Friday, 22 September 2006

Truly frightening

I am depressed. And this is why.
The McCain-Graham-Warner proposal concerning military commissions was, from the beginning, an awful bill that was quite radical in its own right. As but one example, the senators' proposal strips all detainees in American custody of the right of habeas corpus, meaning that detainees are denied the right to challenge in court either the validity of their detention (e.g., by proving that they are not terrorists) or the legality of their treatment (e.g., by demonstrating that they have been tortured).

This denial-of-judicial-access provision means, as Yale law professor Jack Balkin explained, that the military can imprison, and torture, a detainee forever without ever bringing the detainee before a military commission, and the detainee has no means at all to challenge his detention or the treatment to which he is subjected. It is difficult to imagine a more radical power to vest in our government than the power to detain people (including legal residents in the U.S.) forever, and to torture them, while expressly denying a detainee all legal recourse. Yet that is exactly what the McCain-Graham-Warner proposal (and the White House's proposal) provides.

I would desperately love to hear that this is a serious distortion of the facts, that fundamental principles of justice have not been violated, and that the United States has not just taken the first great step towards becoming a police state.

Being something of a neophyte in American politics, I don't know if Glenn Greenwald is considered a loony lefty. I'm not sure it matters; I've never been overly impressed with ad hominem arguments and the mistaken impression that affixing a label trumps an argument. What I want to know from supporters of this bill is this: is this depiction accurate? Is it truly possible for an innocent to be trapped with no recourse? And if so, how can you support it? If not, please demonstrate. I would love to know that this is not actually reality. Because this kind of reality is truly frightening.

[Update] The Washington Post is also not impressed.
The bad news is that Mr. Bush, as he made clear yesterday, intends to continue using the CIA to secretly detain and abuse certain terrorist suspects. He will do so by issuing his own interpretation of the Geneva Conventions in an executive order and by relying on questionable Justice Department opinions that authorize such practices as exposing prisoners to hypothermia and prolonged sleep deprivation. Under the compromise agreed to yesterday, Congress would recognize his authority to take these steps and prevent prisoners from appealing them to U.S. courts. The bill would also immunize CIA personnel from prosecution for all but the most serious abuses and protect those who in the past violated U.S. law against war crimes.

[[Update]] Do read the comment thread. There's a good, constructive discussion going on.

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Janet said...

Email response from Pat Martin of Stubborn Facts:

It’s one of those things that is in much substance accurate, but not in some of its most overborne outrages, and it ignores the larger context of what’s happening, as well as the history of how detainees in battle have always been treated by the U.S.

Prisoners of war and detainees on the battlefield have never had access to U.S. courts through habeas petitions or any other means. The military is, and always has been, the sole judge of whether someone is a POW or not. To hold otherwise would simply not work. An Army unit sweeps in and nabs a bunch of young men in the middle of building some IEDs, say. They’ve done their job as soldiers; they’ve captured the enemy and stopped him from building the devices which the enemy uses to kill us and innocent Iraqi citizens. They ship him off to the MPs to detain, and go on out on the next mission to look for more bomb factories.

Now, if the detainees were entitled to normal habeas procedures available to civilians in the United States, then to continue to hold these POWs (they’re not technically POWs since they are not part of an organized, uniform army, but I’ll use the term for simplicity’s sake), we’d have to interrupt future missions of the unit which captured him to fly back to wherever the trial is being held and testify, under oath and subject to cross examination by the POW, about why they detained the guy. In addition to probably letting terrorists learn the identity and background of the men who arrested them, this would be a logistical nightmare which would divert our troops from the war effort. Denying judicial access to foreign enemies of this country in a time of war is not unusual, but rather is what we have always done, and appropriately so.

Greenwald’s weakness (and he is indeed a loony lefty) in his argument is his claim about the military commissions being hopelessly biased and likely to reach the wrong conclusions on purpose and never do anything. In fact, the soldiers in the military commissions take their roles very seriously, and they have cleared of any serious terrorist connections a number of detainees at Guatanamo. Many of those cleared detainees are still there, though, because their home countries don’t want them back. Also, the military commissions have sometimes gotten it wrong, and people we’ve released have been picked up later after committing new acts of violence against our troops.

In peacetime, and with domestic crimes, we believe that it is better for 100 guilty men to go free than 1 innocent man to be punished by being wrongly convicted. We expend considerable resources to that end. But we don’t have quite that luxury in the heat and turmoil of battle. When there are 5 guys standing around the location where the RPG or sniper fire came from, soldiers must grab all 5 guys, and we must detain them, even though we may never be able to establish which of the 5 guys was actually wielding the weapons used against us. We certainly can’t and don’t expect our troops to act more like policemen gathering evidence than soldiers combating immediate threats. Does this mean that a mostly innocent man might get caught up in the net because he’s in the wrong place at the wrong time, or because he’s framed by some rival local faction? I’m afraid it does. The military commissions will mostly remedy those problems. The rest are deeply tragic, but are part of the reason war is hell. As Tully keeps noting, better to detain them unjustly for a period of time than kill them, which is what will happen, as a practical matter, if soldiers too often find themselves fighting the same people over and over again after they’ve been released on technicalities or for lack of evidence.

