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November 20, 2006

A move to reinstate normal legal procedures
Posted by Teresa at 05:26 PM * 67 comments

Via Newsrack Blog, Senator Chris Dodd (D-CT) has introduced a bill—formerly called the Effective Terrorists Prosecution Act, now called the Military Commission Civil Liberties Restoration Act—that would get rid of many of the worst features of the Military Commissions Act.

As the reader will undoubtedly recall, the MCA permitted the use of trial procedures that literally wouldn’t be allowed by the Inquisition. Here’s what Sen. Dodds’ bill would do:

* Restore Habeas Corpus protections to detainees.
* Narrow the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants.
* Bar information gained through coercion from being introduced as evidence in trials.
* Empower military judges to exclude hearsay evidence they deem to be unreliable.
* Authorize the US Court of Appeals for the Armed Forces to review decisions by the Military Commissions.
* Limit the authority of the President to interpret the meaning and application of the Geneva Conventions, and make that authority subject to congressional and judicial oversight.
* Provide for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionality of its provisions.
According to Jeralyn Merritt of TalkLeft, “The bill will be one of the first things taken up by the new Senate Judiciary Committee when it meets in January.”

It can’t happen too soon to suit me. It would be a huge relief to go back to having a legal system where an individual held in custody can challenge the propriety of that custody under the law; where you can’t label someone an unlawful enemy combatant unless they actually are one; where hearsay evidence, and evidence obtained under torture, are not recognized as evidence at all; where judicial proceedings are subject to judicial review; and where George W. Bush doesn’t get to single-handedly dictate what the Geneva Conventions say and who’s subject to them.

Comments on A move to reinstate normal legal procedures:
#1 ::: Tom Whitmore ::: (view all by) ::: November 20, 2006, 07:19 PM:

And how may we best support this act? Calling our congresscritters, House or Senate? Going out and carrying banners about it?

I completely agree that I'd like to see this one get passed. And watch GWB veto it. And watch the veto get overridden.

There's political theater!

#2 ::: poopy pants ::: (view all by) ::: November 20, 2006, 07:20 PM:

Thanks, Teresa:
I'll be calling my Congresspeople to demand that they take this up. I urge everybody to do the same, and educate everyone you know about how important this is.

I'm amazed by the complacency of the American public (not y'all here--although some of you defending the UCLA cops I found unpalatable).

#3 ::: Teresa Nielsen Hayden ::: (view all by) ::: November 20, 2006, 07:23 PM:

They're allowed, P.P., as long as they're engaged and reasonably civil.

#4 ::: Lylassandra ::: (view all by) ::: November 20, 2006, 07:48 PM:

"Congresscritters." I like it. And it's off to their respective webpages I go...

Though I don't mean to be a wet blanket when I say that the cynic in me dourly predicts this changing nothing.

But hey, there's always hope.

#5 ::: Greg London ::: (view all by) ::: November 20, 2006, 07:51 PM:

You can contact your congress through this link.

Feel free to call them a coward while you're there.

#6 ::: Steve Buchheit ::: (view all by) ::: November 20, 2006, 08:01 PM:

Just a hint, if you call your congresscritter's office, ask to speak to the person who advises the congresscritter on military/legal issues if you get resistance to do anything but leave a message.

#7 ::: beth meacham ::: (view all by) ::: November 20, 2006, 08:26 PM:

Actually, I suggest that you wait until the new Congress is sworn in, if you have a new representative.

#8 ::: Paula Lieberman ::: (view all by) ::: November 20, 2006, 08:35 PM:

I've been calling them Congresscritters for many years...

#9 ::: P J Evans ::: (view all by) ::: November 20, 2006, 09:00 PM:

My congresscritter this year is Waxman. I don't think he needs much additional encouragement. (Cheering section, maybe.)

#10 ::: Fragano Ledgister ::: (view all by) ::: November 20, 2006, 10:31 PM:

A better title would be 'Rule of Law Restoration Act', but that's just my opinion.

#11 ::: Aconite ::: (view all by) ::: November 20, 2006, 10:40 PM:

I will be cynical later. Right now my heart needs the lift this gave me.

