Law

by hilzoy

The more I mull over the Hamdan decision (pdf), the clearer it seems that it’s a mistake to focus exclusively on its implications for the prisoners at Guantanamo. Don’t get me wrong: there are surely innocent people down there, held without contact with the outside world, often in prolonged isolation, whose families and loved ones may not know whether or not they are alive; and every single one of them who has a chance to contest his imprisonment in a fair hearing has gained something of enormous value. It’s just that this isn’t all that’s at stake; and that’s true in both a good and a bad way.

The good news, of course, is that this decision really does seem not just to extend the Geneva Convention’s Article 3 to all detainees, but to demolish the administration’s claim that both the Authorization for the Use of Military Force and Article II of the Constitution give him the right to do whatever he wants, including ignoring existing statutes. I cheered when I read this footnote from the majority opinion:

““Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.””

Congress does have war powers! The President cannot disregard statutes at will! We live in a Republic, not a dictatorship! It’s a sad commentary on our present circumstances that things like this have to be reaffirmed, but it would, of course, be vastly worse had they been denied. (As they could easily have been had Bush been able to nominate one more Justice, and had Roberts not had to recuse himself.)

However, these points have already been made very well by Glenn Greenwald, Marty Lederman, Jack Balkin, and Karl Blanke. Rather than repeat what they have said more elegantly, and with a lot more knowledge to back it up, I’m going to focus on the bad news, which is: this decision in no way ensures that all, or even most, of the people our government is currently detaining outside the normal legal system will have any rights or recourse whatsoever.

Why is that? One word: Bagram.

“Other military and administration officials said the growing detainee population at Bagram, which rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures, was in part a result of a Bush administration decision to shut off the flow of detainees into Guantánamo after the Supreme Court ruled that those prisoners had some basic due-process rights. The question of whether those same rights apply to detainees in Bagram has not been tested in court.

Until the court ruling, Bagram functioned as a central clearing house for the global fight against terror. Military and intelligence personnel there sifted through captured Afghan rebels and suspected terrorists seized in Afghanistan, Pakistan and elsewhere, sending the most valuable and dangerous to Guantánamo for extensive interrogation, and generally releasing the rest.

But according to interviews with current and former administration officials, the National Security Council effectively halted the movement of new detainees into Guantánamo at a cabinet-level meeting at the White House on Sept. 14, 2004.

Wary of further angering Guantánamo’s critics, the council authorized a final shipment of 10 detainees eight days later from Bagram, the officials said. But it also indicated that it wanted to review and approve any Defense Department proposals for further transfers. Despite repeated requests from military officials in Afghanistan and one formal recommendation by a Pentagon working group, no such proposals have been considered, officials said.

“Guantánamo was a lightning rod,” said a former senior administration official who participated in the discussions and who, like many of those interviewed, would discuss the matter in detail only on the condition of anonymity because of the secrecy surrounding it. “For some reason, people did not have a problem with Bagram. It was in Afghanistan.””

Conditions at Bagram are worse than at Guantanamo:

“From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its counterpart in Cuba. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard.

“Bagram was never meant to be a long-term facility, and now it’s a long-term facility without the money or resources,” said one Defense Department official who has toured the detention center. Comparing the prison with Guantánamo, the official added, “Anyone who has been to Bagram would tell you it’s worse.””

(Things have improved recently, though: “Corrals surrounded by stacked razor wire that had served as general-population cells gave way to less-forbidding wire pens that generally hold no more than 15 detainees, military officials said.”

When wire pens holding fifteen people count as an improvement, something has gone badly wrong.)

Moreover, while many of the prisoners at Guantanamo have lawyers, those at Bagram don’t:

“But some of the detainees have already been held at Bagram for as long as two or three years. And unlike those at Guantánamo, they have no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as “enemy combatants,” military officials said.

Privately, some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guantánamo to challenge their detention in United States courts.

While Guantánamo offers carefully scripted tours for members of Congress and journalists, Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the International Red Cross and refuses to make public the names of those held there. The prison may not be photographed, even from a distance.”