Greenwald also, of course, uses the word “torture” to describe what we do to the terrorists, without actually defining what he means by the term. Tully and I have gone over that issue a lot at Stubborn Facts and over at Centerfield.


Fern said...

Thanks for posting Pat's commentary, it's extremely helpful in trying to figure out what the bill actually means.

I don't know anything about Greenfield, but I respect the professor he quoted, Jack Balkin. I rarely agree with Balkin, but he is very smart and thoughtful. He blogs at Balkinization.

Janet said...

Pat, I've been mulling over your comments and I do see your points. Don't you think it would be wise though, to institute something similar to a statute of limitations, so that after a certain amount of time, a detainee would either face criminal charges or be released?

It's all very well and fine to say that this power has always been used conscientiously, but systemic safeguards would still be a good thing. The whole American system is based on systemic checks and balances because of a highly realistic view of human nature, which is probably one of the greatest strengths of American government. Power is always abused eventually, so there has to be limitations on it, or avenues of appeal.

PatHMV said...

The thing is, looking at this from a criminal justice standpoint is all wrong. What crime are we going to charge the IED maker in Iraq? It is in fact acceptable under international law for Iraqis, at least, to resist the occupation of their country by the U.S. So a deadline for putting them on trial doesn't necessarily work.

We're having so much trouble with this because terrorism, as practiced by Al Qaeda and other Islamic fundamentalists, fits into a huge grey area of the law. We tried treating them as criminals before 9/11. The argument was that by treating them as anything more than common criminals, we would be giving their political arguments credibility and potency. That didn't work, and we're having to go a different way now.

I absolutely do agree with you about the need, in the larger picture, for systemic checks and balances. Greenwald's overwrought point that this bill removes all such checks is wrong because it assumes that there will never be any further debate, any further laws, any further political furor over these detainees. Whether this compromise bill passes or not, the debate will continue. It may wax and wane, but it won't ever completely die down. And eventually the arguments in favor of indefinite detention will seem weaker and weaker to more and more people, and we'll find a way out.

There's a great deal made about detaining lawful U.S. residents and U.S. citizens and what not. All of that is vastly overblown. Nobody has been arrested inside the U.S. and treated as a detainee under the same terms and conditions battlefield detainees from Afghanistan and Iraq have been treated. A very small number of people have been arrested at border crossings and been treated as detainees, but the feds have never swooped in and detained, under these provisions, U.S. citizens or lawful residents. There were some people held wrongly in the immediate aftermath of 9/11 for upwards of a year or so, but that wasn't done by and wouldn't be legal under any of these proposed laws. Even the "Baton Rouge Taliban", the young terrorist who was born here because while his parents were university students before moving back to Saudi Arabia, who was detained on a battlefield while actually fighting U.S. troops, is being treated under different provisions than those under discussion. And that disturbed young American boy who went to fight for the Taliban was tried under normal American courts under normal American law.

We're very, very, very far from becoming a police state. Yes, we must vigilantly guard against the abuse of power (as the recent Canadian report shows), but we must also admit that we're fighting a strange new war, and we may need to adapt some of our rules to these new circumstances.

Janet said...

I absolutely do agree with you about the need, in the larger picture, for systemic checks and balances. Greenwald's overwrought point that this bill removes all such checks is wrong because it assumes that there will never be any further debate, any further laws, any further political furor over these detainees. Whether this compromise bill passes or not, the debate will continue. It may wax and wane, but it won't ever completely die down. And eventually the arguments in favor of indefinite detention will seem weaker and weaker to more and more people, and we'll find a way out.

I suppose this is my main source of hope. I am still very uneasy with the compromise bill, as much as I understand it. Judging by the many different interpretations being put on it, nobody much understands it...

I have no problem with tweaking rules and even laws to deal with new situations. It's principles I am concerned about. And I still think some kind of appeal process has got to be worked in somehow. Maybe one that can only be invoked after a certain lapse of time, or something.

Janet said...

Pat, (or anybody else in the legal profession) from

"Twice, the Supreme Court has insisted that the administration respect habeas corpus; repeatedly, the White House has ignored the court's rulings, going to Congress to get approval for previously unthinkable kinds of detention."

How does this jive with your contention that POW's never had it? In that case, who was the administration trying to take habeus corpus away from? I can't get this to add up?


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