Slate had two good articles on detainee treatment, one from a civilian perspective, the other military. The overall theme of the latter was that military lawyers appear to be more concerned about keeping in the rules than some civilian sorts in D.C. in part because they know that the military is guided by the sentiment that they are fighting the good fight.
There is something like just war (I'd add a modifier -- "just war" bald, per my recent comments, seems utopian) and such modulated violence allows the military to do their job better. Meanwhile, the former article in part spoke about the "necessity defense," pushing for no change of the rules, but an open forthright method that the actors are willing to defend after the fact. They cite Lincoln ("all laws but one" is meaningless if the law is a sort of "suicide pact"), but do not want to follow that thread of his policy. The value of the necessity defense in part is that it serves as a check. You will do what you have to do, but know there are limits. Thus, there are defenses for breaking the law in ordinary life, but you cannot go willy-nilly as if you acted in secret or anything goes.
[To jump ahead, an important part of the proposed agreement -- if it stands up in practice -- is that the President has to spell out openly what he determines to be breaches of Geneva, other than certain "grave breaches" that are spelled out. No more secret torture memoranda. There already are noises that he will not do so in much detail. IOW, besides spinning the agreement as a great success, they already are trying to make it as narrow as possible. Likewise, also see the articles, apparently most past CIA activities will be free from possible persecution. The coward approach.]
I had a single test for the pending legislation, and that's this: Would the CIA operators tell me whether they could go forward with the program, that is a program to question detainees to be able to get information to protect the American people. I'm pleased to say that this agreement preserves the most single -- most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA program to question the world's most dangerous terrorists and to get their secrets."
-- El Diablo
On that subject, see here for a summary (with links to various discussions) of the "agreement" formulated by the top Senate Republicans who refused to go along with the President ... one of which just got in trouble for serving as a military judge while also being in the Senate. This seems to be a blatant violation of Art. I, sec. 6 though admittedly the question of reserve service per se appears not to have been deemed covered. [See, e.g., West Wing ... the presidential candidate who served in the House and the reserves ... as we all know, WW is always accurate.] The difference (rightly so, I'd think) here is that Sen. Graham served as a military judge, a policy role of sorts that truly led him to wear two hats (executive/legislative). Goes to show how it is important to retain some judicial review, huh?
This is why critics throughout reminded us that the "three amigos" (Graham, McCain, Warner) never was really promoting an ideal bill, just one less offensive. The core reason was that it was clear that they accepted a stripping of habeas. The final agreement in fact seems somewhat worse on the point. I honestly do not know how stripping it for those in Gitmo is constitutional -- this surely doesn't seem to be just a "suspension," even if we call 9/11 the "invasion" and assume "public danger" requires it. [The latter might be a political question, though surely not met here, the former rather thin to cover everyone involved.] And, I would say due process adds an additional requirement -- it is an amendment to Art. I, sec. 9 ... it requires some judicial review.
A core part of Hamdan, the issue that one judge below dissent on, was that detainees (note various of the protections kick in when they are tried in a military commission ... they see the evidence against them, etc., but very few will get that far -- most will be in limbo without have the right to see such material) have rights under Geneva that they could defend in court. This was a major coup and fundamental to serve as a check on the administration. The checks not appear to be largely of the self-regulating variety. Where have we heard this before?
Some argue the "grave breaches" are phrased in such a way that the administration can still perform various acts that amount to torture such as exposure and extended standing (perhaps over a day). Likewise, the "lesser" breaches will be determined by you know who. And, there won't even be a judicial check if (as is likely) some overreaching goes on. A major concern of the trio was to retain the Geneva Convention limits in some form -- the fact they were watered down somewhat (this depends on how you interpret the wording, but we know who we are dealing with here) is not really surprising. Another part of the compromise is that testimony obtained before the McCain Amendment is admissible if the judge finds it worthy -- ideally, but who knows, such testimony will be deemed by nature to be untrustworthy. Such has been the accepted practice over the years since at least the 1930s. This too was not too surprising.
Digby and others argue that this whole thing makes the Democrats look like dupes. They relied on conservative Republicans to fight the administration, a compromise is reached, and everyone over there looks nice and reasonable while still being about to fight terror. Meanwhile, the Democrats look like they did not stand up for American values, or anything at all, standing by the wayside (again) on a matter of foreign policy significance (or generally speaking) and not really getting much out of the deal too. Next up, some "compromise" will be formulated on the eavesdropping bill. [Let's not forget about Bolton ... his term is about to be up and the committee vote is tied.] I'm not convinced this compromise is worthless (the Geneva limits, for instance, have some bite ... yeah, it can very well be of a symbolic measure, but it's something for military professionals to be concerned about, for advocates to hang some hope on), but such cynicism is reasonable.
Things are ongoing. See here and here for further developments. [Update: Links added, including the column referenced in the "and also" remarks. Happy Autumn.]
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* Islam developed in the midst of conflict, while Christianity developed in other circumstances. The idea of a "just war," however does not necessarily go against Christian doctrine. Likewise, Christianity also became the established church, and was once a major power -- popes in fact have lead armies in the field. Finally, even today, many see our society (and others like it) a de facto Christian state with various needs to battle to defend our Christian values. Generally speaking many uses of violence by Western society has strands of "religious" implications.
Obviously, Judaism also is used to justify violence, a comparable portion of its believers seeing themselves fighting a holy war in part to expand the borders of the faith. Finally, many battles fought by Muslims are not really religious -- the Palestinians are not really holy warriors in many respects and Iraq/Iran grew out of quite secular concerns. And, religious differences often have cultural components -- tribal warfare might be religious in motivation but general cultural concerns often are really the issue. And, Shia/Shiite is a religious and cultural split.
Surely, violence is a problem -- advanced by an unbalanced situation and a lack of true republican institutions in various Muslim lands -- but let's keep things in perspective.