I just read the following article in Slate by David J. Luban.  It speaks exactly to the subject of this
thread.  Hereunder a copy of that article:

jurisprudence
Forget Nuremberg
How Bush’s new torture bill eviscerates the promise of Nuremberg.
By David J. Luban
Posted Tuesday, Sept. 26, 2006, at 5:15 PM ET

The burning question is: What did the Bush administration do to break John McCain when a North Vietnamese prison camp couldn’t do it?

Could it have been “ego up “? I’m told ego up is not possible with a U.S. senator. That probably also rules out ego down. Fear up harsh? McCain doesn’t have the reputation of someone w scares easily. False flag? Did he think thohey were sending him to the vice president’s office? No, he already knew he was in the vice president’s office. Wait, I think I know the answer: futility?which the Army’s old field manual on interrogation defined as explaining rationally to the prisoner why holding out is hopeless . Yes, the explanation must be that the Bush lawyers would have successfully loopholed any law McCain might write, so why bother? Futility might have done the trick.

How else can we explain McCain’s surrender this week on the torture issue, one on which he has been as passionate in the past as Lindsey Graham was on secret evidence?

Marty Lederman at Balkinization explains here and here some of the worst bits of the proposed “compromise legislation ” on detainee treatment. But the fact is, virtually every word of the proposed bill is a capitulation, including “and” and “the.” And yesterday’s draft is even worse than last week’s. It unexpectedly broadens the already broad definition of “unlawful enemy combatant” to include those who fight against the United States as well as those who give them “material support”?a legal term of art that appears to include anyone who has ever provided lodging or given a cell phone to a Taliban foot soldier out of sympathy with his cause. Now, not only the foot soldier but also his mom can be detained indefinitely at Guantanamo.

But the real tragedy of the so-called compromise is what it does to the legacy of Nuremberg?a legacy we would have been celebrating next week at the 60th anniversary of the judgment.

What does the bill do to Nuremberg? Section 8(a)(2) holds that when it comes to applying the War Crimes Act, “No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d).” That means the customary international law of war is henceforth expelled from U.S. war-crime law?ironic, to say the least, because it was the U.S. Army’s Lieber Code that formed the basis for the Law of Armed Conflict and that launched the entire worldwide enterprise of codifying genuinely international humanitarian law.

Ironic also because our own military takes customary LOAC as its guide and uses it to train officers and interrogators. Apparently there is no need to do that anymore, at least when it comes to war crimes. That means goodbye, International Committee of the Red Cross; the Swiss can go back to their fondue and cuckoo clocks. It also means goodbye, jurisprudence of the Yugoslav tribunal, which the United States was instrumental in forming.

And also goodbye, Nuremberg.

Sept. 30 and Oct. 1 mark the 60th anniversary of the tribunal’s judgment. If the opening chapters of Telford Taylor’s superb The Anatomy of the Nuremberg Trials make one thing crystal clear, it’s the burning desire of the United States to create international law using those trials. Great Britain initially opposed the Nuremberg trials and urged simply shooting top Nazis, out of fear they would use the trials for propaganda. Stalin favored conducting trials, but only to establish punishments, not guilt. Like Great Britain, he thought punishing the top Nazis should be a political, and not a legal, decision. The trials happened as they did only because the United States insisted on them for purposes of establishing future law?a task that summary justice at executive say-so could never have done.

At the London conference that wrote the Nuremberg Charter, France and Russia both objected to criminalizing aggressive war for anybody but the Axis countries. But Supreme Court Justice Robert Jackson, the American representative, insisted that creating universally binding international law was the prime purpose of the tribunal.

A compromise left the international status of Nuremberg law ambiguous?the tribunal’s jurisdiction covered only the Axis countries, but nowhere does the charter suggest that the crimes it was trying were only crimes if committed by the Axis powers. Because of this ambiguity, the status of the Nuremberg principles as international law was not established until 1950, when the U.N. General Assembly proclaimed seven Nuremberg Principles to be international law. The American agenda had finally prevailed.

Well, forget all that as well. The Nuremberg Principles, like the entire body of international humanitarian law, will now have no purchase in the war-crimes law of the United States. Who cares whether they were our idea in the first place? Principle VI of the Nuremberg seven defines war crimes as “violations of the laws or customs of war, which include, but are not limited to ... ill-treatment of prisoners of war.” Forget “customs of war”?that sounds like customary international law, which has no place in our courts anymore. Forget “ill-treatment”?it’s too vague. Take this one: Principle II, “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.” Section 8(a)(2) sneers at responsibility under international law. Or Principle IV: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” Moral, shmoral. The question is, do you want the program or don’t you?

The Nuremberg trials presupposed something about the human conscience: that moral choice doesn’t take its cues solely from narrow legalisms and technicalities. The new detainee bill takes precisely the opposite stance: Technicality now triumphs over conscience, and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain. It systematically distinguishes “severe pain”?the hallmark of torture?from (mere) “serious” pain?the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as “bodily injury that involves ... extreme physical pain.” To untutored ears, “extreme” sounds very similar to “severe”; indeed, it sounds even worse than “severe.” But in any case, it certainly sounds worse than “serious.” Administration lawyers can have a field day rating painful interrogation tactics on the Three Adjective Scale, leaving the rest of us to shake our heads at the essential lunacy of the enterprise.

