Thursday, September 28, 2006

What a Quaint Speech

In a must-read post, Publius puts the words of the President side-by-side against relevant portions of the detainee treatment act. I'd say it's pure gold, if it wasn't so bitter to read.

But read you must. The fate of America's soul lies in the passage or failure of this bill.


Mark said...

The fate of America's soul lies in the passage or failure of this bill.

?! really. That's overstating matters just at tad. I think you'd estimate in our 200 years of history then, we've stained our polis soul beyond recognition just a few times already.

A question for you, you feel that on our decisions re torture and detaining people without habeus lie the "fate of the American soul" (whatever that is). I think there needs to be a distinction between legal and illegal combatants to help insure the safety of civilians. Would it be better in your opinion to summarily execute illegal combatants? If not, how then might we distinguish our treatment of legal and illegal combatants?

David Schraub said...

Easy: Illegal combatants can ipso facto be tried for war crimes. POWs can't (POWs can for specific act, but being an illegal combatant is a crime in of itself). From there, its a difference in how we detain. POW detainment is theoretically not punative--it isn't supposed to be a punishment. Illegal combatant detainment is more akin to prison--its incarceration. Summary execution would be a war crime in of itself (just as it would be a human rights violation if done to criminals). I'd add that torture is also something that we cannot and shouldn't do under the color of law at any time, in any place, in any manner, for any reason--criminals or no. By putting his full-fledged support behind Geneva violations, Bush has sanctioned a particularly vicious form of evil that we should never ask American men and women to commit.

That being said, the words of Stanford Law Professor and detainee law expert Jenny Martinez become all the more critical. She notes that "Holding military commission trials that do not afford basic due process saying that the best way to deter street crime is by subjecting street criminals to kangaroo courts. The necessary deterrence ought to be provided by the ultimate punishment imposed, not by the process itself." [emphasis added]

That's absolutely crucial. The problem I have with the Bush detainee bill isn't that it punishes illegal combatants. The problem is that the bill obliterates protections at the procedural stage--it has very little to do with punishing enemy combatants, and quite a bit to do with determining who is an enemy combatant without any of the normal safeguards we have to prevent innocents from being targeted or mistakenly arrested. It is literally on the administration's say so, and by eliminating habeas review the bill--in a real and visceral sense--represents a repudiation not just of Warren Court cases, not just of the bill of rights, but of the Magna Carta. This takes us back to the 12th century. That's what I mean by America's soul here. I mean if there is one document that we've absolutely held sacred even over debates on every other issue, its that the executive(/King) can't hold someone indefinitely without explanation of cause. By eliminating that protection, we've managed to regress back toward the feudal period. Hooray for us.