by hilzoy
Chris Dodd has introduced a bill (pdf, thanks to TalkLeft for hosting it) that does the following things:
- Restores Habeas Corpus protections to detainees
- Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
- Bars information gained through coercion from being introduced as evidence in trials
- Empowers military judges to exclude hearsay evidence they deem to be unreliable
- Authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions
- Limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight
- Provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions
He adds:
“I take a backseat to no one when it comes to protecting this country from terrorists,” Sen. Dodd said. “But there is a right way to do this and a wrong way to do this. It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law. But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”
For the last six years, when I wake up in the morning, check the papers, the only question I have really had is: what new horrible thing has the Congress and/or the administration decided to do? It's a wonderful thing to be able to have some hope, however small, that the Congress is going to do something good for a change.
Thanks, Senator Dodd.
Wonder how he's going to override a veto? The Geneva provision alone guarantees he'll have to.
Relatedly, a bleg -- anyone got a link to an item on the notorious CSRT where the accused asked to be told the name of his alleged terrorist associate, and was refused b/c it was "classified"? I was trying to google that up, to no avail.
Posted by: Anderson | November 17, 2006 at 10:49 AM
Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
This is good - much better than the current definition, which I believe is "Anyone the President says is an unlawful enemy combatant" - but it's still not compliant with the Geneva Conventions. Still, the US has been noncompliant with the Geneva Conventions for five years now, and hopefully this is just a first step.
Posted by: Jesurgislac | November 17, 2006 at 10:52 AM
How long until Bizarro World declares that Dodd is surrendering to the terrorists? I'll go look...
Posted by: Ugh | November 17, 2006 at 10:58 AM
God, that's sour. (Me, I mean.)
I apologize for raining on the cake: this is indeed fantastic, and I will go get myself a skinny latte and toast Dodd.
Posted by: Jesurgislac | November 17, 2006 at 10:58 AM
I'm waiting for the Glenn Beck roast if Dodd gets invited on (in the last five minutes of the show B4 the commercials, natch, so the hackery can all explain the 'gaffe' and the honest reckoning with 'righteous outrage', etc.).
Posted by: sekaijin | November 17, 2006 at 11:08 AM
Anderson: link.
And here's the exchange:
There are actually a number of exchanges like that (I have read many, many, many CSRTs). Usually they end with the detainee being escorted out instead of everyone laughing, though.
Posted by: Katherine | November 17, 2006 at 11:11 AM
(sorry, that's not formatted well--some of it is my commentary from an old post. Just click the link.)
Posted by: Katherine | November 17, 2006 at 11:12 AM
What appears to be happening since 11/7 is that other, more reasonable, less belligerent points of view are able to be heard above the jingoistic din, because they aren't being shouted down as a matter of course. Or, at least, those who would like to shout them down have lost enough credibility that they are forced to share the megaphone.
In other words, a guy like Dodd, who is just saying the same stuff he's been saying all along, can now get some traction.
This is really, really a welcome change.
Thanks -
Posted by: russell | November 17, 2006 at 11:25 AM
If this is passed, I guess I expect a veto. It will be interesting to see what comments, if any, come from the military high-ups.
Posted by: JakeB | November 17, 2006 at 11:26 AM
Wether it's vetoed or not, the vote will show where everybody stands.
Posted by: lily | November 17, 2006 at 11:36 AM
This issue is the one thing I had hopes for in the election. It is encouraging. My question is what can I do -- is there anything a pitiful civilian can do to help Dodd move this along? I'm even thinking of writing to my senators asking for their help, futile as that may be (Kyl, McCain being the senators).
Posted by: grackel | November 17, 2006 at 11:53 AM
This is good news. I'm glad Dems aren't waiting until the new Congress to push this debate.
I wonder what that hypocrite McCain will say about the bill.
Posted by: Nell | November 17, 2006 at 11:58 AM
Probably not "I'm tortured as to whether I should support it."
Posted by: Jesurgislac | November 17, 2006 at 11:59 AM
Dodd has been good on these issues, btw.
If I'm remembering correctly his father was a prosecutor at Nuremburg.
Posted by: Katherine | November 17, 2006 at 12:03 PM
Thanks, Katherine.
Dodd's dad was indeed at Nuremburg, Jackson's # 2; see this op-ed by Dodd.
We would do well to remember the words of Justice Jackson: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well."
Posted by: Anderson | November 17, 2006 at 12:10 PM
(1) UNLAWFUL ENEMY COMBATANT.—The term ‘unlawful enemy combatant’ means an individual engaged in hostilities as part of an armed conflict against the United States who is not a lawful enemy combatant.
“engaged in hostilities” – isn’t this pretty open to interpretation? Does this cover the guy assembling IEDs in his basement? What about the terrorist mastermind who only plans operations and never directly participates? In other words, are planning, raising funds, preparing attacks all covered? Or does this define it down to ‘caught in the act of pulling the trigger’?
