Thursday, August 10, 2006

A new kind of amnesty

I found this at the Moderate Voice. According to the LA Times, the president is looking to push through amendments to the War Crimes Act that would RETROACTIVELY protect policymakers from criminal charges for authorizing humiliating and degrading treatment of detainees. Two attorneys who saw the proposal said that the draft is in the revision stage but that the president is looking to present the major points to Congress by Labor Day.

A lawyer for the National Institute of Military Justice suggests what many people are going to see this to be: "I think what this bill can do is in effect immunize past crimes. That's why it's so dangerous... [the initiative was] not just protection of political appointees but also CIA personnel who led interrogations."

This leads right back to the credibility problems that the administration has suffered through for the last several years. The President assured the public that what went on (which took uncovering for people to learn) was legal, and then when it was determined not to be legal, he attempts to push through amendments to contravene the judiciary's determination, and not just from its passage, but also for past (alleged) crimes.

Now, let's do a little analysis. The amendments to the law the president wants to pass would apply retroactively. According to my Black's Law Dictionary, the definithion of an ex post facto law is a law that applies retroactively. Now, according to my copy of the Constitution, Article I, Section 9, Clause 3 states: "No Bill of Attainder or ex post facto Law shall be passed."

A strict Constructionist, which is what the president urges in a judge, should look at the amendment as proposed, and determine that it is unconstitutional. Now, a look at our Court's interpretation of this clause, and we find that the definition itself is a little more limiting, and that the Founders intended this only to apply to laws that make something that was innocent or non-criminal prior to passage and criminalize it both before and after passage. (Calder v. Bull, 3 U.S. 386 (1798)). So it becomes a matter of interpretation. If these amendments, as reported, were to pass, and they were to be challenged, wouldn't the people who urge adherence to a strict constructionist interpretation of the constitution HAVE to concede that the president urged Congress to violate the Constitution?

There is another thing to note. These proposed amendments would work for political appointees and policymakers, but would not offer any shield or protection for the soldiers who actually did what was ordered of them. They fall under the blanket of the UCMJ, and thus these amendments wouldn't touch them. This means that if the actions were criminal, the people who told the soldiers to do what they did are safe while the ones who are forced to obey the orders of those appointed over them are not. That strikes me as rather unfair.

Finally, there's the perception issue. The perception that a proposed amendment like this sends to the people of America is that we want to protect those who we put in danger. The perception in the Europe will likely be that the administration acts recklessly with no regard for the law or for others, while the perception in the middle east, the "islamofacists," as the administration likes to paint them, broad-brushed, will view this as America protecting those who detained and interrogated illegally, which is not the way to get that region to embrace our democratic way of life.

If this is the case, it looks like a GIANT political SNAFU to me.

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