September 28, 2006

THE DETAINEE TRIAL BILL has passed, in a form that seems to be pretty close to what the White House wanted, though I haven’t read the actual bill:

Earlier, the Senate narrowly rejected an amendment, sponsored by Sen. Arlen Specter (R-Pa.) and Sen. Patrick Leahy (D-Vt.), that would have allowed suspected terrorists to challenge their detention in federal court. Senators voted 51 to 48 against the amendment, which called for deleting from the bill a provision that rules out habeas corpus petitions for foreigners held in the war on terrorism. The writ of habeas corpus, which is enshrined in the U.S. Constitution, allows people to challenge in court the legality of their detention, essentially meaning that they cannot be held indefinitely without charge or trial.

The issue was one of the most contentious in the bill, which authorizes the president “to establish military commissions for the trial of alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses. . . .” Under the rules in the bill, statements obtained from a detainee by torture would not be admissible as evidence, but information extracted using harsh interrogation methods that violate a ban on “cruel, inhuman or degrading treatment” would be allowed if they were obtained before the Detainee Treatment Act of 2005 went into effect on Dec. 30 and if a judge found them to be reliable and in the interests of justice.

The proposed legislation would also set the parameters for interrogating terrorism suspects. It bars the president from authorizing any interrogation techniques that amount to war crimes, which it says include torture, murder, mutilation or maiming, rape, sexual abuse, serious bodily injury, hostage-taking, biological experiments and cruel or inhuman treatment. However, the president could “interpret the meaning and application” of Geneva Convention standards regarding less severe interrogation methods, the Associated Press reported.

Under a compromise reached last week with three recalcitrant Republican senators, the bill omits a provision sought by Bush that interpreted U.S. obligations under Common Article 3 of the Geneva Conventions. Critics said that provision amounted to redefining a key part of the conventions and would put captured U.S. troops at risk if an enemy decided to do the same.

The last argument is silly, as we haven’t had an enemy that respected the Geneva Conventions in my lifetime, and aren’t likely to have one any time soon. And if our enemies’ disregard for the laws of war doesn’t justify us acting similarly, then it’s not clear why any behavior on our part would justify a departure from the Conventions on the part of some hypothetical future enemy.

As for the rest, I don’t understand the admissibility of evidence before December 30. It seems to me that it’s either wrong or it’s not, and that an arbitrary date doesn’t make wrong conduct right, or right conduct wrong.

I’ve seen some people calling this an abolition of habeas corpus, but as I understand it, habeas is suspended only with regard to non-citizens. This removes a key danger of abuse, since the potential politically-motivated abuses that are most worrisome involve U.S. citizens, not aliens. And Congress quite explicitly has the Constitutional power to suspend the writ of habeas corpus, though whether this counts as a “suspension” of the writ is open for debate. Like Orin Kerr, I’m not an expert on habeas and thus don’t have a lot more to say about it.

At any rate, I can’t say I’m surprised that it worked out this way, as this is pretty consistent with polls I’ve seen on public attitudes. Congress has acted, and the political system seems pretty much in agreement, both between the legislative and executive branches, and between those branches and the electorate.

Meanwhile, the locus of criticism of the legislation, the Democratic opposition, and more can be found at Balkinization. Go there for lots of critiques and complaints.

UPDATE: Via TVC, I found this column by Jonathan Rauch. It’s a few days old, but I believe this analysis remains on-point:

The differences between the proposals were fairly important, but what was really momentous was their similarity. On several fundamental points, a consensus has taken shape.

First, torture should be legally off-limits, period, regardless of circumstances. Hardly anyone says otherwise.

Second, some kind of special and secret system for detaining and interrogating high-value terrorism suspects is justifiable and necessary. In a statement on September 6, Sen. Jay Rockefeller IV of West Virginia, the Democratic vice chairman of the Senate Intelligence Committee, said, “I support the continuation of a CIA detention and interrogation program, but it must be operated in a lawful manner.” No prominent Democrat, or Republican, was heard to disagree.

Finally, general agreement exists that the central purpose of a detention and interrogation system is to prevent terrorism, not to prevent torture. That point may sound trivial, but it is not: Many human-rights advocates believe that the foremost responsibility of any detention system is to treat detainees humanely. On Capitol Hill, both parties reject that view. In its way, this is a seminal decision.

Read the whole thing, which — as with all of Rauch’s work — is worth reading.

ANOTHER UPDATE: A.J. Strata thinks it’s a disaster for the Democrats. He’s not the only one. Read this, too.

MORE: According to an email published by Jonah Goldberg, the bill doesn’t just apply to aliens. That conflicts with the report above, and with my understanding, and with a piece I heard on NPR this morning. But if it’s true, it’s a major problem with the bill, one that increases the likelihood ofits being found unconstitutional, and one that would make me much more unhappy with the bill.

MORE STILL: Jonah has a followup indicating that the above is in error, and that the bill applies only to aliens.

That kind of yanks the rug out from under this post by Andrew Sullivan, too. But I think that we’re seeing the instantiation of what I warned him about nearly two years ago. (“I think the effort to turn this into an anti-Bush political issue is a serious mistake, and the most likely outcome will be, in essence, the ratification of torture (with today’s hype becoming tomorrow’s reality) and a political defeat for the Democrats.”) Meanwhile, his gratuitious slap at PorkBusters seems more peevishly jealous than anything else. But PorkBusters has worked because it is bipartisan, focuses on the goal rather than the bloggers pushing it, and tries to treat people (except, perhaps, occasionally Trent Lott) with some minimal courtesy, an approach that Andrew might consider emulating in his next crusade.

And here’s a post by Jack Balkin saying that the habeas-stripping procedures only apply to aliens, but that other provisions regarding unlawful combatants may apply to U.S. citizens. I tend to agree that to the extent this is true it is probably unconstitutional, though I haven’t studied this issue to nearly the extent that Jack has.

Plus, some useful thoughts from Eugene Volokh.

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