Marty [Lederman] and others are commenting on the wiggle room left to the President in determining what methods would be prohibited but may not constitute grave breaches of the Geneva Conventions and for some reasons its a big deal that those have to be published. Let's assume for the sake of argument that there ought to be a series of interrogation tactics that fall short of grave breaches [of the Geneva Conventions] but that ought still not to be permissible. That sounds right, indeed. But, the problem is the complete deferral to the President on this determination.

It is this concession to the President that is mindboggling in almost all respects because the hold-outs could have given the President the less than grave tactics without giving him the sole authority to determine what they were. I'm eating my words; Marty is right - McCain is a tragic figure now.

Can anyone in the know explain to me how letting McCain run with this torture debate benefitted the Democrats in any way? ...

I honestly think it would have been much, much better if they'd have forced their way into the debate and taken a firm stand - if only to show they give a damn. This is a turn-out election and I have a feeling many a Democrat's stomach will turn as they see this triumph of GOP "leadership" in action.

A bit earlier this evening, in the comments section at TPMCafe, I said that from what I could tell the torture compromise is that we agreed not to reinterpret the Geneva Conventions, only to continue violating them. The Post now has its editorial out. And they appear to have to come to something like the same conclusion. (Can't wait to hear the Dean's [David Broder's] verdict.) The senate won't formally reinterpret the Geneva Convention or explicitly sanction the president's torture policies. But they'll allow him to keep using them.

That's the compromise.

A close reading indicates a total capitulation to Bush. The President is free to define his interpretation of the Geneva Convention as he sees fit. "Cruel, unusual, and inhumane treatment or punishment" continues to be defined in terms of the Fifth, Eighth, and Fourteenth Amendments to the US Constitution, which as has been explained by several postings here [see this and this], is a way of introducing relativism and situational morality via the "shocks the conscience" criterion.

Over the last few weeks I have debated with myself whether McCain et al were genuine in their opposition to torture. Yesterday’s "compromise" makes it clear that they were not. They settled for a transparent fig leaf that will provide, for the first time, a legalized framework allowing torture as official policy. There will be no need to hide the scars or the destroyed souls. It will all be legal. (my emphasis)

How long until domestic opponents are proclaimed "enemy combatants?" Not so long ago I thought that unlikely. Today, it is hard to believe anything is unlikely.

This is a bill that all Americans can truly be ashamed of. And it has been given to us courtesy of our elected leaders, the party of Torture-lite. ...

They think that we Americans will actually reward them at the polls for legalizing torture.

That is one of the most chilling things about this entire episode. Have we become so complacent as a country, so easily lied to, that our leaders now think that they can legalize torture before our very eyes and that we will actually thank them for doing so? (my emphasis)

Equally alarming is section 7 of the "compromise" bill, which would purport to prevent any person - alien or citizen, overseas or in the U.S. - from so much as invoking the Geneva Conventions - any provision in any of those Conventions - "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."

Apparently, this not only would foreclose the possibility of a private cause of action under Geneva - even solely for injunctive or declaratory relief - but, more ominously, would also prevent any litigant from so much as raising Geneva as a ground for relief in any properly filed lawsuit ... even when, as in Hamdan, one or more provisions of Geneva determine the scope and effect of federal statutory law.

What this means, in effect, is that the President's interpretation and application of the Geneva Conventions will be virtually unreviewable, no matter who the affected parties may be, in this and other armed conflicts, now and in the future ... across the board.

So are we on our way toward an American versio[n] of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did? No, I don't think the Bush Administration should be compared with the Nazis, but, as I've been repeatedly arguing vis-a-vis Carl Schmitt [a rightwing German political scientists], I believe that we ignore the legal thinking and analysis that took place during Weimar and its aftermath at our peril. It is no great compliment to say that we are, as yet, nowhere near the Nazis. ...

