Sellout

Marty Lederman at Balkinization has been on top of the "compromise" torture bill. This is a summary post as well as a further discussion of details (lots of links -- pay attention to them).

The serious problem with the bill, as I've discussed, is that it would define "cruel treatment" for purposes of the War Crimes Act in a confusing and inadequate manner that could readily be construed not to cover some or many of the CIA techniques. More to the point, numerous Bush officials' statements over the past 48 hours indicate that the Administration has already construed the definition in exactly that way, and that, in its view, this means not only that the CIA techniques would not be "war crimes," but also that they would not be "cruel treatment" under Common Article 3 by virtue of that statutory definition.

This conclusion demonstrates the terrible mischief of this "compromise," but it's substantively wrong. I don't know whether and to what extent McCain, et al., intended the definition of "cruel treatment" in the proposed War Crimes Act amendment to cover the CIA techniques. If McCain and other Senators do think such techniques are covered by that language, it would behoove them to say so publicly, and to explain how the proposed WCA should be construed to cover such techniques, so as to counter the Administration's manifest contrary reading. Here's what I wrote yesterday:

If Senators McCain, et al., are truly serious about bringing a halt to interrogation techniques that would place us in violation of the Geneva Conventions, then at the very least they must do this one thing: Amend the definition of "serious physical pain or suffering" to make certain that it does, in fact, encompass the physical suffering that is attendant to the cruel treatment prohibited by Common Article 3, including that caused by the CIA's "alternative" techniques.

If the Senators do not do so, it seems clear from what we've already seen that the Bush Administration lawyers will instruct the CIA that such techniques are not "cruel treatment" (even though under anyone's ordinary understanding of that term, they would be).

Jack Balkin provides a link to the text of the compromise, with this comment:

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?)

Balkin makes the most important point:

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?

I thought to check out the Volokh Conspiracy to see what a more conservative group of legal bloggers might think. Strangely enough, not a word.

OK -- just in case anyone was wondering, this is making me sick.

(A footnote:

From Pam Spaulding, this struck me. We're in the process of becoming a rogue state, and this is what the Christianists think is the most important issue facing us. Quoting Marilyn Musgrave:

As we face the issues that we are facing today I don't think there's anything more important out there than the marriage issue. And I've been a pro life activist most of my adult life. I care very deeply about the sanctity of life. But this issue that's in front of us today is critically important.

Remember -- these are among those who support torture.

These people are really disgusting.)