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Compromising Justice | The Nation

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Peter Rothberg

Peter Rothberg

Opposing war, racism, sexism, climate change, economic injustice and high-stakes testing.

Compromising Justice

President Bush and the three Republican Senators opposing his efforts to contravene the Geneva accords have reached an agreement on legislation to clarify which interrogation techniques can be used against terror suspects and to establish trial procedures for those in military custody. What that legislation actually entails remains murky, but it's virtually certain to be a compromise between Bush and the three Senators which won't contain the safeguards for habeas corpus enshrined in the Specter-Levin Amendment. Here's what you can do about it.


The Bush administration's efforts to redefine the Geneva Conventions have been met with fierce bipartisan opposition, led on the GOP side by Senators John McCain, Lindsey Graham and John Warner.

The President's favored proposal, the military detainee bill, sought to roll back two important decisions rendered by the Supreme Court on the legal rights and treatment of terror suspects: Hamdan v. Rumsfeld and Rasul v. Bush. It would have established tribunals denying most basic legal protections currently required by the Geneva Conventions, and would have allowed defendants to be convicted on the basis of hearsay, evidence obtained by coercion, and evidence they had never seen. After the Group of Three blocked this provision, the White House dropped its insistence on gutting Geneva and is currently negotiating the remainder of the bill in what the New York Times called "a showdown that could have substanatial ramifications for national security and the political climate heading toward Election Day."

Warner's alternative bill, in contrast, calls for tribunals acting in accordance with the standards set out in the Supreme Court's Hamdan decision. So it's better. But, as Jeremy Brecher and Brendan Smith pointed out in The Nation online, it still has major problems, including the elimination of the power of federal courts to hear the habeas corpus claims of any noncitizen detained overseas or any individual who has been determined by the United States to have been properly detained as an enemy combatant. This provision--which is in both bills--would retroactively strip US courts of jurisdiction over the habeas petitions of the more than 450 men currently imprisoned at Guantánamo Bay.

Warner's bill would also amend the War Crimes Act to provide legal cover for many of the CIA's "alternative" techniques--including use of hypothermia, sleep deprivation and threats of violence against detainees and their families. Basically, Bush's bill would strip away much of what makes America a great country, while Warner's bill would strip away some of what makes America great.

Sadly, the debate around these bills misses the point that both versions eliminate the fundamental right to habeas corpus, the right to challenge detention in a court of law, not to be locked up under the President's say-so, guilty or innocent, never to be heard from again.

But there is still hope in the form of another amendment in play that could save the basic American right of due process. Numerous groups are lobbying in support of it, and momentum is growing. Check out the Center for Constitutional Rights' site to fax or email your senators in support of the Specter-Levin Amendment on habeas corpus. Passing either of the two bills without the amendment would grant an unprecedented degree of power to the presidency. Anyone in US custody, at home or abroad, must have the right to challenge their detention in court. Nothing is more fundamental to our democracy. So click here today.

(Final Argument: If for some reason, you're not convinced of the importance of the Geneva Conventions, read this open letter to Congress urging the preservation of the treaty's terms from 40 retired military leaders, including Generals H. Hugh Shelton, Colin Powell and John Vessey, all former Chairmen of the Joint Chiefs of Staff, as well as General John Shalikashvili and Admiral Stansfield Turner.)

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