Torturing Democracy

Torturing Democracy

September 29, 2006

On Wednesday, the House rubber-stamped (253-168) the administration's legislation governing the interrogation and trial of terror suspects, "a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts." Yesterday the Senate passed the measure in a 65-34 vote. This legislation was the result of a supposed "compromise" between conservative lawmakers and the administration. But in reality, the legislation was more about making sure President Bush has the opportunity to sign high-profile terrorism legislation before the midterm elections. Courts have struck down the past approaches the administration has taken to interrogate and detain terrorist suspects, and may eventually strike down this approach. This legislation won't protect the nation from terrorists, will put our troops at risk, and will damage American democracy.

• Under the new law, the administration can very broadly define who is an “enemy combatant.” Congress has handed the Bush administration “extraordinary new powers to define who is an "illegal enemy combatant," potentially subjecting legal U.S. residents, as well as foreign citizens living in their own countries, to arrest and indefinite detention with no hope of appeal. This request — and Congress's willingness to grant it — is unbelievable since, as Sen. Barack Obama (D-IL) points out, in the "five years that the President's system of military tribunals has existed, not one terrorist has been tried. Not one has been convicted. Not one has been brought to justice. And in the end, the Supreme Court of the United States found the whole thing unconstitutional, which is why we're here today." Additionally, Georgetown University Visiting Professor of Law Marty Lederman states that these powers won't be limited to wartime, since the "illegal enemy combatant" status applies to anyone "who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant."
  
  
• The new legislation gives the president unprecedented power to define torture. The new legislation essentially gives the president the power to define what specific techniques violate the Geneva Conventions, repudiating a half-century of international precedent. Sen. Hillary Clinton (D-NY) points out, "This bill undermines the Geneva Conventions by allowing the President to issue Executive Orders to redefine what permissible interrogation techniques happen to be. Have we fallen so low as to debate how much torture we are willing to stomach?" As Center for American Progress Senior Fellow Mark Agrast explains, "The danger is that this will enable the president to continue to misconstrue the Conventions as permitting practices which they clearly prohibit.
  
  
• This law will effectively create two versions of justice in America – one for citizens and one for everyone else. Under this bill, unlawful enemy combatants — which can cover anyone in the United States who is a non-citizen — will lose their seven century-old right to challenge their imprisonment. Conservatives such as Bruce Fein and Kenneth W. Starr argued against this provision. Georgetown University law professor Neal Katyal said the bill's creation of a different system of justice for non-citizens may violate the Constitution's 14th amendment, which requires equal protection of the laws to anyone under U.S. jurisdiction. "If you're an American citizen, you get the Cadillac system of justice. If you're a foreigner or a green-card holder, you get this beat-up-Chevy version."