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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.

Monday, October 16, 2006

The deceitful ritual of the "independent GOP Senator"

(updated below)

When I first began blogging, I believed -- and frequently argued -- that the best strategy for imposing real limits on the excesses of the Bush administration was to attract the support of the group of GOP Senators who did not appear to subscribe to the most extreme elements of the Bush agenda. I was operating on the assumption that certain excesses would be so intolerable and repugnant to their worldview that they would be virtually compelled, by their own consciences and sense of personal dignity if nothing else, to take a real stand, partisan allegiances notwithstanding. From Iraq to torture to warrantless eavesdropping and many things in between, it has been conclusively established that those assumptions were fundamentally false.

Articles like this one (from The Washington Post's Jeffrey Smith, reporting on how "moderate" GOP Senators deceitfully enabled the torture bill to strip detainees of habeas corpus rights) and this one (from AP's Nedra Pickler, reporting that two GOP Senators have oh-so-boldly announced that we need a "different course" in Iraq without saying what that might be) illustrate the misleading ritual in which "independent GOP Senators" engage over and over. They continuously preen around with rhetorical symbols of independence and a willingness to oppose the President, but by their actions, they not only fail to block any of the administration's worst excesses, but worse, they are usually their key enablers.

The dynamic is most vividly seen in the much-documented humiliations of Arlen Specter, but, with the rarest of exceptions, it's really how all of them -- John McCain, Chuck Hagel, Olympia Snowe, Susan Collins, Lindsey Graham, John Warner -- regularly conduct themselves. Nothing has been less significant than the "independent-minded" GOP Senate caucus because it really does not exist in any substantive way.

The above-linked article from the Post reports that during the debate over the torture bill, Arlen Specter had two proposed amendments to provide habeas corpus rights to detainees -- the more "extreme" version, which he introduced (and which failed by a 48-51 vote), that allowed full habeas corpus rights to detainees, and a more "mild" version which would have limited detainees to a maximum of one habeas challenge, and which would be triggered only after a full year in detention. The "mild" habeas version was never introduced by Specter and therefore was never voted on.

The Post article reports that -- unlike the "extreme" Specter amendment -- the more "mild" version had the support of a majority of Senators. For that reason, Specter "was pressured into discarding [the] less extreme and more politically palatable amendment at the Bush administration's request, in favor of [the more extreme] alternative more likely to be defeated." The Post article suggests that Specter introduced a habeas amendment which he knew would fail, while refusing to introduce his habeas amendment which would have passed. Specter, of course, leaps to the defense of Bill Frist and the White House and -- while admitting that Frist "allowed" him to introduce only one habeas amendment -- claims that he chose the more extreme version on his own because he did not believe the more "mild" version went far enough in granting rights of habeas corpus.

The Post has sources which claim that Hagel, Snowe and Collins would all have voted in favor of Specter's more mild habeas corpus amendment had it been introduced, and that would have enabled the amendment to pass. The Post article expressly claims that "a Republican aide directly familiar with Hagel's position confirmed that the senator supported the less extreme alternative." But Specter told the Post that he called Hagel after speaking with Smith about the article and Hagel denied (to Specter) that he would have supported the "mild" amendment. Meanwhile, Hagel's spokesman just refuses to say how Hagel would have voted, and Snowe and Collins also both refuse to say what their position is on this most critical issue.

Whether we vest in the President the power to detain people forever without any right to challenge their detention is one of the most profound political questions of this decade, at least. It defines who we are as a country and has unparalleled significance in terms of how we are perceived around the world. Whether we will put people in a black hole forever and deny them any ability to prove their innocence -- as our Congress just empowered the President to do -- implicates the most fundamental principles of what kind of country and government we have.

Yet these "moderate, independent" Republican Senators of conscience can't even bring themselves to say what their position is on these issues. Do they support habeas corpus rights at all? Would they have voted in favor of Specter's more "mild" amendment? Are they angry about Bill Frist's maneuvers to block Specter's amendment from coming to the Senate floor, even in light of the standard GOP mantra about the need for "up-or-down" votes? Would they support efforts now to amend the torture bill to at least provide detainees with the one-time habeas right, to kick in after one year of detention, so that there is at least some chance for detainees who are wrongfully detained to avoid being imprisoned forever?

