Posted by: bklunk | October 8, 2006

Can the President Be Regulated?

ddellari provides some commentary on the Military Commissions Act. 

Jack Balkin on the Miltary Commissions Act

URL: Jack Balkin on the Miltary Commissions Act

I thought that this article was interesting and hope that others will find it interesting as well.  While this article was written several weeks ago, I thought that with President Bush’s recent visit to Stockton that the article was especially interesting.  In preparation for the president’s arrival there has been talk about the president trying to redefine torture.  According to this article that view is not exactly true.  The United States still remains bound to the Geneva Convention, as it was before the passage of the Military Commissions Act.  According to Jack Balkin also, with the passage of this act, the president still is bound against cruel and inhumane treatment by such things as the McCain Amendment, and the Constitution.  However, a valid concern does seem to be the seeming lack of avenues to be taken if the president were to break these prohibitions.  However, it seems that this is premature.  As the article itself says, much about the legal ramifications of the bill are unknown.

It would have been helpful if ddellari had quoted a bit from the blog.  In any case, this seems to be one of those glass-half-empty or glass-half-full situations.  The troublesome aspect of the MCA is not so much how torture is defined, or not, but its suspension of judicial review. 

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  1. The interesting thing about this is when you look at how the MCA is related (or not related at all) to the Geneva Convention, the MCA gives a huge loop hole through the Geneva Convention. MCA makes the Convention impossible to enforce unless war crimes are the violations. The U.S. is still bound by the Geneva Convention, which seems at this point more of a p.r. move, but any legal enforcement or legal repression on violations are out of the question.
    This does not seem like the best move for the U.S. at this point for a few reasons:
    1. The public opinion, both domestic and international, have been hurt on the idea of toture because of events like Abu Ghraib.
    2. The U.S. needs as many international friends as possible right now and disregarding a treaty that it helped create would not help with that
    3. If the U.S. wants to be a leader to other nations and promote democracy, then it needs to worry about it’s international image and not cause foreign tensions.
    The MCA seems to go against all these points and hurts the U.S. image of civil rights and democracy.

  2. From what I understand I agree with Madi Bruber that the US is merely sticking to the Geneva Convention just for looks. They seem to do everything, but come out and say that they are torturing people. But the fact that we are now trying to get rid of the judical process in the MCA act is just wrong. I find it odd that we are also trying to change what the definition of torture is. It almost appears that we already are torturing people, but if we change what torture means well then we can say we never tortured anyone. The US does need as many international friends as it can get and keep the ones it does have because we are a leader in todays world and other countries look at us and see what we’re doing, and if we do something wrong its hard for the US to tell others what to do.

  3. It appears the MCA was only created to justify the dentention practices. These practices have left a hypocrite to the rest of the world. By setting aside the Geneva Conventions for a new set of standards for ourselves, what message does that send the world. The President has mentioned that the war on terror is a global war, one that many other countries are included in. To win the war then we must work with the guidelines the global community has agreed apon, not disgrard them.

  4. Hey Guys,
    Thanks for the comments. I basically agree with what has been said, that this will serve to hurt the United States’ image in the world at a time when we need international support. But if I could…the United States is still part of the Geneva Convention and is still a sovereign country. One argument might be that the United States has the right to do what it sees fit while not backing out of the Geneva Convention. To me, the news about the actual act didn’t seem that controversial. The interesting part was what the bill might mean. For me, anyway, the question was more of what judicial safeguards might/should be contained in a bill such as this one.

  5. The title of this blog is “can the president be regulated?” I don’t see what the President has to do with this overall. not to mention the fact that everyone uses the term the US not the president which is politically correct considering torture has not just been an issue with this administation. During Vietnam, there was a waterboarding incident with a vietnamese civilian and that military personell was sentenced to 10 years imprisonment. there have been other words and it is no less the likely that there have been torture incidents those administrations just were able to get away with it. vietnam was the only first televised war focusing on the negative aspects of war. the current administration is smart on they way they are handeling the situation. if they “come out and say that they are torturing people” then who is to stop our soldiers from being kidnapped and tortured. i am not saying that it is ok to let the military torture people, by all means no, this is something that should be regulated the government as a whole from no and years to come, not just the president.

  6. Although I agree with many of the responses arguing that on a practical level embracing coercive tactics that many believe to be torture will hurt our efforts in the war on terror, we ought to be at the very least equally concerned, I believe more concerned, with the moral implications of such actions. Certainly, it is appropriate to do a cost/benefit analysis of the situation, but in any situation with such significant moral implications as this one, we ought to start by questioning whether we have crossed some moral boundaries. Ultimately, the U.S. should not embrace torture regardless of whether or not it will hurt our status amongst other nations or help on the war on terror. Utilitarian principles should not be the starting point in analyzing government. Rather, in this instance and other instances where significant moral principles are at stake, one ought to start by analyzing the means and only after this begin to consider the ends. If we don’t, we surrender the moral faculties that make human society truly human.

  7. I agree with the author of this blog that the legal ramifications of the MCA are at the present, unknown. However, I would argue that whatever the legal ramifications, they need to be found out quickly. I think it is unacceptable that the MCA may have the ability to eliminate judicial review and/or habeas corpus. These two concepts are essential to the bill of rights, and so therefore, every American citizen (and I would even argue non-U.S. citizens) should be able to have these rights. I am also extremely uncomfortable with the idea that the president would not have any accoutability for his actions. The article said that at the moment, there are no judicial actions to “punish” the president if he abused the MCA. Consequently, I think people should be extremely cautious and wary when evaluating this new law.

  8. One of the most interesting parts of this whole issue is the defining of the term “torture”. As Jenna points out, torture is not an problem exclusive to the Bush administration, however, the Bush administration is the first to try and reevaluate how torture is defined. This combined with the vague explinations as to what exactly these “coercive techniques” that our operatives are using do not inspire the same confidence in the U.S. that we once enjoyed in the international community. Attempts such as the MCA to try and circumvent long standing internationally respected standards such as those outlined in the Geneva convention serve to even further hamper U.S. credibility.

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