No more courts, please (er...and Congress is rather tiresome as well...)

The good news about the McCain amendment is that, despite Bush's "signing statement," (quick translation: "sure, we won't torture anyone, unless I think we should") McCain is sticking to his guns. Which he should, since his guns were backed by Congress. He released a statement yesterday insisting that "Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our Committee intends through strict oversight to monitor the Administration's implementation of the new law."

Unfortunately, the McCain amendment is a monumental distraction. Another amendment attached to the very same Defense Authorization Act has received far less press, and yet is being utilized by the Bush administration as a way to wriggle out of Supreme Court cases that could establish limits on Bush's executive powers. The Graham-Levin amendment effectively limits the access that Guantanamo detainees have to U.S. courts. (And serves as congressional ratification for statements extracted under torture as well as the executive-run, judicially un-approved combatant tribunals which Congress still doesn't know much about.) But, unfortunately, the plot only thickens.

Apparently, those crafty legal minds over at the Justice Department seem to think that even the detainee cases that have already made it to the courts (including the Supreme Court) are no longer valid. The JD is claiming that the amendment signed this past weekend, retroactively applies. Even though, one of the authors of the amendment, notes that this was specifically not intended by the legislation. Senator Carl Levin (D., Mich.) issued a press release stating that

The Administration is wrong…Congress specifically considered and rejected language that would have applied the Graham-Levin amendment retroactively to pending cases. Throughout the consideration of the Graham-Levin amendment, the White House repeatedly urged the inclusion of language that would have applied the amendment retroactively to pending cases. In each case, I objected to this language. As a result, no such language was included in the final version of the legislation. The Administration is now seeking to end-run the legislative process and achieve a result through the courts that it was unable to obtain in Congress. I hope and expect that the courts will reject this effort.
The JD's interpretation would mean that critical detainee cases would be dropped -- effectively skipping over courts which have been assessing the legitimacy of the Bush administration's use of Congress' Sept. 14th Authorization to Use Military Force (AUMF) as a "do what ever the hell you want" card. Note that one of the linchpins of the Bush administration's legal justifications for secret wiretaps is based on a detainee case that found that the AUMF allowed for detaining enemy combatants. According to Gonzales, if the Supreme Court thought the AUMF authorized detaining enemy combatants, it would probably authorize warrentless wiretaps. A rather incredible, and illogical, jump.

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