Moreover:

“The most basic complaint of those released was that they had been wrongly detained in the first place. In many cases, former prisoners said they had been denounced by village enemies or arrested by the local police after demanding bribes they could not pay. (…)

As at Guantánamo, the military has instituted procedures at Bagram intended to ensure that the detainees are in fact enemy combatants. Yet the review boards at Bagram give fewer rights to the prisoners than those used in Cuba, which have been criticized by human rights officials as kangaroo courts. (…)

Reviews are conducted after 90 days and at least annually thereafter, but detainees are not informed of the accusations against them, have no advocate and cannot appear before the board, officials said. “The detainee is not involved at all,” one official familiar with the process said.”*

Bagram is scheduled to be shut down within about a year. Most of the detainees will be turned over to the Afghan government, but some may end up in the new high-security prison our government is building near Kabul.

***

As I read the Hamdan decision, it does require that the protections of Article 3 of the Geneva Conventions be extended to all detainees, including these. However, there doesn’t seem to be any way at all for this requirement to be enforced. It’s not just that it’s unclear either that Hamdan allows for an individual cause of action based on the Geneva Conventions, or that the arguments the court made in Rasul would apply to detainees held in Afghanistan. The more serious problem is: if no one other than the ICRC, which has a policy of strict confidentiality, is allowed to visit this facility; if the names of detainees are not released; if no one outside the government has any clue what’s going on there, or to whom, then how on earth can anyone try to enforce the law there? How could the detainees get lawyers? And how could those lawyers possibly represent them adequately without being allowed to meet them, learn about the conditions in which they’re being kept or the justification for keeping them there, and so on?

(I’d be interested in any lawyers’ take on this. How would one bring the law to bear in a situation like this if the government was determined to prevent it?)

In my more cynical moments, I interpret Bush’s claim that he wants to close Guantanamo down not as the expression of an idle wish, but in light of these facts. The Supreme Court, he might say, thinks we made a mistake in not treating detainees at Guantanamo in accordance with the Geneva Conventions. I think we made a mistake in allowing people access to those detainees. We corrected that mistake two years ago; we do have to figure out what to do with the detainees who are still at Guantanamo, but going forward, the Supreme Court won’t be bothering us anymore. Because we have created a real legal black hole, from which no light escapes.

And if it turns out that the administration did slip up by allowing one tiny piece of information to slip out — specifically, the name and location of their new Guantanamo — and this somehow allows the courts to extend legal protections to the detainees there, I predict a sudden increase in the populations of the black sites, about which not even that much is known.

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by hilzoy

When I read the majority opinion in Hamdan (pdf), I thought to myself: I can see, right now, that one part of this decision can be taken out of context and made to sound ridiculous, even though when you actually read the decision, it isn’t. And lo! Andrew McCarthy at The Corner makes the very point I had anticipated, in addition to another so stupid it didn’t even occur to me. I’m just going to go through these points — plus one more about the Detainee Treatment Act — for the benefit of those of you who don’t want to read the entire 185 pages of legal reasoning for yourselves, so that you can put these objections in context.

The unanticipated point is that if the Supreme Court rules that al Qaeda detainees have Geneva protections, then “the Supreme Court will have dictated that we now have a treaty with al Qaeda”. Wrong. Al Qaeda is not a signatory to the Geneva Conventions. In signing and ratifying those Conventions, we did not enter into a treaty with them. What we did was: to enter into a treaty that governs our conduct with respect not only to soldiers of countries that have signed and ratified the Geneva Conventions, but also with regard to other people. That does not mean that we have “a treaty with those people”, any more than the fact that the fact that members of the Kiwanis Club have Geneva protections means that each of the 71 state parties (pdf) to the Geneva Conventions has a treaty with the Kiwanis Club. To say that it does mean this is just dumb.

The point I expected concerns the Court’s reasons for holding that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. (It’s called ‘Common Article 3’ because it is Article 3 in all four Geneva Conventions; see, for instance, here.) Article 3 reads as follows:

“Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons 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, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

The point I expected was: but this only applies to “armed conflict not of an international character”. Our fight against al Qaeda is obviously of an international character! They attacked us here; we attacked them in Afghanistan; how much more “international” can you get?

What follows is an attempt to explain and gloss the Court’s reasoning, as I understand it. I think I agree with it, though I’d feel more confident if i knew more about the history of the Geneva Conventions. However, my point here is not to convince anyone that it’s right, but just to make it clear that it’s not the silly point that the objection above makes it sound like.

