So-Called GOP “Mavericks” Capitulate on Torture

Updated twice below


The Good Guys Aren't Supposed to Torture

Via McJoan, I see that the “maverick” Senators McCain, Graham and Warner have completely capitulated to President Bush and have agreed to a new bill that will (1) allow CIA torture to continue, (2) strip detainees of all rights to habeas corpus and the protections of the Geneva Conventions, and (3) refuse detainees any access to secret evidence in the military tribunals that try them. Of course, this is exactly what I and many others just like me have been predicting since this trio made a big show on TV and in the newspapers about how they were going to take a “principled” stand against President Bush on this issue.

I guess principles don’t last more than a week or two in Washington.

Marty Lederman's review of the draft legislation (which he helpfully reproduces) reveals that it's as bad as his headline, "Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva":

It's not subtle at all, and only takes 30 seconds or to see that the Senators have capitualted entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States."

And then, for good measure, it would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories."

Get that? The President gets to decide what is or is not torture and what violates the Geneva Conventions under this bill. No court would ever be allowed to apply those fundamental treaties to a case and determine that it was violated. This is sick.

Here's the report from the New York Times (my emphasis added):

WASHINGTON, Sept. 21 — President Bush and three Republican senators said this afternoon that they had reached an agreement on legislation to clarify which interrogation techniques can be used against terror suspects and to establish trial procedures for those in military custody.

. . .

Mr. Bush welcomed the accord, which he said met his key test of allowing the Central Intelligence Agency’s interrogations of terror suspects to continue.

“I’m pleased to say this agreement preserves the most single, the most potent tool we have in protecting America and foiling terrorist attacks,” he said, adding, “The agreement clears the way to do what the American people expect us to do — to capture terrorists, to detain terrorists, to question terrorists, and then to try them.”

. . .

Senator Bill Frist of Tennessee, the majority leader, said the agreement had two key points. “Classified information will not be shared with the terrorists” tried before the tribunals, he said. And “the very important program of interrogation continues.”

The three senators met today with Mr. Frist, who had been pressing them to find a quick end to an intra-party dispute that awkwardly fell in an election year and on an issue — national security — that the president’s party has sought to make its own.

. . .

The three senators have contended that the administration was undermining Geneva Convention protections in a way that could leave Americans vulnerable in the future, and that its plan for military tribunals of terror suspects would allow evidence obtained coercively, and information they were not allowed to see to be used against them.

The three had received a high-profile vote of support when Colin L. Powell, Mr. Bush’s first secretary of state, said that the changes backed by the administration could lead the world to “doubt the moral basis” of the American-led fight against terrorism.

OK, let's recap: 3 Republican Senators pretend to oppose the Republican President for a few days on a fundamental moral and legal issue. Newspapers and television commentators fawn over them for their "principles" and "independence." Then, the 3 Senators "compromise," and the news media is expected to dutifully report that the system worked.

This is no compromise.

If this legislation passes, we will have a legal system, authorized by Congress, where you can be spied on secretly and illegally by the NSA without any court supervision, arrested on suspicion of being a terrorist, sent to Guantanamo Bay, tortured, tried in a military tribunal with evidence that you are never allowed to see and therefore cannot challenge, and then you are never allowed any right to question any of this in any court of law.

How's that for due process? Even if never applied to a U.S. citizen, this standard is simply below our great country's values and understandings of fundamental fairness and human rights. This proposal is particularly sickening coming on the very day that the Bush Administration was forced to "amend" its denial of responsibility for illegally arresting, detaining and torturing an innocent Canadian, Maher Arar. If this system were to be enacted into law, innocents like him would never be able to prove their innocence.

They would simply have to rely on a government bureaucracy coming to that realization on its own. Good luck, and enjoy sunny Cuba.

Writes McJoan:

Torture is at the heart of this program and is what the administration has been fighting for since the Supreme Court handed down Hamdan. What's more, Frist's statement makes clear that the Uniform Code of Military Justice, which guarantees that defendants have the right to see the evidence against them, is going to be gutted in this "compromise."

