"The bill would eliminate some rights common in military and civilian courts. For example, the commission would be allowed to consider hearsay evidence so long as a judge determined it was reliable. Hearsay is barred from civilian courts.
The legislation also says the president can "interpret the meaning and application" gof international standards for prisoner treatment, a provision intended to allow him to authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts."
It should be worth noting that without the Hamdan decision, President Bush would not have asked Congress for any clarity whatsoever with regards to interrogation techniques of United States operatives, much less extraordinary renditions to countries known to torture prisoners. So with a Supreme Court that teeters on 5 to 4 decisions against unlimited executive control, Congress steps in to add insight on what is legal and what will not be legal in terms of trying those captured on and off the field of battle. This is a bill that undoubtedly works in tandem with John McCain's detainee amendment to the Defense Appropriations bill of 2005 that President Bush signed together with a signing statement that read:
"The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."
It would be unusual for the Administration not to interpret these changes in law as it sees fitting, but at the very least there is now something on the books that says the United States will not rape or mutilate a person for information -- small victories.
This brings up Glenn Greenwald's post. The post title states it clearly, " Beltway Democrats are seriously flawed, but the election is still critically important." The sense of the post is that even with the acceptance in the Senate of this bill, there are still more important cases to come after the 2006 mid-term elections, and a Democratic victory in either chamber would mean that the Bush White House would finally see some sort of brake on its course of the all-powerful-executive branch.
Most who would have wished that the bill not pass the Senate may be tempted to "throw in the towel" so to speak, to give up on Democrats since they could not (or would not) defeat this bill. Greenwald's observations center on why that would be the wrong course to adopt for liberals within this country. The thrust that is most eye-catching is to view a Democratic victory as an instrument to finally enable a check against the President and the secrecy of the executive branch.
Additionally, the very idea to orchestrate this before Congress breaks is in itself a most definitive statement that Beltway Republicans view security on two footings: what can it do for the country, and what can it do for my election hopes. It would appear the first footing really is the lesser of the two concerns, given that since 2001 Congress didn't feel obliged to act on codifying these rules anytime before.
There are only a few weeks left before the collective actions of Congress are accounted for, and the electorate speaks. The Republicans have chosen their path in siding with the President with an almost willful disregard for their very own institutional standing, and the Democrats again appeared to have chosen a duck from the opponents swing.
America truly is going through a chilling time, but most of this is self-inflicted.
Jack Balkin posts the following regarding the Congressional bill just passed with regards to Hamdan as was decided by the Supreme Court.