Thursday, September 28, 2006

Fragile Hope

The President, and collectively, the House of Representatives and the Senate, have failed in their duty to uphold the Constitution. They now have a law - specific horrors as outlined in the NYT editorial are given below - that violates the Constitution in two significant ways.

First, it takes away our liberties.
Second, it undermines the system of checks and balances, by giving the President an unchecked power, unchallengeable in the courts.

There are two slender reasons for hope. They are extremely fragile, but they are all that are left.

First, the electorate may speak this November, and entirely redo the Congress; and the Congress will, on reconvening, rework this law. However, it is unlikely that the majority of the electorate will exhibit any such wisdom. The discontent they have exhibited in opinion polls so far is that of cattle in a cattle car that has jumped the tracks. They are not sure of the competence of the driver. But they have no discomfort with where the train was headed. Second, even if the Congress changes hands, it is not clear that the Democrats will try to change this law.

The second hope, slender in the extreme too, is that the Supreme Court will throw out this law.

Clutching at straws, I am really.

Here is what the NYT editors have to say:

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.


Some of the Senators have spoken well about why this law is so bad.