Monday, September 18, 2006

Going Down Swinging

As predicted, the media has treated the competing GOP bills designed to clarify issues regarding detainee classification, interrogation methods and related judicial procedures as defining the full parameters of the story.

In truth, there are important differences in terms of the way that the respective bills define torture, establish rules for the admissability of evidence and guarantee potential defendants' rights to see the prosecution's evidence and confront accusers if such defendant eventually reaches some form of sanctioned tribunal. In these areas, the McCain/Warner bill is better on all counts than the Bush administration's radical, reckless and paradigm shifting proposal. But as I mentioned at the end of last week, both bills are terrible on the issue of habeas corpus rights, and this crucial aspect of the overall story is being largely ignored. Publius offers a concise appraisal of this situation with this quote (which cites a Hilzoy post worth checking out):

First, let me again make clear that both bills are very bad. The main reason, which others have explained, is that it eviscerates habeas rights for all detainees. And contrary to what legal geniuses like Mark Levin might say, habeas isn't a right for terrorists. It’s a right for those who are wrongly detained as terrorists. There’s a Digby post on this somewhere, but a lot of the detainee procedure debate is beside the point because it doesn't address the threshold question – whether you are in fact properly detained. In other words, procedures are important not so much because honest-to-God terrorists deserve them, but to identify whether the person detained (perhaps indefinitely) actually is a terrorist.

And given that we've wrongly detained so many people (via Hilzoy), I’m wary of throwing habeas overboard. In fact, the mere existence of habeas (as opposed to its actual use) often eliminates the need for courts to consider it. That’s because if the detaining authorities know that they'll potentially have to justify their actions in a habeas proceeding, they'll take more precautions at the front end to detain the right guy. (Indeed, that's a key rationale for ALL constitutional criminal protections).
A fellow NYC lawyer e-mailed me a letter today from the Center for Constitutional Rights that also provides a concise distillation of the issue:

As you may be aware, Congress will soon be voting on a bill that would establish military commissions (trials) for Guantanamo detainees. Included within the proposed legislation, however, is a provision that would retroactively strip the federal courts of jurisdiction to consider habeas cases filed by Guantanamo prisoners, thus overturning recent Supreme Court decisions (Rasul v. Bush; Hamdan v. Rumsfeld).

The issue is tremendously important because nearly all of the detainees have been held for years, but have not been charged with any crimes and likely never will be charged. Without habeas, these prisoners could be held for the rest of their lives without any opportunity to have an impartial decision-maker consider the legality of their detention.
And yet, in today's America, that is not even controversial. This lurch toward the profound weakening of the rule of law is taken as the default position, with the only issues up for discussion being the treatment one should receive while in such Kafka-esque indefinite detention (it should be noted that even with respect to torture and other evidentiary matters, that treatment would only become an issue if charges are filed and a trial ensues which is kind of the point behind ensuring habeas corpus rights in the first place).

This is how far astray from our founding principles that the GOP and Bush administration have taken us: that it is accepted by the majority Republican Party that the President should be empowered to lock people up for the rest of their lives without so much as a trial to determine their innocence, guilt or other mitigating circumstances. As for the Democrats, they appear all-too-willing to go gently into that good night. I am thoroughly underwhelmed.

This matters. This will have long term and far reaching consequences. This should be covered with at least a shred of the attention that Jonbenet Ramsey, Anna Nicole Smith, Brangelina, Tom Cruise, Michael Jackson, Katie Couric, and the myriad other inanities that the corporate media obsesses over, receive.

I feel like a bystander witnessing a terrible crime without the power to prevent it, whose only recourse is to plaintively protest, "Somebody please do something." The entire population's hair should be on fire, not just the powdered wigs in the graves of the nation's somersaulting founding fathers.

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