act of ours invited the rage of killers and no concession, bribe or act of appeasement would change or limit their plans for murder," Bush said.

Well we obviously did something to piss them off. Whether we should stop doing it and whether their response was appropriate, are related but separate issues from what "invited the rage of killers." Aren't they?

[John Thullen]

Fox's O'Reilly, who is very close to the Godhead, has now given the go-ahead for his terrorist minions to obliterate the American city of San Francisco.

First Robertson, then O'Reilly and FOX, and now George Bush's speech vilifying his war critics.

My terrorism warning level is now flashing full-red alert. The chatter from numerous sources is very scary. It seems coordinated. Forces are massing.

They may already be in the country.

Where is our government? Why does it refuse to protect us from the terrorist filth among us?

[Ugh]

Where is our government? Why does it refuse to protect us from the terrorist filth among us?

Good one.

[the exile]

If the Democratic Party were a real party with any principles at all, Landrieu, Lieberman, Conrad, Nelson and Wyden would have already heard from Harry Reid that their primary challengers are now being interviewed. They would also be informed that they will not get another dime from the Democratic Party. If Habeas Corpus is a negotiable principle, these men and women are not members of my party.

[BroD]

I thought the GOP was supposed to be in disarray, for chrissake!

[Bostoniangirl]

I know that Corzine is governor elect and all, but I hope he'll try to make it for the vote on the revised amendment.

I find the Oregonians confusing. The Democrat (Wyden) voted for the hideous amendment while the Republican (Smith) voted against.

What's up with Conrad in North Dakota?

And while I don't expect everyone to be a liberal lion like my Ted, I don't understand what makes Ben Nelson a Democrat. I know that Nebraska is a very red state, but how is he really a Democrat? He was a Social Security waffler for a while.

[hilzoy]

Bostoniangirl: one of life's little mysteries, I guess. Similarly for Lieberman. (Speaking as someone from Tip O'Neill's old district, though, I have a pretty strict definition of liberal ;) )

[Andrew]

Just quietly, has your country gone completely mad?

I know the government here in Australia is trying to do some pretty kooky things too, but nothing like this.

[bob mcmanus]

"Just quietly, has your country gone completely mad?"

Constitutional Mutiny

"What the elite classes are chattering about is how to deal with the madman in the White House. Let us say what is obvious: George Bush is barking mad, and so are his ardent supporters. America, in a moment of hysteria decided to elect a madman, and then support him has he went even madder with power. We are now stuck with a country whose every lever of power is controlled by a criminal party, with corrupt judges, corrupt congress, corrupt legislatures, a corrupt media, and a massive debt.

This is why the unthinkable is becoming thinkable. The Republican Party cannot survive three more years of this downward spiral, and unlike Richard Nixon, who was suspicious and vicious - but sane - Bush cannot be pressed to resign. The rumors of Harding's being poisoned are surfacing again, because, absent impeachment and conviction, or resignation, the dark angel is the only way America can change Presidents." ...Stirling Newberry

"Just quietly, has your country gone completely mad?"

Yes.

[Gary Farber]

"I know that Nebraska is a very red state, but how is he really a Democrat?"

By being a Nebraska Democrat, which is not the same as being a Boston Democrat. One can either read his type out of the party, and lose the corresponding number of Senate votes, or not.

Myself, I think politics is more about winning what one can while having to deal with people one disagrees with, than it is about unachievable purity, but views differ. Would another Tom Coburn Republican be preferable to Ben Nelson? (There's a case to be made, certainly.)

"...unlike Richard Nixon, who was suspicious and vicious - but sane...."

Murmur murmur murmur. Not to mention that comparing Nixon just prior to resignation with with Bush's position now is quite insane. Unless I've not noticed the whole "the overwhelming majority of Congress will vote to convict and impeach you next week" thing.

[Paul]

Scott Johnson thinks that opposition to torture is "moral vanity". David Gelertner writes in the LA Times that taking a principled stand for torture is what "integrity, leadership and moral courage" are all about (I know the Unabomber twisted Gelerntner, but the LA Times shouldn't endorse his ravings). The madness is that the Party in power largely agrees with them. George W. Bush and his cronies are mad as hatters--and his groupies are nuttier than he is.

[bob mcmanus]

"Not to mention that comparing Nixon just prior to resignation with with Bush's position now is quite insane."

