Senators who lie to America; Senators who let them

As originally posted in the reader-diary section of; the post’s 2009 comment thread is available at that link.

Although I recognize that Congress is now a closed-door dealmaking club, hostile to liberty – a Party-dominated institution that allows itself to be run by the President as an unConstitutional Parliament, so that the House and Senate no longer function as an open, democratic federal legislature – I can expose and refute some of the false and misleading, or willfully ignorant, claims made by a few Senators while the 2010 Defense Authorization Bill – containing yet another flawed version of Military Commissions – was recently lauded-instead-of-debated on the Senate floor (before passing late last Thursday, 87-7).

Some “debate” rebuttal offered in the absence of principled participation by Senators who know better:

Senator Whitehouse, who won’t confront specious allegations: “I don’t want to get into a discussion right now on whether military commissions are a good or bad idea…”;

Senator Leahy, who won’t amend or block provisions he knows to be flawed: “I am concerned that some of the modifications proposed by this [military commissions] amendment would depart from the traditional protections provided by CIPA. For example, CIPA requires the Attorney General to certify that the disclosure of certain information would cause identifiable damage to the national security of the United States. Here, an unidentified “knowledgeable United States official” would make that declaration, instead. This amendment also imports a new standard that would require a judge to consider whether disclosure of information would be “detrimental to national security.” It would further prohibit the accused from appealing a court order allowing the Government to withhold access to information based on an ex parte proffer by the Government. This marks a serious departure from CIPA’s framework for allowing defendants to reconsider such rulings in order to ensure that they are allowed meaningful access to evidence and can present a thorough defense.”;

Senator Feingold, who will only insert an unspoken sentence or two into the record the day after the bill passes, to mark his purported displeasure: “I remain concerned that the military commission process is so discredited that it may not be possible to fix it. And I have yet to hear a convincing argument that other options for bringing detainees to justice–the civilian Federal criminal justice system and the military courts martial system–are insufficient or unworkable.”

Here are some of the assertions by their colleagues that these Senators let pass unremarked and unchallenged [bracketed commentary and emphasis added]:

Senator Lindsey Graham of South Carolina:

Mr. GRAHAM. […] Simply put, our amendment is a sense-of-the-Senate statement that there is a preference for military commission trials regarding detained terrorists.


They [uncharged, unconvicted “detained terrorists”] are not detained because of some violation of domestic criminal law [such as “terrorism,” “material support” or “conspiracy”]. They are detained because they have been found [unilaterally by their military captors operating almost entirely in secret] to be part of al-Qaida and other terrorist organizations that the Congress has previously determined to be enemy combatant belligerents [a term that – apparently unknown to Graham – is a category of prisoner-of-war under the law of war**], people who have taken up arms against the United States of America, who are intent on our destruction

**POW status is a privileged status never accorded to a single foreign prisoner in American military custody, here or abroad, since 2001, whether we were formally fighting a State [“international” armed conflict] or an Organization [“non-international” armed conflict].

As the United States District Court for the District of Columbia has recently spelled out in its habeas corpus proceedings:

In Hamdan [2006], the Supreme Court held that the conflict between the United States and al-Qaeda is at least a non-international armed conflict, subject to Common Article 3, but did not reverse the determination made by the District of Columbia Circuit that the conflict was not an international conflict subject to Common Article 2. […] The Court is therefore constrained by the precedent of the Supreme Court and the District of Columbia Circuit to treat the conflict between the United States and al-Qaeda as a non-international armed conflict for purposes of the Geneva Conventions.


The distinction drawn between “international” and “non-international” conflicts has its roots in the Geneva Conventions… […] Two articles are identical in the Third and Fourth Conventions, and thus are known as “common articles”: Common Article 2, which specifies that the Conventions apply to “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties,” […] and Common Article 3, which governs “armed conflict[s] not of an international character,”…


This term [“enemy combatant”] has meaning under the Geneva Conventions only insofar as it is construed as a subset of “prisoner of war” status, which the Third Geneva Convention defines at length. […] Status as a “combatant” is actually a privilege—”the right to participate in hostilities,” Additional Protocol I, art. 43.2—to be earned through fidelity to the requirements of Article 4.


Thus, whereas the Geneva Conventions rigorously protect individuals who participate in hostilities in the international context, they are silent with respect to individuals who engage in intranational (or, in this case, transnational) combat.


