I'm curious - what would happen if the Torture Bill gets overturned...

...Several groups and even senators (Barbara Boxer) have stated that they expect this legislation to go to the courts where perhaps it might not get overturned in the lower courts but could very well get overturned by the Supreme Court.

I mean, the legislation was created as a ploy to divide the democratic party before the election and give campaign fodder of "Democrats weak on Terrorism" which let's face it - the public still buys this crap for some bizarro reason. The Bush Regime was already using torture before the legislation and even if the legislation failed they would still keep doing it

But if it got to the Supreme Court there could be a chance that it does get overturn IF we have the court then that we have now. There are 4 on our side, 4 on theirs and Justice Kennedy who has always been the wild card.

But lets assume the Torture Legislation does get overturned and suddenly torture is not legal and we are violating the Geneva Conventions, well that's pretty powerful stuff. I mean, I'm not just thinking solid grounds for impeachment - hell I'm thinking that's clear evidence to send this regime to the Military Tribunals at Hague.

It's a gamble, I know that Menendez and Brown both put their reputations on the line despite being 2 of the more out-spoken anti-war liberals in DC, but if it happens - it could be serious for our government

I don't think it's even conceivable that Fat Tony lets this one slide. It's not only facially unconstitutional, it's a blatant power grab away from the Article III courts. Tony hates that.

If they can't get Nino on board with a "national security" argument (and it would have to be one hell of a big national security argument), that's 5-4 against. My read on Roberts is that he might be swayed by a national security argument, but anyone voting to uphold is going to be fighting a losing fight to justify their vote. That alone might swing Roberts. Thomas is 50/50 as to which lap he'll sit in...if he sticks with Nino, fine. ScAlito will probably write some psycho rambling dissent which Thomas could very well join (why the man insists on currying favor when he's set for life is beyond me).

I'm calling it 7-2 to overturn. IF it ever makes it to SCOTUS.

ETA: There's no way in hell any US official, regardless of party affiliation, turns in another US official to an international criminal tribunal for "war crimes". You protect your own. Should the Dems vigorously pursue domestic charges against the Regime? Yes. Should they turn them over to an ICT? No way.

But doesn't mean that's going to happen.

I guess you're just a bit more optimistic than me and I hope that's the case with the vote. Great analysis btw!

do you see this buffoon strolling through the Louvre? Talk about your Ugly American!

ETA that i might be the Biggest SCOTUS Geek you'll ever meet. It's a curse, i tells ya!

And without a doubt there was more than meets the eyes with Brown, Menendez and Lautenberg supporting that torture bill. The democrats knew torture was happening and knew that even if the bill was defeated the torture would not stop happening. And they also know that repukes would love nothing more than using that vote against Brown & Menendez in their very highly competitive senate races (Lautenberg was a sympathy vote for Menendez).

I also know that Menendez had an add last night on a highly rated TV show (Lost) coming out point blank he wants to get our troups out of Iraq. The man is a diehard liberal.

So this whole Torture/Court thing could get interesting

Hamdan. That's why the MCA was written in the first place, because the Army/CIA interrogators were refusing to act in violation of the law (as interpreted by SCOTUS). The torture wasn't happening when the MCA passed. Plus, and I don't want to get into this fight again, but the Senate could have stopped it with the filibuster.

They bailed on the MCA because it makes it easier for them to run. Personally, I'm not going to justify any Senate Democrat vote (yea or nay), because all 44 of them are responsible. It's not about how they voted, it's about how they bent over for McCain/Warner/Specter to fight the fight for them. As though that were somehow acceptable.

Also, if SCOTUS overturns the MCA, it doesn't do anything to torture that happens while it's law. That's not how it works, it just makes the law unconstitutional as of the day SCOTUS says it is. There's no retroactivity in a SCOTUS decision. You just can't do it from then on.

and if it's overturned it would hopefully stop the torture.

I don't think that bill would have done anything to stop the torture that has been going on since probably before this war started

I totally agree with you that these bastards should be dragged through the Washington Mall in chains. I just don't think that the conduct of the interrogations (which is utterly despicable) is going to provide legal grounds to do so. If there's one thing this WH can do, it's cover their asses. But there's all kinds of other grounds upon which they can be made to account for their crimes.

ETA that i really didn't mean to threadjack you, i promise!

The law that just passed was retroactive, in other words, Bush is no longer guilty of violating the civil or human rights of detainees, regardless of past actions. If the Supreme court does overturn the law, then Bush is STILL not guilty of violating those people's civil rights, as long as they stop those abuses according to the timetable that the Supreme Court sets. In other words, Bush is given immunity, one way or the other.

Bear with me here

If the SCOTUS says the Torture bill is unconditional doesn't that essentially overturn it AND take away that protection built into it?

I want the Bush Regime to be held accountable but even more important is I want the administration to stop using torture!

Before SCOTUS ruled the detention/interrogation programs unconstitutional in Hamdan, they programs were "constitutional", in that no one said they weren't. Once SCOTUS ruled in Hamdan, the programs became unconstitutional. But, until the Court said otherwise, the Army/CIA interrogators were following the law. Had they continued the practices the Court said were unconstitutional in Hamdan, they would have been violating the Constitution.