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by Katherine

The current debates over the Feingold resolution and the NSA surveillance program & the ongoing debate over the torture scandals involve a lot of convoluted legal arguments about executive power. It can get really difficult and frustrating for non-lawyers to sort them all out. (Actually it can be that way for lawyers too, but lawyers get three years of instruction in legalese & then get paid to read and write it for a living, It’s a lot worse for everyone else.)

To make this a little easier, I’ve prepared a handy-dandy little guide for decoding the administration’s arguments and reassurances on these topics:

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by hilzoy

From the NYT:

“The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush’s domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.

The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.

But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in the department saw any concrete limits to the president’s powers in fighting terrorism.

With the committee scheduled to hold the first public hearing on the eavesdropping program on Monday, the Justice Department’s stance could provoke another clash between Congress and the executive branch over access to classified internal documents. The administration has already drawn fire from Democrats in the last week for refusing to release internal documents on Hurricane Katrina as well as material related to the lobbyist Jack Abramoff.”

This is serious. Our President has already said that, in his opinion, all it takes to respect the checks and balances of our system of government is to tell eight members of Congress what he’s doing, under conditions of secrecy so extreme that they were not allowed to discuss the program with anyone and had to stash handwritten letters questioning its legality away in safes. He has chosen to circumvent the courts set up to issue warrants for domestic surveillance. He is now defying the Congress, the only remaining branch of government that could possibly exercise any oversight over his actions, actions that a lot of people have argued are illegal. (see, e.g., here.) As Katherine said, he is asserting unchecked power to do as he pleases, without even allowing any sort of oversight of his actions.

This is intolerable in our system of government. If Congress has any self-respect or independence left, they will not let this stand.

I discuss the legalities, as I understand them, below the fold. As always, ianal.

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by Edward_

I was thinking today as I read an anti-Roe advertisement in the Times that the battle over abortion is like the war against drugs…a farcical bit of theater that does very little to address the supposed moral issues involved and ultimately only serves to punish the poor. As this connection became clearer to me, I realized that I have been totally off-base about what I had assumed was the true danger behind Alito being confirmed for SCOTUS. Circuses like "the war on drugs" and abortion battles don’t occupy the minds of the most powerful people in the world, not once the cameras are turned off anyway. And despite his rallying cry to the anti-Roe crowds that they "will prevail," it struck me that Bush’s keen interest in Alito has nothing to do with whether or not only those who can afford a plane ticket to New York or Europe (if it comes to that) will be able to get an abortion in this country. It couldn’t.

So what then? What was driving his support for this choice that he knows will further divide the nation? I had no idea.

Andrew Sullivan has some idea, however. In a column outlining the extraordinary use of "signing statements" by President Bush ("In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105. […] In five years, President Bush has already challenged up to 500 provisions…."), he illustrates why Bush has never bothered to veto a single bill during his presidency. He doesn’t need to:

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by hilzoy

The Supreme Court today ruled (pdf) that the Attorney General does not have the right to decide that doctors who prescribe controlled substances under Oregon’s Death With Dignity Act can be prosecuted. This means that physician-assisted suicide can continue in Oregon, where it is legal subject to very tight controls and is used pretty rarely (pdf).

I suspect that this is one of those decisions that will outrage a lot of conservatives, despite the fact that it is, at bottom, a very conservative opinion. For some reason, while most of us have no trouble understanding that we should support e.g. a fair election in which our side lost, because having a system in which we choose our representatives through elections matters more than getting the result we want in any given case, lots of people seem to have trouble taking a similar view of court cases. Some liberals have been known to argue that anyone who opposes something ought to think that federal laws against it should be upheld, regardless of whether those laws have anything to do with any power given to Congress under the Constitution. Likewise, some conservatives who normally rail against judicial activism in the abstract are furious when the court strikes down laws banning things they happen not to like, regardless of whether or not the Congress had the right to enact those laws. In both cases, the idea that one might like a procedure for making decisions better than any alternative, even when in a given instance it produces a result one doesn’t like, seems to get lost.