George Bush has fundamentally reshaped the "conventional wisdom" of American political life in a way that most presidents can only dream of. Ronald Reagan elicited only agreement, at least rhetorically, that "the era of big government is over." George Bush has elicited agreement that "those claiming to have been tortured by the United States have no rights that the United States is bound to respect" in any ordinary legal sense, as by having to show up in court. America will be paying for that reshaping for many, many years to come.

That means the customary international law of war is henceforth gone in the United States – ironically, to say the least, because it was the U.S. Army’s Lieber Code that forms the basis for the Law of Armed Conflict (LOAC) and which launched the entire world-wide enterprise of genuinely international humanitarian law. Ironically as well, because our own military has taken customary LOAC as its guide, and used it to train officers and interrogators. Apparently there is no need to do that anymore, at least when it comes to war crimes. Goodbye, International Committee of the Red Cross; the Swiss can now go back to their fondue and cuckoo clocks. (Those who, like me, shelled out over $400 for the ICRC’s three-volume treatise on Customary International Humanitarian Law can try to sell it on E-Bay.) Goodbye, jurisprudence of the Yugoslav tribunal, which the United States was instrumental in forming. ...

In the end, the three courageous Republican mavericks didn’t want the President unilaterally twisting Geneva until it screamed. Now it turns out that the principle they were fighting for was Congress's prerogative to grant him the unreviewable power to do so.

So why, five years into the war on terror, has the Bush Administration been unable to bring a single terrorist to trial?

The answer, it seems, is that politics has trumped everything for Bush. The war on terror helps elect Republicans; bringing terrorists to trial, however, could embarrass Republicans - for federal courts are making the Administration play by the rules. (my emphasis)

The torture of prisoners is not only illegal under American and international law it is, put simply, immoral and unjust. It is also un-American.

The president's bill - blocked in the Senate by three Republicans who know war and know the law and know what's right - would allow Central Intelligence Agency operatives to subject prisoners to water-boarding, or near-death by drowning; to being forced to stand for 40 hours at a time; to sleep deprivation; to being tossed naked into a freezing cold cell for days at a time.

Sleep deprivation was a favorite of the Soviet KGB. They knew that after three or four days their victim would be hallucinating, shivering and shaking, weakened to the point where he would admit anything just for the hope of half an hour of sleep.

I saw water-boarding long ago in Vietnam. A half-naked young man, suspected of being a local Viet Cong guerrilla, was handed over by his American captors to South Vietnamese troops.

Four of them held him down. An old, dirty rag was coiled around his face covering his nose and mouth. A fifth held a five-gallon tin of water slowly pouring it into the coiled rag.

The water took the place of air for that prisoner. His chest heaved violently as he sought the air and took in only water. I turned away before I could see whether he talked or drowned. An American captain shrugged; it was a Vietnamese thing.

If all these illegalities, if all this immoral and un-American conduct, were not set right and somehow made legal in some hasty legislation, then it would not only be the agents who poured the water and beat the prisoners who someday might face war crimes charges, it could also be those who bent and broke the laws and the treaties.

Thus we are treated to the spectacle of a president declaring that if Congress did not pass the law he wanted, allowing the torture of prisoners, then we would cease interrogating prisoners in the war on terrorism.

What's the middle ground on torture? No water boarding or work on the fingernails allowed but sleep deprivation and the ice-box and minor beating around the head and ears are just fine?

Then came the evening and Gary Bauer. It seemed the entire deck he drew from held nothing but hate cards. Again and again he returned to themes of vengeance, hate, vindictiveness. That ember of hope flickered into near oblivion when he received ovations for his snide diatribe against ending torture. When a group who call themselves Christians and profess to be working to maintain America’s place as a moral beacon in a fallen world rise to their feet so support this nation’s use of torture, there seems little basis for hope.

It continues to astonish me that the courteous people who welcomed me at breakfast could so easily be turned to a crowd cheering for torture. Sure, it took an all day diet of half-truths and outright lies carefully delivered for the greatest emotional impact. But it worked - at least for the evening. (See, that ember of hope refuses to die entirely!) Hatefulness and vindictiveness took home the pot last night – a sad ending to a long day.