Delegating to the President on Torture..."McCain is a tragic figure now"

Delegating to the President on Torture

By Juliette Kayyem | bio

I tend to follow Marty Lederman on understanding the torture agreement as well, and so am a little perplexed by various groups singing its praises let alone a lot of the news analysis. I was ultimately wrong that the Senators would hold out, cause now I've read the text. Here's my shot at another tragic flaw.

Marty 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 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. There were other ways it could have been done, including legislative oversight, judicial determination (i.e. like a FISA court review), or some interrogation "body" that would assess the use of such tactics in specific circumstances. It didn't have to just go to the President; Congress could have equally allowed presidential tough tactics but still reserved some oversight over the use and consistency of those tactics (that fall short of a grave breach).

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.

http://americaabroad.tpmcafe.com/blog/americaabroad/2006/sep/22/delegating_to_the_president_on_torture