About the Wonk
Mission Statement
Member Benefits Privacy Statement
Contact Us
U.S. Government
Government Issues
Weekly Wonk


Originally Published: 9/27/2006


By The Issue Wonk



The recent firestorm in Congress threatens Americans and American values.  The statutes being proposed signal a loss of a way of life  the vision, the great experiment, known as America -- a representative democratic system governed by the rule of law and a document known as the Constitution.  What’s going on is not only appalling, it’s frightening.


There are two (2) changes being jammed through prior to the November elections.  The first and most contentious is what and how much torture of “detainees,” sometimes called “enemy combatants,” will be allowed.  Included in this argument is whether or not they will be extended the right of habeas corpus.  The second is the issue of warrantless surveillance.  These issues are complicated and much as been written about them.  I will only put them in the smallest nutshells I can, but will point you in the direction of more information if you want to delve further into the morass.


The Detainee Issues


Last June the U.S. Supreme Court made a ruling in the Hamden Case.1  It said that Secretary of Defense Donald Rumsfeld and the Bush administration had violated the Geneva Conventions and other international treaties with regard to the treatment and prosecution of detainees in the “war on terror.”  The decision could subject President George W. Bush, Vice President Dick Cheney, Attorney General Alberto Gonzales, and Rumsfeld, along with multiple people down the chain of command, to prosecution as war criminals – in the United States and in the United Nation’s International Criminal Court (ICC).  The seriousness of the implications was noted by Smith:2  “CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.”  [Emphasis added.]


Just how concerned is the Bush administration about this decision?  A conference call between Brian Roehrkasse at the Justice Department and a “Senior Administration Official” tells the tale.  Roehrkasse said, “. . . the Supreme Court’s holding indicates the military commissions, as currently constituted by DOD, while robust in affording enemy combatants more process than this or any other country has ever afforded enemy combatants, are not consistent with current congressional statutes, especially the UCMJ (Uniform Code of Military Justice) and treaty provisions, Common Article 3.”  So, they broke U.S. law, the UCMJ, and the treaty.


The Hamdan case encompassed two (2) main issues:  the use of torture and the right of habeas corpus.


The Use of Torture.  Last year Congress passed the Detainee Treatment Act which bans "cruel, inhuman or degrading treatment."  According to the agreement the Senate cut with Bush last week, that Act will now satisfy the obligations of the United States under the Geneva Conventions.  If you remember, Bush attached a Signing Statement to this bill saying he'll comply if he wants to.  Under his “agreement” last week with the Senate, Bush didn't agree NOT to re-interpret the Geneva Conventions, but the senators agreed that the War Crimes Act should define what constitutes "grave breaches" of the conventions that could be prosecuted as war crimes and stipulated that the president could decide on his own what actions might be a lesser breach of the Geneva Conventions and what interrogation techniques he considered permissible.  As for less serious violations of the conventions, the senators agreed Bush should be given the authority to judge the conventions' "meaning and application."3  The senators also agreed to Bush's proposal to make the standard on interrogation treatment retroactive to 1997, so no one could be prosecuted for past treatment.  You ever heard of a retroactive law?4


Finally, there has been an argument for years over whether evidence obtained through torture can be used at a trial.  It has been Bush’s position that it can be and it appears that this bill will allow it.


Habeas Corpus.  This is a Latin term which literally means “you have the body” or “produce the body.”  According to the ‘Lectric Law Library:


Prisoners often seek release by filing a petition for a writ of habeas corpus.  A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.  A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment.


Articles 38 and 39 of the Magna Carta (from the year of 1215) established the foundation for the rule of habeas corpus.  The British Library has a translation of the entire Magna Carta.  Articles 38 and 39 state:


38)  In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.


39)  No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.


This concept led directly to the 4th through the 8th Amendments of our Constitution.


