Balkinization  

Friday, September 22, 2006

Text of Current Bush-Senate Compromise Bill

JB

Here is the latest version of the Military Commission Bill, including all of the compromises agreed to by the Administration and Senators McCain, Graham, and Warner. The worst parts begin on p. 81, eliminating the writ of habeas corpus, denying anyone the right to invoke rights guaranteed by Geneva in judicial actions, prohibiting the use of any foreign sources in construing the meaning of the Geneva Conventions, proclaiming that the President is the authoritative source of the meaning of Geneva with respect to the War Crimes statute, amending the War Crimes statute with language that allows the President to continue to engage in torture-lite (after all, he is now the authoritative source of its meaning), and finally, making all these amendments retroactive to November 26th, 1997 (i.e., well before September 11th, 2001. I wonder what led to this particular change?)

This is a bill that all Americans can truly be ashamed of. And it has been given to us courtesy of our elected leaders, the party of Torture-lite.

I blame our leaders. But I also recognize that we Americans bear some measure of responsibility as well. We failed to speak out when the news first leaked out that our forces were engaged in torture and repeated acts of cruelty, and we failed to speak out when further revelations disclosed that our leaders had actually authorized some of it-- and turned a blind eye to the rest. We were told, again and again that this was happening, and we didn't protest. We didn't show our leaders that we cared about the corruption of American values. The reason why the President and his Administration are daring to offer this bill now is that they believe that we Americans will not punish them politically for doing it. Quite the contrary: they believe that we Americans will think them strong and courageous and forceful for doing so.

They think that we Americans will actually reward them at the polls for legalizing torture.

That is one of the most chilling things about this entire episode. Have we become so complacent as a country, so easily lied to, that our leaders now think that they can legalize torture before our very eyes and that we will actually thank them for doing so?

This bill surfaces just as Jews around the world are ready to begin the High Holy Days, celebrating a new year, and asking for God's forgiveness and atonement for our sins.

This year, I think we in America have a great deal to ask God to forgive us for.


Comments:

The irony of Prof Balkin bringing up the Days of Awe and Yom Kippur to chastise an administration that is seeking to protect the US and its Jewish citizens from Muslims who would finish the task that Hitler was unable to complete without a moment's hesitation is sickening.
 

Thank you for pointing out our shameful culpability. Our torture policies were well known in 2004 yet a majority of Americans still voted for the black hood crowd. If there was ever an example of the dictum that people get the government they deserve this is it. The plain fact is, George Bush is simply a reflection of the American soul. If a neo-con is a liberal who has been mugged by reality, an American is a believer in human rights until his country has been attacked.
 

This comment has been removed by a blog administrator.
 

Mm, trolling. A good one, SW. Almost had me.
 

It's hard to tell if your question about November 26, 1997, is genuine. But for the sake of your readers, the retroactivity is quite easily explained. Nov. 26, 1997 was the effective date of Public Law 105-118. Section 583 of Title V of that enactment amended the War Crimes Act, substituting "war crime" for "grave breach of the Geneva Conventions," and defining "war crime" as, inter alia, a violation of Common Article 3.

Retroactive application of the proposed legislation makes perfect sense, as it identifies the ambiguity created by the vague terms of Common Article 3 and provides an authoritative definition from which all U.S. military and intelligence personnel can benefit.

Your seemingly sarcastic reference to 9/11 actually illuminates the point: The ambiguity created by Common Article 3 has always existed, and the threat of litigation arising from the Supreme Court's interpretation of the Geneva Convention in Hamdan reaches all military and intelligence personnel since November 1997, not merely those serving the country under a President for whom Professor Balkin displays visceral contempt.
 

Let me get this straight. Didn't we attack Iraq to save their people from being tortured in Saddam's dungeons? I distinctly recall many war supporters using that rationale as one of the justifications for the invasion. So why is it now OK for us to engage in the same represensible behavior?
 

I welcome the clarity on the date but find the "visceral contempt" comment interesting.

The phrasing is often used with a certain edge as if it is but an emotional reaction without proper reason. The contempt is well earned here ... for the reasons spelled out in detail.
 

Mark Kleiman at www.samefacts.com raises the possibility that for a senator to vote for the bill would constitute a war crime. Would it? (I hope so.)
 

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Joe,

I think there's no avoiding it, given Professor Balkin's shockingly distasteful post, earlier this week, suggesting that President Bush is eager to waterboard all Muslims.

How interesting that my comment's use of the term "visceral contempt" should receive immediate response, while Professor Balkin's post on waterboarding Muslims apparently escaped controversy. How worrisome that the tone of the debate, even on an otherwise serious legal commentary site, should reach such depths.
 

