Guest Post: The Good News on Torture?
From Onnesha Roychoudhuri:
Just a month ago, the world reached a little-celebrated milestone: The Geneva Conventions of 1949 acheived universal acceptance. I offer this as the necessary larger context to the passage of the so-called "Miltary Commissions Act." While American democracy, and basic human decency have suffered a monumental blow, it is important to realize that fighting against such widely accepted legal treaties is an uphill battle that is nearly unsustainable.
When you pass legislation that so clearly violates pre-existing laws, things aren't going to be neat and tidy. It's not simply the case that what was once illegal is now legal. Jack Balkin gives us a little further perspective on the loose threads that remain. A brief summation:
"The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don't hold your breath.)... Although the MCA attempts to eliminate judicial review, and in particular the writ of habeas corpus, it is by no means certain that it has succeeded . The suspension of habeas may be unconstitutional."So, rather than request that Congress make legal illegal actions, the President asked Congress to make it impossible for any of these actions to even be judged by the law. It's an attempt to legalize the shirking of the law. Essentially, Bush asked Congress to pass a bill that will enable him to avoid that pesky judicial branch. And while perhaps it isn't the most hopeful note to end on, Balkin leaves us with this: "Although it may seem that the Supreme Court doesn't have the last word on these questions, the Congress and the Executive Branch don't either."
Or: It ain't over yet.