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**Ramo** · September 28, 2006, 17:47

Obama remarked that it's ironic that the real baddies like Khalid Sheikh Mohammed are getting real military trials with actual due process. But the folks who we're not real sure about will not have meaningful chances to challenge their detention. The worse the case that the gov't has on you, the fewer rights you have.

**Imran Siddiqui** · September 28, 2006, 17:48

Republicans are about to pass a law that enshrines arbitrary detention by the executive. They're destroying, piece by piece, everything that makes this country great. They are unAmerican.

Amen.

**Ramo** · September 28, 2006, 18:38

Obama was at his best:

Mr. President, I am proud to be sponsoring this amendment with the senior senator from West Virginia. He’s absolutely right that Congress has abrogated its oversight responsibilities, and one way to reverse that troubling trend is to adopt a sunset provision in this bill. We did that in the Patriot Act, and that allowed us to make important revisions to the bill that reflected our experience about what worked and didn’t work during the previous 5 years. We should do that again with this important piece of legislation.

But I want to take a few minutes to speak more broadly about the bill before us.

I may have only been in this body for a short while, but I am not naive to the political considerations that go along with many of the decisions we make here. I realize that soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats to people who care more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.

And yet, while I know all of this, I’m still disappointed, and I’m still ashamed. Because what we’re doing here today – a debate over the fundamental human rights of the accused – should be bigger than politics. This is serious.

If this was a debate with obvious ideological differences – heartfelt convictions that couldn’t be settled by compromise – I would understand. But it’s not.

All of us – Democrats and Republicans – want to do whatever it takes to track down terrorists and bring them to justice as swiftly as possible. All of us want to give our President every tool necessary to do this. And all of us were willing to do that in this bill. Anyone who says otherwise is lying to the American people.

In the five years that the President’s system of military tribunals has existed, not one terrorist has been tried. Not one has been convicted. Not one has been brought to justice. And in the end, the Supreme Court of the United found the whole thing unconstitutional, which is why we’re here today.

We could have fixed all of this in a way that allows us to detain and interrogate and try suspected terrorists while still protecting the accidentally accused from spending their lives locked away in Guantanamo Bay. Easily. This was not an either-or question.

Instead of allowing this President – or any President – to decide what does and does not constitute torture, we could have left the definition up to our own laws and to the Geneva Conventions, as we would have if we passed the bill that the Armed Services committee originally offered.

Instead of detainees arriving at Guantanamo and facing a Combatant Status Review Tribunal that allows them no real chance to prove their innocence with evidence or a lawyer, we could have developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused.

And instead of not just suspending, but eliminating, the right of habeas corpus – the seven century-old right of individuals to challenge the terms of their own detention, we could have given the accused one chance – one single chance – to ask the government why they are being held and what they are being charged with.

But politics won today. Politics won. The Administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.

And yet, we have a bill that gives the terrorist mastermind of 9/11 his day in court, but not the innocent people we may have accidentally rounded up and mistaken for terrorists – people who may stay in prison for the rest of their lives.

And yet, we have a report authored by sixteen of our own government’s intelligence agencies, a previous draft of which described, and I quote, “…actions by the United States government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay…”

And yet, we have Al Qaeda and the Taliban regrouping in Afghanistan while we look the other way. We have a war in Iraq that our own government’s intelligence says is serving as Al Qaeda’s best recruitment tool. And we have recommendations from the bipartisan 9/11 commission that we still refuse to implement five years after the fact.

The problem with this bill is not that it’s too tough on terrorists. The problem with this bill is that it’s sloppy. And the reason it’s sloppy is because we rushed it to serve political purposes instead of getting the job done.

I’ve heard, for example, the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that. The problem is that the structure of the military proceedings has been poorly thought through. Indeed, the regulations that are supposed to be governing administrative hearings for these detainees, which should have been issued months ago, still haven’t been issued because we’re so intent to rush this through in time for Election Day. And so we are once again creating a situation in which this legislation is vulnerable to Supreme Court challenge.

This is not how a serious Administration would approach the problem of terrorism. And I know the President came here today and was insisting that this is supposed to be our primary concern. He’s absolutely right it should be our primary concern – which is why we should be approaching this with a somberness and seriousness that they have not displayed with this legislation.

But politics is what won today.

The only thing I hope for those who plot terror against the United States is that God has mercy on their soul, because I certainly do not. And for those who our government suspects of terror, I support whatever tools are necessary to try them and uncover their plot.

But we also know that some have been detained who have no connection to terror whatsoever. We’ve already had reports from the CIA and various generals over the last few years saying that many of the detainees at Guantanamo shouldn’t have been there – as one U.S. commander of Guantanamo told the Wall Street Journal, “Sometimes, we just didn’t get the right folks.” And we all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria, and tortured, only to find out later that it was all a case of mistaken identity and poor information.

