Why are only Republicans getting credit for killing Bush's torture bill?

[beachmom]

So, it's all about John Warner, John McCain, Bob Graham and Colin Powell. Where were the Democrats on this issue? I googled Diane Feinstein, since someone here mentioned that she would be the point person on this, and I found precious little:

http://www.cnn.com/2006/POLITICS/09/07/detainees.legislation.ap/index.html?section=cnn_allpolitics

And from her website:

http://feinstein.senate.gov/06releases/r-hamdan0906.htm

I just found the Democratic performance on this issue beyond pathetic, and it has to do with the low self esteem this party has on national security issues. Democrats are SO AFRAID to look weak, that they sit back and watch McCain et al do all the work to upheld this nation's values, and not surprisingly, get all the credit. Yes, every Dem on the committee voted for their alternative bill, but really -- how hard was that? Meanwhile, Kerry is sounding the alarm on Afghanistan and is largely ignored by the liberal blogosphere, and I go into GD and find yet another thread whining about how there is no real "war on terror". WTF? What a bunch of idiots!! Can somebody say 9-1-1 real slow, and witness the carnage again to remind them that we are at war with these people!!!!

In order to be a real opposition party, we need to have street cred, and as these events have shown, we're not there yet. John Kerry, along with a few other Democrats, has been excellent. I realize now from reading Sen. Feinstein's statement, that JK, in his Hardball appearance last Friday, was merely echoing what she had said about the torture bill, so as to show a unified position. He was relying on her, and IMO her initial statement in reaction to that bill was weak. McCain, Warner, and Graham were MUCH stronger.

A blog post by Andrew Sullivan is what prompted my rant here. And, no guys, this is NOT RW spin from a lapsed Republican. I found this statement to be true on this issue :

http://time.blogs.com/daily_dish/2006/09/bush_vs_powell_.html

By chance I bumped into Senator John Warner last night at the fifth anniversary party for the Chris Matthews Show. I was able to go up and shake him warmly by the hand and thank him from the depth of my heart for protecting this country's honor. He replied quite simply: "It's just the right thing for the country." The sight of so many Republican senators and one former secretary of state finally standing up against the brutality and dishonor of this president's military detention policies is a sign of great hope. It turns out there is an opposition in this country - it's called what's left of the sane wing of the GOP.

The problem with Democrats is that they always say "wait until we win mid-term elections". Well, that's not good enough. We need to act right now AS IF we are already the majority party, with full confidence and unblinking eyes. And quite frankly, tell the extreme left wing of the Dem party if they are Democrats (you know who I mean -- the ones who hate Israel and were against even going into Afghanistan) to shut the f*** up or they're going to lose us yet another election.

My language may be strong here, but I think it's time for some brutal honesty about this party. I am a newbie, an Independent, who decided to join the Democratic Party, and this is how I see it. It's not just the blogs either. Although I was thrilled to meet Dems in my city last week, the speaker, having given a nice inspirational speech, left behind a pile of vile lefty freeper newspapers, including the war on terror being called the so-called "war on terror". I will tell you NOBODY is going to vote for a party that doesn't "get" that we have real enemies out to kill us. If we can show with clarity that we do, then we can also show that we will stand up for principles that George Bush has completely trampled in his quest for power.

[beachmom]

1. Heh -- this makes me feel better -- thanks to Josh Marshall for

an excellent talking point to turn this in our favor:

"The president wants us to forget the mistakes he's made in Iraq. He says capturing bin Laden isn't a priority for him. And now he's off caught up in a fight with senators of his own party about which kinds of torture we should use. This president just can't or won't keep his eye on the ball. President Bush took his eye off the ball in Afghanistan when bin Laden was in our grasp because he wanted to hurry up and get into Iraq. And now he wants us to forget about Iraq because he doesn't want to take responsibility for all the mistakes he's made in Iraq. The American people have a choice on November 7th. If you think our country is going in the right direction, if you think Iraq is making us safer, vote Republican. If you've had enough and thinks it's time for a change, vote Democratic." -- quoted from a (fictional) congressional candidate.

http://www.talkingpointsmemo.com/archives/009807.php

I guess that's why he's paid for what he does, and I'm not.

[TayTay]

2. Because they are rebeling against their Party

Warner, Graham, McCain and Snowe, all by themselves do not hav ethe power to block this bill. They are powerful because a united Democratic front gives them enough votes to defeat this bill on the floor of the Senate. The Democrats oppose the use of torture and oppose amending or throwing away the Geneva Conventions that prohibit torture.

The news is that these Republicans are obstructing their own President and are preventing the Republicans from using this as a National Security issue to beat up on Democrats with in the fall elections. Don't just see the forest here, see the trees.

John McCain, whom the media is celebrating because he has 'made up' with the religious conservatives and is even taking money from SBVT people is preventing the President and the Republican Party from doing this. It is news. It is bigger news than the fact that John Kerry said on Hardball "There is no acceptable torture, period." Kerry has always been on the record as against torture. He is not the deciding vote. He is not pronouncing new things. The Repub dissenters are.

This bill to amend the Genevea Conventions was a Republican bill. It was proposed both to give the President legal coverage against being prosecuted for war crimes and as a means of painting Democrats as weak on security issues for the fall elections. Ahm, that is not working. It is a Republican story because, ahm, it is a Republican story. The Dems are the army behind McCain, Graham, Warner and Snowe. They can only do what they are doing because they can expect the filibuster to hold. (Not with overwhelming Republican votes, but with Democratic votes.) They ARE the story, they ARE the ones who changed.

