Every So Often They Get One Right

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The early story leads on today's big Supreme Court decision about military tribunals for prosecuting Guantanamo detainees are focused, not surprisingly, on military tribunals for detainees. But there's another, possibly far more significant angle to the decision, according to Georgetown law professor Marty Lederman, who writes frequently about executive power, detention, and interrogation. Lederman says that tribunals are the least of it:


The Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling....This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment....This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).


It will be interesting to see if Republicans in Congress have an election year taste for mounting a frontal legislative assault on the Geneva Conventions. After all, there's nothing here that says the president can't do all the nasty things he'd like to do. He just has to do them legally.

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