Specter sees the light on the great habeas swindle

JB

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.