Wednesday, September 13, 2006
Will Congress Authorize Violations of the Geneva Conventions?
Sorry, I've been tied up with other matters and therefore don't have time to blog about the details of the draft Warner/McCain/Graham bill. Suffice it to say that, as a general matter, it is better than the Administration bill in several respects, but that it would still be very, very troubling. With respect to the Administration's detention and interrogation practices, it would largely undermine the salutary effects of the landmark Supreme Court decisions in Rasul and Hamdan, and might well provide effective legal cover for many of the CIA's "alternative" techniques--even though that might not be the intent of at least some of the sponsors of the legislation, and even though many of those techniques almost certainly would violate Common Article 3 of the Geneva Conventions. [UPDATE: A clarification: I'm not suggesting that the bill would be fairly construed to authorize those techniques. To the contrary, I think the better reading is that the McCain Amendment prohibits most or all of the CIA techniques, and that Common Article 3 is even more restrictive than the McCain Amendment. I am afraid, however, that the Administration's very resourceful lawyers will construe the McCain Amendment and Common Article 3 very narrowly -- or will secretly assert a Commander-in-Chief override -- and that sections 6 and 8 of this bill will effectively preclude meaningful judicial review of such interpretations, which will in turn only encourage further "creative" lawyering.]
See also Prof. Jordan Paust's column on JURIST...
September 12, 2006
A PLEA TO CONGRESS ON MILITARY COMMISSION PROCEDURES
These bills do not represent lawmaking - they are an overt effort to aid and abet war crimes. I find myself not even caring what the details are... because I know whatever they do is just going to be illegal and criminal. The only thing that really matters here is 1) removing Republicans from office and 2) prosecuting them for their CRIMES.
And these detainee bills are the definitive example of why these people are completely unfit to hold a position of public trust, and why the LAWYERS among them are unfit to practice law. Think about it: even if we grant that the kind of changes they are trying to enact were necessary, they sure aren't the sort of changes one can just cobble together on the fly.
It's dumb. They've had five years to make changes, and the reality is that the changes are completely unecessary because both the Art. III courts and the regular military courts are perfectly capable of handling any trials required -- and doing a better job of it than these ad hoc kangaroo courts ever will.
The only real reason for these special procedures is to commit CRIMES against prisoners. That was the intent behind the 2001.11.13 PMO from day one.
Sen. McCain has been there himself. He has been TORTURED. He has been treated as a THING with no legal rights at all - and if he acts to provide cover to the war crimes of the Bush administration he should be utterly ashamed of himself.
These bills are not going to change anything - they are a pointless waste of time, a criminal excercise in pure hypocrisy.
While Warner-McCain-Graham appears better, I do believe that what we are seeing is a game of good cop and bad cop where Bush plays the bad cop and Warner-McCain-Graham play the good cops. Bush can live with both bills. The problem is that America may rue the day it adopts the language of the Warner-McCain-Graham bill.
I agree with Charly here, but I'm curious about one thing: on what newly found authority can Congress alter, via statute, the scope and extent of the United State's treaty obligations? The case appears to me to exactly parallel the Specter bill and the recent decision re: the NSA warrantless wiretapping. As the court made very clear, Congress cannot broaden the executive's constitutionally proscribed powers with legislation. Something Warner (atleast) has publicly conceded.
As some writer's have already commented, a congressional statute to 'clarify' the meaning of 'degrading' does not relieve the US of it's treaty obligations. It simply opens up the interesting possiblity of US citizens being charged with crimes against humanity, though those actions are legal under US law.
No, this whole thing is much murkier than it appears. Surely the whitehouse lawyers understand that none of this gibberish can withstand any real scrutiny. I think it's all an elaborate ruse. Could it be the last throes of a putsch to establish the unitary executive?
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