And yet, in the future, people like this may never have a chance to prove their innocence. And they may remain locked away forever.

And the sad part about all of this is that this betrayal of American values is unnecessary. We could’ve drafted a bipartisan, well-structured bill that provided adequate due process through the military courts, had an effective review process that would’ve prevented frivolous lawsuits being filed and kept lawyers from clogging our courts, but upheld the basic ideals that have made this country great.

Instead, what we have is a flawed document that in fact betrays the best instincts of some of my colleagues on the other side of the aisle – those who worked in a bipartisan fashion in the Armed Services Committee to craft a bill that we could have been proud of. And they essentially got steamrolled by this Administration and by the imperatives of November 7th.

That is not how we should be doing business in the U.S. Senate, and that’s not how we should be prosecuting this war on terrorism. When we’re sloppy and cut corners, we are undermining those very virtues of America that will lead us to success in winning this war. At bare minimum, I hope we can at least pass this provision so that cooler heads can prevail after the silly season is over. Thank you.

**DinoDoc** · September 28, 2006, 18:40

Apolyton Civilization Site

http://apolyton.net/forums/showthread.php?s=&threadid=157803

Che beat you.

**Ramo** · September 28, 2006, 18:40

Feingold solid as usual, with a more comprehensive criticism of the bill:

Mr. President, I oppose the Military Commissions Act.

Let me be clear: I welcome efforts to bring terrorists to justice. It is about time. This Administration has too long been distracted by the war in Iraq from the fight against al Qaeda. We need a renewed focus on the terrorist networks that present the greatest threat to this country.

But Mr. President, we wouldn’t be where we are today, five years after September 11 with not a single Guantanamo Bay detainee having been brought to trial, if the President had come to Congress in the first place, rather than unilaterally creating military commissions that didn’t comply with the law. The President wanted to act on his own, and he dared the Supreme Court to stop him. And he lost. The Hamdan decision was an historic rebuke to an Administration that has acted for years as if it were above the law.

Finally, only because he was essentially ordered to do so by the Supreme Court, the President has agreed to consult with Congress. I would have hoped that we would take this opportunity to pass legislation that allows us to proceed in accordance with our laws and our values. That is what separates America from our enemies. These trials, conducted appropriately, have the potential to demonstrate to the world that our democratic, constitutional system of government is our greatest strength in fighting those who attacked us.

And that is why I am saddened that I must oppose this legislation. Because, Mr. President, the trials conducted under this legislation will send a very different signal to the world, one that I fear will put our own troops and personnel in jeopardy both now and in future conflicts. To take just a few examples, this legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be put to death. That is simply unacceptable. We would not stand for another country to try our citizens under those rules, and we should not stand for our own government to do so, either.

Not only that, this legislation would deny detainees at Guantanamo Bay and elsewhere—people who have been held for years but have not been tried or even charged with any crime—the ability to challenge their detention in court. Among its many flaws, this is the most troubling—that the legislation seeks to suspend the Great Writ of habeas corpus.

The legislation before us is better than that originally proposed by the President, which would have largely codified the procedures the Supreme Court has already rejected. And that is thanks to the efforts of some of my Republican colleagues for whom I have great respect and admiration.

But this bill remains deeply flawed, and I cannot support it.

One of the most disturbing provisions of this bill eliminates the right of habeas corpus for those detained as enemy combatants. I support an amendment by Senator Specter to strike that provision from the bill. I ask unanimous consent that my separate statement on that amendment be put in the record at the appropriate point.

Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.

Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.

As a group of retired judges wrote to Congress, habeas corpus “safeguards the most hallowed judicial role in our constitutional democracy – ensuring that no man is imprisoned unlawfully.”

Mr. President, this bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.

Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.

Mr. President, that is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation.

Mr. President, why would we turn our back on hundreds of years of history and our nation’s commitment to liberty -- particularly when there is no good reason to do so? We should be working to provide a lawful system of military commissions so that those who have committed war crimes can be brought to justice. We can do that quite well without denying one of the most basic rights guaranteed by the Constitution to those held in custody by our government.

Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular – the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not, in fact, enemy combatants. Unless any of my colleagues can say with absolute certainty that everyone detained as an enemy combatant was correctly detained – and there is ample evidence to suggest that is not the case – then we should make sure that people can’t simply be locked up forever, without court review, based on someone slapping a “terrorist” label on them.

There is another reason why we must not deprive detainees of habeas corpus, and that is the fact that the American system of government is supposed to set an example for the world, as a beacon of democracy. And this provision will only serve to harm others’ perception of our system of government.

