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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.

Thursday, September 28, 2006

George Bush's vast new powers of detention and interrogation

Final passage of the torture/detention bill was 65-34. Without necessarily planning in advance to do so, I live-blogged the Senate proceedings here (if you're going to subject yourself to something as unpleasant as watching U.S. Senators "debate" a bill to give the U.S. President the powers of torture and indefinite detention, it's much healthier to have an outlet when doing so).

Twelve Democrats voted in favor, 1 Republican and 1 independent voted against (there may be one or two errors because I compiled the list while listening to the vote):

Democrats in favor (12) - Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich.).

Republicans against (1) - Chafee (R.I.).

Jeffords (I) voted against.

I will have much more later, but a couple notes for now:

Jay Rockefeller (who voted for this bill) is the ranking Democrat on the Senate Intelligence Committee. When he was defending the amendment he introduced to compel the CIA to disclose to the Senate and House Intelligence Committees information about their interrogation activities, he complained that the White House has concealed all information about the interrogation program and that the Intelligence Committee members (including him) therefore know nothing about it. His amendment to compel reports to Congress was defeated with all Republicans (except Chafee) voting against it. He proceeded to vote for the underlying bill anyway, thereby legalizing a program he admits he knows nothing about (and will continue to know nothing about).

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus rights and allows the President to detain people indefinitely. He also said the bill violates core Constitutional protections. Then he voted for it.

It's good to see that many Senate Democrats (32 out of 44) voted against this bill, but it's too little, too late. Many of them announced only for the first time today that they are opposing the bill (though, to be fair, many Democrats attributed their opposition to the recent changes made to the bill over the last few days, ones which were made even after the oh-so-noble McCain-Graham-Warner-White House "compromise" was announced).

But it is still difficult to understand the Democrats' strategy here. They failed to try to mount a filibuster because they feared being attacked as coddlers of the terrorists. But now they voted against the bill in large numbers, thereby ensuring those exact accusations will be made anyway -- and made loudly (the White House already started today). Yet they absented themselves the whole time from the debate (until they magically appeared today), spent the last several weeks only tepidly (at most) opposing the President's position, and thus lost the opportunity to defend and advocate the position they took today in any meaningful way. As a result, the Democrats took a position today (opposition to this bill) which they have not really defended until today.

They make this same mistake over and over. Isn't this exactly what happened when they sort-of-supported-but-sort-of-opposed the Iraq war resolution in 2002 because they were afraid of being depicted as soft on terrorism, only to then be successfully depicted as soft on terrorism because they were too afraid to forcefully defend their position? It's true that fewer Democrats voted for the President's policy this time around, but it's equally true that they found their voice only on the last day of the debate -- on the day of the vote -- after disappearing for weeks while they let John McCain "debate" for them.

Nonetheless, it is fair to say, given how lopsided this vote was (both in the House and the Senate), that the Republicans are the party of torture, indefinite and unreviewable detention powers, and limitless presidential power, even over U.S. citizens on U.S. soil. By contrast, Democrats have opposed these tyrannical, un-American and truly dangerous measures. Even if Democrats didn't oppose them as vociferously as they could have and should have, this is still a meaningful and, at this point, critically important contrast.

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