People For The American Way weighs in:

"This legislation turns our system of justice upside down, betrays basic American values of fairness and justice, and undermines the rule of law. It gives the Bush administration a blank check to detain whoever it sees fit, and to use whatever interrogation techniques it wants, without oversight. It deprives detainees of habeas corpus—their right to challenge their imprisonment in the courts—and it may make them vulnerable to the use of secret or coerced evidence. Adding insult to injury, this legislation includes a blanket waiver letting members of this administration off the hook for potential violations of the law. What a disgrace.

"Some senators probably supported this measure because they were worried about being perceived as soft on terrorism. But capitulation doesn’t make them look strong. If they want to win the votes of people who are worried about security, they had better show that they know how to stand up and fight. Unfortunately for our democracy, too many of them have failed to do so today."

The American Civil Liberties Union chimes in:

The American Civil Liberties Union expressed distress as the Senate adopted S.3930, the Military Commissions Act of 2006. That bill is identical to legislation adopted by the House yesterday, and removes important checks on the president by: failing to protect due process, eliminating habeas corpus for many detainees, undermining enforcement of the Geneva Conventions, and giving a "get out of jail free card" to senior officials who authorized or ordered illegal torture and abuse.

"This legislation gives the president new unchecked powers to detain, abuse, and try people at Guantanamo Bay and other government facilities around the world," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "Unfortunately for America, the Senate chose not to deliberate today. Instead, it joined the House and President Bush in jamming through a hastily written bill before running home to try to campaign."

(snip)

Additionally, the bill undermines the American value of due process by permitting convictions based on evidence literally beaten out of a witness or obtained through other abuse by either our government or other countries. Government officials who authorized or ordered illegal acts of torture and abuse would receive retroactive immunity for many of these acts, providing a "get out of jail free" card that is backdated nine years.

(snip)

"Nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence that they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas petition," said Christopher Anders, an ACLU Legislative Counsel. "But that’s exactly what Congress just approved."

Last, but certaintly not least, Amnesty International becries passage:

Amnesty International is deeply concerned that today's passage of legislation by the U.S. Senate calls into question the United States' commitment to fundamental principles of justice and fair trials. The "Military Commissions Act," first approved by the House on Wednesday, fails to provide clarification of basic standards for treatment of persons in detention. Instead the bill adds more confusion where illumination was sought.

"Many have looked to the United States, as the world's sole superpower, to set the standard for human rights," said Larry Cox, Amnesty International USA executive director. "However, today Congress has sent the wrong message by refusing to affirm basic, universal standards recognized under human rights and humanitarian law. Rather than steering a clear course to uphold established standards of U.S. and international law, the bill creates new standards that appear to fall short and raise questions about the U.S. government's commitment to American values of due process and integrity.

"Amnesty International commends the senators and members of Congress who voted against this legislation. They took a principled stand by casting an important vote in favor of human rights, the rule of law and our nation's standing in the international community," added Cox.

As bad as this bill being passed today by the US Senate is, the light at the end of the dark tunnel it constructs is the near-inevitability of it being struck down by the Supreme Court as unconstitutional. How could it not? It would take some truly remarkable language-twisting to fit the Constitution's instructions about habeas corpus to the intent of this bill. I'll go into more detail as I study the issue more deeply, so in the meantime I'll make a point to link to folks who already have that kind of in-depth insight. I'll start today with Nat Hentoff:

Last June, the Supreme Court (Hamdan v. Rumsfeld) ruled that our federal courts have the power to hear habeas-corpus petitions from detainees on the legal basis for their imprisonment - and the conditions of their treatment. Habeas corpus, the "Great Writ," which has roots at least as far back as the Magna Carta (the year 1215), is embedded in the Constitution as the most fundamental protection against loss of liberty. But in the both acclaimed and denounced bill put through the Senate Armed Services Committee by Republicans John Warner (Virginia), John McCain (Arizona) and Lindsey Graham (South Carolina), habeas-corpus rights have been removed.

