Kangaroo Courts II

Publius has some more commentary on the various versions of the President's kangaroo court legislation. It looks like McCain et al are going to get lots of credit from the pundits and the press for doing next to nothing:

The emerging narrative on the rival military commission bills is that noble Senators (Warner, McCain, and Graham) are doing battle with the big bad Bush administration in defense of the rule of law. Don’t believe the hype. The bills aren’t really that far apart (particularly on the issues that matter). And so I fear that the high-profile narrative of “conflict” obscures the fact that both of these bills are really bad. In short, this is more or less a Kabuki dance, though it’s unclear whether the nobles realize they’re dancing.

... And despite the hubbub, the bills are very similar on most of the issues that really matter. For instance, both bills eliminate habeas for everything relating to the detention or conviction of the detainees. Both bills allow the admission of evidence obtained by coercion (which is short of torture). Both of them apply retroactive immunity (though they do it in different respects). And both of them narrow the War Crimes Act.

But there are differences. From what I can gather, the material disputes are: (1) certain trial procedural differences (e.g., ability to use concealed classified evidence); and (2) the scope of the War Crimes Act amendment (and the acts it would prohibit).

As I explained here, the current War Crimes Act criminalizes all violations of Common Article 3. Warner’s bill — like Bush’s bill — criminalizes only some of them and the proceeds to list those violations. This sticking point seems to be the ban on “cruel, inhuman, and degrading” treatment, which the Warner bill bans (see p.79). Bush’s bill doesn’t go this far. In fact — and this is almost funny — the subject heading of the corresponding section in Bush’s bill is entitled “Cruel or Inhuman Treatment,” (p.80), but the section never actually uses that language. (I think I saw Lederman make this point somewhere). Lederman speculates that this careful language is intended to allow them to continue with cruel and degrading treatment going forward.

I’m getting in the weeds here, but this is the section where the rubber will really meet the road. It will be interesting to see if McCain holds his ground here. My hunch is that the administration cares less about concealed classified evidence than they say they do. What they really care about (for obvious reasons) is narrowing the War Crimes Act. So don’t be surprised if they give in to McCain on the classified evidence (while the media fawns) while silently getting their way on the War Crimes Act language.

But the larger point is even if the Warner-McCain bill passes as is, the state of the law isn’t good because (1) the flawed combatant designation process remains in place; (2) habeas is completely gutted; (3) prosecution for past war crimes is impossible; and (4) the War Crimes Act is narrowed. And of course, the McCain bill is only going to get worse going forward.