“A Total Rollback Of Everything This Country Has Stood For”
September 29, 2006
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The Senate has agreed to give President Bush extraordinary power to detain and try prisoners in the so-called war on terror. The legislation strips detainees of the right to challenge their own detention and gives the President the power to detain them indefinitely. The bill also immunizes U.S. officials from prosecution for torturing detainees who the military and the CIA captured before the end of last year. We get reaction from Senator Patrick Leahy (D-Vt.) and Michael Ratner of the Center for Constitutional Rights.
On Capitol Hill, the Senate has agreed to give President Bush extraordinary power to detain and try prisoners in the so-called war on terror. The editors of the New York Times described the law as tyrannical. They said its passage marks a low point in American democracy and that it is our generation’s version of the Alien and Sedition Acts. The legislation strips detainees of the right to file habeas corpus petitions to challenge their own detention or treatment. It gives the president the power to indefinitely detain anyone it deems to have provided material support to anti-U.S. hostilities. Secret and coerced evidence could be used to try detainees held in U.S. military prisons. The bill also immunizes U.S. officials from prosecution for torturing detainees who the military and the CIA captured before the end of last year.
The Senate passed the measure sixty five to thirty four. Twelve Democrats joined the Republican majority. The House passed virtually the same legislation on Wednesday. Legal groups, including the Center for Constitutional Rights, are already preparing to challenge the constitutionality of the law in court.
* Sen. Patrick Leahy (D-Vt.). Ranking member on the Senate Judiciary Committee. See Senator Leahy’s statement on the detainee bill here.
* Michael Ratner. President of the Center for Constitutional Rights.
AMY GOODMAN: On Thursday, Democratic Senator Patrick Leahy of Vermont condemned the legislation from the floor of the Senate.
SEN. PATRICK LEAHY: It grieves me to think that three decades in this body that I stand here in the Senate, knowing that we’re thinking of doing this. It is so wrong. It is unconstitutional. It is un-American. It is designed to ensure the Bush-Cheney administration will never again be embarrassed by a United States Supreme Court decision reviewing its unlawful abuses of power. The Supreme Court said, ‘You abused your power.’ He said, ‘Ha, we’ll fix that. We have a rubber stamp, a rubber stamp, Congress, that will just set that aside and give us power that nobody, no king or anybody else set foot in this land, ever thought of having.’
AMY GOODMAN: Democratic Senator Patrick Leahy speaking Thursday prior to the vote. He joins us now on the telephone. Welcome to Democracy Now!
SEN. PATRICK LEAHY: Thank you. It’s good to be with you.
AMY GOODMAN: It’s good to have you with us, Senator. Now, if you could explain exactly what this bill that the Senate has just approved with a number of Democrats joining with the Republicans, what exactly it does.
SEN. PATRICK LEAHY: First off, as you probably gathered from what I was saying on the floor, it’s a terrible bill. It removes as many checks and balances as possible so that any president can basically set the law, determine what laws they’ll follow and what laws they’ll break and not have anybody be able to question them on it.
In this case, the particular section I was speaking about at that point was the so-called habeas protection. Now, habeas corpus was first brought in the Magna Carta in the 1200s. It’s been a tenet of our rights as Americans. And what they’re saying is that if you’re an alien, even if you’re in the United States legally, a legal alien, may have been here ten years, fifteen years, twenty years legally, if a determination is made by anybody in the executive that you may be a threat, they can hold you indefinitely, they could put you in Guantánamo, not bring any charges, not allow you to have a lawyer, not allow you to ever question what they’ve done, even in cases, as they now acknowledge, where they have large numbers of people in Guantánamo who are there by mistake, that they put you — say you’re a college professor who has written on Islam or for whatever reason, and they lock you up. You’re not even allowed to question it. You’re not allowed to have a lawyer, not allowed to say, “Wait a minute, you’ve got the wrong person. Or you’ve got — the one you’re looking for, their name is spelled similar to mine, but it’s not me.” It makes no difference. You have no recourse whatsoever.
This goes so much against everything we’ve ever done. Now, we’ve had some on the other side say, ‘Well, they’re trying to give rights to terrorists.’ No, we’re just saying that the United States will follow the rules it has before and will protect rights of people. We’re not giving any new rights. We’re just saying that if, for example, if you picked up the wrong person, you at least have a chance to get somebody independent to make that judgment.