It's not too soon to start encouraging your newly elected (but not yet seated) Congresscritters to get behind this bill. Send a message that this is one of the changes you voted them in for. Early momentum is a good thing. /soapbox

#12 ::: Matthew ::: (view all by) ::: November 20, 2006, 10:45 PM:

Anyone know where you can view the record of who voted for and against the Military Commissions Act? I'm trying to figure out how many votes we'd need to swing to override Bush's veto of the new bill, and that seems like a good starting place.

#13 ::: Tania ::: (view all by) ::: November 20, 2006, 11:25 PM:

Matthew - I think this would be what you're looking for.


#14 ::: Xopher ::: (view all by) ::: November 20, 2006, 11:48 PM:

Unfortunately...more people will vote for a bill than will vote to override the President's veto of the same bill. And a bunch of Democrats (in name, anyway) voted for the Torture Bill, which leads me to believe they won't vote to repeal it.

#15 ::: Aliza ::: (view all by) ::: November 21, 2006, 12:22 AM:

My Rep. is Eshoo. I assume she'll be a co-sponsor to the House version of this bill.

And I've been hearing "Congresscritters" for years. :-)

I'm glad to know that our Constitution isn't dead.

#16 ::: Tom Whitmore ::: (view all by) ::: November 21, 2006, 12:24 AM:

Some of that depends on pressure, Xopher.

And if it wasn't Walt Kelly who first used the term congresscritters, it should have been. And I'll credit it to him until I hear otherwise.

#17 ::: Tania ::: (view all by) ::: November 21, 2006, 12:42 AM:

Re: me @ 13: I forgot to include the House roll call.

Enjoy this too!

#18 ::: Don Fitch ::: (view all by) ::: November 21, 2006, 12:52 AM:

It would be ... interesting if this were to pass over the President's Veto. If it doesn't, we can hope it'll make it in a bit over two years. Taking longer than that would be evidence that the UA is down the tubes.

#19 ::: Linkmeister ::: (view all by) ::: November 21, 2006, 01:14 AM:

I think "congresscritter" originated with Walt Kelly and Pogo.

Even if Bush vetos this bill and the votes aren't there to override, the good guys have to get smarter about using the media to explain why it's necessary to do this.

#20 ::: Xopher ::: (view all by) ::: November 21, 2006, 01:28 AM:

My Rep. is Eshoo.

Gesundheit. Now, you were about to tell us the name of your rep?

#21 ::: Matt Austern ::: (view all by) ::: November 21, 2006, 01:32 AM:

She's going to be my rep soon too. She's not my favorite Bay Area rep, and I'm a little sorry to be leaving Pete Stark's district, but Eshoo is quite reasonable. I don't expect that either Stark or Eshoo will need any encouragement to do the right thing on this bill. I wish I could say the same of both of my Senators.

#22 ::: Jen Roth ::: (view all by) ::: November 21, 2006, 01:35 AM:

I'm sure my senators (Durbin and Obama) will vote for this, but I'll write to let them know they've got support back home.

I'm sure my representative won't vote for this, but I'll write to remind him that, contra the local rag's endorsement of him, torture and denial of civil liberties are out of step with the values of at least some people in this district.

#23 ::: RuTemple ::: (view all by) ::: November 21, 2006, 02:39 AM:

I haven't got the exact citation for you, but I did learn to read out of my father's collection of Pogo books, and will also affirm that the term "congresscritter" very most likely did originate with mister Walt Kelly, as did the timeless rant:

"If I could only write, I'd send a letter to the Mayor, if he could only read!"
I do believe congresscritter may have appeared in a variant on the above.

A return to the rule of law, who'd ha' thunk it'd come again so soon? Can't be soon enough.

#24 ::: Tom Scudder ::: (view all by) ::: November 21, 2006, 03:33 AM:

I think "the Great Charter" has a certain ring to it.

#25 ::: Del Cotter ::: (view all by) ::: November 21, 2006, 05:07 AM:

I've always associated the popularity of "congresscritter" with Republicans trying to belittle Representatives when the House majority was Democratic, in the way Jerry Pournelle's essays used to call the President "Carter" before 1980, and "the President" afterward. If I'm right, then some readers only just seeing the word for the first time would suggest it went into a relative hiatus from 1994 to 2006.

