Catch-22: A fiendishly evil law just passed

[David Farber <dave () farber net>]

Begin forwarded message:

From: gep2 () terabites com
Date: September 30, 2006 11:06:45 AM EDT
To: dave () farber net
Subject: Catch-22: A fiendishly evil law just passed

Note that things are EVEN WORSE than the article below suggests... in  
the final language as passed, not only are the people who are  
"disappeared" liable to "detention", but so are anybody who  
"supports" them, including attorneys, friends, activists, and so  
forth.  There is NOTHING in the final bill which makes even US  
citizens immune to such "detention".

It IS apparently true that the bill prohibits certain specific forms  
of torture (thus the "new rights that the detainees didn't have  
before", according to its proponents) but:

  1)  Enumerating a list of "prohibited" forms of torture only  
solicits and encourages creativity in finding non-prohibited forms;

  2)  It still is attempting to deny the much broader prohibition  
required under the Geneva Conventions, which this bill attempts to  
eviscerate.

It's easy to say "this couldn't ever happen in MY United States...  
every one of these people have sworn to uphold, protect, and defend  
the Constitution"...!  It's not outrageous to propose that ANYBODY  
who voted yes on this HORRIBLE bill ought to be prosecuted and  
convicted of TREASON!

[Note too that this issue of "having 'standing'" is not just some  
quaint legal principle... that was the primary basis by which the  
legal case attempting to have the law followed (the law which  
prohibited the Texas Electoral College electors in 2000 from voting  
for both Bush and Cheney, which both CLEARLY by any objective measure  
"inhabited the same state as themselves") during the 2000  
Presidential Election.  So the "standing" issue, even more than the  
Florida chads, is ultimately responsible for the stolen Presidential  
election of 2000 that allowed this evil cabal to steal control of our  
[once-]great nation to begin with.]


Read and weep...!!  (and then ask yourself... why isn't the  
mainstream media TELLING the people of this country the TRUTH about  
what the hell is happening here!!??):

[quote]

Building a Two-Legged Stool
http://www.smirkingchimp.com/thread/1089

Building a Two-Legged Stool
By Douglas Watts
Created Sep 27 2006 - 9:18am

If enacted, the Torture Bill now being drafted by Congressional  
Republicans at the President’s behest will sorely test a founding  
precept of the United States -- and may well rip the nation apart.

The precept is whether Congress can enact a law purposefully designed  
to prevent any US Court from reviewing its legality.

At issue here is not just the basic right of “detainees” sentenced to  
death by the United States to appeal their death sentence before an  
impartial US court before being executed. At stake here is what  
happens when Congress and the President work together to silence the  
Judicial Branch entirely on the fundamental issues of human torture,  
secret off-shore gulags and summary death sentences. The intent of  
the Torture Bill is to keep the courts' mouth shut.

The Torture Bill prohibits any US Court from hearing a writ of habeas  
corpus submitted by a “detainee” defendant facing execution, long  
prison sentences or continued imprisonment for years without any  
charges filed against them.

The Torture Bill prohibits any court from hearing or considering the  
merits of a defendant's claim that his capture, imprisonment, trial  
or sentence violate the Geneva Conventions -- which under US  
Constitution have the full force of US law.

The Torture Bill gives the US military an unchecked right to imprison  
the sentenced defendant in any locale on the planet and allow the  
prisoner to be treated in any manner the laws of the host nation  
allows -- even if such treatment is in direct violation of US law.

This is just a smattering of what the Torture Bill allows. If you  
haven’t detected the pattern yet, the Bill is specifically written to  
make legal in federal statute everything the Bush administration has  
done illegally for the past five years -- and more. At its core, The  
Torture Bill is designed to make it as hard as possible for any US  
Court to rule on whether its provisions are Constitutional.

In an exhaustive, word-by-word analysis of the Torture Bill published  
in the on-line edition of the Jurist magazine yesterday [1], Benjamin  
Davis of the University of Toledo College Of Law stated about just  
one section of the Bill:

"As I proceed through this text I begin to feel that this is really  
becoming a kangaroo court ... This section is shameful and a disgrace  
to America."