They won't say. They prefer to be coy and silent on one of the most vital issues of our time because to do otherwise would force them to stand in opposition to the administration on a critical question. And that is something they simply will never do, even if it means enabling one of the most extremist pieces of legislation in the last century to be enacted. Every time, when the choice is forced, they opt for partisan allegiance and blind support for the administration over everything else. They are different from the Jon Cornyns and Pat Roberts and Jeff Sessions and Bill Frists of the Senate only cosmetically and, worse, they are far more important in enabling the Bush movement to implement its most radical measures by creating the deceitful appearance that these policies are supported by "moderates."

The AP article linked above reports that two of the serious, courageous independent GOP Senators -- Hagel and John Warner -- announced over the weekend their bold discovery that our current "course" in Iraq isn't working. But, as always, they did this in the most meaningless, self-serving way possible. Hagel, on CNN, "said it is time to change course, but 'our options are limited.'" Warner stated the obvious -- that "there has been an 'exponential increase in the killings and the savagery that's going on over there'" -- but then said this: "We have to rethink all the options, except any option which says we precipitously pull out, which would let that country fall into a certain civil war at that time, and all of the neighboring countries would be destabilized."

So, do Hagel and Warner agree with Democrats like Jack Murtha who want a phased withdrawal? Do they object to characterizations by the Republicans of anti-war Democrats as "cut and run" surrender-happy cowards? What specifically is the administration doing wrong? What do they think ought to be done differently? They won't say, because their overriding objective is to lavish themselves with the virtues of independence while avoiding doing anything to criticize the President or to oppose administration policy in any meaningful way.

Just like they know that denying habeas corpus is hideously wrong, these pseudo-independent GOP Senators know the Iraq Was is failing, so they want it to appear as part of some sort of Platonic "historical record" that they were one of the bold, independent GOP Senators to stand up and say so -- three-and-a-half years later in the case of Iraq, and only in the most deliberately inconsequential way in the case of torture and habeas corpus. But their objections, as always, are meaningless because their paramount consideration -- partisan allegiance -- prevents them from saying or doing anything meaningful.

As always, all of this play-acting is designed to fulfill the only real objective these "moderate, independent-minded" GOP Senators have -- to self-servingly cast the appearance of independence and to distance themselves from the administration's grossest failures and excesses while, simultaneously, remaining blindly loyal and doing everything possible to enable those same failures and abuses. Over the last five years, particularly when it comes to policies ostensibly justified by The Terrorists, the Senate has fully acquiesced to the dictates of the White House. They have neither stopped nor meaningfully limited anything. And at the epicenter of this disgraceful record of Congressional abdication has been this group of "moderate, independent GOP Senators." Nobody has done more to enable the worst aspects of the extremist Bush agenda than they have.

UPDATE: Just to get a sense for how thoroughly in lockstep Republican Senators march, as contrasted with the frequently divided Democratic Senate caucus, observe the following votes on some of the most significant matters the Senate has decided over the last several years:

Vote to confirm John Roberts to the Supreme Court: Republicans (56-0) -- Democrats (22 -22)

Cloture vote on Sam Alito's nomination to the Supreme Court: Republicans (54-0) -- Democrats (19-25)

Vote on Authorization to use military force in Iraq: Republicans (48-1) -- Democrats - (29-21)

Cloture vote on Bankrupty Bill: Republicans (55-0) -- Democrats (14-30)

Cloture vote on nomination of Priscilla Owens to appeals court: Republicans (55-0) -- Democrats (25-18)

Toture/detention bill: Republicans (53-1) -- Democrats (12-33)

Genuine Republican independence in the Congress is a myth. It doesn't exist. They have spent the last five years as a pitifully obsequious appendange to the Bush agenda.

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