If George Bush is a reflection of the American Soul for ordering terrorists to be in cold rooms, to stand up for a while and to be waterboarded, what does that say about the American Soul in 1944 when Frankie Roosevelt ordered women and children to be incinerated en masse and the American Soul in 1945 and in 1950-
52 when Harry Truman ordered the same thing?

What does it say about the American Soul in the 60s and 70s when LBJ and Nixon ordered the use of chemical weapons?

About the American soul in the 70s when Jimmy Carter sat on his hands as band of fanatical Muslims scored the greatest victory Islam has had in 500 years and gave America our greates strategic defeat since WW2?

About the American Soul in the 90s when Bill Clinton twice vetoed the Partial Birth Abortion bill, ordered the Waco massacre, and dropped a s**tload of bombs on a Serbian civilians much worse than anything we've done in Iraq. Bombs that helped out the AQ-affiliated KLA by the way.

From ordering the mass killing of millions and using Chemical and Nuclear Weapons to do it to having a handful of AQ guys stand up in a cold room while "Give it Away" or "Genie in a Bottle" plays seems like an improvement to me.
 

Someone please make Sarah Weddington the public face of the Republican Party.

If it's "shockingly distasteful" to write a satirical post criticizing torture, imagine what words we'd have to use for those who justify it. Or for those who perform it.
 

It was in bad taste, though it spoke of "power" not "desire."

Blog comments at times are in bad taste, though recent events are more "shocking" to me than that comment, and I'm not going to be appalled by the fact.

The point holds -- the contempt has been earned.
 

Joe, suggesting that the President's initial reaction to discovering that someone is a Muslim is to seek authority to waterboard that person demonstrates eagerness.

On the one hand, it's ridiculous to spend this time pondering a dumb joke. At the same time, there are lots of bigoted, stupid jokes that have no place in civil society. "The President wants to waterboard all Muslims" is one of those jokes.

How said, the things that find their way into adult political and legal discourse these days.
 

SW, you've made my point. While we decry terrorists targeting civilians we, in fact, perfected the art during the strategic bombings of Germany, Japan, Korea and Vietnam. When attacked by Japan we responded by tossing Americans of Japanese decent into concentration camps. We have always indulged in the fantasy that America is somehow better than other countries when, in fact, we have just avoided attacks better than others. Our acceptance of torture just follows that tradition.
 

Mark Field,

What is your opinion of liberal, dem presidents Roosevelt, Truman and Johnson?

Were they war criminals? Was their slaughter of millions of civilians including women and children worse than Bush's having AQ guys in a cold room listening to Anthony Kiedis and Flea?

Would Balkinization and the NYT be saying that FDR is destroying our soul and that if this is what it takes to defeat Hitler then it's not worth it and in so doing Roosevelt is just bad as our enemies?

How would you and liberals in the blogosphere have reacted in the 1940s and 1960s if you had been around when America was slaughtering millions around the world, in a fashion much worse than anything we're doing today?

Do you approve of the total war waged by Roosevelt/Truman/Johnson? How do you compare it to Bush's war?

What is worse, a cold room and 20 seconds of waterboarding or the instantaneous and deliberate slaughter of tens of thousands in mere minutes? the belly slap or the use of poisons like Napalm, Agent Orange and other chemicals that are still killing Vietnamese 30 years later? the attention grab or firebombing and incineration of whole communities? waterboarding or keeping hundreds of thousands of German POWS in abysmal conditions where many died of starvation and disease?

Why do liberals care so much about the comforts of guys in Al Qaeda?
 

Robert,

Are you saying that FDR and Truman were were criminals?

Perhaps we should retroactively surrender to Angela Merkel and Junichiro Kuizumi. Maybe we can round up the Jews of Brooklyn and ship them off to the Fatherland in an attempt to repent.

The fact is, and I think is a major difference bewteen liberals and conservatives.

Liberals have this kum ba ya attitude.

Unfortunately we don't live in that world. There are those out there, like the Nazis, the Japanese, the Commnunists and the Jihadists who would kill us, our families and destroy everything we hold dear.

When it comes time to take them on, forgive me for not caring if a few of their operatives are in a cold room or get waterboarded.(How many deaths are attributed to waterboarding, by the way? I think the answer is 0)

If we have to kill millions to win this war, then by all means I am for it. And if it comes down to killing millions of them to do it, I would not hesitate, not for one second to pull that trigger.

How can we ever expect to muster the will needed to achieve victory if we have the oppositio party crying about the worst of the worst being in a cold room, being waterboarded, and not getting miranda rights and access to secret evidence?

Can anyone imagine the reaction if someone had showed the smae level of concern for the Nazis or the Nipponese? If this stuff happened back then, no one would have cared a wit. Far worse likely did happen.

