An Open Letter In Reply To John Salazar

Colorado Congressman John Salazar sent out a letter, via e-mail, to me (and I presume others) yesterday regarding his vote on the Military Commissions Act. He voted for it. I said in the wake of that vote:

John Salazar has disgraced himself, shamed our country, and tarnished his political party, by voting for this bill.

What I said then is still true. This is my open letter to John Salazar:

Dear John:

You faced the biggest moral decision of your life when you voted on the Military Commissions Act and you blew it.

Some of the most evil people alive today have received amnesty from Congress as a result of your vote (Section 8 of the Act). Americans who commit war crimes continue to enjoy impunity as a result of your decision. Hundreds or thousands of people in the wrong place at the wrong time will suffer because of your decision, and hundreds or thousands of people who have already suffered will be denied any recourse because of his vote (Section 5 and Section 6 of the Act).

Even more worrisome is that you have failed to learn the lesson that is any part of legislation is troubling, that you need to vote against it, particularly when that troubling legislation comes from the Bush Administration.

You write:

I too am troubled by some provision of the Act. The Act authorizes the President to more restrictively interpret the Geneva Conventions. . . . I also find the Act's provision limiting the ability of alien detainees to access the federal courts through writs of habeas corpus to be troubling. . . . This is a difficult issue that I believe will ultimately have to be sorted out by the Supreme Court. In the meantime I will fight so that prisoners may petition the courts under habeas corpus.

If this were a podcast you would hear me screaming with outrage right about now.

Let me put your words into plain English for you: "more restrictively intepret the Geneva Conventions" means "intentionally inflict mental and physical pain upon real human beings in ways that destroy their lives."

And, why did you vote for this bill when, less than two weeks later, you are telling me that you "will fight" to repeal one of its central provisions. Simply passing the buck to the courts is despicable. Why carry water for the administration on this? Is the anti-habeas corpus lobby in Colorado's 3rd Congressional District really all that strong?

If you are troubled by anything in a bill, there is a simple answer: vote no. This bill was not an emergency, except to people facing well founded charges of having violating the Geneva Conventions, or having unlawfully detained people. Why should you go to bat for them?

What was the rush? Did this bill really need to be zipped through Congress so the the President could have provisions like this one in the bill that he would never be able to get again after the 2006 election?

Only a dozen or two detainees out of 14,000 face military tribunal trials. The military tribunals are a side show. Once someone has been detained indefinitely, as an enemy combatant, any punishment short of the death penalty is irrelevant. It is like pressing burglary charges against someone already serving life in prison for murder. And, there should be no rush to execute the very high level detainees who might actually know something relevant to the war on terrorism or have symbolic value to those who hate America as martyrs.

You note:

The Act amends the War Crimes Act so that only certian, severe violations of Common Aticle 3 are subject to criminal penalty (previously, the War Crimes Act states that all violations were pounishment).

This is correct. Many actions previously subject to criminal prosecution as war crimes are no longer punishable criminally at all. You voted to decriminalize all war crimes not specifically identified in the bill.

There might have been a justification for limiting criminal sanctions to a term of years, perhaps ten, rather than the death penalty as a maximum sentence under existing law, for less severe violations of the War Crimes Act. But, there is no execuse for repealing all criminal sanctions for any war crime.

Likewise you emphasize that "it is a violation to engage in conduct inconsistent with the standards of the Detainee Treatment Act of 2005 (McCain Amendment)." Yet, when all criminal sanctions for some war crimes, and all civil remedies for violation of those rights have been removed, and even prosecutions for serious war crimes require the approval of an administration that has argued strenuously that it has a unilateral right to torture people with techniques like mock executions in the form of waterboarding, you can't seriously believe that this has any meaning at all. Your vote for this bill has left the door open for these absues to continue. A right without a remedy is no right at all.

Also, while you claim that "the act bars the use of any evidence obtained by torture.", this isn't true. The Act actually says at Section 3: "A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted" subject to similar limitations to those applied to any evidence (does probative value outweight prejudice).

This is irrational. The reason to exclude evidence obtained through coercion is that it is inherently unreliable to base death sentences on it. It isn't about punishing or not punishing the person who obtained the statement -- it is about using inherently unreliable and disreputatable evidence to execute people.

You say that you support H.R. 3003, to establish an "Independent Commission on the Investigation of Detainee Abuses." This is dilly dallying as the ship sinks. We know that abuses have occurred and are widespread. We know ways to stop it. And, the bill you voted shut those avenues down.

Some of the damage you have done by voting for the Military Commissions Act is irrevocable, but the very least you can do is to support a bill that:

(1) Recriminalizes all war crimes in violation of the Geneva Conventions crimes.
(2) Reinstates fully the right of habeas corpus.
(3) Establish a clear civil remedy permitting both injunctive and monetary relief comparable to that for violations of the U.S. Constitution against those who violate the Geneva Conventions, something you admit the the McCain Amendment was supposed to make illegal anyway.
(4) Ban evidence obtained through coercion in military tribunals.
(5) Prohibit the President from detaining people who are legally present in the United States or territory under the exclusive control of the United States, regardless of citizenship, when the courts of the United States are open and operating, from being detained as enemy combatants.
(6) Remove offenses such as conspiracy, which have never been considered war crimes under international law, from the list of offenses subject to prosecution in military tribunals.
(7) Expressly vest determination of what conduct constitutes torture under U.S. law in the courts, not in a President who has repeatedly show a willingness to disregard the law and has claimed in signing statements that he is not bound by the law.

You voted for a law that has aided and abetted the most abominable acts to be committed in our name. You have a personal responsibility, as a result, to do everything within your power to make it right.

Sincerely,

Andrew Oh-Willeke