shady dealings

I'm writing to you about the Military Commissions Act (S 3930) currently being debated on the floor of the Senate. I'm out of time to print this and send it via U.S. mail, so here it is in email form. Nonetheless, I hope you or your staff persons will read this and consider it.

I was going to list the things that are problematic about this bill, but that would imply that if we just pass a series of amendments, the bill will be acceptable. At this point, I believe that we are not going to get those amendments through (having just seen the Specter amendment on habeas corpus defeated), and the only responsible and moral stand left to us, I believe, is to oppose this bill in the short term and to introduce a bill that works in the long term.

Here is what I want to see in such a bill:

Specific standards are set forth to determine who is an unlawful enemy combatant. Any competent tribunal (as per the Geneva Conventions) that makes such a determination must do so in accordance with those standards.

(The current bill allows the executive branch to make this determination unilaterally, with no specified standards. See section 948(a)(i)(2) for the specific language.)

Citizens and non-citizens alike shall have the power to challenge their detention via habeas corpus.

(The current bill denies noncitizens this ability, which in practical terms means that a noncitizen may be seized, determined by fiat to be an enemy combatant, and the held infinitely, without hope of release.)

Citizens and noncitizens alike shall have the ability to challenge the conditions of their confinement; in particular, Common Article III of the Geneva Conventions shall provide a basis for these challenges.

(The current bill denies everyone this ability, which means that someone can be subjected to various abuses and tortures with no recourse. I can't believe I'm actually writing this. How can we be about to legalize torture and inhuman or degrading treatment by employees of the American government? How?)

Persons who are tried before these military commissions shall have the right to examine and respond to the evidence against them. Classified or not.

(The current draft of the bill, as widely reported in the press, allows defendants to "respond to" the evidence but not to examine it. An earlier draft included the word "examine", and that or its equivalent needs to go back in.)

Specific guidance shall be given to the executive branch as to the interpretation of which sorts of interrogation techniques are in compliance with the Geneva Conventions, particularly Common Article III.

(The current bill allows the executive branch to make that determination for an entire class of techniques, including arguably all of the techniques used by the CIA secret prison interrogation program, and there is no judicial oversight possible, in effect making that determination final.)

And finally, members of the Congress shall have enough information about programs such as extraordinary rendition, detention in secret prisons, and interrogation techniques, that the Congress can exercise genuine oversight. I don't ever want to read about horrors like those at Abu Ghraib again, and I don't ever want to see another press report about another innocent person picked up on some unreliable informant's say-so, sent off to another country to be tortured, and then eventually released when it became apparent that the person was in fact not connected to terrorism in any way. (Example: Maher Arar, Canadian citizen, cleared by his own government, sent to Syria for a year over Canadian government objections.)

As I understand it, if the press reports are to be believed, there are some 14,000 people held under exactly these conditions right now, most of them in Iraq. The case of one of them has been recently brought to light, an AP photographer named Bilal Hussein. From that report: "Hussein is one of an estimated 14,000 people detained by the U.S. military worldwide 13,000 of them in Iraq. They are held in limbo where few are ever charged with a specific crime or given a chance before any court or tribunal to argue for their freedom." We cannot let these people languish indefinitely under such conditions. In a war that is expected to last generations, we need more oversight, not less.

Now, I've been listening to the same rhetoric as you about how terrorists have been given a "boatload of rights" (Representative Duncan Hunter, Armed Services Committee Chairman), or how opposition to this bill is the equivalent of "coddling" terrorists (House Speaker Dennis Hastert). We need to remember, though, that we afford these basic rights (and more) to the meanest, most despicable mass murderers; we afforded these basic rights (and more) to Timothy McVeigh! And no one charged us then with "coddling" McVeigh or being soft on domestic terrorism. Rather, the fact that we insisted on following fair and just procedures was something that we were and are proud of. It sets us apart from other governments and other societies; it provides an example to the rest of the world.

There is an implication I hear in these debates -- I am listening even now to C-SPAN2 via the Internet -- that we must use any means necessary to defeat the terrorists, because the threat is so grave. But we all know better than this. We know that some means are not acceptable, no matter the ends; for this reason, we prohibit some actions in all circumstances. We prohibit rape, murder of noncombatants, and various other evils, with no exceptions. Some means are not acceptable, and I strongly believe that the legal framework that would be legalized in this bill, including the legalization of torture or "almost torture", is among them.

The alternative, if the current bill is passed instead, is that thousands of people will be held in secret locations, without oversight, without access to the courts, unable to effectively challenge the evidence against them (if indeed they are ever tried), interrogated using who knows what methods, whether they be terrorists or innocents.

We won't know the details, We won't know who's innocent or guilty. But we will know enough to be ashamed.

Thanks for reading, and good luck.