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Even Timothy McVeigh
Was Afforded Constitutional Rights
The
Flaws in the Military Commissions Act
By Sen. RUSSELL FEINGOLD
Let me be clear: I welcome efforts
to bring terrorists to justice. It is about time. This Administration
has too long been distracted by the war in Iraq from the fight
against al Qaeda. We need a renewed focus on the terrorist networks
that present the greatest threat to this country.
But we wouldn't be where we are today, five years after September
11 with not a single Guantanamo Bay detainee having been brought
to trial, if the President had come to Congress in the first
place, rather than unilaterally creating military commissions
that didn't comply with the law. The President wanted to act
on his own, and he dared the Supreme Court to stop him. And
he lost. The Hamdan decision was an historic rebuke to
an Administration that has acted for years as if it were above
the law.
Finally, only because he was essentially ordered to do so by
the Supreme Court, the President has agreed to consult with Congress.
I would have hoped that we would take this opportunity to pass
legislation that allows us to proceed in accordance with our
laws and our values. That is what separates America from
our enemies. These trials, conducted appropriately, have the
potential to demonstrate to the world that our democratic, constitutional
system of government is our greatest strength in fighting those
who attacked us.
And that is why I am saddened that I must oppose this legislation.
Because the trials conducted under this legislation will send
a very different signal to the world, one that I fear will put
our own troops and personnel in jeopardy both now and in future
conflicts. To take just a few examples, this legislation would
permit an individual to be convicted on the basis of coerced
testimony and hearsay, would not allow full judicial review of
the conviction, and yet would allow someone convicted under these
rules to be put to death. That is simply unacceptable. We would
not stand for another country to try our citizens under those
rules, and we should not stand for our own government to do so,
either.
Not only that, this legislation would deny detainees at Guantanamo
Bay and elsewhere-people who have been held for years but have
not been tried or even charged with any crime-the ability to
challenge their detention in court. Among its many flaws, this
is the most troubling-that the legislation seeks to suspend the
Great Writ of habeas corpus.
The legislation before us is better than that originally proposed
by the President, which would have largely codified the procedures
the Supreme Court has already rejected. And that is thanks to
the efforts of some of my Republican colleagues for whom I have
great respect and admiration.
But this bill remains deeply flawed, and I cannot support it.
One of the most disturbing provisions of this bill eliminates
the right of habeas corpus for those detained as enemy combatants.
I support an amendment by Senator Specter to strike that provision
from the bill. I ask unanimous consent that my separate statement
on that amendment be put in the record at the appropriate point.
Habeas corpus is a fundamental recognition that in America, the
government does not have the power to detain people indefinitely
and arbitrarily. And that in America, the courts must have the
power to review the legality of executive detention decisions.
Habeas corpus is a longstanding vital part of our American tradition,
and is enshrined in the U.S. Constitution.
As a group of retired judges wrote to Congress, habeas corpus
"safeguards the most hallowed judicial role in our constitutional
democracy--ensuring that no man is imprisoned unlawfully."
This bill would fundamentally alter that historical equation.
Faced with an executive branch that has detained hundreds of
people without trial for years now, it would eliminate
the right of habeas corpus.
Under this legislation, some individuals, at the designation
of the executive branch alone, could be picked up, even in the
United States, and held indefinitely without trial and without
any access whatsoever to the courts. They would not be able
to call upon the laws of our great nation to challenge their
detention because they would have been put outside the reach
of the law.
That is unacceptable, and it
almost surely violates our Constitution. But that determination
will take years of protracted litigation.
Why would we turn our back on hundreds of years of history and
our nation's commitment to liberty -- particularly when there
is no good reason to do so? We should be working to provide
a lawful system of military commissions so that those who have
committed war crimes can be brought to justice. We can do that
quite well without denying one of the most basic rights guaranteed
by the Constitution to those held in custody by our government.
Some have suggested that terrorists who take up arms against
this country should not be allowed to challenge their detention
in court. But that argument is circular--the writ of habeas
allows those who might be mistakenly detained to challenge their
detention in court, before a neutral decision-maker. The alternative
is to allow people to be detained indefinitely with no ability
to argue that they are not, in fact, enemy combatants.