AMY GOODMAN: Senator Leahy, on this issue of habeas corpus, I want to play a clip from yesterday’s Senate debate and have you respond. This is Republican Senator Jeff Sessions of Alabama.
SEN. JEFF SESSIONS: It was never, ever, ever, ever intended or imagined that during the War of 1812, that it British soldiers were captured burning of the Capitol of the United States, as they did, that they would have been given habeas corpus rights. It was never thought to be. habeas corpus was applied to citizens, really, at that time, and I believe that that’s so plain as to be without dispute.
AMY GOODMAN: Republican Senator Jeff Sessions. Senator Leahy, your response.
SEN. PATRICK LEAHY: Well, I wish it was as plain as he says. Of course, in the Hamdan decision, the U.S. Supreme Court has made it very clear that it is available in somebody captured. In a case like what he was talking about, if somebody had been captured there and held in prison, and they said, “You have the wrong person,” they could at least raise it. And you also have, of course, under the Constitution, that habeas can be suspended if there is an invasion, if there is an insurrection. We have neither case here. Even the most conservative Republican legal thinkers have said this is not a case to suspend habeas corpus.
You know, they can set up all the straw men they want, but the fact is this allows the Bush administration to act totally arbitrarily with no court or anybody else to raise any questions about it. It allows them to cover up any mistakes they make. And this goes beyond just marking everything “secret,” as they do now. Every mistake they make, they just mark it “secret.” But this is even worse. This means somebody could be locked up for five years, ten years, fifteen years, twenty years. They have the wrong person, and they have no rights to be able to say, “Hey guys, you’ve got the wrong person.” It goes against everything that we’ve done as Americans.
You know, when things like this were done during the Cold War in some of the Iron Curtain countries, I remember all the speeches on the Senate floor, Democrats and Republicans alike saying, “How horrible this is! Thank God we don’t do things like this in America.” I wish they’d go back and listen to some of their speeches at that time.
AMY GOODMAN: Senator Leahy, this was not a close vote: 65 to 34. The twelve Democrats who joined with the Republicans, except for Senator Chafee of Rhode Island, the twelve Democrats are Tom Carper of Delaware, Tim Johnson of South Dakota, Mary Landrieu of Louisiana, Frank Lautenberg of New Jersey, as well as Senator Menendez of New Jersey, Bill Nelson of Florida, Ben Nelson of Nebraska, Senator Pryor of Arkansas, Jay Rockefeller of West Virginia, Ken Salazar of Colorado, Debbie Stabenow of Michigan and Joseph Lieberman of Connecticut. They joined with the Republicans. You are working very hard to get a Democratic majority in the Senate in these next elections and in Congress overall. What difference would it make?
SEN. PATRICK LEAHY: In their defense, all but one of them voted with me when we moved to strike the habeas provisions out. That was the Specter-Leahy amendment, and we had, I think it was, 51-48, I think, was the final vote on that. All but one of the Democrats joined with me on that. If we had gotten three or four more Republicans, we would have at least struck out the habeas provision. There are — you know, I —
AMY GOODMAN: But they voted for this bill without that, with the habeas provision being stripped out.
SEN. PATRICK LEAHY: I’ll let each one speak for themselves. The fact that the Republicans were virtually lockstep in it, though, should be what I would look at. And maybe we’re blessed in Vermont —
AMY GOODMAN: But that larger question, that larger question of, what would be any different if Democrats were in power?
SEN. PATRICK LEAHY: For one thing, we would have been asking the questions about what’s been going on for six years. We’ve had a rubberstamp congress that automatically has given the President anything he wants, because nobody’s asked questions. Nobody’s asked the questions that are in the Woodward book that’s coming out this weekend, where you find all the mistakes were made because they will acknowledge no mistakes. The Republicans control both the House and the Senate. They will not call hearings. They won’t try to find out how did Halliburton walk off with billions of dollars in cost overruns in Iraq. Why did the Bush administration refuse to send the body armor our troops needed in Iraq? Why did they send inferior material?
