Hand Reporting Belatedly To Deck

by hilzoy

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.

Thanks.

Comments

[cleek]

goodbye rights. it's been fun.

[Hop Sing]

Can we really have any confidence at this point that any obstructionistic contact with our government won't potentially put our names on a future official enemies list? Slippery slope and all. Just saying.

[Ugh]

terrorists cannot possibly bring down this country and all that it stands for. Only we can do that.

Nothing, NOTHING, matters more to Karl Rove & Co. right now than retaining GOP control of the House and Senate after the 2006 elections. He would have GWB saute live kittens and eat their eyeballs on national TV if he thought it would keep the two chambers in Republican hands.

Bringing down the country would be fine with them.

[cleek]

Can we really have any confidence at this point that any obstructionistic contact with our government won't potentially put our names on a future official enemies list?

no.

the GOP and many of their supporters have already accused half the country of treason - and there's good reason to think they mean it. it's not much of a leap from that to 'enemy combatant'.

[kenB]

goodbye rights. it's been fun.

cleek, was that the 21st-century version of the Billy Budd line?

And farewell to ye, old Rights o' Man! Never your joys no more.

[cleek]

can't decide if i'm proud or ashamed, but no - i've never read any Melville.

[kenB]

I have, but that one line is pretty much the extent of what I remember.

[rilkefan]

"Bringing down the country would be fine with them."

Umm, this seems a bit much. Why can't they just be wrong and irresponsible?

[dmbeaster]

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;

Fat chance since sabotaging the legal system in order to "fix" it is a favorite Republican tactic.

This detainee bill the legal version of this:

"Every ten years or so, the United States needs to pick up some small crappy little country and throw it against the wall, just to show the world we mean business."

Just replace "country" with "law." This bill is about ignoring the rule of law in order to show how tough we are. The only effective response is to call it exactly that, and force Republicans to defend thugishness.

These proposals can be defeated only by stressing a narrative storyline as to what is wrong here, and that storyline is about the phony macho bravado and fear-mongering of the Republican leadership that would make us all bullies and thugs in a false plan to make us "safe."

You should offer Warner, Graham and McCain a chance to star in the newest TV game show -- You Too Can Turn the Thumb Screws on a Detainee!. That is what this bill is all about.

[rilkefan]

Btw the nice people answering the phone want to know the # of the bill in question, though they accept a description.

[Ugh]

Umm, this seems a bit much. Why can't they just be wrong and irresponsible?

Sorry, let me be a bit less hyperbolic: they would be fine with it, now, if it meant they could retain control of Congress after the fall election. They may wake up and regret it sometime next summer when they realize what they've done (or some of them might), much like a college kid with a hangover, but while the drinking is going on, it's full steam ahead.

Though I guess that's kind of like "wrong and irresponsible."

[dutchmarbel]

In the good old days, we used to tease Americans that they always have to brag about how everything is bigger in the States. Darn; even your "Wir haben es nicht gewusst" must be bigger and "Sie duerfen es nicht wissen" is a creative expenditure.

[Catsy]

I have no idea what dutchmarbel just said, but it sounds dirty.

[rilkefan]

I assume there's a Godwin(esque?) ref in "We didn't know" and "You're not allowed to know".

[bob mcmanus]

"Umm, this seems a bit much. Why can't they just be wrong and irresponsible?"

"much like a college kid with a hangover, but while the drinking is going on, it's full steam ahead."

For God's sake. My annual hate-free day was yesterday.

[Ugh]

My annual hate-free day was yesterday.

Hangover?

[Joe]

"a grave breach of common Article 3". Is this like being a little pregnant?

I'd be interested in a clarification. It sounds like the people not covered here are felt not to have habeas rights per the Constitution (it isn't just a "suspension"), even if they clearly are under U.S. control.

I'm with Prof. Cole in rejecting such a limited view of our constitutional obligations. Also, Rasul v. Bush was ultimately statutory, but implied the statute matched constitutional obligations. In fact, if I'm reading the first provision right, an alien need not be "outside" the U.S. to lose habeas rights in certain cases.

I really don't see how Kennedy in Rasul would buy that. Would this really pass constitutional muster?

[Joe]

but putting that aside, simple fairness is at stake here, and the rule of law. It's like all this talk of 'treaty' obligations as to the Geneva Conventions. Should that even have to be mentioned to stop torture and mistreatment?

[Katherine]

Thanks hil. You're not late--there's not even a bill # yet, I don't believe.

Note that the real danger here is that the Graham-McCain-Warner proposal is in the moderate detainee bill, the one the Democrats were saying a week or two ago they were inclined to support. And it is preferable to the administration bill, but the differences are much less than they are being portrayed in the press.

As far as I know there are three "No Longer Enemy Combatants"--people cleared by their CSRTs--still in Guantanamo. Of course, there are also plenty who should have been cleared by their CSRTs but weren't.

The problem with the war crimes part isn't so much the stuff about "grave breaches" as the specific definitions given--specifically, the definition of "cruel, inhuman, and degrading treatment." See here for a not-at-all succinct explanation.

[rilkefan]

"there's not even a bill # yet, I don't believe"

Ah, that would explain why I didn't have it written down when I called my bad senator.

[damon]

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.

I'm glad to see this point being made here repeatedly lately. There is a very real, political counternarrative according to which the US is in real and immediate danger of being destroyed by Islamic terrorists. It's an absurd, fantastical, Lord Of The Rings view of the world, but it seems to be a major element of the GOP strategy for not losing the upcoming elections. It needs to be explicitly resisted, indeed mocked, as much as possible over the next couple of months.