“against the United States” – if we catch a terrorist who has only targeted Iraqis, that means he doesn’t qualify?
Can someone with the legal knowledge shed some light on this section?
Also the definition of “coercion” is left completely open. Isn’t any evidence not given voluntarily coerced, even if it was nothing more than prolonged questioning?
I’m not necessarily against any of this, but I wish the language was a little clearer.
Posted by: OCSteve | November 17, 2006 at 12:29 PM
Well, since Senator frothy mixture etc. will hopefully be gone by the time this comes under consideration, I will write to both of mine.
Posted by: JakeB | November 17, 2006 at 01:29 PM
Linked without comment for fear of violating the United States Code.
Posted by: Ugh | November 17, 2006 at 02:43 PM
Also this.
Posted by: Ugh | November 17, 2006 at 03:27 PM
Link to the Seton Hall report to which Horton refers.
Posted by: Katherine | November 17, 2006 at 03:49 PM
Wonder how he's going to override a veto? The Geneva provision alone guarantees he'll have to.
Before we even get there, there's no way this thing sees an up or down vote. Are we really going to peel of 9 GOPers (not to mention assorted spineless dems) who are willing to have been against Habeas before they were for it?
Plus, as far as atmospherics go, a filibuster is just not as resonant as a veto.
Posted by: Pooh | November 17, 2006 at 04:00 PM
That's what appropriations bills are for.
I mean, I don't know what % of this will survive, but I wouldn't give up just yet.
Posted by: Katherine | November 17, 2006 at 04:01 PM
Katherine - is there a definition in the Geneva Conventions on who is a "combatant" in the first place?
Posted by: Ugh | November 17, 2006 at 04:02 PM
Ugh, great link. I am now angry.
Posted by: Pooh | November 17, 2006 at 04:04 PM
Ugh, great link. I am now angry.
Sorry to do that to you before the weekend. It made me go to amazon and to pick up a copy of "In the Penal Colony," but thought I'd wait until I finished "The Trial" first.
Posted by: Ugh | November 17, 2006 at 04:10 PM
This is also interesting:
Man Who Knew 9/11 Hijackers Not Guilty of Perjury
Posted by: Ugh | November 17, 2006 at 05:23 PM
Speaking of Bush's interrogation techniques. Methinks the shit is about the hit the fan for GW and his merry band of sycophants.
You can only sweep things under the rug for so long before people notice they're about 10 ft. off the ground and standing on a pile of shit.
Posted by: jcricket | November 17, 2006 at 06:01 PM
Ugh, the short story is on the web in its horrifying entirety. I read it when I was twelve, and have wished ever since that I could erase it from my mind.
Posted by: Nell | November 17, 2006 at 06:25 PM
I hope they make it clear in any bill that U.S. citizens are not to be labeled enemy combatants. In the last bill that was not specified.
Let Bush veto this thing. The light of day has not yet shone on the truth of Bush's push toward authoritarianism. Anything to get the american people to wake up to what has been going on the last five years would be welcome.
Posted by: Paul | November 17, 2006 at 08:31 PM
Chertoff: "International law...has been captured by a very activist, extremist legal philosophy".
Posted by: matttbastard | November 17, 2006 at 10:01 PM
"International law...has been captured by a very activist, extremist legal philosophy".
make your problems your opponents... isn't that a Rove trick ?
Posted by: cleek | November 17, 2006 at 10:05 PM
err "...opponent's"
that apostrophe changes things.
Posted by: cleek | November 17, 2006 at 10:06 PM
OCS, those are good questions. Off the top of my head, I would say that a guy who makes bombs is engaging in hostilities, but that the guy who makes sandwiches for the bombmaker is not engaging in hostilities.
I have no problem saying that a guy who is only interested in hostilities against Iraqis (say a Sadrist who shoots Sunnis execution style in revenge for killings in his neighborhood) is an issue for the laws and authorities of Iraq, not the US. That is, if we catch him, we turn him over. Simple as that.
What is and what is not coercion is going to get hashed out in the cases. You can't anticipate all situations, and if you draw the line too clearly, then people will be running up to it. Better to have a standard that's loose enough that the judge gets to look at the entire context and decide what evidence comes in.
Posted by: CharleyCarp | November 17, 2006 at 11:10 PM
Former Attorney General Ed Meese has an interview in GQ on these topics that....put it this way: there was an interview with George HW Bush's AG, Dick Thornburgh, on the Ali G Show a few years ago. This one makes that look like the Lincoln-Douglas debates, or something.
(Given that the Bush administration defines "battlefield" as synonymous with "earth"--something I strongly suspect Meese knows--the answer is 6.5 billion-ish)
etc. etc.
