by David Cole
The Nation magazine, October 23,
In a decisive 1-0 decision Monday, President
Bush voted to grant the president the constitutional power to
grant himself additional powers.... Republicans fearful that the
president's new power undermines their ability to grant him power
have proposed a new law that would allow senators to permit him
to grant himself power. --The Onion, August 1
It's so hard to be a satirist these days.
When reality outstrips even The Onion, what's left for Jon Stewart?
This summer, the Supreme Court issued a shot across the bow, decisively
repudiating expansive executive authority to try "enemy combatants"
in kangaroo courts as a violation of Congressional dictates and
the Geneva Conventions. On September 28 Congress rewarded the
President's lawlessness by giving him a blank check to do it some
more. At the same time, it watered down criminal sanctions against
abusive treatment of war prisoners and did everything it could
to keep that pesky Supreme Court out of the picture, stripping
the courts of jurisdiction. In essence, Congress responded to
an executive branch that had thumbed its nose at Congress and
the world by joining in. After all, what's more important: America's
standing in the world and the rule of law, or partisan advantage
in the midterm elections?
Under the rules struck down by the Supreme
Court, "enemy combatants" could be tried and executed
on the basis of coerced testimony, hearsay and classified evidence
that the defendants had no meaningful way to confront. Under the
Military Commissions Act, some marginally positive changes were
made, but enemy combatants can still be tried and executed on
the basis of coerced testimony, hearsay and classified evidence
that the defendants have no meaningful way to confront. This time,
however, Congress declared that its tribunal rules fully satisfy
the Geneva Conventions, as if saying it makes it so. Just to make
sure, Congress barred anyone from invoking the Geneva Conventions
in court against the government or its officials. Instead of remedying
the President's violations of international law, in other words,
Congress chose to immunize the lawbreakers.
The new law also paves the way for the
CIA to resume its practice of "disappearing" terror
suspects into secret "black sites" and subjecting them
to harsh interrogation tactics, including depriving them of sleep,
forcing them to stand naked for long periods in frigidly cold
rooms while periodically dousing them with cold water, and God
knows what else. Senator John McCain, with his Republican colleagues
Lindsey Graham and John Warner, made a big show of standing up
to the Administration on this issue, but in the end it was little
more than show. McCain has boasted that the new law prohibits
torture and cruel and inhuman treatment of detainees. But federal
law already made all such conduct a war crime. The new law actually
weakens restrictions on abusive interrogations by narrowing what
amounts to a war crime.
Taking a page from John Yoo, the author
of the Justice Department's original torture memo, Congress has
tortured language in order to clear room for the CIA to torture
suspects. Just as Yoo interpreted the criminal torture ban narrowly
so as to permit threats of death and infliction of any physical
pain short of that associated with organ failure or death, so
the new law makes it a crime to inflict "serious physical
pain" on detainees, but defines "serious physical pain"
as requiring both bodily injury and "extreme" physical
pain, which sounds even more harsh than the "severe"
physical pain that constitutes torture. McCain has trumpeted this
law as a compromise--but the only thing it compromises is our
commitment to the fundamental dignity of all human beings.
The law also neatly redefines the term
"unlawful enemy combatant" in entirely circular terms,
as anyone who "has been determined to be an unlawful enemy
combatant" by a "competent tribunal" established
by the President. Under this definition, if a military tribunal
were to declare Kofi Annan an enemy combatant, he would be, because
the law does not require that the person meet any objective criteria
for the designation.
The new statute also radically restricts
habeas corpus review, the traditional avenue for the imprisoned
to challenge in court the legality of their detention. It also
retroactively strips jurisdiction over all the Guantánamo
cases now pending in the courts. Detainees are relegated to sharply
limited review in the DC Circuit, which can only review the legal
sufficiency of a Combatant Status Review Tribunal finding. Since
the "enemy combatant" definition described above makes
the tribunal's finding conclusive, however, this review is meaningless.
If anyone whom the tribunal says is an enemy combatant thereby
is one, there will be nothing for the DC Circuit to review. Moreover,
the bar on habeas review means that suspects being tortured or
otherwise abused have no recourse to the courts to challenge their
Finally, and perhaps most disturbing,
these provisions for the most part apply only to foreign nationals
accused of terrorist crimes and fighting for the enemy. There
is no constitutional bar on trying citizens in military tribunals--so
long as the tribunals meet fundamental demands of fairness. We
did it as recently as World War II, and the Supreme Court upheld
the practice. But as the Bush Administration knows, it's much
easier to sell abusive power politically if one can assure citizens
that their rights are not at stake.
In the end, even though Congress has done
its best to give the President unfettered authority and to preclude
judicial review, this law will be judged, first, by the Supreme
Court, which is not likely to accept such grave inroads on the
rule of law or its own power, and, more important, by the world
at large. That is the community before which we will need to defend
ourselves if we send Guantánamo detainees, even those who
are admittedly "the worst of the worst," to their death
through trials that fail to meet basic guarantees of fairness,
preclude meaningful judicial review and allow the use of coercive
interrogation. We are losing on the battlefield of world opinion.
The Supreme Court's decision this past summer gave us a chance
to turn the tide, but all too characteristically the political
branches have squandered the opportunity.