Last Wednesday, the Bush Administration submitted an 86 page bill to Congress responding to Hamdan v. Rumsfeld and several other recent developments in national security law. Two days later, an ACS sponsored panel at Duke University explained the impact of this bill.
Describing the Administration's proposal as "one of the most remarkably cynical things I've ever seen a President do," Panelist and constitutional law scholar Erwin Chemerinsky listed four effects of the proposed legislation:
- Torture: According to Chemerinsky, the Administration's bill would "liberalize the definition of what is torture." As a recent blog post by Professor Marty Lederman explains, the Administration's bill would amend the War Crimes Act to permit use of "hypothermia, threats of violence to the detainee and his family, stress positions, 'long-time standing,' prolonged sleep deprivation, and possibly waterboarding." These techniques are currently prohibited by Common Article 3 of the Geneva Conventions.
- Court Stripping: The Detainee Treatment Act of 2005 (DTA) purports to strip the federal judiciary of much of their authority to hear cases regarding the rights of detainees. In Hamdan, the Court held that this act does not apply retroactively to bar cases currently pending in federal court. According to Professor Chemerinsky, however, the President's bill would "wipe out all of the cases that have been pending for years on behalf of the Guantanamo detainees," by amending DTA to preclude those cases as well. Co-panelist and former Air Force Colonel Scott Silliman echoed this concern, arguing that the President's bill would "legislatively overid[e] what the Supreme Court decided on the 29th of June."
- No Geneva Rights for Detainees: Chemerinsky also explains that the bill would prevent "those who are held in Guantanamo" from asserting "any claims under the Geneva Conventions, or under international law."
- Limited Process: Finally, Chemerinsky argued that the Administration's bill would "not comply with the basic requirements of American or international law." As Chemerinsky explained, the bill would allow coerced statements to be admitted as evidence against detainees, and would allow those detainees to be excluded from proceedings against them. He believes these provisions would "not meet the requirements that the Supreme Court said are part of the Uniform Code of Military Justice [and] that are part of Common Article 3 of the Geneva Conventions."
Chemerinsky concluded by noting that many military families that he has spoken to are among the most sympathetic to his viewpoint because they worry "how can we expect that foreign nations follow international law when they are treating American prisoners, if this country does not follow international law when it treats prisoners in Guantanamo."
Colonel Silliman has similar concerns. "If we set a bar for ourselves that is lower than what international law requires, and what we expect of other nations, then I think we serve ourselves poorly."