Balkinization  

Tuesday, September 19, 2006

Specter sees the light on the great habeas swindle

JB

On this blog we've criticized Senator Specter's approach to the NSA wiretapping controversy repeatedly. But Senator Specter has now spoken out in a good and helpful way against the President's dreadful military commissions/torture-lite bill.

Specter has identifed a major problem with both the President's bill and the McCain-Graham-Warner bill: both bills eliminate the right of detainees to contest the legality and the conditions of their confinement through the ancient writ of habeas corpus.

It's important to understand that although Senators McCain, Graham and Warner are getting a lot of great press on their disagreements with President Bush, and are being widely championed as brave defenders of human rights, the bill they have authored in the Senate is not a good bill; it is merely less terrible than the one the President is pushing. The press has either been hoodwinked on this score or has been complicit in downplaying this aspect of their handiwork. I choose to believe that it is the former: hence this post.

In particular, the McCain-Graham-Warner bill, like the President's, would prevent anyone detained in Guantanamo Bay (or any other detention facility outside the U.S.) from challenging what has been done to them in court except as an appeal from the decision of a military commission.

That means that if the government decides never to try an individual before a commission, but just holds them in prison indefinitely, there is no way that they can ever get a hearing on whether they are being held illegally-- because they are not in fact a terrorist; or a hearing on whether they are being treated illegally-- because they have been abused or tortured or subjected to one of the Administration's "alternative sets of procedures"-- a.k.a. torture lite.

So if a person at Guantanamo Bay isn't in fact a terrorist and isn't a danger to the United States, but never is subjected to a military commission hearing, there is no way they can get out if the military wants to hold them. (There are a few exceptions to this statement, but even in those cases the scope of review is severely limited and may be of no real help). One expects that the military isn't going to make trials of people who aren't dangerous and aren't terrorists a major priority, because it wants to use the military commissions for those people whom it believes are the worst actors and for whom it has the most inculpatory evidence. Abolishing the right of habeas corpus has the perverse effective of stripping access to justice for those detainees who are most likely to be innocent and harmless, and therefore most deserving of access to the Great Writ of habeas corpus.

Similarly, if the Administration decides not to bring a particular detainee to trial before military commission but just use them as a source of information by repeatedly torturing them (or engaging in torture-lite-- remember, we don't torture!) there is no way for a person abused in this way to contest it and stop it, even if it violates the Geneva Conventions. That's because there's no verdict of a military commission to appeal, and there's no right to habeas. In addition, under both the Bush and the McCain-Graham-Warner provisions, there's no right for an individual to invoke the Geneva Conventions even if there was a judicial forum to contest the torture-lite, which, once again, there isn't.

So if the Administration abuses someone based on faulty evidence, and eventually figures out that they are harmless (compare the case of Maher Arar), the Administration has no incentive ever to bring that person before a military commission, because, of course, the person would likely be found innocent and in the process the fact of that person's mistreatment would come out. And because there would be no way for them to bring a writ of habeas corpus, they would rot in prison indefinitely.

This is a terrible solution for to how to deal with detainees. It punishes the innocent more than the guilty, and it deliberately looks the other way at possible prisoner abuse at Guantanamo and elsewere (and by now we have enough evidence to know that this is a serious problem.) It makes a mockery of America's promise to respect the Geneva Conventions, and it is deeply inconsistent with America's view of itself as committed to justice and the rule of law. Preventing people from challenging their abuse under American law and the Geneva Conventions undermines America's moral authority as much as the President's decision to amend the laws against torture themselves. And these jurisdictional provisions, I repeat, are in both the President's bill and the bill offered by Senators McCain, Graham, and Warner, who are currently being lionized by a press that thinks they are standing up for America's deepest values.

I've got news for you. If the McCain-Graham-Warner bill is passed in its present form, it will also undermine America's values. Because it will leave the innocent and the harmless, and those illegally abused but never brought to trial without a remedy.

It will perpetrate a mockery of justice.

