Action Alert: Sign-On Letter Against Detainee Bill

The Military Commissions bill must be rejected. There is no reason Congress has to pass it before it adjourns. Here is a sign-on letter for you to fax to your Senator. Some of the language is taken from a letter that 13 groups sent to Sen. McCain this weekend urging him to clarify ambiguities in the War Crimes definitions, but this letter addresses the overall bill and urges Members to vote "no" on final passage.

Please, flood your Senators' offices with objections to the bill moving forward.

Dear Senator:

We are writing to strongly encourage you to reject the "compromise" Military Commissions Act of 2006 and to vote no on final passage of the bill. More than anything else, the bill compromises America's commitment to fairness and the rule of law.

For the last five years the United States has repeatedly operated in a manner that betrays our nation's commitment to law. The US has held prisoners in secret prisons without any due process or even access to the Red Cross and has placed other prisoners in Guantanamo Bay in a transparent effort to avoid judicial oversight and the application of US treaty obligations.

The federal government has operated under legal theories which dozens of former senior officers have warned endanger US personnel in the field and has produced legal interpretations of the meaning of "torture" and "cruel, inhuman and degrading" treatment which had to be abandoned when revealed to the public. Interrogation practices were approved by the Department of Defense which former Bush Administration appointee and General Counsel of the Navy Alberto Mora described as "clearly abusive, and ... clearly contrary to everything we were ever taught about American values." According to media reports the CIA has used a variety of interrogation techniques which the United States has previously prosecuted as war crimes and routinely denounces as torture when they are used by other governments.

Instead of finally coming to grips with this situation and creating a framework for detaining, interrogating and prosecuting alleged terrorists which comports with the best traditions of American justice, the proposed legislation will mostly perpetuate the current problems. Worse, it would seek to eliminate any accountability for violations of the law in the past and prevent future judicial oversight. While we appreciate the efforts various members of Congress have made to address these problems, the "compromise" falls far short of an acceptable outcome.

The serious problems with this legislation are many and this letter will not attempt to catalogue them all. Indeed, because the legislation has only just been made available, many of the serious flaws in this long, complex bill are only now coming to light. For instance, the bill contains a new, very expansive definition of enemy combatant. This definition violates traditional understandings of the laws of war and runs directly counter to Pres. Bush's pledge to develop a common understanding of such issues with US allies. Because the proposed definition of combatant is so broad, the language may also have potential consequences for US civilians. For instance, it may mean that adversaries of the United States will use the definition to define civilian employees and contractors providing support to US combat forces, such as providing food, to be "combatants" and therefore legitimate subjects for attack. Yet, there has been no opportunity to consider and debate the implications of this definition, or other parts of the bill such as the definitions of rape and sexual abuse.

We strongly oppose the provisions in the bill that strip individuals who are detained by the United States of the ability to challenge the factual and legal basis of their detention. Habeas corpus is necessary to avoid wrongful deprivations of liberty and to ensure that executive detentions are not grounded in torture or other abuse.

We are deeply concerned that many provisions in the bill will cast serious doubt on the fairness of the military commission proceedings and undermine the credibility of the convictions as a result. For instance, we are deeply concerned about the provisions that permit the use of evidence obtained through coercion. Provisions in the bill which purport to permit a defendant to see all of the evidence against him also appear to contain serious flaws.

We believe that any good faith interpretation of the definitions of "cruel, inhuman and degrading" treatment in the bill would prohibit abusive interrogation techniques such as waterboarding, hypothermia, prolonged sleep deprivation, stress positions, assaults, threats and other similar techniques because they clearly cause serious mental and physical suffering. However, given the history of the last few years we also believe that the Congress must take additional steps to remove any chance that the provisions of the bill could be exploited to justify using these and similar techniques in the future.

Again, this letter is not an attempt to catalogue all of the flaws in the legislation. There is no reason why this legislation needs to be rushed to passage. In particular, there is no substantive reason why this legislation should be packaged together with legislation unrelated to military commissions or interrogation in an effort to rush the bill through the Congress. Trials of the alleged "high value" detainees are reportedly years away from beginning. We urge the Congress to take more time to consider the implications of this legislation for the safety of American personnel, for US efforts to build strong alliances in the effort to defeat terrorists and for the traditional US commitment to the rule of law. Unless these serious problems are corrected, we urge you to vote no.


Human Rights Watch has this excellent article:

(Washington, D.C., September 26, 2006) The U.S. Congress should vote down the draft military commissions and detainee treatment bill, Human Rights Watch said today. In denying the fundamental right of habeas corpus to detainees held abroad, defining "unlawful enemy combatants" in a dangerously broad manner, and limiting protections against detainee mistreatment, the bill would undermine the rule of law and America's ability to protect its own citizens from unjust treatment at the hands of other governments. In its immediate practical impact, the most damaging of the bill's provisions is clearly its "court-stripping" provision, which would bar detainees in U.S. custody anywhere around the world from challenging the legality of their detention or their treatment via habeas corpus actions, even if they have been subjected to torture. Innocent people could be locked up forever, without ever having the facts of their case reviewed by an independent court.

