License to Torture

Yale law professor and constitutional law expert Jack M. Balkin has an academic group blog where he and colleagues hold forth on the legal issues of our times.

In the wee hours of this morning, one of those colleagues, Georgtown Law prof Marty Lederman, was among the first to offer a detailed analysis of the so-called "compromise" between George W. Bush's White House and Senate Republicans over the pending "torture bill." As Lederman explains in the cool, objective language of a trust department lawyer reciting a routine contract, the "compromise" esentially gives the current and future presidents a free license to torture anyone they please:

"The Executive branch -- not only the CIA -- would effectively be authorized to engage in cruel treatment that Geneva proscribes, including pursuant to the alternative CIA techniques."

Moreover, the "compromise" also would prohibit the federal courts from enforcing any foreign or domestic law against presidential torture.

What this means, in effect, is that the President's interpretation and application of the Geneva Conventions will be virtually unreviewable, no matter who the affected parties may be, in this and other armed conflicts, now and in the future . . . across the board."

For once, both the Washington Post and the New York Times agree:

Washngton Post, "The Abuse Can Continue":

"[T]he senators who have fought to rein in the administration's excesses -- led by Sens. McCain, Lindsey O. Graham (R-S.C.) and John W. Warner (R-Va.) -- failed to break Mr. Bush's commitment to "alternative" methods that virtually every senior officer of the U.S. military regards as unreliable, counterproductive and dangerous for Americans who may be captured by hostile governments.

New York Times, "A Bad Bargain":

The deal does next to nothing to stop the president from reinterpreting the Geneva Conventions. While the White House agreed to a list of “grave breaches” of the conventions that could be prosecuted as war crimes, it stipulated that the president could decide on his own what actions might be a lesser breach of the Geneva Conventions and what interrogation techniques he considered permissible. It’s not clear how much the public will ultimately learn about those decisions. They will be contained in an executive order that is supposed to be made public, but Mr. Hadley reiterated that specific interrogation techniques will remain secret.

As Tristero asks in a pointedly un-academic way over at Digby's Hullaballoo, "So tell me, my fellow Americans, How does it feel knowing that your government will pass laws permitting the violation of the Geneva Conventions against torture?"

We can tell him how we feel: It's time for a new Law and Order political campaign to sweep the streets clean of criminal presidents and the congressmen and senators who shelter them.