When the Military Commissions Act, which among other things suspended habeas corpus for suspected terrorists, went to the Senate floor in September, Sen. Arlen Specter (R-Pa.) noted, “Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we’ll be back on this floor again” after the courts reject the legislation.
We may not have to wait that long. Earlier this month, we saw the first inkling that the MCA might be revisited in 2007, but it now appears almost certain that the law will be re-examined by the new Democratic Senate.
Senate Democrats plan to revisit one of the most contentious matters of 2006: deciding what legal rights must be protected for detainees held in the war on terrorism.
In September, Congress passed a bill that gave President Bush wide latitude in interrogating and detaining captured combatants. The legislation prompted more than three months of debate — exposing Republican fissures and prompting angry rebukes by Democrats of the administration’s interrogation policies.
A group of Senate Democrats and one Republican, Senator Arlen Specter of Pennsylvania, want to resurrect the bill to fix a provision they say threatens the nation’s credibility on human rights issues.
Incoming Senate Majority Leader Harry Reid’s (D-Nev.) office said this week that Reid “would support attempts to revisit some of the most extreme elements of the bill” including language stripping detainees of habeas corpus rights.
Good. I don’t doubt the White House will issue all manner of veto threats, but I’d like to see just how many lawmakers are willing to undo what they did.
I hope readers won’t mind too much if I reprint a New York Times’ editorial on the law from September, written before the legislation passed, as a reminder of just how awful the MCA is.
Some of the measure’s biggest flaws include:
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 [tag]torture[/tag] 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.
It’s worth noting that this list of “flaws” is not subjective — [tag]Republicans[/tag] on both ends of Pennsylvania Avenue freely admitted that this is exactly what the legislation is intended to do.
Now some of the same senators who held their nose and voted for this thing in the fall will have another bite at the apple. I’m looking forward to it.