Updated twice: America legalizes torture; Dems get played badly

Posted by Joshua Holland at 6:24 PM on September 21, 2006.

This afternoon, the White House announced that a tentative deal had been struck with the Senate GOP "rebels" -- McCain, Warner and Graham -- that will basically continue the status quo on prisoner detentions and "coercive" interrogations. McCain, it appears, set up the Dems and the media most deftly, and then turned around and sold out America's values for a few primary votes in 2008.

Another measure passed the House that would essentially authorize the administration's formerly illegal domestic surveillance program. Both bills are headed for the Senate -- the detention compromise would then need to go back to the House -- and both are likely to bite Democrats hard on the ass come November no matter which way they vote.

The details of the deal remain somewhat murky. Bush is pleased, saying: "this agreement preserves the single most potent tool we have in protecting America and foiling terrorist attacks." McCain wouldn't say exactly what the White House had conceded, but the AP reports that the administration dropped its attempts to "redefine" Common Article Three of the Geneva Conventions, which bars "humiliating treatment and outrages upon personal dignity." McCain said only that "there is no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved."

The other sticking points were whether suspects would have access to classified evidence against them in "civilian status review commissions," and whether evidence gained through coercion -- including through the use of techniques long considered to be torture by human right groups --could be admitted. Graham said that there was a provision that would allow suspects access to classified evidence -- and what evidence won't be classified? -- if they are at risk of imprisonment or death, but an administration spokesman said they were interpreting that with a "high bar" and it wouldn't be automatic. Digby says a new JAG office will be formed to review classified evidence. I didn't see any mention about the use of evidence gained through "rough interrogation."

As I pointed out earlier this week, this is a compromise between two bad -- terribly bad and unnecessary -- bills. It was passed at gunpoint, with the administration threatening to discontinue coercive interrogations if they didn't get their way and nobody in the political class willing to call their bluff (remember, more than half of those being held are thought to be innocent and experts are pretty much in agreement that torture doesn't work anyway).

Just to refresh everyone's memory, this is the bill that provides a run-around for the Supreme Court decision in Hamdan back in June (the one that excited everyone so). The Court found that we have a functional judicial system and that kangaroo courts held at Gitmo violated the Geneva Conventions, and they found that Bush had overstepped his asserted powers as Commander-in-Chief. So Bush went to Congress and got legal authorization for the whole shebang. I haven't read anything about whether the compromise gives officials retroactive immunity from prosecution, as the administration hoped -- if you see something about that put it in the comments and I'll update this post.

Update: According to the Washington Post, "the two sides agreed on a list of specified crimes that could provoke prosecution of CIA interrogators and others. They also agreed that past violations of the Geneva Conventions, an international treaty barring degrading and humiliating treatment of detainees, would not result in criminal or civil legal action." Also: the measure "prohibits detainees from using the Geneva Conventions to challenge their imprisonment or seek civil damages for mistreatment, as the administration sought."

The political ramifications are even worse. The House today also passed Heather Wilson's (R-NM) surveillance bill, authorizing that whole electronic eavesdropping mess. Which means that Repubs are going to hustle two "national security" or "anti-terrorism" bills through committee and get votes next week before the Congress breaks for the election season.

Legislators of conscience should filibuster the Torture Bill, but there's just about zero chance of that happening -- there will be enough Dems who need to be "tough on" … whatever they're supposed to be tough on this week to get cloture just a month before a big election. The Nelsons will bite, as will Lieberman, and probably Martinez in that tough race in Jersey, maybe Cantwell -- just to name a few obvious ones. But even if they could muster the votes (and the cojon), the Repubs would be all over the airwaves whining about how they're coddling terrorists and hate babies and puppies.

This measure was right out of Rove's playbook for holding onto the House and Senate, and it was executed perfectly. Meanwhile, the Dems didn't even get in the game, apparently believing -- for reasons that are truly unfathomable -- that McCain and the other "mavericks" would, just this once, stick to their guns and do what's right.

Last week, the AP quoted Harry Reid (D-NE) saying the Dems were sitting on the sidelines "watching the catfights" among Republicans and quipping that the GOP was debating border security "because they have nothing else to do." Well, Harry, they found something to do. And you're the sucker this time.

As Chris Bowers pointed out last week, if the Dems don't turn out their base in big numbers this November, all the happy prognostications of a big win are going to dissipate like a puff of smoke in the wind. The fact that millions of progressives have to sit by and watch this debacle unfold with nary a peep from those supposedly on their side isn't going to help

Digby notes that as well, before summing the whole thing up quite neatly, if depressingly:

Here's how the optics look to me:

McCain, the Republican rebel maverick, showed that Republicans are moral and look out for their troops.

Bush, the Republican statesman and leader, showed that he is committed to protecting Americans but that he is willing to listen and compromise when people of good faith express reservations about tactics.

The Democrats showed they are ciphers who don't have the stones to even say a word when the most important moral issue confronting the government is being debated.

That about covers it. I need a drink.

Update 2: Scott Lemieux has some more details.

Also, I have no idea how E.J. Dionne remains so perky and upbeat all the time, but I should take a lesson -- this is by no means a done deal. They have one week to get the Torture Bill finalized and get two chambers to pass it, and last week Christopher Shays (R-CT) said he wasn't sure they had the votes to get it through the House.

In other words, this is no time to mope — there are representatives and senators who you need to contact. Tell them that coercive interrogation isn't effective, you don't trust the administration to decide what is and what is not acceptable and you see it all not as a question of national security but as a transparent political ploy.

One other thing to consider. As Josh Marshall put it, the "compromise is that we agreed not to reinterpret the Geneva Conventions, only to continue violating them." The Washington Post editorial board sees it the same way. That means that the legislation, on its face, may well be unconstitutional (ratified treaties become domestic law second only to the Constitution itself).

Joshua Holland is a staff writer at Alternet and a regular contributor to The Gadflyer.