The Tragedy of the Detainee Treatment Act

Famed libertarian legal scholar Richard Epstein testified in front of the Senate Judiciary Committee a few days ago about the detainee bill that was just passed and awaits Bush's inevitable signature. What he said is very important.

Far more is at stake than lawsuits haggling over prison conditions. At stake is the fundamental right of any prisoner to test the lawfulness of his detention. Truth must count. Innocence must matter. An optional system of limited judicial review sidesteps both. Only habeas corpus can meet the need. To strip the federal courts of habeas jurisdiction for individuals captured in the war on terror would tear a hole in a fundamental guarantee of liberty. Unless we remain true to our own constitutional tradition, our efforts to advance the cause of freedom will be seen a cynical exercise in hypocrisy.

The important part of that statement bears repeating: truth must count. Innocent people have been falsely arrested, detained and even tortured already in this war on terrorism. The government has admitted, for example, that some 90% of the Iraqis who have been detained and interrogated were falsely accused, usually the result of a fake tip given by an informant with a tribal axe to grind or a personal grudge to settle. One innocent Canadian man of middle eastern descent was arrested and tortured for months. There must be some way of weeding out the innocent from the guilty. If we act as though we just don't care, which is what this legislation does, we have allowed terrorism to destroy one of the very foundations of our way of life. The right of habeas corpus should not be set aside out of fear. Those who are detained and accused must be able to challenge their detention.

And do not be fooled by the argument that this bill only affects foreign terrorists. As Marty Lederman points out, the definition of "unlawful enemy combatant" applies to American citizens as well:

But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any person "who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Read literally, this means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to "hostilities" at all.

This definition is not limited to Al Qaeda and the Taliban. It's not limited to aliens -- it covers U.S. citizens as well. It's not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it's not even limited to a time of war or armed conflict; it could apply in peacetime.

Andrew Sullivan has it exactly right:

Whatever else this is, it is not a constitutional democracy. It is a thinly-veiled military dictatorship, subject to only one control: the will of the Great Decider. And the war that justifies this astonishing attack on American liberty is permanent, without end. And check the vagueness of the language: "purposefully supported" hostilities. Could that mean mere expression of support for terror? Remember that many completely innocent people have already been incarcerated for years without trial or any chance for a fair hearing on the basis of false rumors or smears or even bounty hunters. Or could it be construed, in the rhetoric of Hannity and O'Reilly, as merely criticizing the Great Decider and thereby being on the side of the terrorists?

All I know is that al Qaeda is winning battles every week now. And they are winning them because their aim of gutting Western liberty is shared by the president of the United States. The fact that we are finding this latest, chilling stuff out now - while this horrifying bill is being rushed into law to help rescue some midterms - is beyond belief. It must be stopped, filibustered, prevented. And anyone who cares about basic constitutional freedom - conservatives above all - should be in the forefront of stopping it.

And for those on the right who say that Bush can be trusted to exercise this unbridled power only on the bad guys, ask yourself this: do you trust Hillary Clinton to do the same?


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It's ironic that Iva Toguri died this week. The cosmis irony is stunning.

Is it the weather or what...but I feel so depressed and pessimistic today. Perhaps personal experience with crumbling democracies has something to do with it...

Certainly neither Bush nor Clinton should be trusted with this sort of power. For that matter, I don't think I would trust myself with that sort of power. I can think of a few people whose disappearance would elevate public discourse. Does not make it right, though...

By Anuminous (not verified) on 29 Sep 2006 #permalink

Great post, Ed, thank you. As much as I disagree with Sullivan on other issues, he's been absolutely dead-on in his aggressive take on the torture issue from the beginning. He deserves a lot of credit for keeping this whole thing even as much of an issue as it's been (which sadly hasn't been much -- it's like nobody gives a damn that we're becoming the very thing we are supposed to be fighting).

I did have a legal question on this -- if no detainee held under this law can challenge it in court, and they are the only ones presumably who would have standing in the first place, is it even possible for the Supreme Court to have this law brought before it to see if it's in fact constitutional or not? And if not, what's to keep Congress from passing any law that says "Anyone violating this is prohibited from bringing it up in court"?

If a US citizen is deemed an enemy combantant, are all constitutional rights automatically forfeited? What about that little bit in the First Amendment preserving the right to petition the government for redress of grievances? I admit I'm not clear on the definition of "grievance," but being disappeared solely on the basis of a questionable charitable contribution or two would constitute a fairly major grievance in my book.

I'm not a legal scholar by any stretch of the imagination, but it seems to me that it's not a very big step for the application of the law to be expanded from "enemy combatants" to anyone "hostile toward the US Government" (or some such crap). Perhaps that interpretation can already be drawn.

Anyone holding a membership in the ACLU, a gay activist organization, anti-Creationist/ID groups, etc. would be at risk of being tossed into the gulag.

Or am I just over-reacting? God, I hope so.

By ZacharySmith (not verified) on 29 Sep 2006 #permalink

No, you are not overreacting. This might as well be called the Enabling Act of 2006, Godwin be damned. I'm actually a bit afraid now of a democrat sweep in November: Up to now, the administration didn't have to worry about Congressional interference and had no reason to really push its "unitary executive" powers.

It doesn't have to be that way. Perhaps the military will find the courage to say they won't back violence against the American people. Perhaps the many good and decent people left in the intelligence agencies will stand up and be counted. I fear for our country.

They sure seem to be saying "Bring it on!" to the Supremes.
I only hope it's soon.

We don't have to worry about Hillary Clinton. Bush will classify her as an enemy combatant before the next elections and secret her away for "rendering".

Yeah, right after he declares the 22nd Amendment subject to the interpretations of his crack legal staff.

My question is this: If you have a solid case, why suspend habeas corpus? How can you claim to try a case on its merits if one side gets all the advantages? It's like playing gin rummy when only one person get dealt a hand.

These measures are being pursued by people effectively described as monsters, and they will pursue their monsterous agenda until their montrous appetites, most especially for the power to act monstrously, have been staked (ala Dracula Chaney), frozen (Xian politicians), incinerated (Scarecrow/The Thing Bu--sh--), or whatever.
The Bu--sh-- core mean Americans, indeed humanity, harm: the key figures believe they are - and could be said, in their utter banality, to be - not of us, but our masters.


By goddogtired (not verified) on 29 Sep 2006 #permalink

If the terrorists hate us for our freedom, does this mean they'll stop hating us once Bush signs this into law?

I, too, consider this legislation a momentous American tragedy, but I am confused about a certain point: had this bill not passed and had habeas been granted to "unlawful" enemy combatants in an unfinished "War on Terror," why were not German and Japanese POWs in WWII not granted habeas? At least, I don't think they were granted this.

I'm actually a bit afraid now of a democrat sweep in November

Why would you be afraid of it? Shouldn't you be more afraid of more Republican control? I mean look at what they are doing now.