what’s left of the bill of rights?

A few short years ago, our President said, “freedom from torture is an inalienable human right.” He was, of course, lying. He knew that men suspected of having ties to terrorist organizations were, at the very moment he said those words, being held in secret prisons around the globe and subjected to acts of torture by our own men and at the hands of our proxies. Bush knew that men, some of them no doubt innocent, were being tortured as he spoke and yet he said those words anyway. Torture, at least in the United States, is very much an alienable right.

Since the date that speech was given, we’ve learned a lot. We’ve seen the photos from Abu Ghraib and we’ve learned all about the techniques being used, like waterboarding. We’ve also, it seems, come to the conclusion that we as a people are alright with that — that a little bit of torture is justified in return for the illusion of security.

Right now, we’re in the process of codifying it, along with the further dilution of the Bill of Rights. We’re not pretending any longer – we’re openly embracing it. We’re making torture the law of the land… Here’s a clip from a recent op-ed piece in the New York Times:

…Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism….

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

A professor of Law at Yale has read the legislation and he gives the following word of caution:

Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights…

Fortunately, there are some at the CIA and elsewhere who are pleading with Congress not to go any further down this slippery slope. Torture, as they point out, is not only immoral, but highly ineffective. Hopefully their voices are heard. (John McCain, who should be leading the charge against this legislation, given his personal experience with torture, unfortunately, has opted to toe the Bush line, in hopes that it will get him the nomination in ’08… “Straight Talk Express,” my ass.)

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8 Comments

  1. egpenet
    Posted October 1, 2006 at 9:06 am | Permalink

    Re: Enemy Combatants … the bill distinguishes between citizens who are picked up and legal aliens who are picked up. Citizens would have the right of habeus corpus. This would be small consolation to some wrongly accused citizen who woke up one morning in a dark place in a CIA cellar in Kosovo.

    Be nice to your neighbors. Don’t do or say anything to stimulate an anonymous “tip.” No more LaShish. No more party stores. Buy your gas from white guys. And, oh yah, thank the stars and stripes above that we STILL have a 2nd Ammendment: lock and load.

  2. murph
    Posted October 1, 2006 at 9:14 am | Permalink

    I’m cranky because “Liberal Debbie” Stabenow voted for this mess. I suppose I still have to vote for her, in hopes of breaking off the Senate from the Presidency, but I plan to remember this next time she’s in a primary.

  3. mark
    Posted October 1, 2006 at 9:53 am | Permalink

    Every time I feel like the Bush team is losing momentum, and that people are finally turning against them, something like this happens where the people on our end cave in, afraid of lookikng soft on terrorism. It’s pathetic… And McCain especially should be embarrassed for going along with this, given his history on the issue.

  4. egpenet
    Posted October 1, 2006 at 10:21 am | Permalink

    I anticipate many court challenges. But if they fail … and/or, if we do not succeed in turning Congress over to the Democrats this Fall … religitainment is one alternative (or perhaps it’s back to heavy drugs? … nah, I hated drugs). I know, I’ll join my neighborhood association’s gardening committeee and weed, while the country bleeds to death.

  5. egpenet
    Posted October 1, 2006 at 2:02 pm | Permalink

    BTW … Trusty Getto had a laundry list of abused rights from the workers’ standpoint under the banner of Powerless-
    ness for Labor (and most of the rest of us, as well.) Hence the Season on Discontent here in the US. Too bad the Dems have no coherent agenda that will create a broad agenda in November … still too split on social and international issues, including the Irag, Afghanistan and terrorism “wars.”

  6. gurg
    Posted October 1, 2006 at 2:30 pm | Permalink

    I love waterboarding, especially in summer when the seas are warm. It’s cool that the dudes down in Guantanamo get to take advantage of the warm waters on the Gulf of Mexica.

  7. mike_1630
    Posted October 1, 2006 at 10:10 pm | Permalink

    All this makes me sick…

  8. mark
    Posted October 1, 2006 at 10:47 pm | Permalink

    From our friends at Think Progress. It’s long, but worth it.

    TERRORISM
    Torturing Democracy

    On Wednesday, the House rubber-stamped (253-168) the White House-backed legislation governing the interrogation and trial of terror suspects, “a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.” Yesterday, the Senate passed the measure in a 65-34 vote. This legislation was the result of a supposed “compromise” between conservative lawmakers and the administration. But in reality, the bill was more about making sure President Bush has the opportunity to sign high-profile terrorism legislation before the midterm elections. The bill was drafted in Vice President Cheney’s office and gives Bush “the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture,” and to deny habeas corpus to detainees. Five years after 9/11, the nation is still debating the procedures to fight terrorism. Courts have struck down the past approaches the administration has taken to interrogate and detain terrorist suspects, and may eventually strike down this approach. This legislation won’t protect the nation from terrorists, will put our troops at risk, and will damage American democracy.