(snip)

In the blizzard of expensive TV ads and scathing stump speeches as the midterm elections approach, I doubt if any of the candidates and their supporters will focus on, or even mention, this assault on habeas corpus. But nine retired federal judges have tried to awaken Congress to this constitutional crisis. Among them are such often-honored jurists as Shirley Hufstedler, Nathaniel Jones, Patricia Wald, H. Lee Sarokin and William Sessions (who was head of the CIA and the FBI).

They write, particularly with regard to Sen. McCain's concerns about torture, that without habeas petitions, how will the judiciary ensure that "Executive detentions are not grounded on torture"? The judges also remind Congress that the writ of habeas corpus has been suspended only four times in our history - and then, the Constitution states, only in "Cases of Rebellion or Invasion (when) the public Safety may require it.")

To be sure, Abraham Lincoln suspended habeas during the horrors of the Civil War; but in 1866, the Supreme Court declared that action unconstitutional because the civilian courts were still open during the war - as they still are right now.

America should never condone torture. Such brutality is contrary to our very being. We are founded on the inherent dignity of humanity, and our inherent fallibility as well. Due to this combination of dignity and fallibility, we have enshrined certain principles, and claimed certain rights, and secured certain protections against tyranny. Equal treatment under the law is one very important principle that cannot be violated. Habeas corpus ought not to be either. If we are truly desiring to spread our principles and way of life and governance to the world, why the hell are we flushing them down the toilet 5 years after 9-11, which has not been repeated here in the homeland? And doing so in a mad rush before a mid-term election? Shame on the president and the GOP.

It's clear to me this needs to be reined in. America must not condone torture. Ever. America must not condone enshrinement of seemingly arbitrary power in a strongman. Ever. We do things a certain way around here, and these are not among them. We are not weak people, and should not be led by cowards to be cowards.

As for suspending habeas corpus, any legislation that deviates from a very literal reading of the Constitution should be found unconstitutional by the Supreme Court, and ideally before then by our elected representatives and never passed into law. One would hope our opposition party would step up to the plate on this. The Constitution is clear on "rebellion" or "invasion" in the case of suspending habeas corpus, and picking people up on foreign battlefields doesn't meet the standard. We cannot allow a liberal interpretation of "rebellion" or "invasion" to be accepted, just to meet the policy goal. We've been twisting our Constitution and language long enough, and if Bush and the GOP really want this, make them get an amendment, as our Founders would have demanded.

More and more it really is starting to look like we're in an enduring struggle for civilization, and freedom, but not from outside threats. If Bush and the GOP want to capitulate in fear to terrorism and suspend our civil liberties tradition, the strong among us should fight them tooth and nail the whole way. We will prevail. Al Qaeda is not an existential threat to us, and neither are any other terrorists and extremists around the world at this point. We can beat them by playing our game, not theirs, and not playing into their strategies. Sometimes, the best strategy is sticking to your guns, and principles, and integrity, no matter the provocation. This is also a show of strength.

Bush's Double Standard

DeWayne Wickham over at the USA Today pens a thoughtful piece, juxtaposing the cases of Maher Arar and Luis Posada Carriles, on the double standards of the Bush Administration when it comes to terror:

While the flimsiest of evidence caused U.S. officials to hustle Arar off to Syria, a mountain of suspicion about Luis Posada Carriles' involvement in a long list of terrorist acts has not been enough to wrench him out of this country's grip.

Posada is on the lam from Venezuela, where he was awaiting a retrial of charges that he had a hand in the 1976 bombing of a Cuban airliner that killed 73 people. The Cuban exile denies involvement in that heinous crime, but former counterterrorism specialist Carter Cornick said Posada was "up to his eyeballs" in the bombing, The New York Times reported last year.

The newspaper also reported that Posada once bragged of masterminding a series of bombings of tourist hotels in Cuba in the 1990s, an admission he later recanted. An Italian tourist died in one of those blasts.

But instead of spiriting Posada off to Venezuela, the Bush administration is holding him in an immigration detention center. Rather than accuse him of being a terrorist, it simply has charged him with entering this country illegally.

One possible retort to this double standard charge, if you are so inclined to defend Bush's approach, is that maybe the United States had no idea that Aher would be tortured. Unfortunately, this position cannot be defended by the available evidence, which suggests the contrary.