Pursuant to its design, nothing in the Torture Bill is even remotely  
Constitutional. It is a naked power grab by the Executive Branch over  
the Judicial Branch. But this power grab has a new twist. Previous  
Executive power grabs involved the invocation of “executive  
privilege” to prevent the Courts from reviewing the Constitutionality  
of specific Presidential decisions. This power grab involves Congress  
and the President working together to prevent the Judicial Branch  
from checking the actions of the Executive or the Legislative Branch,  
or both.

Because the US Supreme Court has repeatedly rejected the President’s  
“executive privilege” arguments in various torture and imprisonment  
cases since 2001, the President has asked Congress to codify in  
statute the sweeping executive powers the US Supreme Court has said  
the Constitution does not grant him. If Congress passes the Torture  
Bill, the US Supreme Court will have a fundamental right to determine  
if its provisions square with the US Constitution.

Here's an odd question. Outside of amending the Constitution itself,  
can Congress pass a law which prohibits its own review by the US  
Supreme Court? No. That would be in violation of the Constitution.  
But Congress is free to pass a law which "sort of" amends the  
Constitution. To do this, Congress need only reduce the likelihood of  
the Judicial Branch ever ruling on the law's constitutionality. This  
is what Congress and the President are now trying to do.

An anomaly of our Constitution is that the US Supreme Court may  
abstain or refuse to hear any case presented to it, no matter how  
important. Even if every American citizen believed a law passed by  
Congress was in violation of the Constitution (say, a law re- 
instituting human slavery), the US Supreme Court could allow the law  
to remain in effect in perpetuity simply by refusing to hear any case  
challenging it or overturning without comment any lower court  
decision throwing it out.

The key here is time. Congress and the President know that most  
provisions of the Torture Bill are so wildly abhorrent to the  
Constitution that it will eventually be struck down -- but only  
eventually and piece by piece. A key goal of the “Torture” Bill is to  
prevent a defendant from getting a hearing in a civilian courtroom in  
the first place-- and by doing so, prevent any court from examining  
the law itself. Catch-22.

US Courts, even the US Supreme Court, cannot wantonly issue rulings  
on whether a law passed by the Congress is constitutional or not. A  
case must first be presented to the court by a person who is allowed  
by law to bring the claim. The person must show the law in question  
harms some legal rights the person possesses. The person must then  
show the court is not excluded by law from providing the relief being  
sought. All of these elements must be in place before a court can  
even reach the question of whether the law in question comports with  
the US Constitution. This is also known as the concept of  
"constitutional avoidance," where courts will avoid addressing  
constitutional claims raised in a case if the substance of the case  
can be adjudicated without touching on them.

The Torture Bill contains an endless welter of complex, procedural  
language specifically designed to prevent any legal challenges to the  
Bill from ever reaching a court; and provides pliable or cautious  
federal judges with a kaleidoscope of open-ended procedural  
encouragements to dispose of the case without ever ruling on whether  
the law itself is constitutional.

This is the ulterior motive of the Torture Bill. It is designed to  
ensure its victims will never be able to question its legality before  
a US Court. If the law itself prevents a victim from bringing a claim  
against it, then no US Court can rule on its legality. And if no US  
Court is presented with a case questioning the law's  
constitutionality, the law remains in effect. Catch-22.

The key here is time. Both Congress and the President need to buy  
time badly. Actions authorized by the President since 2001 allowing  
torture are felony crimes under the 1996 War Crimes Act. Unless and  
until the 1996 War Crimes Act is substantially amended, the President  
and the entire chain of command are potentially subject to indictment  
and prosecution for war crimes in federal court.

