15 November 2005

The Flawed Enemy Combatant Compromise

What is wrong with a proposed "bipartisan" compromise on habeas corpus for enemy combatants? Here are some highlights from Balkinization:

-- The bill would appear to eliminate review -- on habeas, anyway -- for detainees found not to be "enemy combatants" by the Combatant Status Review Tribunals but who nevertheless remain in detention, and detainees who have not been evaluated by such tribunals but who are being held indefinitely.

-- The bill would appear to cut off habeas petitions for GTMO detainees contesting the conditions of their confinement (e.g., that they have been tortured or subjected to cruel, inhuman, and degrading treatment).

-- The bill appears to be limited to detainees at Guanatanamo, which ironically enough might give detainees elsewhere around the world greater habeas rights than GTMO detainees would have.

-- By eliminating all habeas peititons for GTMO detainees, would the bill end the Rasul/Al Odah and Hamdan cases? The final paragraph appears to be intended to preserve such cases, but it is very oblique.

-- If those cases are preserved, do they need to be re-filed in the U.S. Court of Appeals for the District of Columbia Circuit, under the new procedures -- and then only after a conviction?

-- What would "exclusive jurisdiction" of the D.C. Circuit mean? Would there be any appeal from that court's decisions?

-- Would the statute establish congressional approval/ratification of the President's military commissions -- in some or all their particulars?

-- A military commission conviction could be challenged on grounds that subjecting the alien to the President's military commision Order was not "consistent with the Constitution and laws of the United States." What about treaties? Customary laws of armed conflict? Are those included in "laws"? Would this very statute change the "law" of the United States with respect to the President's statutory authority to convene the commissions?

-- Will all the CSRT and Commission proceedings be governed by the new, Graham-proposed definition of "unlawful enemy combatant," which I believe was added to the DoD appropriations bill last month in the Senate? (This is a very important question that hasn't received enough attention yet.)

The problem is not that detainees have too many legal rights. They problem is that the administration is violating the legitimate rights of the prisons who are there now. Existing law is sufficient. The Geneva Convention insists that prisoners of war determinations be made, and upon the release of detainees from the Afgan war when that war is over (which is right about now, considering that a new Afgan legislature is now just about in place). The Geneva Convention insists that there be no torture. The Uniform Code of Military Justice provides for courts-martial for captured enemies in appropriate cases. Habeas corpus has existing rules, not crafted by the prisoner's captors for this particular situation, and hence basically fair. Courts have wide discretion to balance classified information and a defendant's rights.

If there is any piece of legislation that we do need, it is a very simple one, which declares, in the fashion of 42 USC Section 1983 that individuals have a legal right to enforce the Geneva Conventions in a U.S. federal court, and perhaps, specifying a venue, such as the D.C. Circuit, for cases involving individuals detained abroad. Democrats should not get sucked into legitimatizing a violation of the human rights.

UPDATE: Alas, the "compromise" has passed the Senate by a large majority. Disgusting! Just as Democrats were suckered into the PATRIOT Act and the Iraq War, they have been suckered into voting for this bill, which may be difficult to stop at this point given the margin by which it passed the Senate.

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