In sending Arar — whom a Canadian government commission recently cleared of any terrorist ties — to Syria, the Bush administration had good reason to know he would be brutalized.

"Although torture occurs in prisons, torture is most likely to occur while detainees are being held at one of the many detention centers run by the various security services throughout the country, and particularly while the authorities are attempting to extract a confession or information regarding an alleged crime or alleged accomplices," the State Department said of Syria in its 2001 Country Reports on Human Rights Practices.

To me, these actions by our government are truly shameful, and sacrifice our values for questionable security (and I wouldn't condone sacrificing our values for even certain security, aside perhaps from an exceptionally dire and imminently known threat). One wonders what the Bush Administration has to say about these two cases, and, in his conclusion, Wickham leaves a taste of that, while pronouncing it quite bitter indeed:

Last year, an immigration judge ruled that Posada couldn't be deported to Venezuela or Cuba — countries the Bush administration considers rogue states — because he might be tortured. During an appearance on Telemundo, a Spanish-language TV station, U.S. Secretary of State Condoleezza Rice was asked whether this decision might affect the world's perception of the Bush administration's worldwide war on terrorism. "We try and intend to apply our standards uniformly, consistently," she said, "but these are issues that have to be decided in the right channels."

In fact, the Bush administration has contradictory standards — one for people who are thought to be enemies of this country, such as Arar, and another for Posada, an accused terrorist, who is the enemy of its enemies.

Why can't we get more refleshingly lucid and blunt op-eds in this country? We sure could use them.

The past few days I've been mulling an idea which I'm going to share here, especially as more heat is being generated about and towards Iran.  Bush's decision to invade Iraq was a disaster, I think most of us agree now.  I've always believed this.  As Bush tries to figure out a way out of historical infamy, it seems he's casting his eye towards Iran, and I can only see the arguments now:  well, maybe Iraq didn't have what we thought, but we know Iran is going to.  So we recycle essentially the same arguments for the Iraq War for justifying aggression against Iran.  I know none of this is a new concept for most of us, but the essential idea is to frame this as a "mulligan", and, from there, to question the very notion of Iran being our "enemy" right now.

There's a larger essay in all of this, but I'm going to keep it short and sweet today.  I'm not afraid of Iran.  If you ask a random politician talking tough about Iran today, you'll probably get back something about American strategic influence being the reason we need to face down Iran.  Sure, there are plenty of other reasons - Iran is aggressive and expansionary (laughable), Iran hates Israel and their president is a psycho, Iran is going to get nukes and use them on their neighbors, etc. - but none of these are convincing.  Iran's history is not one of aggression, their president has little actual power, and Iran is not likely to develop nukes soon, or to use them once they have them, or to allow them into the hands of terrorists they cannot control.

Ultimately, when this argument to use aggression against Iran goes forward, if it goes forward, we will end up in a place amongst serious thinkers where it's about a power struggle with Iran that we must win because we're a liberal democracy on a hill and they're not.  I don't believe that.  I'd like Iran to be a liberal democracy as much as anyone, but I have few illusions about that.  I'm more interested in helping encourage a unique strain of Islamic democracy that agrees to the most basic rights doctrines.  This is not an impossible task, but it gets much more difficult if we treat Iran as an enemy, rather than a competitor.

And, if we look at this honestly, and at Iran as a competitor for influence, wealth and power, what are we worried about?  Do you seriously know any American that believes that Iran, especially the way they're set up, is going to be able to out-compete us?  Hell no.  I'm not afraid of competing with Iran at all, and I'd be much more interested in reconciling with Iran along the lines of a Grand Bargain so that we can get to the important business of living together in the world peacefully, competing with each other in a lot of ways, while also leaving room and enough good will to be able to cooperate on our most pressing global challenges, like global warming, hunger, poverty, the commons, etc.

So Bush gets no mulligans, and his approach, his doctrine, the PNAC, and all that crap should be tossed out the window.  The myopia is mind-boggling, and Sun Tzu is surely laughing in his grave at our lack of foresight and wisdom.  We can compete with anyone on the global stage, and without being a bully who wants to break the legs of ambitious neighborhood upstarts who want to prove themselves to us.  We don't need to be that insecure, or to be a bully.  We just need to be America, and in the first place look out for our own, followed by looking out and seeking common ground with those around us to ensure our security (and deal with our common problems and global challenges), while also staking out ground and competing with these folks for whatever it is we're always competing for (God knows we have enough food, water, and shelter to feed Americans a million times over).  

