Kill Bill - Neutering Bush's torture law

Posted by Bob Geiger at 11:00 AM on November 20, 2006.

Of the many good things we are beginning to see before the newly-constituted Democratic Congress even assumes power, one of the most gratifying is the move by Senator Chris Dodd (D-CT) to neuter the hideous Military Commissions Act of 2006 (MCA), passed by the Republicans, and signed by George W. Bush in October.

On Friday, Dodd introduced legislation to amend Bush's "torture bill," remove the almost-dictatorial powers it has given the White House and neutralize the bastardizing effect it's had on the United States Constitution.

"I strongly believe that terrorists who seek to destroy America must be punished for any wrongs they commit against this country," said Dodd, in introducing this important measure. "But in my view, in order to sustain America’s moral authority and win a lasting victory against our enemies, such punishment must be meted out only in accordance with the rule of law."

The text of the MCA may fill almost 40 pages, but it only takes a few paragraphs of Dodd's 10-page Effective Terrorists Prosecution Act (S.4060) to render its most onerous aspects moot.

I analyzed Dodd's bill over the weekend and am writing this piece to give you the basics of how it fixes the Constitutional ruin imposed by the MCA and puts the power of the executive branch of government back in its rightful place.

This should tell you all you need to know about both the disease and the cure.

Restoring Habeas Corpus Protections

No area of the MCA has drawn more justifiable fire than the section suspending Habeas Corpus -- the rights of people deemed by the White House to be "enemy combatants" to challenge the legality of their arrest and detention.

Section 7 of the MCA says that "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 has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

In other words, don’t bother calling a lawyer, because you have no rights.

The fact that so many of these enemy-combatant determinations rest in the president's hands and the sheer vagueness of the law, combine to create a wide variety of scenarios whereby any American citizen could be arrested and held indefinitely without Constitutional protections.

Scary stuff indeed and, as surgical as the Dodd amendment is in many ways, this area is dealt with via a repeal of that entire section, thus killing this debasement of our Constitution in one fell swoop.

"The Administration-backed law eliminates the principle of Habeas Corpus which has served as the backbone of common law since before the Magna Carta in the 13th century," said Dodd. "Under the writ of Habeas Corpus independent courts may review the legality of custody decisions. My legislation would restore this basic tenet in the context of military commissions."

And it does it with one short sentence -- "Section 7(a) of the Military Commissions Act of 2006, is repealed," reads Dodd's legislation.

Simple, to the point, and necessary to stopping the Founding Fathers from spinning in their graves.

Narrowing the Definition of 'Unlawful Enemy Combatant'

The MCA defines an unlawful enemy combatant as follows:

"A person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).

"An individual engaged in hostilities as part of an armed conflict against the United States who is not a lawful enemy combatant.’’

Says Senator Dodd: "The Administration’s approach allows the president to remove anyone he so chooses from America’s standard jurisprudence and designate him or her as an 'unlawful enemy combatant.' My legislation allows the designation of 'unlawful enemy combatants' only for those individuals engaged in armed conflict against the United States. This provision seeks to curtail potential abuse of the enemy combatant designation so that holding individuals in detention indefinitely without a trial will prove to be the exception rather than the norm."

Prohibiting Use of Information Gained by Torture as Evidence

Dodd's legislation acknowledges that torture has been proven ineffective in extracting intelligence information and points out that America's standard for treatment of prisoners will be the bare minimum used by others against our own troops.

"My bill further promotes humane treatment of military personnel by prohibiting the use of evidence gained by coercion in a trial," said Dodd last week. "Such a provision is critically important for two reasons. First, the use of torture has been proven ineffective in interrogations when a detainee simply says what he believes an interrogator wants to hear in order to stop the torture. Second it deprives foreign militaries the ability to cite US actions to justify their own misconduct toward future American POWs."

As it was passed, the MCA says the following regarding torture:

A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--

- the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

- the interests of justice would best be served by admission of the statement into evidence.

The interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

Dodd's legislation strikes these sections entirely and replaces them with this:

A statement obtained by use of coercion shall not be admissible in a military commission under this chapter, except against a person accused of coercion as evidence that the statement was made.

