The Senate has voted 65-34 in favor of S. 3930, "A bill to authorize trial by military commission for violations of the law of war, and for other purposes." Here, "trial by military commission" means that, if you are an unlawful enemy combatant, you have no right to a trial by your peers or any other basic protections of the Bill of Rights. (Who counts as an "enemy combatant"? Whomever the government says. Even U.S. citizens who haven't even left the country, much less engaged in combat? Yes.) And "other purposes" means torturing people. I remember when Republicans used to look at government with suspicion. Now the motto of the Republican Party is "Trust us, we're the government, we know what's best and we don't make mistakes." I have nothing to add to the discussion that hasn't been said by more expert people elsewhere. I just wanted it on record, if the internet archives last a thousand years and I've been cryogenically preserved for the same length of time, that I was one of the substantial number of people who thought the bill was repulsive and anti-democratic. It will go down in history as one of those sad moments when a basically good nation does something that makes later generations look back and think, "What made them go so crazy?" I can just quote other people. Jack Balkin:
The current bill, if passed [as it just was], will give the Executive far more dictatorial powers to detain, prosecute, judge and punish than it ever enjoyed before. Over the last 48 hours, it has been modified in a hundred different ways to increase executive power at the expense of judicial review, due process, and oversight. And what is more, the bill's most outrageous provisions on torture, definition of enemy combatants, secret procedures, and habeas stripping, are completely unnecessary to keep Americans safe. Rather, they are the work of an Executive branch that has proven itself as untrustworthy as it is greedy: always pushing the legal and constitutional envelope, always seeking more power and less accountability.
Almost all the Republican Senators, of course, voted for the bill, Lincoln Chafee being the lone honorable exception. As Glenn Greenwald notes,
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.
Most Democrats were against (although not all, sadly). Hillary Clinton:
The rule of law cannot be compromised. We must stand for the rule of law before the world, especially when we are under stress and under threat. We must show that we uphold our most profound values... The bill before us allows the admission into evidence of statements derived through cruel, inhuman and degrading interrogation. That sets a dangerous precedent that will endanger our own men and women in uniform overseas. Will our enemies be less likely to surrender? Will informants be less likely to come forward? Will our soldiers be more likely to face torture if captured? Will the information we obtain be less reliable? These are the questions we should be asking. And based on what we know about warfare from listening to those who have fought for our country, the answers do not support this bill. As Lieutenant John F. Kimmons, the Army's Deputy Chief of Staff for Intelligence said, "No good intelligence is going to come from abusive interrogation practices."... This bill undermines the Geneva Conventions by allowing the President to issue Executive Orders to redefine what permissible interrogation techniques happen to be. Have we fallen so low as to debate how much torture we are willing to stomach? By allowing this Administration to further stretch the definition of what is and is not torture, we lower our moral standards to those whom we despise, undermine the values of our flag wherever it flies, put our troops in danger, and jeopardize our moral strength in a conflict that cannot be won simply with military might.
Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions. Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution. As a group of retired judges wrote to Congress, habeas corpus "safeguards the most hallowed judicial role in our constitutional democracy â€" ensuring that no man is imprisoned unlawfully." Mr. President, this bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.
But words are cheap, and nobody stepped up to filibuster the bill. Democrats, as usual, put their fingers to the wind and decide to be spineless. The calculation seems to be that they won't look sufficiently tough if they come out strongly against torture. They don't get it. "Tough" means that you stand up for what you believe in, and that you're willing to fight for it if necessary. How are you supposed to keep the country safe when you're afraid to stand up to demagoguing Republicans? People know this, which is why it's been so easy to paint Democrats as weak. The "tough" stance of the Bush administration has taken Iraq, a country that formerly opposed al-Qaeda, and turned one-third of it over to al-Qaeda, in the process fueling Islamic radicalism and making the threat of terrorism significantly worse. If that's what you get from "tough," I'll stick with "smart" and "principled" any day.
