Saturday, September 30, 2006

Congress Defies Constitution, Passes Flawed Detainee Treatment Act

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As you may have heard in the news today, the U.S. Congress yesterday passed legislation that will deny individuals detained by the United States the ability to challenge their detentions and treatment in court.

"This was the moment for Congress to pass legislation that reflects the fundamental values of this country. Instead, it rushed to adopt an ill-considered law which history will judge harshly," said Elisa Massimino, Washington Director of Human Rights First. "The many flaws in this law raise fundamental constitutional issues. It will result in prolonged legal challenges, instead of fair trials that ensure justice."

The most serious flaws in the Act include:

  • Grants unprecedented and unchecked authority to the Executive Branch to label as "unlawful enemy combatants" and detain an overly broad range of people, including U.S. citizens and legal permanent residents inside the United States
  • Denies any independent judicial review of these detentions
  • Seeks to eliminate accountability for past violations of the law
  • Permits evidence obtained through coercion
  • Gives the Secretary of Defense authority to deviate from time-tested military justice standards for fair trials.

Despite these flaws, we still want to thank you for standing with Human Rights First and more than 50 retired military leaders to stop White House efforts seeking to redefine the humane treatment standards of Common Article 3 of the Geneva Conventions, as the administration had originally proposed. The Act passed by Congress makes it clear that conduct in violation of Common Article 3 remains unlawful and that subjecting detainees to treatment that involves serious physical or mental pain or suffering is a war crime. In floor debate, the drafters of the bill said:

Senator John McCain (R-AZ):

"The President and his subordinates are... bound to comply with Geneva. That is clear to me and to all who have negotiated this legislation in good faith... We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act, but with all of our obligations under Common Article 3 of the Geneva Conventions."

"To the CIA: Your program, whatever it may be in classified form, must comply with the War Crimes Act. And the War Crimes Act runs the gamut from torture to cruel, inhumane treatment, intentional infliction of serious bodily injury, or mental pain."


Senator John Warner (R-VA):

"The types of conduct described in [the Kennedy] amendment, in my opinion, are in the category of grave breaches of Common Article 3 of the Geneva Conventions. These are clearly prohibited by our bill."

"The Kennedy Amendment specified acts including: 'forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.'"


We hope you will continue to work with Human Rights First in the months ahead as we seek to uphold the rule law and work to ensure that these measures do not go unchallenged.

Jill Savitt
Director of Campaigns

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