Bush's Brave New World of Torture

[michaelbor...@yahoo.com]

From:

http://www.truthout.org/docs_2006/110206A.shtml

Bush's Brave New World of Torture
By Jennifer Van Bergen
TomPaine.com

Wednesday 01 November 2006

After President George W. Bush signed the controversial Military
Commissions Act last week, the Justice Department wasted no time in
using its new power to deny due process to the detainees swept up in
the "war on terror." Now that the bill which Sen. Patrick Leahy called
"un-American" has become law, countless hours and dollars will be spent
by public interest law organizations trying to undo its damage. In
addition to challenges of the provisions that strip habeas corpus
rights, we can expect constitutional challenges to the military
commission procedures and amendments to the War Crimes Act.

The MCA is an unprecedented power grab by the executive branch.
Among the Act's worst features, it authorizes the president to detain,
without charges, anyone whom he deems an unlawful enemy combatant. This
includes U.S. citizens. It eliminates habeas corpus review for aliens.
It also makes providing "material support" to terrorists punishable by
military commission. And the military commissions' procedures allow for
coerced testimony, the use of "sanitized classified information" -
where the source is not disclosed - and trial for offenses not
historically subject to trial by military commissions. (Terrorism is
not historically a military offense; it's a crime.) Finally, by
amending the War Crimes Act, it allows the president to authorize
interrogation techniques that may nonetheless violate the Geneva
Conventions and provides future and retroactive "defenses" for those
who engage in or authorize those acts.

According to former Justice Department attorneyMarty Lederman, who
opposed the Act, "the primary impact of the Military Commissions Act
is" not to establish military commissions, but "to attempt to eliminate
any judicial checks on the Executive's conduct of the conflict against
al-Qaida." Conservative law professor John Yoo, a supporter of the Act,
writes, "In the struggle for power between the three branches of
government, it is not the presidency that "won." Instead, it is the
judiciary that lost."

As Yoo himself admits, "The new law is, above all, a stinging
rebuke to the Supreme Court." Several Supreme Court decisions in the
last two years struck down Rumsfeld's previous military commissions and
combatant status review tribunals, and granted Guantanamo alien
detainees and citizens held in military custody in the U.S. the right
to challenge their detentions via habeas corpus petitions in U.S.
courts. The Bush administration argued against these positions (and
indeed, the administration's belief that Guantanamo was not subject to
U.S. court jurisdiction was the main reason it chose that as its
detention site).

Congress has now, in effect, struck down these Supreme Court
decisions that struck down previous executive decisions and actions.
What next?

Habeas for Some, Not All

The first challenges to the numerous provisions in the MCA will
undoubtedly be about the habeas corpus-stripping provisions. Habeas
corpus is the right to have a court determine the legality of one's
imprisonment before trial. The U.S. Constitution states that "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."

Advocates of the MCA claim that habeas has never applied to foreign
combatants captured on the battlefield. This claim begs the question:
In the "war on terror," how do you know where the battlefield is and
how do you know who foreign combatants are? Habeas exists exactly for
the purpose of challenging wrongful detentions and in the "war on
terror," it has already become abundantly clear that as many as 95
percent of the detentions may be wrongful.

The MCA contains two provisions that strip detainees of their right
to habeas corpus. One provides that:

... no court, justice, or judge shall have jurisdiction to hear or
consider any claim or cause of action whatsoever, including any action
pending on or filed after the date of the enactment of the Military
Commissions Act of 2006 ... including challenges to the lawfulness of
procedures of military commissions ...

The second provision, amending thehabeasstatute, adds the
following:

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.

It would be surprising if these provisions were not immediately
challenged. And those best situated to challenge them are, of course,
those who stand to lose the most: the detainees who have already filed
habeas corpus petitions.

The Justice Department has already asked the D.C. Circuit Court to
dismiss 196 of these cases without any determination about the merits
of the claims or the guilt or innocence of the petitioners. These cases
involve people who have already spent several years in detention
without any charges while their habeas petitions work their way through
the courts.

In essence, the habeas-stripping law throws every alien detainee
back to legal minus zero. In other words, such detainees cannot
challenge their detentions; they must first challenge the law that
disallows them from challenging the detentions. These detainees are not
back to where they started; they are back to before where they started.

What will happen is this: after the government moves to dismiss the
cases and the petitioners argue against dismissal (the D.C. Circuit
Court has already ordered supplemental briefing in two packets of cases
on the issue), the D.C. Circuit will either agree it no longer has
jurisdiction (because the MCA stripped it) or it will rule that the MCA
habeas-stripping provision is unconstitutional and the Constitution
allows (or even requires) them to consider the petitioners' claims. If
the Circuit court rules in favor of the government, the petitioners
will appeal; if the court rules in favor of the petitioners, the
government will appeal. Either way, these cases will undoubtedly be
consolidated and appealed to the Supreme Court.

Meantime, of course, the detainees remain in detention. Remember,
detention centers are not hotels. Consistent abuse, humiliation,
beatings, and even torture have been documented at these places.
Further, recall that there is credible evidence that a great number of
these detainees are not terrorists.

