Torture Trap

by digby

Blow me over with a feather. It looks as if the White House may have "compromised" on the torture bill. Let's just say I'm not shocked.

A couple of days ago I quoted this MSNBC article

McCain and the other GOP senators have indicated they would be willing to amend domestic U.S. law, especially the War Crimes Act, to permit at least some "enhanced" CIA techniques. They are also willing to pass legislation that would deny many rights to detainees at Guantánamo Bay and allow them to be held indefinitely.

and then commented:

Bush has always said that he wanted to "clarify" Article III and I predict that they will soon have a "breakthrough" that says they have found a way to do just that --- by amending the War Crimes Act.

The NY Times reports:

Senator John Cornyn of Texas, a Republican on the Armed Services Committee who has supported the president’s legislation, said Tuesday morning that the White House had agreed to work within the War Crimes Act to refine the obligations under Common Article 3.

“There’s agreement on the goal,” Mr. Cornyn said, “that is, that we continue to comply with our international treaty obligations and all of our domestic laws, but at the same time not tie the hands of our intelligence officials.”


The senators propose to provide clearer guidelines for interrogators by amending the War Crimes Act to enumerate several “grave breaches” that constitute violations of Common Article 3.

That's the Kabuki. Here's the rub:

Several issues appeared to remain in flux, among them whether the two sides could agree on language protecting C.I.A. officers from legal action for past interrogations and for any conducted in the future. Beyond the issue of interrogations, the two sides have also been at odds over the rights that should be granted to terrorism suspects during trials, in particular whether they should be able to see all evidence, including classified material, that a jury might use to convict them.

I predict that McCain and Graham are prepared to do the big el-foldo on all that and take the "victory" on amending the Geneva Convention which was never really in dispute in the first place. They will be heroes, the president will claim victory like he always does and everyone will get exactly what they need. (Man, I'll bet Joe Lieberman is kicking himself that he didn't get a piece of this. It's his kind of bipartisan deal.)

But regardless of how this Geneva/torture Kabuki comes out, let's not forget that the McCain, Warner, Huckelberry bill is already a very, very bad bill that no Democrat can in good conscience support.

From Jack Balkin:

It's important to understand that although Senators McCain, Graham and Warner are getting a lot of great press on their disagreements with President Bush, and are being widely championed as brave defenders of human rights, the bill they have authored in the Senate is not a good bill; it is merely less terrible than the one the President is pushing. The press has either been hoodwinked on this score or has been complicit in downplaying this aspect of their handiwork. I choose to believe that it is the former: hence this post.

In particular, the McCain-Graham-Warner bill, like the President's, would prevent anyone detained in Guantanamo Bay (or any other detention facility outside the U.S.) from challenging what has been done to them in court except as an appeal from the decision of a military commission.

That means that if the government decides never to try an individual before a commission, but just holds them in prison indefinitely, there is no way that they can ever get a hearing on whether they are being held illegally-- because they are not in fact a terrorist; or a hearing on whether they are being treated illegally-- because they have been abused or tortured or subjected to one of the Administration's "alternative sets of procedures"-- a.k.a. torture lite.(read on)

I think Bill Kristol's partially right about how this plays politically in his essay called "The Trap:"

There is now a clear and live contrast between Bush and the Democrats on an important issue in the war on terror.

Wait a minute, you say--it's not just Democrats who oppose Bush. Four Republicans joined the Democratic senators--John McCain, John Warner, Lindsey Graham, and Susan Collins. Colin Powell is with them. So the Democrats have cover.

No, they don't. The fact that McCain has badly damaged his 2008 presidential chances doesn't mean the Democrats can't be hurt in 2006. True, there could be a dozen GOP votes for the Democratic alternative on the floor of the Senate next week. There were a dozen Democratic votes for Bush's tax cuts in 2001. It didn't prevent Republicans from distinguishing themselves from Demo crats on taxes. A few defections won't prevent Republicans from saying--truthfully--that there is a real difference between the two parties on the war on terror, and that they stand with Bush and against Harry Reid and Nancy Pelosi.

Democratic candidates will respond that McCain also stands with them. It won't help. The American people don't agree with McCain on this. And they're not going to be persuaded by some of the arguments made by Bush's critics. Let Democratic candidates try to argue that, unless we go even further than required by the 2005 legislation sponsored by McCain (which Bush's proposal embraces), al Qaeda might react by not treating Americans decently. Let Democratic candidates try to defend the notion that we'll get lots of credit in Europe by going the extra mile--as if the 2005 detainees legislation generated any good will there. Let Democratic candidates align themselves with world opinion (as interpreted by Colin Powell), and join in expressing doubt about "the moral basis of our fight against terrorism."

I don't think it's quite the electoral smash for Republicans he thinks it is nor has Mccain "badly damaged" his chances in 2008. Bush is going to give him a big sloppy kiss when this is all done and everything will be forgiven. But it's still a trap. I think the Dems are thinking that McCain et al are going to get this bill delayed until after the election. Maybe they will. Or maybe they can stall it in conference and they have their fingers crossed that they will win in November and can derail the thing.

But what in the hell are the Dems going to do if McCain makes a deal and this thing gets to the floor? Are they actually going to vote for a bill that eliminates habeas corpus for terrorist suspects? Because if they don't, you know what the Republicans are going to be saying, don't you? After all, the saviors of the republic and guardian kinghts of the constitution say this bill is ok. The only reason the Dems can possibly have for opposing it now is that they are terrorist loving cowards.

I have to assume the Dems have good reasons for letting McCain run with this. But they are certainly placing a lot of trust in a man who is running for president from the opposing party. If Democrats in 2006 end up voting for this McCain/Warner/Graham monstrosity based on nothing but McCain's word they have learned nothing. Unless they are willing to filibuster a month before the election, which I seriously doubt, the Republicans will have backed them into exactly the same corner they did with the Iraq war resolution and the Homeland security bills in 2002. I'm not going to believe it until I see it with my own eyes, but I'm worried.

Update: The Senate Majority project has started a McCain Weasel Watch on Detainees. Probably a good idea...