In this case, Attorney General Ashcroft was asserting that the Controlled Substances Act gave him an extraordinary amount of power: the power (1) to interpret the Controlled Substances Act (and specifically to decide what its requirement that drugs be prescribed for a ‘legitimate medical purpose’ means), and therefore (2) by deciding what the ‘legitimate practice of medicine’ means, to regulate the practice of medicine, which has traditionally been left to the states; and (3) to criminalize any conduct by doctors that does not accord with his interpretation. These are large powers, and it’s hard to read the Controlled Substances Act as having granted them to the Attorney General. Traditional conservatives should be concerned by any such federal power grab, especially since there is no reason whatsoever to think that it can only be used in the context of physician assisted suicide.

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by hilzoy

I have written previously about the case of Abu Bakker Qassim and A’del Abdu al-Hakim, the two Uighurs who are still being held at Guantanamo, four years after they were captured by bounty hunters and turned over to the US for cash, and nine months after a tribunal found that — oops! — they were not enemy combatants after all. Today the judge who is hearing their case issued an extraordinary decision.

In it, the judge reached two conclusions. The first is that the detention of Qassim and al-Hakim is illegal:

“The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.”

The second is that there is nothing he can do about it:

“In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared “no longer enemy combatants.” Now facing that question, I find that a federal court has no relief to offer.”

We are illegally detaining innocent people, and there is nothing that a federal court can do about it.

I’ll stop for a moment to let that sink in.

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by hilzoy

Yesterday, President Bush admitted that he authorized the surveillance program described in Friday’s New York Times, which allows the government to conduct surveillance on American citizens without a warrant.

This is an extraordinary admission. But since some of our friends on the right are having difficulty understanding why, I thought I’d spell it out.

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by hilzoy

From the WaPo:

“The Defense Department has expanded its programs aimed at gathering and analyzing intelligence within the United States, creating new agencies, adding personnel and seeking additional legal authority for domestic security activities in the post-9/11 world. The moves have taken place on several fronts. The White House is considering expanding the power of a little-known Pentagon agency called the Counterintelligence Field Activity, or CIFA, which was created three years ago. The proposal, made by a presidential commission, would transform CIFA from an office that coordinates Pentagon security efforts — including protecting military facilities from attack — to one that also has authority to investigate crimes within the United States such as treason, foreign or terrorist sabotage or even economic espionage.

The Pentagon has pushed legislation on Capitol Hill that would create an intelligence exception to the Privacy Act, allowing the FBI and others to share information gathered about U.S. citizens with the Pentagon, CIA and other intelligence agencies, as long as the data is deemed to be related to foreign intelligence. Backers say the measure is needed to strengthen investigations into terrorism or weapons of mass destruction. The proposals, and other Pentagon steps aimed at improving its ability to analyze counterterrorism intelligence collected inside the United States, have drawn complaints from civil liberties advocates and a few members of Congress, who say the Defense Department’s push into domestic collection is proceeding with little scrutiny by the Congress or the public.

“We are deputizing the military to spy on law-abiding Americans in America. This is a huge leap without even a [congressional] hearing,” Sen. Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence, said in a recent interview. (…)

Perhaps the prime illustration of the Pentagon’s intelligence growth is CIFA, which remains one of its least publicized intelligence agencies. Neither the size of its staff, said to be more than 1,000, nor its budget is public, said Conway, the Pentagon spokesman. The CIFA brochure says the agency’s mission is to “transform” the way counterintelligence is done “fully utilizing 21st century tools and resources.”

One CIFA activity, threat assessments, involves using “leading edge information technologies and data harvesting,” according to a February 2004 Pentagon budget document. This involves “exploiting commercial data” with the help of outside contractors including White Oak Technologies Inc. of Silver Spring, and MZM Inc., a Washington-based research organization, according to the Pentagon document. For CIFA, counterintelligence involves not just collecting data but also “conducting activities to protect DoD and the nation against espionage, other intelligence activities, sabotage, assassinations, and terrorist activities,” its brochure states.

CIFA’s abilities would increase considerably under the proposal being reviewed by the White House, which was made by a presidential commission on intelligence chaired by retired appellate court judge Laurence H. Silberman and former senator Charles S. Robb (D-Va.). The commission urged that CIFA be given authority to carry out domestic criminal investigations and clandestine operations against potential threats inside the United States.”

This is serious.

