Now that we've dealt with the grotesqueries
I'll start my arguments with a word from Thomas Paine: He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty he establishes a precedent that will reach himself.
How about the more subtle aspects of the White House Torture Bill.
Nothing in it really limits the application to non-citizens.
For those who doubt this, two words, Jose Padilla.
Those of you unwilling to follow the four links about those two words will have to trust my summation: He was held without charge, without counsel, without hope of release, for more than three years.
He was arrested in the United States, and alleged to have planned to do terrible things.
He was finally charged with much lesser offenses.
How did that come about, was it the careful workings of the DoJ? Apparently not. It was the tireless work of Donna Newman, and appeals to habeas corpus.
There are others who are not being afforded this right (even though more than two hundred years of U.S. case law says they are entitled to it; because it is guaranteed to persons, not citizens).
That's all at risk of being lost.
We already claim the right to kidnap people who aren't in the U.S., and ship them to foreign climes to be tortured (which is what we did to Maher Arar, he wasn't, legally, in the United States, when he was travelling; he was changing planes, without entering the U.S. We sent him to Syria, where he was tortured, confessed to things he'd never done, and then was released when the Syrians decided he had nothing to do with terrorism. Makes ya proud to live in a nation of laws, don't it?)
The legislation being proposed (the compromise, where John McCain, John Warner and Lindsey Graham got to posture about standing up to the White House, while changing the bill to make it give them more than they asked for) would, as written, seem to make it impossible for anyone declared to be an enemy combatant (a la Padilla) to make a habeas claim in the courts.
(c)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who --
(A) is currently in United States custody; and
(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
So there, if one is awaiting the declaration of one's status, one can't file a habeas petition.
That, one might say is bad enough.
But it goes further.
Sect 948b Military commissions generally
(c) Inaplicabilty of Certain Provisions.--
(1) The following provisions of this title shall not apply to trial by military commission under this chapter
(A) Sections 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial
(B) Sections 831(a), 9b), and (d) (articles 31(a), (b) and (d) of the Uniform Code of Military Justice), relating to self-incrimination.
(C) Section 832 (article 32 of te Uniform Code of Military Justice), relating to pretrial investigation...
(d) Status of Military Commissions Under Common Article 3-- a military commission establised under this chapter is a regularly constituted court, affording all the necessary, 'judicial guarantees which are recognized as indispensible by civilized peoples' for purposes of common Article 3 of the Geneva Conventions
Mind you they go on tp say that no one subject to trial under this law "may invoke the Geneva Conventions as a source of rights at his trial by military commission." so rights aren't rights, they are grants of privilege.
I really like this part, Sect 948j. (f)Prohibition on Evaluation of Fitness by Convening Authority-- The convening authority of a military commission under this chapter shall not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission which relates to his performance of duty as a military judge on the military commission
I think this is meant to prevent "undue command influence," by removing the convening authority from writing anything on the members' efficiency reports, but I can see it being intepreted to mean that any person, nominally qualified, can't be reviewed for actual qualification.
This is confusing, because in another section {949b (b)} this is addressed directly. In other words somone who is incompetent might be a lock.
Evidence obtained by, "torture" under the Detainee Treatment Act of 2005 is to be excluded (n.b. anything which is included in the Field Manual for Interrogation is legally not torture under that act, and nothing in that act prevents what we might decide was torture from being included, further such methods can be in a classified portion of the text, and so forbiden to the public, as well as the defense. Neat trick, eh?)
Hearsay is explicitly allowed, though the judges can decide how authentic the hearsay is, and discount it.
Sect. 949(A)(c)(e) allows the closure of the proceedings to the accused. If the executive claims privilege, then the accused is removed from the courtroom. This privilege may be delgated to any person the executive wishes to name as representative. The authority is presumed in the absence of evidence to the contrary which implies the prosecution has it, de facto unless specifically excluded from excercising it. I feel so much safer.
Sect 949 (B) allows for the introduction of evidence, without revealing the source, if the representative of the executive thinks this would compromise sources, and methods. The jugdge may compell, "to the extent practicable, and consistent with national security, an unclassified summary of the sources methods, or activities by which the United States acquired the evidence. That allows them to say the release of that information would be, "impractical."
"Such a request of privelige under this subsection {949 (C)} and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused
There's your Star Chamber.
It takes a majority of those present to render a verdict (but no apparent requirement fot any given number of the panel to be present. The Manual for Courts-Martial does specify that no one is to be excused without cause, but no specific limits on cause are described). A death penalty does require a unanimous vote of those who are present for the sentencing, and the initial commission must be at least 12 members, though there are clauses which allow for a lesser panel. It isn't clear if that supercedes the requirement for 12 persons in a capital case.
Nice, no?
Now, back to habeas corpus.
This act retroactively strips the rights of prisoners (who we have seen may be US citizens, taken into custody inside the United States) to 1997.
So those people who are presently challenging their captivity, or militating to be given a trial... shit outta luck.
And, just so we are clear on what the Geneva Conventions mean (since clarifying them is what it's all about)
Section 8 (3)INTERPRETATION BY THE PRESIDENT.--(A) As provided by the Constitution, and by this section, the President has the authority for the United States to inerperet the meaning and application of the Geneva Conventions.
So there you have it. The law is now clear, because the President gets to set the terms of it. He also gets to make those terms secret.
Past/present practice means he can also, at his discretion, apply the law against citizens of the United States.
Senator McCain says this makes us safer.