I don't want to take away anyone's toys, and at the same time I don't want to sacrifice lives, American or otherwise, for foolish schemes to protect privilege without having to honestly compete for it.  Iran does not have to be our enemy, and we can out-compete them and anyone else who comes along, so I'm not worried about being desperate to hold on to what we have now by tilting all the rules and the playing field in our direction.  We don't need to do that, and we shouldn't.  Not only to save lives from being senselessly sacrificed, but to preserve our honor, and perhaps even our place on that glittering hill.

I'm slowly going to kick this blog back in a bit, though probably not too much, but if anyone wants to get a flavor for it, then I'd start with this archive, which marks the last month of my posting regularly (September 2004), and is more partisan than most everything that came before.

Or, if you prefer unfiltered, non-partisan, anti-war smackdowns, just go back to the mission statement (March 2003), or the first "this war is a fraud" letter, and work your way up (and graciously ignore the few dumb posts that are sprinkled as you go forward), keeping in mind the first two posts really aren't the first, but were actually emails sent out to media organizations and major bloggers before this blog was ever created (I added them since they give the best context to the blog and where I'm coming from, and in the right chronological order).

We can't let things fall apart in and for Iraq. We need to energize. The people should not be manipulated through violence into giving up their own destiny, and surrendering to a strongman. America must withdraw by the end of the summer, so that Iraqis can explore the challenges of self-rule.

If there was any question whether White Phosphorous is a banned chemical weapon under the Chemical Weapons Convention, "to which the U.S. is a party", this ought to clear it up:

The CWC is monitored by the Organisation for the Prohibition of Chemical Weapons, based in The Hague. Its spokesman Peter Kaiser was asked if WP was banned by the CWC and he had this to say:

"No it's not forbidden by the CWC if it is used within the context of a military application which does not require or does not intend to use the toxic properties of white phosphorus. White phosphorus is normally used to produce smoke, to camouflage movement.

"If that is the purpose for which the white phosphorus is used, then that is considered under the Convention legitimate use.

"If on the other hand the toxic properties of white phosphorus, the caustic properties, are specifically intended to be used as a weapon, that of course is prohibited, because the way the Convention is structured or the way it is in fact applied, any chemicals used against humans or animals that cause harm or death through the toxic properties of the chemical are considered chemical weapons."

Before I speak too soon, however, we have this caveat, which, though not noble by any measure, needs to be considered in determining whether the CAC has been violated:

The US can say therefore that this is not a chemical weapon and further, it argues that it is not the toxic properties but the heat from WP which causes the damage. And, this argument goes, since incendiary weapons are not covered by the CWC, therefore the use of WP against combatants is not prohibited...the United States has not signed up to a convention covering incendiary weapons which seeks to restrict their use.

This convention has the cumbersome title "Convention on Certain Conventional Weapons." Agreed in 1980, its Protocol III covers "Prohibitions or Restrictions on use of Incendiary Weapons."

This prohibits WP or other incendiaries (like flamethrowers) against civilians or civilian objects and its use by air strikes against military targets located in a concentration of civilians. It also limits WP use by other means (such as mortars or direct fire from tanks) against military targets in a civilian area. Such targets have to be separated from civilian concentrations and "all feasible precautions" taken to avoid civilian casualties.

One can imagine that the use of White Phosphorous was not random, and instead was strategized and ordered, and thus vetted by our ever-clever military legal advisors, with the understanding that it would be best if the use of WP was not to become generally known, but, if it did, there was a fallback legal position.

My take is that it is wrong (if not evil) to use a chemical weapon that indiscriminately melts the skin off anyone unfortunate enough to be in the ordinance zone. I'm not saying this in light of the history of war, which has employed much more savage efforts (including our own use of nuclear weapons), but in the language of right conduct and morality, whether true to Christian or other ideals.