Among the protections afforded in international armed conflicts are the prisoner-of-war provisions set forth in the Third Geneva Convention. These provisions, which apply to prisoners of war as that term is defined in Article 4 of the Third Geneva Convention, regulate virtually every aspect of a prisoner of war’s detention, including, inter alia, the manner in which they may be treated by their captors, see, e.g., id., art. 13-18, the conditions of their confinement, see, e.g., id., art. 25-32, 34-42, and the termination of their detention, see, e.g., id., art. 109-19. In contrast, Common Article 3 is silent with respect to prisoners of war. Thus, in non-international armed conflicts, the Geneva Conventions are “silent, in deference to national law, on questions of detention.”


Similarly, the Department of State has opined that “[t]he basic core of [Additional] Protocol II,” as “reflected in [C]ommon [A]rticle 3 of the 1949 [Geneva] Conventions[,] . . . is[ ] and should be[ ] a part of generally accepted customary law.” Id. at 430-31. “This specifically includes its prohibitions on violence toward persons taking no active part in hostilities, hostagetaking, degrading treatment, and punishment without due process.” Id. at 431. The Court therefore construes Additional Protocol I and Additional Protocol II to constitute customary international law…


At least one commentator has suggested just this approach. See Kleffner, supra, at 330 (opining that “[o]ne could refer” to members of the enemy armed forces in a non-international armed conflict “as ‘fighters’ in order to avoid any confusion about their lacking the entitlement to combatant-privilege and prisoner of war status”).


The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it. And the absence of any language in Common Article 3 and Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status… […]

The text of Common Article 3 impliedly supports this conclusion. The article provides in pertinent part that “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” must be treated “humanely.” Third Geneva Convention art. 3(1)(emphasis added).

United States District Judge Reggie Walton,
April 22, 2009, ruling in Gherebi

(A decision subsequently adopted essentially unchanged
by both Judge John Bates and Chief Judge Royce Lamberth)

Graham continued:

[…] The Nazi saboteurs who were caught landing on the coast of Florida were tried by military commission. I can give a long history of how military commissions were used by our Nation at times of war.

So can, and did, Eugene Fidell, Professor of Military Law at Yale Law School, June 13, 2009:

There is, however, a more fundamental question: the president’s assertion that military commissions have long played a respectable role in American legal history.

The history is more ambiguous than many have assumed, and is not one of which we have much reason to be proud.


Many Americans have heard of the military commission that convened in 1942 to try eight German saboteurs. But few are aware that a major reason the case was tried by commission rather than in the federal courts was that federal law at the time did not prescribe harsh enough penalties for what they had attempted to do. That is obviously not so today, thanks to the Patriot Act and other legislation passed since World War II.

In its review of the saboteurs’ case, Ex parte Quirin, the Supreme Court did sustain the military commission’s jurisdiction — but, in a discomfiting move, did not even release its legal reasoning until months after six of the Germans had been electrocuted. Though the ruling was unanimous, Justice Felix Frankfurter declared that Quirin was “not a happy precedent.”

See also Louis Fisher’s comprehensive overview of military tribunals in American history.

Graham continued:

[…] Due process is available under military law. The men and women running these trials are officers, judge advocates. […] They are wonderful people. They will adhere to the law. They understand the law.

“Wonderful people” like Lt. Col. Barry Wingard – 15-year Army infantry veteran, 11-year Air Force Judge Advocate General – who wrote as follows in Sunday’s Pittsburgh Post-Gazette:

I received military orders last year directing me to report to Washington, DC, to defend a Kuwaiti detainee at Guantanamo named Fayiz al-Kandari.


Fayiz likely was sold to U.S. forces by Afghan bounty hunters; he wasn’t captured on the battlefield. The evidence that has kept Fayiz locked up without charges for more than seven years is razor thin and questionable at best. Despite being subjected to harsh treatment and “enhanced interrogation techniques,” Fayiz’s story has remained consistent. When he was captured in Afghanistan, Fayiz was doing charity work that his religion requires, known in Islam as Zakat.

If the U.S. government believes my client is guilty, it should give him a trial. If the government is not sure, it should allow him to challenge his detention before a federal judge. But what the government cannot do — in a country that believes in the rule of law — is imprison a man on a whim and throw away the keys. If that’s what our country has come to, then there’s a bitter irony here. We are fighting for democracy abroad while abandoning our democratic principles at home.