The Democrats are against torture and against amending the Geneva Conventions. If Kerry changed his mind on this, it would be news. However, it's news because Repubs, who previously were scared of Bush and Rove, are no longer scared of them. That is news. That is different. That is 'off-script.'

[beachmom]

3. So what you're saying is the Democrats are the "silent majority"

They silently support what the rebellious Republicans have been up to, and with that power comes the unraveling of Bush's bill. Okay - maybe that's the truth, but I sure hope they get credit for it. Without the Dems nothing would have happened. Do you think any pundits are going to figure that out?

[TayTay]

5. They don't need to get credit for it.

This was a political move on the part of the Republicans. It was designed to embarrass their political opponents during a midterm election and result in the loss of Democratic seats in the United States Congress. That was the point. That was the whole reason for bringing this up in the precious last few weeks of the 109th Congress. This was a Rovian move intended to spread fear into Democratic candidates for Congress: back this bill or we will paint you as weak on defense.

It backfired. The Republicans, not the Democrats 'obstructed' this. The Democrats didn't even need to break a nail to win on this. The Republicans imploded and destroyed their own re-election strategy. It was a Republican plan and Republicans destroyed it. That's why it's news.

Please show me where any Democrat, besides Lieberman who is not a Democrat anymore, has spoken in favor of amending the Geneva Convention. Could it not be Repub spin to say that 'oh the Democrats have to have a plan on this and take this on.' Ahm, the Democrats have a plan. They call it obeying the Geneva Conventions. It was the Republicans who decided to play pure, vicious and cynical politics with this and got badly burned by their own.

When your enemy is drowning, hand him an anvil. The Democrats are perfectly happy to stand back and let the Republicans debate torture and whether or not being against Torture makes you weak. hehehehehehehehehe! This is not a Democratic issue, Dems do not believe in torture. This is a Republican issue cuz some of them believe torture is fine and dandy. It backfired.

[karynnj]

4. I agree with you

Here's more proof:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=2512080&mesg_id=2512080

This is a Fiancial Times article that McCain is risking his chance at the Presidency over this.

Although I think Kerry was fine on Hardball - and McCain has said nothing stronger than Kerry on torture, it is the Republicans who worked on the alternative - which the NYT in a great editorial has problems with that are like yours. Kerry is NOT on the Armed Services committee which was charged to work on this. This may be just like Alito where Kerry let the committee do their job before having his say and leading. (Although I would have loved Kerry stating ala the Dissent speech, that he was right to insist the US abide by the GC in 1971 and he's right now.

As this was worked on in the Senate Armed Service Committee, why have we heard nothing from the Democrats (Levin, Kennedy, Byrd, Lieberman, Reed, Akaka, Nelson, Nelson, Bayh, Dayton, Clinton). It seems strange that Feinstein would be the point person on this as she's not on the committee. Does she have a connection to these issues. (If you are selecting a point person outside the committee, there's a pretty good chice available - a tall guy who spoke on these issues before the Senate when he was 27 years old.)

I can see now where your concern comes from on the Klein/Sullivan nonsense. This should be Kerry's issue - he has as much claim to it as McCain. I also am more concerned about a bad (but better than Bush's ) bill getting Democratic votes when I see the names of the Democrats who voted this out of committee. They are some of the best. The real question is whether having voted it out of committee they will vote for it on the floor. I whope Kerry stays true to his principles even if he is quite loney doing so. No one who doesn't already hold his 1971 background against him would hold this against him.

[beachmom]

6. Oh, re: Feinstein -- I have no clue. Somebody said she was

Hold on, here it is:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=273x102546#102555

Tay said:

Sen. Feinstein is point on this for the Dems for the actual floor management of any bills changing American law.


A week ago, the pundits on the News Hour (Brooks and Oliphant) said the Dems were just going to stay on the sidelines, and let the Republicans fight over it. It appears they have stuck with this plan. Perhaps this is a case of parliamentary strategy that is beyond my scope of understanding. As Tay said upthread, I suppose it's a win for the Dems, because we're watching the Republicans have an eggfight. I guess it's like the social security strategy -- the Dems's strategy was just to say "no", with no alternate plan. Long term that is a bad idea, but short term it worked. Same here -- long term, letting Republicans do all the heavy lifting does not bode well for Dems, but short term, it is a "victory", however hollow victory is for staying out of a torture fight.

[Mass]

7. Once again, the Democrats are afraid of being labelled soft in defense.

So they let the Republicans do the job. Unfortunately, doing this, they promote the Republicans just before the election, which is a bad idea as their main criticism of the GOP is that they do not demand accountability from the administration. Now, they have to praise Republicans and make their arguments less powerful.

Compare to Kerry calling out the Republicans about their silence after Boehner's attacks on Democrats. Which do you think will help more in the elections?

Also, it is a bad idea for 08 as it promotes once again McCain as the maverick Republican who opposed the Bush administration. That will not exactly help the Democratic nominee in 08 if he has to fight against McCain. (once again, we will not fight Bush in 08 and, if the nominee is a Republican who is not very tight to the administration, the criticism of Bush will be less effective).

So, I agree with you. I certainly would have liked to see the Democrats speak out loud on these issues. I dont remember having heard anybody do that (the closest was Kerry's interview on Hardball, but even there, ...). And Reid the other day was praising the Republican Senators who were opposing Bush, rather than making clear that they were opposing it as loud as Mc Cain and Warner, but were not invited to the White House to talk about that.

