Balkin is making a very similar point to the one I made. I take it a bit further too, in that Balkin didn’t have the OLC memos then and now that we do, we know what they say about the cross references statutes like 2340 and it is pretty shocking. Obama has perhaps “withdrawn” them, but he has also said that they are reflective of policy issues – not that they were attempts to sanitize clear crimes. That is now pervasive – I’ve mentioned the Chicago police torture case in particular, but it really is at issue now in a lot of ways. Does Burge get the benefit of OLC’s definition of torture? If not, isn’t it selective prosecution to go after him but not other torturers who are going to get that benefit?

Did the countries granting us SOFAs with respect to our many bases, where they only defer jurisdiction based on our affirmative undertaking to apply US law, understand the nature of the rights to interrogate we are giving ourselves vis a vis their citizens and the non-recourse?

It’s all such a mess and those are all the kinds of tangles no one is willing to jerk the comb through. A rats nest that everyone tries to put behind them.

That seems to have been a touchy point after Stein’s original story and Q & A because in the NYT’s piece this morning, they had THREE aligned sources all sputtering over how it had been “inadvertent” that the NSA had picked up the info. That’s where the dogpile formed, over making sure that it went to record with multiple sources that the interception had been “inadvertent.”

But if so and if no case was started against her, then you have to wonder, again going back to minimization standards or FISCt orders, wouldn’t that intercept have had to be destroyed at some point if there was no investigation? So I thought that the NYT sounded like she was ready to start playing chicken with DOJ and this link sounds like she’s definitely going there.

On Rosen and Weissman, I guess when one of your defendants still has so much pull he can make the President duck for cover and give up on Chas Freeman, yeah – might be tough.

Harman doesn’t sound all that worried about how it is all going to play to her constituents, does she?

I have a question.

If MCA lets the president be the arbiter of what constitutes a non-grave breach, and lets “grave breaches” fall back on 2340, as you say, with its reliance on vague definitions, weren’t any opinions regarding the latter opined in the OLC memos now null and void by Obama’s executive order?

Also if the president “has the authority for the United States to interpret the meaning and application of the Geneva Conventions” and MCA establishes a procedure for the president to issue such interpretations by executive order, has Obama issued such a relevant EO, or are we still relying on Bush’s. Obama’s EO, “ENSURING LAWFUL INTERROGATIONS”, doesn’t appear to fit that bill, or am I, a non-lawyer, missing something here?

FYI, I found this by Jack Balkin on MCA and Geneva, I think making the point you just did:

… the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva’s status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

Whatever happened to the movement (and I use the word with some “reservations”) to repeal MCA? Wasn’t Dodd pushing such a repeal?

With the Democrats supposedly “in power”, this terrible law should be struck down. I can see that in my own polemics on the subject, I’ll have to start making that a key component of the anti-torture fight.

LMAO.

http://www.washingtonpost.com/…..02_pf.html

http://tinyurl.com/dgcvz9