September 27th, 2006

Voted for Dean

The Shoe Drops: The Compromise "Torture" Bill

When the Supreme Court ruled, in Hamdan v Rumsfeld, that George Bush didn't have the constitutional authority to make up whole new laws regarding who's a terrorist, how terrorists can be questioned, how long they can be held and under what conditions, and in what kinds of courts they should be tried and when, they left it open to Congress to make any rules they liked on the subject. So the President went to Congress and basically threatened to surrender, to let al Qaeda operate freely in the US and attack us at will, if Congress didn't give him everything he wanted. The House Armed Services Committee caved in and gave him everything he asked for, including retroactive immunity from the War Crimes Act for himself and his friends. The Senate Armed Services Committee, most notably including the only sitting member of Congress to ever be the victim of a war crime, said in essence, "Oh, hell no, I don't think so."

Late last week we got word that a compromise between the two positions had been reached. Since nobody would say in public what the compromise was, I held off commenting. But now the shoe has dropped, and you can read it for yourself. I just did. And in one respect it's not as reprehensible as the original bill, in that it strips away the President's "I thought it was legal at the time" defense. But it's still pretty awful.

Most of Left Blogistan is up in arms, predictably, on the torture issue. The bill defines torture very narrowly, allowing an awful lot of things that you or I would call torture to be used in questioning any suspect. In fact, it draws two lines, dividing all coercion of prisoners into three categories: what I'll call category 1 stuff that even the administration admits is torture (basically maiming and up; no permanent injury, no foul), category 2 stuff that leaves no permanent crippling injury but that the US courts won't let you do to a civilian in a US jail, and in category 3 the random and/or clever sadism we've come to expect of prison guards in Texas and across Dixie that the courts have so far mostly looked the other way on. The bill says nothing about us torturing prisoners (category 1), thereby leaving the terms of the War Crimes Act in place ... except it doesn't, because section 6(a)(3) of the bill says that the President, and only the President, gets to decide where that line gets drawn, and the President, and only the President, has the authority to set penalties for anything in category 2. In a particularly pernicious piece of propaganda, the bill goes slightly further than that and asserts that the President has always had this authority "as provided by the Constitution." The bill also allows anything extracted from a prisoner by means in categories 2 and 3 to be used as evidence against them (if the judge feels like it) -- unless the coerced testimony was extracted after last December's Detainee Treatment Act, in which "only" confessions extracted using category 3 techniques is admissible evidence.

There's a semantically empty paragraph in the bill that exists for purely propaganda reasons. In section 3(a)(1), proposed section 948(d)(a): "A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001." Hmm, "before, on, or after" 9/11. In other words, "ever." So why does the jurisdiction section include this phrase? Just because they needed some place to gratuitously mention 9/11, just to push your emotional buttons.

There's also a lot to be said by way of snarkiness about the definition of "Lawful Combatant." Aside from giving the President and the Secretary of Defense literally unlimited authority to declare any foreigner an unlawful combatant at their discretion, the bill does provide some guidance by narrowly defining what is a "lawful combatant;" one could therefore not unreasonably assume that anybody who doesn't fit in that definition is an "unlawful combatant." On the face of it, it's not that bad looking ... until you start thinking about historical examples. For example, the definition specifically says that even a native force resisting an occupying army are "unlawful combatants" unless they wear military uniforms that are recognizable at a distance and openly carry weapons whenever they're engaged in, or assisting, any military operation. By that definition, the French Resistance during World War II would have been unlawful combatants. Heck, by that definition, so would about a third of the US forces in our War for Independence.

Then go on to the rest of the definition, and it says that you're also an unlawful combatant if you target civilians, and in particular if you attack religious or medical personnel. By which definition the Somocista Contras that the Reagan administration were supporting in Nicaragua were clearly unlawful combatants, and in fact by the definitions in this bill they could clearly be labeled as terrorists, and I don't have a problem with that. No more of that "one man's terrorist is another man's freedom fighter" crap that Republicans tried to use as an excuse during the 1980s. So under the definitions in this bill, John Poindexter, Oliver North, and others in the US government should be accused of being unlawful combatants for providing material support to terrorists, held in military custody without right of habeas corpus, coerced into testifying against themselves, and sentenced to death, as should Ronald Reagan and William Casey if they were still alive. Oh, but wait, no, they wouldn't be, and here's the part that I have to roll my eyes over: the bill specifically says that you're only an unlawful combatant if you do these things while attacking the US or its allies. Do any of these things while attacking a US enemy (or a non-ally, same thing under this bill), apparently, and you're perfectly lawful. It is so obvious to the Bush administration that "everybody" knows that the USA are the good guys and everybody else are the bad guys, so obviously we and our hand-picked allies are the only ones who should get the benefit of the doubt. Not only are we the world's policemen (something Republicans used to be against), but now we're going to suggest that the whole rest of the world treat attacking an American (and only an American) as an attack on a policeman.

Yes, I mentioned habeas corpus in passing just now. That is the one part of this bill that I think is the most morally reprehensible. Habeas corpus isn't just any old right. Nor is it a right of only US citizens. Heck, that the Founders were accusing the British crown of violating the right of habeas corpus was high on the list of grievances that they used to justify rising up in arms against and overthrowing their own government. Habeas corpus is so universal a human right that only one country on the planet is so evil as to deny it: North Korea. Is that who we want to declare ourselves morally equivalent to? Habeas corpus isn't a technicality, it's the fundamental right that protects against indefinite arbitrary detention. Every decent civilization in the world pays at least lip service to the principle that no cop, no soldier, no government can lock somebody up without standing that person up in front of a judge and saying, "this is what we're accusing them of, and here's at least some of the evidence." Basic human decency, even in awful hell-holes like Cuba and Red China and Iran, says that this has to be done not just in front of the accused but in open court and on the record. It is absolutely essential to human liberty that no government with any claim to legitimacy may ever, ever, ever lock someone up without telling the rest of us who they locked up and why. But section 7 of this bill completely and permanently suspends the right of habeus corpus for anybody except US citizens, if the President or anybody he designates thinks that they might be an unlawful combatant. That is just flatly not acceptable, and I can only suspect that John McCain and the other decent people on the committee signed off on it only because they're counting on the Supreme Court striking that particularly contemptible clause down. But it speaks very poorly of this government that they want it at all. You should fear the government that wants to restrict habeas corpus in even the slightest way, because they're claiming a "right" only sought by the worst of dictators: the right to throw inconvenient people into a deep dark hole and never have to answer for having done so.