Monday 02 October 2006

Ever since the Supreme Court ruled in Hamdan v. Rumsfeld that the president of the United States is not a king, our media has been obsessed with the "rebellion" of three "maverick" Republican senators who said they refused to accept the White House version of a new law governing how we treat and detain alleged terrorists.

Journalists had a ball, writing endlessly about these three brave guys who had the courage to break with the president and push back against the White House to "preserve the moral high ground" for the United States. Common Article 3 of the Geneva Conventions would be sacrosanct. People held in US detention would not be tortured. They would be afforded fair trials and the right to appeal if convicted. They would be able to go to a real court to challenge the basis of their detention. They would have the right to see the evidence the government had against them. Evidence obtained by coercion would be inadmissible. The president would no longer be able to act unilaterally to consign the accused to a never-ending legal limbo by declaring them enemy combatants who would never be charged or tried, just held until the end of this "long war" on terror.

Following Hamdan, these and many similar issues would require Congressional authorization. So the administration sent a bill to The Hill that gave our legislators the extraordinary opportunity to pass a law authorizing virtually everything the Supreme Court said the president couldn't do on his own.

The "mavericks" said they weren't buying it. This was big news, considering who wasn't buying. First there was Mr. Establishment himself, the courtly chairman of the Senate Armed Services Committee, Senator John Warner of Virginia. Then there was the "fiercely independent" Senator John McCain of Arizona, a leading presidential hopeful whose resume, including years as a P.O.W. in the Vietnam War, makes him the quintessential American hero. Finally, there was Senator Lindsey Graham of South Carolina, an Air Force Colonel who has spent some 20 years as a military lawyer and judge, a JAG.

Their negotiations with the White House were bolstered by such luminaries as soldier-statesman Colin Powell, who wrote that he feared American treatment of detainees threatened to undermine America's position of moral leadership. The commentariat bit its fingernails. The media continued to scribble and vent.

So what happened? On Thursday, September 28, 2006, we found out. The "mavericks" caved. They crafted a bill that gave the president virtually everything he asked for. And a large majority of House and Senate members, including some Democrats, caved in lockstep, their eyes transfixed with fear on the upcoming mid-term elections and the threat of being labeled "soft on terror." As summarized by the Washington Post, these are a few items contained in the bill the president will likely sign into law next week:

Enemy Combatants: A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret - there's no requirement that this list be published.

Habeas Corpus: Detainees in US military prisons would lose the basic right to challenge their imprisonment.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable - already a contradiction in terms - and relevant.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill ... seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

But here's arguably the most cynical provision of the bill. While it would bar military commissions from considering testimony obtained through interrogation techniques that involve "cruel, unusual or inhumane treatment or punishment," this bar would be retroactive only to December 30, 2005 - when Congress adopted the Detainee Treatment Act - to protect CIA operatives from possible prosecution over interrogation tactics used before that date.

So much for the "rebels" pushing back against the White House. Messrs. Warner, Graham, and McCain deserve the nation's thanks. Thanks, Mavericks!

Despite the overwhelmingly depressing outcome of the debate on the Senate floor Thursday, there were a few heroes, albeit unsuccessful heroes. One of them was the Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, whose civil yet impassioned plea to strip the bill of its anti-habeas corpus provision may one day join Calhoun, Clay and Webster on the list of the Senate's greatest orations.

Specter, perhaps best known for presiding over hearings for Supreme Court nominees, was joined by the equally impassioned Vermont Democrat, Senator Patrick Leahy - whose speech was more predictable but no less eloquent. Lamentably, they both lost.

Our once-rockstar Secretary of Defense, Donald Rumsfeld, keeps referring to the detainees at Guantanamo Bay as "the worst of the worst." But five years after 9/11, none of these worst has been tried, and the Bush administration appears to have little interest in trying them. Except for the 14 recently moved to Gitmo from the CIA's secret prisons. And it remains unclear whether these 14 could ever be tried, given the CIA's "aggressive" interrogation methods.

The Bush administration's disinterest in trying the other 400-500 prisoners at Gitmo shouldn't surprise us. A substantial number of them were captured because they were in the wrong place at the wrong time, or were sold to us for bounties by Afghan warlords, or have been classified by the Pentagon as innocent of any terror-related crime, but continue to be held nevertheless.

I have yet to meet - either in the US or abroad - a single person who doesn't want the perpetrators of 9/11 and other terrorist crimes brought to justice. But I have heard from lots of Americans who don't seem to care much about the fairness of the process for trying and punishing them.

That's not surprising. We have every right to be angry with those who kill our people. But too many Americans are also historically challenged. They know nothing about our Alien and Sedition Acts, Lincoln's suspension of habeas corpus, Woodrow Wilson's espionage acts, the "red raids" of Attorney General Mitchell Palmer, Franklin Roosevelt's internment of Japanese-Americans, the rantings of Senator Joe McCarthy, or any of the other sadder chapters in our country's administration of justice.

For most of these egregious lapses, it has been our Supreme Court that eventually righted the ship of state. Today is no different.

If there is a light at the end of President Bush's tunnel, it will be the Supreme Court that flips the switch. Sooner or later, the law the president signs next week will turn up on the doorstep of the Supremes.

Given the ideological makeup of the current court, the light may be faint. But it's all we have.