#26 ::: A.R.Yngve ::: (view all by) ::: November 21, 2006, 07:41 AM:

Congressmen (Congresspersons?) may be critters, but American citizens elected them... and can put pressure on them.

I'm not American so I can't do that for you. On behalf of Scandinavians, I implore you to write to your Congressmen, and express your support for the Civil Liberties Restoration Act.

#27 ::: albatross ::: (view all by) ::: November 21, 2006, 09:04 AM:

I've seen congresscritters for years, without any obvious party affiliation being attached either to the speaker or to the critter in question.

#28 ::: Serge ::: (view all by) ::: November 21, 2006, 09:05 AM:

I read what Susan's senator with a spine is about to do and it restores some of my faith in my America. It brings to mind what Tom Tomorrow wrote soon after the Election...

...It's as if the biopsy results just came back and you don't have cancer after all. You're not giddy, exactly, but you can finally take a deep breath and maybe let some of the tension drain out of your shoulders. The future remains uncertain but you can begin to imagine it as something other than relentlessly bleak...

#29 ::: John Stanning ::: (view all by) ::: November 21, 2006, 09:10 AM:

I'd expect an anti-Dodd campaign from the Dark Side. Surely they'll try to discredit him by claiming that he hasn't paid his taxes, his maid's an illegal immigrant, his bill will kill our solders, Osama's on his speed-dial list, etc. Any sign of that yet?

#31 ::: Serge ::: (view all by) ::: November 21, 2006, 09:39 AM:

an anti-Dodd campaign from the Dark Side

John... They once conflated Saddam Hussein with Osama bin Laden. How long before they try the same trick with Dodd? Before you know it, people will think that he is Elwood P. Dowd and that his best friend is an invisible 7-foot tall rabbit named Harvey.

#32 ::: Serge ::: (view all by) ::: November 21, 2006, 10:16 AM:

And here is Tom Tomorrow's response to those who accuse us of being defeatocrats. It reminds me of when I posted here about how Irwin Allen's Time Tunnel had cost a monstrous $7,000,000,000 - or what the War is now costing us for about one month.

#33 ::: Chris ::: (view all by) ::: November 21, 2006, 10:28 AM:

You people predicting a veto are all a bunch of optimists. My money's on signing statement. (Well, ok, my rhetoric. After six years of one-party Republican rule - steady inflation and no wage increases - I haven't got any money.) Nobody's bothered to call him on them yet, so why shouldn't he keep going with what works?

#34 ::: Jon Sobel ::: (view all by) ::: November 21, 2006, 10:40 AM:

I think, with the new Congress, the teeth will be taken out of those signing statements even if Shrub keeps making 'em.

#35 ::: James D. Macdonald ::: (view all by) ::: November 21, 2006, 10:43 AM:

So, pass a law. Let Bush make a signing statement. Let him break the law. Impeach him. Drag him off in handcuffs to the Hague. It's all good.

#36 ::: Thomas Nephew ::: (view all by) ::: November 21, 2006, 11:11 AM:

Thanks for spreading the news, Teresa. I've found an 11/16 article in "The Hill" confirming Ms. Merritt's note about consideration in January. That article points out Dodd's bill had no co-sponsors yet, something we might focus on in any messages to Senate congresscritters.

#37 ::: Dave Luckett ::: (view all by) ::: November 21, 2006, 12:05 PM:

Would someone take pity on the ignorance of a foreigner? What is a signing statement, and does it amount to saying, 'I'm signing this thing, but I ain't going to enforce it?'

#38 ::: P J Evans ::: (view all by) ::: November 21, 2006, 12:09 PM:

Dave Luckett @ 37

Yes to both. It's actually intended as a way for the President to say "this is what I understand this law to mean" rather than "I'm going to ignore this law".

#39 ::: Lizzy L ::: (view all by) ::: November 21, 2006, 12:12 PM:

A sign of returning which I confess I wasn't sure we would ever see, especially if the far right got its permanent Republican tyranny.

I have found that calling one's Senators, saying "I am a constituent and I vote" and expressing one's hope that the Senator will support a particular piece of legislation, has a good chance of making a difference. Dianne Feinstein voted against the confirmation of Alito; I am certain that she would not have voted that way had she not received a shitload of calls from Californians making it very clear that they did not want her to vote for him. I have no doubt that Barbara Boxer will support this bill and I plan to call DiFi soonest to urge her to do so as well.

