I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, September 28, 2006

The legalization of torture and permanent detention

(updated below - updated repeatedly - including final vote in progress (see Update VI below) -- updated below with final vote tally (see UPDATE IX below))

There is some ambivalence in writing about the torture and detention bill because it seems to be a ship that has already sailed (the only real significant unanswered question is how many Senate Democrats will vote in favor of this atrocity). And, on a very real level, it is actually difficult to ingest the reality of what is taking place. There are nonetheless a couple of points which need to be urgently emphasized.

Opponents of this bill have focused most of their attention -- understandably and appropriately -- on the way in which it authorizes the use of interrogation techniques which, as this excellent NYT Editorial put it, "normal people consider torture," along with the power it vests in the President to detain indefinitely, and with no need to bring charges, all foreign nationals and even legal resident aliens within the U.S. But as Law Professors Marty Lederman and Bruce Ackerman each point out, many of the extraordinary powers vested in the President by this bill also apply to U.S. citizens, on U.S. soil.

As Ackerman put it: "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." Similarly, Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

This last point means that even if there were a habeas corpus right inserted back into the legislation (which is unlikely at this point anyway), it wouldn't matter much, if at all, because the law would authorize your detention simply based on the DoD's decree that you are an enemy combatant, regardless of whether it was accurate. This is basically the legalization of the Jose Padilla treatment -- empowering the President to throw people into black holes with little or no recourse, based solely on his say-so.

There really is no other way to put it. Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).

I fully understand, but ultimately disagree with, the viewpoint, well-argued by Hunter and others, that this bill constitutes merely another step on a path we've long been on, rather than a fundamental and wholly new level of tyranny. Or, as Hunter put it: "So this is a merely another slide down the Devil's gullet, not a hard swallow." But even with the extreme range of abuses the Bush presidency has brought, this is undeniably something different, and worse, by magnitude, not merely by degree.

There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny -- one of the very powers this country was founded in order to prevent.

One could cite an infinite number of sources to demonstrate what a profound betrayal this bill is of the fundamental promises of the American system of government. As Justice Jackson wrote in his concurring opinion in Brown v. Allen, 344 U.S. 443, 533 (1953):

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

Thomas Jefferson, in his letter to Thomas Paine, 1789. ME 7:408, Papers 15:269, said: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." And Patrick Henry warned us well in advance about Government officials who would seek to claim the right to imprison people without a trial:

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

In one sense, these observations are compelling because they define the core of what our country is supposed to be. But in another sense, they don't matter, because our Government is controlled by people and their followers who literally don't understand and, worse, simply do not believe in the defining values and principles of America. They know that this bill is a seizure of the most un-American powers imaginable, but their allegiance is to the acquisition of unlimited power and nothing else.

It was taken as an article of faith by Beltway Democrats that Americans want to relinquish these protections and radically change our system of government in the name of terrorism, so no political figures of national significance really tried to convince them they ought not to. We'll never really know whether Americans really wanted to do this or not because the debate was never engaged. It was ceded.

And as a result, we are now about to vest in the President the power to order anyone -- U.S. citizen, resident alien or foreign national -- detained indefinitely in a military prison regardless of where they are -- U.S. soil or outside of the country. American detainees are cut off from any meaningful judicial review and everyone else is cut off completely. They can be subject to torture with no recourse, and all of this happens on the unchecked say-so of the administration. Really, what could be more significant than this?

UPDATE: Via Atrios, several noteworthy items: (i) One of the country's most stalwart defenders of our constitutional values, Sen. Russ Feingold, announces on the Senate floor his opposition to the torture/detention bill for all of the right reasons; (ii) Sen. Chris Dodd's prepared remarks announcing his opposition to the bill are here; and (iii) The Washington Post's Dan Froomkin unsurprisingly recognizes the significance of this debate: "Today's Senate vote on President Bush's detainee legislation . . . marks a defining moment for this nation."