If held to be constitutional, the court-stripping provision would result in more than 200 pending cases being ejected from the courts, including the case that resulted in the Supreme Court's landmark detainee ruling in June.

"It's no secret that the Bush administration deeply resents the court rulings that have recognized basic legal protections that shield detainees from abuse," said Kenneth Roth, Executive Director of Human Rights Watch. "Congress should reject the administration's blatant attempt to eviscerate the courts' role in the U.S. system of checks and balances."

The right to habeas corpus is one of the oldest and most fundamental of human rights protections. By stripping the courts of habeas jurisdiction over detainees, the U.S. would be signaling to the rest of the world that it is not bound by the rule of law in its treatment of them.

The bill has other dangerous provisions as well. The latest version of the legislation includes an extremely dangerous expansion in the bill's definition of "unlawful enemy combatant" a phrase used by the administration to justify holding a combatant outside of the usual protections given to combatants by the Geneva Conventions. It now explicitly deems persons who have "purposefully and materially supported" hostilities against the United States to be combatants, an unprecedented redefinition of "combatant" that could potentially cover a range of innocent people. Financing and support for terrorist activities are already criminal offenses in the civilian justice system. This definition would pervert any reasonable concept of what a combatant is.

p. Also recommended, Forget Nuremberg:

By David J. Luban
Posted Tuesday, Sept. 26, 2006, at 5:15 PM

The burning question is: What did the Bush administration do to break John McCain when a North Vietnamese prison camp couldn't do it?

Could it have been "ego up"? I'm told ego up is not possible with a U.S. senator. That probably also rules out ego down. Fear up harsh? McCain doesn't have the reputation of someone who scares easily. False flag? Did he think they were sending him to the vice president's office? No, he already knew he was in the vice president's office. Wait, I think I know the answer: futility--which the Army's old field manual on interrogation defined as explaining rationally to the prisoner why holding out is hopeless. Yes, the explanation must be that the Bush lawyers would have successfully loopholed any law McCain might write, so why bother? Futility might have done the trick.

How else can we explain McCain's surrender this week on the torture issue, one on which he has been as passionate in the past as Lindsey Graham was on secret evidence? ...

Also read Yale Law Prof Jack Balkin:

I am puzzled by and ashamed of the Democrats' moral cowardice on this bill. The latest version of the bill blesses detainee abuse and looks the other way on forms of detainee torture; it immunizes terrible acts; it abridges the writ of habeas corpus-- in the last, most egregious draft, it strips the writ for alleged enemy combatants whether proved to be so or not, whether citizens or not, and whether found in the U.S. or overseas.

This bill is simply outrageous. I doubt whether many Democratic Senators or staffs have read the bill or understand what is in it. Instead, they seem to be scrambling over themselves to vote for it out of a fear that the American public will think them weak and soft on terror.

....If the Democrats do not stand up to the President on this bill, if they refuse to filibuster it or even threaten to filibuster it, they do not deserve to win any additional seats in the House or in the Senate. They will have delivered a grievous blow to our system of checks and balances, stained America's reputation around the world, and allowed an obscenity to disfigure the American system of law and justice. Far worse than a misguided zealot is the moral coward who says nothing and allows that zealotry to do real harm.

One more: Marty Lederman who writes Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely.

< Gov't. Expert: The 'Doogie Howser' of Terrorism | Lewis Libby CIPA/Graymail Hearing Today >
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    Re: Action Alert: Sign-On Letter Against Detainee (none / 0) (#1)
    by theologicus on Wed Sep 27, 2006 at 09:51:28 AM EST
    Thank you for this post. We're at a turing point as a nation. All who read this are urged to call your Senators. Ask for a delay until after the recess.

    On Monday, I posted a call to action of sorts to the listserv of the Colorado Criminal Defense Bar, which recently passed a resolution opposing the inane ballot measure that would term-limit state court judges in Colorado. My point was that, if the CCDB can resolve to oppose term limits for judges, perhaps it should resolve to oppose the elimination of habeas corpus, and the elimination of 4th Amendment protections for searches within the US, and the legalization of indefinite detention and torture of "enemy combatants" as classified secretly by President Bush. This comment met with a stony silence. Jeralyn, I wonder if you could contact the CCDB about this? With your experience and credibility behind this issue, maybe the CCDB would take a more active role.