And then there is section 8(3), which says that “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions.” Section (B) makes it clear that his interpretation “shall be authoritative (as to non-grave breach provisions).”

On Aug. 1, 2006, The Onion ran a story headlined “Bush Grants Self Permission To Grant More Power to Self .” It began: “In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers.” It ended thusly: “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.” How life imitates art! In the end, the three courageous Republican holdouts didn’t want the president unilaterally trashing Geneva. Now it turns out that the principle they were fighting for was simply Congress’ prerogative to grant him the unreviewable power to do so.

This article is based on an earlier posting at Balkinization.

David Luban is professor of law and philosophy at Georgetown University Law Center.

Article URL: http://www.slate.com/id/2150396/Copyright 2006 Washingtonpost.Newsweek Interactive Co. LLC

Dear Marie Cocco:

I read with pleasure your article entitled as hereinabove.  I agree absolutely with what you say and also with the outraged tone in which you write.

One of the things that makes me mad is that most people I talk to do not seem to be aware of the fact that any agent of the President under the Bush (YOO-BYBEE)) theory of Government can simply point at anyone in the world and at that moment all civil rights cease.  This applies to American Citizens, Aliens in America, Non Citizens in any country in the world, diplomats Presidents and Kings without exception (think Noriega).

This complete abrogation of all Civil Rights not only for Americans but for all people on our planet, a tyrannical theory of government has not been sufficiently explained to the average citizen.  They believe that the Bill of
Rights still applies to them and they expect to be brought before a court and charged with an offence and to be represented by Counsel and to be faced with evidence against them.  As for the rest of the world they must think we have become insane and a menace.

Bush, Bybee, John Yoo, and Attorney General Gonzales apparently believe these rights no longer apply.  As pay off Gonzales is now Attorney General, Bybee is a US Appellate Circuit Judge and John Yooo has a tenured position teaching ethics at Berkely Law School. Another of these “presidential power) lawyers is Chief of Staff to Cheyney.

I think most Americans, right wing or left wing or in between, Democrats and Republicans alike, surely have not realized that that all protections (not just some) have been totally abrogted by the Bush doctrine of absolute Presidential Power.

I would think that one would hear loud screams from genuine conservatives like Bill Buckley or liberals like Bill Clinton.  At most I hear a whisper. There seems to be no outrage.  It seems to me that the loss of the Bill of Rights is a far far bigger loss than the WTC Towers. Where are the people who have sworn to uphold our Constitution?

While I agree and endorse all your comments on torture and “detainees”, I think
our media has failed to point out what has happened to our Constitution. You seem to have a voice in the National arena and I hope, if you agree with me that you will
amplify your remarks on “detainees” and the atrocities commited on them, to include the fact that our Constitution which our officials have sworn to uphold and defend has been completely gutted. So help me God!

With best wishes,

P.S. I tried to send this to you at your given e-mail address (JavaScript must be enabled to view this email address) but the message came back deamonized.

“If it is true that the only thing necessary for the triump of evil is for good men to do nothing”:

The Democrats MO of sitting back and letting the “republicans that allegedly oppose the President, duke it out among themselves…are only backfiring on the opposition.

(Only for them to find that the esteemed Republican Sanators eventually cave- in to the Administraion)Arlen Specter is a Master at this move.
Is it an Administration/Rovian Stretegy to silence the opposition by ‘mouthing’ the expected reaction from the Democrats-BEFORE- the responses are uttered? Thereby effectively silencing the opposition, and paving the way for the Presidents will?

May be simple and Benal on the surface…but the Strategies of using the dissenters words before they are offered are no different than accusing them of “encouraging the enemy” The name calling has been used too long,, as exposed for what it is.

The Benality of Evil -is all too simple. Let us not underestimate the benality of Mr Bush.

It takes a Constitutional Amendment to change the Constitution.

It may be worth remembering that the last decade has been marked by an amazing surge in the influence of the religious right on politics; just as muslim fundamentalists trample human rights in the name of the Holy Koran, our own christian fundamentalists in the United States trample human rights in the name of the Holy Bible.

President Bush’s contempt for human rights predates his federal mandate. Just remember how many executions he could but did not prevent as governor of Texas…

There are no noble cavaliers in the American political establishment in these times of fear-mongering. There are only the neo-Nazis and the hypocrite machiavellians! All of them, in one way or another, are collaborating in turning America into a brutal police state! All of them are responsible for the soon-approaching downfall of America.

You can bitch and moan all you want about Bush.  The terrifying truth is that until he is IN PRISON, no one on Earth will be safe and that will never happen.  The Repugs have been scheming for decades to pull this coup and they have succeeded.  All the shit that McCain and group is stirring up is a SMOKESCREEN.  Positioning for 2008.  McCain showed his striped the minute he set tounge in W’s ass.  But cheer up, 1939 was a great year for movies.

The elevation of Gonzales ranks along with those of Rehnquist and Clarence “Stepandfetchit for Scalia” Thomas as the most egregiously incompetent Presidential actions in history. The reason the Repubs voted to confirm is not because they too are incompetent, which they may well be, but because they are unmitigated and useless party hacks, all of whom likely voted for Negropointe and Bolton and Alito and Roberts and Thomas, all of whom are HORRIBLE choices by whomever.