moment of truth
Mark.Scarberry at pepperdine.edu
Thu Sep 7 09:39:21 PDT 2006
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.
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
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.
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