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Balkinization:Senators Snatch Defeat From Jaws of Victory

September 22, 2006

Balkinization;Senators Snatch Defeat From Jaws of Victory

U.S. to be First Nation to Authorize Violations of Geneva

Marty Lederman says:

I hope that that headline is a gross exaggeration, but based on a few quick seconds purusing the “compromise” [pdf file] on Common Article 3, I’m afraid it’s not. [The Administration appears to agree. Stephen Hadley was crowing to reporters within minutes that the bill would authorize the CIA “program” to “go forward.” And a “senior administration official” — apparently Dan Bartletttold the Washington Post “that Bush essentially got what he asked for in a different formulation that allows both sides to maintain their concerns were addressed. ‘We kind of take the scenic route, but we get there,’ the official said.”]
[snip]
And then, for good measure — and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation — section 7 would preclude courts altogether from ever interpreting the Geneva Conventions — any part of them — by providing that “no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories.” [UPDATE: I’ve heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that’s so, it’s not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]

Everything in brackets, except the pdf reference is from the original post.

There are updates and the “compromise” available at the link below.

Balkinization;Senators Snatch Defeat From Jaws of Victory

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