[bob mcmanus]

This thread is still open, so I will explain what I meant at 6:11. I have tried once already.

"Wrong & irresponsible" could describe tax cuts. If so, I think you need stronger language to describe torture, suspension of habeas, and withdrawal (OK, maybe partial, is such an act makes sense) from the Geneva
Conventions.

"Bringing down the country" may be too strong, but it mostly strikes me as vague.

[Louise]

Well, I've just had two phone calls to Senator Clinton's office which resulted in (1) a "please hold message"; (2) ~7 minutes of hold music; (3) ringing; (4) the busy signal and a cut-off.

It's just the Constitution at stake. Should I keep trying? Gee, I don't know.

[bubba]

And what then is to stop other countries from following suit, and start detaining american citizens all willy-nilly? Guess most americans don't care, as they have never left the 200 mile radius surrounding their birthplace. However, a lot of us do travel...

[bubba]

And what then is to stop other countries from following suit, and start detaining american citizens all willy-nilly? Guess most americans don't care, as they have never left the 200 mile radius surrounding their birthplace. However, a lot of us do travel...

[Detlef]

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.

How can that be legal?
I mean, thinking it through, it ends in a kind of 1945 Nazi offical defense. Kind of like "what was legal and right back then can´t be illegal and wrong today".

I am a German and unfortunately I heard something like that back in the 1970s and 1980s. That quote for example was used by a West German politician when it was discovered in the 1970s that he was a navy judge during WW2 in Norway. And giving out death penalties to deserters around the time of the unconditional surrender of Germany in 1945. IIRC one or two even after that date but before allied troups arrived in Norway.

Are you really sure you want to use that exact same justification in the USA today?
That is frightening!

[The Heretik]

The lesser of two evils proves itself again evil. Are we supposed to applaud this great victory because we have lost less than under what Bush would have prefered? And how is it these guys who always talk about clear good and evil take the color of their despised moral relativism to get results?

[SomeOtherDude]

I've written it before, "Right-Wing Nationalists, throughout the history of Western civilization, tend to act predictably."

[owlbear1]

I notice a strong requirement for there to be at least the 'appearance' of a rule allowing the action. Even George's 'signing statements' literally spell out a rule he will follow in order to apply unspecified methods of persuasion. Its an interesting fixation.

[Jesurgislac]

Detlef: How can that be legal?
I mean, thinking it through, it ends in a kind of 1945 Nazi offical defense. Kind of like "what was legal and right back then can´t be illegal and wrong today".

But, as I understand it, in order to try Nazis for doing things that were perfectly legal in German law at the time the Nazis did them, the Allies effectively had to invent a new status of criminal charge: crimes against humanity. To argue that some things were so wrong that a national government could not be allowed to make them legal.

And, one of the clear lines of reasoning in defining crimes against humanity (whether or not it was ever publicly admitted) was "If we did it to them, it's not a crime." So bombing cities in the sure knowledge that this would kill thousands of civilians was never defined as a crime against humanity, because though the Nazis had done this to London (and Liverpool, and Exeter, and other cities in the UK, with a civilian death toll of over 60,000) the Allies had done the same to German cities, with a civilian death toll of over 600,000 - and of course the US had done it to Hiroshima and Nagasaki, killing as many civilians in a minute as the Germans took months to kill.

So, killing civilians by means of aerial assault was never declared a crime against humanity, because both sides did it.

I fear that torturing prisoners, even to the death, may go the same way.

[liberal japonicus]

But, as I understand it, in order to try Nazis for doing things that were perfectly legal in German law at the time the Nazis did them, the Allies effectively had to invent a new status of criminal charge: crimes against humanity.

I know we've talked about this, but (no offense, Jes) the category of aerial bombing isn't the clearest way to set out what was going on. I think that the point of Nuremberg was that the Germans were very careful to create a legal basis for all their acts. Thus, before Jews in occupied territories were taken, the legal basis for the action was created, which was to first declare that those in the territory were citizens of the Reich, and then citizenship was stripped from the Jews so that they were stateless people and were unprotected by any government. Richard Rubenstein lays out this argument in his book The Cunning of History, my copy is at the office, but this blog post has the key points, as well as some other points of interest.

In order to understand more fully the connection between bureaucracy and mass death, it will be necessary to return to the apatrides. They were the first modern Europeans who had become politically and legally superfluous and for whom the most “rational” way of dealing with them was ultimately murder. A majority of the apatrides had lost their political status by a process of bureaucratic definition, denationalization. (Rubenstein, 31)

Men without political acts are superfluous men. They have lost all right to life and human dignity. Political rights are neither God-given, autonomous nor self-validating. The Germans understood that no person has any rights unless they are guaranteed by an organized community with the power to defend such rights. They were perfectly consistent in demanding that the deportees be made stateless before being transported to the camps. They also understood that by exterminating stateless men and women, they violated no law because such people were covered by no law. Even those who were committed by religious faith to belief in natural law, such as the hierarchy of the Roman Catholic church, did not see fit to challenge the Nazi actions publicly at the time. (Rubenstein, 33)

This is one reason why I thought the story of the two men from Lodi who were American citizens but were not permitted to reenter the US was noteworthy and why, even though the story disappeared when they were permitted to return (I think), I believe that the story needs to be examined and kept in mind.

[SomeOtherDude]

LJ,

thanks, nice history lesson.