(cross-posted at Deny My Freedom and Daily Kos)
The revelations of abuse by U.S. soldiers at now-infamous locations such as Abu Ghraib forced America to confront an unpleasant reality: we were treating prisoners no better than they would arguably treat us. The backlash from the revelations of abuse in Iraq and at Guantanamo Bay in Cuba have greatly lowered our moral standing in the eyes of many around the world and in our own country. Although an anti-torture bill was passed around the beginning of this year – one that Bush can easily evade – it has come to light that a bill primarily dealing with military commissions would legalize torture – and it would stop the courts from doing anything about it.
Many of the harsh interrogation techniques repudiated by the Pentagon on Wednesday would be made lawful by legislation put forward the same day by the Bush administration. And the courts would be forbidden from intervening.
[…]
But legal experts say it adds up to an apparently unique interpretation of the Geneva Conventions, one that could allow C.I.A. operatives and others to use many of the very techniques disavowed by the Pentagon — including stress positions, sleep deprivation and extreme temperatures.
“It’s a Jekyll and Hyde routine,” Martin S. Lederman, who teaches constitutional law at Georgetown University, said of the administration’s dual approaches.
[…]
The new bill would continue to give the C.I.A. the substantial freedom it has long enjoyed, while the revisions to the Army Field Manual announced Wednesday would further restrict military interrogators. The legislation would leave open the possibility that the military could revise its own standards to allow the harsher techniques.
I wonder what Senator John McCain (R-AZ), who’s quickly been shedding his maverick image to embrace the far right of the GOP to ready himself for a 2008 presidential run, will respond to this. Let’s recall his words – and Bush’s – when he and the White House reached an ‘agreement’ on the anti-torture bill in the past:
“We’ve sent a message to the world that the United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are,” McCain said. “I think that this will help us enormously in winning the war for the hearts and minds of people throughout the world in the war on terror.”
Bush said the ban “is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad.”
Of course, it’s no surprise that John Yoo, who was the administration’s architect for its pro-torture, anti-morality stance when it came to handling prisoners, is fully behind this new effort, which will strip the courts of any of the checks and balances it has when it comes to the matter:
John C. Yoo, a law professor at the University of California, Berkeley, and a former Justice Department official who helped develop the administration’s early legal response to the terrorist threat, said the bill would provide people on the front lines with important tools.
“When you’re fighting a new kind of war against an enemy we haven’t faced before,” Professor Yoo said, “our system needs to give flexibility to people to respond to those challenges.”
What’s even worse is that it puts, in writing, that the Geneva Conventions don’t apply to us, even though we were one of the first countries to ratify them, way back in 1882. Here’s the specific text from the bill:
Indeed, the proposed legislation takes pains to try to ensure that the Supreme Court will not have a second bite at the apple. “The Act makes clear,” it says in its introductory findings, “that the Geneva Conventions are not a source of judicially enforceable individual rights.”
Legal experts seem to understand that this new bill is specifically designed to enforce the language in McCain’s anti-torture bill, which is extremely narrow and is open to a wide amount of discretion. In turn, the bill implicitly approves of torture methods not specifically mentioned – and when you see the list, you’ll realize that there are a lot of things that could go unpunished and unwatched if there is a relaxation in the oversight rules.
There is substantial room for interpretation, legal experts said, between Common Article 3’s strict prohibition of, for instance, humiliating treatment and the McCain amendment’s ban only on conduct that “shocks the conscience.”
The proposed legislation, said Peter S. Margulies, a law professor at Roger Williams University, “seems to be trying to surgically remove from our compliance with Geneva the section of Common Article 3 that deals with humiliating and degrading treatment.”
[…]
Dean Koh said the administration’s new interpretation of the Geneva Conventions would further isolate the United States from the rest of the world.
“Making U.S. ratification of Common Article 3 narrower and more conditional than everyone else’s,” he said, “by its very nature suggests that we are not prepared to make the same commitment that every other nation has made.”
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The proposed legislation in any event represents a further retreat from international legal standards by an administration already hostile to them, some scholars said. “It’s strong evidence that this administration doesn’t accept international legal processes,” said Peter J. Spiro, a law professor at Temple University.
Contact your senator immediately tomorrow and demand that this legislation be stopped in its tracks. It is inexcusable that this administration is attempting to legalize immoral and illegal forms of interrogation – and then trying to strip away the judiciary’s authority to check the other two branches of the government when they go out of line.
