About that "Republican revolt" over kangaroo courts and the Geneva Conventions

Posted by Joshua Holland at 1:10 PM on September 15, 2006.

Normal people, people opposed to torture and illegal detentions, seem pretty jazzed that Republican Sens McCain, Warner and Graham are finally standing up for the rule of law and against the president.

And it is certainly a good thing that a measure obviously designed to trap Dems into, as the righty blogs are putting it, "defending terrorists' rights," is being opposed by elder GOP statesmen like Warner and McCain, not to mention the ever-popular Colin Powell.

But it would be nice if reporters would dig a bit deeper before declaring that these Republican stalwarts are fighting for the rule of law and the highest of American ideals.

That's the narrative: Bush wants to water down the Geneva conventions and wide leeway to prosecute suspects in what are effectively kangaroo courts, and he's facing a "revolt" in his party over the issue. But consider the bill that Warner, McCain and Graham are supporting. Here's a PDF, and here's the highlights courtesy of Obsidian wings:

• It would eliminate the right of any alien who is in US custody outside the US, or who "has been determined by the United States to have been properly detained as an enemy combatant", to file for habeas corpus.



• It would eliminate the right of any such alien to take any legal action against "the United States or its agents" concerning the conditions of his or her detention, other than to appeal the results of Civilian Status Review Commissions or military tribunals.



• Both of these provisions apply to all cases pending when the bill becomes law, which means that any of the cases currently wending their way through the legal system that haven't been resolved by that time become moot.



• It changes the definition of war crimes: currently, any conduct that violates Common Article 3 of the Geneva Conventions counts as a war crime; the draft bill changes this to "a grave breach of common Article 3".



• And it makes this paragraph from the Detainee Treatment Act applicable to any prosecution for war crimes involving violations of Common Article 3 after 9/11/2001:

"In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful."

Hilzoy at Obsidian Wings adds that this means: "if the government's lawyers said it was legal, and if a normal person would not have known that it wasn't legal, then the government and its agents can't be prosecuted for it."

This is, in short, a terrible bill. It's an improvement over the House bill favored by the administration, yes, but a terrible bill nonetheless. (The House bill, drafted by Duncan Hunter (R-CA), would allow evidence obtained by "coercive interrogations" to be admitted into military tribunals or "civilian status review commissions," and would deny defendants the right to challenge it if doing so impacted "national security.")

Let's all just understand that both bills redefine war crimes under article three of the Geneva Conventions, both start us down a slippery slope towards something quite ugly and both will, in Colin Powell's words, cause the world to "doubt the moral basis of our fight against terrorism."

Joshua Holland is a staff writer at Alternet and a regular contributor to The Gadflyer.