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
"Final" Version of the Warner-McCain-Graham bill on military commissions
The so-called "final" version of the Warner-Graham bill, now dubbed the Warner-McCain-Graham bill on military commissions, can be found here. It is still a very bad bill, eliminating judicial review and habeas corpus, and limiting criminal enforcement of Geneva Common Article 3 under the War Crimes Act (apparently Geneva CA3 is still law, but only "grave violations" of Geneva are criminally enforceable). Additionally (p. 82), the new bill says that "no foreign source of law can be used in defining or interpreting" America's obligations under title 18 of the U.S. Code-- i.e., the U.S. criminal code, which would include, presumably, the War Crimes Act and the anti-torture statute.
But even this is not good enough for George W. Bush. Apparently the President has made noises that if he doesn't get provisions actually limiting the scope of Geneva Common 3-- also known as the right to "alternative sets of procedures" (the prisoner abuse that dare not speak its name)-- he will veto the bill. Let's see now, preventing stem cell research and protecting the right to torture-lite-- yes, I can certainly see why those are the two things sufficiently important in the world that George W. Bush would threaten a veto.
Marty's post suggests that the Administration has now conceded that waterboarding is now illegal under the McCain amendment. I am not so sure, although I would be delighted if it were so. The key problem, as Marty points out, is that the Administration has simply been unwilling to admit to what it has done and what it would like to keep on doing-- in the name of protecting freedom and human rights, of course.
The second paragraphh of the Declaration of Indepedence, signed on July 4, 1776 said:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...."
So although we often look to our own Constitution for our Rights, our Founding Fathers believed that these unalienable Rights derive from Natural Law and are endowed to us by our Creator. This gave them the moral authority to declare their independence, our independence, and to establish the United States of Americe.
You have said that you believe in Freedom, and that you wish to bring Freedom and Democracy to the world, to places like Afganistan and Iraq.
Yet you and your Administration has sought for years to make a distinction between us, Americans, and the rest of the world. If some foreign terrorist is captured, they can be detained for years without charges, they can be tried with secret evidence, essentially they disappear.
If an American were to plot the same destruction against our Country, within the United States or abroad, they are afforded all rights of our Constitution.
Well, except in one case of Mr. Padila...
So my question is: are you going to be fair and extend to terrorists the unalienable Rights that derive from Natural Law and were endowed to us by our Creator, or are these diminished Rights going to be brought home to us, as in the case of Mr. Padila? Mr. President: are all men created equal?