More Torture-'n'-warrantless-wiretapping roundup
- Senate Minority Leader Harry Reid has told a group of liberal bloggers on a conference call that Sen. Arlen Specter's bill legalizing the administration's warrantless domestic wiretapping will be filibustered if necessary ... but it might not be necessary, Glenn Greenwald says.
- Four Republican senators, led by John McCain of Arizona, are joining with Democrats to oppose a White House-backed bill that would, in effect, legalize some interrogation procedures that are not now legal. McCain has a different version of the bill, which is a response to the Supreme Court's Hamdan decision earlier this summer.
- A letter from the top lawyers of each of the service branches expressing support for -- or, at least, weakened opposition to -- the president's bill may have been the result of pressure from the Pentagon's general counsel, William J. Haynes II (whom I wrote about here and here). Republican Sen. Lindsey Graham, himself a military lawyer in the reserves, has said he wants a hearing on that matter, and being a member of the Senate majority, he might actually be able to get it.
Why is the president so eager to get his version of the bill through Congress? Holden at First Draft has a hypothesis. I'm not a lawyer, so I don't know exactly how valid his analysis is. But if he were correct, the ramifications would be unparalleled in U.S. history.
UPDATE: Holden might not be a lawyer (I don't know, actually), but Marjorie Cohn, a professor at Thomas Jefferson School of Law, president-elect of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists, most assuredly is. And she says basically the same thing as Holden, albeit more politely:
Congress enacted the War Crimes Act in 1996. That act defines violations of Geneva's Common Article 3 as war crimes. Those convicted face life imprisonment or even the death penalty if the victim dies.
The President is undoubtedly familiar with the doctrine of command responsibility, where commanders, all the way up the chain of command to the commander in chief, can be held liable for war crimes their inferiors commit if the commander knew or should have known they might be committed and did nothing to stop or prevent them.
Bush defensively denied that the United States engages in torture and foreswore authorizing it. But it has been well-documented that policies set at the highest levels of our government have resulted in the torture and cruel, inhuman and degrading treatment of U.S. prisoners in Iraq, Afghanistan and Guantánamo.
Indeed, Congress passed the Detainee Treatment Act in December, which codifies the prohibition in United States law against cruel, inhuman or degrading treatment or punishment of prisoners in U.S. custody. In his speech, Bush took credit for working with Senator John McCain to pass the DTA.
In fact, Bush fought the McCain "anti-torture" amendment tooth-and-nail, at times threatening to veto the entire appropriations bill to which it was appended. At one point, Bush sent Dick Cheney to convince McCain to exempt the CIA from the prohibition on cruel treatment, but McCain refused.
Bush signed the bill, but attached a "signing statement" where he reserved the right to violate the DTA if, as commander-in-chief, he thought it necessary.
