According to Bruce Ackerman (Yale, Law) the "antiterror" legislation that the President will soon sign with great fanfare "is a real shocker":
The compromise legislation...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.
This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against the United States." This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.
And how do the Geneva Conventions fare under this legislation? The Wall Street Journal exults:
it's a fair bet that waterboarding--or simulated drowning, the most controversial of the CIA's reported interrogation techniques--will not be allowed under the new White House rules [Says who? --ed.]. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster. This is not about "torture" or even "abuse," as some Administration critics dishonestly charge, but about being able to make life uncomfortable for al Qaeda prisoners who have been trained to resist milder forms of interrogation.
A "fair bet"? Does anyone know? --asks Dahlia Lithwick, at Slate:
So, what did we agree to? Is hypothermia in or out? What about sexual degradation or forcing prisoners to bark like dogs? Stress positions? I'd wager that any tie goes to the White House. One hardly needs a law degree to understand that in a controversy over detainee treatment between the executive and legislative branches, the trump will go to the guy who's holding the unnamed detainees in secret prisons.
But maybe the worst of it all is that this legislation will assure that no one will know. Lithwick writes:
Congress doesn't want to know what it's bargaining away this week. In the Boston Globe this weekend, Rick Klein revealed that only "10 percent of the members of Congress have been told which interrogation techniques have been used in the past, and none of them know which ones would be permissible under proposed changes to the War Crimes Act." More troubling still, this congressional ignorance seems to be by choice. Klein quotes Sen. Jeff Sessions, the Alabama Republican, as saying, "I don't know what the CIA has been doing, nor should I know." Evidently, "widely distributing such information could result in leaks."
We've reached a defining moment in our democracy when our elected officials are celebrating their own blind ignorance as a means of keeping the rest of us blindly ignorant as well....
For the five years since 9/11, we have been in the dark in this country. This president has held detainees in secret prisons and had them secretly tortured using secret legal justifications. Those held in secret at Guantanamo Bay include innocent men, as do those who have been secretly shipped off to foreign countries and brutally tortured there. That was a shame on this president.
But passage of the new detainee legislation will be a different sort of watershed. Now we are affirmatively asking to be left in the dark. Instead of torture we were unaware of, we are sanctioning torture we'll never hear about. Instead of detainees we didn't care about, we are authorizing detentions we'll never know about. Instead of being misled by the president, we will be blind and powerless by our own choice. And that is a shame on us all.
And we thought Iraq was in for a regime change.
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