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The US Congress is going to effectively legalize torture this week.

Much has been said about the conflict between the "rebel" McCain/Graham/Warner approach and the Bush demands to reinterpret Article 3 of the Geneva Conventions.

McCain went on TV this morning and spoke in reverent terms about not modifying Geneva, leaving the impression that his bill would protect prisoners.

So John, if your bill goes through, does that mean an end to sleep deprivation, stress positions and waterboarding? Errrr, not exactly....

When McCain says that he can accomplish the same objectives without modifying Geneva, what is he talking about? Is he talking about curtailing these practices? Sadly no.

Burried on page 55 of the 84 page proposed McCain bill is this statement:

Except as otherwise noted in this chapter and notwithstanding any other provision of law (including Section 2241 of title 28 or any other habeas corpus provision) no court, justice or judge shall have jurisdiction to hear or consider any cause of action whatsoever, including any action pending on or filed after the date of enactment of this chapter, relating to the prosecution, trial or judgement of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

So, what does this mean? It means that this bill strips these prisoners of their habeas corpus rights.

Hilzoy writes:

It would eliminate the right of any alien who is in US custody outside the US, or who "has been determined by the United States to have been properly detained as an enemy combatant", to file for habeas corpus.

*It would eliminate the right of any such alien to take any legal action against "the United States or its agents" concerning the conditions of his or her detention, other than to appeal the results of Civilian Status Review Commissions or military tribunals.

* Both of these provisions apply to all cases pending when the bill becomes law, which means that any of the cases currently wending their way through the legal system that haven't been resolved by that time become moot.


This is a terrible, terrible bill. What bothers me most is the denial of habeas rights. Denying the right to file for habeas corpus to all people detained outside the US, or who have been found to have been properly detained as an enemy combatant, means that virtually all detainees would have no legal recourse if they felt they had been unjustly imprisoned, or if their legal rights had been violated.

Eliminate their habeas corpus rights. Now, isn't that clever? The bottom line is that this bill would preclude anyone who has been tortured overseas from suing in US courts. When the US tortures someone, it will still be against the Geneva Conventions, there just won't be anything that they can do about it.

Just, "tell it to the judge."  Oh wait, seems like you can't tell it to the judge since you've got no habeas corpus rights. How convenient.

When McCain says he can accomplish the same thing without reinterpreting the Geneva Conventions, he is talking about revoking habeas corpus. Sort of like a "don't ask, don't tell" torture policy. Make no mistake. We are being presented a false choice. Both the Bush and McCain bills will not end torture by the US. They will BOTH effectively legalize it.

Originally posted to MediaFreeze on Sun Sep 17, 2006 at 10:14 AM PDT.

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