[TayTay]

8. Fast forward the tape a second

Look at the debate on the Floor of the US Senate next week. Bill Frist rises and speaks to the need for Americans to not have their hands tied by regulations so that they can pursue our enemies and prevent terrorist attacks on both foreign and domestic soil.

Sen. Reid rises to speak: "I would like to commend my Republican colleagues for their BIPARTISAN support to uphold the US Constitution and our commitment to the international rule of law that prohibits torture. etc.

Sen. Durbin rises to speak: "I would like to commend my Republican colleagues for their BIPARTISAN support to uphold the US Constitution and our commitment to the international rule of law that prohibits torture. etc.

Sen. Kerry rises to speak: "I would like to commend my Republican colleagues for their BIPARTISAN support to uphold the US Constitution and our commitment to the international rule of law that prohibits torture. etc.

Sen. Levin rises to speak: "I would like to commend my Republican colleagues for their BIPARTISAN support to uphold the US Constitution and our commitment to the international rule of law that prohibits torture. etc.


And so forth and so on. All down the line. This legislation is in committee right now. It goes to the floor of the Senate next week. Anticipate the debate. Don't you see the political argument to come? It should be quite the week, set the recording devices to capture this. The Republicans are imploding over this. Get the popcorn and watch.

Pretend you are writing a Democratic speech and developing your argument for the cameras and the Senate debate next week. Tell me your arguments when this matter finally comes up for the Democrats. It is a Republican argument right now, and rightly so. They are the ones who proposed changing the rules. The Democrats did not. It is not their argument to change the rules. Let the REthugs defend it, fight over it and flail around in it. Then we can swoop in for the kill.

[beachmom]

12. I think Sen. Kerry should vote AGAINST the McCain bill, Tay

To be honest -- I just want this entire thing to fail. NO bill, until after the elections, which we will hopefully win.

Edited to add: SINCE Dems played little role in this, we are left with a bad bill. See what I mean? This is my beef.

[TayTay]

Democrats are not in favor of amending the law

to permit torture. The distinguished Senator from Massachusetts has made it a point of his entire political career to oppose this type of action. His 'bona fides' in Congress have to do with making the government own up to it's actions, honor it's laws and tell the truth to the American people. He would not be the Senator from Massachusetts without the strong background that made Massachusetts voters, including me, on at least 5 occasions in-state, vote for him.

Sen. Kerry said, "Torture is not an option, period." I fail to see where that is a nuanced or ambiguous statement. I also fail to see where, in the good Senator's public life, there has ever been an instance where he has backed torture or double-dealing by the US government. He has not backed this as overt policy and spent a good deal of time trying to get the US government to own up to what it did covertly that was morally and legally wrong. He has paid a hefty political price for this in the past and was even Swift-boated primarily because he once stood up, saw wrong and tried to right it. He is not the enemy here. The Republicans are.

The Democrats are not the bad guys here. The Republicans are. The idea of tarring the Dems as cowards because they are letting the Republicans debate the very idea of amending the law to allow torture is offensive. This is not a Kerry argument or a Democratic argument and it never has been. It is a Republican argument that the spin masters want to turn into a mud-fight. It's not working. I, for one, am happy that it is not working. I can't for the life of me figure out why anyone would want it to.

[beachmom]

18. Kerry did not vote for the McCain bill in committee; the other Dems did

Kerry is not on that committee, so he has not logged a vote -- I apologize if my original post is saying he voted for it, when he has not. But there is conventional wisdom out there that the McCain bill somehow doesn't allow torture, when the legal experts say it does. And all the Democrats voted for it out of committee! So they voted for it. It's in the record.

That was all I was saying. And also, a senator can vote something out of committee and then vote against it on the floor, right?

[TayTay]

21. An still lose. Because the Republicans control the Senate

which is the friggin point of having the Republicans come out against the Republican plan.

The Democrats can filibuster this and risk the 'soft on defense' label. Sens. Warner, McCain, Graham and Snowe have taken that weapon out of the hands of the Karl Rove, not matter which bill gets turned down.

That is the point!

[ProSense]

28. Sometimes

silence is golden! The Democats have a position: obey the Geneva Conventions.

[ginnyinWI]

14. but I've been wondering:

Why hasn't the fact that torture does not work been touted more often? McCain said it in Newsweek way last Spring, and a few others have sporadically--but it seems to me this is the single strongest argument for sticking with Geneva and not torturing. You get misleading information and increase hatred. A lose-lose proposition. Does merely saying this somehow make somebody weak? Or are there actual documented times that it has worked?

[beachmom]

15. Excellent point, GinnyinWI!

Not only doesn't it work, it leads to very bad, unreliable information, like "there are links between Saddam and al Qaeda". It also endangers our troops and like Kerry said, it hurts our moral leadership in the world, our most precious asset. It makes the world more dangerous, and us more powerless to deal with those dangers. Oh, I could go on and on . . . .