Congressional passage of a massively unconstitutional revision of the  
1996 War Crimes Act is a very useful tool to buy badly needed time. A  
direct Constitutional challenge to the Torture Bill could take years  
to wend its way through the courts -- especially because the  
procedural thicket of the Torture Bill is designed to prevent any  
victim from getting anywhere near a US courtroom. By including so  
many procedural roadblocks to judicial review of the Torture Bill  
within the Bill itself, Congress does everything possible to prevent  
a US Court from having any chance to say whether the law is  
constitutional or not. Catch-22.

This is shown by the text of the Bill itself. To review. The Torture  
Bill strips all “detainee” defendants of any right to file a writ of  
habeas corpus to any US Court and prohibits any US Court from hearing  
such a writ. This eliminates the most fundamental US right afforded  
to people imprisoned, tried and sentenced by the US government. A  
writ of habeas corpus is often the only method an imprisoned  
defendant can raise a constitutional question to a US Court -- and  
the only way a US Court can address it. Catch-22.

The Bill prohibits any US court or military tribunal from hearing a  
defense that the accused has been deprived of the rights under the  
Geneva Conventions during their capture, imprisonment, trial or  
sentencing. This nullifies the Geneva Conventions and the express  
Constitutional requirement that international treaties approved by  
the United States are fully equivalent to federal laws as enacted by  
Congress.

These two pillars of the Bill were specifically inserted to (1)  
remove the ability of any US Court to review the most basic elements  
of the Government’s reasons for imprisoning, trying and sentencing  
the accused; and (2) remove the right of the accused to rely upon the  
Geneva Conventions as a Constitutional defense against his  
imprisonment, trial and sentence -- even when the Conventions  
themselves clearly prohibit what the government has done.

Any person with even a slug brain can discern that in the face of  
violations of both the US Constitution and the Geneva Conventions  
looming over the Executive Branch during the past five years,  
Congress is trying to pass a law which nullifies both without saying  
so directly.

This past weekend U.S. Sen. John McCain claimed on CBS’ “Face the  
Nation” that the Torture Bill would leave the Geneva Conventions  
intact and "untouched." This is provably false because the Torture  
Bill is specifically designed to prevent any court in the world  
examining if a person's Geneva Convention rights have been violated  
and to prevent a defendant from ever making this claim to any court.

While this might still leave the Geneva Conventions themselves  
"untouched" as words on paper, it fundamentally prevents the  
Conventions from achieving their only purpose -- to actually protect  
the real human beings whose rights have been violated.

Mr. McCain should know better than anyone in the world the Geneva  
Conventions are worthless if the nation which ignores them has  
nothing to fear in doing so and the victim is purposefully denied any  
redress.

Catch-22.

----

Please read the excellent coverage of the above issues in the  
“Military Tribunal” section of the on-line law magazine, The Jurist,  
at http://www.jurist.law.pitt.edu/ [2]

Please note as well that specific language of the Torture Bill is  
being changed so quickly that no review can keep up with each new set  
of revisions. The bill language described above was accurate as of  
9/25/06. Given recent Congressional behavior, it is likely the final  
language will not be available to the American public until after it  
has been voted on and most members of Congress will have confessed  
they did not know what they have actually approved as the new Law of  
the Land. Yum yum.

_______
"I wanted you to see what real courage is, instead of getting the  
idea that courage is a man with a gun in his hand." -- Atticus Finch.  
To Kill a Mockingbird, by Harper Lee.


About author Douglas H. Watts has been a reporter, photojournalist  
and newspaper editor in Maine and Massachusetts since 1984. He  
received his B.A. in journalism and English from the University of  
Maine at Orono in 1986. Mr. Watts’ recent work in photos and audio is  
available at http://www.dougwatts.com [3]. He and his brother Tim's  
work is at http://www.glooskapandthefrog.org [4].
Links:
[1] http://jurist.law.pitt.edu/forumy/2006/09/all-laws-but-one- 
parsing-military.php
[2] http://www.jurist.law.pitt.edu/
[3] http://www.dougwatts.com
[4] http://www.glooskapandthefrog.org


[end quote]


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