Monday, June 19, 2006

Shining Some Light on Detentions

As it promised in yesterday's editorial, which I discussed here, the Washington Post offered some suggestions to improve the conditions at Guantanamo Bay and other sites holding prisoners without charge or access to legal remedies. In today's edition, the editorialist proposes the obvious: Congress should get involved.

Currently no federal statute governs where or how long a detainee may be held or what his rights are. Nor do the Geneva Conventions, which President Bush in any event wrongly set aside. No law governs whether he will be prosecuted, released, transferred to another country or indefinitely detained. No law guarantees him judicial review or access to counsel. The result is a haphazard system driven more by convenience to the administration than by reason or justice.

Some Taliban fighters and al-Qaeda militants are held at Guantanamo Bay, Cuba, subject to an initial status hearing to determine whether they are "enemy combatants" and then an annual review of whether they are still dangerous. A different group is held at Bagram air base in Afghanistan, which has a less protective set of rules. Still others get turned over to foreign governments, while high-value al-Qaeda detainees are whisked away to secret CIA prisons with no known rules at all. It is long past time to rationalize this system and bring it into accord with international norms through predictable and defensible laws, passed by Congress and worthy of a democracy.

Properly crafted, an administrative detention law for foreign detainees captured abroad would provide for a substantial military hearing to establish that an inmate is actively engaged in terrorist activity. The hearing would take place promptly, with military counsel available to the detainee and able to attack the government's evidence. A finding that an individual may be detained would entitle the military to hold and interrogate him, but it would be subject to appeal to the federal court system and regular review. Critically, it would have the imprimatur of Congress, and it would apply to all detainees who are neither under indictment nor held under the Geneva Conventions.

The goal should be a system that regulates, legitimizes and subjects to rigorous oversight detentions that the administration now treats as outside of both the laws of war and the protections of criminal law. The administration cannot create such a regime on its own. It can do so only by inviting the other two branches of government into the process.
[Emphasis added]

It is hard to fault the process the writer is urging, but it is just as hard to envision either this president or this Congress actually engaging in such a process. It is clear that the current regime has little use for the other branches of government beyond rubber stamping the White House policies. The Emperor has chosen to rely the concept of the unitary executive, certain that this unconstitutional principle gives him all the power necessary to do the work of all three branches. Evidence of this reliance are the hundreds of signing statements the executive has issued every time a new law is brought to him from Congress. Most of the time, the statement is little more than an assertion that the Emperor will execute the law only if it suits him.

And this Congress has certainly shown no evidence that it is willing to challenge the Emperor on anything. While there may be howls of outrage on occasion, inevitably, once the headlines move on to another subject, the huffing and puffing disappears, and Congress goes meekly about its duties, debating bans on flag-burning and gay marriage. Crafting the kind of legislation this editorial is talking about would require a willingness to do the hard work of actually, well, crafting the legislation, and then making it clear to the executive branch that it would have to, well, execute the legislation under threat of impeachment. I don't see either Senate Majority Leader Bill Frist or House Speaker Denny Hastert willing to take on that kind of responsibility.

That is why the November elections are important. Now that the Democrats are finally talking in specifics about their plans, I hope they are also going to do so in a way that gets people to the polls. A new and improved Congress is the only hope we have right now.


Anonymous Nora said...

Isn't this to some extent putting lipstick on a pig?

I mean, shouldn't the first point be that the whole idea of "detainees" is wrong and illegal? It seems to me that the WaPo is making a mistake in agreeing with the original premise that there are some people who are outside the Geneva Conventions and outside the criminal justice system and therefore need to have a new system of laws applied to them.

But you are completely right. Even if Congress actually passed such a law -- about as likely as their passing the law Hilary Clinton suggested by which the minimum wage would be increased every time Congress increases its salary -- it wouldn't make a damn bit of good. The President who has already done on the order of 700 + signing statements saying that he doesn't have to obey the laws he's signing isn't going to take a law like this seriously either

6:43 PM  

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