[beachmom]

10. Oh, and on top of it all, the McCain et al bill is still quite bad

I checked in with that Georgetown Univ. professor, and nothing has changed. The alternative Republican bill, although better than Bush's, still seems to allow some torture:

http://balkin.blogspot.com/2006/09/final-version-of-warner-mccain-graham.html

The so-called "final" version of the Warner-Graham bill, now dubbed the Warner-McCain-Graham bill on military commissions, can be found here. It is still a very bad bill, eliminating judicial review and habeas corpus, and limiting criminal enforcement of Geneva Common Article 3 under the War Crimes Act (apparently Geneva CA3 is still law, but only "grave violations" of Geneva are criminally enforceable). Additionally (p. 82), the new bill says that "no foreign source of law can be used in defining or interpreting" America's obligations under title 18 of the U.S. Code-- i.e., the U.S. criminal code, which would include, presumably, the War Crimes Act and the anti-torture statute.

But, this is quite remarkable in its pure evil:

But even this is not good enough for George W. Bush. Apparently the President has made noises that if he doesn't get provisions actually limiting the scope of Geneva Common 3-- also known as the right to "alternative sets of procedures" (the prisoner abuse that dare not speak its name)-- he will veto the bill. Let's see now, preventing stem cell research and protecting the right to torture-lite-- yes, I can certainly see why those are the two things sufficiently important in the world that George W. Bush would threaten a veto.

And then there is this post by Marty Lederman, chilling in explaining what is at stake:

Should the CIA be legally authorized to breach the Geneva Conventions by engaging in the following forms of "cruel treatment" prohibited by "common" Article 3(1)(a) of those Conventions?:

-- "Cold Cell," or hypothermia, where a prisoner is left to stand naked in a cell kept near 50 degrees, during which he is doused with cold water.

-- "Long Time Standing," in which a prisoner is forced to stand, handcuffed and with his feet shackled to an eye bolt in the floor for more than 40 hours.

-- Other forms of "stress positions" and prolonged sleep deprivation, perhaps akin to "Long Time Standing."

-- Threats of violence and death of a detainee and/or his family.

And later:

It's important to be clear about one thing: The question is not simply whether, in the abstract, it would be a good or acceptable idea for the United States to use such techniques in certain extreme circumstances on certain detainees. I happen to think that the moral, pragmatic, diplomatic and other costs of doing so greatly outweigh any speculative and uncertain benefits -- but that is obviously a question on which there is substantial public disagreement, much of it quite sincere and serious. Instead, the question must be placed in its historical and international context -- namely, whether Congress should grant the Executive branch a fairly unbounded discretion to use such techniques where such conduct would place the United States in breach of the Geneva Conventions. And that, of course, changes the calculus considerably. Does Congress really want to make the United States the first nation on earth to specifically provide domestic legal sanction for what would properly and universally be seen as a transparent breach of the minimum, baseline standards for civilized treatment of prisoners established by Common Article 3 -- thereby dealing a grevious blow to the prospect of international adherence to the Geneva Conventions in the future?

So what happens next, guys? Are BOTH bills going to the floor (Bush's and McCain's)? Despite the fact that all the Dems voted for the McCain bill in committee, it is abundantly clear (also from the NYT per Karynnj) that the Bush bill is plain godawful and the McCain bill merely bad. Any predictions on how Senator Kerry will vote? Given the problems with BOTH bills, I think he should vote nay on both. I don't think we know for sure at this time that he will vote against McCain's.

[sandnsea]

26. Come in from the ledge!

I don't know the politics of the Georgetown professor, but I do know there will always be someone somewhere who criticizes everything the US does. Being a bit scattered...

We can't forget this doesn't pertain to independent criminals - it is a group of non-state actors who have declared "war" on us and others. We do need to adhere to our values and the rule of law - but we also need to put it in context of war. I do think "rules of engagement" and the like are a bit different in war. Some people don't want to make any differentiation at all.

We also have to recognize that other countries would love to bottle us up in a moral debate about standards that they don't adhere to themselves. Use our morality againt us, so to speak. So I can understand the problem with allowing others to set our standards for us because they would certainly do it to create law against our troops while turning a blind eye or feigning innocence over the violent actions of citizens in their own countries.

It would be a lot clearer if we didn't have such monsters in office - but the laws have to be written for the long term, to try to reign in this crowd but also not tie the hands when we hopefully get a reasonable President in the future.

[beachmom]

30. What is your opinion of this, Sandnsea

This is another source that concurs with my first post (Andrew Sullivan regularly links to Marty Lederman, so I just don't think he's some kind of leftwing whack job) about the McCain bill. Do you think this is all justified (agreed we have to find a way to fight these people, but this seems a bit much):

http://obsidianwings.blogs.com/obsidian_wings/2006/09/hand_reporting_.html

* It would eliminate the right of any alien who is in US custody outside the US, or who "has been determined by the United States to have been properly detained as an enemy combatant", to file for habeas corpus.

*It would eliminate the right of any such alien to take any legal action against "the United States or its agents" concerning the conditions of his or her detention, other than to appeal the results of Civilian Status Review Commissions or military tribunals.

* Both of these provisions apply to all cases pending when the bill becomes law, which means that any of the cases currently wending their way through the legal system that haven't been resolved by that time become moot.

* It changes the definition of war crimes: currently, any conduct that violates Common Article 3 of the Geneva Conventions counts as a war crime; the draft bill changes this to "a grave breach of common Article 3".

* And it makes this paragraph from the Detainee Treatment Act applicable to any prosecution for war crimes involving violations of Common Article 3 after 9/11/2001:


"In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful."

Which basically means: if the government's lawyers said it was legal, and if a normal person would not have known that it wasn't legal, then the government and its agents can't be prosecuted for it. Given all the things the government's lawyers said were legal, this immunizes a lot of people for a lot of actions.