What is with our string of Attorneys General? Between Ramsey Clark, this guy, and the two most recent, I'm starting to wonder whether Voldemort put a curse on the position after the Kennedy administration.
Posted by: Katherine | November 18, 2006 at 02:20 AM
The whole thingie about what "engaged in hostilities" is why treason was such a handy-dandy accusation against one's political enemies during the later Roman empire and the Renaissance. Almost any activity could be wedged into it. Since treason convictions also could mean confiscation of the estate by the gov't as well as revocations of wills, accusations of treason were always floating around the Italian city-states (especially since changeovers in political power were, um, not very tidy in many cases.) Treason accusations could be brought after the death of the main party for up to 40 years--you can imagine what that did to property rights.
Luckily there were at least a few jurists who managed to remain unimpressed by political power and held the line. There's a very funny consilium written by Decius (French jurist) who obviously had been asked just One Too Many Times to bring a case of treason against a dead relative. Five pages of delicious snark written in legalistic Latin.
Posted by: tzs | November 18, 2006 at 05:16 AM
Isn't it clear that 'treason' is a handy catch-all that gets its utility from its fuzziness? You'd think that given the movement in moral and legal philosophy to more exacting deliberation and definition, then something like treason would now be on a par with witchcraft - a prosecutable offense in what, the 17th century (re: Salem)? The persistence of this anachronism is from its contingency as a political tool, not from any soundness of legal definition. Until a legal scholar, let alone a SCOTUS judge, has the balls to take that on, the courts will either be counted on to uphold some pretty odious legalisms Congress or the POTUS has decided willy-nilly (if said judges are to the right),
or will have no choice but to go along with because 'treason' is still on the books and therefore has to be adjudged within (if they're more liberal).
Posted by: sekaijin | November 18, 2006 at 10:30 AM
sekajin: actually, I don't think treason is all that vaguely defined. Art. III sec 3 of the Constitution: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."
Posted by: hilzoy | November 18, 2006 at 11:03 AM
Off the top of my head, I would say that a guy who makes bombs is engaging in hostilities, but that the guy who makes sandwiches for the bombmaker is not engaging in hostilities.
CharleyCarp, isn't this beside the point? You're surely right on the merits, but is the definition really there "for the merits," or is it deliberately vague to let the administration grab virtually anyone?
As for the loathsome Ed Meese, see the long letter by a USAF vet at TPM, where he describes how crystal-clear it was in his training that waterboarding was torture, practiced by "scum." It's astonishing to him, and should be to us, that the subject is even a matter of debate.
Posted by: Anderson | November 18, 2006 at 12:15 PM
Thanks for the link, Nell.
Alas, I doubt that the Cheneys and Yoos have anything like the strange, wicked, but genuine integrity of the Officer in Kafka's tale.
Posted by: Anderson | November 18, 2006 at 12:27 PM
Anderson, the definition in the Dodd bill is quite different from the definition in the 2004 Wolfowitz order (setting up the CSRTs) which was different again from the definition used in Hamdi. The original definition in the MCA was more like that in the Dodd bill, but it was changed, surely at the request of the administration, because if you used a common sense definition (or the Hamdi definition), you'd have to immediately release hundreds of prisoners.
By the way, I see in the http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111700613.html>Post that the last 3 NEC prisoners were just released. To Albania. I'm going to submit my small intersection with this event for declassification; not because it illuminates anything of current interest, but for use in historical accounts . . .
Posted by: CharleyCarp | November 18, 2006 at 01:22 PM
Hilzoy - I stand corrected, because I couldn't argue against a Constitution-quoter :-) But isn't there still some fuzziness there?
Posted by: sekaijin | November 18, 2006 at 09:31 PM
Sekaijin, there are 'vague' elements to a great many laws, but this doesn't make them unusable. Instead, there are lines of intrepretation, traditions of meaning, for each of the words. No doubt cases come along that don't exactly fit, in which case the courts have to decide where the lines are.
A criminal law that is too vague is not enforceable. I have a favorite (and wrong IMO) example of this, but I can't get the link to work: the decision in State v. Stanko, 292 Mont. 192, 974 P.2d 1132 (1998). Really, read the case, especially paragraphs 15-22. (There's a cut-off copy of the http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=MT&vol=97&invol=486>opinion on findlaw, it has the paragraphs mentioned, but doesn't have the end of the main opinion or the dissent by the Chief Justice.)
Posted by: CharleyCarp | November 19, 2006 at 10:27 AM
Given that Ed Meese was the one who, while he served as Reagan's AG, said that no suspects are innocent, because if they were innocent they wouldn't have been suspected of a crime, I find his statements regarding our captives in the Iraq war sadly predictable.
Posted by: Prodigal | November 19, 2006 at 11:23 PM