The War Crimes Act
Despite an outpouring of opposition (over 3,000 letters were sent through the Just Foreign Policy website alone), in the final days of September, Congress passed a shameful law that may authorize abuses against detainees even as it strips them of their right to challenge their detention. The new law weakens US recognition of its Geneva Convention obligations, ignores the legal principle of habeas corpus, and undermines the international rule of law.
Under this law, the White House will have wide authority to secretly determine what interrogation methods are permitted under US law. The Bush administration has argued that abuses such as prolonged exposure to cold, placement in painful "stress positions," and sexual humiliation should be allowable. Congress has in effect allowed the White House to grant immunity to CIA interrogators, contractors and civilian leaders for the kinds of abuses witnessed at Abu Ghraib - not only in the future but also for the past five years.
The bill currently also takes away the right of habeas corpus from anyone the government designates (or plans to designate) an "enemy combatant." This means the government can detain such people their entire lives without ever filing charges against them or providing a fair hearing. Detainees would not have access to a US court.
The vote on the legislation was 65 to 34. (Click here for a list of votes for and against.) Two important amendments that would have improved the bill somewhat were voted down.
Press Reports
Cheney confirms that detainees were subjected to water-boarding
Jonathan S. Landay, McClatchy Newspapers, Oct. 25, 2006
Vice President Cheney has confirmed that U.S. interrogators subjected captured senior al-Qaida suspects to a controversial interrogation technique called “water-boarding,” which creates a sensation of drowning. Cheney indicated that the Bush administration doesn’t regard water-boarding as torture and allows the CIA to use it. “It’s a no-brainer for me,” Cheney said at one point in an interview.
The interview transcript was posted on the White House Web site: http://www.whitehouse.gov/news/releases/2006/10/20061024-7.html
Senate Approves Broad New Rules to Try Detainees
Kate Zernike, New York Times, September 29, 2006
The Senate approved a measure on Thursday on the interrogations and trials of terrorism suspects, establishing rules to deal with what Bush has called the most dangerous combatants in a different type of war. The vote was 65 to 34. It was cast after hours of often impassioned debate that touched on the Constitution, the horrors of Sept. 11 and the role of the US in the world. Both parties positioned themselves for the continuing clash over national security going into midterm elections. The vote showed Democrats believe Bush’s power to wield national security as a political issue is seriously diminished.
The bill would set up rules for the military commissions that will allow the government to proceed with the prosecutions of high-level detainees including Khalid Shaikh Mohammed. It would make illegal several broadly defined abuses of detainees, while leaving it to the president to establish specific permissible interrogation techniques. It would strip detainees of a habeas corpus right to challenge their detentions in court.
Democrats argued the rules were being rushed through for political gain too close to a major election and they would threaten the foundations of the American legal system and come back to haunt lawmakers as one of the greatest mistakes in history. "I believe there can be no mercy for those who perpetrated the crimes of 9/11," Senator Clinton said. "But in the process of accomplishing what I believe is essential for our security, we must hold onto our values and set an example that we can point to with pride, not shame." 12 Democrats voted for the bill. Republican Senator Chafee voted against it.
But provisions of the bill came under criticism from Republicans as well as Democrats, with several crossing lines on amendments that failed along narrow margins.
Senator Levin, arguing for an amendment to strike a provision to bar suspects from challenging their detentions in court, said it "is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees." The amendment failed, 51 to 49.
Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the provision barring court detainees’ challenges, an outcome that would send the legislation right back to Congress. "We should have done it right, because we’re going to have to do it again," said Senator Smith, who voted to strike the provision and yet supported the bill.
The measure would broaden the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in the US as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense. It would strip Guantánamo detainees of the habeas right to challenge their detention in court, relying instead on procedures known as combatant status review trials. Those trials have looser rules of evidence.