Empowering Military Judges to Exclude Unreliable Hearsay Evidence

The Republican torture bill basically puts the burden of proof on the defense, not the prosecution which, prior to the Bush administration, was not the way our justice system worked.

The MCA says:

Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value."

The Dodd bill replaces the last (italicized) part of that section with the following: "…if the military judge determines, upon motion by counsel, that the evidence is unreliable or lacking in probative value.’’

In other words, the judge can toss hearsay evidence if it's questionable or utter nonsense -- the defense doesn’t need to prove it's nonsense.

Authorizing the U.S. Court of Appeals for the Armed Forces to Review Decisions by Military Commissions

The MCA provides for appeal not from traditional courts of appeals, but by a special Military Commissions Review Board, that would undoubtedly just rubber-stamp the military tribunals' verdicts. The Dodd bill kills that entire section of the MCA and instead says that cases will be reviewed by the "Court of Appeals for the Armed Forces."

Limiting the Authority of the President to Interpret the Geneva Conventions and Mandating Congressional and Judicial Oversight

If there's been one president in my lifetime that I don’t want interpreting the college football rankings, much less something serious, it's George W. Bush and one of the scariest parts of the MCA is the power it gives Bush in deciding for himself what the Geneva Conventions mean.

According to the MCA:

As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

"… the President has the authority, subject to congressional oversight and judicial review, to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

The amended law would also say that Bush will issue "standards" and not "interpretations" on the Geneva Conventions.

Providing for Expedited Judicial Review of the Military Commissions Act

This is an entirely new section inserted by Dodd, saying that findings under the MCA must be reviewed by the United States District Court for the District of Columbia and that an appeal can be made all the way to the Supreme Court.

Here's the new stuff that keeps the Bush administration from being able to detain you forever without trial:

"An interlocutory or final judgment, decree, or order of the United States District Court for the District of Columbia in an action under paragraph(1) shall be reviewable as a matter of right by direct appeal to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after the date on which such judgment, decree, or order is entered. The jurisdictional statement with respect to any such appeal shall be filed within 30 days after the date on which such judgment, decree, or order is entered.

"It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any action or appeal, respectively, brought under this section."

"I believe that the United States Congress made a crucial mistake," said Dodd about the lack of this wording in the MCA. " And that is why the final provision in my bill is perhaps the most important one -- it will ensure that each of the provisions of the Administration’s Military Commission Act is quickly reviewed by our nation’s courts, and appropriately evaluated for their constitutionality."

So there you have it -- that's the gist of how enormously important just 10 short pages of Democratic legislation can be to our country in reversing what the Republicans did to the Constitution in September.

Sadly, it looks unlikely that it will pass, based on the fact that, even with Democrats controlling both houses of Congress, Bush will almost certainly exercise his veto power and it's a longshot that a super-majority can be achieved in the House and Senate to override Bush's veto. But it will at least renew the dialog and get Americans thinking more about our country's creed.

The "short title" of Senator Dodd's legislation is the ‘‘Military Commission Civil Liberties Restoration Act’’ and that's about as apt as it can possibly be.

When the MCA was passed, George Washington University Professor of Constitutional Law, Jonathan Turley, said that most Americans "don‘t realize what a fundamental change this is about who we are as a country."

"People have no idea how significant this is. What, really, a time of shame this is for the American system," said Turley. "What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values."

And Dodd, whose father was a prosecutor at the Nuremberg Trials, ended his floor speech on his legislation by reinforcing the importance of a nation maintaining its long-held ideals, regardless of temporary dangers.

"America has always stood for something more. Our leaders at Nuremberg, including the young prosecutor Thomas Dodd, my father, rejected the certainty of execution for the uncertainty of a trial," said Dodd. "In doing so, we reaffirmed the ideal that this nation should never tailor its eternal principles to the conflict of the moment, because if we did, we would be walking in the footsteps of the enemies we despised."

Tagged as: torture, law

Bob Geiger is a writer, activist and Democratic District Leader in Westchester County, NY. You can reach Bob at geiger.bob@gmail.com and read more from him at BobGeiger.com.