Rushing Off a Cliff
EDITORIAL, NYTimes on
the Web, September 28, 2006
Here’s what happens when this
irresponsible Congress railroads a profoundly important bill to serve the
mindless politics of a midterm election: The Bush administration uses
Republicans’ fear of losing their majority to push through ghastly ideas about
antiterrorism that will make American troops less safe and do lasting damage to
our 217-year-old nation of laws — while actually doing nothing to protect the
nation from terrorists. Democrats betray their principles to avoid
last-minute attack ads. Our democracy is the big loser.
Republicans say Congress must act right now to create procedures for charging
and trying terrorists — because the men accused of plotting the 9/11 attacks are
available for trial. That’s pure propaganda. Those men could have
been tried and convicted long ago, but President Bush chose not to. He
held them in illegal detention, had them questioned in ways that will make real
trials very hard, and invented a transparently illegal system of kangaroo courts
to convict them.
It was only after the Supreme Court issued the inevitable ruling striking down
Mr. Bush’s shadow penal system that he adopted his tone of urgency. It
serves a cynical goal: Republican strategists think they can win this
fall, not by passing a good law but by forcing Democrats to vote against a bad
one so they could be made to look soft on terrorism.
Last week, the White House and three Republican senators announced a terrible
deal on this legislation that gave Mr. Bush most of what he wanted, including a
blanket waiver for crimes Americans may have committed in the service of his
antiterrorism policies. Then Vice President Dick Cheney and his willing
lawmakers rewrote the rest of the measure so that it would give Mr. Bush the
power to jail pretty much anyone he wants for as long as he wants without
charging them, to unilaterally reinterpret the Geneva Conventions, to authorize
what normal people consider torture, and to deny justice to hundreds of men
captured in error.
These are some of the bill’s biggest flaws:
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 U.S. military prisons would lose the basic
right to challenge their imprisonment. These cases do not clog the courts,
nor coddle terrorists. They simply give wrongly imprisoned people a chance
to prove their innocence.
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.
Coercion is defined in a way that exempts anything done before the passage of
the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.
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 as redrafted by Mr.
Cheney 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.
•There is not enough time to fix these bills, especially since the few
Republicans who call themselves moderates have been whipped into line, and the
Democratic leadership in the Senate seems to have misplaced its spine. If
there was ever a moment for a filibuster, this was it.
We don’t blame the Democrats for being frightened. The Republicans have
made it clear that they’ll use any opportunity to brand anyone who votes against
this bill as a terrorist enabler. But Americans of the future won’t
remember the pragmatic arguments for caving in to the administration.
They’ll know that in 2006, Congress passed a tyrannical law that will be ranked
with the low points in American democracy, our generation’s version of the Alien
and Sedition Acts.
|
