12 Democratic Senators who voted
for Bush's torture bill
& against habeas corpus
habeas corpus: habeas corpus
is the name of a legal instrument or writ by means of which detainees
can seek release from unlawful imprisonment. A writ of habeas
corpus is a court order addressed to a prison official (or other
custodian) ordering that a detainee be brought to the court so
it can be determined whether or not that person is imprisoned
lawfully and whether or not he or she should be released from
custody. The writ of habeas corpus in common law countries is
an important instrument for the safeguarding of individual freedom
against arbitrary state action.
* Thomas Carper (D-DE)
* Tim Johnson (D-SD)
* Mary Landrieu (D-LA)
* Frank Lautenberg (D-NJ)
* Joe Lieberman (D-CT)
* Robert Menendez (D-NJ)
* Bill Nelson (D-FL)
* Ben Nelson (D-NE)
* Mark Pryor (D-AR)
* Jay Rockefeller (D-WV)
* Ken Salazar (D-CO)
* Debbie Stabenow (-MI)
The Military Commissions Act will:
Strip the US courts of jurisdiction to
hear or consider habeas corpus appeals challenging the lawfulness
or conditions of detention of anyone held in US custody as an
"enemy combatant". Judicial review of cases would be
severely limited. The law would apply retroactively, and thus
could result in more than 200 pending appeals filed on behalf
of Guantánamo detainees being thrown out of court.
Prohibit any person from invoking the
Geneva Conventions or their protocols as a source of rights in
any action in any US court.
Permit the executive to convene military
commissions to try "alien unlawful enemy combatants",
as determined by the executive under a dangerously broad definition,
in trials that would provide foreign nationals so labeled with
a lower standard of justice than US citizens accused of the same
crimes. This would violate the prohibition on the discriminatory
application of fair trial rights.
Permit civilians captured far from any
battlefield to be tried by military commission rather than civilian
courts, contradicting international standards and case law.
Establish military commissions whose impartiality,
independence and competence would be in doubt, due to the overarching
role that the executive, primarily the Secretary of Defense, would
play in their procedures and in the appointments of military judges
and military officers to sit on the commissions.
Permit, in violation of international
law, the use of evidence extracted under cruel, inhuman or degrading
treatment or punishment, or as a result of "outrages upon
personal dignity, particularly humiliating or degrading treatment",
as defined under international law.
Permit the use of classified evidence
against a defendant, without the defendant necessarily being able
effectively to challenge the "sources, methods or activities"
by which the government acquired the evidence. This is of particular
concern in light of the high level of secrecy and resort to national
security arguments employed by the administration in the "war
on terror", which have been widely criticized, including
by the UN Committee against Torture and the Human Rights Committee.
Amnesty International is concerned that the administration appears
on occasion to have resorted to classification to prevent independent
scrutiny of human rights violations.
Give the military commissions the power
to hand down death sentences, in contravention of international
standards which only permit capital punishment after trials affording
"all possible safeguards to ensure a fair trial". The
clemency authority would be the President. President Bush has
led a pattern of official public commentary on the presumed guilt
of the detainees, and has overseen a system that has systematically
denied the rights of detainees.
Limit the right of charged detainees to
be represented by counsel of their choosing.
Fail to provide any guarantee that trials
will be conducted within a reasonable time.
Permit the executive to determine who
is an "enemy combatant" under any "competent tribunal"
established by the executive, and endorse the Combatant Status
Review Tribunal (CSRT), the wholly inadequate administrative procedure
that has been employed in Guantánamo to review individual
Narrow the scope of the War Crimes Act
by not expressly criminalizing acts that constitute "outrages
upon personal dignity, particularly humiliating and degrading
treatment" banned under Article 3 common to the four Geneva
Conventions. Amnesty International believes that the USA has routinely
failed to respect the human dignity of detainees in the "war
Prohibit the US courts from using "foreign
or international law" to inform their decisions in relation
to the War Crimes Act. The President has the authority to "interpret
the meaning and application of the Geneva Conventions". Under
President Bush, the USA has shown a selective disregard for the
Geneva Conventions and the absolute prohibition of torture or
Endorse the administration's "war
paradigm" - under which the USA has selectively applied the
laws of war and rejected international human rights law. The legislation
would backdate the "war on terror" to before the 11
September 2001 in order to be able to try individuals in front
of military commissions for "war crimes" committed before