    Re: Action Alert: Sign-On Letter Against Detainee (none / 0) (#3)
    by Andreas on Wed Sep 27, 2006 at 11:35:20 AM EST
    The "silence" of the Democrats is a result of the pro-imperialist politics of the Democratic Party.
    In a pair of key back-to-back political interventions early this week, former Democratic President Bill Clinton and the party's defeated 2004 presidential candidate, John Kerry, set a clear militarist agenda for the Democrats in November's midterm election. Clinton's pronouncement came in the midst of a heated interview Sunday with Chris Wallace of the right-wing Fox News television channel.
    Clinton and Kerry set Democrats' pro-war agenda for 2006 election By Bill Van Auken, Socialist Equality Party candidate for US Senate from New York, 27 September 2006 ***
    The pretense that the Democratic Party represents some sort of opposition to the Bush administration was punctured again last week when leading Democrats vociferously condemned the anti-Bush speech given by Venezuelan President Hugo Chavez to the United Nations General Assembly.
    Democrats defend "our president" against international criticism By Patrick Martin, 26 September 2006 *** A few days ago Talkleft also defended the war criminal George Walker Bush and supported Bill Clinton.

    Re: Action Alert: Sign-On Letter Against Detainee (none / 0) (#4)
    by eric on Wed Sep 27, 2006 at 11:44:24 AM EST
    Unless we are going to formally withdraw from the Geneva Conventions, and other treaties, the treaties trump domestic law. If it's torture, it's torture. We cannot unilaterally change that by passing a law. With that being said, the bill is disgusting. The changes to habeas corpus makes it impossible for the courts to get involved. The only thing left would be another nation having enough guts to arrest the offenders. Fat chance.

    I signed an online letter that went to both my senators about this horrific bill. Then I talked to my mom about it. She called both senators. Gordon Smith (R) is supporting it. His staffer did not take her zip code and just hung up on her. Ron Wyden's staffer did not commit on Wyden's position and took her zip code. Is there not one Dem who will filibuster this? Remind me again why we have to keep voting for these people if they won't even stand up against the R's for something this important.

    Re: Action Alert: Sign-On Letter Against Detainee (none / 0) (#6)
    by theologicus on Wed Sep 27, 2006 at 01:01:22 PM EST
    If you have any way of mobilizing people in Main, the Maine Senators could be key. Please send out an Action Alert, immediately, urging people from Maine to call -- not write, there's no time -- their Senators. All we need is a delay until after the recess. There's no need to force this legislation through so precipitously. The Senate will vote tomorrow. Beating Back This Bill by Matt Stoller, Wed Sep 27, 2006 at 02:45:47 PM EST There are two debates going on, one internal and one in public. In public, the Democrats are rolling over, hence the anger at moral scolds like Obama. In private, it looks like the Democrats are not rolling over on this. They are furious about this compromise, which eviscerates Habeas Corpus. Here's video of Ike Skelton, the ranking Democrat on the Armed Services Committee. Skelton is objecting to this bill, though a few days ago Skelton was saying "I will need to look at the final bill carefully, but elements of the compromise I have seen are promising." He's angry that the Democratic amendments were turned down. The Senate is where this bill can be stopped. The key Senators to move are the Maine Republican Senators, Olympia Snowe and Susan Collins. If we can shift them, we can stop this bill from being passed. Susan Collins 461 Dirksen Senate Office Building Washington, DC 20510 Phone: (202) 224-2523 Fax: (202) 224-2693 Olympia Snowe 154 Russell Senate Office Building Washington, DC 20510 Phone: (202) 224-5344 Toll Free: (800) 432-1599 Fax: (202) 224-1946

    Re: Action Alert: Sign-On Letter Against Detainee (none / 0) (#7)
    by scribe on Wed Sep 27, 2006 at 03:52:09 PM EST
    The House passed the "Military Commissions Bill" 253-168-12 shortly before 5 PM ET, and it's now with the Clerk "to clean up typos, cross-references, and similar prior to being engrossed". For the record, it was recorded vote #491, and here are the names and districts of: The 34 Democrats who voted for it: Andrews NJ-1 Barrow GA-12 Bean IL-8 Bishop GA-2 Boren OK-2 Boswell IA-3 Boyd FL-2 Brown OH-13 Chandler KY-6 Cramer AL-5 Cuellar TX-28 Davis AL-7 Davis TN-4 Edwards TX-17 Etheridge NC-2 Ford TN-9 Gordon TN-6 Herseth SD-AL Higgins NY-27 Holden PA-17 Marshall GA-3 Matheson UT-2 McIntyre NC-7 Melancon LA-3 Michaud ME-2 Moore KS-3 Peterson MN-7 Pomeroy ND-AL Ross AR-4 Salazar CO-3 Scott GA-13 Spratt SC-5 Tanner TN-8 Taylor MS-4 The 7 Democrats who did not vote: Cleaver MO-5 Davis FL-11 Jackson-Lee TX-18 Lewis GA-5 Meehan MA-5 Millender-McDonald CA-37 Strickland OH-6 While it is fair to say that, had those 41 Democrats voted against, the bill would have passed, it does not absolve them of their votes. The blood is on their hands, too.