Bush and the Senate agreed that the bill would strip detainees of their right to file an application for a writ of habeas corpus.  In addition, Bush wanted to withhold evidence against the detainees because such evidence would necessarily be “national secrets.”  The agreement he reached with the Senate was that they would be able to see the evidence in “summary or redacted form.”5


Even more frightening is the definition of “enemy combatants.”  Bush and the Senate last week agreed that enemy combatants would be defined as those who have “engaged in hostilities.”  However, the latest draft legislation expands the definition to include those who have “supported hostilities.”  This new language “does not rule out the possibility” that the designation could be applied to a U.S. citizen.6


Illegal Surveillance


About six (6) weeks after the Hamdan decision, Federal Judge Anna Diggs Taylor ruled that Bush and his administration had committed numerous felonies with regard to wiretapping American citizens without a legal warrant, including violating the Foreign Intelligence Surveillance Act (FISA) and violating the Constitution.7


Earlier this month Senator Arlen Specter (R, PA) proposed a bill that would allow, but not require, Bush to submit his warrantless wiretapping program to the FISA Court for constitutional review.  The president would not have to make known the decision of that review.  Several senators objected.8  Now it looks like it will go through.9


The Congressional Budget Office, in its estimate of the cost of the bill, states:


HR 5825 would modify the rules and procedures the government must follow to use electronic surveillance programs in the investigation of international terrorism.  The bill would amend the definition of electronic surveillance under the Foreign Intelligence Surveillance Act (FISA) to remove the current distinction between treatment of wire and radio communications, and to focus FISA protections on domestic communications.  The bill also would expand the ability of the government to conduct electronic surveillance without a warrant in certain cases where the target of the surveillance is an agent of a foreign power.  [Emphasis added.]


I have been unable to locate any definition of “agent of a foreign power.”




Is the president afraid the Republicans will lose control of Congress and he won’t be able to push these abominations through?  Maybe.  Is he afraid of prosecution?  Again, maybe.  There has been much speculation about his reasons for seeking these changes, as well as much speculation about why Congress is willing to go along with them.  Speculation is useless.  It doesn’t matter why the president and Congress want to do these things.  They can’t be allowed.




1  Hamdan v. Rumsfeld, et al.  No. 05-184, decided June 29, 2006.  U.S. Supreme Court.


2  Smith, R. Jeffrey.  Worried CIA Officers Buy Legal Insurance:  Plans Fund Defense In Anti-Terror Cases.  The Washington Post, September 11, 2006.


3  Zernike, Kate.  Top Republicans Reach an Accord on Detainee Bill.  The New York Times, September 22, 2006.


4 The International Criminal Court was established in 2002 as “a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes, as defined by several international agreements . . .”  (Wikipedia)  Work began on the establishment of this court in 1994.  In 1998 the first statute was adopted.  I’m no expert on this, and if anyone has any information I’d love to see it.  But my understanding is that since this was adopted in 1998, no crimes committed prior to that date could be prosecuted in the ICC.  Thus, by making our law retroactive to 1997, the Bush administration is protected from any crimes that could be prosecuted under the ICC statute.  However, others are saying that the 1997 date is meant to circumscribe the War Crimes Act, which was passed in 1996.


5 Smith, R. Jeffrey & Babington, Charles.  White House, Senators Near Pact on Interrogation Rules:  President Would Have a Voice in How Detainees are Questioned.  The Washington Post, September 22, 2006.


6 Smith, R. Jeffrey.  Detainee Measure to Have Fewer Restrictions:  White House Reaches Accord With Lawmakers.  The Washington Post, September 26, 2006.


7 ACLU, et al. v. NSA, et al.  No. 06-CV-10204, decided August 17, 2006.  U.S. District Court for the Eastern District of Michigan, Southern Division.


8 Asthana, Anushka & DeYoung, Karen.  Bush Calls for Greater Wiretap Authority:  President Says Power is Needed for Threat.  The Washington Post, September 8, 2006.


9 Weisman, Jonathan.  Wiretap Bill Moves Closer to Passage:  After Changes, Senate Holdouts Pledge Support.  The Washington Post, September 26, 2006.



© The Issue Wonk, 2006


Facebook Twitter Linkedin

Subscribe to the
Weekly Wonk:

Email Address

This Is CAPTCHA Image



Forest Books Facebook Page
Click here to visit my facebook page.
Please follow me on Twitter

© Copyright 2006-19 - The Issue Wonk™
The Issue Wonk, Inc. - All Rights Reserved