    PURE PARTISAN PROPAGANDA: After meeting with Republican senators yesterday, Bush stated, “The American people need to know we’re working together to win this war on terror.” But yesterday’s terrorism legislation was less about winning the war on terror and more about winning the November elections. Bush urgently argued that Congress had to act immediately to approve this “top legislative priority,” but as the New York Times noted, “That’s pure propaganda. Detained terrorists could have been tried and convicted long ago, but President Bush chose not to. … It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency.” Sen. Patrick Leahy (D-VT) argued that the conservative push for quick passage was purely for political gain: “There is no new national security crisis. There’s only a Republican political crisis.” After Wednesday’s House vote, Speaker Dennis Hastert (R-IL) said that lawmakers who voted against the measure “voted today in favor of more rights for terrorists.” House Majority Leader John Boehner (R-OH) added, “It is outrageous that House Democrats, at the urging of their leaders, continue to oppose giving President Bush the tools he needs to protect our country.” Sens. Lindsay Graham (R-SC), John McCain (R-AZ), and John Warner (R-VA), who were initially praised for rising above partisan politics in the interests of American national security, all voted for yesterday’s bill. The public trusted these senators to work out a compromise with the Bush administration, but ultimately, the administration’s partisan agenda won out.

    YOU, TOO, COULD BE AN ENEMY COMBATANT: Congress has handed the Bush administration extraordinary new powers to define who is an “illegal enemy combatant,” potentially subjecting legal U.S. residents, as well as foreign citizens living in their own countries, to arrest and indefinite detention with no hope of appeal. This request — and Congress’s willingness to grant it –has faced severe criticism since, as Sen. Barack Obama (D-IL) points out, in “five years that the President’s system of military tribunals has existed, not one terrorist has been tried. Not one has been convicted. Not one has been brought to justice. And in the end, the Supreme Court of the United States found the whole thing unconstitutional, which is why we’re here today.” The administration can now declare an illegal enemy combatant any “person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States.” As Yale University law professor Bruce Ackerman notes, this legislation may also authorize “the president to seize American citizens as enemy combatants, even if they have never left the United States.” Additionally, Georgetown University law professor Marty Lederman states that these powers won’t be limited to wartime, since the “illegal enemy combatant” status applies to anyone “who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant.”

    DEBATING HOW MUCH TORTURE ‘WE ARE WILLING TO STOMACH’: Sen. Hillary Clinton (D-NY) points out, “This bill undermines the Geneva Conventions by allowing the President to issue Executive Orders to redefine what permissible interrogation techniques happen to be. Have we fallen so low as to debate how much torture we are willing to stomach?” The President is authorized to interpret “the meaning and application” of certain provisions of the Geneva Conventions that bar lesser offenses — “those falling between cruelty and minor abuse.” Center for American Progress Senior Fellow Mark Agrast explains, “The danger is that this will enable the president to continue to misconstrue the Conventions as permitting practices which they clearly prohibit. For example, the bill prohibits ‘grave breaches’ of the Geneva Conventions but fails to state whether the prohibition applies to the CIA’s ‘alternative interrogation procedures.’ Unless Congress makes clear that such techniques as waterboarding, stress positions and extreme sleep deprivation are categorically prohibited under the Geneva Conventions, the president will resolve the ambiguity by continuing to engage in them.” The legislation also chillingly turns back the clock on rape and sexual assault, narrowly defining rape as forced or coerced genital or anal penetration and utterly leaving “out other acts, as well as the notion that sex without consent is also rape, as defined by numerous state laws and federal law.” It also defines sexual assault as requiring physical contact, which would “not include ordering a terrified female prisoner to strip and dance, which happened in Rwanda, or compelling a male prisoner to strip and wear women’s underwear on his head, or photographing naked prisoners piled together, both of which happened at Abu Ghraib.”

    A ‘BEAT-UP-CHEVY’ VERSION OF JUSTICE: Under this bill, unlawful enemy combatants — which can cover anyone in the United States who is a non-citizen — will lose their seven century-old right to challenge their imprisonment. Bruce Fein, a senior Justice Department official in the Reagan administration, recently testified against the provision at a Senate hearing. Kenneth W. Starr, a solicitor general under President George H.W. Bush, said in a letter to Senate Judiciary Chairman Arlen Specter (R-PA) that he was concerned the legislation “may go too far in limiting habeas corpus relief.” This provision provides the largest opening for the Supreme Court to overturn the law. Agrast notes that the legislation likely violates Article I, Section 9 of the Constitution, which provides, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Georgetown University law professor Neal Katyal said the bill’s creation of a different system of justice for non-citizens may violate the Constitution’s 14th amendment, which requires equal protection of the laws to anyone under U.S. jurisdiction. “If you’re an American citizen, you get the Cadillac system of justice. If you’re a foreigner or a green-card holder, you get this beat-up-Chevy version.” Nine retired federal judges recently sent a letter to Congress arguing that “eliminating habeas jurisdiction would raise serious concerns under the Suspension Clause of the Constitution. The writ has been suspended only four times in our Nation’s history, and never under circumstances like the present. Congress cannot suspend the writ at will, even during wartime, but only in ‘Cases of Rebellion or Invasion [when] the public Safety may require it.'”

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