Additionally, John Kerry and Tom Harkin will also vote against the bill. The Senate "debate" can be watched on C-SPAN here. Sen. Rockefeller is speaking now.

UPDATE II: The Specter amendment to provide the right of habeas corpus (in essence, judicial review) to detainees failed by a vote of 48-51, which means detainees will be completely prohibited from challenging the validity of their detention before any tribunal of any kind.

Whenever one watches one of these Senate debates, it becomes so viscerally clear just how dishonest and reprehensible so many of these Senators are. I just watched Sen. Kit Bond say that the President was absolutely right to invade Iraq because it was -- and I'm quoting -- "a hotbed of terrorism." He also said that Democrats were to blame for the lack of intelligence oversight because they insisted on such a frivolous investigation into how and why we went to war based on completely false pretenses.

After that, Sen. Pete Dominici spat out one banal, moronic slogan after the next, and said that we can't possibly allow detainees to access our courts because it would "clog the courts" -- a completely idiotic assertion given the number of petitions there would be as compared to the overall caseload. It is better to allow the President to imprison people for life with no hope of ever proving one's innocence because to allow them to go to court would create lots of administrative burdens. The blind loyalty to the President of Republicans in Congress is limitless -- there is no presidential power they would meaningfully oppose. People who genuinely favor this bill are craven, hollow and un-American followers.

UPDATE III: The roll call vote on the Specter amendment is here (h/t the EJ Wire). Four Republicans voted in favor (Specter, Smith, Sununu, and Chafee). Only one Democrat opposed it (Nelson). Jeffords voted in favor and Snowe didn't vote. At least Democrats opposed a denial of habeas corpus in unison. That's something, at least.

UPDATE IV: Robert Byrd is speaking now in favor of his amendment (co-sponsored with Sen. Obama, which is going to fail, just like all the amendments have and will) to have the military commission provisions in the bill elapse in five years unless they are renewed. To do so, Byrd is trying to explain to Republican Senators that it is theoretically possible that George Bush might turn out to be wrong about the wisdom of this bill since, after all, even Adam and Eve did things that were wrong, so maybe George Bush might once be wrong, too.

That might be a compelling argument on its face, but I think the tactic least likely to persuade Senate Republicans of anything is to get them to believe that, at least when it comes to terrorism, Geroge Bush might be wrong. If you watch any of these Republican Senators speak, it quickly becomes apparent that that simply is a possibility they do not recognize.

UPDATE V: The quality of the "debate" on the Senate floor is so shockingly (though appropriately) low and devoid of substance that it is hard to watch. Sen. Warner was designated to be the opponent of the Byrd/Obama amendment to have some provisions of the bill sunset in five years, but Warner literally had no idea why he was against the amendment. The Republicans have already decided to reject every single Democratic amendment and that's all Warner knew.

So when Byrd and then Obama asked him why he opposed it, he began babbling about how the amendment would somehow send the signal to other countries that we're not serious in our commitment to the Geneva Conventions -- a claim which makes no sense on multiple levels, not the least of which is that, as Byrd pointed out, the 5-year amendment has nothing to do with Geneva Conventions compliance, only with military commissions.

Ten minutes later, some aide handed Warner a statement which he read with a whole new reason to oppose the amendment -- because it would send the "wrong signal" to The Terrorists that as long as they avoid getting caught for five years, then they won't be held accountable, and we must not show weakness in this war. That is so incoherent that it's not even remotely worth addressing. The arguments being advanced in support of this bill, and the people advancing them, are not just craven and un-Americans but also just plain dumb. Listening to the "debate" is like listening to nails against a chalkboard. The whole process is so broken and corrupt, but what other type of process could produce a bill like this?

