"Administration" Begins Hamdan U-Turn on Torture, Too

by Kagro X

Marty Lederman has it, and there's not much to add. He cites the NYT:

A day after saying that terror suspects had a right to protections under the Geneva Conventions, the Bush administration said Wednesday that it wanted Congress to pass legislation that would limit the rights granted to detainees.

The earlier statement had been widely interpreted as a retreat, but testimony to Congress by administration lawyers on Wednesday made clear that the picture was more complicated.

The administration has now abandoned its four-year-old claim that members of Al Qaeda are not protected under the Geneva Conventions, acknowledging that a Supreme Court ruling two weeks ago established as a matter of law that they are. Still, administration lawyers urged Congress to pass legislation that would narrowly define the rights granted to detainees under a provision of the Geneva Conventions known as Common Article Three, which guarantees legal rights “recognized as indispensable by civilized peoples.”

How narrowly would those rights be defined? Well, that's the question, isn't it?

But any redefinition of the CA3 rights is probably a violation of the spirit of the Hamdan ruling. But if the spirit of Hamdan was something I ever expected the "administration" to abide by, I wouldn't be arguing for the necessity of impeachment the way I do.

No, the spirit of Hamdan would erase all justification for the NSA spying, but the "administration" has already denied that they believe that's the case.

The spirit of Hamdan would erase all justification for torture, but now the "administration" denies that, as well. Or viewed more "charitably," the "administration" believes our international treaty obligations just require a bit of tinkering.

And of course, the spirit of Hamdan suggests that regularly constituted courts martial are adequately equipped to try detainees. But the "administration," of course, prefers to argue:

that the best way to bring detainees to trial after the court’s ruling would be for Congress to ratify the military commissions the court struck down, with what Daniel J. Dell’Orto, a Pentagon deputy general counsel, described as “minor tweaking.”

A "minor tweaking." Meaning what? Change the color of the jumpsuits and claim "new facts" require a new ruling? Insane, right?

But so's intentionally ignoring the spirit of Hamdan. How much more insane do they have to get before we all understand Jack Balkin clearly when he says:

What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.

This "administration" has no intention of interpreting Hamdan outside its four corners, something I've said over and over, while the great bulk of blogosphere punditry has tried to agree with, but temper, based on a tradition of reasonableness that this "administration" has never given any indication it respected in the least.

Comments

[Mimikatz]

William Arkin made these observations yesterday, but with typepad being down, I was unable to post them. They square with what Suskind's book says about Bush/Cheney/Rumsfeld:

Going forward, we could ignore loopholes pertaining to the definition of "humane" treatment. I imagine that is in the minds of the custodians of national security who believe that they must bend the rules to fight evil. They are convinced that their secret programs must continue to protect ourselves. They have convinced themselves that only they understand the enemy well enough to formulate a response. Further in the current loud, partisan debate, the national security custodians have convinced themselves that American society is too splintered, too inattentive, too squeamish and even too decadent to defend itself.

The true 9/11 nightmare is that we have given over our future to those who cannot see that compassion does not indicate weakness. We must not compromise or equivocate in the treatment of our enemies because we are moral beings and because we love the law and will not let the terrorists force us to throw it out. What is more, every "protection" we offer an unlawful combatant today will be one fewer enemy we face tomorrow. To voice that that notion is naïve is to fail to find a way of war that is compatible with American society.

These three are so far into the idea that might makes right, that force can accomplish anything, even in the face of 4 1/2 years' evidence to the contrary, that they just can't see any contrary arguments. The damage they are doing to this country is incalculable, and will persist for years and years, long after Cheney, at least, is gone.

[Kagro X]

Damn you, TypePad!

Yes, Bush, Cheney and Rumsfeld truly can't see any contrary arguments. Of course, if your ultimate philosophy is that might makes right, then you wouldn't have any need to see contrary arguments, would you? You just roll on until the one that's more "right" than you carts you off to prison.

They'd probably have the gall to tell you that that's a "self-correcting" system.

[Meteor Blades]

"Squeamish"? Yes, I guess Arkin's characterization of how our "national security custodians" describes me perfectly. Watching them dismember the Constitution, backing up their efforts with "obfuscation and prevarication" ought, you would think, trigger any sane person's gag reflex. Each time they are caught out, they've quickly moved on to a new obfuscation, a new prevarication, a transparent effort (for everyone but their docile media herd) to call their dismemberment a patriotic protection of all the values and freedoms we hold dear. Anyone who expresses queasiness in this upchuck universe of the unitary executive is defined as soft on the "war on terrorism," when s/he's not being labeled a traitor.

And, still, all but a few of the elected officials who ought to shouting challenges against these malefactors from the rooftops of DC stick to their polite critiques, as if all that we squeamish need are a couple of Tums.

[Kagro X]

Meanwhile, the mighty Arlen Specter has -- somehow! -- gotten the "administration" to agree to sign a bill that... gives it the option of submitting to a FISA court review of the NSA program!

Astounding!

And under the header: Surveillance Oversight Plan Gets a Boost, no less!

Have you ever seen a bigger crock of shit in your life?

[emptywheel]

Atrios had a pretty good take on Specter (while everyone else and their mother appears to believe that this is a good thing).

It appears Specter is moving ahead with his bullshit bill to provide amnesty for the executive branch's criminal activities, legalize those criminal activities, and then have the FISA court rule on the much more narrow question of whether warrantless wiretapping violates the 4th amendment.

It occurs to me that we're at a fascinating moment in political history. Just about all the leading lights of the conservatarian movement in this country are on the record as being in support of the executive branch's right to spy on American citizens, tapping their phone calls, without any judicial oversight. So much for freedom and small nonintrusive government and all that crap.

Nice going, guys. You've sold all your former principles down the river out of fealty to George W. Bush. Authoritarian cultism is rather disturbing no matter who the cult leader is, but... George W. Bush?

I'm wondering how much consultation they've done with Congress in the last few days to see how far they can push this. Or are they just bulldozing ahead, come what may?

[Mimikatz]

MB: Psychopaths always think people with scruples are sqeamish. The GOP seems to think that the lesson of the Nixon years is never admit your leaders are wrong, when the correct lesson is exactly the opposite.

[JohnLopresti]

I hope the day after this post the article by Lichtblau reaches the screens of some of you folks, if interested. I need to backtrack to the Senate Armed Services Committee review which took place in a hearing yesterday on this topic.

I wonder what Sara is writing now. It seems her expertise applies to some of the international influence in current events, about which ew also has commented in a recent article here at TnH.
John L.

[Kagro X]

Wow. Another disastrously shitty job at understanding the dynamics of the story by Lichtblau. His rep is definitely crashing in these parts.

What's it gonna take for a reporter not to buy into the "middle ground" and "compromise" story? It's a complete prostration of Congress before the imperial presidency. There is no other way to put it.

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