FDR masterminded a racist propoganda campaign that depicted them as subhuman savages. And he's a liberal god! If Bush did that the left would be calling for his head. Bush has gone out of his way to genuflect before Islam.

Perhaps Robert can lay out the liberal strategy for victory over the Jihadists, I'm more than willing ot listen. What is the end goal and how is it to be achieved?
 

I would encourage all of you to read Jordan Paust's piece at http://juris.law.pitt.edu on why this compromise is awful for US interrogators. If you want to, read mine on rejecting the compromise or pardoning the Abu Ghraib offenders since what is being permitted under this bill is far worse than what happened at Abu Ghraib.

As to the fearful among you, fantasizing about the deaths of millions and trying to make this a left right thing, none of you seem to have an appreciation of what war is. For you it is always over there. Those who have been in war were against the original Bush version. They have caved for venal reasons which will haunt them the rest of their lives.

FDR and Truman acts are analyzed frequently and there are reasonable schools of thought that considered they committed war crimes with regard to the bombing of civilians in Japan and in Germany.

FDR's not bombing the trains to the concentration camps - giving in to the ambient American anti-semitism of the time - is another of the big problems I have with him. The court martial system that made black soldiers who were only 7 per cent of the soldiers get an inordinate percentage of the murder convictions in Europe (see Alice Kaplan's book the Interpreter to see the story. You might learn about Plot E.) Those cases were part of the reasons why we have the Uniform Code of Military Justice today - because of the unlawful command influence problems in WWII.

FDR's kangaroo court in the Eisentrager case and the Supreme Court's supine position on that were all kinds of problems we had. The Korematsu etc were great tragedies of that time.


As to LBJ, hello folks does someone not remember the protests against him and the Vietnam war and the same kind of deceit towards the American people that is occurring now. Also, Nixon for that matter.


There are 14 000 persons detained by the United States around the world right now. This compromise will put them way beyond even Abu Ghraib law my friends and all kinds of nasty crap is being and will continue to be done in your name. And your contempt for human dignity is an old contempt that has been one of the most uncivlized aspects of our enemies and ourselves.

The fact that the Geneva Conventions have been signed by all countries in the world now suggests that your contempt for human life is not shared - luckily enough - by everyone. But, with your approaches to treating people maybe you can turn us all in to savages again.

Fear is the key for you to sell your souls. Your comments do not keep our honor clean something that has meaning in this world and to military persons and others.

As to not standing up in time, I started working on the issues back in the fall of 2001 after 9/11. Go read my "Semper Fidelis: Keep our honor clean" on my faculty website at www.law.utoledo.edu.

And each of you can stand up tonight by not blathering here but going to your Congressperson www.house.gov or Senator www.senate.gov website and sending them a letter urging them to reject this AWFUL bill.

As to those who think cold room is OK, hey that's an old Stalin interrogation technique. So when you get to that point just feel comfortable with old Joe. Amazing! You can get a cell next to Ivan Denisovitch.

What is America if this is what you stand for?

Best,
Ben Davis
 

Truman and FDR war criminals? Of course not! Unlike Bush, they won their war. I can only quote that famed liberal icon, Curtis LeMay, who said, no doubt in between leading choruses of Kum Ba Ya said, "I suppose if I had lost the war, I would have been tried as a war criminal. Fortunately we were on the winning side." This is not to say Bush is a war criminal. That will be for others to decide. I only hope when he leaves office he has a better travel agent than Pinochet and a better lawyer than Ramsey Clark.
 

Thank you for this post! It’s a sad day.

I believe there is another culprit in this tragic, revolting debacle - the media. The media, particularly the television media, has consistently reported the Bush Administration's mendacious assertions as though they had some connection to reality, facts or common sense. Most Americans believe that America is the most virtuous country on earth. This belief is best maintained uncontaminated by the facts. Since much of the media has abnegated its responsibility to report the facts and since most Americans have little knowledge of or interest in their own government, we are primed and ready for whatever manipulative hooey the administration hands out on any given day. In the torture issue, we have the perfect storm - the media's addiction to heroes and narrative (those stalwart, rebel Republican senators) and their laziness (no one will bother to actually read the bill) coupled with the administration's Orwellian lying. Add a fearful, credulous, ignorant citizenry; subtract check and balances and Voila! - Torture Nation.
God help us all.
 