Serge at 28, thanks for that quote from Tom Tomorrow. It's a good one.

#40 ::: FungiFromYuggoth ::: (view all by) ::: November 21, 2006, 12:34 PM:

Dave Luckett - don't feel bad that you don't know what signing statements are, they've never mattered before.

Presidential signing statements have been used by other presidents to complain, spin, explain, or issue instructions for execution.

During the Reagan administration, one Samuel A. Alito came up with the idea of "interpretive signing statements". When courts interpret a law, they take into account what Congress said and considered when the court rules on the intent of the law. Alito suggested that the President get his two cents in and create a sort of executive legislative history for the courts to use in interpreting new laws.

Bush has gone well past that and is using signing statements to effectively negate objectionable language, giving him a stealth line-item veto. John Dean and others have written about the abuses of power in Bush's signing statements.

We've also had legislators attempting to generate a false legislative history in order to influence the judicial interpretation of a new law, but that's a separate matter.

#41 ::: Xopher ::: (view all by) ::: November 21, 2006, 01:22 PM:

It's worse than that. Bush has signed bills and used signing statements to openly declare that he has no intention of following the law contained in them.

That's why he's an oathbreaker and a traitor.

#42 ::: Anticorium ::: (view all by) ::: November 21, 2006, 01:36 PM:

Serge @ #32:

See also Bob the Angry Flower.

#43 ::: Madison Guy ::: (view all by) ::: November 21, 2006, 01:55 PM:

Yes, of course the Dodd bill is vitally important and action on it needs to be forthcoming -- as long as Democrats don't let their love of process blind them to the big picture. The monster isn't dead yet, and thrives on moving forward while others debate the fine print. We need to make sure the "go long" option -- or even the "go big" option -- in Iraq doesn't segue right into "go on" to Iran ...

Tank of gas: too much.
Prescription refill: too much.
Iraq war: WAY too much.
Dick Cheney on bending the rules: priceless.

According to Sy Hersh in the New Yorker, Cheney and his neocon colleagues still hope to hit Iran with a military strike despite a Democratic Congress, and may have the means to pull it off. What do we have to do to keep him from pursuing a military option in Iran? Drive a wooden stake through his heart?

#44 ::: Aconite ::: (view all by) ::: November 21, 2006, 02:02 PM:

Madison Guy: What do we have to do to keep him from pursuing a military option in Iran? Drive a wooden stake through his heart?

The problem is finding the damned thing first, since he keeps it in a box.

What, you thought heart surgery was to repair it?

#45 ::: Dave Bell ::: (view all by) ::: November 21, 2006, 02:18 PM:

Isn't the plot about the evil Grand Vizier who can't be killed, because his heart is hidden somewhere, out of the Arabian Nights, or one of those Hollywood-Arabian movies that had Sinbad in it somewhere.?

No wonder Cheney is scared of Arabs.

#46 ::: Serge ::: (view all by) ::: November 21, 2006, 02:19 PM:

Anticorium... That is one angry flower.

#47 ::: Serge ::: (view all by) ::: November 21, 2006, 02:22 PM:

You're welcome, Lizzy L... One could amend Tom Tomorrow's comment to say that it's as if you did have cancer, but it was stopped before it could metastasize. To realize how bleak things looked even two years ago, go to the last chapter of John Le Carre's Absolute Friends for how unstoppable the wingnut juggernaut seemed back then.

#48 ::: Chris ::: (view all by) ::: November 21, 2006, 04:16 PM:
It's worse than that. Bush has signed bills and used signing statements to openly declare that he has no intention of following the law contained in them.

That's why he's an oathbreaker and a traitor.

True, but unless you can get 2/3 of the Senate to vote to convict, impeachment is pointless and he gets to keep on breaking his oaths for about 25 more months. And 49 of our current Senators would find some way to make excuses for Bush if he beheaded a two-year-old on live national TV, so little things like torturing innocent people in violation of federal and international laws aren't going anywhere.

