Finito la Commedia

Update: Norm Colman responds to my “Live Free or Die Horribly” letter!

Update to my previous post “Live Free or Die Horribly“:

Minnesota Senator Norm Coleman - aka The Empty SuitI have to give the guy credit: even though I specifically told him that I neither wanted nor expected a reply to my letter because I was sure he would just dismiss me as some “radical,” U.S. Senator Norm Colman sent a thoughtful, if a bit bright-eyed and idealistic, response to my angry e-mail. I think his response shows that he has considered the issues carefully, again to his credit. However, I have to conclude that he has not been watching the news. (Note: All typos below are as they appeared in his original e-mail.) My comments to follow:

Thank you very much for contacting me regarding military commissions for suspected terrorists detained at Guantanamo Bay , Cuba .

The Supreme Court decision in Hamdan v. Rumsfeld ruled that a new, Congressionally-mandated system was needed to handle trials of detainees held at Guantanamo Bay . As a result, Senators John Warner, John McCain and Lindsey Graham introduced the Military Commissions Act (MCA) of 2006. This legislation was passed by the Senate on September 28th, 2006, by a bipartisan vote of 65 to 34 with my support. The House subsequently voted on the measure and it was signed into law by the President on September 29th. The MCA provides the statutory framework for military commissions to try alien unlawful enemy combatants, and uses the Uniform Code of Military Justice as the basis.

I believe that in dealing with enemy combatants being tried for war crimes, the U.S. must ensure due process while administering justice. I believe that the trials authorized by the MCA, together with the system currently used to ascertain the status of suspected terrorists, will provide suspected terrorists with due process. Under the MCA, every detainee will have the opportunity to defend himself before a military commission, the structure of which exceeds all of our obligations as signatories of the Geneva Conventions and our own statutes.  Suspected terrorists will even have access to classified evidence being used to prosecute them, with certain protections for our national security.

The MCA language also maintains the prohibition on torture that was clearly spelled out by Congress in the Detainee Treatment Act (DTA) of 2005. I strongly condemn the use of torture and voted in favor of this legislation that was signed into law on December 30th, 2005. Since the DTA established that cruel and inhumane treatment for detainees is illegal, the MCA builds on this framework by stating that no evidence derived from this type of treatment after the passage of the DTA is to be used against suspected terrorists in their trials.

The MCA language also maintains the prohibition on torture that was clearly spelled out by Congress in the Detainee Treatment Act (DTA) of 2005. I strongly condemn the use of torture and voted in favor of this legislation that was signed into law on December 30th, 2005. Since the DTA established that cruel and inhumane treatment for detainees is illegal, the MCA builds on this framework by stating that no evidence derived from this type of treatment after the passage of the DTA is to be used against suspected terrorists in their trials.

A prominent issue that arose with the Military Commissions legislation was the question of whether habeas corpus rights should be extended to non-citizen enemy combatants. The primary purpose of habeas corpus rights, which are guaranteed for U.S. citizens, is to allow for individuals to contest the legality of their detention through our civilian court system. Senator Arlen Specter (R-PA) introduced an amendment to the MCA that would have extended habeas corpus rights to enemy combatants, which was defeated by a vote of 48-51. I opposed the amendment as I do not believe alien enemy combatants are entitled to access to U.S. civilian courts through habeas corpus rights. Such a measure would be duplicative given the robust military system that has been established for these suspected terrorists to determine whether there is sufficient cause for their detention at Guantanamo .

I would like to emphasize that I agreed with the intention of the Specter provision, which was to provide an opportunity for suspected terrorists to contest the legality of their detention in Guantanamo .  However, suspected terrorists already have such an opportunity through the Combatant Status Review Tribunal (CSRT) system, which far exceeds any requirements of the Geneva Conventions. The status of detainees is also up for review every year through the Annual Review Boards, which reconsider whether detainees still constitute a threat to the U.S. Finally, detainees also have the right to appeal the decisions of the CRST to the D.C. Circuit Court of Appeals, thereby allowing for an unprecedented level of judicial review for enemy combatants. Essentially, alien enemy combatants detained at Guantanamo have equivalent protections granted by habeas rights through civilian law, only through a military system.