Sarah and Robert seem to be "good Americans," like those "good Germans" we're all familiar with from WWII. Sarah at least doesn't hide her Blogger profile, like the lackwit coward Adam. Tsk tsk. What quivering weinies these defenders of torture and war crimes are. One wonders if Sarah and Adam would be able to torture someone themselves, and how much eagerness they might harbor to do so. Likely, similar to their "good German" predecessors, they and other supporters of torture are content to stand aside and let others do the dirty work. Later, when the war crimes trials begin, such "good Americans" will, like their historic models, simply deny they knew, saw, or even heard anything at all. "And besides," they will demur. "That was the government." They forget, as all such "good Americans" seem to have forgotten these days, that in this country, "we the people" are the government. And now "we the people" are the torturers. Let us now sing of the glory that was America, for soon the dark curtain of fascism will fall and the country we all knew and loved will be gone.
 

Put a fork in us. We're done, just days short of the 60th anniversary of the Nuremberg Judgment.

And before Sarah and Adam ask, I've been a Republican since 1978 and am hardly a liberal. Sorry, kids, but just calling names doesn't get you out of the ethical hole you've dug for yourselves.
 

Lex,

When did I call you names? Seems to me, that you're the only one getting personal. ("Kids"? Sigh.)
 

"[was] liberal, dem president ... Johnson ... [a] war criminal?"

perhaps the signature protest chant from the Vietnam era was "hey, hey, LBJ, how many kids did you kill today?" (hint: they weren't protesting abortion.) a reasonable inference is that the protesters had something like war crimes in mind, and a safe bet is that many were "liberals", if by that you mean anti-segregationists and/or dems and/or pro-women's rights, etc. so, liberals not only would have, but in fact did, react negatively to the "slaughter" of millions.

one of the few pleasures attendant to enduring the bush admin is savoring the latest entry from a member of the coalition-of-the-historically-uninformed when it's about the vietnam era, especially a charge of liberal hypocrisy. oh, the irony.
 

I have just one question for Sarah: in that whole catalog of horrors committed by FDR and Truman and LBJ and Nixon, why did you leave out torture?

I'll tell you why: because they didn't do it. Because there are moral crimes nobody was willing to commit, no matter how great the need, no matter how desperate the circumstances. Until now. Until George Bush.
 

If Mark Field really belives that no Germans, Japanese, North Koreans, North Vietnamese et al were ever tortured by US forces, he's naive beyond belief.

Furthermore, what those men did was FAR WORSE than torture. By any objective standard, Presidents Roosevelt and Truman are War Criminals, yet I never hear liberals saying anything about them and demanding we apologize to the Germans and the Japanese for our War Crimes against them.

Further, they did it using official govt racist propoganda that was far worse than anything Bush has done. Bush goes out of his way to say he respects Islam and Muslims and how peaceful they are. Go look at some the things said about the Huns and the Nips as they were called and get back to me.

Given the choice between having 100,000 civilians wiped out in an instant and having entire villages doused with napalm and agent orange or having Khalid Sheik Muhammad put in a cold room and waterboarded for a minute or Ramzi BinAlshibh given the belly slap, I think 100% of anyone who'd be asked would choose the latter.

I also note that Mark Field has yet to offer HIS strategy for getting information from these guys. Just how does he propose we do it? What is allowed, Mark Field, beyond name rank and serial number?

If Khalid Sheikh Muhammad tells his interrogator to go pound sand and that he's waiting for his lawyer, should we just say "ok, Khalid, shukran and have a nice day"?

If Pakistan or some other country comes to us and alerts us to an ongoing plot, as happened in August, and their information was most likely gained through torture much worse than anything done at Gitmo or by the CIA(the Paks don't mess around), should we refuse it? Since Mark Field is against it, would you refuse any assistance or information that was learned through torture?

Please, lay out your interrogation tactics and how you propose we go about getting these guys to talk?
 

If Mark Field really belives that no Germans, Japanese, North Koreans, North Vietnamese et al were ever tortured by US forces, he's naive beyond belief.

Perhaps you could supply some actual facts instead of just making them up. If there was an official, or even a semi-official, government policy that said it was ok to torture people, you should be able to cite it.

But even if you could cite it, so what? What's your moral base here? Two wrongs make a right? That's profound.

Your stream of "gotchas" is pointless -- Americans have done far worse things than we did in WWII. Hell, we held people in slavery for 250 years. We wiped out Native American tribes. Our history is very far from innocent. And all of those sordid facts contribute exactly nothing to our history except shame. A deep, abiding shame to which you and your ilk are eager to add. It's contemptible.

And to answer your question, no, I would NOT torture Khalid or anyone else. Torture destroys not just the humanity of the victim, it destroys the humanity of the torturer. "Woe unto the world because of offenses! for it must needs be that offenses come; but woe to that man by whom the offense cometh."

But do know this: the world is not going to forget this episode. It may take 60 years, as it has taken that long to track some of the Nazis. Justice will be done.
 

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