It’s bad enough that five Democrats (and two ‘moderate’ Republicans–I use the term in quotation marks not to mock them but to point out that their vote is anything but ‘moderate’) voted for Sen. Lindsay Graham’s “you can’t go there” amendment that denies enemy combatants access to U.S. courts in attempting question the military tribunals which will prosecute them. But now the NY Times reports they’ve made the added mistake of trying to explain their abandonment of the Constitution. We all expect ol’ Joe Lieberman to be good for a national security moment since that’s just about all he seems to care about:
“A foreign national who is captured and determined to be an enemy combatant in the world war on terrorism has no more right to a habeas corpus appeal to our courts than did a captured soldier of the Axis powers during World War II…”
“A foreign national who is captured and determined to be an enemy combatant in the world war on terrorism has no more right to a habeas corpus appeal to our courts than did a captured soldier of the Axis powers during World War II…”
The operative phrase here is “determined to be an enemy combatant.” Who determines that? Bush of course. What has he done to give us confidence that he knows the difference between a terrorist and someone who’s in the wrong place at the wrong time? This president should give no one any confidence in anything he says, but especially with regard to terrorism and national security. He has consistently shown himself to be either a bungler or an out and out liar. So why should we trust his judgment in this matter?
In addition, why would you preclude the Supreme Court from ruling on the constitutional validity of Bush’s military tribunals instead of pre-empting them as Graham’s amendment does? Seems to me that you’re inviting not only another Court review of the new law, but you’re probably inviting it to be struck down considering the Court’s deep skepticism regarding government arguments advanced thus far in defending the tribunals.
And finally, what’s wrong with leaving it to the U.S. justice system to deal with the detainees’ appeals? Don’t we trust our courts to adjudicate these matters fairly and expeditiously? So why have we grown so mistrustful of them so as to deny them the right to hear the prisoner’s appeals? Seems to me that we’re setting up a shaky, probably unconstitutional form of justice (tribunals) in order to guarantee convictions because we’re worried that our traditional venue for justice (the courts) will be too lenient or too considerate of their rights. Pretty pathetic if you ask me.
Senator Nelson of Nebraska (why is this guy running as a Democrat when he votes with Bush as often as Repubicans do?) chimed in with this defense:
“He thinks they should stay in the military tribunal system, and if that system is broken, we should fix it, not move them out of it,” said David DiMartino, a spokesman for Senator Nelson.
Got news for you Mr. Senator: the system IS broken and it CANNOT be fixed. Military tribunals are not a traditional concept of military justice. They are an artificial almost extra-judicial system created by George Bush to stuff alleged terrorists into dark places where they will never be heard from until we’re good and ready to let them go. The tribunals are alien to American jurisprudence and military justice, which is why so many military lawyers, including the one arguing against the tribunals in the Supreme Court, vehemently oppose them. This from the Guardian:
John Hutson, a retired rear admiral, is collecting signatures from about 60 former officers who oppose the proposal, and the National Institute of Military Justice, a non-partisan legal group, has announced its opposition to the measures.
Republican ‘moderate,’ Susan Collins explained her thinking on the matter:
“…his amendment prevents detainees who are not U.S. citizens from filing habeas corpus lawsuits in federal courts.”
Why won’t you let a court be the judge of that, Ms. Collins? Why would you, not knowing anything about the specific cases involved, be willing to make such a sweeping judgment against an entire class of individuals. What if the court were to find that Bush was wrong in labelling someone an enemy combatant? That would mean there had been a miscarriage of U.S. justice. Doesn’t it bother you that if this becomes law we’ll never know the answer, because the detainees’ mouths will effectively be sewn shut as far as American justice is concerned (that is, unless you count a tribunal as American justice–I’d characterize it as bastardized justice).
Olympia Snowe, another leading light of Republican moderates had this to say through her spokesperson:
Antonia Ferrier…characterized her boss’s concerns this way: “Do we need all those lawyers going down there to hear their complaints? It seems a little extreme to her. After all, we’re talking about enemy combatants.”
Yeah, those dirty Islamo-terrorist bastards are wasting our time with their weasely, whiny complaints about not wanting a military tribunal to sentence them to die or spend life in prison. What a nerve they have!
I’m delighted that Senator Jeff Bingaman is riding into the breach with an effort to kill or soften the draconian language of Graham’s provision. Here’s what the Guardian had to say:
Jeff Bingaman, a Democrat senator who has the support of several legal experts, plans to challenge the removal of the habeas corpus provision in the senate as early as today. “This is not a time to back away from the principles that this country was founded on,” he said during the senate debate.
Godspeed, senator.
John McCain too gave a feeble justification for his vote:
Mr. McCain issued a statement Friday explaining his vote in support of Mr. Graham’s amendment as a way to rid federal courts of petitions from prisoners on everything from the delivery of mail to the type of food allowed.
John, first of all–why shouldn’t they have a right to petiton? Second, these guys are not petitioning about their food and mail. They’re petitioning to overturn the tribunal system on constitutional grounds. Seems to me that that’s a far weightier purpose that deserves its day in court, no matter what your view of the merits of the argument. Besides John, did those North Vietnamese bastards who tortured you ever have to face a judge to justify their conduct toward you? Wouldn’t you have wanted that option if their legal system would’ve permitted it?
But I’m heartened to hear that McCain is also willing to entertain a compromise:
“Based on ongoing discussions, it is entirely possible that the current version of the amendment will be modified to address concerns about lawful treatment and the scope of independent appeals,” Mr. McCain said.
A group of legal scholars from pretigious law schools have also entered the fray arguing against theamendment:
Judith Resnick of Yale Law School, David Shapiro and Frank Michelman of Harvard Law School, and Burt Neuborne of New York University Law School [and other scholars], were circulating a letter on Friday urging senators to reject Mr. Graham’s measure.
“The Graham amendment embodies an effort to alter fundamental precepts of our constitutional order,” the letter said. “It consigns the protection of fundamental human liberties to unilateral executive determination.”
We’re going down the wrong road here, folks. Once the damage is done by turning this amendment into law it will be much harder to undo it. If we don’t rue this thing now, we surely will in a month, a year or a decade and by then it will be an indelible blot on our reputation as a “nation of laws.” I don’t recall ever hearing anyone say with pride: “we are a nation of tribunals.”
The Times has published an eye-opening Op-Ed column detailing the origins of Guantanamo torture tactics claiming they are based on North Vietnamese interrogation techniques used to “break” U.S. prisoners. If any of the above senators need to better understand the reason why terror detainees need access to U.S. courts, they must read Doing Unto Others as They Did Unto Us and learn about the origins of these techniques.
