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Roger Fitch Esq
28 September, 2006  
Our Man in Washington

The Bush administration has just managed to get through Congress one of the most pernicious pieces of legislation ever contemplated in a democracy. It winds the clock back to pre-Magna Carta for “enemy combatants”, authorises torture and provides war crimes immunities for the president and his cronies. And everything is placed beyond judicial scritiny

imageThe Omnibus Military Commissions, Torture Authorization and War Crimes Impunity Bill 2006 (my name, not theirs) is to become law. In the process Congress will abrogate the Geneva Conventions, end customary international law and, for good measure, abolish habeas corpus for non-citizens, effectively blocking the judicial review that is essential to stopping the Bush juggernaut.

There was little, if any, opposition in the Senate from the craven Democrats, who are determined to remain non-combatants in any battle of the Bush Wars just before an election. In fact, the bill has already passed in similar form in the House, with 34 (of 194) Democrats supporting it.

Congress has intervened in what Jennifer van Bergen calls George Bush’s War on Terra to cover-up, validate or even expand the most egregious follies and crimes of the Bush administration. If terrorism is future crime, there is terror in this bill.

In my last post I reported on the shocking Military Commissions Act 2006 proposed by the Bush administration. You will recall that some Republican senators, Warner, Graham and McCain, were unhappy.

The senators offered a counter-proposal, but it didn’t please everyone, including George W. Bush. Even the Bush-friendly Washington Post huffed about the CIA being allowed to continue using “controversial” methods “that cause extreme discomfort”.

A compromise was then reached. Some newspapers claimed that this was a principled compromise between White House power brokers and liberty-loving “moderate Republicans” but, in fact, the president got everything he wanted.

While a modest advance may have occurred in limiting secret evidence, this bill still contained the most odious elements Bush had been seeking: coerced and hearsay evidence, unenforceable torture restrictions, immunity from war crimes for interrogators (and presidents) and the suspension of habeas corpus for “unlawful enemy combatants”.

After the “compromise”, further negotiations actually enlarged the definition of “unlawful enemy combatant”. One no longer needed to “engage in acts” against the US; it was enough to “support hostilities”.

Now, in the latest, final revision, a second part to the definition of unlawful enemy combatant has been added, which includes any person “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 by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

As Marty Lederman reports in his Balkin blog of September 27:

“Read literally, this means that if the Pentagon says you’re an unlawful enemy combatant – using whatever criteria they wish – then as far as Congress, and US law, is concerned, you are one, whether or not you have had any connection to ‘hostilities’ at all… This definition is not limited to Al Qaeda and the Taliban. It’s not limited to aliens – it covers US citizens as well. It’s not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it’s not even limited to a time of war or armed conflict; it could apply in peacetime.”

The Balkin blog has the sordid details and shocking possibilities of the rest of the proposed legislation, as canvassed by Levinson, Lederman, Balkin, Luban and other die-hard constitutionalist lawyers. As Yale Law prof Jack Balkin earlier noted (September 22):

“The worst parts begin on p.81, eliminating the writ of habeas corpus, denying anyone the right to invoke rights guaranteed by Geneva in judicial actions, prohibiting the use of any foreign sources in construing the meaning of the Geneva Conventions, proclaiming that the president is the authoritative source of the meaning of Geneva with respect to the War Crimes statute, amending the War Crimes statute with language that allows the president to continue to engage in torture-lite (after all, he is now the authoritative source of its meaning), and finally, making all these amendments retroactive to November 26, 1997 (i.e., well before September 11, 2001. I wonder what led to this particular change?).”

Accordingly, should someone still manage to get into court despite the suspension of habeas, the Geneva Conventions and, quite likely, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment all will be unenforceable. You won’t even get to plead them.

There goes, in fact, customary international law, which has always been part of US law. Aziz Huq of NYU’s Brennan Center has more.

Significantly, the legislation’s definition of “serious physical pain or suffering” doesn’t mesh with the protections of Common Article 3. As Marty Lederman pointed out in his September 23 blog, if the Senate doesn’t amend the bill’s definition “to make certain that it does, in fact, encompass the physical suffering that is attendant to the cruel treatment prohibited by Common Article 3, including that caused by the CIA’s ‘alternative’ techniques … the Bush administration lawyers will instruct the CIA that such techniques are not ‘cruel treatment’.”

