New York Times Editorial - A tyrannical antiterror law

New York Times Editorial - A tyrannical antiterror law
Copyright by The New York Times
Published: September 28, 2006


Here's what happens when this irresponsible U.S. Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans' fear of losing their majority to push through ghastly ideas about antiterrorism that will make U.S. troops less safe and do lasting damage to Americans' 217-year-old nation of laws - while doing nothing to protect America from terrorists.

Republicans say Congress must act right now to create procedures for charging and trying terrorists - because the men accused of plotting the Sept. 11 attacks are available for trial. That's pure propaganda. Those men could have been tried and convicted long ago, but President George W. 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 Bush's shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this autumn, 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 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 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 bill's biggest flaws:

Enemy combatants: A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal U.S. residents, as well as foreign citizens living in their own countries, to 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 Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret - there's no requirement that this list be published.

Habeas corpus: Detainees in U.S. military prisons would lose the 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 innocence.

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. All 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 Bush chooses.

Secret evidence: U.S. standards of justice prohibit evidence and testimony that is kept secret from the defendant. But the bill as redrafted by 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 Sept. 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.

The Republicans have made it clear that they'll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won't remember the pragmatic arguments for caving in to the administration. They'll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy.