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July 21, 2006


(After this the posts in this series will get a fair bit shorter and much lighter on the legalese, I promise.)

We could call the Geneva Accords by a different nomenclature; how about the Geneva Process. The 150+ signatories could agree to toss the US out. Then the US could petition for a partially concurring status. Like Kyoto. The president is the signer of treaties; congress ratifies. The President also is the Decider.

Well my conscience is sure as [deleted] shocked, and has been for years now. It's not shocking enough for Americans to be openly advocating that the government should torture people? We're not discussing an abstraction, but rather how stringently a particular activity should be regulated.

I'd be interested in hearing Hilzoy's take on this, but as far as I'm concerned the Supremes have been sensible in avoiding the the question of "conscience" here because it's just a polite fiction. And using polite fictions (like "privacy") in legal reasoning is a recipe for trouble. But the cat is out of the bag and it ain't going back in without somebody getting clawed. I think you should prepare yourself for the possibility that at some point -- probably after Bush leaves office but presumably still the Roberts court -- the Supremes will indeed have to decide the very question that Trager leaves open.

BTW nice cliffhanger at the end there...

We got the end of the exclusionary rule for evidence. Corollary: inclusion of tainted evidence is ok when its source is a detainee. That sounds like parallelism for the current Supreme court's composition; but, I think what is worrying the administration here is Associate Justice Thomas. Until there is another Justice on the court less inclined to grasp parts of the 1st, 4th, and 5th amendements as those passages impact underprivileged or absolutely rightsless individuals who are merely humans, the administration will prescind from the 'conscience shock' test.

Thank you hilzoy! As ever, a cogent summary of a horror.

Here's a question that nobody seems to be asking: it is now obvious that the Bush Administration is actively pushing a torture policy. They didn't just sort of stumble into it, they came to it deliberately and seem determined to push on in the face of adversity. So, why? Why spend so much political capital in support of such a useless goal?

I mean, is somebody telling them that it works? Because the consensus of experts is that torture does not produce reliable information. Perhaps they don't believe that, but why not?

And perhaps, given their usual focus on style over substance, they just see torture as another tool for "fixing" the intelligence in support of a predetermined policy goal? It does work for that; torture enough people and you do get some who will say whatever you want them to. So, is this about information control?

Or, and here I don my tin-foil hat... is this part of a general long-term effort to define deviance down? In other words, is the agenda to introduce torture in Gitmo today so that it can be sneaked into civilian American prisons bit by bit tomorrow? As policy, I mean, because we all know that many of the Gitmo techniques were actually pioneered in American prisons.

Bush and his fellow social elitists are on record for a number of propositions that amount to the idea that America needs a firmer hand, a government less shackled by untidy, inconvenient civil rights concerns. The authoritarian right has been busily demolishing the 4th and 6th Amendments for decades, and it lately started in on the 1st (with the personal attacks on journalists). Is the torture policy the conscious beginning of an attack on the 8th?

Katherine - if you had a chance to ask SG Paul Clement some questions, what would they be?

I'm going to need a quiet time to look at your posts in sequence; I read the first few, then was away...

Have you already dealt with the issue of the role of the revised Army Field Manual for interrogation (still not final, I believe, and still unclear whether Pentagon will actually try the outrage of making some sections of it classified?).

semi-OT: Anyone reading this who has any idea when the Haynes nomination will be taken up again -- please say here, or comment at my blog, or email me. Thanks in advance.

Nell, All I notice is the usual blank slate at Judiciary Committee, and business meetings agendas absent of any mention of further action on the Haynes matter; even Schumer's July 11 formal statement from the Haynes hearing then is posted only to the hearing website, not to the senator's own website. The Ralph Neas led organization likewise is silent on future prospects, but has a petition signed by 37,000 people to-date in opposition. I need to look at the clerks' websites for more definitive word, and, perhaps, may find the contact person at PFAW who likely has the current status information. During the past few nominations to Supreme Court justice, I found PFAW very responsive; you might try them directly yourself. Usually the reply is within a day, in my experience. You know this matter has to be within their scrutiny now, given the turbulence in the debate over what OLC should be doing as far as presenting a range of options.

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