Smoke, Mirrors and Snake Oil

Well whaddaya know - the much ballyhooed torture compromise between McCain and shrubya has been, well, compromised.

The President signed the Defense Appropriations bill on Friday. In his signing statement he did at least two notable things.

First, with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates.

...Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks.

So, where is McCain on this? Maverick, my ass. All the demagoguery and veto drama about his anti-torture amendment was just an elaborate dog and pony show, if you ask me; a kind of Senatorial "good cop, bad cop" routine. McCain gets to publically be the principled advocate for what is right and decent, thus securing his image as moderate reformer. He can pretend he's bucking the shrubCo machine, while in the back rooms, he and Graham and shrubya worked out a backup amendment and this "signing statement" to make sure nothing really changed. McCain gets to play good cop while remaining in collusion with the bad cops and retaining shrubya/GOP support for the 2008 nomination. Politics, you understand...

"We've been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention [on] torture, whether it be here at home or abroad," Bush said.

..."We've sent a message to the world that the United States is not like the terrorists," McCain said while sitting next to Bush at the White House. "We are . . . a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are. And I think that this will help us enormously in winning the war for the hearts and minds of people throughout the world."

Charlatans, the lot of 'em. Including their lawyers - chalk this up as reason number 4,753 why Alito should not be confirmed. He's pretty big on these "signing statements." Probably because it would keep cases out of SCOTUS' hair:

Second, the President unsurprisingly signals that the Administration reads the Graham Amendments to cut off currently pending habeas cases:

[G]iven the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

What this means is that we're about to see a major battle in the Supreme Court, where the SG argues that the Court must dismiss the Hamdan case and Hamdan's attorneys argue that the Graham amendment should be construed to preserve pending cases.

So, what of Graham's amendment? It basically eliminates any way to enforce a "no torture" policy, i.e. it renders the McCain amendment meaningless.

This one bars Guantánamo detainees from going to federal court to enforce the rights that McCain would declare sacrosanct.

A shabby compromise is in the making. Bush removes his veto threat - as long as Graham's amendment remains in the bill - to transform McCain's principles into a hypocritical gesture: Listen up, world, we are against torture at Guantánamo - as long as nobody can complain about it.

It also provides murky justification for the use of information obtained under coercion:

...it provides that the review boards, in reaching a decision on the status of a detainee, should consider whether statements supporting that decision were obtained under coercion.

If the statements were obtained coercively, the boards are instructed to assess the "probative value" of those statements.

...it leaves open the possibility that a review tribunal will find that a statement obtained coercively is nonetheless reliable. And by leaving the possibility open, it indicates that such statements may be used.

...Article 15 of the Convention Against Torture, a treaty that the United States has ratified, requires that governments ensure "that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings."

Good thing Abu Gonzales declared the Geneva conventions "quaint" and "obsolete." Even our only real ally in the waronterra has denounced torture and emphatically declared that evidence produced by it is not admissable in court.

As one law lord explained, the use of torture "corrupts and degrades the state which uses it and the legal system which accepts it."

"Torture is not acceptable," another law lord stated categorically. "This is a bedrock moral principle in this country."

Oh, how far we've fallen from the tree, when the defense of torture is a high priority for our country's "leaders."

But Vice President Cheney...is strongly opposed to any compromise that includes the McCain provision.

...Cheney personally lobbied against McCain's measure to ban abuse and torture, contending that its language was too broad and would prohibit the use of interrogation methods necessary to secure vital national security information. After the Senate approved the measure as part of a defense spending bill, he pushed to exempt the CIA from its provisions.

Now Cheney has turned to House Republican leaders to hold McCain's language back.

"It's fair to say the White House has made the case -- both the president and the vice president -- that the McCain amendment is harmful," acting House Majority Leader Roy Blunt (R-Mo.) said last week.

...Cheney spokeswoman Lea Anne McBride said Cheney has done nothing on the issue that is not fully supported by the president. She pointed to a statement Bush made last week, saying that Cheney's lobbying reflected administration views.

I thought we were supposed to be the Good Guys™...




be sure to check out this fabulous article about the Graham amendment, also - lots of detailed info. wing tip to boomantribune!


Tags: Alito, McCain, Torture, Bush, Lindsay Graham