NY Times: ghastly anti-terrorism bill


Richard Moore

Original source URL:

September 28, 2006
Rushing Off a Cliff

Here¹s what happens when this irresponsible Congress railroads a profoundly 
important bill to serve the mindless politics of a midterm election: The Bush 
administration uses Republicans¹ fear of losing their majority to push through 
ghastly ideas about antiterrorism that will make American troops less safe and 
do lasting damage to our 217-year-old nation of laws ‹ while actually doing 
nothing to protect the nation from terrorists. Democrats betray their principles
to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging 
and trying terrorists ‹ because the men accused of plotting the 9/11 attacks are
available for trial. That¹s pure propaganda. Those men could have been tried and
convicted long ago, but President Bush chose not to. He held them in illegal 
detention, had them questioned in ways that will make real trials very hard, and
invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down 
Mr. Bush¹s shadow penal system that he adopted his tone of urgency. It serves a 
cynical goal: Republican strategists think they can win this fall, not by 
passing a good law but by forcing Democrats to vote against a bad one so they 
could be made to look soft on terrorism.

Last week, the White House and three Republican senators announced a terrible 
deal on this legislation that gave Mr. Bush most of what he wanted, including a 
blanket waiver for crimes Americans may have committed in the service of his 
antiterrorism policies. Then Vice President Dick Cheney and his willing 
lawmakers rewrote the rest of the measure so that it would give Mr. Bush the 
power to jail pretty much anyone he wants for as long as he wants without 
charging them, to unilaterally reinterpret the Geneva Conventions, to authorize 
what normal people consider torture, and to deny justice to hundreds of men 
captured in error.

These are some of the bill¹s biggest flaws:

Enemy Combatants: A dangerously broad definition of ³illegal enemy combatant² in
the bill could subject legal residents of the United States, as well as foreign 
citizens living in their own countries, to summary arrest and indefinite 
detention with no hope of appeal. The president could give the power to apply 
this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international
precedent by allowing Mr. Bush to decide on his own what abusive interrogation 
methods he considered permissible. And his decision could stay secret ‹ there¹s 
no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to 
challenge their imprisonment. These cases do not clog the courts, nor coddle 
terrorists. They simply give wrongly imprisoned people a chance to prove their 

Judicial Review: The courts would have no power to review any aspect of this new
system, except verdicts by military tribunals. The bill would limit appeals and 
bar legal actions based on the Geneva Conventions, directly or indirectly. All 
Mr. Bush would have to do to lock anyone up forever is to declare him an illegal
combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it
reliable ‹ already a contradiction in terms ‹ and relevant. Coercion is defined 
in a way that exempts anything done before the passage of the 2005 Detainee 
Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony 
that is kept secret from the defendant, whether the accused is a corporate 
executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to 
weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of
the deeply cynical memos the administration produced after 9/11. Rape and sexual
assault are defined in a retrograde way that covers only forced or coerced 
activity, and not other forms of nonconsensual sex. The bill would effectively 
eliminate the idea of rape as torture.

€There is not enough time to fix these bills, especially since the few 
Republicans who call themselves moderates have been whipped into line, and the 
Democratic leadership in the Senate seems to have misplaced its spine. If there 
was ever a moment for a filibuster, this was it.

We don¹t blame the Democrats for being frightened. The Republicans have made it 
clear that they¹ll use any opportunity to brand anyone who votes against this 
bill as a terrorist enabler. But Americans of the future won¹t remember the 
pragmatic arguments for caving in to the administration.

They¹ll know that in 2006, Congress passed a tyrannical law that will be ranked 
with the low points in American democracy, our generation¹s version of the Alien
and Sedition Acts.

Copyright 2006 The New York Times Company

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