That's no compromise, all you "principled" GOP rebels. It's capitulation. Lay down your much vaunted "integrity" and take up your Rubber Stamps.

If the Democratic Party cannot manage to pull together a fillibuster to defeat this evil bill, then it is hard to imagine a reason for the fillibuster to exist--or an opposition party for that matter.

Be sure to contact your Senators and Representatives.

Update:

Of course, as Digby says:

Unless the Dems [are] ready to threaten to filibuster a national security bill a month before an election --- which I doubt --- I expect that the Republicans are going to rush this through the conference and force through this piece of sh-t bill in a hurry, just like they forced the AUMF through in October 2002 and give the republicans a big honking "victory" in the GWOT.

The Dems are all going to be twisted into pretzels and look like they have no backbones as they struggle with a united GOP saying that McCain and Huckleberry Graham made sure "the program" is moral and necessary. Vote for it or for the terrorists. So they'll end up voting for it without getting any benefit from it.

Yep, the GOP is going to run on the torture issue; they'll argue that the Democrats want to coddle terrorists and only the Republicans are "serious enough" to keep American safe.

They are officially the Torture Party.

Second Update (9:00am 9/22/06):

Marty Lederman has posted links to both the Agreement Upon Common Article 3 and the Agreements on Classified Information, Self Incrimination and Coercion, and Hearsay, in military commission trials, and has further comment on Three of the Most Significant Problems with the "Compromise". He writes that the result of the obfuscatory language in the agreements

unfortunately, is a very constrained conception of what constitutes "cruel treatment" -- a much narrower conception than a fair or reasonable interpretation of Geneva Article 3(1)(a) would provide. And therefore the bill would implicitly exclude from the definition of "cruel treatment" under Common Article 3 many cases of actual cruel treatment prohibited by that treaty obligation. That is to say: The Executive branch -- not only the CIA -- would effectively be authorized to engage in cruel treatment that Geneva proscribes, including pursuant to the alternative CIA techniques.

The New York Times calls it a Bad Bargain:

Here is a way to measure how seriously President Bush was willing to compromise on the military tribunals bill: Less than an hour after an agreement was announced yesterday with three leading Republican senators, the White House was already laying a path to wiggle out of its one real concession.

The Washington Post's editorial is titled, "The Abuse Can Continue: Senators won't authorize torture, but they won't prevent it, either":

The bad news is that Mr. Bush, as he made clear yesterday, intends to continue using the CIA to secretly detain and abuse certain terrorist suspects. He will do so by issuing his own interpretation of the Geneva Conventions in an executive order and by relying on questionable Justice Department opinions that authorize such practices as exposing prisoners to hypothermia and prolonged sleep deprivation. Under the compromise agreed to yesterday, Congress would recognize his authority to take these steps and prevent prisoners from appealing them to U.S. courts. The bill would also immunize CIA personnel from prosecution for all but the most serious abuses and protect those who in the past violated U.S. law against war crimes.

In short, it's hard to credit the statement by Sen. John McCain (R-Ariz.) yesterday that "there's no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved." In effect, the agreement means that U.S. violations of international human rights law can continue as long as Mr. Bush is president, with Congress's tacit assent. If they do, America's standing in the world will continue to suffer, as will the fight against terrorism.

. . .

But the senators who have fought to rein in the administration's excesses -- led by Sens. McCain, Lindsey O. Graham (R-S.C.) and John W. Warner (R-Va.) -- failed to break Mr. Bush's commitment to "alternative" methods that virtually every senior officer of the U.S. military regards as unreliable, counterproductive and dangerous for Americans who may be captured by hostile governments.

Mr. Bush wanted Congress to formally approve these practices and to declare them consistent with the Geneva Conventions. It will not. But it will not stop him either, if the legislation is passed in the form agreed on yesterday. Mr. Bush will go down in history for his embrace of torture and bear responsibility for the enormous damage that has caused.