I'm So Ashamed

Marty Lederman at Balkinization:

Here’s the language. It’s not subtle at all, and it only takes 30 seconds or so to see that the Senators have capitulated entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret “the meaning and application of the Geneva Conventions” “for the United States,” except that the bill itself would define certain “grave breaches” of Common Article 3 to be war crimes. [UPDATE: I hear word that Senator McCain thinks the definition of “grave breaches” covers the “alternative” CIA techniques. I hope he can make that interpretation stick somehow, but on quickly reading the language, it still seems to me as if it’s carefully crafted to exclude the CIA techniques. See, most importantly, the limiting language defining “serious physical pain or suffering,” which is carefully drafted to exclude the CIA techniques such as Cold Cell and Long Time Standing. Also, some Senators apparently are taking comfort in the fact that the Administration’s interpretation would have to be made, and defended, publicly. That’s a small consolation, I suppose; but I’m confident the creative folks in my former shop at OLC — you know, those who concluded that waterboarding is not torture — will come up with something. After all, the Administration is already on record as saying that the CIA “program” can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.]

And then, for good measure — and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation — section 7 would preclude courts altogether from ever interpreting the Geneva Conventions — any part of them — by providing that “no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories.” [UPDATE: I’ve heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that’s so, it’s not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]

If I’m right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the “no person may invoke Geneva” provision, are unconstitutional.

[UPDATE: In the post above, I tentatively conclude that what’s most alarming and radical about the “compromise” is the statutory definition of “cruel treatment,” and the foreclosure of both judicial review and any judicial consideration of any question dealing with Geneva interpretation.]