Sanctioning Lawlessness by David Cole (link)

Sanctioning Lawlessness
by David Cole
The Nation magazine, October 23, 2006

In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers.... Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power. --The Onion, August 1
It's so hard to be a satirist these days. When reality outstrips even The Onion, what's left for Jon Stewart? This summer, the Supreme Court issued a shot across the bow, decisively repudiating expansive executive authority to try "enemy combatants" in kangaroo courts as a violation of Congressional dictates and the Geneva Conventions. On September 28 Congress rewarded the President's lawlessness by giving him a blank check to do it some more. At the same time, it watered down criminal sanctions against abusive treatment of war prisoners and did everything it could to keep that pesky Supreme Court out of the picture, stripping the courts of jurisdiction. In essence, Congress responded to an executive branch that had thumbed its nose at Congress and the world by joining in. After all, what's more important: America's standing in the world and the rule of law, or partisan advantage in the midterm elections?
Under the rules struck down by the Supreme Court, "enemy combatants" could be tried and executed on the basis of coerced testimony, hearsay and classified evidence that the defendants had no meaningful way to confront. Under the Military Commissions Act, some marginally positive changes were made, but enemy combatants can still be tried and executed on the basis of coerced testimony, hearsay and classified evidence that the defendants have no meaningful way to confront. This time, however, Congress declared that its tribunal rules fully satisfy the Geneva Conventions, as if saying it makes it so. Just to make sure, Congress barred anyone from invoking the Geneva Conventions in court against the government or its officials. Instead of remedying the President's violations of international law, in other words, Congress chose to immunize the lawbreakers.