...Republican Senators, say they "think" they voted for matters much. What's important is what the bill (now law) actually says. As I am back (from the celebration), I will check...
...this is what it looks like to me: From the MCA of 2006, the following is prohibited: Activity that yields:
(I) a substantial risk of death;
(II) extreme physical pain;
(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
(ii) The term `severe mental pain or suffering' has the meaning given that term in section 2340(2) of title 18.
(iii) The term `serious mental pain or suffering' has the meaning given the term `severe mental pain or suffering' in section 2340(2) of title 18, except that--
(I) the term `serious' shall replace the term `severe' where it appears; and
(II) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term `serious and non-transitory mental harm (which need not be prolonged)' shall replace the term `prolonged mental harm' where it appears.
Waterboarding does not risk death; it does not produce extreme physical pain, burns, or disfigurement. It causes reflex panic reactions. Note that the MCA replaces text in 2340(2) of title 18 that makes mental harm permissible, as long as it is not "serious and non-transitory mental harm". A couple of hours of waterboarding, though serious, can be construed as mental harm short of "non-transitory". I do not thing the MCA
makes it clear that waterboarding is impermissible. The lack of clarity is what makes it a tragic joke, as Bushboi's argument for this was that our torturers in the field needed to clearly know that what they were doing was not a crime if the "program" was to continue (as if it was already broadly accepted that the torture program should continue!!). It makes nothing clear except wiggle room and cover for the executive.
With respect to any alien declared by the executive to be an unlawful enemy combatant, everything not explicitly prohibited -- and I argue here that waterboarding is not
explicitly prohibited -- is subject to the interpretation of the executive, not the judiciary. The alien non-combatant cannot appeal to the Geneva Conventions nor even have his/her case heard via habeus corpus, but can be held indefinately and waterboarded until his/her torturers are too tired to torture any more.
The U.S. citizen declared an enemy combatant does have his/her day in court, but then is at the mercy of the judiciary as it sorts through what is permissible and what is not, as it creates a blurry line between what the Bush Terror Regime would like to do and what we'd like to prohibit. What is clear is this bill creates high risk that even a U.S. citizen can be "lawfully" detained and tortured at the whim of the executive.
Bush's law clarifies none of this, but it does clear up one thing: It protects the Bush administration from prosecution for the crimes against humanity and against the Geneva Conventions already committed in Guantanamo, Abu Ghraib, Bagram, and the various secret torture prisons spanning the globe. Bush signed his own Get Out of Jail Free card when he signed the MCA, and Cheney is rubbing our faces in it.
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