In some ways I find the manner in which our legislators are dealing with the habeus corpus matter even more troubling than the highly emotional issue of torture. When considering the rights of a prisoner to challenge indefinite detention without charges, we're not talking about the hard task of drawing lines between acceptable and unacceptable behavior based on modern standards of morality. No, we're talking about something far more fundamental -- a core principle defining the limits on executive power in any liberal political system, regardless of form -- democracy, constitutional monarchy, etc. You know, Magna Carta and all that. Ironically (or should I say tragically), the people who are pushing for a derogation of this core principle are the same conservatives who are on the great global crusade to bring freedom to the oppressed. Heaven knows how they define "freedom" (or for that matter, how they can call themselves "conservatives," given their cavalier approach to ancient legal and constitutional tradition).
I agree with Eric that all of this represents a terrible failure to live up to the standards America preaches to others, a failure which undermines US foreign policy. There is, of course, the erosion of "moral authority" in a broad sense that Eric points to. But the hypocrisy of "do as I say, not as I do" also produces concrete damages to US interests. Take for example the plethora of "democracy promotion" programs being pushed by the BushAdmin and supported enthusiastically by Congress. Most such programs contain, as core elements, projects on "rule of law," "judicial reform" and "sound governance." Although one should never attempt to transfer US legal and administrative practices whole-cloth into other systems, there are a number of basic principles that can and should be transferred and adapted to local circumstances. Among these, some of the most important deal with the need for an effective judiciary to limit arbitrary exercise of executive power against individuals, including prisoners. It's a bit of a challenge for American advisers, helping others to reform their own systems, to justify why other countries shouldn't follow America's own example and start carving out convenient exceptions to principles that are at the heart of liberal democracy.
The damage to the US is not limited, however, to being seen as hypocrites. The Senate's habeus corpus political stunt will be viewed by much of the world as simply part of a cynical pattern, which includes the failure by Congress to tackle the practices of "black sites," "ghost detainees" and "extraordinary renditions." Much of the world is concluding, reluctantly or not, that Americans have abandoned their basic principles and now tacitly endorse the "disappearing" of people by the US government.
Perhaps Americans don't understand that "the disappeared" is the most powerful symbol of political oppression across much of the developing world -- the very regions where the BushAdmin is conducting its freedom crusade against tyrants and extremists, not only in the Middle East but also in regions like Latin America. Perhaps Americans are simply too insulated from what goes on beyond their borders.
In order to understand how profoundly "the disappeared" resonates as an idea, perhaps one has to have lived or worked in the developing world, watched closely the politics of countries after authoritarian or totalitarian regimes have been overthrown, or followed carefully the various "reconciliation commissions" that often accompany attempts to democratize. Although abusive treatment and torture of political prisoners is usually an issue in these countries, their biggest hurdle is often the trauma associated with massacres of civilians (usually by paramilitaries) and the thousands of people who simply have disappeared into an opaque system run or sanctioned by the authorities. Some of the "disappeared" are found when their jailers are overthrown, but others are never to be heard from again. The families and friends of the "disappeared" know full well that a key factor in the "successful" operation of these systems of political oppression is the unenforceability of detainee rights such as habeus corpus.
America is connecting itself with practices that are associated, in the minds of hundreds of millions of people, with the most odious of tyrants and the worst of authoritarian regimes. No matter how skillful US public diplomacy may be in the future, it's going to take an enormous amount of effort and considerable time to overcome this self-inflicted damage.
The Senate should be ashamed. And that includes Democrats, although they do get marks for crafting a compromise that removes the worst of Graham's original proposal. Logrolling over pork is one thing, but there's no excuse to treat matters with important constitutional and foreign policy ramifications as an exercise in sausage-making. It is the height of irresponsibility to legislate this way -- tossing together a half-assed provision as somehow a sop to the Admin and its supporters on the torture debate, and tweaking the language in backrooms and hallways over the course of a couple of days, with no hearings and no real debate, on such a fundamental issue.
Marty Lederman at Balkinization offers one of the few attempts I've found so far in the blogosphere to look at some of the possible implications of the Graham/Levin deal. The dearth of analysis isn't surprising, of course, given how quickly the issue sprang into the public domain and how rapidly it's being disposed of. Lederman jots down a long list of questions that sprang to his mind on a first reading of the compromise. After reading the list, it's hard to fault Lederman's conclusion:
My initial, seat-of-the-pants impression is that this is a blunderbuss solution that cries out for careful and deliberate consideration and debate by congressional committees, where experts can weigh in and various questions can be examined and answered. Alas, that doesn't appear to be a realistic option any longer.
And then Lederman asks the same question I asked myself:
Is it nevertheless worth enacting this "compromise" now if that's the cost of enacting the McCain Amendment prohibiting cruel, inhuman and degrading treatment? I'm not sure.
I'm not sure either, but I'm strongly tempted to say, "no, that's a trade with the devil." We already have 90 senators on the record against torture with no exceptions, the military has made its anti-torture policy official, and John McCain is on the cover of Newsweek. It's time to draw a line on the issues of detainee status and treatment that have been overshadowed by the "torture debates."
Perhaps the strongest argument for opposing the Graham/Levin compromise is that habeus corpus for detainees shouldn't be addressed in isolation from the host of other legal and practical issues that have arisen from the BushAdmin's handling of terrorist suspects, both within and outside the US, both citizens and non-citizens. It is long past time the US had a coherent, consistent and transparent program that addresses the difficult problems presented by detainees, including how to deal with the dilemma of an open-ended GWOT. Until that happens, however, the courts have been the only force imposing a few limits on this President. And now the Senate proposes to take away much of the courts' already limited authority over these matters. {It's unclear to me whether Hamdan and Rasul will be affected by Graham/Levin. The military trials have just been suspended until after Hamdan is decided, after a district court ruling on Monday suspended the Hicks trial.}
As one of the commenters at Balkinization noted:
After 9/11 Congress authorized "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Then they went back to passing Highway bills and giving out farm subsidies. If we are left with a bad law, it will be because appropriations is the only thing Congressmen want to do any more. The history books may call this the War on Terror, or they may call it the "War on somebody Congress was too lazy to name carried out by means that Congress was too lazy to define."
Craven idiots!@#@! Indeed, the history books are not going to be kind to them. Andrew Sullivan quotes Churchill:
In a telegram on November 21, 1943, Winston Churchill defined a fundamental difference between the Anglo-American way of war and that of our enemies. Churchill wrote: "The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."
nadezhda quotes the Medium Lobster:
Guilty until proven dead. After eight centuries of ossified due process and doddering dedication to the rule of law, it's refreshing to see Western democracy make the bold leap forward to locking people up forever without charges or legal representation.
UPDATE:Katherine at Obsidian Wings has a recap of the various votes in the Senate as well as some thoughts about the unseemly CYA by the GOP that the political bargain between torture and habeus amendments seems to represent. One bright spot, there were 14 Senators who couldn't bring themselves to vote on any version of a bill to strip habeus: Baucus, Biden, Bingaman, Byrd, Dayton, Durbin, Feingold, Harkin, Kennedy, Lautenberg, Leahy, Rockefeller, Sarbanes, and the Republican chairman of the Senate Judiciary Committee, Arlen Specter.
[ cross-posted at American Footprints aka Liberals Against Terrorism]
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