Congress Moves Forward On Bush Detainee Bill

Update 2, 12.58 am, Pacific
On a 65-34 vote, with 12 Democrats joining, the Senate passed S 3930 Thursday night after 10 hours of debate. The bill is virtually identical to the House version passed earlier, meaning no conference committee parley will be needed. (pdf).

From Greenwald, the non-party-line voters:

Democrats in favor (12) - Carper (DE), Johnson (SD), Landrieu (LA), Lautenberg (NJ), Lieberman (CT), Menendez (NJ), Nelson (FK), Nelson (NE), Pryor (AR), Rockefeller (WV), Salazar (CO), Stabenow (MI).

Republicans against (1) - Chafee (RI).

Two-Faced Senators
If voters were to force their Senators to vote in concert with their rhetoric -- or be thrown out of office -- then neither Senate Judiciary Committee Chair Specter nor Senate Intelligence Committee Committee ranking Democrat Jay Rockefeller would be reelected. Here's Greenwald, on their floor speech versus their votes:

Jay Rockefeller ... complained that the White House has concealed all information about the interrogation program and that the Intelligence Committee members (including him) therefore know nothing about it. His amendment to compel reports to Congress was defeated with all Republicans (except Chafee) voting against it. He proceeded to vote for the underlying bill anyway, thereby legalizing a program he admits he knows nothing about (and will continue to know nothing about).

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus rights and allows the President to detain people indefinitely. He also said the bill violates core Constitutional protections. Then he voted for it.

And people wonder why citizens tune out, why voter apathy is up.

House Voted Earlier
Along partisan lines, on Wednesday the House passed (HR 6166, 253-168) "an administration-backed system of questioning and prosecuting terrorism suspects." Also along partisan lines Earlier during debate, the Senate defeated a Democrat-sponsored amendment "that would have expanded detainees' legal rights."

Two Reasons For Haste
Congress is racing to pass the bill before election recess for two reasons. First, the White House plan for trying detainees was nixed by the Supreme Court in June. Second, Republicans hope to use this bill as a tool to campaign as someone "hard on terrorists." (Seven Republicans (3%) voted "no" and 34 Democrats (16%) voted "yes.")

In June, the Supreme Court ruled that military trials at Guantanamo Bay violate both US law and the Geneva Conventions. Earlier iterations of the bill winding its way through Congress would have created definitions counter to those in the Geneva Conventions, in effect unilaterally changing the terms of the treaty. Key Republican leaders -- including Sen. John McCain (R-AZ) -- forced the Administration to back-off on these points.

However, Yale law professor Bruce Ackerman raises a large yellow flag in an op-ed in the LA Times (emphasis added):

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

In his cry of caution -- which is almost certainly a futile one -- Ackerman also notes that the Supreme Court decision "upholding the military detention of tens of thousands of Japanese Americans during World War II has never been explicitly overruled." In other words, there is precedent for detention.

He worries not only about citizens -- the bill grants the President the right to claim any citizen is an "enemy combatant" -- but also about legal immigrants.

Ackerman's concerns reflect the words of House Minority Whip Steny Hoyer (D-MD), who believes this legislation "is really more about who we are as a people than it is about those who seek to harm us. Defending America requires us to marshal the full range of our power: diplomatic and military, economic and moral. And when our moral standing is eroded, our international credibility is diminished as well.''

Bill Summary
The bill defines "lawful" and "unlawful" "enemy combatant" and defines "torture" as "an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind."

It establishes a legal system -- Military Commissions -- to try "alien unlawful enemy combatants."

It empowers the President or the Secretary of Defense to establish the type and degree of "punishment which a military commission under this chapter may direct for an offense."

The rules of evidence allow heresay, statements made under "alleged coercion," and should follow the rules of evidence for general courts-martial "so far as the Secretary considers practicable or consistent with military or intelligence activities."

Also, see Court To Bush: Gitmo Trials Illegal, Issue: Geneva Conventions

Originally posted at 10 am Thursday; first update at 10.46 pm.

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