an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times reports that the Administration has pressed to exempt the CIA from the proposed McCain Amendment's ban on abusive treatment of detainees.
The Senate defied a presidential veto threat nearly three weeks ago and approved, 90 to 9, an amendment to a $440 billion military spending bill that would ban the use of "cruel, inhuman or degrading treatment" of any detainee held by the United States government. This could bar some techniques that the C.I.A. has used in some interrogations overseas.
But in a 45-minute meeting last Thursday, Vice President Dick Cheney and the C.I.A. director, Porter J. Goss, urged Senator John McCain, the Arizona Republican who wrote the amendment, to support an exemption for the agency, arguing that the president needed maximum flexibility in dealing with the global war on terrorism, said two government officials who were briefed on the meeting. They spoke on condition of anonymity because of the confidential nature of the discussions.
Mr. McCain rejected the proposed exemption, which stated that the measure "shall not apply with respect to clandestine counterterrorism operations conducted abroad, with respect to terrorists who are not citizens of the United States, that are carried out by an element of the United States government other than the Department of Defense and are consistent with the Constitution and laws of the United States and treaties to which the United States is a party, if the president determines that such operations are vital to the protection of the United States or its citizens from terrorist attack."
As Marty Lederman has pointed out here, the purpose of the amendment is not to give the President "maximum flexibility" for the future, but rather to exempt the CIA so that it can continue to do what it has been doing for some time.
The language of the proposed exemption seems to require adherence to existing human rights treaties like the Convention Against Torture, but the Bush Administration has taken the (unreasonable) position that the ban on cruel, inhuman, and degrading treatment of prisoners in the CAT does not apply to overseas interrogations, which gives the CIA the green light to engage in cruel, inhuman and degrading treatment that stops just short of torture as the Administration (narrowly) defines that term.
One interesting result of the negotiations over the McCain Amendment is that they place the Administration in the position of having to accept (at least provisionally) that at least some forms of Congressional restraint on the executive's powers to interrogate are constitutional.
Obviously, the Administration may turn around and say that all such limits are unconstitutional, but it will politically become more difficult to do so after this.
Such conduct is already illegal under 18 USC 2441, and the only way this administration will ever respect the law is to prosecute them for their crimes.
The whole issue becomes very clear if you simply understand that the President of the United States is literally claiming the unreviewable authority to gang-rape two-year-old children and eat them for dinner.
If anyone wants to deny that is an accurate statement, all they have to do is show where the administration recognizes any limitation on the President's claimed "authority" IN THE LAW. In fact there is nothing in the Constitution or any other law that would authorize the President to assume the powers of Caligula, and to suggest otherwise is a complete perversion of the Constitution - the President is entirely a creature of the law whose only purpose is to EXECUTE the law, and he has absolutely no authority whatever outside the law.
No supporter of the administration's criminal detainee policies has ever done anything but dodge that question. The truth is quite simple: this is an administration of neo-fascist gangsters, and that's a plain fact.
I for one would at least like to hear an Administration lawyer be questioned by the Senate as to whether raping a 2-year-old and then eating him for dinner would in fact be outside the scope of presidential authority, and if so, on the basis of what statute.
Task yourself to devise a diabolical plan aimed at the ruination of the United States of America -- bankrupting our moral standing in the world; looting our treasury; subverting our civil rights; spoiling the commons; and so on -- and not from without (ala, some wacky radical muslim caliphate), but from within. Wouldn't that plan look an awful lot like the post-9/11, Bush/GOP agenda? And wouldn't Cheney and Rumsfeld be perfect choices to implement such plan?
But wait! We don't have to bother ourselves. It's already being done!
How will we ever recover from this insanity?
War crimes trails, even to include waterboarding Rumsfeld at a session of the UN Security Council or on the steps of the Hague, would scarcely begin to set us right.
No longer the sole, global superpower, we are now tatooed (can't wash it off) and targeted (generations will sing for our demise) as the planet's #1 criminal regime. Say goodbye to US preeminence in the world. "Bye-bye!"
It's looking alot like our grandchildren will be learning to speak Chinese.