To go back to Thomas Paine: It is the direction and not the magnitude which is to be taken into consideration.
How about the more subtle aspects of the White House Torture Bill.
Nothing in it really limits the application to non-citizens.
For those who doubt this, two words, Jose Padilla.
Those of you unwilling to follow the four links about those two words will have to trust my summation: He was held without charge, without counsel, without hope of release, for more than three years.
He was arrested in the United States, and alleged to have planned to do terrible things.
He was finally charged with much lesser offenses.
How did that come about, was it the careful workings of the DoJ? Apparently not. It was the tireless work of Donna Newman, and appeals to habeas corpus.
There are others who are not being afforded this right (even though more than two hundred years of U.S. case law says they are entitled to it; because it is guaranteed to persons, not citizens).
That's all at risk of being lost.
We already claim the right to kidnap people who aren't in the U.S., and ship them to foreign climes to be tortured (which is what we did to Maher Arar, he wasn't, legally, in the United States, when he was travelling; he was changing planes, without entering the U.S. We sent him to Syria, where he was tortured, confessed to things he'd never done, and then was released when the Syrians decided he had nothing to do with terrorism. Makes ya proud to live in a nation of laws, don't it?)
The legislation being proposed (the compromise, where John McCain, John Warner and Lindsey Graham got to posture about standing up to the White House, while changing the bill to make it give them more than they asked for) would, as written, seem to make it impossible for anyone declared to be an enemy combatant (a la Padilla) to make a habeas claim in the courts.
(c)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who --
(A) is currently in United States custody; and
(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
So there, if one is awaiting the declaration of one's status, one can't file a habeas petition.
That, one might say is bad enough.
But it goes further.
Sect 948b Military commissions generally
(c) Inaplicabilty of Certain Provisions.--
(1) The following provisions of this title shall not apply to trial by military commission under this chapter
(A) Sections 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial
(B) Sections 831(a), 9b), and (d) (articles 31(a), (b) and (d) of the Uniform Code of Military Justice), relating to self-incrimination.
(C) Section 832 (article 32 of te Uniform Code of Military Justice), relating to pretrial investigation...
(d) Status of Military Commissions Under Common Article 3-- a military commission establised under this chapter is a regularly constituted court, affording all the necessary, 'judicial guarantees which are recognized as indispensible by civilized peoples' for purposes of common Article 3 of the Geneva Conventions
Mind you they go on tp say that no one subject to trial under this law "may invoke the Geneva Conventions as a source of rights at his trial by military commission." so rights aren't rights, they are grants of privilege.
I really like this part, Sect 948j. (f)Prohibition on Evaluation of Fitness by Convening Authority-- The convening authority of a military commission under this chapter shall not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission which relates to his performance of duty as a military judge on the military commission
I think this is meant to prevent "undue command influence," by removing the convening authority from writing anything on the members' efficiency reports, but I can see it being intepreted to mean that any person, nominally qualified, can't be reviewed for actual qualification.
This is confusing, because in another section {949b (b)} this is addressed directly. In other words somone who is incompetent might be a lock.
Evidence obtained by, "torture" under the Detainee Treatment Act of 2005 is to be excluded (n.b. anything which is included in the Field Manual for Interrogation is legally not torture under that act, and nothing in that act prevents what we might decide was torture from being included, further such methods can be in a classified portion of the text, and so forbiden to the public, as well as the defense. Neat trick, eh?)
Hearsay is explicitly allowed, though the judges can decide how authentic the hearsay is, and discount it.
Sect. 949(A)(c)(e) allows the closure of the proceedings to the accused. If the executive claims privilege, then the accused is removed from the courtroom. This privilege may be delgated to any person the executive wishes to name as representative. The authority is presumed in the absence of evidence to the contrary which implies the prosecution has it, de facto unless specifically excluded from excercising it. I feel so much safer.
Sect 949 (B) allows for the introduction of evidence, without revealing the source, if the representative of the executive thinks this would compromise sources, and methods. The jugdge may compell, "to the extent practicable, and consistent with national security, an unclassified summary of the sources methods, or activities by which the United States acquired the evidence. That allows them to say the release of that information would be, "impractical."
"Such a request of privelige under this subsection {949 (C)} and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused
There's your Star Chamber.
It takes a majority of those present to render a verdict (but no apparent requirement fot any given number of the panel to be present. The Manual for Courts-Martial does specify that no one is to be excused without cause, but no specific limits on cause are described). A death penalty does require a unanimous vote of those who are present for the sentencing, and the initial commission must be at least 12 members, though there are clauses which allow for a lesser panel. It isn't clear if that supercedes the requirement for 12 persons in a capital case.
Nice, no?
Now, back to habeas corpus.
This act retroactively strips the rights of prisoners (who we have seen may be US citizens, taken into custody inside the United States) to 1997.
So those people who are presently challenging their captivity, or militating to be given a trial... shit outta luck.
And, just so we are clear on what the Geneva Conventions mean (since clarifying them is what it's all about)
Section 8 (3)INTERPRETATION BY THE PRESIDENT.--(A) As provided by the Constitution, and by this section, the President has the authority for the United States to inerperet the meaning and application of the Geneva Conventions.
So there you have it. The law is now clear, because the President gets to set the terms of it. He also gets to make those terms secret.
Past/present practice means he can also, at his discretion, apply the law against citizens of the United States.
Senator McCain says this makes us safer.
To go back to Thomas Paine: It is the direction and not the magnitude which is to be taken into consideration.