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by hilzoy

As Katherine noted last night, the Senate approved the compromise Graham/Levin/Kyl amendment that she wrote about the night before. Like Katherine, I don’t know what to make of it, beyond the following obvious points. First, it’s a lot better than the original Graham amendment. I think that this improvement had a lot to do with the pressure brought to bear by people who were outraged. Anyone who called or wrote contributed to this, and can feel proud, as can those who worked behind the scenes in other ways.

This is how democracies are maintained: not just by having (for instance) a bill of rights and a democratic constitution, but by having free citizens who work to protect those rights even when they are not personally affected. By working to block this amendment, all of you have helped to make it true that we are not a country where fundamental rights can be stripped away without anyone bothering to raise his or her voice. Moreover, I would imagine that each of us has learned something about what habeas corpus is and why it matters. (I know I have.) This makes it that much less likely that the next time around, people will be able to succeed in curtailing it. And this matters immensely: democracies are maintained by the free choices of free citizens to protect the freedoms they enjoy, and everyone who fought this has acted as free citizens should.

On the other hand, this bill is worse than the status quo ante, since it strips the detainees of habeas corpus. Habeas petitions were not “clogging” the court system: if our courts are so fragile that fewer than two hundred petitions can bring them to their knees, then we really, really need to appoint more judges. And habeas matters. It matters a lot. As a sort of requiem for this whole thing, I’m going to write what would have been my next post in the series had I not been incredibly busy for the last two days, as the last of my habeas stories.

In the comments to an earlier post, someone thought that I was using O.K. as a “poster boy” for habeas corpus. I wasn’t: I was tracking down the stories Graham used, and in O.K.’s case I tried to make it clear that he was accused of doing serious things, and that his goodness or badness seemed to me to have nothing to do with whether or not his allegations should be investigated. The case I am about to describe, however, is a poster child for habeas corpus. The detainees involved have been found innocent by the government’s own tribunals. They are asking the government to explain why they are still being detained. This is exactly what habeas corpus is all about. It is also a case that cannot be brought under the new compromise bill; and that is a disgrace.

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by Katherine

At 12:06 today the Senate voted down Bingaman’s revised amendment, 44-54. Republicans voting for: Specter, Smith, Sununu, Chafee. Democrats voting against: Bayh, Conrad, Lieberman, Ben Nelson. Not voting: Alexander, Corzine.

At 12:30 today the Senate approved the Graham-Levin-Kyl substitute amendment, 84-14. I originally assumed when I saw the count that the 14 votes were the hard core outraged-by-the-outrage crowd, since after all this substituted for an even worse amendment. I was wrong about that. If you look at the list–Baucus, Biden, Bingaman, Byrd, Dayton, Durbin, Feingold, Harkin, Kennedy, Lautenberg, Leahy, Rockefeller, Sarbanes, Specter–it’s clearly a protest vote by senators who simply would not put their names on any bill to strip habeas.

Last night I mentioned six senators as being especially engaged and trustworthy on the torture issue: Bingaman, Durbin, Feingold, Kennedy, Leahy, Levin. I said that when you didn’t really know what was going on, you could do worse than following their and their staffs’ leads. Five of them seem to have felt they could not support this amendment, even though it replaced an even worse one. The other is Levin, and I guess he felt that he had to vote for the compromise he arranged.

At 12:50 today the Senate passed S. 1042, the defense appropriations bill that all these amendments concerned, unanimously.

So. What the hell happened? And what will it mean for the people in Guantanamo?

No one seems to know. I mean that quite literally:  I don’t think there is a single person in the country who could tell you with any confidence what effect this bill will have. Marty Lederman lists just a few of the open questions here.

Most of the people who could make the best guess at what this will mean don’t want to talk about it. It’s too late to fix it now. If they point out how it could be worse, the conference commitee will make it worse. If they point out how bad it could be, the administration will use their arguments against them later on in court, when it’s arguing for the most draconian interpretation possible.

The standard cliche at this point is to talk about how making laws is like making sausages–you’ll feel a lot better if you don’t see how it actually happens. But according to my Joy of Cooking,

If sausage has the vestiges of a murky reputation in this country, it is probably because of our long-held (and usually mistaken) belief that sausage is made from "parts"–not just various internal organs but the ears, lips, or tails of animals. Most of what is available in America today, no matter what its ethnic origins, is made from nothing more than meat, fat, and spices–and the commercial sausage industry is highly regulated.