Unless any of my colleagues can say with absolute certainty
that everyone detained as an enemy combatant was correctly detained--and
there is ample evidence to suggest that is not the case--then
we should make sure that people can't simply be locked up forever,
without court review, based on someone slapping a "terrorist"
label on them.
There is another reason why we must not deprive detainees of
habeas corpus, and that is the fact that the American system
of government is supposed to set an example for the world, as
a beacon of democracy. And this provision will only serve to
harm others' perception of our system of government.
A group of retired diplomats sent a very moving letter explaining
their concerns about this habeas-stripping provision. Here is
what they said: "To proclaim democratic government to the
rest of the world as the supreme form of government at the very
moment we eliminate the most important avenue of relief from
arbitrary governmental detention will not serve our interests
in the larger world."
Many, many dedicated patriotic Americans share these grave reservations
about this particular provision of the bill.
They have reservations not because they sympathize with suspected
terrorists. Not because they are soft on national security.
Not because they don't understand the threat we face. No.
They, and we in the Senate who support the Specter amendment,
are concerned about this provision because we care about the
Constitution, because we care about the image that American presents
to the world as we fight the terrorists. Because we know that
the writ of habeas corpus provides one of the most significant
protections of human freedom against arbitrary government action
ever created. If we sacrifice it here, we will head down a road
that history will judge harshly and our descendants will regret.
We must not imperil our proud history. We must not abandon the
Great Writ. We must not jeopardize our nation's proud traditions
and principles by suspending the writ of habeas corpus, and permitting
our government to pick people up off the street, even in U.S.
cities, and detain them indefinitely without court review. That
is not what America is about.
Unfortunately, the suspension of the Great Writ is not the only
problem with this legislation, nor is it the only instance where
the legislation goes beyond establishing military commissions
to include unnecessary provisions with deeply troubling results.
The Administration has spoken about the need for this legislation
to bring clarity to the War Crimes Act, which makes it a crime
to violate Common Article 3 of the Geneva Conventions. It has
proposed that we specifically list the actions that would be
considered crimes under that law. On the face of it, that certainly
sounds sensible. But when you look at this legislation, you
realize that the modification it makes only muddies the waters.
Not only that, it does so retroactively.
The key problem is in the definition of "cruel or inhuman"
treatment. This is a critical definition because it is the provision
that determines which coercive interrogation techniques amount
to crimes under U.S. law. But because of the complex structure
of this section, it is very difficult to understand what the
new definition would criminalize, and I am concerned that any
ambiguity may be interpreted too narrowly by some. The definition
incorporates several terms that in turn have their own separate
definitions, and it even has one new definition that doesn't
go into effect until the date of enactment, even though the rest
of the amendments to the War Crimes Act are made retroactive
to 1997. Frankly, the new prohibition is extremely unclear.
And we have already heard different interpretations of it from
Senators and Administration officials who negotiated the language.
If our goal is to give unambiguous guidance to our personnel,
and the courts, this does not do it.
The way the provision is drafted, it even seems designed to grant
immunity to senior officials who authorized coercive interrogation
techniques.
We should just follow the approach originally endorsed by the
Senate Armed Services Committee, which would have applied the
language of the McCain amendment.
I am also very concerned about the definition of unlawful enemy
combatant that is included in this legislation, and about the
corresponding issue of the jurisdiction of the military commissions.
This legislation has been justified as necessary to allow our
government to prosecute Khalid Sheikh Mohammed and other dangerous
men recently transferred to Guantanamo Bay. Yet if you look
at the fine print of this legislation, it becomes clear that
it is much, much broader than that. It would permit trial by
military commission not just for those accused of serious terrorist
crimes, but also individuals, including legal permanent residents
of this country, who are alleged to have "purposefully and
materially supported hostilities" against the United States
or its allies.
This is extremely broad, and key terms go undefined. And by
including hostilities not only against the United States but
also against its allies, the bill allows the U.S. to hold and
try by military commission individuals who have never engaged,
directly or indirectly, in any action against the United States.
Not only that, but the bill would also define as an unlawful
enemy combatant subject to trial by military commission, anyone
who "has been determined to be an unlawful enemy combatant
by a Combatant Status Review Tribunal or another competent tribunal
established under the authority of the President or the Secretary
of Defense." This essentially grants a blank check to the
executive branch to decide entirely on its own who can be tried
by military commission.
