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No Blank Check


While we’re discussing a need for accountability, there’s a great op-ed in the Baltimore Sun that deserves some discussion today:

Ultimately, the struggle over the Sept. 18 authorization – and how the U.S. fights terrorists in general – is a battle between competing visions of American democracy. The Constitution establishes the courts as a check on power and Congress as a means to oversee, restrain and improve executive conduct. In a radical departure, Mr. Bush rejects that American tradition. He primarily sees Congress and the courts as a barrier to effective national security. (The administration’s 2005 report on National Defense Strategy even predicts American "judicial processes" will become a weapon of choice for our enemies.)

Yet recent history in the fight against terrorists demonstrates the opposite. The vulnerabilities exploited by the 9/11 hijackers came to light only when a congressionally mandated commission scrutinized the executive branch. The Abu Ghraib trials are supposed to advance accountability, legitimacy and order in the military. And recent congressional investigations helped expose the faulty intelligence on weapons of mass destruction and the waste and graft in defense spending.

Five years after Congress authorized force to destroy the perpetrators of 9/11, Osama bin Laden and other al-Qaida leaders remain at large. It is a tragic irony that President Bush spent years embellishing the Sept. 18 authorization to cover new targets and illegal actions, yet failed to catch the enemy the authorization was meant to destroy.

In public and in court, the administration still claims it got a blank check on Sept. 18, 2001. But it is now clear that Congress did not write a blank check – the president forged it. (emphasis mine)

It is worth noting that the sole reason we are even having a discussion about the treatment of prisoners in US custody this week is because the conservative-leaning United States Supreme Court told the Bush Administration "enough."  The GOP-controlled rubber stamp Congress has had more than five years to perform their duty of oversight — but have only stepped into the fray in the small way that they have following the challenge in Hamdan.  Some real commitment to the Constitution and ethics, huh? 

Mary hits the nail on the head with the following:

There is a tremendously larger picture and the door has blown wide open for some minor accomodation on torture and then “rejoicing” over the “victory” as a systemic evisceration of both our criminal justice and military justice codes becomes enshrined.

Graham sees a win/win IMO He can raise this squawk, appease some of his military friends that he is trying to do something, offer up a singleton or deuce area of compromise for the WH to still get all the amnesty it wants and continue with secretive abuses that have no review. But he thinks – hey, Bush won’t be around that long. The military wants to clean up, so it will some as soon as he’s gone and with the amnesty and no judicial review, no habeas, we won’t have to re-live the abuses that have already happened and tarnish the country and military with them.

He just forgets the most central posit of both criminal and military justice – accountability.

Bush has NOT gone with military commissions under the much waved banner (that Graham endorses) that the ideologic confrontation as well as the physical one is a “war” which makes the commissions the “logical” response Instead, he’s gone for this for two reasons.

First is one that has some minor aspects that need review and consideration – but which has been twisted and abused beyond recognition. The issue is that with the kinds of significant, paramilitary attacks/threats posed by some of the “terrorist” groups (and BTW- if someone checks the definitions and lack thereof for what makes a “terroris” group in the US, THERE is a frighteningly vague matter – if there are worries over vagueness) there is a perceived (and possibly/probably real – it’s just the level of depravity of what passes for DOJ’s practice of law in this area leave me with no trust) need to be able to detain someone, even if there has not been a crime that can be pointed to with clarity.

The only place this concept comes to any fruition under our common law heritage – with its strong habeas corpus tradition – is “battlefield” detentions by the military. It is the only place where the ability to detain without charges until a “resolution of conflict” can be found.

So what Bush&Co have done is to declare the world a battlefield, an unending battle against terror, and thereby to justify detention with no charges until the memory of man runneth not to the contrary. That’s where military detention aspects come in. However, standard military justice aspects didn’t give him what he wanted, even there so…

Second concept. I’m CIC, I can make the military do anything I want Throw in CIA as a part of DOD. With this, he has said, by fiat, that he can get rid of the Geneva Conventions requirements

a) for regularly consituted tribunals for trials of charges (what went up on Hamdan) and

b) similar standards for review of status under the conventions (which means, if someone claims they were mistakenly rounded up and are not a “battlefield” or “illegal combatant” detainee – but are, say a civilian or a POW etc.

Now those have been, not only requirements of the Geneva Conventions but of our UCMJ – and Bush just ditched. Entirely. And pretty much wants to continue with that. Not only that, he also went with getting rid of requirements

c) relating to juveniles

d) disallowing tortured and coerced testimony (and big heads up here – this is happening in civil courts as we speak with Salah and Padilla – Padilla just lost round one on exclusions of torture testimony)

e) disallowing hearsay etc (and here, after years, they laughingly use the ‘battlefield’ justification – no one can stop and collect evidence on the battlefield, doncha know – google the combatant status review tribunals and look at the kangaroo court approach for this)

f) requiring that a charged party know the charges and the evidence against them….

The frightening thing is how many of these aspects the Graham Warner bill is willing to keep. To then say,they will compromise with the WH to dilute – that has to just grab you in the gut, even if the torture aspects were not so overwhelming….

But even the Grahams (and I think he absolutely and clearly sees each of these issues – whereas McCain seems to be a relatively clueless figurehead who wants to just keep his gravitas on torture) are primarily concerned with not haveing things come out that will make people look bad – not really about fixing what the President has done. I’m sure he thinks that the military will eventually get around to fixing some of it when Bush is gone.

When has that ever worked for any military – let’s just keep going down an immoral subverted path with no accountability for years, b[ecause] someday will have a better leader and then it will miraculously all be better?

Spot on, excellent rant, Mary. And something that deserved a bigger spotlight than being buried in the comments, so I hope you don’t mind the lengthy quote.

Oh, and speaking of waste and graft in defense spending as mentioned in the above op-ed, Robert Greenwald is having a press conference, along with Sen. Byron Dorgan and Sen. Harry Reid and other Democrats today in Washington DC, regarding his Iraq for Sale documentary on abuses of war profiteering.  Following the presser, there will be a hearing run by Senate Dems. on the issue, taking testimony from former employees of a number of the companies who have had no-bid cost-plus contracts in Iraq for years with little to no (emphasis on the no) oversight from the GOP-controlled rubber stamp Congress.  (Details here.)  We’ll bring you more on this as we get it.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com