for that Military Tribunal bill on the News Hour today, which at this point still includes legalizing torture. I sure hope McCain, et al fix the bill; if they don't, that will be a shame to have Dems voting for such a shameful bill.
The Georgetown professor, Marty Lederman, still says the bill isn't good:
http://balkin.blogspot.com/2006/09/will-congress-authorize-violations-of.htmlSuffice it to say that, as a general matter, it is better than the Administration bill in several respects, but that it would still be very, very troubling. With respect to the Administration's detention and interrogation practices, it would largely undermine the salutary effects of the landmark Supreme Court decisions in Rasul and Hamdan, and might well provide effective legal cover for many of the CIA's "alternative" techniques--even though that might not be the intent of at least some of the sponsors of the legislation, and even though many of those techniques almost certainly would violate Common Article 3 of the Geneva Conventions.
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I have speculated that the Administration believes it can live with the McCain Amendment because it has construed that statute -- prohibiting cruel, inhuman and degrading treatment, primarily defined as conduct that "shocks the conscience" under Due Process doctrine -- not to foreclose many of the CIA's "alternative" techniques.
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If this is not what Senator McCain intends -- and it appears from his public statements that it is not -- then he should do one of two things: Either (i) retain Common Article 3's basic ban on all "cruel treatment and torture" as a subset of crimes under the War Crimes Act; or (ii) amend the legislation to specify that the McCain Amendment itself categorically prohibits such "alternative" techniques.
This is troubling indeed.