Authorial Intent

If I understand what Marty Lederman is saying about the compromise language in the bill to authorize the President to reinterpret the Geneva Conventions, the revisited language 1) outlaws "grave breaches" of Common Article 3, including such horrors as rape and murder, 2) renders the President, however, wide leeway in determining which, if any, acts not proscribed by the bill constitute violations of Common Article 3, and 3) suggests that such acts that the President does not determine to be ipso facto violations but nevertheless lead to "grave breaches," such as death, will not be considered violations—that is, war crimes—unless they are intended as such.

This is a Game, the point of which is to replace the ladders of the law with chutes. Intent now matters, and murder is not murder unless it is "murder." In the eyes of the United States, Manadel al-Jamadi could not have been crucified ("His head had been covered with a plastic bag, and he was shackled in a crucifixion-like pose that inhibited his ability to breathe; according to forensic pathologists who have examined the case, he asphyxiated") unless the CIA intended to crucify him to death. My God, my country's reclaiming the right to commit war crimes based on authorial intent!

There's no uncertainty about the habeas rights—they do not apply under the new reading. Roland Barthes and Thomas Jefferson are spinning in their graves.