"...the Pentagon has decided that it will treat all detainees in compliance with the minimum standards spelled out in the Geneva conventions, a senior defense official said today."

This from NYT. More: "'We’re at a crossroads now,' Admiral [John D.] Hutson said. 'We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny.'

He and some other current and former senior military lawyers are scheduled to testify this week before one of the three Congressional committees looking into the matter. He said he plans to urge Congress to avoid trying to get around last month’s Supreme Court ruling."

We'll see.

May I draw your attention to unethical behavior by Senators Lindsey Graham and Jon Kyl.  They filed an amicus brief in the Hamdan case with the intention to mislead the Supreme Court with respect to the legislative history of habeas corpus and enemy combatants.  She refers the reader to FindLaw on the issue.

The Supreme Court rejected their amicus brief. Nevertheless, the two Senators should be sanctioned for their dishonesty.  This will bode ill for the hearings if such fraud goes unchecked.

The first reference is from firedoglake:

http://www.firedoglake.com/2006/07/10/a-matter-of-ethics/

The second is:

http://www.firedoglake.com/2006/07/10/a-matter-of-ethics/

Right, the commander-in-chief as dictator over anything he says involves terrorists as long as he says the 'war' lasts. I think that's intrinsically unpopular, but the Democrats have never tested it, which is very frustrating to anyone in favor of the Constitution, due process, or even the Magna Carta. At least now the liberal Dems should test the popularity of the President's claim to dictatorial rights. I mean, the President running this 'war' can't get much more unpopular.

Of course they could throw in the sanctioning of torture-derived testimony in the military commissions, and a whole slew of abuses of basic legal rights in the commissions' rules. Liberals need to connnect these abuses to everyday Americans (how would they like it if...), and not continue bleating about those (usually wrongly (as best we can figure)) accused of being terrorists.

Of course, I'm not getting my hopes up: sometimes I think the Beltway Dems watch too much FoxNews, and think that is the real America.

Let's hope so, but it's obviously not going to happen if Cheney/Addington/Rumsfeld have anything to do with it. I'm sure their view of the Supreme Court decision is simply that it was wrongly decided and that some of the justices will always side against them, regardless of the facts. You can't reason with these fanatics, and they will never accept that their views are incorrect, despite the lack of evidence for them.

My prediction is that they'll try to comply in as narrow a way as possible unless someone convinces them that it will be a political problem for the GOP for the case to again go to the Supreme Court and lose.

Hmm...let's see. Article I, Section 8 of the Constitution gives Congress power to declare war and to "make Rules concerning Captures on Land and Water;" and Section 14 "To make Rules for the Government and Regulation of the land and naval forces." Section 16 is also related.

Congress could override, and legislation on point would override contrary customary international law or even a binding treaty. Congress could probably cede some of this power to the Executive if they spoke specifically about it (as opposed to the losing argument in Hamdan that Guanatamo's military commissions were part and parcel of the authorization to use military force).

Many thanks.

Congress could override, and legislation on point would override contrary customary international law or even a binding treaty.

How do you figure? Perhaps my education was lacking on this point, but I've always understood the Supremacy Clause to make binding treaty obligations supercede federal legislation in a similar sense as federal legislation superceding state action.

We do know what the testimony of four out of the 5 will be and it won't surprise most people here. On July 14, 2005, (coincidental?) the Subcomitte on Personnel for the COMMITTEE ON ARMED SERVICES held hearings To receive testimony on military justice and detention policy in the global war on terrorism.

Major General Thomas J. Romig, Rear Admiral James E. McPherson, Brigadier General Kevin M. Sandkuhler, and Major General Jack L. Rives, USAF were witnesses on Panel 1. Helpfully, they consolidated their thoughts into a five page presentation that boils down to this:

The use of military commissions for terrorists who violate the laws of war, as opposed to other trial alternatives such as the federal courts or military courts-martial, best provides the flexibility necessary to ensure that these equally important yet competing goals are attained.

I'm not sure why Congress even bothers.

Five other witness were included in the hearings. Out of these five, only two happened to disagree with the administration's stance on torture, detainment, Geneva Conventions, etc.

Professor Stephen A. Saltzburg, Wallace and Beverley Woodbury University Professor of Law, The George Washington University Law School wrote 31 pages of what the Bush administration and Congress were doing wrong and what they needed to do to fix their wrongs. The best lines:

The fairness of military commissions is not an Executive issue; it is a national issue. The credibility of the United States is at stake. [...] It is time for Congress to act and to make clear that the Convention Against Torture And Other Cruel, Inhuman or Degrading Treatment (“CAT”), to which the United States is a party, recognizes no exceptional circumstances in which torture may be used, and that the United States’ ratification committed this country to reject cruel, inhuman or degrading treatment if such treatment is prohibited by the Fifth, Eighth or Fourteenth Amendments to the United States Constitution (which we provided as a reservation when ratifying CAT). [...] It is time for Congress to look at the standards set by and relied upon by other civilized nations and to provide that the United States will abide by the highest standards for treatment of prisoners.

