The most remarkable thing about Rep. McHugh's letter is that it does not even mention the most appalling aspect of the MCA, the end of habeas corpus. He also does not talk about the President's unlimited ability to declare anyone an enemy combatant, or the incredible loss of rights American citizens suffer when they are moved to enemy combatant status. Finally, he does not talk the fact that US citizens who are accused of being alien enemy combatants have no way to challenge that finding.
Here is a little of what he does say. After thanking Bill for his concern, giving some history of the MCA he says.
The Court in Hamdan decided that Common Article 3 of the Geneva Conventions – an article that many assumed only applied to regular armies–applies to terrorist organizations, like al Qaeda. As a result of this decision, our brave personnel in the military and other national security agencies are faced with an unpredictable legal landscape because the meaning of certain elements of Common Article 3 are vague.How did article 3 suddenly become vaguer? The military has been able to comply with Common Article 3 conflicts more pitched and bloody than this. What has changed?
Over the course of several months, the House and Senate Armed Services Committees and the Senate Judiciary Committee held hearings and briefings on standards of military commissions and tribunals, as well as the administration's recommendations. Subsequently, legislative measures were crafted to provide a comprehensive statutory structure for military commissions that will allow for the fair and effective prosecution of captured members of al Qaeda and other unlawful enemy combatants.Did you notice the presumption of guilt here? The people on trail are assumed to be members of Al Quada, this despite the fact that large numbers of people who have survived the military commissions process have turned out to be completely innocent, picked up on little or no substantial evidence. The presumption of guilt is one of the most powerful rhetorical tools the administration has been using. We are constantly assured that the people in Gitmo are "the worst of the worst," when in fact we have no reason to think this is true, and the whole process eviscerating the courts is set up to keep up from ever learning if this is true. Ok, here's some more McHugh
The suggestion that the Military Commissions Act condones torture or that the legislation implicitly permits, "enhanced torture techniques" is absolutely false and contradicts the very language in the bill. First, it is illegal under U.S. law to torture – this was true before and it will remain true. Moreover, the measure makes torture a war crime that can result in the death penalty. This means that under the War Crimes Act, any U.S. personnel that engages in torture will be subject to prosecution for committing a war crime. Additionally, in the context of military commissions, a statement obtained through torture is not admissible.Well, there might be some technical sense in which these things are true, but for all practical purposes they are not. The law explicitly says that evidence gained by “coercion” is allowed. ((3(949a)(C))., see Karl Schonberg’s analysis here.) The other important fact is that the administration still gets to decide what counts as torture. And they have already told us that they aren’t going to count anything as torture. The practical upshot is clearly that the Military Commissions Act allows the government to waterboard a confession out of you, and then use that as evidence against you in your trail.
McHugh’s defense of his vote is feeble. Vote the jackass out of office.