I hate when I forget to hit "post"

I hate it when I forget to hit "post." Pretend this appeared last night rather than this morning, tho' I edited "today" into "Thursday" a couple of places so that it makes a little more sense on a Friday morning.

Thursday's miles: 2.1
Miles out of Hobbiton: 1327.7
Miles out of Rivendell: 862.7
Miles out of Lothlórien: 407.7
Miles to Rauros Falls: 1.1

On the McCain-Bush compromise: we need to see the whole thing. We need to see the actual law. CNN has a history of getting things wrong, but they're the only people getting particularly specific about this "deal" the Republican insurgency reached with the Bush administration. But there is one line in particular they are reporting that, if correct, makes the whole thing a sham: "the agreement explicitly gives the president 'the authority for the United States to interpret the meaning and application of the Geneva Conventions.'" And just as a backup, the Associated Press reports that the bill "bars individuals from protesting violations of Geneva Conventions standards in court."

In short: the Geneva Conventions mean whatever the hell the sitting president wants them to mean, and whether they might apply to someone, and might not - all depending upon his whim. And you have no legal recourse.

This is not law. Arbitrary imprisonment and exemption from the process of law is not the power of a president. This is so very, very far from "checks and balances" that I can no longer see the Constitution or the Federalist Papers from here. I can see a couple of the Anti-Federalist papers, though, like warning signs we long passed but the shadows of which still trail along the ground behind us. And that's just a damn shame.

But still, we need to see the actual resulting bill, and then the compromise bill. Hopefully CNN and the Associated Press - the only people reporting this part as of Thursday night - got it wrong. CNN, after all, isn't what you'd call "highly reliable." Maybe there are details in the language that makes it look like one thing but actually be another. Hopefully we'll find out Friday.

Hello

Something popped spontaneously in my left ear. My hearing on that side is now a little bit better. Not normal, certainly, but ... a little bit better. Fingers crossed.

Well, that's pretty clear - except where it's not

From Andrew Sullivan, the "compromise" agreement on torture and related trials:

IN GENERAL.-No person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories.

In short: you have no legal recourse under the Geneva Conventions in the US.

It's the first thing in the agreement. The first. Please don't misunderstand the importance of this: it is the end of American compliance with the Geneva Conventions. No enforcement is possible without legal recourse, and now there is no legal recourse under this treaty. This law, assuming it stands, effectively replaces it.

Bottom of page one:

(3) INTERPRETATION BY THE PRESIDENT.-(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

The AP quoted part of this before, and let me excerpt out the most important part: "the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions." That means "the Geneva conventions mean whatever the current president wants them to mean, and apply to those to whom he wants it to apply." And, as stated above, you can't do anything about it. Again; they're dead in all but name.

Amusingly, in the same section, you get "(C) Nothing in this section shall affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States." Note the clause "in this section." The part kicking the courts out of the arena with respect to the Geneva Convention treaties are in another section, making this clause substantially non-functional - but it may have an application later below. Keep reading.

This clause is curious:

“(1) PROHIBITED CONDUCT.-In subsection (c)(3), the term ‘grave breach of Common Article 3’ means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions does at Geneva August 12, 1949), as follows:

But you're prohibited from seeking redress from the courts by citing Geneva Convention rights. One hopes this adequately separate from that, but hey, it's hard to say, as it directly references the GC for its definition and does not reprint it. Can you seek legal recourse on this basis, or does the link disqualify it from judicial recourse? Is that what the previously-mentioned Clause C is about? One would hope, but I've no idea - there's certainly a lot of room for wiggling here. There are several other clauses similar to this one; the same commentary applies to them all.

Here's an interesting addition:

(D) the term ‘serious physical pain or suffering’ means bodily injury that involves:

(1) a substantial risk of death;

(2) extreme physical pain;

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

"Clarification" my shiny metal ass. Does this mean US personnel can sandpaper and/or cut and/or beat up people in custody now as long as it doesn't hurt too much? Does it mean you can cause major pain, but not "extreme?" What do those terms even mean? Do you mean you can cause lesser loss of a bodily member, organ, or mental facility? Could you, say, pull fingernails off? Hey, they'll grow back, right? And as for the pain - ha HA - topical anesthetic!

Don't laugh (or sneer) at that anesthetic crack - there are a variety of reports of cases like it under this administration's preferred regimen of interrogation, such as subjecting people to deadly cold, with medical intervention every so often to keep them alive.

Oh look, it's even retroactive, Section 9, Clause 3 of the US Constitution ("No Bill of Attainder or ex post facto Law shall be passed") be damned. (Emphasis mine.) It's interesting that it goes all the way back to 1997. I wonder what that means in terms of the date - what happened then? Or is it just an attempt to include the Clinton administration by implication in this bill, or is it just noise:

(2) RETROACTIVE APPLICABILITY. The amendments made by this section, except as specified in paragraph 2441(d)(2)(E) of title 10, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002 of Public Law 107273).

Interestingly - in the whole area of "adopting the ways of your (previous, in this case) enemy" - one of the big features of Soviet law was the implementation of many retroactive laws. These were often used to punish people who had committed then-legal acts, but people that the new Communist governments - particularly in Eastern Europe - wanted to remove as undesirables. They were also used against the politically unpopular. All you had to do was pass a law that applied retroactively, and then you could prosecute anyone for whatever you wanted!

I wonder how many more retroactive laws will be passed by this Congress and administration?

On page 5, you see something that looks promising:

(c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT.

(1) IN GENERAL.-No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED.- The term ‘cruel, inhuman, or degrading treatment or punishment’ in this subsection shall mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

but then you get to the catch - it's the administration's responsibility to police itself:

(3) The President shall take action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.

...implying strongly to me (and, I'm sure, to any available legal weasel team) that if the president doesn't want compliance, well, all he has to do is not do anything.

So. What do you have? The President gets the power to interpret the Geneva conventions to mean whatever he wants them to mean and to apply - and not apply - to whomever he wants. US personnel get immunity from prosecution from Geneva Conventions - ignore that bit in the Constitution about treaties being the law of the land. (Article 6, Section 2, if you're interested.) There are bans on "extreme" forms of disfigurement and torture, but all sorts of lesser forms are allowed - but the administration conducting them is the one that gets to decide what they are and are not, and gets to police itself. Somehow, I imagine that both the Bush administrations and future administrations will never find themselves in the wrong. And this, somehow, is the better bill. Little wonder the Bush administration was so eager to sign up for it.

This is not a compromise. This is a capitulation, a stage show set up to convince Americans that there is more to this Congress than doing nothing beyond sucking up to the fundamentalists and rubber stamping for the Bush administration. It has been a ragged bit of political theatre. I imagine that all we have to do now is see whether it'll work in November.