GUEST POST: FASTEN THE ROPES. Senator McCain and his colleagues deserve some credit; they have, once again, pushed back on an administration that is congenitally allergic to the rule of law. When faced with the senators� insistence -- along with the stern warnings of two former chairmen of the Joint Chiefs and more than two dozen other senior retired military leaders -- that the Geneva Conventions should be preserved as a baseline standard for detainee treatment, administration lawyers did indeed scramble to resurrect Common Article 3 of the treaties, despite their initial attempt to write that commitment out of U.S. law altogether. According to Sen. McCain, speaking on the Today show this morning, the agreement makes clear that it is a war crime to engage in the waterboarding technique allegedly used against CIA-held detainees in the past. The agreement also appears to leave in the criminal category techniques like induced hypothermia and stress positions -- the apparent cause of more than one detainee death in U.S. custody since September 11. Even if administration lawyers think they�ve preserved an acrobatic way of reading the language to let such practices continue, the language is at best just blurry enough to leave the choice in the laps of CIA personnel in the field: Will our agents take the Bush Justice Department�s word for what counts as a war crime, or trust the former Joint Chiefs� read of where the law draws the line? Given DOJ�s track record on such issues in the Supreme Court these past few years, the wise insurer would stick with the Chiefs.
So the compromise in this sense may leave the administration in its post-Hamdan box. The real problem, once again, is that the administration would like to continue to rely on the historically fallible �trust us� method of ensuring the executive branch remains true to its word. A law -- any law -- that is not effectively enforceable in an independent court is not much of law at all. Yet by purporting to strip the federal courts of authority to enforce any provision of the Geneva Conventions, the compromise legislation not only treads dangerously on the powers promised by the Constitution to the judiciary, it calls into serious question the United States� commitment to taking its own obligations seriously. We can�t credibly expect our own troops and agency personnel to be protected against cruelty, humiliation, and unjust detention when we decline to hold our own accountable for doing such things to the many enemies we now face. And we can�t credibly advance the rule of law abroad when we value unreviewable power over enforceable promise.
My constitutional law professor back in law school used to describe the Constitution in our democracy as something like Ulysees� tying himself to the mast of his ship, to save him from the temptation of the Sirens� song. Ulysees knew he couldn�t trust himself enough not to give in; he needed something outside himself to make sure it didn�t happen. We�re always going to be facing the Sirens. Congress needs to be strong enough to fasten the ropes.
--Deborah Pearlstein, Human Rights First