If we are going to establish military commissions outside of
our traditional military and civilian justice systems, at a minimum
we should explicitly limit their application to the worst of
the worst, those who pose a serious threat to our country. We
shouldn't leave it up to just one branch of government to make
these incredibly important decisions.
The bulk of this legislation concerns the structure and process
of military commissions. Although we heard from many witnesses
at congressional hearings this summer that we should hew as closely
as possible to the long-established military system of justice,
this bill instead essentially starts from scratch and creates
a whole new structure. It does so despite Justice Kennedy's
wise advice in his concurrence in Hamdan, where he said:
"The Constitution is best preserved by reliance on standards
tested over time and insulated from the pressures of the moment."
For example, this legislation creates a presumption for the admissibility
of hearsay evidence. Now, it is true that because of the exigencies
of war and active combat situations, hearsay rules may need to
be structured differently than they are in our criminal courts,
but the rules laid out in the UCMJ are drafted to handle these
same exigencies. While there may need to be some adjustments
to the UCMJ hearsay rules, we need not discard them altogether.
The presumption against hearsay is a fundamental protection built
into our existing legal structures to ensure that proceedings
yield a just and fair result. Yet in this provision and elsewhere,
the legislation erodes such protections-going far beyond what
is allowed in the military system-and without justification.
Even more disturbing is that the bill appears to permit individuals
to be convicted, and even sentenced to death, on the basis of
coerced testimony. According to the legislation, statements
obtained through cruel, inhuman, or degrading treatment, as long
as it was obtained prior to December 2005 when the McCain amendment
become law, would apparently be admissible in many instances
in these military commissions.
Now, it is true that the bill would require the commission to
find these statements have sufficient reliability and probative
value. But why would we go down this road of trying to convict
people based on statements obtained through cruel, inhuman, or
degrading interrogation techniques? Either we are a nation that
stands against this type of cruelty and for the rule of law,
or we are not. We can't have it both ways.
The idea that coerced statements can be used as long as they
were obtained long enough ago is appalling. It seems to assume
that there was a lack of clarity in the law prior to December
2005. In fact, there was great clarity, until this Administration
decided to invent a narrow definition of torture that had never
been used or accepted anywhere in the civilized world. The McCain
amendment was needed to get this Administration to return to
the law. It was a repudiation of the legal theories of the infamous
Bybee memo, which the Administration even said it was withdrawing
once it was publicly revealed. Its enactment should not now
be used as a dividing point before which evidence obtained through
cruel and inhuman treatment can be used in court.
At times of great adversity, the strength of a nation's convictions
is tested and its true character revealed. If we sacrifice or
qualify our principles in the face of the tremendous challenge
we face from terrorists who want to destroy America, we will
be making a terrible mistake. If we cloak cruel or degrading
interrogations done in the name of American safety with euphemisms
like "alternative techniques," if we create arbitrary
dates for when differing degrees of morality will apply, we will
have betrayed our principles and ourselves.
Statements obtained through such techniques should not be admissible,
even against the most vicious killers in the world, in proceedings
held by the government of the United States of America. Period.
In sum, this legislation is very troubling and in many respects
legally suspect. I fear the end result of this legislation will
only be more delay. It will surely be subject to further legal
challenge, and may squander another four or five years while
cases work their way through the courts again.
We can and must fight terrorism aggressively without compromising
fundamental American values. We must remember what the Army
Judge Advocate General told me at a Judiciary Committee hearing
this summer: that the United States should set an example for
the world, and that we must carefully consider the effect on
the way our own soldiers will be treated.
In closing let me do something I don't do very often--and that
is quote John Ashcroft. According to the New York Times, at
a private meeting of high-level officials in 2003 about the military
commission structure, then-Attorney General Ashcroft said: "Timothy
McVeigh was one of the worst killers in U.S. history. But at
least we had fair procedures for him." How sad that this
Congress would seek to pass legislation about which the same
cannot be said.
From remarks on the Senate floor.
Now
Available
from CounterPunch Books!
The Case
Against Israel
By Michael Neumann
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