Military Commissions Bill ‘Sets Back Basic Rights 900 Years”

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(credit: Dan Wasserman/Boston Globe

Now that Senate Democrats have caved, the entire body is set to enact one of the worst pieces of legislation passed in decades (and there have been many bad ones so you know this has to be BAD). Who do you think I quoted in my post title? Ted Kennedy? John Murtha? John Kerry? Hillary Clinton? No, I quoted a Republican: Arlen Specter. Yes, I know for Club for Growth/neocon Republicans Specter is a pinko turncoat from the cause. But if Arlen Specter can make such a sweeping statement, you know it’s bad.

The NY Times has published a savage attack on the legislation, Rushing Off a Cliff which reads in part:

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…

It [the legislation] 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.

And they follow this passage with a comprehensive primer on where the bill would do the most damage to civil liberties and constitutional law:

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.

The Times rightly reserves some of its fury for Democrats who care more about limiting damage to their election prospects than they do about preserving the bedrock principles of constitutional law in this country.

I understand to an extent Democratic unwillingness to mount serious opposition to the Military Commissions bill. In their view, anything that detracts from their opportunity to win back one or both Houses is a losing proposition. But of what use would those majorities be if we had in place the worst civil liberties legislation since, as the Times puts it, the Alien and Sedition Act? Do Democrats think they’ll just snap their fingers after the elections end and blow the law into oblivion? I don’t think it will be as easy as all that. Have they forgotten the presidential veto? Although Bush was one of the few president’s in history not to use it in his first term, I assure Senate Dems that he’d love to use it to counter any effort to undermine this law (once it’s enacted). Harry Reid may have to wait years for the Supreme Court to receive a case allowing them to rule this execrable bill unconstitutional. YEARS. Do we think the fabric of our Republic is so strong that it can withstand the strain of something as godawful bad as this?

To me, Reid’s “deal” with the Republican leadership allowing the legislation to go forward without mounting a filibuster is a Mephistophelean deal with the devil. Or to use another metaphor, this is Pandora’s box. Once you open it, it will open the floodgates to untrammeled tyranny. We’ve already seen some of the most egregious presidential violations of American civil liberties in decades during this Administration. But what comes in the aftermath of this bill’s passage will be like child’s play compared to what came before.

I do not understand why we’re not hearing more from principled conservatives like William Buckley, Bush pere, the Reaganites, etc. who must be plotzing about this development. And if they’re not, then they’re not true conservatives in the pure sense of the term, meaning those who desire to conserve our bedrock principles.

Those who vote for the Military Commissions Act are bringing about the unmooring of U.S. constitutional law from its foundations. It is one of the saddest days in the history of American legislative politics that I can remember (and I go back to the 1960s).