ChezLark

President Bush signed the so-called “Military Commissions Act” into law this morning. You can read the full bill here. Just as a recap:

• The President is authorized to label anyone at all an “Unlawful Enemy Combatant” (an invented term) and hold them forever, without charge, if he chooses.
• Foreigners in particular are forbidden from making any appeal to US courts to challenge their (potentially permanent) imprisonment.
• If the government chooses to torture, abuse, rape, coerce, or otherwise mistreat a foreign prisoner, they have no legal recourse and are expressly forbidden from appealing to any US court.
• The Geneva Convention protections are significantly weakened.
• El Presidente gets exclusive authority to decide what does and does not constitute a breach of the Geneva Conventions beyond the language of the bill.
• For good measure, nobody is allowed to cite the Geneva Conventions as a “source of rights” in any court of law.
• Evidence obtained by torture before 2006 is explicitly authorized for use in military commissions. Evidence obtained by coercion after then can be used, too.

Jack Balkin has some commentary today, in which he argues that the new legislation hasn’t actually authorized the CIA’s “enhanced” interrogation techniques, which include the use of hypothermia, sleep deprivation, stress positions, mock executions, etc, because other legislation is still applicable. However, he argues that because all judicial recourse has been disabled, de facto, the President can now order whatever extreme measures he likes without fear.

The CIA will still be violating the law if it does what the President wants it to do. However, because the Military Commissions Act severs rights from remedies, the Executive branch has the sole power of enforcement. The President decides whether he thinks people in the Executive branch are violating the law, and even if he believes they are violating the law, the President also decides whether he will order them to stop. By now we know the answer to this question. He will not order them to stop. Quite the contrary: the President has made clear in his repeated endorsement of these “alternative” techniques (techniques that he will not name in public) that he will push CIA officials to break the law. Because the Executive branch holds all enforcement powers within itself, the only thing that prevents cruel, inhuman and degrading treatment is the conscience of CIA personnel and executive branch lawyers.

And we know from the fiasco over the torture memo that the conscience of executive branch lawyers has not always been sufficient.
[...]
[The Act] 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.

During the kabuki theater performed before the passage of this bill and pawned off on the public as “discussion” and “debate”, GOP Congressmen supposedly “negotiated” with the White House to draw up a bill that balanced civil liberties with the expanded authorities the White House insists it needs to go after terrorists. Much was made of the back-and-forth exchange of draft bills with the White House, and the negotiated bill was trumpeted as evidence of healthy and functioning checks and balances between the legislative and executive branches. This MSNBC article from that time describes GOP Senators led by John McCain as “GOP rebels”.

So, what’s the White House’s tune now that the “compromise” legislation has been thrashed out and signed? Recall that normally, the White House attaches “signing statements” to bills explaning how it will interpret them, which is usually used as an opportunity to wriggle out of aspects of the bill that the Executive doesn’t like. The White House even attached such a proviso to McCain’s original anti-torture amendment, for chrissake.

Tony Snow, from yesterday’s press briefing:

Q: Tony, is there going to be a substantial and detailed signing statement with tomorrow’s signing?

MR. SNOW: There will be no signing statement.
[...]
Q: Can I follow on Ken’s question? Why no signing statement? Is there any kind of change in policy?

MR. SNOW: Because there’s no signing statement. You have signing statements sometimes, and sometimes you just sign it.
[...]
Q: This just seems like the kind of bill where there are a lot of things to be interpreted and take a look at.

MR. SNOW: They did a really good job this time.

Q: Wow. (Laughter.)

…and today:

Q: [...T]his has been described as a compromise. The President basically got everything he wanted, didn’t he?

MR. SNOW: Pretty much, yes.

If this legislation didn’t scare you before for some inscrutable reason, the very prospect that it is utterly and entirely “what the President wanted” should scare the crap out of you.