This is a terrible, terrible bill. What bothers me most is the denial of habeas rights. Denying the right to file for habeas corpus to all people detained outside the US, or who have been found to have been properly detained as an enemy combatant, means that virtually all detainees would have no legal recourse if they felt they had been unjustly imprisoned, or if their legal rights had been violated. As Katherine noted earlier, only ten detainees have been charged under military commissions so far. There are approximately 455 detainees at Guantanamo now; as of May, there were about 560 at Bagram, and who knows how many elsewhere. That means that even leaving aside the question of detainees who have already been released, in most cases after years of confinement, less than one percent of detainees face military commissions. This draft bill would strip the remaining 99% of any right to legally question the government's right to detain them.

[ProSense]

32. Here is a legal commentary:

John D. Hutson: Congress must right a wrong on treatment of detainees

By JOHN D. HUTSON
Your Turn, NH
Monday, Sep. 11, 2006

WHILE OUR lawmakers in Washington deal with many important issues, few are more vital to the American people and our values than the question of how we should resolve the fate of detainees held in Guantanamo Bay.

The subject is fueled by the recent Supreme Court decision invalidating the military commission system put in place by President Bush without meaningful consultation with, or authorization from, Congress.

New Hampshire's senators have the opportunity and obligation to address this question properly. It is an opportunity for the United States to deal from a position of strength, not weakness, and demonstrate to the world that we practice the very ideals that our young men and women are fighting so bravely to protect. I hope that Senators John Sununu and Judd Gregg will rise to the task.

How should Congress deal with the issue? Should lawmakers take a blank sheet of paper and a pen and create a new set of rules?

The answer is closer and much simpler than they might realize. On the bookshelf of virtually every U.S. military judge advocate sits a thick burgundy book. One sits on mine. The content of that book is the envy of every other nation's armed forces. It was created by Congress and has withstood scrutiny by the Supreme Court — the same court that found serious flaws with the President's commission system.

The book to which I refer contains the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM).) The UCMJ and the MCM already address the concerns raised by the Supreme Court when it struck down the military commissions President Bush put in place, and they comply with the Geneva Conventions.

As required by Common Article 3 of the conventions, they provide "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Now, some have advocated for a new set of rules that would avoid or modify our obligations under Common Article 3. Such a move is not only unnecessary, but it would endanger our brave soldiers. If we fail to respect the protections of the Geneva Conventions and take steps to circumvent it, we lose our moral ground to object should other countries follow our lead. We would create a scenario where an American soldier, captured by the enemy, would be subject to torture and a kangaroo court, with an unimaginable punishment.

Likewise, Congress must not simply act to authorize the military commissions the administration has put in place. Such a move would be a disaster. The Supreme Court has already found that system to be lacking in significant ways. The justices of the Supreme Court gave Congress and the White House a road map to follow. Failure to enact sound rules will only lead to another adverse ruling from the highest court in the land.

However, that is not to say the court-martial system as outlined in the UCMJ and MCM could not or should not be modified. Indeed, some basic steps are necessary to make the system applicable in the terrorism context. Fundamentally, Congress would have to grant itself jurisdiction in order to create a legally sound system for military commissions.

The War on Terror creates a unique environment where the Military Rules of Evidence may need to be adapted in some narrow and well-defined ways — not with the sea changes the administration is proposing.

Clearly, evidence resulting from any form of coercion should not be admissible under any circumstances. More broadly, Congress must not alter with our obligation of humane treatment.

In a resounding blow to the White House, lawmakers overwhelmingly adopted the McCain Amendment, barring cruel, inhuman and degrading treatment of prisoners in U.S. custody.

We must not retreat from the standards recognized by the civilized world. This is a debate about America and our values, not about the terrorists. It is a debate at the most fundamental level about whether we as Americans will continue to shine the light of morality into the darkest corners of the world, and even on our own shores.

The Supreme Court gave Congress the opportunity to right a wrong. Our lawmakers must reject the White House's call for a blank check to run amok and violate the most fundamental rules of war. Instead, Congress must create a system worthy enough for our soldiers to defend.

Retired Adm. John D. Hutson served as the Navy's judge advocate general from 1997 to 2000. He is president and dean of the Franklin Pierce Law Center in Concord.

http://www.unionleader.com/article.aspx?headline=John+D.+Hutson%3A+Congress+must+right+a+wrong+on+treatment+of+detainees&articleId=cc20d971-27e0-4862-978d-10aa0218a83f

[beachmom]

33. That's a good article

I don't think this new McCain bill does what the author wants, though. I guess I want to hear moderates' view of that bill, but I guess at this point, everyone is just focusing on the GOP fight and Bush's arm twisting of JAGs. We may have to wait a little longer.

Here is a post regarding an absolutely disgusting editorial in the WSF (surprise, surprise):

http://www.dailykos.com/story/2006/9/15/82413/2070

Really sick what goes on in these people's minds.

[ProSense]

36. Why doesn't it do what the author wants?

Bush's attempt to coerce the JAG lawyers is another legal matter, but it shows the lengths he's willing to go to cover his ass. I think the former Navy judge advocate general can offer one of the most objective views on the subject, and has. Whether or not the bill has changed since this article was written three days ago we'll see, but if it has, Ret. Adm. Hutson will be able to clarify.

