Sanctioning Lawlessness

by David Cole

The Nation magazine, October 23, 2006


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 treatment.

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.

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