McCain, Grahem and Warner Will Be Hungover In The Morning, There Is No Other Explanation

Posted on September 21, 2006

First, a sincere thank you to the ACLU for giving its “blessing” to the “Detainee Deal.” Well, we consider their condemantion a blessing.

Some more detail that has come out.

Over at DailyKOS, they are less than pleased, “Torture: GOP Rebels Lay Down Their Arms, Take Up the Rubber Stamp.”
Altrios writes, “McCain sells out the country and Democrats look like crap.”
National Security Advisor Steve Hadley provided a briefing that provides a great deal of detail.
The most important part of the legislation that he revealed is that interpretation of Common Article 3 will rest in the hands of the President, not Congress or the Courts:

And finally, there is a provision that makes clear that the President has authority as provided by the Constitution and by this legislation, given to him by the Congress, he has the authority for the United States to interpret the meaning and application of the Geneva Conventions, including Common Article III, and to establish standards and administrative regulations for violations that are less than grave breaches of Geneva Conventions.

In an absolutely stunning rebuke to JAG Lawyer Lindsey Grahem and the various Chiefs of the JAG Corps, classified information will not be shared with defendents or their lawyers:

In terms of the military commissions issues, I’ll just give you a quick summary. A provision dealing with classified evidence makes sure that no sensitive intelligence will have to be shared with terrorists or their lawyers. The bar is very high. There will not be — the terrorists will not have access to classified information.

Information based on hearesy or coercion is fair game as long as it is reliable:

So that was the disposition of classified evidence. In terms of coerced statements, so-called coerced statements, or statements that are taken under circumstances when counsel for the defendant may allege coercion, the test is whether it is reliable, the statements are reliable and probative, and if they are, then they will come in. In addition to that standard, after the date of enactment of the Detainee Treatment Act, there is additional test to ensure that the methods by which any information was obtained are consistent with the standards of the Detainee Treatment Act.

So that was the resolution of that issue. And finally, on the issue of hearsay evidence, prosecutors will have wide latitude to use hearsay evidence, and the burden will be on the accused to show that the statement is unreliable or lacking in probative value.

What items are spelled out as being prohibited that the President can not authorize by Executive Order?

Q In enumerating actions that constitute violations, or actually that constitute grave breaches of Common Article 3, could you give us an example of what two or three of those grave breaches would be?

MR. HADLEY: I’ll give you a couple in terms of prohibited conduct — torture, cruel or inhuman treatment, performing biological experiments, obviously murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking hostages. These are the kinds of things we’re talking about.

The Corner confirms that defendents have no right to sue as an individual for protections under the Geneva Convention:

Another part of the deal, the source said, is that no one will be able to use the Geneva Conventions as a basis for a court action against an individual or the U.S. government. “There is no private right of action,” the source said.

Plus we need to remember that this is now the “worst case” bill because it still needs to go to Conference with the House. As such, we get one more chance to take a bite at the apple and bring it further to the right.