[beachmom]

38. Oh, maybe I misunderstood. I thought he was only talking about

last year's McCain amendment. Pardon me -- where is the part where he says the CURRENT bill authored by McCain/Warner/Graham adheres with the manual?

[ProSense]

40. The issues being discussed

As required by Common Article 3 of the conventions, they provide "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Snip...

However, that is not to say the court-martial system as outlined in the UCMJ and MCM could not or should not be modified. Indeed, some basic steps are necessary to make the system applicable in the terrorism context. Fundamentally, Congress would have to grant itself jurisdiction in order to create a legally sound system for military commissions.

The War on Terror creates a unique environment where the Military Rules of Evidence may need to be adapted in some narrow and well-defined ways — not with the sea changes the administration is proposing.

Snip...

Clearly, evidence resulting from any form of coercion should not be admissible under any circumstances. More broadly, Congress must not alter with our obligation of humane treatment.

The Supreme Court gave Congress the opportunity to right a wrong. Our lawmakers must reject the White House's call for a blank check to run amok and violate the most fundamental rules of war. Instead, Congress must create a system worthy enough for our soldiers to defend.

Obviously there are two issued: how the tribunals are run and torture.

[sandnsea]

35. It's not that simple

"There are now close to 200 habeas petitions filed by enemy combatants requesting better mail delivery, more exercise, judge-supervised interrogation, Internet access and the right to view DVDs.

These lawsuits are undermining our ability to gain good intelligence and are placing federal courts in a role never before known in wartime."

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/05/AR2005120501926.html

Do you honestly believe we should let terrorists use habeas to circumvent ANY uncomfortable detention for the purpose of gaining intelligence? There may well be better ways to write the laws to address real abuses, but I don't buy into the notion that enemies of this country should have every Constitutional right granted citizens.

[beachmom]

37. It looks like this thing needs to get analyzed and picked apart

Like Mass said downthread, Dems are going to vote for this. I will be interested in Sen. Kerry's opinion (and will not be knee jerk critical if he votes yes for McCain) and his thinking about it. I simply don't have the legal mind to understand all the intricacies of this bill, but would like some assurance that it won't legalize torture or violate the Geneva Conventions.

[sandnsea]

39. Something more

On habeas in the current Detainee Treatment Act.

http://www.scotusblog.com/movabletype/archives/2006/01/first_court_act.html

[ProSense]

29. I've read the stuff a Balkin

This is all about the administration's interpretation of the amendment. The conclusion that it's bad is based on what they are saying is the interpretation attached by the adminstration. This is the same discussion they were having when the first torture amendment passed, even as Bush attached a signing statement to it. The administration's spin does not absolved them from being held accountable for violating the GC with a policy of torture.

[sandnsea]

9. *sigh*

I stick to what I said the other day - getting this right is more important than risking it turning into a partisan brawl. This nation is so polarized that Democrats can't even say they are working with Powell, Warner, McCain & Graham to get this legislation right. That's how bad it is and I don't think Andrew Sullivan doesn't know that. Spin comes in a lot of forms and not everybody knows they're being spun.

[TayTay]

11. This is just like the Social Security debate, which Dems won

The Democrats have a plan on Social Security. We call it, Social Security.

The Democrats have a plan on torture, we are against it.

Democrats did not propose amending the law of the United States to allow the CIA or other agencies to allow torture on captured prisoners. The Republicans did. Democrats have an argument: they are against torture. It's the Republicans who are proposing changing the rules. They want to draw the Democrats into a debate over national security and that sometimes you have to do terrible things in order to make Americans safe. The Democrats are not taking the bait, just as they didn't take the bait on Social Security.

We don't need a plan on this. We are against it. Period. This is a Republican debate. It generates headlines in the Washington Post that say, "President goes to Capital Hill to Lobby for Torture." It generates stories in the New York Times that begin:

An Unexpected Collision Over Detainees

By CARL HULSE

WASHINGTON, Sept. 14 — President Bush and Congressional Republicans spent the last 10 days laying the foundation for a titanic pre-election struggle over national security, and now they have one. But the fight playing out this week on Capitol Hill is not what they had in mind.

Instead of drawing contrasts with Democrats, the president’s call for creating military tribunals to try terror suspects — a key substantive and political component of his fall agenda — has erupted into a remarkably intense clash pitting some of the best-known warriors in the Republican Party against Mr. Bush and the Congressional leadership.

At issue are definitions of what is permissible in trials and interrogations that both sides view as central to the character of the nation, the way the United States is perceived abroad and the rules of the game for what Mr. Bush has said will be a multigenerational battle against Islamic terrorists.

Democrats have so far remained on the sidelines, sidestepping Republican efforts to draw them into a fight over Mr. Bush’s leadership on national security heading toward the midterm election. Democrats are rapt spectators, however, shielded by the stern opposition to the president being expressed by three Republicans with impeccable credentials on military matters: Senators John McCain of Arizona, John W. Warner of Virginia and Lindsey Graham of South Carolina. The three were joined on Thursday by Colin L. Powell, formerly the secretary of state and the chairman of the Joint Chiefs of Staff, in challenging the administration’s approach.

http://www.nytimes.com/2006/09/15/us/politics/15assess.html?pagewanted=print

Karl Rove baited a trap for the Democrats and then got caught in it. This is a Republican fight and rightly so.

Please tell me the names of the Democrats who are currently in favor of changing the laws of the United States of America to allow for prisoners of war to be tortured? That is a Republican argument, from head to toe, not a Democratic argument.

[beachmom]

13. I agree on the social security comparison

Except that there ARE financial problems that WILL come up in the distant future; it's simply that Bush's privatization plan would not solve that problem and it would have gutted the program.

Same with the torture bill -- we may "win" this round, but isn't our main concern to get the executive branch to adhere to the Geneva Conventions (which they're not) and follow the rule of law? If we stay out of this fight, and vote for McCain, then we win strategically but fail principally.

[TayTay]

17. No we don't.

The entire foreign policy of the Bush Administration is built on the platform that invading foreign countries is the right thing to do.

Democrats do not have this kind of foreign policy. We do not believe in invading foreign countries. We do not believe in that at all. Democratic foreign policy involves diplomacy and dialoguing with other countries to try and resolve our differences.

This would not come up in a Democratic Administration. It is a Republican issue. Social Security would come up and a discussion of how to fix the problem would ensue. There is no Democratic Plan to allow torture. None. Zero, zip, nada, it doesn't exist. Democrats do not believe in changing the Geneva Convention to allow torture. It is not a feature of Democratic foreign policy or defense strategy.

You are debating a negative.

[beachmom]

22. Question, then:

What's going to happen on the Senate floor? Maybe I'm having trouble visualizing this. We've got two bills:

Bush bill -- draconian bill legalizing torture
McCain bill -- fixes a few things, while leaving some draconian measures in place

What has happened so far?

McCain bill was voted out of committee. All Dems plus McCain, Warner, Graham, and Snow voted for it. Frist is going to bypass committee to bring Bush's bill on the floor.

So, how do you suggest Democrats vote? I say they should vote against both. No, it isn't their agenda (although I have heard that a law needs to be put in place to bring terrorists to justice, since it's a new thing -- or do you think that's not true), but they must log a vote, right? So that does make it relevant.

[TayTay]

24. The Democrats will vote against them

(Hmmmm, read Evan Bayh this morning, hmmmm.)

The Republicans expected to be able to whack the Democrats over the head with the issue and call them wussies. That particular club has been taken out of their hands by other Republicans.

The Republicans have innoculated the Democrats against the wussy charge.

[Mass]

31. I must have missed what Bayh said that make you think the Dems will vote

against it.

All I saw is Bayh once again claiming Democrats should not be weak on defense (I did not notice that the two last Democratic nominees were weak on defense, and anyway, this irked me because he is just pushing the GOP meme by saying that). For the rest, I did not see anything attacking the administration about this bill.

[Mass]

34. It seems clear that the Dems will vote for the McCain bill. They voted it

out of committee. The only people voting NO were Republicans who wanted Bush's bill.

Defense Senate Committee, which means Kennedy, Byrd, Levin... (though, like for the Graham's bill concerning tribunals for Guantanamo Bay, a few maverick Democrats may vote against him.) So the only question is to know to what point this bill is bad or not.

I cannot answer to this question, but I sure would like to know.

Ir seems clear that an overwhelming majority of democrats will vote against the Bush's bill, if it comes to the floor.

[sandnsea]

19. They gave our SSI away with their tax cuts

The same people who scoffed at the lock box or the ones who are buying into this right wing nonsense of there being nothing in the trust fund. We were supposed to be paying down debt so when it came time to REPAY what WE loaned with OUR FICA, there would be tax revenue to do that. They gave away OUR FICA and the right thing cheered while they did it. They spun it up good.

[sandnsea]

23. I get your point

You could be right in that Dems will vote against anything proposed here, but that's not my read right now. I'm gathering that Dems will generally support whatever McCain et al, come up with - provided it doesn't redefine the Geneva Conventions or violate our traditional legal and civil rights laws. So I can see an occasion where Dems would vote with Pubs on some sort of legislation, getting this right is critcal to the nation and the world. That was generally different from SS where Democrats just held the line - no privatization. I'm betting we're saying the same thing with different words.

[beachmom]

25. But McCain's bill is NOT right, that's the point.

You said this:

Dems will generally support whatever McCain et al, come up with - provided it doesn't redefine the Geneva Conventions or violate our traditional legal and civil rights laws


Legal experts are saying it's a BAD BILL. But I FEAR Dems will vote for it. And part of this problem was that Dems didn't participate in writing the bill. But maybe that's the right thing, that the bill was beyond repair. I don't know.

In fact, the social security debate is perfect -- NO, NO, NO -- they should just vote no on BOTH bills, and let the Republicans fight it out.

Edited to add: but from my original post, I would like to see a STRONG stance from Dems against this bill. Are they will to come out against McCain, too, though?

[sandnsea]

27. See #26

I don't know what they will do with the final McCain Bill - but I guarantee that no bill will come out of Congressthat doesn't have some legal expert saying it's a bad bill in one way or the other.

I'm really willing to let Republicans hash this out for now, and then get a good look when we have a final bill on the floor. Harry Reid has said that no bill that allows torture or secret prisons will pass, so I think they are working behind the scenes on this.

[ginnyinWI]

16. Kennedy and Durbin are stepping up!

see this thread: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x2144333

[beachmom]

20. Good for them! This administration is SICK indeed. n/t

[beachmom]

41. More political strategy analysis about this by Josh

He first suggests that we put the principle, of torturing, aside for a moment and take a look at this just in the realm of pure politics:

http://www.talkingpointsmemo.com/archives/009813.php

The aim here was to unite Republicans behind a bill and then force Democrats either to vote for or against -- demoralize the supporters of those who vote for and crush with 30 second ads those who vote against.

But if the White House actually gets tripped up in a fight with members of his own party over what kind of torture we should use, and that's the last legislative story out of Washington going into the election, that really seems like it would be a big disaster for the White House.

snip

The question is, Am I really supposed to believe that Republican senators are willing to hand their party leader that kind of reverse on the eve of a critical mid-term election? I have a hard time believing that's going to happen. And yet, who's going to blink?

A friend suggestst that President Bush will do what he's done before in similar cases -- fight up to the end, then embrace the opposition's position, repackage it as his own and declare victory.

The problem is that that's not necessarily enough for the president and his chaperone in this case to get an agreement with members of his own party. The whole point of this exercise, which is entirely political, is to pick a fight with the opposition. So the president needs to find a political sweet spot that guarantees agreement with senate Republicans and disagreement with most senate Democrats. This is the first thing to remember. Agreement, consensus is the last thing the president wants because then he loses his political cudgel.

The bold part is the key. Call me naive, but this is all NUTS! This is why I despise Bush so much -- so freaking cynical about EVERYTHING that he's even willing to play games with torture just to win a midterm election.

Now I am beginning to understand why Dems have remained quiet here -- they don't want to show their cards in this godawful parliamentary game. They want to deprive Bush and Rove of the "sweet spot", and the only way to do that is remain coy. It sucks, it really does. I guess this is just one more example of life for a party grossly in the minority -- you play the hand you're dealt. Meanwhile, the reputation of our country continues to go south . . .

[TayTay]

43. This is the biggest bunch of crass bastards to ever occupy

high political office. They have no qualms whatsoever about fundamentally changing the laws of due process because it would help them in an election.

This is the IWR vote all over again. Get Democrats into a politically difficult spot and then divide and conquer, with the aid of Democratic allies who sell-out in the name of phony bipartisanship.

Wait for the debate next week. It should be a goodie. I cannot imagine a Senator who has taken excruciating pains to include the words 'immoral' in every speech he has given since at least April of this year to remain silent on this.

[ProSense]

42. There is a political aspect to this, but mostly

it's Bush trying to cover his tracks:

Posted on Fri, Sep. 15, 2006

Answers to questions raised over plan to interrogate terror suspects

By Greg Gordon and James Rosen

McClatchy Newspapers

Snip...

Q: Did the U.S. treatment of captive al-Qaida members and other terrorism suspects violate Article III?

A: That remains to be seen. Bush insists that the United States "does not torture" but says CIA interrogators used aggressive, specially approved tactics to coerce suspected senior al Qaida operatives held at secret overseas prisons to cooperate. Published reports have said that some captives were put through simulated drownings, denied pain medication, deprived of sleep for days or forced to sleep naked on cold cement floors. A senior administration official, who briefed reporters under the condition of anonymity, said Friday, however, that the language in Article III is undefined and "hopelessly vague in certain respects."

The administration wants legislation to further clarify what Geneva Conventions violations are war crimes and what acts "in the gray area on the margins" would be prohibited.

Q: How do the president's bill and the legislation passed by the Senate Armed Services Committee differ over interrogation of detainees?

A: Both bills would amend the 1996 War Crimes Act, but in very different ways. Bush's bill would distinguish explicit offenses as constituting war crimes and bar criminal prosecution of CIA interrogators who used coercive tactics any time after Sept. 11, 2001. It would bar U.S. judicial enforcement of Article III of the Geneva Conventions. Instead, the administration wants to rely on the 2005 Detainee Treatment Act, which bars cruel, inhumane or degrading treatment of captives within the parameters of the Fifth, Eighth and 14th Amendments of the U.S. Constitution. Critics, including retired military lawyers, consider the change to be tantamount to a U.S. pullout from the international treaty and a downgrade of its protections for prisoners. The Senate bill, sponsored by Sen. John McCain, R-Ariz., Armed Services Committee Chairman John Warner, R-Va., and Sen. Lindsey Graham, R-S.C., isn't retroactive. It spells out nine activities that would constitute criminal conduct by interrogators, but would leave Article III enforceable.

Q: How do the two bills differ on procedures in proposed special military courts where the detainees would be tried?

A: Bush's bill would allow a military judge to prevent detainees from seeing, hearing or talking with their lawyers about highly classified evidence used against them. The Senate bill, by contrast, would allow the judge to dismiss charges if he found that the evidence was crucial for a fair trial but the government refused to declassify it. "The concept that somebody can be convicted on the basis of evidence they have never seen is foreign not only to our system of justice, but to any civilized system of justice," said Marine Col. Dwight Sullivan, chief defense lawyer for the detainees at Guantanamo Bay, Cuba.

Q: What other concerns have critics expressed about the proposed military tribunals?

A: Sullivan called a provision allowing hearsay evidence - where a witness need not be present for his account to be relayed to a jury - "an absolutely fundamental issue." Critics also complain that Bush's bill would bar detainees from challenging the constitutionality of the law, limiting them to contesting the fairness of trial procedures. Sullivan said the administration's bill "would replace the old, broken system with a new broken system," and he argued that the simple fix is to handle the cases as standard military courts-martial.

http://www.kentucky.com/mld/kentucky/news/nation/15530681.htm

On the political side:

Position on detainee trials comes at political risk for GOP senators