Representing Fayiz al-Kandari is not about being a liberal or a conservative, a Democrat or a Republican. It is about upholding the principles of our country and fighting for the fundamental rights that many of us take for granted — the right to see evidence against us, the right to a speedy trial, the right to challenge our accusers.


In Bosnia, I saw first hand what happens when law breaks down and when might equals right, when law yields to prejudice and when prejudice becomes law.

Senator Joseph Lieberman of Connecticut:

Mr. LIEBERMAN. […] As distinguished witnesses and authorities have testified at a hearing Chairman Levin led before the Armed Services Committee on this issue 2 weeks ago [after the Committee had already sent their bill to the floor], according to these witnesses, including people who work as general counsel in the Defense Department, for instance, the military commission provisions in the bill before us not only meet but surpass by far the fundamental standards of fairness and due process required by our Supreme Court, the Geneva Conventions, and the rules of the International Criminal Court.

“Distinguished witness and authority” David Kris, Assistant Attorney General, DOJ National Security Division, testifying just last week [2/2012: that link is now broken; the McKeon-chaired House Armed Services Committee seems to have removed all records relating to its 7/24/09 MCAct hearing from its website, aside from the notice of its convening; the hearing transcript also seems to be missing from the GPO site that the HASC links to for access to its hearing transcripts] to the House Armed Services Committee, after the Senate had passed its defense bill (Kris’s statement to the Senate Armed Services Committee is not accessible on its website):

Voluntariness is a legal standard that is applied in both Federal courts and courts martial. It is the Administration’s view that there is a serious likelihood that courts would hold that admission of involuntary statements of the accused in military commission proceedings [as permitted by the Lieberman-praised Senate bill] is unconstitutional.

Lieberman continued:

[…] The fact is, where to bring charges against people accused of violating laws of war or, as we have said in the legislation, other offenses made punishable by this chapter is a decision made by the executive branch. It is not one we can control.

United States Constitution, Article I, Section 8:

The Congress shall have power

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;


To make rules for the government and regulation of the land and naval forces;


To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Senator Jeff Sessions of Alabama:

Mr. Sessions. To the contrary, Congress should be crystal clear that membership in al-Qaida qualifies a detainee for unprivileged enemy belligerent status. My amendment removed any doubt over the detention of anyone who is a member of al-Qaida or served in its aid. My amendment will make clear that cases like this should not happen again. Simply put, if you are a member of al-Qaida you are going to be detained and held until the war is over, in the same way Nazi army prisoners of war [were] treated during World War II.

Here’s how “army prisoners of war” (Nazi or otherwise) would be treated, under the Geneva Conventions:

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.


No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.


The questioning of prisoners of war shall be carried out in a language which they understand.


All effects and articles of personal use, except arms, horses, military equipment and military documents shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like articles issued for personal protection.


Badges of rank and nationality, decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war.


The premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out.


The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies. Account shall also be taken of the habitual diet of the prisoners.


Sufficient drinking water shall be supplied to prisoners of war. The use of tobacco shall be permitted.

Prisoners of war shall, as far as possible, be associated with the preparation of their meals; they may be employed for that purpose in the kitchens. Furthermore, they shall be given the means of preparing, themselves, the additional food in their possession.


Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap and tobacco and ordinary articles in daily use.


Also, apart from the baths and showers with which the camps shall be furnished, prisoners of war shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry; the necessary installations, facilities and time shall be granted them for that purpose.


Prisoners shall have opportunities for taking physical exercise, including sports and games, and for being out of doors. Sufficient open spaces shall be provided for this purpose in all camps.


In the event of transfer, prisoners of war shall be officially advised of their departure and of their new postal address. Such notifications shall be given in time for them to pack their luggage and inform their next of kin.


Mail and parcels addressed to their former camp shall be forwarded to them without delay.

It’s a national travesty that this vital debate about honoring (or repudiating) American founding principles, and about the way we treat and process foreign prisoners held in American military custody (with effectively no Congressional oversight of actual detention conditions in the military’s secretive, limited-access facilities), is taking place outside the empty House and Senate chambers, beyond the reach of Congress’s few nominal, superficial investigatory hearings, and without the participation of most of the American media.

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