Sunday, September 17, 2006


The President's proposal for trying the detainees previously held in secret CIA prisons contains several instances of unintentional (we hope) humor (if you like your humor on the dark and cynical side).

One of the most controversial parts of the proposal would "clarify" the meaning of what is known as "Common Article III" of the Geneva Conventions, which applies not only to prisoners of war but also to civilians detained by foreign governments in times of war, and prohibits "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment." The concern of the Bush Administration is that this quoted phrase is "susceptible to uncertain and unpredictable application." See "Fact Sheet: The Administration's Legislation to Create Military Commissions," (9/6/2006).

The irony (and humor) here is that under the Bush Administration the Constitution of the United States, and most of the laws enacted by Congress, are of "uncertain and unpredictable application." Maybe the President will comply with them, and maybe he won't.

To clarify the meaning of the phrase "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment," the administration wants Congress to declare that the standards for detainees should be the standards of the Detainee Treatment Act of 2005, which prohibits "cruel, inhuman, or degrading treatment or punishment." So a provision in the Geneva Conventions that prohibits "degrading treatment" would be clarified through a statute that prohibits "degrading treatment"?

And the Bush administration also claims that other practices prohibited by Common Article III, such as "violence to life," "murder," "mutilation," and "torture," are "universally condemned," and yet one of the practices that has been employed by CIA interrogators in the past (and which will presumably be employed in the future) is "waterboarding," which is generally considered a form of torture. (Television reporters frequently describe waterboarding as a technique which makes the detaineed think he is drowning. The reason the detainee "thinks" he is drowning is that (a) his face is covered by water and (b) he can't breathe. It's gentler than strangling the detainee, but the end result is the same.) If the Bush administration thinks that they can suffocate people to make them talk, why the concern with "degrading treatment"?

The answer might lie in the history of the Detainee Treatment Act of 2005, which is Title X of Public Law 109-148, 119 Stat. 2740, H.R. 2863 (12/30/2005). In the "signing statement" issued by the President for H.R. 2863, he stated:

"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...."

"President's Statement on Signing of H.R. 2863, the 'Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006'," (12/30/2005)

In other words, President Bush might not comply with the Detainee Treatment Act if he believes that he has the constitutional authority not to comply.

So the President wants Congress to define the rules for the treatment of detainees by reference to a statute that the President has announced that he doesn't necessarily need to comply with. Isn't that amusing?

Of course, the Supreme Court pretty much rejected the President's claims that he could ignore the Constitution, Congress, and the Geneva Conventions when it held that the President was bound by the Common Article III in its treatment detainees. Hamdan v. Rumsfeld, Hamdan v. Rumsfeld, 548 U.S. ___, 126 S.Ct. 2749 (2006). But that could be part of the plan. By getting Congress to define the application of Common Article III by reference to the Detainee Treatment Act, which the President publicly announced did not necessarily limit his authority, the President can then claim that Congress has agreed with him that he has the constitutional authority to ignore Common Article III.

If that sounds far-fetched and paranoid to you, it's only because you haven't been paying attention to the practices of the Bush administration.

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