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"Retroactive Immunity?"

By       Message Sarah Swatosh     Permalink
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The Senate's endorsement to President Bush's plan to prosecute and interrogate terror suspects Thursday may have sealed the deal to a new definition of what is permissible in the Geneva Convention's third article. The legislation was one of two that the President insisted Congress address before its adjournment on October 6th.

Such a rush to pass the bill has left many feeling that it is less about the bill and more about pushing a particular political agenda. As democrats are poised to become more dominant in the congressional scene in this November's midterm elections, the Republicans are pushing whatever agendas they may find to take the focus away from the President's failures in Iraq.

To deny him his new bill, the opposition would somehow seemingly take the stance of siding with the terrorists, making them anti-American. President Bush stated about the interrogations of suspected terrorists: "This program has been one of the most vital tools in our efforts to protect this country....[W]e need this legislation to save it."

This came only a short while after Rumsfeld compared Bush's critics to Nazi appeasers.

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The Geneva Convention prohibits "any acts at any time and in any place whatsoever of violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture...outrages upon personal dignity, in particular, humiliating and degrading treatment..."

While the new bill would prohibit blatant maltreatment of detainees, it would allow the president considerable power to decide what interrogation techniques are legally permissible. The President's supporters hold that this new bill will allow the President to keep America safer, not by rewriting the Geneva Convention, but by merely defining it, while the opposition asserts that it is unconstitutional and flawed.

The Geneva Convention could use explicit explanation as to its terms; however, will permitting the president flexibility to identify what is permissible really define those terms? Not only does the new bill provide serious leeway to the torture tactics used by the U.S. against foreign detainees, it completely disregards the Habeas Corpus laws of prohibiting detention of suspects without a charge. The bill as written would allow the executive branch to hold any lawful immigrant in the United States indefinitely without charge.

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Aside from the obvious contention with this new bill, it also begs the question: What are the ramifications of this bill, and what other doors does it open? Some have hinted that the passing of the bill will not only let the U.S. continue their interrogation and torture methods, but that they intend to "retroactively legitimize the earlier torture of detainees."

Is this kind of retroactive immunity permissible? Should we really be able to walk away from guilt by simply creating new laws and making them retroactive?

Mary Ellen O'Connell, a professor of International Law at Notre Dame, stated, "Have we known of any other time in our history when we have tried to immunize public officials against crimes after they have committed them?"

Not to mention the dangers this provokes to our own soldiers as other countries may decide that they too would like a new definition of what "torture" means. McCain says of the new bill: "Weakening the Geneva protection is not only unnecessary, but would set an example to other countries, with less respect for basic human rights, that they could issue their own legislative 'reinterpretations'."

Ways in which torture has been used at Guantanamo Bay: serious psychological torture such as water boarding; shackling to the floor in fetal position for 24 hours at a time, while allowing prisoners to defecate upon themselves; extreme heat or extreme cold; sleep deprivation; sexual humiliation; brutality, humility and degradation.

In terms of specifically defining what is an "outrage upon personal dignity, in particular, humiliating and degrading treatment," I think it is safe to say that these "interrogation methods" are all of the above; yet these are the exact treatments that President Bush wants to legalize under this new bill.

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It is quite clear that this bill has been debated with large amounts of contention; a similar previous plan was invalidated by the Supreme Court in its June decision in Hamden v. Rumsfeld (2006). Can we be assured that by devaluing human life, it is worth its cost in securities gained? Should we stop questioning the legality and morality of new legislation handed down to us by the Bush administration? The President has said that the "Democrats have endless questions," and only want to "cut and run" when it comes to the war.

Given the Administration's past quality of investigation, especially with our current war and the awesome disappearing act of those weapons of mass destruction, we had absolutely better ask the questions. No law, that is arguably unconstitutional, should pass through Congress in a rush, as a probable political agenda, with questions unasked; nor should any president hint that this would be a more democratic way to regard a new legislation.

By passing this bill, this administration is proving that it will go to no ends to rewrite and re-identify our moral and constitutional laws. With a preemptive war, the USA PATRIOT act, and this legislation defining the laws of torture and detention, we are setting a terrifying precedent for the future - for ourselves and for other countries.

 

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Sarah Swatosh is a student of Political Science and Journalism

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