And, of course, the two questions that the Congress would not ask, because the Republicans won’t allow it, is, why did 9/11 happen on George Bush’s watch when he had clear warnings that it was going to happen? Why did they allow it to happen? And secondly, when they had Osama bin Laden cornered, why didn’t they get him? Had there been an independent congress, one that could ask questions, these questions would have been asked years ago. We’d be much better off. We would have had the answers to that. I think with those answers, we would not have the fiasco we have in Iraq today, we would have caught Osama bin Laden, Afghanistan would be a more stable place, and the world would be safer.
AMY GOODMAN: Was President Bush on Capitol Hill yesterday?
SEN. PATRICK LEAHY: Oh, yes, indeed. You can always tell, because virtually the whole city comes to a screeching halt with the motorcades, although it’s sort of like that when Dick Cheney comes up to give orders to the Republican Caucus. He comes up with a 15 to 25 vehicle caravan. It’s amazing to watch.
AMY GOODMAN: And what was Bush doing yesterday on Capitol Hill?
SEN. PATRICK LEAHY: Oh, he was just telling them they had to vote this way. They had to vote. They couldn’t hand him a defeat. They had to go with him They had to trust him. It’ll get us past the election. We had offered a — you know, five years ago, I and others had suggested there is a way to have military tribunals for the detainees, where it would meet all our standards and basic international standards. They rejected that. And now, five weeks before the elections, they say, ‘Oh, yes, we need something like that.’ No, basically what he was saying to them, don’t ask questions, get us past the elections, because if you ask questions, the answers are going to be embarrassing, and it could hurt you in the elections.
AMY GOODMAN: Senator Leahy, we have to break for one minute. We ask you to stay with us. We’ll also be joined by CCR president, Center for Constitutional Rights president, Michael Ratner.
AMY GOODMAN: Our guests are Vermont Democratic Senator Patrick Leahy and Michael Ratner of the Center for Constitutional Rights. He is president there. Michael Ratner, your response, as we speak with the senator about this groundbreaking legislation?
MICHAEL RATNER: Well, I think Senator Leahy really got it right. I mean, what this bill authorizes is really the authority of an authoritarian despot to the president. I mean, what it gives him is the power, as the senator said, to detain any person anywhere in the world, citizen or non-citizen, whether living in the United States or anywhere else. I mean, what kind of authority is that? No checks and balances. Nothing. Now, if you’re a citizen, you still get your right of habeas corpus. If you’re a non-citizen, as the senator pointed out, you’re completely finished. Picked up, legal permanent resident in the United States, detained forever, no writ of habeas corpus.
It was incredibly shocking. I watched that vote yesterday. I had been in Washington for two or three days trying to line up the votes for Senator Leahy’s amendment that would have restored habeas. We thought we had them. We lost at 51 to 48. I have to tell you, Amy, I just — I basically broke down at that point. I had been working like a dog on this thing. And there I saw the President come to Capitol Hill and persuade two or three or four of the Republicans who we thought we had to vote to strip habeas corpus from this legislation. It was a shock. I mean, an utter shock.
So you have this ability to detain anyone anywhere in the world. You deny them the writ of habeas corpus. And when they’re in detention, you have a right to do all kinds of coercive techniques on them: hooding, stripping, anything really the president says goes, short of what he defines as torture. And then, if you are lucky enough to be tried, and I say “lucky enough,” because, for example, the 460 people the Center represents at Guantánamo may never get trials. In fact, only ten have even been charged. Those people, they’ve been stripped of their right to go to court and test their detention by habeas corpus. They’re just — they’ve been there five years. Right now, under this legislation, they could be there forever.
Let me tell you, this bill will be struck down and struck down badly. But meanwhile, for two more years or whatever it’s going to take us to litigate it, we’re going to be litigating what was a basic right, as the senator said, since the Magna Carta of 1215, the right of any human being to test their detention in court. It’s one of the saddest days I’ve seen. You’ve called it “groundbreaking,” Amy. It’s really Constitution-breaking. It’s Constitution-shattering. It shatters really basic rights that we’ve had for a very long time.
AMY GOODMAN: Senator Leahy, how long have you been a senator?
