Thursday, September 28, 2006

Congress approves detainee bill

It took 10 hours of debate, but the Senate finally joined the House in passing the detainee-treatment bill, by a vote of 65-34. Olympia Snowe didn't vote.

Yesterday's House vote was 253-168.

Here's the text of the Senate version, while this is the text of the House version.

The bill is a compromise of sorts, rather than a simple rubber-stamping of Bush's plans, but Congress gave the most ground. It still has plenty of odious provisions, notably the denial of habeus corpus rights to detainees -- a provision that could cause serious trouble down the road.

Senator Carl M. Levin of Michigan, the senior Democrat on the Armed Services Committee, argued that the habeas corpus provision “is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees.”

And even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the habeas corpus provision, ultimately sending the legislation right back to Congress.

“We should have done it right, because we’re going to have to do it again,” said Senator Gordon Smith, a Republican from Oregon, who had voted to strike the habeas corpus provision, yet supported the bill.

Another problematic piece is that while the Senate version pretty carefully defines everything in the bill as only applying to noncitizens, the House version makes no such distinction when defining unlawful combatants. Thus the House version appears to legalize an "enemy combatant" designation for citizens, with criteria to be defined by the administration. If the government designates you an enemy combatant, you have no more legal rights than an alien sent before the military tribunals.

That sound you hear is the Constitution being smudged in some of its more inconvenient places.

The bill dispenses entirely with the need for a search warrant, and allows hearsay evidence. The latter is indefensible, and the former, while making sense under limited circumstances (seizure during combat, for instance), is unnecessarily broad and sweeping.

It bars evidence obtained from "cruel and inhumane treatment", although rather hypocritically it allows such evidence if it was obtained in 2005 or earlier, at the discretion of the tribunal judge.

It has what sounds like a reasonable method for dealing with classified evidence, including providing an unclassified summary of such evidence, or simply admitting facts that would tend to be proved by such evidence. We'll see how that plays out in reality, but at least it addresses the problem.

The only real limit on detainee treatment in the bill is a section defining "grave breaches" of the Geneva Convention, including rape, torture and murder. But the definition of torture and other mistreatment is vague, referring only to "serious" physical or mental pain or suffering. That's better than the administration's preferred wording -- "severe" -- but we'll see how it plays out in practice. Given the administration's history, they will probably define "serious" using the same definition they would have given "severe."

On the plus side, the bill requires the administration to publish its interpretations of such things, so we'll be able to see where they land. And it gives Congress and the judiciary the right to review those interpretations, a clear limiting of Bush's claims of "inherent authority."

And since detainees don't have access to the regular courts, it's unclear how they would seek redress for any violation.

The bill isn't a total disaster. Most of it deals with the structure and conduct of the tribunals, and they're largely based on the UCMJ. And we can hope the "enemy combatant" detail dies in the process of reconciling the House and Senate versions. If that happens, we'll be left with no habeus corpus, no search warrants and hearsay evidence. Plus a "wait and see" on the torture provisions.

That's bad enough, but it could have been worse.

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