I look forward to reading the actual text of the bill, but from the press release, this sounds like a very good idea. Dodd Introduces Effective Terrorists Prosecution Act:
Washington- Senator Chris Dodd (D-CT), an outspoken opponent of the Military Commission Act of 2006, today introduced legislation which would amend existing law in order to have an effective process for bringing terrorists to justice. This is currently not the case under the Military Commission Act, which will be the subject of endless legal challenges. As important, the bill would also seek to ensure that U.S. servicemen and women are afforded the maximum protection of a strong international legal framework guaranteed by respect for such provisions as the Geneva Conventions and other international standards, and to restore America’s moral authority as the leader in the world in advancing the rule of law.“I take a backseat to no one when it comes to protecting this country from terrorists,” Sen. Dodd said. “But there is a right way to do this and a wrong way to do this. It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law. But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”The Effective Terrorists Prosecution Act:
- Restores Habeas Corpus protections to detainees
- Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
- Bars information gained through coercion from being introduced as evidence in trials
- Empowers military judges to exclude hearsay evidence they deem to be unreliable
- Authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions
- Limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight
- Provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions
“We in Congress have our own obligation, to work in a bipartisan way to repair the damage that has been done, to protect our international reputation, to preserve our domestic traditions, and to provide a successful mechanism to improve and enhance the tools required by the global war on terror,” Dodd said.
Sadly, no bill can undo the amnesty we gave for tortures past — although the Supreme Court could in theory find the entire bill unconstitutional, or find part of unconstitutional and say that the lack of a severance clause means the entire bill falls. Not that I'm holding my breath.This entry was posted in Guantanamo, Torture. Bookmark the permalink.
5 Responses to Sen. Dodd Wants to Roll Back Aspects of the Torture Bill
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It is not at all clear that the amnesty is effective.
First no US amnesty can have effect outside US borders. And future US administrations are in no way obligated to protect Bush, Cheney etc. from foreign prosecution nor can they be.
The second question is whether the same sloppy lawyering that justified the torture wrote the amnesty clause. OK so they may have retrospectively provided an amnesty for those who torture. But conspiracy is also a crime as is false imprisonment, kidnapping, etc. etc.
Future administrations can become very much more imaginative in finding ways to prosecute. The Bush administration don’t get another chance to give themselves amnesty. They may if they are sufficiently nervous give themselves a pardon.
Bush won’t pardon because he thinks he has an amnesty.
One would think a repeal of the amnesty would be effective. I don’t think it would be an ex post facto situation as the conduct was illegal when performed. Perhaps if people took action based upon the amnesty law (e.g., came forward and told what they did) and then were prosecuted based on what they said after repeal, there may be some sort of reliance argument, but I’m not sure how strong that would be.
I think the chances that this sloppy crew have given themselves a cast iron amnesty are slim. But the real thing has to be to ensure that the criminals responsible for the torture get punishment, not just those who committed the actual acts.
Mistreatment of prisoners is a crime in military law and it is not clear that this has been changed by the act. And there is also the fact that the list of prohibited acts is determined by the President by executive order. A future President could choose to recind Bush’s list.
With Pinochet just dragging the criminal into court was a major victory. The point here is to establish the fact that the current situation in Iraq is the direct result of the use of torture, that the abuses at Abu Graihb gave birth to and fuelled the insurgency. The blame must be firmly pinned on the administration so that in ten years time they cannot claim that Iraq was lost by their successors who only cleaned up the filth they made.
Sadly, the law sometimes isn’t what engineers expect it to be. And this is one such case. The precedents I’ve seen are quite clear. With the possible exception of the case where an amnesty was unconstitutional for some reason, and thus void ab initio, the cases teach us that a legislative amnesty cannot be undone. The bill removes the crime. To then add a crime back is to attempt ex post facto criminality against a person who, prior to that second statute, is innocent of a crime. So you can’t do it.
The point I was making was that the bill is narrowly focused, the criminality very broad. I doubt that the sloppy thinkers who justified torture and waved away the objections without seriously considering them could write an airtight amnesty. It may not be possible to prosecute for the actual conduct but there may be the opportunity for an Al Capone solution where you prosecute the gangster for tax evasion.
For example traffic in instruments of torture is a specific crime under UK law. Does the amnesty cover that? Lets have a look, a very long look at all the possibilities.