SEN. PATRICK LEAHY: I’ve been there 32 years. I have to absolutely agree with what I just heard. I mean, this is — it’s Kafka. But it’s more than that. It’s just a total rollback of everything this country has stood for. I mean, you have 100 people, very privileged, members of the Senate voting this way and with no realization of what it would be like if you were the one who was picked up. Maybe you’re guilty, but quite often, as we’ve seen, purely by accident and then held for years.
You know, I was a prosecutor for eight years. I prosecuted an awful lot of people, sent a lot of people to prison. But I did it arguing that everybody’s rights had to be protected, because mistakes are often made. You want to make sure that if you’re prosecuting somebody, you’re prosecuting the right person. Here, they don’t care whether mistakes are made or not.
And you have to stand up. I mean, it was a Vermonter — you go way back in history — it was a Vermonter who stood up against the Alien and Sedition Act, Matthew Lyon. He was prosecuted on that, put in jail, as a congressman, put in jail. And Vermont showed what they thought of these unconstitutional laws. We in Vermont reelected him, and eventually the laws fell down. There was another Vermonter, Ralph Flanders, who stood up to Joseph McCarthy and his reign of fear and stopped that. I mean, you have to stand. What has happened, here we are, a great powerful good nation, and we’re running scared. We’re willing to set aside all our values and running scared. What an example that is to the rest of the world.
AMY GOODMAN: You gave an example, Senator Leahy, when you talked about what would happen here. And, I mean, even the fact that “habeas corpus” is in Latin, I think, distances people. They don’t quite understand what this is about.
SEN. PATRICK LEAHY: “Bring the body.”
AMY GOODMAN: You gave a very — sorry?
SEN. PATRICK LEAHY: “Bring the body.”
AMY GOODMAN: You gave a very graphic example. You said, “Imagine you’re a law-abiding lawful permanent resident. In your spare time you do charitable fundraising for international relief agencies that lend a hand in disasters.” Take that story from there, the example you used.
SEN. PATRICK LEAHY: You send money. You don’t care which particular religious group or civic group it is. They’re doing humanitarian work. You send the money. It turns out that one of them is giving money to various Islamic causes that the United States is concerned about. They come to your house. Maybe somebody has called into one of these anonymous tipster lines, saying, “You know, this Amy Goodman. I’m somewhat worried about her, simply because she’s going — and I think I’ve seen some Muslim-looking people coming to her house.” They come in there, and they say, “We want to talk to you.” They bring you downtown. You’re a legal alien, legal resident here. And you say, “Well, look, I’ve got my rights. I’d like to talk to a lawyer.” They say, “No, no. You don’t have any rights.” “Well, then I’m not going to talk to you.” “Well, then now we’re twice as concerned about you. We’re going to spirit you down to Guantánamo, and we’ll get back to in a few years.” And, I mean, that could actually happen under this. And these are not far-fetched ideas, as the professor knows. He’s seen similar things.
And with that, and I would love to continue this conversation, unfortunately I’ve got to go back to my day job, back to the judiciary. I think this is going to go down as one of those black marks in the Congress. You know, I wasn’t there at the time, but virtually everybody voted for the Tonkin Gulf resolution. When I came to the Senate, you couldn’t find anybody there who thought that was a good idea. They knew it was a terrible mistake. You had members of congress supported the internment of the Japanese Americans during World War II. Everybody knows that was a terrible mistake now. That day will come when everybody will look at this and say, “What were we thinking?”
AMY GOODMAN: Patrick Leahy, thanks very much for joining us. We only have about 30 seconds. Michael Ratner, president of Center for Constitutional Rights, your final comment on this.
MICHAEL RATNER: This was really, as the senator said, probably the worst piece of legislation I’ve seen in my 40-year career as a lawyer. The idea, and even the example Senator Leahy gave, of someone being picked up, you don’t need anything. The President can decide tomorrow that you, Amy, or me, or particularly a non-citizen, can be picked up, put in jail forever, essentially, and if you’re a non-citizen in Guantánamo or anywhere else in the world, you never get a chance to go to court to test your detention. It’s an incredible thing, and any senator who voted for this, in my view, is essentially guilty, guilty, guilty of undermining basic fundamental rights and may well be guilty of war crimes, as well.
AMY GOODMAN: Michael Ratner, thanks very much for joining us, president of the Center for Constitutional Rights.