1. I do not understand:"murmur murmur murmur."
2. I linked and quoted without overt approval or disapproval of Newberry's piece. However, the final "Yes" at the end was intended to be ambiguous. I, not speaking for Newberry who hates me, have been driven mad, or perhaps willfully chose madness, or had a pre-existing madness return by our present situation.
3. Reading the entire Newberry piece, the similarity between Nixon and Bush that Stirling is highlighting is the desire of the rational wing of the Republican Party to remove both men from office. Stirling certainly would agree that that rational wing is not in control of Congress, or willing to impeach. Which is why he mentioned the Harding rumours. And why he laid out a scenario in which Bush could be removed without an actual impeachment.

The other useful comparison between Nixon and Bush is that Bush would never resign, even if impeached. Possibly even if removed by the Senate. Nixon was sane enough to wish to spare the country when the trauma became inescapable.

[bob mcmanus]

Umm, if you are assuming that if Bush were "removed" by the Senate of course he would simply have to pack up and go, I can only say we have not been in such a position before. What enforcement mechanism might come into play if after removal the President still resisted is unknown to me. Perhaps it would depend on the military.

[Bruce Baugh]

Yes, the United States has gone mad.

The Republican Party is the center of it. You can choose as your masters more or less secular fascists or theocratic totalitarians. Every faction of temperance or decency has found it expedient to capitulate except for token protests. (I find this particularly shameful of the libertarians, since I used to be one.)

The Democratic Party is led by people who seem comfortable being in the permanent minority and unwilling and/or unable to stand for genuine principles not espoused by the Republicans. There's substantial rank-and-file interest in something else, but every effort to express that view in effective policy is shouted down. The leadership apparently feels that their Republican counterparts can't mean what they say and do, and proceeds as if the other party still made sense as anything but the vehicle of tyranny.

The press has decided that it's sufficient to present competing claims and never assess their truth.

The American people went collectively nuts in 2001. They're recovering now but they have nobody in the halls of power who can be counted upon to represent their interests. Basically, the moment of madness has been institutionalized.

[KCinDC]

Bob, what does Newberry think would change if Bush were poisoned? President Cheney might have a still lower approval rating, but he'd be president nonetheless. Even if something happened to Cheney, the whole upper level of government is so riddled with corrupt, inept, and/or insane people that no possible replacement would get us off our current track.

[bob mcmanus]

"Bob, what does Newberry think would change if Bush were poisoned?"

Neither Newberry or I were as explicit as you, and I would be careful.

But the assumption is that Cheney leaves first. Now a new VP has to be approved by both houses of Congress, and I would hope even the spineless bottoms who claim to represent liberals would resist the ascension and apotheosis of James Dobson. Likely McCain or someone like him.

Now McCain is no moderate. But we have three more years of "barking mad" and Newberry, along with others, believes we are no longer under the thumb of a mere very conservative President, but an actual honest-to-god lunatic. And the real PTB will not allow Looney Tunes to nuke Iran to save his butt.

[The Oracle]

People are missing the point of the Graham amendment. His amendment is the Bush administration's counterpunch to the McCain amendment.

The Bush administration will defend to the death their "executive privilege" to torture people.

Or should that be stated instead: the Bush administration will defend their "executive privilege" to torture people to death.

Denying habeas corpus, or limiting the issues to be discussed in case a prisoner's complaint actually makes it into a U.S. court, essentially takes the issue of "torture" claims by any prisoner off the table.

One way or another, Bush and Cheney and Gonzales and Rumsfeld will have their "torture" even after Bush said "We do not torture."

Bush is lying.

For the past five years, his administration and it's aberrant policies have been "torturing" our democracy and it's citizens, especially the "least" in our society who don't have fat-cat corporate cronies as cocktail buddies.

This period of rampant White House insanity definitely qualifies as "cruel and unusual punishment." Which means the next three years remaining under Bush's corrupt leadership will be excruciatingly "cruel and unusual punishment"...or "torture."

I wish Bush and his one-foot-in-hell administration would stop "torturing" us and just leave. It's the only humane thing that they can do.

[bob mcmanus]

"People are missing the point of the Graham amendment. His amendment is the Bush administration's counterpunch to the McCain amendment."

Precisely. Both the Graham and McCain amendments will now pass, and the Graham amendment will make the McCain amendment pointless and useless. Or ensure that the guilt and blame will be spread as widely as possible, and the motivation for keeping the tortured hidden be as strong and last as long as possible.

[Dick Durata]

Padilla remains the key case in the campaign against habeus corpus, with all that implies. When the new SCOTUS rules that Dear Leader can order an American citizen held as an enemy combatant, that Rubicon will be crossed for good.