(The sad thing is that that would not actually be worse than what Bush has already done, just more obvious. Killing 600,000 people of various ages is worse than killing one child, and the person who gives the orders is just as culpable as the person who pulls the trigger.)

Meanwhile, I think the Supreme Court has already ruled that signing statements have no legal validity; the law is what it is, not what the President says it is (and if anyone's intent matters, it is the legislative branch's). But how many divisions do *they* have? All the law enforcement agencies work for the President.

#49 ::: mds ::: (view all by) ::: November 21, 2006, 04:47 PM:

So, pass a law. Let Bush make a signing statement. Let him break the law. Impeach him. Drag him off in handcuffs to the Hague. It's all good.

Well, Lieberman has defended our right to torture, so I don't actually expect him to vote in favor of weakening our arsenal in the war on terror. Even if the rest of the caucus stays together (which I doubt; I don't think Nelson of NE has met a single Constitution-shredding bill he doesn't like), that would be 50-50, with VP Cheney casting the deciding vote to keep Democrats from tying our hands by giving special rights to terrorists. So (1) this won't pass; and (2) this will be treated the same way as the NSA wiretapping in the media, as Democrats trying to protect terrorists. On the bright side, having it voted down in the Senate keeps us from provoking that Constitutional crisis that's waiting in the wings... until Congressional Democrats try to issue subpoenas to anyone in the White House.

Meh, I dunno, I'm just gloomy today. If I see one more reference to the crucial topic of how Speaker-elect Pelosi is a "shrew" who's overly Botoxed, I'm going on a pinching spree.

#50 ::: Serge ::: (view all by) ::: November 21, 2006, 04:54 PM:

If Pelosi is the shrew, who is Petruchio?

#51 ::: fidelio ::: (view all by) ::: November 21, 2006, 07:32 PM:

One piece of guarded optimism here--this vote, unlike the last, need not be right before an election, where Karl Rove can use it to paint the congresscritters concerned as weak on terror. Also, Rove's not looking as genius as he used to, and a lot of people are tired of being ranted at. If explained the right way, it might be possible to get more votes for the rightthing this time around--including some Republican ones, from people who are fed up with the Shrub.

#52 ::: David Goldfarb ::: (view all by) ::: November 22, 2006, 01:45 AM:

Serge at 47: To see how bleak things looked two years ago, just go look at Teresa's comment after that election:

225 years is a pretty good run for a republic, historically speaking.

I must say that I was extremely heartened this year to see Democrats winning close races.

#53 ::: Nancy Lebovitz ::: (view all by) ::: November 22, 2006, 06:04 AM:

I'm very pleased to see that we've got people in Congress who know what's worth pushing for, and I hope they get it.

The next step will be a commission or somesuch to *find* all the prisoners being held in secret. This isn't going to be easy.

#54 ::: Anon ::: (view all by) ::: November 22, 2006, 10:14 AM:

"Effective Terrorists Prosecution Act" -- gee, I wonder why they changed the name. Probably because someone saw the ambiguity. "If you're an effective terrorist, watch out; but if you're one of those ineffective ones, hey, we'll let it slide."

#55 ::: James D. Macdonald ::: (view all by) ::: November 22, 2006, 10:16 AM:
The United Nations today said 3,709 Iraqi civilians were killed in October, the highest monthly toll since the March 2003 U.S. invasion. "Hundreds of bodies continued to appear in different areas of Baghdad handcuffed, blindfolded and bearing signs of torture and execution-style killing," the U.N. Assistance Mission for Iraq report said.
#56 ::: Serge ::: (view all by) ::: November 22, 2006, 10:34 AM:

David Goldfarb at #52 wrote: I must say that I was extremely heartened this year to see Democrats winning close races.

Me too, David. And it'll never be too early for a Democrat to get back into the Oval Office and to begin cleaning up the mess left by the bums.

#57 ::: ajay ::: (view all by) ::: November 22, 2006, 10:37 AM:

"If you're an effective terrorist, watch out; but if you're one of those ineffective ones, hey, we'll let it slide."

"If we have to have crime, it might as well be organised crime" - Havelock, Lord Vetinari.

#58 ::: Joe J ::: (view all by) ::: November 22, 2006, 11:15 AM:

I had a thought about the situation with Bush not too long ago. I realized that the reason that people aren't clamoring to have him impeached is that (and I know this sounds odd) he has not been impeached yet.