Mr. John D. Hutson, President and Dean, Franklin Pierce Law Center, was the last voice of sanity to speak and he opened with this:

When historians write the book on the war on terrorism, there will be a chapter entitled “Treatment of Detainees.” The first part of that chapter has already been written and it’s not pretty. We don’t yet know how that chapter will end. Fortunately, we have the opportunity — you have the opportunity – to write that ending.

I haven't been able to find much about Scott Black, yet, but the pooch is already screwed with the other four.

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Rule #1

Never bend over around Congressional Republicans.

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It will be interesting to see his input in the hearings and the final product. I haven't followed his activities all that closely, but when I've heard him interviewed, he has sounded like a voice of reason and moderation. But the amicus shennanigan cast something of a pall on that assessment.

Devon and Ges, Graham is unpredictable. I knew about the amicus "shennanigan" while watching him on C-Span question the witnesses during Feingold's Censure hearing. At times, he almost sounded reasonable, which violates Rules #1 -100000.

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Not just Fox, how about television news period. I'm vague on these details but this morning a reporter on MSNBC showed a clip from a Senate committee meeting where a lawyer from DOD was arguing that Bush alone was in the best position to make the right decisions regarding, I think, something to do with terrorism. After some reporter blather the camera switched to Biden, who was questioning the lawyer. Biden said that the president had a bad track record when it came to making right decisions, and given that record decisions should not be left to him alone. Of course, the reporter had to wrap up the segment which he did with this pointed critique of Biden's statement, "Well we can expect a lot of that kind of politicking in the months to come." In other words, Bush makes good decisions and Demos question them only to gain some political mileage. These seemingly off-hand remarks by so-called reporters are insidious and hugely powerful propaganda tools. Our hill gets steeper every day.

Judges do try to reconcile them, but if the subsequent statute contradicts the treaty, the statute prevails. All being a treaty does for you is make the judge look harder to try and avoid such a problem but that would not apply in this case because Congress would presumnably be clear about what it is doing if they decided to take a piece out of Common Article III. Generally though, Congress hates abrogating treaties and that is the real reason they tend to last.

There is no requirement federal (as opposed to state law) must be consistent with prior treaties.

The shuffling off of detainees had also occurred to me. I'm not sure what the US is about anymore except big money and power for power's sake.

My understanding is that treaties are equivalent domestic law as long as they are honored, but since the Senate approves treaties, they can also withdraw.

But law that contradicts a standing treaty is open to court challenge.

Jalrin is correct. This was my original point. A later federal statute prevails over an earlier treaty if they conflict, so if Congress passes a statute authorizing military commissions and denying Guantanamo detainees protections under Common Article 3 of the Geneva Conventions, the statute will be on point and will control over the Justices' interpretation of Geneva.

Other nations can complain, but there's really not much that they can do if we choose to violate our duties under a treaty. Kick us out of the treaty? Take us to the UN Security Council or Human Rights body? The Int'l Court of Justice? Not likely and wouldn't do any good if they did. We won't leave the Geneva Conventions altogether, simply because we won't have to do so. We'll just apply them selectively.

Congress (read Graham, Warner, McCain et al) will probably give the Admin most of what they want, and we will end up with a slightly watered down version of their military commissions. I think that's at least partly why the Admin pushed for minimal protections in the first place. Now they can make a few token concessions and say, see, we're reasonable, we responded to these concerns, even though we think the GC are outdated.

Depending on what the legislation looks like, we may have to wait for the Supreme Court to decide again while the Right hopes for Justice Stevens to have health problems, but the odds of losing Justice Kennedy in the majority will increase.

Remember those voting records on Roberts and Alito. I seem to recall Lieberman among those few Dems voting for cloture on Alito. Another front Lamont should exploit if he hasn't already. Also goes to the Kosian point on the danger posed to Dems by single issue groups who support supposedly moderate Republicans (although to be fair, I think Chafee did vote against cloture).

If there was ever a time to risk coming out on the losing end of the Nuclear Option, the Alito confirmation was it, and the Democratic leadership in the Senate blinked. At least post-nuclear we could more easily appoint justices if a Democrat wins the presidency in 2008, and we would have had a round of pro-Dem editorials, as everyone who has looked at it closely knows the Nuclear Option is totally bogus. (Even Norm Ornstein at AEI http://www.aei.org/publications/pubID.22537,filter.all/pub_detail.asp)

The game plan for Alito should have been to trot out the least popular decisions of Scalia and Thomas to show everyone concrete examples of what they would get from him. Instead, we had the ridiculous Concerned Alumni of Princeton sideshow.