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No Prisoner May Invoke the Geneva Conventions
The Oregonian
David Sarasohn
October 18, 2006

Signing the Military Commissions Act of 2006 on Tuesday -- to the applause of Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Attorney General Alberto Gonzales and the other creators of America's current international reputation -- President Bush explained that the process had really been simple.

"When I proposed this legislation," he told the invited audience, "I explained that I would have one test for the bill Congress produced: Will it allow the CIA program to continue?"

Which is, no doubt, just the question James Madison would have asked.

And then Bush signed the bill that allows him to hold prisoners in custody indefinitely without lawyers or charges, allows them to be tried by military courts on evidence that the prisoners can't see, and continues patterns of interrogation that nobody wants to call torture -- after all, we're Americans -- but that could at least be called "energetic."

As in, we're Americans, so we don't torture, but just how long can you hold your breath?

Nobody knows the exact details of "the CIA program" -- although the entire rest of the world, including our closest allies, has its suspicions -- but it's clear that nothing in this bill will interfere with it.

Before signing the bill, the president declared proudly that it was "a historic day," and nobody disagreed with that part.

"It's something that we thought we didn't do in this country," commented Garrett Epps, professor of law at the University of Oregon. "Indefinite detention without trial wasn't an American value.

"I feel like we've crossed a line."

The line in question, in the language of the act, declares, "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

By "the United States," of course, the act means the president, or the people working for him. It's not exactly how the system has traditionally worked, but it does save time.

For example, it shoots past a Supreme Court ruling that prisoners have a right to ask a court why they're being held. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., thinks this disagreement will cause the Supreme Court to declare that part of the act unconstitutional -- although he didn't think that strongly enough to vote against it.

Prisoners whom the president has decided can be held indefinitely have other problems, too. Although Bush boasted Tuesday that "this bill complies with both the spirit and the letter of our international obligations," the Military Commissions Act states flatly, "no alien unlawful enemy combatant . . . may invoke the Geneva Conventions as a source of rights."

Still, no worries: The president added, "As I've said before, the United States does not torture. It's against our laws and against our values."

According to extensive polling, that's a reassurance the rest of the world doesn't find particularly reassuring -- at least not the part of the world that watches television.

After all, the bill Bush signed gives him the power to "interpret the meaning and application" of any limits on prisoner treatment, or what does or doesn't qualify as torture. White House press secretary Tony Snow assured reporters that sometime the president would issue an executive order explaining his interpretation of those issues -- although those orders aren't usually made public.

Neither are the signing statements in which the president lists the parts of the bill he signed that he doesn't plan to obey because he thinks they violate his constitutional powers.

So while Americans can still read the bill the president signed Tuesday, they really can't be sure -- even if they are American citizens and not alien combatants -- they actually know just what policies their government is following.

It really is true that when some people's rights get squeezed, somehow they're never the only ones.

That's a lesson everybody could call "historic."

David Sarasohn, associate editor, can be reached at 503-221-8523 or davidsarasohn@news.oregonian.com.

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