Marty Lederman: "U.S. to be First Nation to Authorize Violations of Geneva"

September 22, 2006

Professor Marty Lederman has harsh words for the new detainee treatment bill:

it only takes 30 seconds or so to see that the Senators have capitualted entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. Some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.

Lederman concludes that "the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the 'no person may invoke Geneva' provision, are unconstitutional."