Publius calls the torture fight a Bush win.
The three republican Senators and the President reached a compromise last week on the detainee bill that seems to have formally maintained the language of Common Article 3 of the Geneva Conventions while giving the executive branch leeway to keep torturing detainees if it so chooses. Habeas corpus (the right of a detainee to challenge the legality of his detention) is gone. The whole thing is shadily ambiguous, providing just the right kind of legal grey area in which Addington and Cheney like to operate.
The White House hopes to push this mess of a bill through before the current legislative session ends to get the Democrats on record against it and use it as an election issue against them.
Harry Reid doesn’t seem to understand what is happening.
A handful of principled Republican Senators have forced the White House to back down from the worst elements of its extreme proposal for new interrogation rules,” said Jim Manley, a spokesman for Senator Harry Reid of Nevada, the Democratic leader.
Which is technically true but completely misses the point. One reason the Democrats should not have been sitting out this fight so far (besides not doing the right thing, losing any early possibility to influence the process, and missing out on potential political benefits from standing up to torture) was that they were completely at the mercy of Republican “moderate” hawks who have a near-perfect record of being rolled over by the White House. I didn’t address in my earlier posts the motives or intentions of the Republican 3. They seemed to be acting in good faith to prevent the legalization of torture . . . why else would they cause this intraparty ruckus just before the elections? I thought maybe McCain could see some political gain out of standing up to Bush, and that, having been tortured himself by the Vietnamese, he was actually acting out of principal. The more convincing explanation now is that they opposed the first draft of the bill so they could get the headlines “McCain Opposes Torture”, Bush could claim to have done his utmost to defend the country again, and Democrats would be shut out of the whole process, having ceded their voice in this matter to the “moderate” Republicans. Meanwhile the bill itself is so convoluted and ambiguous that both sides get to claim victory and Washington reporters—who’ve proved time and again their inability to grasp either the legal subtleties or the substance of national security legislation—parrot what the politicians tell them.
Maybe, as a TPM reader speculates, Reid has been keeping the Democrats’ powder dry while allowing the Republicans to make a mess of the bill and fix their positions, waiting to enter the debate until now in order to slow the bill down so it can’t be passed during the current session of Congress. But things look bleak now. I wish I’d seen Feingold, Dean, Reid, Obama, or Clinton up there holding forth against the President on this bill. But they haven’t been (as far as I’ve seen), and I wonder if they ever will.
Again I’ll turn to a conservative pundit to say what no Democratic politician has dared:
Two days after the Senate compromise, it appears pretty clear that few know exactly what it prohibits, allows or changes. Some of this is inevitable. It's a very complicated legal balancing act. But some of it is deliberate: obfuscation as a way to give the executive complete lee-way. Under these circumstances, it seems clear to me that, barring absolute clarity from both sides, this bill should be shelved till the next session. No bill this complex and this unclear and this important should be rushed into law.
I might add that this position, regardless of your take on the underlying issue of torture, is the politically conservative one. The quintessential conservative virtues are not moral certainty and instant legislation but prudence and deliberation, not faith but doubt, not a rush-to-legislate but careful checks and balances. Yes, I know we're told national security is at stake. We always are. But national integrity is also at stake. And that is not something you cram down the Senate's throat in 24-hour sessions, when no one is quite sure what is being made into law. This should be the Democrats' position. It should be the Republicans' position. Why do I fear it won't be?
(Meanwhile, so far not a peep out of the so-called libertarians at Volokh. Pathetic.)
There's lots about this at Balkinization, and more here about why the “interrogation techniques” should simply be called what they are, torture.