22 Sep Bush and McCain Agree to Sort of Reverse Hamdan
The Bush-McCain Senate compromise was released late yesterday afternoon and already the blogosphere is busily analyzing it. Marty Lederman (of course) and blogosphere newcomer Bobby Chesney have already read, chewed, and largely digested the compromise agreement with respect to the Geneva Conventions’ Common Article 3. A copy of that portion of the agreement can be found here thanks to Bobby Chesney at National Security Advisors
As far as I can tell from my own reading of the agreement and the proposed legislation and reading Marty’s and Bobby’s excellent posts, it really was a “compromise” with both sides giving up something. Bush lost out on military commission procedures and such procedures will have to disclose certain types of classified evidence to the defendants (which the Hamdan court emphasized heavily). It looks like Bush prevailed to a greater degree on Common Article 3, especially winning an explicit delegation of authority to issue orders interpreting and implementing the Geneva Conventions (that are not “grave breaches”) while at the same time getting language making the Geneva Conventions non-self-executing in most circumstances.
In other words, Congress has told the Supreme Court to butt out of the interpretation of the Geneva Conventions by removing the Geneva Conventions as a basis for a private party claim against the U.S. and then added insult to injury by explicitly delegating that authority to the President.
It sounds like there is going to be enough political support to pass this bill (but maybe I’m wrong on this. The Democrats could filibuster). If it is enacted, get ready for the Bush critics’ last stand: a full-scale constitutional attack – and this time, not just against the Bush Administration’s policies, but against Congress as well. Will the Court join in this fight? They shouldn’t, but they probably will.
Prof. Ku:
“(…) If it is enacted, get ready for the Bush critics’ last stand: a full-scale constitutional attack – and this time, not just against the Bush Administration’s policies, but against Congress as well. Will the Court join in this fight? They shouldn’t, but they probably will.”
The logical fallacy of non sequitur: (http://en.wikipedia.org/wiki/Non_sequitur_%28logic%29)
If you support Bush (A) then you support Bush’s legal reasoning (B).
You’re a Bush critic (Not A).
Therefore, you don’t support Bush’s legal reasoning (Not B).
How many times can one incur in self-deception until you enter the realm of intellectual dishonesty?
Bitacle Blog Search Archive – Bush and McCain Agree to Sort of Reverse Hamdan
[…] The Bush-McCain Senate compromise was released late yesterday afternoon and already the blogosphere is busily analyzing it. […]
Thanks for the analysis and the links. Very interesting. From a quick glance, it does seem like the Senators caved on the Article 3 stuff.
I found this part interesting as well.
Do you think this is b/c of the portion of Hamdan that cites international sources, or just to explicitly acknowledge that there is no private right of action conferred by the GCs themselves. Is Congress saying that int’l law cannot form the “basis” of a claim, or is it trying to forbid the courts from citing international law at all? Can Congress so limit the quiver of the courts?
“No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d).”
“Do you think this is b/c of the portion of Hamdan that cites international sources, or just to explicitly acknowledge that there is no private right of action conferred by the GCs themselves. Is Congress saying that int’l law cannot form the “basis” of a claim, or is it trying to forbid the courts from citing international law at all? Can Congress so limit the quiver of the courts?”
James, it’s just sloppy overreaching BS.
The issue here is that they want to limit the prohibition of CA3 to the prohibitions of 5th, 8th, and 14th amendments.
The reason is that they think this will allow them to continue torturing people who are suspected of being “terrorists” and then “convict” them in kangaroo courts.
The only purpose of the exercise is to aid and abet the administration’s war crimes.
And Senators McCain, Graham, and Warner shoud be utterly ashamed of themselves – this “compromise” is pure hypocrisy.
Well, if nothing else, they’ve certainly washed their hands of matter, in classic Pontius Pilate style.