moment of truth

[Scarberry, Mark]

This is, I think, at least the second message posted by someone on another list that Mark Stein has forwarded to the conlawprof list without comment. Perhaps this is a matter for our moderator, but I'd like to see at least a comment to the effect that the author of the post has authorized the forwarding of it to the conlawprof list. I know I'd appreciate the courtesy of being asked before a post of mine is forwarded to another list.
 
Mark Scarberry
Pepperdine

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of MARK STEIN
Sent: Thu 9/7/2006 8:49 AM
To: conlawprof at lists.ucla.edu; jasonm at u.washington.edu
Subject: Fwd: moment of truth




Jamie Mayerfeld <jasonm at u.washington.edu> wrote: 

	Date: Wed, 06 Sep 2006 21:45:39 -0700 (PDT)
	From: Jamie Mayerfeld <jasonm at u.washington.edu>
	Subject: moment of truth
	To: lawcourts-l at usc.edu
	CC: jasonm at u.washington.edu
	
	
	The United States is at a turning point. Bush has just asked Congress to legalize torture and the use of 
	summary justice against foreigners. Till now the Bush administration has proceeded on its own in 
	authorizing torture and summary justice. Now it has asked for Congress' blessing.
	
	Though torture is condemned by dozens of laws, the administration creatively interpreted those laws to 
	authorize torture. It worked overtime to block any oversight by the courts, and was aided in this by the 
	Senate's unfortunate decision in the early 1990s to bar judicial enforcement of the Torture Convention 
	and the International Covenant on Civil and Political Rights. There remained the Geneva Conventions. 
	In Hamdan, the Supreme Court found a very small window (Article 21 of the UCMJ) through which to 
	reach the Geneva Conventions. It ruled that Common Article Three of the Conventions applied to 
	suspected international terrorists, so as a consequence the torture and cruel treatment of suspected 
	terrorists and their subjection to unfair trials were violations of the Geneva Conventions.
	
	The proposed legislation that Bush submitted to Congress on Wednesday does the following things:
	
	1. It authorizes torture by stipulating that the humane treatment obligations under Common Article 
	Three are fully satisfied by the McCain Amendment (aka Section 1003 of the Detainee Treatment Act of 
	2005). This is a fancy way of saying that the McCain Amendment supersedes Common Article Three. 
	Did you think that the McCain Amendment prohibited torture? Wrong! It prohibits cruel, inhuman, or 
	degrading treatment TO THE EXTENT PROHIBITED BY THE US CONSTITUTION. But the Supreme Court 
	has never ruled on the constitutionality of torture as a means of gathering intelligence (as opposed to 
	criminal evidence). The most relevant provision is the liberty clause of the 5th Amendment, which 
	according to the Supreme Court is violated by conduct that "shocks the conscience." And Cheney 
	strongly hinted, in a media interview right after the McCain Amendment's passage, that the use of 
	water-boarding in an attempt to prevent terrorism is not shocking to the conscience. And Cheney (or 
	Bush) effectively has the last word, because it will be a long time, under the best of circumstances, 
	before the Supreme Courts gets to challenge this interpretation. Indeed under the proposed legislation 
	it never will. (See point 2.)
	
	2. The proposed legislation bars all foreigners whom the administration labels "unlawful combatants" 
	from ever challenging the conditions of their detention in US courts. No judicial review of the treatment 
	of "unlawful combatants."
	
	3. It authorizes unfair trials of foreigners, by (1) allowing coerced testimony, (2) permitting hearsay, (3) 
	allowing the prosecution to use evidence not shared with the defendant, and (4) allowing only very 
	limited appeal to civilian courts. (See the Stevens opinion and Kennedy concurrence in Hamdan for 
	more detailed discussion of the unfair features of the commissions.)
	
	4. It narrows the scope of the War Crimes Act so that the torture and unfair prosecution of suspected 
	terrorists are no longer covered.
	
	5. Because of points 1 and 3, it puts the United States in breach of the Geneva Conventions. After 
	Hamdan, the Bush administration can no longer argue that the torture and unfair prosecution of 
	suspected terrorists are compatible with the Geneva Conventions. The Supreme Court has ruled 
	otherwise. Under our system, neither the President nor Congress can say to the Supreme Court: your 
	interpretation of the Geneva Conventions is wrong. The only recourse is for Congress to overrule the 
	Geneva Conventions. That is what Bush has asked Congress to do. This is wholly unprecedented.
	
	6. It bars US courts from enforcing the Geneva Conventions. This means that the executive branch has 
	a free hand to interpret the Geneva Conventions (or what's left of them after the proposed legislation) 
	as it sees fit. The administration's record of interpreting human rights treaty law is not encouraging.
	
	What will Congress do? It's not an exaggeration to say that the honor of the United States is at stake in 
	Congress' decision.
	
	Note: I'm indebted to the indispensable analysis of Marty Lederman (though he's not responsible for my 
	errors). Everyone should make sure to read his posts on Balkinization.
	
	Jamie Mayerfeld
	
	
	
	
	
	


-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20060907/0c09045d/attachment.html