UPDATE VI: The final votes on the various amendments (Rockefeller, Kennedy and Byrd) are underway. They are currently voting on the first amendment, from Sen. Rockefeller, requiring the CIA to provide intelligence committees of the basic information regarding the CIA's interrogation program. All three amendments are going to fail. Then they will pass the bill itself. The Rockefeller vote is complete and failed, 46-53. Every Democrat has voted for it, while every Republican (except Chafee) has voted against it. That is likely to repeat itself on the other two amendments.

At this point, my guess is that between 33-38 Democrats will oppose the bill itself, along with Chafee and Jeffords. That's more than I thought a week ago, but that is just a guess. I will post more once the votes are complete. Passage of the bill itself is assured.

The Byrd/Obama amendment to have the military commission provisions elapse after 5 years (unless renewed) was just rejected 47-52 (it received one more vote than the Rockefeller amendment, though I'm not sure which other Republican besides Chafee voted in favor of it). All Democrats voted in favor of it. They are now voting on the Kennedy amendment, and will then vote on the bill itself.

The Kennedy amendment was just defeated 46-53 (Chafee voted for, while Ben Nelson voted against it). The next vote is on the underlying bill.

UPDATE VII: McCain is giving the closing argument for Republicans and Pat Leahy is doing so for Democrats. Numerous Senators (including, irritatingly, Carl Levin) all stood up to ooze reverent praise for John McCain, and then McCain himself proceeded to do the same thing, as he pompously strutted around pointing out all of the great protections he won for us in his hard-nosed negotiations with the President. His hard-nosed negotiations with the White House are about as effective as Arlen Specter's.

Sen. Leahy gave a superb closing speech, lamenting that the days when Congress imposes a meaningful check on the Presidency "are long past," and pointing out that the way our Government is operating contravenes all of the political values he was taught growing up. He was properly and genuinely angry as he described the simply astonishing fact that President Bush now has the power to abduct people from around the world and consign them to life in prison and torture them with no opportunity of any kind to prove one's innocence.

The vote is next.

UPDATE VIII: Actually, Harry Reid is speaking now, announcing his vote against the bill. This is part of what he is saying:

Second, this bill authorizes a vast expansion of the President’s power to detain people – even U.S. citizens – indefinitely and without charge. No procedures for doing so are specified, no due process is provided, and no time limit on the detention is set. . . .

History will judge our actions here today. I am convinced that future generations will view passage of this bill as a grave error. I wish to be recorded as one who voted against taking this step.

It's good to see that Senate Democrats (with what appear to be 4 or 5 exceptions) are voting against this bill, but it's too little, too late. Many of them announced only for the first time today that they are opposing the bill (though many blame the recent changes over the last few days, which were made even after the noble McCain-Graham-Warner-White House "compromise" was announced).

But it is still difficult to understand the Democrats' strategy here. They failed to try to mount a filibuster because they feared being attacked as coddlers of the terrorists. But now they are going to vote against the bill, thereby ensuring those exact accusations will be made, and loudly (the White House already started today). Yet at the same time, they absented themselves the whole time from the debate (until they magically appeared today) and thus lost the opportunity to defend their position. They make this same mistake over and over.

UPDATE IX: Final passage of the bill was 65-34. 12 Democrats voted in favor, 1 Republican and 1 independent voted against (there may be one or two errors because I compiled the list while listening to the vote):

Democrats in favor (12) - Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich.), Nelson (Fla.), Nelson (Neb.)

Republicans against (1) - Chafee (R.I.).

Jeffords voted against.

I will have much more later, but a couple notes for now -- Jay Rockefeller (who voted for this bill) is the ranking Democrat on the Senate Intelligence Committee. When he was defending the amendment he introduced to compel the CIA to disclose to the Senate and House Intelligence Committees information about their interrogation activities, he complained that the White House has concealed all information about the program and that the Intellegence Committee members (including him) know nothing about this interrogation program. His amendment was defeated with all Republicans (except Chafee) voting against it. He then proceeded to vote for the underlying bill anyway.

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus protections. Then he voted for it.

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