Monday, July 25, 2005

Will the Bush Administration Oppose Humane Treatment of Detainees?

For months, the Bush administration has relied on its own legal analysis (bolstered now by the DC Circuit's opinion in Hamdan) that the Geneva Conventions do not apply to detainees in Guantanamo. Nonetheless, President Bush claimed in 2002 that, despite this legal conclusion, all detainees in custody at Guantanamo and elsewhere would be treated "humanely" and consistent with the principles of the GC. Well then, if the law is changed to require define who is and who is not entitled to humane treatment, what the bounds of that treatment are, and how commissions should constitutedted to review those issues, that should not be a problem, right? It would conform exactly with what the President said was his policy. Not so. VP Cheney's statements last week that the White House will block the attempts by the Senators McCain, Warner and Graham to amend the current defense appropriations bill with language that would require the armed forces (notably, the intelligence services are not included) to treat detainees humanely. Andrew Sullivan and Marty Lederman, are, as usual, on the case. with these terrific posts.

Let's set aside the White House's objection to Senator Levin's separate proposal of an independent commission to investigate detainee treatment (it took two years for the opposition to make such a basic request for accountability?) and focus on the McCain amendment. At bottom, there can be only two rationales for the objection: (1) that this White House will oppose any checks on executive powers -- even those carried out by Congress acting within its constitutionally committed power; or (2) the administration thinks treating prisoners inhumanely is good policy.

We are now out of the realm of international law skeptics advising the president that he is not, in carrying out the war on terrorism, bound by treaties to which the US is a party. We are squarely in the arena of domestic power sharing. It is one thing to say that the courts, absent contrary express congressional authority, should not weigh in on how the country wages the war against terror. It is quite another to say that the executive should not be restrained by the wishes of the majoritarian political branch. Here, we are not even talking about party politics. It is Republicans (one a notable former POW) who are pushing for the United States to spell out in the law what should be obvious to all: That the United States as a matter of policy does not abuse detainees.


Anonymous Anonymous said...

That the United States as a matter of policy does not abuse detainees.

I believe that the evidence before your eyes should tell you otherwise. Torture has now become the systematic method by which we interrogate and treat those persons we capture and call "enemy combatants.

This policy has been spelled out a number of times in memoranda from Rumsfeld and in orders from his generals. It is sadly obvious from the White House reaction to McCain's proposed legislation that this Administration plans to continue the policy and that it believes neither the Courts nor Congress can do anything about it. John "The President Can Do Anything He Wants" Yoo has provided the intellectual underpinning of this concept of dictatorial Presidential authority, for the abuse of which -- as Yoo says -- the only remedy is the impeachment.

In a One-Party State, the President is free to do whatever he wants whenever he wants -- and who is there to stop him? An ineffectual blowhard like Joe Biden? I don't think so.


7/25/2005 11:05 AM  
Anonymous Anonymous said...

It all depends on what you want to call 'torture' and 'inhumane' treatment, doesn't it? Having been to GTMO and seen the extraordinary lengths to which DOD has gone to accommodate religious and humanitarian needs of dangerous men, it is astonishing that we are even having this conversation. When blaring rock music at a detainee to rattle his nerves constitute 'torture', no wonder the administration is reluctant to get sucked into that word game.

7/25/2005 7:23 PM  
Anonymous Tom Doyle said...

We do not need to change the law but rather enforce what has been the law for some time. It has been spelled out. The administration is corrupt and criminal.

I wish it were otherwise.

7/29/2005 12:02 PM  
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