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WHAT WE THINK
Using the ''war on terror'' to turn back the clock on civil liberties
Washington votes for torture

October 6, 2006 | Page 3

"PHYSICAL ABUSE resulting in deaths in custody." "Torture and coerced confessions of prisoners." "Arbitrary arrest and detention, including non-judicial administrative detention." "A politically controlled judiciary and a lack of due process in certain cases."

Go to the U.S. State Department Web site, and these are included on a 2005 list of human right abuses that the Chinese government is accused of committing.

But last month, Congress voted to legalize many of these same abuses for the U.S. Both houses passed the "Military Commissions Act of 2006," a bill that fulfills nearly every proposal on the Bush administration's wish list for the creation of military tribunals for detainees of the "war on terror."

A group of Republican senators--John McCain, Lindsey Graham and John Warner--proudly claimed to have won concessions from the Bush administration to protect the rights of detainees under the Geneva Conventions, which outlaws "outrages upon personal dignity, in particular, humiliating and degrading treatment."

Not that these three care about the hundreds of men imprisoned and mistreated--many for years--at U.S. prisons in Afghanistan, Iraq or Guantánamo Bay. They just worried that Bush's proposal would set a bad precedent by which other countries might decide to treat U.S. soldiers in the future.

Still, while the final legislation keeps intact language about the Geneva Conventions, the Bush administration will be allowed to issue an executive order defining the "meaning and application" of the Conventions, and specify exactly which interrogation techniques will be prohibited.

The administration has already said that the CIA's "alternative interrogation procedures"--including waterboarding (mock drowning), psychological and mental stress, and exposure to extreme heat and cold--will be allowed. In other words, Congress is allowing the Bush administration to redefine "torture" so it can keep using the same abusive tactics.

The legislation also gives members of the Bush administration, the CIA and other military personnel a "get out of jail free" card, since it retroactively exempts them from prosecution under the War Crimes Act for abuses that occurred during interrogations before a torture ban was passed last year.

It will also prevent detainees from ever receiving a fair trial. Under the new law, statements obtained through cruel and inhuman treatment are allowable--as long as they were obtained before December 30, 2005, when Congress passed the Detainee Treatment Act in the wake of revelations about wide-scale abuse of detainees at Abu Ghraib and Guantánamo. Hearsay evidence and evidence seized without a search warrant will also be allowed, and detainees' right to appeal their cases will be severely restricted.

But most troubling to many legal and civil liberties experts is that the legislation tears up the nearly 800-year-old legal precedent known as habeus corpus, which protects the right of a detainee to challenge their imprisonment in court. Suspending habeus corpus is the equivalent of allowing the president to imprison people at will.

Sen. Arlen Specter (R-Pa.), who sponsored an amendment to restore habeus corpus, admitted, "I'd be willing, in the interest of party loyalty, to turn the clock back 500 years, but 800 years goes too far." The amendment was rejected, but Specter voted for the final version of the bill anyway.

As bad its original proposal was, the Bush administration managed to slip in a few extra provisions to make it even worse.

In particular, the White House was able to expand the definition of "enemy combatants" to include anyone who provides "material support" to groups that the U.S. has labeled terrorist. So people who make a charitable contribution, which is then used to help purchase an ambulance in the West Bank, under Hamas auspices, could be labeled enemy combatants--and thrown in jail indefinitely.

And don't make the mistake of thinking that the new law will only apply to those held outside of the U.S. In the final legislation, the phrase "outside the United States" was removed from the section banning habeas corpus.

The new law denies the right of detainees to challenge their detention in court not only to those living in foreign countries, but also to green-card holders and other legal residents inside the U.S.--as well as to anyone determined to be an enemy combatant under "the authority of the president or the secretary of defense."

As Yale law professor Bruce Ackerman, commented in the Los Angeles Times, "Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantánamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights."

As Jumana Musa, a lawyer with Amnesty International, asked the Boston Globe, "What if they had this after September 11, when they picked up all kinds of folks on immigration charges and material-witness charges and tried them in secret immigration proceedings? Those people were deported. Now, they could be detained indefinitely as enemy combatants."

Where were the Democrats when the Bush administration went after more of our civil liberties? Going along for the ride.

Rather than risk being accused of weakness on a national security issue in the run-up to mid-term elections, the Democrats kept entirely silent, allowing the three Republican senators to plead with the White House for concessions.

Aspects of that "compromise" was taken back or undermined in the fine print of the final legislation. But still, the Senate vote wasn't even close--65 to 34, with 12 Democrats voting in favor. In the House, 32 Democrats lined up to support the legislation.

Legal experts--and even some of the politicians who voted for the new law--say they expect provisions of it to be struck down as unconstitutional by the Supreme Court. But in the estimated two years it will take for a challenge to reach the Supreme Court, the Bush administration will exploit its opportunity to detain, abuse and torture.

Moazzam Begg experienced firsthand the hell that Washington sanctioned with its vote last month.

Begg, a British citizen who spent more than three years wrongfully imprisoned in Afghanistan and Guantánamo Bay, wrote, "Some people think that Amnesty International's description of the camp as the 'gulag of our times' is too harsh.

"Defense Secretary Donald Rumsfeld, for instance, recently rejected the 'gulag' label, telling conventions of the Veterans of Foreign Wars and the American Legion that Guantánamo is more akin to a holiday resort, complete with a volleyball court, basketball court, soccer field and library. During my years of incarceration, I never once encountered the things Rumsfeld mentioned, and never met anyone who had.

"What people don't seem to understand about Guantánamo is that the prisoners there who protest their innocence have no way to prove it. The principle 'innocent until proven guilty' is turned on its head. Everyone's guilty without charges, convicted without a trial."

U.S. politicians boast that their system is the "world's greatest democracy." But they showed with their votes that the American government will trample on any and every civil liberty and human right in the name of the "war on terror."

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