The bill legalizing torture just got worse

By Nancy Jane Moore

The Senate bill on how the US will handle foreign detainees -- the supposed "compromise" legislation that legalizes treatment forbidden under the Geneva Conventions -- has been expanded to define as an unlawful combatant anyone who "has engaged in hostilities or who has purposefully and materially supported hostilities against the United States."

According to The Washington Post:

The definition applies to foreigners living inside or outside the United States and does not rule out the possibility of designating a U.S. citizen as an unlawful combatant.

Did you get that? They aren't just attacking foreigners -- they want to apply these rules, which clearly violate due process and other right guaranteed under the Constitution, to US citizens. And they don't just plan to detain those who have "engaged in hostilities;" they also want anyone who has "purposefully and materially supported" hostilities. How long do you think it will take before they definite "purposefully and materially" as "spoken out in support of opponents of the US?"

The bill also suspends the right of habeas corpus -- the right to bring an action challenging the legality of one's detention. According to The Post, Senate Judiciary Chairman Arlen Specter (R-Pa.):

assailed the provision as an unconstitutional suspension of habeas corpus, which he said was allowable only "in time of rebellion or in time of invasion. And neither is present here."

However, the Republicans who initially fought the bill appear to be going along with it, The Post says. So much for the much-vaunted integrity of John McCain and Lindsey Graham.

Law Professor Marty Lederman explains the effect of the habeas issue in a post on Balkinization:

It is worth noting one thing about the breadth of the habeas-stripping provision, both in the new draft and in last week's version, that has thus far received inadequate attention in the public debate. That provision would eliminate the right to petition for habeas for all alleged alien enemy combatants, whether or not the detainee has been determined to be an "unlawful" combatant -- indeed, even if the detainee is deemed a lawful combatant (e.g., a POW) -- and no matter where they are detained, including in the United States.

Lederman also provides a PDF link to the legislation. Read it for yourself, if you can stomach it.