The Trojan Horse
Marty Lederman's post at Balkinization takes a look at the Military Commissions Bill Bush has sent to Congress. There's a little something extra in there which stands in sharp contrast to the "we do not torture" rhetoric of speeches:
...the most important action has little to do with military commissions (although that stuff is certainly significant, too). Instead, focus ought to be on sections 5 through 7 (pages 77-84), which are, as I predicted here, collectively an attempt to authorize the CIA to engage in the sorts of "enhanced" interrogation techniques -- e.g., hypothermia, threats of violence to the detainee and his family, prolonged sleep deprivation, "stress positions" and waterboarding -- to which the President alluded in his speech today, and to immunize such conduct from any judicial review. (The President's speech is much more candid than the face of the Administration bill. The President bascially concedes that the Hamdan decision stopped the CIA techniques in their tracks -- and that the object of the Administration bill is to authorize them anew.)
The President announced this today because he saw his ass on the line for war crimes. So buried deep in his bill which purports to set up the rules military commissions, he tries to amend the War Crimes Act to authorize the CIA to torture detainees. They mean to subvert the Geneva Conventions under the radar. They mean to make secret CIA prisons, which are now admitted, legal. They mean to do business as usual. And as Josh Marshall says, they mean to do it in the context of politics:
As we speculated last night, President Bush wants to gin up a hail mary pre-election political fight over the constitution (no pun intended) of military tribunals for accused terrorists. This election-timed stunt is intended to put fourteen faces on the president's fight over the rules for his kangaroo courts.
So now, you're either with Bush or you're with Khalid Sheikh Mohammed.
What am I missing exactly?
Remember: It's all about the politics.
You're missing nothing, Josh. Although I'd add that it's as much about legal vulnerability and de facto legalization of criminal acts as politics.