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Pre-Election Politics Don’t Mix with Protecting Rights

By Rachel King
October 03, 2006

A day before the anniversary of the Nuremberg trial verdicts, the United States Senate voted to pass a bill, S. 3930 – the Military Commissions Act of 2006 – that gives far-reaching power to the President to prosecute and detain terrorism suspects.  The Senate bill was the same version as a House bill that passed the day before.  It is anticipated that the President will sign the bill into law soon. 

Among some of its most notable provisions, the bill gives the President the power to define Common Article 3 Acts under the Geneva Convention, which means that there is no explicit prohibition against such acts as waterboarding, death threats, induced hypothermia, use of dogs or stress positions.  The bill also strips away habeas corpus rights for foreigners, permits the use of evidence obtained through coercion and torture, and gives immunity to government officials who have engaged in previous acts of torture. 

The most disconcerting of these provisions is probably the one exempting the historic protections of habeas corpus.  Habeas corpus literally means produce the body.  It is a provision, protected by Article I, Section 9 of the United States Constitution, that gives prisoners who claim they have been illegally detained a vehicle to get into court to seek review of their detention.  Under our constitution, habeas corpus, also known as “the Great Writ,” may only be suspended when “in Cases of Rebellion or Invasion the public Safety may require it.”    

During debate on the measure, some Senators suggested that we are “at war,” and as such, it is permissible for the president to suspend the writ.  However, most constitutional experts, even conservatives like scholar Bruce Fein, believe that the provision suspending habeas corpus is unconstitutional and will be struck down by the U.S. Supreme Court.  Some lawmakers who voted for the bill, including the Chairman of the Judiciary Committee, Arlen Specter (R-PA), stated that the provision was “patently unconstitutional on its face,” but voted for the bill because he believed the Supreme Court would “clean it up.” 

After passage of the bill, President Bush was quoted as saying, “As our troops risk their lives to fight terrorism, this bill will ensure they are prepared to defeat today’s enemies and address tomorrow’s threats.”  Other Republicans criticized Democrats who opposed the bill as favoring “rights” for terrorists.  House Majority Leader Representative Boehner (R-OH) called Democrats who opposed the bill “dangerous.”

Could it be that certain members of Congress are trying to act “tough on terrorism,” banking on it helping them with their re-election campaigns? 

Senator Charles Schumer (D-NY) said that the attacks on the Democrats won’t work.  However, according to the Washington Post, Greenberg Quinlan Rosner, a prominent Democratic polling firm, found from focus groups that “Attacks on Democrats for opposing any effort to stop terrorists…were highly effective.”

Of course, the bill doesn’t really change anything.  The administration has already been denying foreign detainees access to the courts for going on five years.  The administration has already been found using, or sanctioning, torture and illegal interrogation tactics. 

What is significant is that in June, the Supreme Court struck down the administration’s detention policies, ruling that Congress had to approve the rules governing the detentions.  Now the President has succeeded in securing Congressional approval for his unconstitutional policies.

The timing of the bill’s passage, a mere day before the anniversary of the Nuremberg verdicts, makes it difficult not to compare this process with the Nuremberg trials.  At the end of World War II, many world leaders were calling for the immediate execution of Nazi war criminals, stating that there was no point in giving them a trial because they were all guilty.  How tempting it must have been to want to hang anyone who was an accused Nazi leader.  The Nazis had killed millions of people and brought the world to war.  But President Roosevelt insisted that the trials must be fair in order to have legitimacy.  Of the 22 people prosecuted in the first trial, three were acquitted, seven received punishments less than death, eleven received the death penalty and one committed suicide.  It certainly took a lot of effort to provide the accused war criminals with due process, but that process mattered a great deal to those people who were acquitted and whose lives were spared.

Those trials, given to the world’s worst human rights abusers, marked the beginning of a movement towards protecting human rights and creating a body of international law.

Now our President, using rhetoric about the evils of terrorism, wants to deprive accused terrorists of the basic tenets of international law, eroding public trust and the support of the international community.  How can Americans be sure that the people detained by our government are given a fair trial if evidence against them is obtained through torture, or if they are not allowed to access the courts to challenge their confinement? 

How can we be certain that every detainee is, in fact, a terrorist?  The answer is that we can’t. 

According to a report compiled by Professor Mark Denbeaux and colleagues at Seton Law School using Department of Justice Data, 55% of the 517 detainees at Guantanamo Bay have committed no hostile acts against the United States or our allies.  Only 8% are considered to be al Qaeda fighters.  Forty percent have no connection to al Qaeda, and 18% have no connection to al Qaeda or the Taliban.  (Report available at here)

One of the innocents at Guantanamo is a young man named Jumah Abdel.  The President and Justice Department lawyers have concluded that he is innocent, but have done nothing to release him.  He is a dissident from Communist China, and cannot return there without fear for his life.  But so far the administration has been unwilling to release him to allow him to live here.    

Can we trust this President to protect the rights of the people detained at Guantanamo? Clearly  not. But for that matter, there is probably no President that could be trusted to protect the rights of accused terrorists.  That is why we have a three-branch system of government, with oversight from the courts and the Congress. 

But what we have now is a situation where the Courts are stripped of their jurisdiction to review cases, and Congress has stripped itself of the political will to stand up and do what is right.  It is another sad day for Democracy.  One can only hope that the voters prove the pollster wrong and vote against politicians who play fast and loose with our liberties. 

Rachel King is a Professor of Law at Howard University School of Law in Washington, D.C.