Secret Evidence, Hearsay and Coercion, Oh My

Other challenges will be about military commission procedures and
rules of evidence that have generated controversy because they violate
traditional norms of fair trial and due process. The Act permits the
admission of hearsay - a general no-no in federal courts, and for good
reason, since any witness can simply make up what someone else says and
the accused has no way to challenge its validity. Appeals on hearsay
would likely be joined with other evidentiary, procedural, and
substantive matters, although it is unlikely that hearsay appeals alone
would be successful, since the D.C. Circuit Court will probably be
deferential to the military commission findings.

Another MCA provision likely to be challenged will almost certainly
be the section that allows the use of secret evidence where "disclosure
would be detrimental to the national security." Challenges to the use
of secret evidence were made in the immigration context long before
9/11. The practice of using secret evidence showed such troubling
results that in 1999, Congress nearly passed the Secret Evidence Repeal
Act (SERA) "to ensure that no alien is removed, denied a benefit under
the Immigration and Nationality Act, or otherwise deprived of liberty,
based on evidence that is kept secret from the alien."

In the context of military commissions, where detainees can be
sentenced to death, the concern over the use of secret evidence is
magnified, and the practice will undoubtedly be challenged at some
point by detainees. However, despite these concerns, courts - including
the conservative D.C. Circuit Court - have shown a reluctance to
second-guess government assertions of the need for secrecy. Thus, it is
unlikely that any appeals will be won on this basis alone.

Another troubling provision allows coerced testimony to be admitted
into evidence where the military panel decides it is "reliable and
possessing sufficient probative value" and "the interests of justice
would best be served by admission of the statement into evidence." This
clause appears to promote the use of coercion. What it means is that if
either the detainee or a witness against him makes statements under
coercion (which by some definitions might include torture) - normally
inadmissible in court - his admissions can be used against the
detainee. How a commission judge could determine the reliability of
such testimony or what standard he would use to determine what is "in
the interests of justice" are troubling uncertainties. Detainees will
almost certainly argue that this provision is unconstitutional, but
again challenges on this basis may fall on deaf ears.

Another traditional feature of due process in American courts that
the Act removes is the accused's right to "discovery" - or to carry out
his or her own investigation. Under the MCA, while the accused is
permitted to present evidence in his defense, may cross-examine
witnesses, and "shall receive the assistance of counsel" (or may
represent himself), he has no right "to conduct his own investigation
into the facts using the process of the court." This is also likely to
be challenged by detainees.

It is worth remarking that all these provisions will likely be
challenged as being in violation of the Supreme Court's 2006 ruling in
Hamdan v. Rumsfeld, which overturned the administration's previous
military commissions, noting that the Code of Military Justice could
satisfy due process requirements.

Detainees will also likely challenge the provisions that strip them
of the right to claim any protections under the Geneva Conventions.
Loyola Law School professor David Glazier notes that: "For several
reasons, [the Geneva Conventions] form a logical starting point for any
effort to identify potential procedural constraints on the conduct of
trials under the law of war."

But, again, federal courts have not widely favored application of
Geneva as the basis for individual rights, despite Geneva's requirement
that it's protections be incorporated into the laws of countries who
adopted it.

Finally, the MCA helps to shield U.S. personnel from being held
responsible for abuses committed during detentions or interrogations.
This is widely considered to be the Bush administration's primary
motive in pushing this legislation: To keep Bush administration
officials and others from being held accountable for war crimes or
other grave violations of the laws of war.

While it does not grant absolute immunity, because it provides for
defenses against conviction, the MCA makes it very difficult for a
detainee to bring any lawsuit against U.S. personnel or officials for
war and other selected crimes committed against him.

The MCA also modified the definitions of war crimes, including
torture, narrowing the definitions in such a way as to permit certain
forms of interrogation which may constitute torture under international
law.

What's the Upshot?

Since the MCA was passed in early October, legal scholars have
pointed out its weaknesses. (See Jack M. Balkin, Marty Lederman and the
Georgetown Law faculty blog.) It is a poorly drafted law, vague and
overbroad to the extent that scholars cannot predict how courts will
determine what some provisions mean.

But if courts are stripped from reviewing it at all, if a court may
not review poorly drafted and internally contradictory laws, who will
determine whether they are lawful or constitutional?

The commission procedures do not meet the requirements set forth by
the Supreme Court, by the Military Code of Justice, or by due process.
Given that these procedures apply only to detainees who have been
designated for trial (not all detainees will necessarily be tried -
many may just be held indefinitely without any legal process), one must
conclude that the MCA does not give detainees an adequate mechanism -
i.e., habeas corpus - for challenging their detentions.

What kind of law provides imprisonment without the right of habeas
or punishment without legitimate appeal? Without those standards, the
law is just "victor's justice" - which is no justice at all. The Second
World War is often understood to have come about at least in part as a
result of the humiliation exacted upon Germans by the victors at the
end of WWI. Victor's justice breeds resentment. It breeds more war.

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Jennifer Van Bergen is a journalist with a law degree. Her book The
Twilight of Democracy: The Bush Plan for America has been called a
"primer for citizenship."

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