American show trials
A Times EditorialTo get at those we suspect of terrorism, the protections that have defined us as a nation for more than 200 years have been diminished.
Published October 1, 2006
In the play A Man for All Seasons, Sir Thomas More and William Roper, the man who wishes to marry More's daughter, have an exchange about the evenhanded application of law.
More says that he would extend the protections of the law even to the devil. Appalled, Roper retorts that to get at the devil he would "cut down every law in England." More replies, "Oh? And when the last law was down, and the devil turned 'round on you, where would you hide, Roper, the laws all being flat? ... I'd give the devil benefit of law for my own safety's sake."
More's point of view had always been America's point of view. Our country gave alleged evildoers of every stripe the benefit of due process. It was a point of national pride and a shining example of how America lived up to its reputation for securing liberty. It also was the only way to ensure that the right people - the truly guilty people - were the ones being punished. By giving them due process we enshrined it for ourselves.
But in passing legislation on the interrogation and trials of suspected terrorists, Congress has switched allegiances. Our nation now stands with Roper.
To get at those we suspect of terrorism, the constitutionally grounded protections that have defined us as a nation for more than 200 years have been seriously diminished.
- Until now, no one could be held indefinitely upon the order of the president without having access to the courts to challenge the legality of that imprisonment. Now Congress has handed the president the power of monarchs. The legislation bars the courts from hearing habeas corpus petitions from "unlawful enemy combatants," who are essentially defined as anyone the president so designates.
- Until now, no evidence obtained by waterboarding or dousing a naked detainee with cold water and leaving him to contract hypothermia could be introduced in court. Now, evidence garnered through abusive or coercive means before Dec. 30, 2005 (the date Congress passed the Detainee Treatment Act) is considered valid as long as a military judge agrees.
The legislation includes numerous other ways in which traditional due process protections have been weakened or abandoned. Under the new law, the use of hearsay evidence is permitted; the right to a speedy trial has been eliminated; and sharp limits have been imposed on judicial review.
If one of the purposes of establishing military commissions was to demonstrate to the rest of the world that the United States still believes in fair trials and the rule of law, this legislation won't fool anyone. It is largely a codification of the president's deeply flawed tribunal system. The world will call them American show trials.
There was a moment during the Senate's machinations over the legislation when it seemed that a group of moderate Republicans would force through changes that would comport more with our national values. Sen. John McCain and two other Republican senators fought to protect the terms of the Geneva Conventions and to prevent the use of secret evidence. Republican Sen. Arlen Specter led a fight to retain habeas corpus rights.
But in the end, only a concession barring the use of secret evidence was approved before senators fell into line behind the president's demands. Only one Republican member of the Senate, Lincoln Chafee of Rhode Island, voted "no," while 53 voted "yes."
As for Democrats, there were 32 courageous "no" votes, while 12 supported the measure. To Florida's shame, both senators, Republican Mel Martinez and Democrat Bill Nelson, voted "yes." We expected better from Nelson, but perhaps his vote should not have come as a surprise. After all, he would ban desecration of the American flag at the expense of the freedoms it represents.
One of the measure's worst aspects is that it hands the president the discretion to interpret the Geneva Conventions relative to prisoner treatment. By preventing the courts from ruling on cases involving breaches of Common Article 3 of the Conventions, Congress is effectively giving the president unilateral authority over interrogations beyond some explicitly prohibited acts.
This is the president who sent prisoners to secret CIA prisons, presumably so they could be abused, whose staff generated a memo providing legal cover for torture, who fought Congress' efforts to bar cruel treatment of prisoners and who refuses to acknowledge that simulated drowning is a form of torture. Bush has proven that he cannot be trusted to uphold the Conventions, but now they will be in his hands.
With passage of this legislation, Congress has given Bush powers he once usurped - such as imprisoning people without charge. On habeas corpus and other points, the legislation will no doubt be legally challenged. Once again it will be left to the courts of this country to protect the fundamentals of our system of justice.