It is important to keep in mind that the application of habeas corpus rights is standard for American citizens facing criminal charges, but historically has not been applied to non-citizen enemy combatants who are charged with crimes of war. The difference between criminal law and the law of war is fundamental to this debate. The military has historically maintained a separate system of justice from the civilian system due to the fact that the laws of war are fundamentally different from criminal laws, and military systems are the most appropriate vehicles for making military decisions and administering military justice. For this reason it is military judges and not federal judges who have previously been charged with making the determination of who constitutes an enemy combatant and who does not. I believe it is in the best interest of this country to follow this precedent.

In addition, providing habeas privileges to enemy combatants could have harmful unintended consequences for our national security. There are numerous examples of frivolous habeas petitions that have been made by detainees at Guantanamo on items ranging from demanding access to high-speed internet and complaining about the speed of mail delivery. Entertaining such frivolous petitions would allow for detainees to avoid interrogation while their petitions are in limbo, thereby preventing our military from collecting intelligence critical for fighting the War on Terror and protecting our nation.

Again, the fundamental question is not whether due process should be ensured, but whether a military or civilian system is more appropriate for individuals engaged in hostilities against the U.S.   It is important to note that at the end of hostilities of World War II, over two million enemy combatants were held under U.S. custody. Our nation did not grant habeas privileges to these individuals, and those who were tried for war crimes were subjected to military tribunals. Granting habeas corpus rights to alien enemy combatants would overturn all historical precedent for administering justice for war criminals, and could ultimately undermine our national security. For this reason, I oppose the extension of habeas corpus rights to alien enemy combatants and believe that a better solution is to ensure a strong Combatant Status Review Tribunal system, which was strengthened by a provision added to the Defense Authorization bill of 2005 by Senator Lindsey Graham (R-SC). 

Overall, this legislation allows due process for all enemy combatants, but without compromising our national security. Khalid Shaykh Muhammad, the mastermind of the 9/11 attacks, was recently transferred to the Guantanamo detention center. He and other high-level terrorists may now be tried through the application of the Military Commissions Act. It was critical for Congress to take action on this front and establish a system for the U.S. to bring terrorists to justice in a manner that provides them with a fair trial while preserving our national security.

Thank you once again for your interest in this issue. I value your input and hope you continue to contact me with a ny further issues you may have.

Norm Coleman
United States Senate

Hey, I think it’s sweet that a U.S. senator would believe that our country is 100% honest, straightforward, and good. We might live in a much nicer world if all of our elected officials were as starry-eyed as Mr. Coleman purports to be.

But that world isn’t real.

For example, consider this report by MSNBC in which nine very senior military and intelligence officials describe what they call potentially “a crime, conspiracy to commit torture,” and how their attempts to stop abusive interrogation tactics (what the rest of us call “torture”) were turned away by Donald Rumsfeld:

In interviews with,…former senior law enforcement agents described their attempts to stop the abusive interrogations. The agents of the Pentagon’s Criminal Investigation Task Force, working to build legal cases against suspected terrorists, said they objected to coercive tactics used by a separate team of intelligence interrogators soon after Guantanamo’s prison camp opened in early 2002. They ultimately carried their battle up to the office of (former) Secretary of Defense Donald H. Rumsfeld, who approved the more aggressive techniques to be used on al-Qahtani and others.

Although they believed the abusive techniques were probably illegal, the Pentagon cops said their objection was practical. They argued that abusive interrogations were not likely to produce truthful information, either for preventing more al-Qaida attacks or prosecuting terrorists.

I am actually a very practical person. If I truly believed that torturing someone would save hundreds or thousands of lives, I would be willing to reconsider my position. But experts in this field say that it will not.

Furthermore, I believe that torturing people – no matter how secret George Bush thinks we can keep it – will ultimately end with the deaths of many, many more people. The reason is that the United States has had, however undeservedly, a reputation for upholdinghuman rights. For standing up for individual rights in the face of group preference. For believing that individuals are important. For being a country based not simply upon geography or tradition, but upon principal.

We have squandered that reputation. That is the true danger.

So thanks, Norm, but I don’t think I’ll be voting for you when you come up for reelection in two years. As you seem willing enough to tie yourself to the coattails of Dubya and the neocons…chicken hawks…whatever, I can hope that if you don’t look back on these events with great shame, I do hope you will at least be judged at election time on your loyalty to your party. I don’t see how you can be judged favorably on your loyalty to what makes America…well, unlike Taliban Iraq.


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