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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, September 23, 2006

Everyone -- including Democrats -- agrees to pretend that Bush "compromised" on torture

(updated below)

No matter where one stands on the ideological spectrum, there is nothing confusing or unclear or ambiguous about the so-called "compromise" on torture, nor is there a lack of clarity about who won. It couldn't be any clearer. On the interrogation issue, there was only one simple issue from the beginning -- the Bush administration, through the CIA, has been using an array of "interrogation techniques" (induced hypothermia, long standing, threats to harm families, waterboarding) which most of the world considers to be torture. The question was whether the U.S. would be a country that uses these torture techniques (as the administration wanted) or whether it would ban them. That was the only issue all along.

Just last week at his press conference -- does the media have any short term memory at all? -- the President said he cared about only one thing with regard to the torture legislation: "I have one test for this legislation. I'm going to ask one question, as this legislation proceeds, and it's this: The intelligence community must be able to tell me that the bill Congress sends to my desk will allow this vital program to continue. That's what I'm going to ask." By "this program," he means the CIA's torture program.

This legislation unquestionably allows the administration to continue to do exactly what it is was doing before. It legalizes those methods. It actually strengthens what the administration was doing because now it provides those activities with statutory authority. Why are the media and others pretending that these questions are murky? They're not.

It's true that the "compromise" takes the indirect, cowardly path towards legalizing torture by relying upon vague standards to define torture and then vesting in the President the sole power (unreviewable by courts) to determine what techniques are and are not allowed by those standards. It is the President who decides whether the "aggressive interrogation" program (i.e., the torture program) can continue, and he has already decided, obviously, that it will.

That is why the President and his senior advisors are celebrating the fact that the "program" can now continue. Because it can. Because the "compromise" allows that. Because the White House won. Because the principled, dissident Republican Senators capitulated entirely on the central question of whether the U.S. will continue to torture people.

Rep. Duncan Hunter, who is more of an extremist on torture issues than even Dick Cheney (he was threatening in advance to block any "compromise," even if the White House signed on to it, if it even potentially impeded the C.I.A.'s interrogation program in any way), excitedly announced that he "like(s) the compromise legislation even better than the [President's] bill his committee had passed." It's bad enough that we are legalizing torture but can we at least stop pretending that we're not sure if we're really doing that?

But worse than any of that, would it at least be possible for Democratic leaders to stop drooling on themselves with praise for John McCain, John Warner and Lindsey Graham, and refrain from holding them up as the heroes who safeguarded all that is good and just in the world. Because not only is it false to say that those Heroic GOP Senators did anything praiseworthy regarding torture, praising them this way is politically so inept and self-destructive that it is hard to believe (although it shouldn't be) that they're actually doing this.

Who needs GOP commercials when you have Democratic Senators?

"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. . . .

And Senator Carl Levin of Michigan, the senior Democrat on the Senate Armed Services Committee, praised Senators Warner, McCain and Graham as “standing up to the administration” and producing a bill that, “while it has a number of problems, is a substantial improvement over the language proposed by the administration.”

So, according to Sen. Reid and Sen. Levin, Americans should be directing our gratitude to the brave, principled, independent Republicans who stood up to the President and protected us all while legalizing torture. That is a really good, shrewd message to be sending right now.

The only real advantage Democrats have during this election season is that Congressional Republicans are perceived to be rubber-stamping loyalists to George Bush who fail to impose any limits or checks on his behavior. But Sen. Reid and Sen. Levin are here to tell us that this isn't true, that Republican Senators are actually brave, principled and courageous and boldly stand up to the President in order to protect all of us not only from the Terrorists but also from the occasional excesses of the President.

The one good thing about incidents of this sort is that they really shine a light on just how dysfunctional and sickly our political institutions are. The President has been torturing people in violation of the law. Republican Senators pretend to object to that but then end up enacting a law legalizing the President's conduct and giving him the power to torture. The media disseminates the patent falsehood (jointly emanating from the White House and GOP Senators, and unchallenged by Democrats) that the President "compromised" and everything Good was preserved. And Democratic Senators, in order to excuse their fear to take a position one way or the other, cheer the whole thing on after it's done, in the process obsequiously praising their political opponents seven weeks before a major national election.

In a nutshell, that, right there, is how our political system works. It is what accounts for most of what has happened for the last five years. What else do you need to know?

UPDATE: The Wall St. Journal Editorial Board is as excited over the "compromise" as Duncan Hunter is, and they are having no trouble understanding exactly what it does. In their editorial headlined "An Antiterror Victory," they explain, correctly:

the upshot of the agreement is simple and welcome: Aggressive CIA interrogations of such high-level al Qaeda prisoners as Khalid Sheikh Mohammed will be able to continue. . . . This will be a service to the American public and to future Presidents of both parties--perhaps even to Mr. McCain. No matter their rhetoric now, they will surely be glad to have aggressive interrogations as one antiterror tool.

The reason extremists like Duncan Hunter and The WSJ Editorial Board -- and the White House, for that matter -- are cheering on this "compromise" is because it's actually nothing of the sort.

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