‘Good cop, bad cop’ on detainee treatment Commentary
‘Good cop, bad cop’ on detainee treatment

Ben Davis [University of Toledo College of Law]: "The rejection today by the Senate Armed Services Committee of the President's draft bill on detainees and the voting out of a draft supported by Senators Warner, McCain and Graham and Democrats, together with the opposition expressed by former Secretary of State Colin Powell, appear to be progress towards a bill that complies with international law. However, as has been noted by Marty Lederman and others at Balkinization, even the new version eliminates habeas and defines detainee treatment based on a standard that can be (and thus would) undermine Common Article 3 standards.

Rather than therefore be relieved at the rejection of the President's draft, I would suggest that what we are seeing is a classic gambit of "good cop" and "bad cop." President Bush's draft is the draft of the "bad cop" causing great ire by those concerned about preserving the Geneva Conventions. The Warner-McCain-Graham third draft is considered "good cop" hoping to mollify those concerned about not weakening the Geneva Conventions out of concern for American troops. I think that notwithstanding his public face — given the negotiations this past weekend — the President can live with both or (agreeing with Marty Lederman) would intend to put in place a Commander-in-Chief override through a signing statement in any event. One must keep in mind that the House version more closely resembles the President's version so the result of a conference on this (and who represents each side of Congress in such conference) are many issue that are uncertain.

So I am worried that the concerns that the top Military JAG Officers expressed in July will be passed aside in either version. The recent pressure placed on them to recant their July 2006 testimony is proof of the problematic nature of what is being put forward by the Executive and raises my fears of what even the Warner-McCain-Graham proposal may lead to.

May we borrow from Nancy Reagan of an earlier generation and ask Congress to "just say no" to the President and the Warner-McCain-Graham bills? Congress should leave this until after the election for the next Congress that will have to live with these laws for the next two years and beyond. Protecting our forward deployed persons is the most important consideration and I fear neither of these bills created in this pre-election hothouse atmosphere does that well enough. The good is the enemy of the best in this case."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.