But they didn't. My understanding is that the MCA was pushed through because the Army refused to violate the Constitution. The regime needed the MCA to continue the programs. Once the MCA passed and is signed by Chimpy, it's good law.

It remains good law until SCOTUS says it's unconstitutional. Once that happens (if someone can challenge it, which is a huge if), it's no longer good law. But as long as the interrogators are following the MCA while it is still good law, they can't be punished for it.

A hypothetical, let's say Congress, tomorrow, legalizes Marijuana consumption and possession. Now, such a law would be retroactive in that all people in prison now that were charged with Marijuana possession and NOTHING else(non-violent offenders only, obviously), would be released as soon as it is expedient.

Now, let's say 6 months later, Congress or the courts(doesn't really matter), decides to make Marijuanna possession illegal again, one thing they cannot do is make such a thing retroactive, all those freed from prison and those that used marijuana since cannot be arrested for PAST actions. Two reasons for this, first, double jeopardy is attached to previous convictions that were overturned by the previous law, and second, ex post facto laws violate the common law of most democratic societies, including the United States, in the Constitution under Article 1 it is prohibited.

ON EDIT: I may be wrong under this instance, for Article 1, after reading it, usually only applies to the legislature.

I'm sorry, going on record as supporting torture is no more liberal than fucking over people whose insurmountable debt due to catastrophic illness is now not able to be expunged due to a corporate-friendly bankruptcy bill.

And it would be OK? No. Bastards who do that sort of thing are bastards, period. We don't have to "protect" them just because we have the same nationality, and wouldn't allow others to do it, either.

The Taliban could have made the same argument.

not with Russian tanks parked in Berlin. Same goes for the Taliban.

Handing the regime over to an international criminal court, while it sounds like a dream come true, would have incredibly far-reaching implications. No American politician could safely travel overseas without fear of being arrested. What happens when repubs start calling for handing over Democrats who voted for the AUMF? How do you shield them?

It's a dream that needs to stay that way.

First, the ICC IS limited in scope, on purpose, usually related to WAR crimes and things of that nature. Now, in this instance, with the law being about the treatment of detainees that were captured during a war, the ICC DOES have jurisdiction over this. However, just like in domestic courts, the rule of law still applies, and international standards for court proceeding do follow common standards for ensuring the right of defendents to representation, etc.

A couple of things here, first, there already WAS precedent for an ICC, we call it the Nuremburg tribunal, the common argument against the Nuremburg tribunal was the fact that the court DIDN'T exist when the crimes took place. The ICC was established to destroy that argument.

Also, another reason the ICC was established was so that situations like that of Henry Kissinger could not occur. I don't know if you know this, but Henry Kissinger is FORBIDDEN from leaving the United States. The reason is that he is a wanted war criminal in at least a dozen countries. Most of these nations have allies that will turn Kissinger over to them if he ever entered those nations. He is stuck here, because the United States refuses to turn him over to countries like Chile.

It was the intent of congress that, because it's plainly unconstitutional, the courts should be prohibited from reviewing it.

The right wingers on the court may decide to not look at it.

Besides, if elements of the law are unconstitutional, the rest of it stays in effect (separability).

but if (and it's a huge if) there's a plaintiff with standing to sue, they'll challenge the whole thing, so severability won't concern the Court too much.

Again, I don't think the MCA has a prayer IF there's a plaintiff with standing. It's too big a violation of separation of powers, and WAY too big an encroachment on the Art III courts for them to put up with. Courts are fiercely protective of their turf. Remember, it is exclusively the province of the Court to say what the law is. Marbury will trump the MCA any day of the week.

Even the wingers on the Court will not like the encroachment on their constitutional turf. They guard that turf like nine rottweilers. Ergo, Marbury rules.

Bake

really, really does! :(

Even if we win a majority and pass a law to repeal the MCA, there's nothing we can do to override a veto (which there certainly would be).

I don't think it would stop the fact that they are using Torture

but we won't be able to get a new law until at least 2009 (assuming we win a majority in both houses and the WH).

The ship has long since sailed on a filibuster. Harry Reid fucked up royally on that one.

Our only chance is the SCOTUS. But you're right, the fact remains that the US engages in torture.

And yet, it would have to be done.

(I mean, you do WANT it overturned, right? I didn't get otherwise from your post.)

Those are the issues. The Bill was purposefully ambiguous in the area of "Enemy Combatents". The RWing Attorneys that crafted this Bill did a clever end run around the previous SC Ruling. This is a challenge to the SC's standing upon major law regarding power of the Executive and Legislation branches of Govt. It cannot stand!

And the first thing we have to rescind is the hidden provision they quietly stuck in there in small print that bush would be automatically pardoned for war crimes.

That slime bastard should be dragged by his heels behind a truck all the way to the Atlantic and then thrown on a garbage barge heading for the Hague.

Few people know that slug had unmitigating unprecedented balls to have one of his bootlickers make sure that provision was stealthily put in to insulate him :grr: