Marty Lederman brings light to the detainee debate:
It’s important to be clear about one thing: The question is not simply whether, in the abstract, it would be a good or acceptable idea for the United States to use such techniques in certain extreme circumstances on certain detainees. I happen to think that the moral, pragmatic, diplomatic and other costs of doing so greatly outweigh any speculative and uncertain benefits — but that is obviously a question on which there is substantial public disagreement, much of it quite sincere and serious.
Instead, the question must be placed in its historical and international context — namely, whether Congress should grant the Executive branch a fairly unbounded discretion to use such techniques where such conduct would place the United States in breach of the Geneva Conventions. And that, of course, changes the calculus considerably. Does Congress really want to make the United States the first nation on earth to specifically provide domestic legal sanction for what would properly and universally be seen as a transparent breach of the minimum, baseline standards for civilized treatment of prisoners established by Common Article 3 — thereby dealing a grevious blow to the prospect of international adherence to the Geneva Conventions in the future?
That’s what is at stake: whether the global super-power, sixty years after helping create the Geneva Convention, now wants formally to legislate that its minimum standards of humane treatment no longer applies to the U.S. and thereby to any other government on earth. The consequences of doing that are so grave – for U.S. troops and for the world at large – that we simply cannot allow it to happen.