Kudos for Warner-McCain-Graham premature?

Jack Balkin thinks that the Warner-McCain-Graham bill on military commissions leaves a lot to be desired.

The so-called "final" version of the Warner-Graham bill, now dubbed the Warner-McCain-Graham bill on military commissions, can be found here. It is still a very bad bill, eliminating judicial review and habeas corpus, and limiting criminal enforcement of Geneva Common Article 3 under the War Crimes Act (apparently Geneva CA3 is still law, but only "grave violations" of Geneva are criminally enforceable). Additionally (p. 82), the new bill says that "no foreign source of law can be used in defining or interpreting" America's obligations under title 18 of the U.S. Code-- i.e., the U.S. criminal code, which would include, presumably, the War Crimes Act and the anti-torture statute.

But even this is not good enough for George W. Bush. Apparently the President has made noises that if he doesn't get provisions actually limiting the scope of Geneva Common 3-- also known as the right to "alternative sets of procedures" (the prisoner abuse that dare not speak its name)-- he will veto the bill. Let's see now, preventing stem cell research and protecting the right to torture-lite-- yes, I can certainly see why those are the two things sufficiently important in the world that George W. Bush would threaten a veto.

And related Josh Marshall points out that this is a high stakes political game and wonders who will blink first.

But if the White House actually gets tripped up in a fight with members of his own party over what kind of torture we should use, and that's the last legislative story out of Washington going into the election, that really seems like it would be a big disaster for the White House.

[.....]

The question is, Am I really supposed to believe that Republican senators are willing to hand their party leader that kind of reverse on the eve of a critical mid-term election? I have a hard time believing that's going to happen. And yet, who's going to blink?

Will Warner, McCain and Graham be will to stick to their principals, however weak they may be, if it results in a potential loss of one or both branches of congress in November? Are Warner, McCain and Graham Americans first or Republicans first? Their decision was complicated by Collin Powell's letter to McCain. Another possibility is this all just a smokescreen? Did Bush agree in advance that he would accept this sorry bill even though it does not give him all he wants?