So, apparently the comparison would be unfair to sausages. People are looking for other imagery. The prize so far goes to Gita Gutierrez of the Center for Constitutional Rights, who told Newsday: "On the back of a cocktail napkin they have tossed aside protections of individual liberty that have been in existence for centuries."

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All right. There are two new amendments:

Graham has proposed an amendment to his own amendment, which is co-sponsored by Carl Levin and John Kyl. Here is a PDF of it. It still cuts off habeas but it allows more judicial review than the version that Graham stuck into the appropriations bill last Friday. Bingaman has also proposed a new amendment. Here’s a PDF of that. It allows habeas, but it cuts off lawsuits challenging the conditions of confinement.

I know Graham’s new amendment is an improvement over his Friday amendment, while Bingaman’s amendment is, in an effort to garner votes, worse than his earlier amendment. I don’t really know how much better and worse in either case. Of the four cosponsors of those amendments, I trust Levin and Bingaman quite a lot and Graham (after this episode) and Kyl (as always) not at all. And Levin has stated that he prefers Bingaman’s amendment to the one he co-wrote with Graham and Kyl, but that one is still far preferable to the one that passed Friday.

The AP, Reuters, and the Washington Post have all written articles on these provisions. The Post article says the Levin/Kyl/Graham Amendment might be linked to the McCain amendment in an effort to get both of them through conference. I don’t know if that’s true, and I don’t know if it’s a good deal or a bad deal if it is true. At this point I don’t trust Graham at all, and I don’t trust McCain much. The only advice I can give is to name a few of the Congressmen in Washington who I think are the most trustworthy and dedicated on this issue: Levin, Durbin, Bingaman, Leahy, Feingold, Kennedy. Markey and I think also Murtha in the House. If you don’t know what’s going on, find out what they’re doing and ask your own reps. to do the same.

I apologize for leaving everyone hanging like this. I can’t tell you how frustrating it is to have done as much as possible to research this issue, which has such a huge effect on hundreds of people’s lives and on what kind of country the United States will be, and to not even really understand what these bills mean on the day before the Senate votes on them. I went to law school, and have very smart people who know a lot about this issue trying to explain this to me, and I still feel like  I’ve wandered into this scene. As Judge Joyce Hens Green said of Moustafa Idr’s trial, it would be funny if the stakes weren’t so horribly high.

Unfortunately I don’t think I can update this tomorrow, so hopefully some of our commenters can fill the gaps.

I should say, despite the negative tone of this post: the situation looks a lot better now than it looked Friday or last night. Thanks to everyone who linked or called their Senators.

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by Katherine

Unless the Bingaman amendment is introduced Tuesday instead of Monday, or hilzoy has something up her sleeve, I think this is the last post we are going to be able to do on this subject. It will also be the shortest.

First, I wanted to provide links to all the posts about the Graham/Bingaman Amendment in one place: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13.

[UPDATE: Also 14, 15, 16, 17.]

Second: you may be saying "you make some good points, but this is complicated and I’m not sure I completely agree." Or maybe even: "are you nuts?!!? You think I have time to read thirteen posts on this?" Well. If there is not enough time for you to even read all these posts–how in the hell is one hour on Thursday, and maybe a few more hours tomorrow, enough time for the Senate to deliberate on this bill? Why on earth is this being pushed through on an appropriations bill, with no hearings, no debate, on the strength of arguments that are (deliberately or inadvertantly) quite misleading?  When the Senators providing the margin of victory seem unaware of some key facts and of the legal implications of what they’re doing? We’re talking about habeas corpus here. We’re talking about indefinite detention under conditions that have prompted a large number of suicide attempts. We’re talking about serious charges of abuse. We’re talking about human beings, some of whom are terrorists and some of whom aren’t–some of whom even the pathetic CSRT process has determined are innocent. Could we maybe wait a few weeks, hold a hearing or two, have some real negotiations?

Third: if you agree, if not with our conclusions, than at least that this is maybe important and complicated enough that we could stand to wait a few weeks, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042. And please consider asking other people to do the same.

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