Torture is now legal in the United States

By Nancy Jane Moore

The detainee torture bill is now the law of the land. No one doubted that Bush would sign it, and he did so on Tuesday. Once the Senate caved in, there wasn't any way to stop it.

By the way, Bush didn't issue a signing statement with this law. Dan Froomkin reports that a reporter, surprised by the lack of a statement, observed, "This just seems like the kind of bill where there are a lot of things to be interpreted," to which Press Secretary Tony Snow replied, "They did a really good job this time."

That should be enough right there to tell you that Bush didn't compromise on anything. Sens. McCain, Lindsay, & Graham (R-Lapdogs) postured a bit, but they were apparently just putting on a show.

In fact, Froomkin also quotes this exchange from the press briefing:

Q: Do you think -- this has been described as a compromise. The President basically got everything he wanted, didn't he?
MR. SNOW: Pretty much, yes.

The only good news is the amount of criticism the law is getting. A lot of people seem to think it's going to run headlong into the Constitution. David G. Savage writes in the Los Angeles Times:

Many legal scholars predict the law's partial repeal of habeas corpus will be struck down as unconstitutional.

Savage quotes the relevant language from the law:

No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined ... to have been properly detained as an enemy combatant or is awaiting such determination.

That last phrase is the one that gets me: "awaiting such determination." They don't even have to say you're an enemy combatant; they just have to say they're holding you while they're deciding whether to call you an enemy combatant. That's it. No rights.

The LA Times also piece provides a nice quote from Hofstra University Law Professor Eric M. Freedman, an expert on habeas corpus:

This is an outright slap at the Supreme Court, and it is heading for invalidation. ... This is a core principle of law that was established by the prisoners who were tossed into the Tower of London by the king, and it was preserved in the Constitution. Now, Congress is saying it doesn't apply to this disfavored group of prisoners.

I certainly agree with Professor Freedman's assessment of the law and I sure hope he's right about the Supreme Court. But because of earlier "compromises" on filibuster made by the so-called opposition party (that's D-Lapdogs), the court has moved farther to the extreme right than I would have ever thought possible. I hope they can still cobble together a majority who believe in due process of law.

Juan Cole on Informed Comment says Bush is becoming like the Borg. Any day now, he expects to hear the man say, "Resistance is futile." His explanation of the law gets right to the nub of the matter:

In other words, we have to be confident that George W. Bush is so competent, all-knowing, and inherently just that we can just trust him. If he says someone is an enemy combatant, then he or she is. No need to check with a judge about why he or she is being held. And then Bush can have the suspect tortured to make him confess, and can convict him on the basis of the coerced confession, all in secret.

Professor Jack Balkin on Balkinzation addresses the torture part of the bill. He says the bill doesn't actually make torture legal; it just makes it impossible to prosecute any of the torturers:

The bottom line is simple: The [Military Commissions Act] preserves rights against torture and cruel, inhuman and degrading treatment, but it severs these rights from any practical remedy.

He goes on to say:

There are many things that are deeply distressing about the Military Commissions Act of 2006. One of the most distressing is its deeply cynical attitude about law. The President has created a new regime in which he is a law unto himself on issues of prisoner interrogations. He decides whether he has violated the laws, and he decides whether to prosecute the people he in turn urges to break the law. And all the while he insists that everything he does is perfectly legal, because, the way the law is designed, there is no one with authority to disagree.

It is a travesty of law under the forms of law. It is the accumulation of executive, judicial, and legislative powers in a single branch and under a single individual.

It is the very essence of tyranny.

I can't say it any better than that.