I think most people have an inherent faith in the law. What's more, they imagine that someone who breaks the law will naturally be caught by law enforcement officers of some kind. It's the CSI effect. No one escapes. The guilty are punished. Always. Even the bad rich guys get punished in popular drama. In this worldview, justice is eternal and universal. It?s impossible to think that the bad guys could get away with it.

Since Bush hasn't been punished for anything he has done, many people just assume that he hasn't done anything wrong. No punishment = no crime. If he had done something really wrong, well, someone would have done something to stop him? right? They figure that someone has to be watching the watchmen.

The nice thing now is that it may finally be true that someone is.

#59 ::: albatross ::: (view all by) ::: November 22, 2006, 02:25 PM:

I thought it was because some large fraction of people actually didn't want Bush impeached. Running secret prisons, torturing terrorism suspects, wiretapping anyone the NSA or Karl Rove happens to think poses a national security risk, those things all make most of us commenting on the blog want to see Bush impeached. But they don't really upset the majority of people the same way.

I wish this were different, but things are what they are. Screwing up the response to Katrina (or being in charge when the response was screwed up, which amounts to the same thing) hurt Bush. Continued scandals hurt Bush and the Republicans. The fact that Iraq is becoming transparently more of a disaster every day hurt Bush and the Republicans. But without those things, torture, wiretaps, and secret prisons, extraordinary renditition and Guantanamo Bay and Jose Padilla all put together would be worth less than a good run of 30 second attack ads and a few homeless guys handing out fake "Democratic" voting guides.

I don't understand military stuff well enough to critique some of the predictions on this blog about potential military disasters in Iraq. But if we suffer one of those disasters, Bush will very likely either resign or be impeached.

#60 ::: albatross ::: (view all by) ::: November 22, 2006, 02:27 PM:

#57 ajay:

I think those British bomb plotters with the Gatorade bottles were arrested under the Ineffective Terrorists Prosecution Act.

#61 ::: albatross ::: (view all by) ::: November 22, 2006, 02:34 PM:

Jerry Pournelle (not a bastion of liberal thought!) keeps pointing out that for the cost of this war, we could have built enough nuclear plants to enormously decrease our current dependence on foreign oil, and could also have funded alternative fuel research to eventually get us entirely off the stuff.

The worst thing about this war to me is that it doesn't address the actual threat. 9/11 wasn't about random Arab muslims, it wasn't even primarily about Islamic fundamentalists. It was about asymmetric warfare, and the way technology and social forces have combined to make that kind of warfare much more dangerous. I don't think anyone has much of an idea how to address this. But invading Iraq wasn't it, and anyone with half a brain should have been able to see that up front. Attacks with no known return address require you to harden *everything* to resist them, rather than leaving your normal society easy to attack, but making it clear that you'll invade, bomb, or nuke anyone who exploits that.

#62 ::: CHip ::: (view all by) ::: November 22, 2006, 11:36 PM:

Dave L (et al): Bush's handlers are a bit more subtle than that; they have Bush say that the [mere] law conflicts with his -"constitutional duties as Commander in Chief"- and is therefore void. This on the grounds that the Constitution can be overruled only by amendment (which is what it took for, e.g., income tax, and direct election of senators) or by the Supreme Court -- which Bush has stacked, and which (as a previous overruled President pointed out) has no enforcement powers even if it does rule against him.

#63 ::: steve ::: (view all by) ::: November 23, 2006, 12:04 AM:

#61 It is not a difficult calculation to do. By my own calculation, the $1000 billion spent on Iraq would buy 50,000 MW of generating capacity. These plants would be able to generate more electrical power in a year than the work done by all the gasoline engines of automobiles in a year. Had we built nuclear power generation plants instead of invading Iraq, mideast oil would not be relevant as a strategic resource. We could have gone a good portion of the same distance (1/3 -1/2) with a combination of wind and solar.

Restoring a right no Anglophone society has ever before permanently been without seems like a no-brainer to me. When Bush vetoes it, I would hope that he might be successfully portrayed as Neanderthal who simply tried to restore the divine right of kings and who came frightfully close to succeeding.

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