Ben Davis [University of Toledo College of Law]: "The President in his televised press conference today framed the discussion of the draft bill on Military Commissions in terms of whether Congress was going to permit "the Program" to go forward. He made it clear that Americans working in the intelligence community would not violate the law. He did not want international courts defining how America should protect himself. He explained how American law defines the United States international obligations.

The problem with this line of reasoning is that war crimes have already been committed by us in the Program. As the four top Military JAG officers testified in July 2006, those who authorized and used the various techniques of interrogation violated Common Article 3 of the Geneva Conventions. The specific period was in the post 9/11 up until Hamdan period — the period of the Program. So Americans in the intelligence community (David Passarro being the only one convicted so far on this) have violated the law. What the legislation is about is changing the law in a manner that the "clarifications" eliminate the war crimes. Changing the law does not change the behavior and does not change the background treaty. So the Program that was a war crime becomes a Program that is not a war crime — as a matter of United States domestic law. The background behavior (the acts in the interrogation) would still be war crimes as a matter of international law but the President and those supporting the good cop and bad cop versions of the law (see Good Cop, Bad Cop and detainee treatment) are willing to run that risk as part of the Program.

The President's concern about some international court judging how Americans protect themselves misses the point that it is far more likely that the United States Supreme Court would be making such a determination. As part of that process, the Supreme Court would examine what other countries have done in applying the treaty language. However, by changing the law the implicit hope is that Justice Kennedy will lean the other way and the behavior that is war crimes in the Program will pass muster.

So it all comes down to whether each of us as Americans are willing to get with the program by getting with the Program. Please understand that the war crimes have already been committed and this bill is basically blessing future war crimes. We must think — will we be like the French during the Algerian War? Will we be like the English in the suppression of the Mau Mau rebellion in Kenya? Some of us will bet that it is not possible to protect ourselves without the Program. Others will say that the only way to protect ourselves is without the Program. What we should not do is try to be in denial about the fact that we have committed war crimes and thus are capable of committing war crimes. It may be troubling, however, that that reality suggests we are not so exceptional. Maybe it is time to show we are exceptional."