Mr. President, a group of retired diplomats sent a very moving letter explaining their concerns about this habeas-stripping provision. Here is what they said: “To proclaim democratic government to the rest of the world as the supreme form of government at the very moment we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interests in the larger world.”

Many, many dedicated patriotic Americans share these grave reservations about this particular provision of the bill.

They have reservations not because they sympathize with suspected terrorists. Not because they are soft on national security. Not because they don’t understand the threat we face. No. They, and we in the Senate who support the Specter amendment, are concerned about this provision because we care about the Constitution, because we care about the image that American presents to the world as we fight the terrorists. Because we know that the writ of habeas corpus provides one of the most significant protections of human freedom against arbitrary government action ever created. If we sacrifice it here, we will head down a road that history will judge harshly and our descendants will regret.

Mr. President, we must not imperil our proud history. We must not abandon the Great Writ. We must not jeopardize our nation’s proud traditions and principles by suspending the writ of habeas corpus, and permitting our government to pick people up off the street, even in U.S. cities, and detain them indefinitely without court review. That is not what America is about.

Unfortunately, the suspension of the Great Writ is not the only problem with this legislation, nor is it the only instance where the legislation goes beyond establishing military commissions to include unnecessary provisions with deeply troubling results.

The Administration has spoken about the need for this legislation to bring clarity to the War Crimes Act, which makes it a crime to violate Common Article 3 of the Geneva Conventions. It has proposed that we specifically list the actions that would be considered crimes under that law. On the face of it, that certainly sounds sensible. But when you look at this legislation, you realize that the modification it makes only muddies the waters. Not only that, it does so retroactively.

The key problem is in the definition of “cruel or inhuman” treatment. This is a critical definition because it is the provision that determines which coercive interrogation techniques amount to crimes under U.S. law. But because of the complex structure of this section, it is very difficult to understand what the new definition would criminalize, and I am concerned that any ambiguity may be interpreted too narrowly by some. The definition incorporates several terms that in turn have their own separate definitions, and it even has one new definition that doesn’t go into effect until the date of enactment, even though the rest of the amendments to the War Crimes Act are made retroactive to 1997. Frankly, Mr. President, the new prohibition is extremely unclear. And we have already heard different interpretations of it from Senators and Administration officials who negotiated the language. If our goal is to give unambiguous guidance to our personnel, and the courts, this does not do it.

The way the provision is drafted, it even seems designed to grant immunity to senior officials who authorized coercive interrogation techniques.

Mr. President, we should just follow the approach originally endorsed by the Senate Armed Services Committee, which would have applied the language of the McCain amendment.

Mr. President, I am also very concerned about the definition of unlawful enemy combatant that is included in this legislation, and about the corresponding issue of the jurisdiction of the military commissions.

Mr. President, this legislation has been justified as necessary to allow our government to prosecute Khalid Sheikh Mohammed and other dangerous men recently transferred to Guantanamo Bay. Yet if you look at the fine print of this legislation, it becomes clear that it is much, much broader than that. It would permit trial by military commission not just for those accused of serious terrorist crimes, but also individuals, including legal permanent residents of this country, who are alleged to have “purposefully and materially supported hostilities” against the United States or its allies.

This is extremely broad, and key terms go undefined. And by including hostilities not only against the United States but also against its allies, the bill allows the U.S. to hold and try by military commission individuals who have never engaged, directly or indirectly, in any action against the United States.

Not only that, but the bill would also define as an unlawful enemy combatant subject to trial by military commission, anyone who “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.” This essentially grants a blank check to the executive branch to decide entirely on its own who can be tried by military commission.

If we are going to establish military commissions outside of our traditional military and civilian justice systems, at a minimum we should explicitly limit their application to the worst of the worst, those who pose a serious threat to our country. We shouldn’t leave it up to just one branch of government to make these incredibly important decisions.

Mr. President, the bulk of this legislation concerns the structure and process of military commissions. Although we heard from many witnesses at congressional hearings this summer that we should hew as closely as possible to the long-established military system of justice, this bill instead essentially starts from scratch and creates a whole new structure. It does so despite Justice Kennedy’s wise advice in his concurrence in Hamdan, where he said: “The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.”

For example, this legislation creates a presumption for the admissibility of hearsay evidence. Now, it is true that because of the exigencies of war and active combat situations, hearsay rules may need to be structured differently than they are in our criminal courts, but the rules laid out in the UCMJ are drafted to handle these same exigencies. While there may need to be some adjustments to the UCMJ hearsay rules, we need not discard them altogether.

The presumption against hearsay is a fundamental protection built into our existing legal structures to ensure that proceedings yield a just and fair result. Yet in this provision and elsewhere, the legislation erodes such protections—going far beyond what is allowed in the military system—and without justification.

