"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Wednesday, September 29, 2004

The Death of the Rule of Law (1787 - 2004) 

I don't usually get too worked up over proposed legislation, no matter how dangerous or stupid said proposed legislation may be, because (as anyone who grew up on Schoolhouse Rock! knows) there are a lot of hoops for a bill to jump through before it becomes law. Most legislation dies in committee, and no one mourns.

But the skids get greased (or perhaps "slimed" is a better word) a bit when the guy proposing the legislation is the Speaker of the House - the same guy who assigns bills to committees, and appoints the chairs of those same committees.

And so it is that I am getting very worked up indeed over H.R. 10 §§ 3031 - 3033 (enter bill number "10" and section number "3031" to read the full text), proposed by House Speaker Dennis Hastert. As Katherine explains at Obsidian Wings, this legislation is intended to authorize the US government to deport "suspected terrorists" to nations known to engage in torture. It is an outrage, and it must be stopped.

Katherine writes:
The Republican leadership of Congress is attempting to legalize extraordinary rendition. "Extraordinary rendition" is the euphemism we use for sending terrorism suspects to countries that practice torture for interrogation. As one intelligence official described it in the Washington Post, "We don't kick the sh*t out of them. We send them to other countries so they can kick the sh*t out of them.”

The best known example of this is the case of Maher Arar. Arar, a Canadian citizen, was deported to Syria from JFK airport. In Syria he was beaten with electrical cables for two weeks, and then imprisoned in an underground cell for the better part of a year. Arar is probably innocent of any connection to terrorism.

As it stands now, "extraordinary rendition" is a clear violation of international law--specifically, the U.N. Convention Against Torture and Other Cruel, Degrading and Inhuman Treatment. U.S. law is less clear. We signed and ratified the Convention Against Torture, but we ratified it with some reservations. They might create a loophole that allows us to send a prisoner to Egypt or Syria or Jordan if we get "assurances" that they will not torture a prisoner--even if these assurances are false and we know they are false.

Last month Edward Markey, a Massachusetts Congressman, introduced a bill that would clearly outlaw extraordinary rendition. But Markey only has 22 cosponsors, and now the House leadership is trying to legalize torture outsourcing--and hide it in the bill implementing the 9/11 Commission Report.

These are excerpts from a press release one of Markey's staffers just emailed me:

The provision Rep. Markey referred to is contained in Section 3032 and 3033 of H.R. 10, the "9/11 Recommendations Implementation Act of 2004," introduced by House Speaker Dennis Hastert (R-IL). The provision would require the Secretary of Homeland Security to issue new regulations to exclude from the protection of the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, any suspected terrorist - thereby allowing them to be deported or transferred to a country that may engage in torture. The provision would put the burden of proof on the person being deported or rendered to establish "by clear and convincing evidence that he or she would be tortured," would bar the courts from having jurisdiction to review the Secretary's regulations, and would free the Secretary to deport or remove terrorist suspects to any country in the world at will - even countries other than the person's home country or the country in which they were born. The provision would also apply retroactively.

This provision was not part of the 9/11 Commission's recommendations, and the Commission actually called upon the U.S. to "offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors." The Commission noted that "The United States should engage its friends to develop a common coalition approach to the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict. That article was specifically designed for those cases in which the usual laws of war did not apply. Its minimum standards are generally accepted throughout the world as customary international law." These standards prohibit the use of torture or other cruel or degrading treatment....

Rep. Markey said, "When the Republicans 9/11 bill is considered in the House, I intend to offer an amendment to strike the torture outsourcing provisions from the Republican bill and replace it with restrictions restoring international law as provided in my bill. It is absolutely disgraceful that the Republican Leadership has decided to load up the 9/11 Commission bill with legislative provisions that would legitimize torture, particularly when the Commission itself called for the U.S to move in exactly the opposite direction."

There is no possible way for a suspect being detained in secret to prove by "clear and convincing evidence" that he will be tortured if he is deported--especially when he may be deported to a country where has never been, and when the officials who want to deport him serve as judge, jury and executioner, and when there is never any judicial review. This bill will make what happened to Maher Arar perfectly legal, and guarantee that it will happen again.

Markey's staffer wrote to me that "this bill could be on the House floor as early as next week."

All I can really add to this succinct description is a brief note regarding who qualifies under the law as a "suspected terrorist." Short - but accurate - answer: A "suspected terrorist" is whoever the Department of Homeland Security says it is. It is also - I kid you not! - the spouse or child of anybody who the DHS suspects of being a terrorist (8 USC § 1182(a)(3)(B)). Also, note that § 3032(b) provides:
Notwithstanding any other provision of law, no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the [United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment] or this section, except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).

Make no mistake - passage of this legislation would result in the United States abrogating its duties under the Convention Against Torture, would clearly establish our position as an outlaw state, and would remove any shred of doubt where we stand on the issue of torture (we're for it). It would be a disaster of the highest order.

Please contact your representative in Congress, and express your view (politely, but forcefully) that §§ 3031 - 3033 of H.R. 10 must be stricken from the pending legislation. Also, write to your local newspapers and ask them whether they will take a stand against this steaming pile of dung. Do it now.




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