I couldn’t find an online source for the text of the law professors’ letter against the Bush-McCain Torture Bill, except one behind a clickwall, so I decided to publish it below. I gather that it garnered 609 signatures — which is a lot given the short time it was open for signature.
Monthly Archives: September 2006
Steve Vladeck argues that the Bush-McCain Torture Bill is worse than the Alien and Sedition Act — because it shields itself from judicial review.
Yale Professor Bruce Ackerman, writing in the LA Times:
BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.
This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.
Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.
But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.
Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.
We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an “enemy combatant” upon his arrival at Chicago's O'Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent.
The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review.
But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.
This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case — upholding the military detention of tens of thousands of Japanese Americans during World War II — has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures.
Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.
A group of more than sixty law school deans and professors have written an open letter to Congress expressing concern about the Military Commissions Act and the National Security Surveillance Act.
You can read the full letter here. [link fixed] I’m happy to note that Dean Lynch is a signatory.
There’s also a separate, broader, law professors’ letter that I signed and I’ll post a link to it when I can.
The New York Times editorial board often blows a weak and uncertain trumpet. But today's editorial on the Torture Bill sounds exactly the right notes: horror, anger, and despair.
Antiterrorism Bill on Detainees, Geneva Conventions – Rushing Off a Cliff
Here's what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans' fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.
Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That's pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.
It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush's shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.
Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.
These are some of the bill's biggest flaws:
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 torture 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.
There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.
We don't blame the Democrats for being frightened. The Republicans have made it clear that they'll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won't remember the pragmatic arguments for caving in to the administration.
They'll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts.
Senator Allen now has a deer problem.
The story begins a couple of days ago, when a former college teammate, R. Kendall Shelton, now apparently a respected radiologist in North Carolina, told an almost incredible story about how he and Allen and another teammate had gone deer hunting, and,
After the deer was killed, Shelton said, Allen cut off the doe’s head, asked for directions to the home of the nearest black person and shoved the head into that person’s mailbox.
“I have no doubt George was a racist in the early 1970s,” said Shelton, who described himself as a former Democrat who is registered as an independent. “I couldn’t care less if George was a Democrat or a Republican. He shouldn’t be in public office.”
Allen immediately denied the entire story — the epithet, the severed head, the mailbox. Unfortunately for Allen, the third member of the hunting party has come forward and corroborated at least the parts about the severed head and the mailbox.
Others who knew Allen in the same era have come to his defense, although most have current ties to him or the GOP. Still others are, apparently, afraid:
Two other former U-Va. athletes also said they recalled Allen using racial epithets frequently in college. They spoke on condition of anonymity, saying they feared the effect of coming forward on their livelihoods and families.
The deer-in-the-mailbox story has radicalized a hitherto apathetic segment of the citizenry: the people most likely to open a mailbox. Allen is now in the sights of Letter Carriers for Truth.
Stick a fork in him?
If the New York Times is to be believed, the Senate Democrats are in full collapse on the moral question of the day: torture. And I’m not surprised. No, actually I am just a little surprised. But maybe I shouldn’t be.
Yes, we’ve had years of evidence that the Democrats in the Senate don’t understand how to be an opposition party; but lately they’ve seemed to grow measurable spines.
But even so, I still had the naive idea that maybe there were some issues where even the modern Senator couldn’t just hold his nose and let himself be cowed into something stupid and evil.
Deal Is Likely on Detainees but Not on Eavesdropping: Democrats, who have found themselves on the losing end of the national security debate the past two national elections, said the changes to the bill had not yet reached a level that would cause them to try to block it altogether.
“We want to do this,” said Senator Harry Reid of Nevada, the Democratic leader. “And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution.”
I suppose it is possible that Sen. Reid has some clever plan to be unveiled at the last minute to filibuster on the grounds that removing safeguards against torture, undermining habeas corpus, and trashing the confrontation clause do too much violence to our constitution and our legal traditions.
But it sure doesn’t sound like it, does it? (“We want to do this”?!?)
So, Senator Reid and fellow members of the self-styled World’s Greatest Deliberative Body, here’s what I have to say to you as you rush to announce your acquiescence to a fast-changing bill you haven’t even yet read. Here’s what I have to say as you give de facto immunity to people who have a record of torturing and killing prisoners in secret cells. Here’s what I say to you as prepare to gut habeas corpus. Here’s what I say to you as you trash longstanding constitutional protections against punishing people on the basis of coerced testimony. Here’s what I say to you as you reverse hundreds of years of Anglo-American tradition guaranteeing everyone the right to defend themselves through access to exculpatory evidence known to the government. Here’s what I say to you as you make weak protests to a bill that gives lip service to the Geneva Conventions but in fact removes the means by which they would be enforced.
Here’s what I have to say as you contemplate voting for authority that will not only be deployed against aliens abroad, but might even be deployed against aliens on US territory, and against US citizen abroad, or even at home. Here’s what I say to you as you set in motion a process which will permit the secret detention — no habeas, remember? — and “aggressive questioning” of those whom that good and reliable Mr. Gonzales or that thoughtful Mr. Rumsfeld, both persons well-known to be incapable of error, decide is an enemy combatant.
History will judge you cruelly. The best outcome will be that this is a long bad blip, like the Alien and Sedition Acts, or the Japanese Internment; but the worst outcome is that this becomes emblematic of a turning point in which our Senate, like the Roman Senate before it, presided over a great society’s moral and then political decline.
Too high minded and egghead-like for you? Ok, let’s talk bare-knuckle politics: Listen up! This is your base talking! A Democratic party that won’t stand up and oppose and, yes, fillibuster something as bad as this bill isn’t worth half what it should be. If my party takes a fall on torture, than it really isn’t my party any more and I want it back. Yes, we’ll still vote Democratic in this election: on this and many other issues the Republicans are even worse. But we won’t forget. And there are plenty of Lamonts out there.
Senator Reid: Torture is a moral issue. So is accountability for torture. So is the right to a fair trial — even for the lowest of the low. These are not things you compromise on, or trade off to avoid an attack ad or two.