Even more disturbing is that the bill appears to permit individuals to be convicted, and even sentenced to death, on the basis of coerced testimony. According to the legislation, statements obtained through cruel, inhuman, or degrading treatment, as long as it was obtained prior to December 2005 when the McCain amendment become law, would apparently be admissible in many instances in these military commissions.

Now, it is true that the bill would require the commission to find these statements have sufficient reliability and probative value. But why would we go down this road of trying to convict people based on statements obtained through cruel, inhuman, or degrading interrogation techniques? Either we are a nation that stands against this type of cruelty and for the rule of law, or we are not. We can’t have it both ways.

The idea that coerced statements can be used as long as they were obtained long enough ago is appalling. It seems to assume that there was a lack of clarity in the law prior to December 2005. In fact, there was great clarity, until this Administration decided to invent a narrow definition of torture that had never been used or accepted anywhere in the civilized world. The McCain amendment was needed to get this Administration to return to the law. It was a repudiation of the legal theories of the infamous Bybee memo, which the Administration even said it was withdrawing once it was publicly revealed. Its enactment should not now be used as a dividing point before which evidence obtained through cruel and inhuman treatment can be used in court.

At times of great adversity, the strength of a nation’s convictions is tested and its true character revealed. If we sacrifice or qualify our principles in the face of the tremendous challenge we face from terrorists who want to destroy America, we will be making a terrible mistake. If we cloak cruel or degrading interrogations done in the name of American safety with euphemisms like “alternative techniques,” if we create arbitrary dates for when differing degrees of morality will apply, we will have betrayed our principles and ourselves.

Statements obtained through such techniques should not be admissible, even against the most vicious killers in the world, in proceedings held by the government of the United States of America. Period.

Mr. President, in sum, this legislation is very troubling and in many respects legally suspect. I fear the end result of this legislation will only be more delay. It will surely be subject to further legal challenge, and may squander another four or five years while cases work their way through the courts again.

We can and must fight terrorism aggressively without compromising fundamental American values. We must remember what the Army Judge Advocate General told me at a Judiciary Committee hearing this summer: that the United States should set an example for the world, and that we must carefully consider the effect on the way our own soldiers will be treated.

Mr. President, in closing let me do something I don’t do very often – and that is quote John Ashcroft. According to the New York Times, at a private meeting of high-level officials in 2003 about the military commission structure, then-Attorney General Ashcroft said: “Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him.” How sad that this Congress would seek to pass legislation about which the same cannot be said.

**DRoseDARs** · September 28, 2006, 18:44

Well unless either of them or anyone else giving pithy words initiates a filibuster, their comments are meaningless and good only for soundbites.

**Ramo** · September 28, 2006, 18:47

They can't. Reid traded away the opportunity for a filibuster for opportunities for the Leahy and Specter Amendments. And then miscounted.

**Lord Avalon** · September 28, 2006, 19:03

Don't throw the habeas corpus out with the aqua balnearia!

**Drake Tungsten** · September 28, 2006, 19:40

Only one Democrat voted against the Specter Amendment (Ben Nelson).

Way to go, Ben.

**korn469** · September 29, 2006, 00:37

Re: The Day Habeas Corpus Died

Originally posted by Ramo
This is a bleak day for our democracy. Some may have noticed that I've gotten a lot more partisan over the past few years. This is why. Republicans are about to pass a law that enshrines arbitrary detention by the executive. They're destroying, piece by piece, everything that makes this country great. They are unAmerican.

I completely agree!

**DRoseDARs** · September 29, 2006, 01:04

Sen. Reid had enough sense to vote no, but still ruled out even a filibuster attempt. That makes him complicit as far as I'm concerned. Sen. Ensign voted yes, but that doesn't suprise me in the least.

**Bosh** · September 29, 2006, 01:05

Originally posted by Drake Tungsten

Only one Democrat voted against the Specter Amendment (Ben Nelson).

Way to go, Ben.

You're getting lazy Drake.

Poor poor Constitution

**DinoDoc** · September 29, 2006, 01:28

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. - U.S. Constitution, Art. I, Sec. 9

If we're going to insist on trying them (I'd be content with letting thme rot until the end of conflict), why not just use a slightly modified version of the UCMJ rtaher than suspend a right the Constitution says you can't? Even Lincoln was slapped down in the Courts before he just ignored them.

**snoopy369** · September 29, 2006, 03:57

Indeed. I can't see the constitution allowing this, given there has been no rebellion and no invasion. Whether the SCOTUS allows it is another question, of course

Someday I'm going to find enough fellow anti-Patriot Act Republicans to start a new party and actually win ... someday ...

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The Day Habeas Corpus Died

The Day Habeas Corpus Died

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