Senator Specter has figured this out. And he should be commended for it.


Comments:

Thankyou! These bills are problems on the habeas language, on the shocks the conscience test vs. Common Article 3, on the definitions of lawful combatants under GC 3 Article 4, in the definitions of civilians under GC 4 Article 4 (and not 5),etc. There is an effort to create an inexistent category - unlawful enemy combatants - a throwback to pre-GC times. If you read Thomas' dissent in Hamdan you can see that the major precedents he is citing on this are in the pre-1949 period.
It is AWFUL! AWFUL! AWFUL!. Having these two groups negotiating what is going on, one knows that all is lost.
It is hopeless and a cause of despair.
Best,
Ben
 

It's good to see that Specter is finally seeing the light. The Center for Constitutional Rights, which represents both Maher Arar and many of the detainees at Guantanmo is doing an action alert around the bill. People can sign it here:
http://www.democracyinaction.org/dia/organizationsORG/ccr/campaign.jsp?campaign_KEY=5215
 

Pooh. We've seen the Specter Two-Step before: (1) announce a principled position; (2) abandon it like it was on fire.

We'll see it again on habeas, I expect.
 

Sen Spector has developed a 'two step'. His abandonment of concern for the warrantless NSA survellience would be reason enough to be concerned that he will bail on the Great Writ issue as well.

So many core values are being undermined at once, it is difficult to even keep current on them as a reader.

Perhaps, the public would be best served by a discussion of the fundamental importance of the rule of law.
 

One of the reasons for my calls to strike down AUMF is that it would seem, at face value, to substitute a President's (and it really doesn't matter which) determination of such matters for the wisdom of the rule
of law as overseen by our courts. Professor Balkin makes a wonderful case for why this is a bad idea. It's also an unconstitutional idea, the kind of thing that could possibly be changed by amendment but not by legislation. We could amend our constitution to strip the court of certain powers and to grant
wide and vague powers to the executive branch. But no number of bills or resolutions passed by Congress make such actions constitutional; it takes more than Congressional say-so. Granting war powers where there is no armed struggle between nations is counter to the provisions of our Constitution. So too is stripping individuals of habeas corpus.
 

To make matters worse, McCain and company appear willing to "compromise" on the War Crimes end of the statute too. If that happens, you'll have a truly perverse situation in which Geneva is the law in name only - whether you're the detainee or the torturer.

The detainee, of course, is unable to bring his case before any court for the reasons Professor Balkin cites -- and the torturer is immune from criminal liability when the War Crimes bill is rewriten. Torture will still be "illegal," but those being tortured will have no recourse and those doing the torturing will receive no punishment.

Orwellian stuff.
 

Professor, what are the "few exceptions," by which the "scope of review is severely limited and may be of no real help," to the statement that detainees who don't get military commission hearings may be held indefinitely w/o charges or the writ? Thanks very much.
 

I suggest a review of the Congressional Record of Wednesday the 20th. Senator Specter delivered remarks relating to the habeas corpus provisions in the competing detainee-process bills, and while I wasn't listening close enough to be certain, I believe he said that he had written a letter to Senator Frist asking that the bills be sent to the Judiciary Committee before being brought to the Senate floor.
 

Doesn't the Detainee Treatment Act already eliminate Habeas Corpus for detainees?
 

Keep up the good work! I had emailed some Democratic senators on this issue: that is important to oppose both the current Bush and McCain bill. But after reading the recent news that a compromise has been had, and the bill will likely go foward, it's time to make some phone calls. You would think someone would grasp that whether or not we reinterpret our requirements under the Geneva Conventions doesn't really matter if a case like Hamdan can't ever reach a courtroom. Imagine if this bill was in place prior to our military misadventures, it would have blocked Hamdan, Rasul, et al from ever seeing a courtroom.
 

So many core values are being undermined at once, it is difficult to even keep current on them as a reader.
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Granting war powers where there is no armed struggle between nations is counter to the provisions of our Constitution. So too is stripping individuals of habeas corpus.
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