Listening to today’s floor debate in the Senate on Bush’s detainee bill, and reading various commentaries and analyses, I keep hoping to find that one summary that will magically help the nation understand that the legislation under consideration isn’t just another piece of right-wing nonsense, it’s an assault on our democracy. It’s literally offensive. It’s that bad.
But there is no magic bullet. Worse, for Senate Republicans, they’re embracing this legislation with eyes wide open. This isn’t an instance in which, years from now, embarrassed lawmakers will look back and say, “I just didn’t realize what a mistake it was.” They know what the bill does, they recognize the ways in which it undermines our values and system of government, and they’ve decided that it simply doesn’t matter. They’re doing it anyway.
In fact, as it turns out, “eyes wide open” is probably an ironic metaphor. As Slate’s Dahlia Lithwick explained, lawmakers are going to approve legislation that intentionally keeps their eyes shut.
For the five years since 9/11, we have been in the dark in this country. This president has held detainees in secret prisons and had them secretly tortured using secret legal justifications. Those held in secret at Guantanamo Bay include innocent men, as do those who have been secretly shipped off to foreign countries and brutally tortured there. That was a shame on this president.
But passage of the new detainee legislation will be a different sort of watershed. Now we are affirmatively asking to be left in the dark. Instead of torture we were unaware of, we are sanctioning torture we’ll never hear about. Instead of detainees we didn’t care about, we are authorizing detentions we’ll never know about. Instead of being misled by the president, we will be blind and powerless by our own choice. And that is a shame on us all.
Indeed, it is. Today’s vote is happening with our consent. The administration’s conduct will be done in our name. When Lithwick describes this tragedy as a “shame on us all,” she means that quite literally.
Dan Froomkin is asking all the right questions.
Today’s Senate vote on President Bush’s detainee legislation, after House approval yesterday, marks a defining moment for this nation.
How far from our historic and Constitutional values are we willing to stray? How mercilessly are we willing to treat those we suspect to be our enemies? How much raw, unchecked power are we willing to hand over to the executive?
That last question is of particular significance today in light of the partisan breakdown of today’s debate. Republicans — the party of small, limited government — are giving the president extraordinary, extra-constitutional power. But it’s probably worth keeping in mind that it’s not just a static action; Congress is now expanding the power of the presidency, not just the president.
As Kevin put it, “I wish conservatives could back away for a few minutes from their fear of breaking with a president of their own party and ask themselves if they want any president to have this power. The constitution is there for a reason, guys, and a day is going to come when you wish you hadn’t gutted it.”
But gut it they will. As soon as the president puts his signature on this monstrosity, he (and his successors) will have the power to define what torture is, label people unlawful combatants and detain them indefinitely, discard a centuries-old commitment to habeas corpus, and use evidence obtained through torture in trials in which the defendant will not have access to the evidence against him.
As 609 law professors said in a joint statement to Congress:
“Taken together, the bill’s provisions rewrite American law to evade the fundamental principles of separation of powers, due process, habeas corpus, fair trials, and the rule of law, principles that, together, prohibit state-sanctioned violence. If there is any fixed point in the historical understandings of constitutional freedom that help to define us as a people, it is that no one may be picked up and locked up by the American state in secret or at an unknown location, or without opportunity to petition an independent court for inspection of the lawfulness of the lockup and of the treatment handed out by the state to the person locked up, under legal standards from time to time defined by Congress. This core principle should apply with full force to all detentions by the American state, regardless of the citizenship of detainees.”
Yes, it should, but after today, it won’t. It’s an American tragedy.