The monumental cave-in of McCain, Warner, and Graham

Updated below

As I suspected, it appears the so-called "compromise" on the Kangaroo Courts bill is a total cave-in by the so-called "Republican rebels." Here's some of what Marty Lederman has to say about it:

Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

Marty Lederman

I hope that that headline is a gross exaggeration, but based on a few quick seconds purusing the "compromise" on Common Article 3, I'm afraid it's not. [The Administration appears to agree. Stephen Hadley was crowing to reporters within minutes that the bill would authorize the CIA "program" to "go forward." And a "senior administration official" -- apparently Dan Bartlett -- told the Washington Post "that Bush essentially got what he asked for in a different formulation that allows both sides to maintain their concerns were addressed. 'We kind of take the scenic route, but we get there,' the official said."]

… Here's the language. It's not subtle at all, and it only takes 30 seconds or so to see that the Senators have capitualted entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. Some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.

[UPDATE: As I explain here, on closer inspection the more serious problem is not so much the delegation of some unreviewable interpretive authority to the President (troubling though that is), but instead that the legislation itself would define "cruel treatment" far too narrowly, so as apparently to exclude the CIA's "alternative" techniques, no matter how cruel they are in fact. I hear word that Senator McCain thinks the bill's definition of "grave breaches" of Common Article 3 covers the "alternative" CIA techniques. I hope he can make that interpretation stick somehow, but on my quick [first two] readings of the language, it still seems to me as if it's carefully crafted to exclude the CIA techniques. See, most importantly, the limiting language defining "serious physical pain or suffering," which is carefully drafted to exclude the CIA techniques such as Cold Cell and Long Time Standing.]

And then, for good measure -- and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation -- section 7 would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "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." [UPDATE: I've heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that's so, it's not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]

If I'm right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.

I expect to be updating this post repeatedly as I read more commentary about the "compromise" today, so come back for more.

Here's some of what the NY Times has to say about it:

Here is a way to measure how seriously President Bush was willing to compromise on the military tribunals bill: Less than an hour after an agreement was announced yesterday with three leading Republican senators, the White House was already laying a path to wiggle out of its one real concession.

About the only thing that Senators John Warner, John McCain and Lindsey Graham had to show for their defiance was Mr. Bush’s agreement to drop his insistence on allowing prosecutors of suspected terrorists to introduce classified evidence kept secret from the defendant. The White House agreed to abide by the rules of courts-martial, which bar secret evidence. (Although the administration’s supporters continually claim this means giving classified information to terrorists, the rules actually provide for reviewing, editing and summarizing classified material. Evidence that cannot be safely declassified cannot be introduced.)

...The deal does next to nothing to stop the president from reinterpreting the Geneva Conventions. While the White House agreed to a list of “grave breaches” of the conventions that could be prosecuted as war crimes, it stipulated that the president could decide on his own what actions might be a lesser breach of the Geneva Conventions and what interrogation techniques he considered permissible. It’s not clear how much the public will ultimately learn about those decisions. They will be contained in an executive order that is supposed to be made public, but Mr. Hadley reiterated that specific interrogation techniques will remain secret.

Even before the compromises began to emerge, the overall bill prepared by the three senators had fatal flaws. It allows the president to declare any foreigner, anywhere, an “illegal enemy combatant” using a dangerously broad definition, and detain him without any trial. It not only fails to deal with the fact that many of the Guantánamo detainees are not terrorists and will never be charged, but it also chokes off any judicial review.

The Democrats have largely stood silent and allowed the trio of Republicans to do the lifting. It’s time for them to either try to fix this bill or delay it until after the election. The American people expect their leaders to clean up this mess without endangering U.S. troops, eviscerating American standards of justice, or further harming the nation’s severely damaged reputation.

Yes, and pigs will fly too.

Update:

Here's Tristero's take:

... Shame, shame, shame on the cowards in both parties that permitted this disgracefully grotesque farce to happen. This is as inexcusable a stupidity as the neglect that permittted the 9/11 attacks, the idiotic reasoning and intellectual blindness that advocated and executed the Bush/Iraq war, and the failure to prepare for Katrina. What the hell is going on, that a country that prides itself on its heritage of freedom and liberty, that fought such an awful war over the degrading enslavement of human beings - that such a country would vote to permit some of the most repulsive and evil practices human beings are capable of and place the power to do so directly in the hands of a moral midget?

Update II:

Publius weighs in as well:

I’m still looking over everything, and it looks like the McCain faction (sadly, but unsurprisingly) surrendered. What jumps out at me in looking it over was the amount of power and discretion Congress just handed over to the Executive. Anyway, it’s easy to get lost in all this, but I think once you put the pieces together, it’s pretty clear that this bill is a systematic effort to authorize cruel interrogation measures and then shield them from prosecution.

...And so it all fits together nicely for someone who wanted to, say, authorize torture (though not “torture” of course, which is very different). The CIA can devise interrogation methods by working around the language in the compromise bill. If there are any doubts, the President can say that he determines that these practices are consistent with the language of the Geneva Conventions. And just to be safe, the Geneva Convention may be completely banned as a source of rights in court. And just to be super-safe about that new pesky McCain language, the penalties for “cruel or degrading” punishment are to be enforced by, yes, the President.

Not a bad day’s work.

Publius has some good tabular comparisons of language proposed by the various players together with the final result. Bush wins on just about every count.

Update III:

And, here's Anonymous Liberal's rant:

Having remained silent on this issue until now, and indeed having expressed public support for McCain, the Democrats are in no position to mount any kind of serious resistance to this bill. Some will vote against it out of conscience. Others will hold their nose and vote for a bill that scales back the War Crimes Act (retroactively), gives the president the unreviewable discretion to interpret our Geneva obligations, and strips away the habeas corpus rights of all detainees. The Democrats will once again look fractured and weak.

Worst of all, the Democratic leadership appears to have been caught entirely off guard by this utterly predictable development. If you read through the stories in the New York Times and Washington Post, it's pretty clear that the reporters sought out Democrats for comment but no one had anything relevant to say. The only mention of the Democrats in the WaPo piece comes in the very last paragraph:

Democrats sounded a cautious note about the Republican accord, calling attention to the past Republican division rather than taking a position on the compromise.

That's pathetic. Didn't anyone even consider what they might say if McCain and friends did the "el-foldo"? Have Democratic consultants and strategists ever heard of contingency planning? I mean, anyone with half a brain had to see that this was a very real possibility. There have been hints of it in the press all week long. But no one even bothered to come up with a soundbite? Good grief.