As you’ve no doubt heard by now, the Senate passed the Bush-McCain Torture Bill yesterday. The final vote was 65 to 34, with 12 Dems breaking ranks to support the legislation. (Tim Grieve refers to them as the Torture 12, which, given the circumstances, seems more than fair.)
I’ll spare you another rant about just what a tragedy the legislation is, and how appalling yesterday’s debate and vote were, but instead point to an odd but simple question: what does all of this mean for our legal system?
The military trials bill approved by Congress lends legislative support for the first time to broad rules for the detention, interrogation, prosecution and trials of terrorism suspects far different from those in the familiar American criminal justice system.
This WaPo piece is definitely worth reading because it highlights the ways in which the torture bill diverges from our legal system. Habeas corpus has been a bedrock principle of American law, but the torture bill rejects it. The right to a speedy trial is similarly put aside. The executive branch now has the power to detain indefinitely anyone it determines to have “purposefully and materially” supported anti-U.S. hostilities. Evidence obtained through hearsay or coercion can be used to seek criminal convictions. Bush and his allies inserted language so that the courts can’t consider challenges to some of these provisions, regardless of merit.
Our system of justice simply isn’t supposed to work this way.
University of Texas constitutional law professor Sanford V. Levinson described the bill in an Internet posting as the mark of a “banana republic.” Yale Law School Dean Harold Koh said that “the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it’s not clear that most of the members understand what they’ve done.”
Indeed, the legal challenges to the soon-to-be law will come quickly.
The NYT noted that the inevitable legal challenges were on lawmakers’ minds yesterday.
Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the provision barring court detainees’ challenges, an outcome that would send the legislation right back to Congress.
“We should have done it right, because we’re going to have to do it again,” said Senator Gordon H. Smith, Republican of Oregon, who voted to strike the provision and yet supported the bill.
The LAT added, “[S]ome lawmakers, Republicans as well as Democrats, called the move to suspend habeas corpus — the demand for legal justification of one’s imprisonment — a historic mistake, and one that could cause the entire bill to be struck down.” Arlen Specter (R-Pa.), said, “Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we’ll be back on this floor again” grappling with a future ruling against it by the Supreme Court. Something to look forward to.
One other note: the Senate considered a series of amendments to nominally improve the legislation yesterday, including a straight-up vote to protect habeas corpus rights. Senate Republicans blocked all of them — and Republican Sens. Warner, McCain, and Graham, the alleged independent champions, voted with their party each time.
I’m glad to see them hanging their heads.