It would allow of evidence seized in this country or abroad without a search warrant to be admitted in trials. The legislation establishes several "grave breaches" of Common Article 3 of the Geneva Convention that are felonies under the War Crimes Act, including torture, rape, murder and any act intended to cause "serious" physical or mental pain or suffering. The issue was sent to Congress by a Supreme Court decision that struck down military tribunals the Bush administration had established. The court ruled that the tribunals violated the Constitution and international law.
Democrats and human rights groups objected to changes in the legislation over the weekend, including defining enemy combatants and setting rules on search warrants. "We should get this right, now, and we are not doing so by passing this bill," Senator Reid said. "Future generations will view passage of this bill as a grave error." Human rights groups called the vote "dangerous" and "disappointing." Critics feared it left the president a large loophole by allowing him to set specific interrogation techniques.
Besides the amendments that would have struck the ban on habeas corpus cases, the others that failed included one that would have established a sunset on the measure to allow Congress to reconsider it in five years and one requiring the CIA to submit to Congressional oversight. Another failed amendment would have required the State Department to inform other nations of what interrogation techniques it considered illegal for use on American troops, a move intended to prompt the administration to say publicly what techniques it considers out of bounds.
Do Unto Your Enemy...
Paul Rieckhoff, Op-Ed, New York Times, September 25, 2006
Paul Rieckhoff is executive director of Iraq and Afghanistan Veterans of America.
In 2002, I attended the Infantry Officer Basic Course. A seasoned senior officer explained the importance of the Geneva Conventions: "When an enemy fighter knows he’ll be treated well by US forces if he is captured, he is more likely to give up." In Baghdad, I saw countless insurgents surrender when faced with the prospect of a hot meal, a pack of cigarettes and air-conditioning. America’s moral integrity was the single most important weapon my platoon had on the streets of Iraq. It saved innumerable lives, encouraged cooperation with our allies and deterred Iraqis from joining the insurgency. But those days are over. America’s moral standing has eroded, thanks to its flawed rationale for war and scandals like Abu Ghraib, Guantánamo and Haditha. The last thing we can afford is to leave Article 3 of the Geneva Conventions open to reinterpretation, as President Bush proposed and can still do under the compromise bill.
Torture and the Content of our Character
Jeremy Brecher & Brendan Smith, The Nation, September 15, 2006
At stake in this standoff between the President and the Senate are legal and moral issues central to the Constitution and the character of the American people: the right to a fair trial, the use of torture, the accountability of high government officials for war crimes. It also tests the powers of Congress and the Supreme Court to rein in an errant executive.
Experts Say Bush’s Goal in Terrorism Bill Is Latitude for Interrogators’ Methods
Sheryl Gay Stolberg, New York Times, September 19, 2006
President Bush has repeatedly called for clarity in the rules for what he calls "alternative interrogation techniques" used by the CIA. What Bush really wants, legal experts say, is latitude so interrogators can use methods the military is barred from using under a recently issued Army field manual. Despite his call for clarity, the president has been vague in talking about the alternatives, which in the past have included sleep deprivation, playing ear-splittingly loud music and waterboarding, which induces a feeling of drowning. "They can’t come out and say we want more leeway to rough these people up," said John Radsan, former assistant general counsel for the CIA. "That doesn’t sell. So he says we need clarity. It doesn’t play well to say we need to deprive them of sleep and play loud music." The House postponed its vote on Bush’s proposal until at least next week. The White House had been counting on the House to pass the measure this week, a step it hoped would prod the Senate into action before lawmakers break at the end of the month for midterm elections.
Bush Aims to Kill War Crimes Act
Jeremy Brecher & Brendan Smith
September 5, 2006
The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. The Washington Post recently reported that the Bush administration is quietly circulating draft legislation to eliminate crucial parts of the War Crimes Act. Observers on The Hill say the Administration plans to slip it through Congress this fall while there still is a guaranteed Republican majority--perhaps as part of the military appropriations bill, the proposals for Guantánamo tribunals or a new catch-all "anti-terrorism" package. Why are they doing it, and how can they be stopped?
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