According to Lederman, the administration “will view – and is viewing – the bill as a green light to misconstrue the Geneva Conventions not to prohibit such conduct”:

“And, worse yet, the bill would attempt to foreclose any judicial review of whether that implausible interpretation is correct, not only by repealing the habeas rights of aliens detained overseas and at GTMO, but also by purporting to prevent any litigants, in any court proceeding, and for any reason, from invoking (and thus asking the courts to construe) any provision of the Geneva Conventions, even when such provisions might determine the outcome of the judicial proceedings in question. By thus purporting to immunize the executive’s (mis)reading of the law from any judicial oversight (a move that would raise serious constitutional questions), the bill would give the administration assurance that it can mangle the interpretation of Geneva with impunity, and require the CIA to do likewise.

“That’s why this bill is so pernicious – not because it would ‘continue to allow harsh treatment’ of detainees, but because it will encourage the CIA to engage in harsh treatment even though it remains illegal.”

The final act of this drama began on September 6 when Bush announced he was “transferring” sundry “terrorists” from previously unacknowledged CIA-staffed dungeons overseas to the official Konzentrationslager in Guantanamo Bay, Cuba.

Some newspapers claimed this had been forced upon him, and perhaps it had since the CIA was demanding legal cover that was no longer possible after the June Supreme Court decision in Hamdan.

The Financial Times reported the real reason that George Bush had started transferring “terrorists” from the “black site” secret prisons overseas: he had no choice.

In light of the Hamdan decision by the US Supreme Court, the CIA interrogators no longer enjoyed the carte blanche they were led to believe that they had, thanks to the [il]legal opinions of the Justice Department’s Office of Legal Counsel.

Until Hamdan, interrogations were believed exempt from the protections of Article 3 of the Geneva Conventions; these were safely ignored, all on “legal” advice, of course. After Hamdan, the OLC “lawyers” were no longer able to give that advice. Something had to be done.

For the Bush Gang, the solution was simple: redefine, authorise, indemnify, immunise. And remove from judicial scrutiny.

The centrepiece of the Bush law is to overturn the decisions of the Supreme Court in 2004 (Hamdi and Rasul/ Al Odah) and 2006 (Hamdan). The 2004 cases confirmed that detainees were entitled to be heard in habeas cases in the US. In this year’s decision, the Supreme Court found that the Detainee Treatment Act (DTA) had preserved hundreds of habeas challenges by detainees presently pending in Washington.

The Bush administration has consistently ignored the Rasul case, most recently in the DC Court of Appeals after Hamdan was decided. Now that Hamdan is to be reversed through amendments to the DTA, habeas will be gone.

The constitution, of course, clearly states that “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”. Still, if the Supreme Court is not allowed to hear a case involving the suspension, who’s to say it’s unconstitutional?

Josef Stalin, whose nom-de-guerre meant Man of Steel, is reputed to have said, “No man, no problem”. Stalin was speaking of murder, of course. The Bush Corollary is “No court, no man, no problem”.

For the Bush Gang, abolishing habeas corpus is as effective as death in disposing of troublesome “detainees” in US custody or control in Guantanamo and elsewhere. Indeed, it means that people can literally be killed, if the government is so inclined – stuff happens, as Rumsfeld says – and there is no way to bring this to judicial attention.

But this should not surprise us. As I noted in my post of March 14 2006, this is the very argument that the government made before the 9th Circuit Court of Appeals in 2003, when a Guantanamo guest, Gherebi, sought habeas. As the 9th Circuit said,

“Under the government’s theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and those detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture and that it was summarily executing the detainees.”

Thus America’s own Man of Steel seems to be nearing his long-held objective of demolishing any legal obstacles, including constitutional ones, to the unrestrained exercise of “presidential” power.

Hitherto illegal actions of Bush are to be ratified and entrenched in US law, e.g. such Stalinist procedures as deeming Enemies of the State to be “unlawful enemy combatants” and clapping them in military prisons forever, to be tried, if at all, by procedures predating Magna Carta, using evidence the rest of the world regards as the fruit of torture.

War or no war, innocent or guilty, there will be no remedy against indefinite imprisonment for those so unfortunate as to have no American passport.

I’m going to get mine renewed straight away.


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