Ben Davis [University of Toledo College of Law]: "Back in 1994 when the US ratified the Convention Against Torture and Cruel, Inhuman and Degrading Treatment ("CAT") it included reservations, understanding, and declarations ("RUD's) as regards the prohibitions against cruel, inhuman and degrading ("CID") treatment. Those RUD's interpreted CID to mean the US constitutional standard – the so called "shocks the conscience" standard.

Introduction of the US domestic law standard for a Convention was questionable at the time as a violation of the object and purpose of the Convention and remains questionable.

Early in the war on terror the analysis of Executive lawyers was that since the Constitution did not apply outside the United States, this CID constitutional standard did not apply outside the United States – put another way, over the sea, free to do CID. This proposition was refuted by those that participated in the negotiation and signature of the CAT, but this was the pitch.

Be that as it may, the Detainee Treatment Act of 2005 closed the inexistent geographic loophole by stating the constitutional "shocks the conscience" standard applies worldwide – no freebee CID over the sea.

Now the President ("bad cop") and McCain-Warner-Graham ("good cop") Military Commission Bills to address Hamdan take the constitutional "shocks the conscience" standard and have that be the United States domestic law interpretation of Common Article 3 of the Geneva Conventions. They also lay out specific offenses rather than leave the flexibility of Common Article 3's language.

(The drafts actually do much more in terms of making definitions of lawful combatants that are inconsistent with other sections of the Geneva Conventions such as the definition of Prisoner of War for Article 4 of the Third Geneva Convention.)

Like a legal daisy chain of laws, clearly very bright lawyers are working over the Geneva Conventions to pass a United States law to provide maximum "flexibility" (there is that word again) for application of the shocks the conscience standard introduced in the CAT RUD in 1994.

Some say – "If the standard is OK for the Detainee Treatment Act it is OK for the Geneva Conventions, right?" Wrong – shocks the conscience only works if you are capable of shock AND have a conscience. Especially in armed conflict, if one has little or no conscience or if little shocks one can do many current Common Article 3 violative acts. And since these acts are or would be done to people held abroad who are not Americans and in the absence of habeas jurisdiction, United States federal courts are not available (quid state courts of general jurisdiction) to hear what happened or do something about it.

But, can we trust ourselves to apply such a domestic standard in a manner that is consistent with the prior international standard?

As I ponder the 14,000 persons being held around the world in a series of prisons under United States control I think of Union soldiers who were held at Andersonville during the Civil War, the southern cotton mill unionizers held in stockades in the 30's, slavery, the treatment of Native Americans, the treatment of Asians in the late 19th and early 20th century and Japanese-Americans during World War II, the treatment of the Irish in Boston (NINA – No Irish Need Apply), the treatment of hispanics in the Southwest, the anti-semitism against Jews, and the years and years of segregation of blacks including the thousands of lynchings. I also ponder secret prisons and other aspects of our Program that are revealed every day. I ponder what the Military JAG officers said on July 13 this summer that interrogation techniques that were authorized and used in this war violate Common Article 3.

And I conclude that we are fooling ourselves if we think the "shocks the conscience" standard is anything more than a carefully carved way to get around an international standard and do uncivilized things in the dark, far away, to people who seem to be different and who hate us – all in the name of protecting us and self-defense. Sounds like overseas lynching to me.

Protection and self-defense can lead to awful things. I had a godfather who was held in a secret prison in the dark, incomunicado, in Liberia by then Sargeant Sam Doe after the coup there in the late 70's. No one could be in contact with him. My father, desperate, contacted persons close to President Carter who was able to get in contact with the American Ambassador in Liberia. The consul was able to go to the prison and ask for my godfather. A door was opened, light came into the dark, and my uncle came out of the dark. The door closed on the others in there with him.

The power and prestige of the United States helped my godfather to come out of a cell where he had been held in such an uncivilized manner.

That United States power and prestige is now being used to create "shocks the conscience" conditions for the 14,000 and counting being held in this global war on terror. I am convinced our approach is a terrible mistake which will come back to haunt us just as the Senate's failure to pass an anti-lynching law in the early 20th century came back to haunt the Senate.

I ask each American to contact their Congresspersons www.house.gov and Senators www.senate.gov to block both the President and the McCain-Warner-Graham Military Commission Bills and ask them to change the Program.

I also ask our friends abroad to not see this as an internal American discussion but to take a stand in support of the Common Article 3 standard as-is and other definitions of the Geneva Conventions that are under assault and ask that we change the Program.

While Americans can be very hostile to foreigners, world opinion does affect us – it was one of the reasons that Brown v. Board of Education was decided by the Supreme Court in the 50's.

We can do better than these good cop/bad cop laws. Those intelligence officers who have crossed the line SHOULD take out war crime insurance if they have committed them as part of their work over these years. We can act consistent with the best of our history and not the worst. If that means changing the Program, then change the Program and then make the Executive execute under that clear standard. Lauterpacht told us in the early 1940's that citizens cause compliance with the reality of international law. Let us cause compliance."