The federal government has operated under legal theories which dozens of former senior officers have warned endanger US personnel in the field and has produced legal interpretations of the meaning of "torture" and "cruel, inhuman and degrading" treatment which had to be abandoned when revealed to the public. Interrogation practices were approved by the Department of Defense which former Bush Administration appointee and General Counsel of the Navy Alberto Mora described as "clearly abusive, and ... clearly contrary to everything we were ever taught about American values." According to media reports the CIA has used a variety of interrogation techniques which the United States has previously prosecuted as war crimes and routinely denounces as torture when they are used by other governments.

Instead of finally coming to grips with this situation and creating a framework for detaining, interrogating and prosecuting alleged terrorists which comports with the best traditions of American justice, the proposed legislation will mostly perpetuate the current problems. Worse, it would seek to eliminate any accountability for violations of the law in the past and prevent future judicial oversight. While we appreciate the efforts various members of Congress have made to address these problems, the "compromise" falls far short of an acceptable outcome.

The serious problems with this legislation are many and this letter will not attempt to catalogue them all. Indeed, because the legislation has only just been made available, many of the serious flaws in this long, complex bill are only now coming to light. For instance, the bill contains a new, very expansive definition of enemy combatant. This definition violates traditional understandings of the laws of war and runs directly counter to Pres. Bush's pledge to develop a common understanding of such issues with US allies. Because the proposed definition of combatant is so broad, the language may also have potential consequences for US civilians. For instance, it may mean that adversaries of the United States will use the definition to define civilian employees and contractors providing support to US combat forces, such as providing food, to be "combatants" and therefore legitimate subjects for attack. Yet, there has been no opportunity to consider and debate the implications of this definition, or other parts of the bill such as the definitions of rape and sexual abuse.

We strongly oppose the provisions in the bill that strip individuals who are detained by the United States of the ability to challenge the factual and legal basis of their detention. Habeas corpus is necessary to avoid wrongful deprivations of liberty and to ensure that executive detentions are not grounded in torture or other abuse.

We are deeply concerned that many provisions in the bill will cast serious doubt on the fairness of the military commission proceedings and undermine the credibility of the convictions as a result. For instance, we are deeply concerned about the provisions that permit the use of evidence obtained through coercion. Provisions in the bill which purport to permit a defendant to see all of the evidence against him also appear to contain serious flaws.

We believe that any good faith interpretation of the definitions of "cruel, inhuman and degrading" treatment in the bill would prohibit abusive interrogation techniques such as waterboarding, hypothermia, prolonged sleep deprivation, stress positions, assaults, threats and other similar techniques because they clearly cause serious mental and physical suffering. However, given the history of the last few years we also believe that the Congress must take additional steps to remove any chance that the provisions of the bill could be exploited to justify using these and similar techniques in the future.

Again, this letter is not an attempt to catalogue all of the flaws in the legislation. There is no reason why this legislation needs to be rushed to passage. In particular, there is no substantive reason why this legislation should be packaged together with legislation unrelated to military commissions or interrogation in an effort to rush the bill through the Congress. Trials of the alleged "high value" detainees are reportedly years away from beginning. We urge the Congress to take more time to consider the implications of this legislation for the safety of American personnel, for US efforts to build strong alliances in the effort to defeat terrorists and for the traditional US commitment to the rule of law. Unless these serious problems are corrected, we urge you to vote no.

Sincerely,

Human Rights Watch has this excellent article:

(Washington, D.C., September 26, 2006) The U.S. Congress should vote down the draft military commissions and detainee treatment bill, Human Rights Watch said today. In denying the fundamental right of habeas corpus to detainees held abroad, defining "unlawful enemy combatants" in a dangerously broad manner, and limiting protections against detainee mistreatment, the bill would undermine the rule of law and America's ability to protect its own citizens from unjust treatment at the hands of other governments. In its immediate practical impact, the most damaging of the bill's provisions is clearly its "court-stripping" provision, which would bar detainees in U.S. custody anywhere around the world from challenging the legality of their detention or their treatment via habeas corpus actions, even if they have been subjected to torture. Innocent people could be locked up forever, without ever having the facts of their case reviewed by an independent court.

If held to be constitutional, the court-stripping provision would result in more than 200 pending cases being ejected from the courts, including the case that resulted in the Supreme Court's landmark detainee ruling in June.

"It's no secret that the Bush administration deeply resents the court rulings that have recognized basic legal protections that shield detainees from abuse," said Kenneth Roth, Executive Director of Human Rights Watch. "Congress should reject the administration's blatant attempt to eviscerate the courts' role in the U.S. system of checks and balances."

The right to habeas corpus is one of the oldest and most fundamental of human rights protections. By stripping the courts of habeas jurisdiction over detainees, the U.S. would be signaling to the rest of the world that it is not bound by the rule of law in its treatment of them.

The bill has other dangerous provisions as well. The latest version of the legislation includes an extremely dangerous expansion in the bill's definition of "unlawful enemy combatant" a phrase used by the administration to justify holding a combatant outside of the usual protections given to combatants by the Geneva Conventions. It now explicitly deems persons who have "purposefully and materially supported" hostilities against the United States to be combatants, an unprecedented redefinition of "combatant" that could potentially cover a range of innocent people. Financing and support for terrorist activities are already criminal offenses in the civilian justice system. This definition would pervert any reasonable concept of what a combatant is.

p. Also recommended, Forget Nuremberg:

HOW BUSH'S NEW TORTURE BILL EVISCERATES THE PROMISE OF NUREMBERG.
By David J. Luban
Posted Tuesday, Sept. 26, 2006, at 5:15 PM

The burning question is: What did the Bush administration do to break John McCain when a North Vietnamese prison camp couldn't do it?

Could it have been "ego up"? I'm told ego up is not possible with a U.S. senator. That probably also rules out ego down. Fear up harsh? McCain doesn't have the reputation of someone who scares easily. False flag? Did he think they were sending him to the vice president's office? No, he already knew he was in the vice president's office. Wait, I think I know the answer: futility--which the Army's old field manual on interrogation defined as explaining rationally to the prisoner why holding out is hopeless. Yes, the explanation must be that the Bush lawyers would have successfully loopholed any law McCain might write, so why bother? Futility might have done the trick.

How else can we explain McCain's surrender this week on the torture issue, one on which he has been as passionate in the past as Lindsey Graham was on secret evidence? ...

Also read Yale Law Prof Jack Balkin:

I am puzzled by and ashamed of the Democrats' moral cowardice on this bill. The latest version of the bill blesses detainee abuse and looks the other way on forms of detainee torture; it immunizes terrible acts; it abridges the writ of habeas corpus-- in the last, most egregious draft, it strips the writ for alleged enemy combatants whether proved to be so or not, whether citizens or not, and whether found in the U.S. or overseas.

This bill is simply outrageous. I doubt whether many Democratic Senators or staffs have read the bill or understand what is in it. Instead, they seem to be scrambling over themselves to vote for it out of a fear that the American public will think them weak and soft on terror.

....If the Democrats do not stand up to the President on this bill, if they refuse to filibuster it or even threaten to filibuster it, they do not deserve to win any additional seats in the House or in the Senate. They will have delivered a grievous blow to our system of checks and balances, stained America's reputation around the world, and allowed an obscenity to disfigure the American system of law and justice. Far worse than a misguided zealot is the moral coward who says nothing and allows that zealotry to do real harm.

One more: Marty Lederman who writes Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely.