The McCain-Graham-Warner proposal concerning military commissions was, from the beginning, an awful bill that was quite radical in its own right. As but one example, the senators' proposal strips all detainees in American custody of the right of habeas corpus, meaning that detainees are denied the right to challenge in court either the validity of their detention (e.g., by proving that they are not terrorists) or the legality of their treatment (e.g., by demonstrating that they have been tortured).
This denial-of-judicial-access provision means, as Yale law professor Jack Balkin explained, that the military can imprison, and torture, a detainee forever without ever bringing the detainee before a military commission, and the detainee has no means at all to challenge his detention or the treatment to which he is subjected. It is difficult to imagine a more radical power to vest in our government than the power to detain people (including legal residents in the U.S.) forever, and to torture them, while expressly denying a detainee all legal recourse. Yet that is exactly what the McCain-Graham-Warner proposal (and the White House's proposal) provides.
But virtually no attention has been paid to this radical and wildly unjust provision, because as bad as the McCain-Graham-Warner proposal is, the president's was slightly worse. And by masquerading as the principled opponents to a handful of the most extreme provisions in the president's proposals, these "dissident Republican senators" were depicted as the moderates in the debate, as the reasonable, serious thinkers who would carefully balance the need for strong antiterrorist measures with the need to safeguard our basic liberties.
As a result, any solution that these senators ultimately blessed -- including "compromise" legislation that gives full-throated legal authority to the president's torture program -- was deemed in advance to be the moderate, balanced solution to all of our problems, a solution that only soft-on-terrorism, unserious liberal-radicals would oppose. And with those distorted premises in place, a legislative "compromise" that is unquestionably a profound departure from American law and our national principles is viewed as the "moderate" and "reasonable" outcome.
Last week, the blogger Digby predicted precisely this outcome and, in doing so, described the inescapable trap it imposes on those who recognize just how extremist the proposal touted by the "moderate" senators really is: "But what in the hell are the Dems going to do if McCain makes a deal and this thing gets to the floor? Are they actually going to vote for a bill that eliminates habeas corpus for terrorist suspects? Because if they don't, you know what the Republicans are going to be saying, don't you? After all, the saviors of the republic and guardian knights of the constitution say this bill is ok. The only reason the Dems can possibly have for opposing it now is that they are terrorist loving cowards."
This same deceitful tactic is virtually certain to reappear in the debate over the various pending legislative proposals designed to legalize the president's illegal, warrantless eavesdropping on Americans. The eavesdropping bill sponsored by Sen. Arlen Specter, in collaboration with the White House, is one of the most pernicious and radical pieces of legislation we have seen in the past five years (at least), for reasons I have set forth at length here and here. As a result, substantial attention has been paid to that bill, and Sen. Harry Reid vowed, in a conference call with bloggers last week, that Democrats would not allow the Specter bill to pass under any circumstances.
But the understandable focus on the incomparably dangerous Specter bill has obscured the fact that there are competing bills sponsored by "independent, dissident Republican lawmakers" that are only slightly less horrible than the Specter bill but still radical and destructive in their own right. Competing bills by Sen. Michael DeWine and Rep. Heather Wilson, for instance, would vest in the president the power to eavesdrop on the conversations of Americans without judicial oversight or approval of any kind.
The parallels with the torture debacle are obvious. The torture controversy arose because the president wanted to use techniques of torture to interrogate detainees, and he proposed an extremist piece of legislation to accomplish that. Republican senators flamboyantly opposed that legislation -- thus bestowing themselves with "moderate" credentials -- but introduced their own slightly less extremist proposal that accomplished the same thing (legalizing the torture techniques).
Identically, the National Security Agency scandal arose because the president wants to eavesdrop on Americans with no judicial oversight of any kind, and he proposed an extremist piece of legislation (the Specter bill) to accomplish that. Republican lawmakers are flamboyantly opposing that legislation -- thus bestowing themselves with "moderate" credentials -- but have introduced their own proposals that accomplish the same thing (legalizing warrantless spying on Americans).
In each instance, Republican lawmakers are advocating a radical outcome that vests extraordinary powers in the president. But because their legislative approach for achieving that end in each case is slightly less radical than the president's, the media depicts their proposal as moderate and mild. Meanwhile, the Democrats are silent, invisible and completely absent from the debates, which means that the full range of views is marked by the president on one end and right-wing Republican senators on the other end (only millimeters away from the president), with the "middle" being as close to the president's position as one can get without embracing it in full.
Vesting the power in the president to eavesdrop on Americans without warrants is -- like torture -- an extremist position. The country overwhelmingly rejected that power in 1978 when it enacted the Foreign Intelligence Surveillance Act by a vote of 95-1 in the Senate and almost as overwhelmingly in the House. But now, it is that view (that the president should be permitted to eavesdrop on Americans only with judicial oversight) that will be depicted as the radical view (largely because nobody in the debate is actually advocating it).
For the same reason, legislation to legalize the president's warrantless eavesdropping program will be depicted as moderate and reasonable because the moderate, reasonable Republican lawmakers who oppose the Specter bill are the ones advocating it. It's a great trick that worked very well -- to perfection, really -- to obtain for the president the power to torture, and it is guaranteed that it will be used again to obtain for him the power to eavesdrop on our conversations without judicial oversight of any kind. Do Democrats have any strategy at all for derailing this tactic? The answer to that seems depressingly clear.
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