Cross posted from TomPaine
Yesterday, the Senate Armed Services Committee voted out a bill labeled “the Military Commission Act of 2006.” Media attention in leading East and West Coast papers generally lauded the senators’ supposed new-found spine, standing up to the president’s suggested rules on military commissions for alleged terrorists seized overseas. But is this really a victory for measured moderation? On closer inspection, it turns out the bill that came out of committee is, in most important respects, practically a blank check when it comes to executive detention authority.
Rather than keeping us safer, this legislation is another obstacle to solving the problem Britain’s Lord Falconer recently called a “shocking affront to the principles of democracy.” The Warner bill (also backed by Sens. McCain and Graham) contains provisions that seem to delegate to the president sweeping detention powers. These sweeping detention powers apply to both past and future decisions. They would permit the administration to bury the fact that it has swallowed up tens or hundreds of people during its counterterrorism operations who have little or no connection to actual terrorism.
Two key provisions are the most alarming. First is Section 6, which seeks to end any and all judicial review of overseas detention of non-citizens. This section undoes the flawed bipartisan compromise enacted in December 2005, the Detainee Treatment Act. Earlier this year, the Supreme Court declared that this bill closed the door to future cases from detainees held overseas, but left alone ongoing proceedings that were being litigated in the federal courts. The Warner bill would try to shut the litigation door entirely-stopping deliberation of cases that have not yet been fully decided.
Most distressing, this cuts off pending court challenges by Guantánamo detainees on the factual basis of their detentions. These cases matter tremendously because they are the only meaningful chance many detainees will ever have to explain that they are innocent. And there is compelling evidence that many of these detainees are, indeed, improperly detained.
During combat operations in Afghanistan, American forces offered bounties of up to U.S.$5,000 for al-Qaida suspects. Then, the White House decided to forego the battlefield “status tribunal”-known as “Article 5 proceedings”-that are mandated under international law to distinguish combatants from aid workers, journalists, and others accidentally swept up in a conflict. (Why? Because, as administration officials told New Yorker reporter Jane Mayer, to prove that they had the sheer, unfettered power to do so). The net result? Rather than the “worst of the worst” that the administration claimed to have netted, the Guantánamo camp is in fact full of Taliban cooks conscripted into duty boiling rice and baking bread, and Afghan shepherds swept in by those seeking bounties. That’s why of the 10 people who were to be tried in military commissions at first, only one had in fact engaged in anything remotely resembling combat.
Only this week, the Center for Constitution Rights released a telling facebook , documenting the cases of detainees for whom there is substantial evidence of wrongful detention. Yet Warner’s bill would ensure that these men-although some were scant more than boys when captured-will never get a chance to show they are wrongly detained. And the administration will never have to face the political embarrassment of backing off from its claim to holding the worst of the worst. Narrow partisan gain will prevail above the compelling need for simple fairness.
The second deeply troubling part of Warner extends this unchecked detention authority into the future: Not only non-citizens, but also U.S. citizens in the United States would be vulnerable to seizure and unending lock-up at the president’s whim.
A provision of the bill defines “unlawful enemy combatants” to include those “engaged in hostilities against the United States.” This definition is significant because it makes non-citizen “unlawful enemy combatants” the only category of persons subject to trial by military commission. So it might see that the definition has a limited purpose, as a gateway to commissions. But the Supreme Court in 2004 suggested that an “enemy combatant” could also be detained for the length of the relevant hostilities. The bill, in other words, could well be read not only to define who can be tried, but also who can be detained.
Still, at first blush, the bill might seem reasonable. After all, surely it’s fair to seize and hold those who are on the battlefield and fighting against the United States. But is that all it would cover? Hardly. The bill contains a critical gap: It contains no definition of hostilities. Other provisions of the bill seem to suggest that the definition of “hostilities” is much, much broader than the traditionally understood battlefield. “Hostilities” could well be defined in terms of the crimes listed as possible charges in military commissions. This would make, for example, someone who “wrongfully aids” an “enemy” of the United States an “unlawful enemy combatant.” A Miami grandmother sending money to relations in Cuba-which is an “enemy”-might well fall under the act. Another of the offenses listed for military commissions is “material support,” a vague and broad part of the criminal law that could include behavior as disparate as hosting a website to providing advice about how to respect humanitarian law and human rights.
Read in this expansive way, Warner establishes an open-ended authority to detain both citizens and non-citizens on the loosest of charges. Ironically, while it would only allow non-citizens to be tried in military commissions, citizens such as Jose Padilla, seized in the United States, can’t be tried but could merely be kept locked up-forever.
At a very minimum, Warner would allow any non-citizen lawfully present in the United States to be shunted into a second-tier criminal justice system for a broad gamut of vaguely defined offenses. For the first time in American history, a whole class of people would be subject to a second-class system of military justice for criminal offenses routinely prosecuted in the criminal justice system.
The irony of this legislation, in short, is this: A group of moderate conservatives are signing a blank check over to the president to detain U.S. citizens forever and to subject millions of non-citizens into a second-class criminal justice system. Precisely what the Bush administration has done to merit this extraordinary level of confidence is unclear. What is clear is the dramatic break from America’s traditions of liberty from unchecked indefinite detention.
To be sure, the bill, sponsored by Senator Warner and championed by McCain and Graham, contains better military commission procedures, provisions the administration has resisted. And for that, sections of the bill should be applauded. Unlike the administration’s proposed legislation, the Warner bill would not permit defendants to be convicted based on evidence gleaned by torture. Nor would it allow defendants to be excluded from large portions of their own trials.
But how many detainees would ever come before a military commission? Recall that the bill gives the administration power to hold the Guantánamo detainees indefinitely. Given the choice of indefinite detention and putting its allegations in a public criminal proceeding, which will the administration choose? It’s not hard to guess. If Warner passes, we should expect to see a handful of trials, including those of some high-value detainees -and then silence.
Military commissions have received the lion’s share of public attention, largely thanks to President Bush’s decision to move 14 so-called “high value” detainees to Guantánamo, a masterful maneuver that succeeded in changing the conversation from a debate over the prolonged detention of innocent people at the Cuban facility to answering the question: “What do we do about bad guys?”
The president’s political theater should not distract from what is at stake when the Senate and House vote on Warner: whether we should entrust the executive blindly with tremendous detention powers both now and in the future. It is a question that ought to hang heavy on the mind of every senator and representative, whether conservative or liberal, as this terrible bill makes its way to the floor.
Aziz Huq: “Derelict on Detainees” (PDF)