The blind leading the willing.

The law, lawyers, and the court.
Sept. 27 2006 6:11 PM

The Blind Leading the Willing

A compromise between those who don't care and those who don't want to know.

Is it still called a compromise when the president gets everything he wanted?

A major detainee bill hurtling down the HOV lane in Congress today would determine the extent to which the president can define and authorize torture. The urgency to pass this legislation has nothing to do with a new need to interrogate alleged enemy combatants. The urgency is about an election.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.


Last time Congress rubber-stamped a major terrorism-related law no one had bothered to read in the first place, we got the Patriot Act. That alone should lead us to wonder whether there shouldn't be a mandatory three-month cooling-off period whenever Congress enacts broad laws that rewrite the Constitution.

The White House version of the detainee bill met with some resistance among ranking GOP members of Congress last week, but not enough to matter. And now, with a "compromise" at hand, nobody seems to agree on the meaning of the bargain we've struck. Sen. John McCain still believes that he's won on the bedrock principle of U.S. adherence to the Geneva Conventions. The Bush administration sees it as granting the president the authority to decide what Geneva really means.

That led to all the confusion last Sunday, when, appearing on Face the Nation, McCain claimed that the current bill "could mean that … extreme measures such as extreme deprivation—sleep deprivation, hypothermia, and others would be not allowed." This, on the same weekend that the editors at the Wall Street Journal crowed: "It's a fair bet that waterboarding—or simulated drowning, the most controversial of the CIA's reported interrogation techniques—will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster." So, what did we agree to? Is hypothermia in or out? What about sexual degradation or forcing prisoners to bark like dogs? Stress positions?

I'd wager that any tie goes to the White House. One hardly needs a law degree to understand that in a controversy over detainee treatment between the executive and legislative branches, the trump will go to the guy who's holding the unnamed detainees in secret prisons.

That brings us to a second stunning aspect of the so-called compromise: Not only do our elected officials have no idea what deal they've just struck, but they also have no idea what they were even bargaining about. In his Face the Nation interview, McCain revealed that he was in fact quite clueless as to what these "alternative interrogation measures"—the ones the president insists the CIA must use—actually include. "It's hard for me to get into these techniques," McCain said. "First of all, I'm not privy to them, but I only know what I've seen in public reporting."

Asked whether he had "access to more information about this than any of us because you've been in the negotiations," the senator was not reassuring. He knows "only what the president talked about in his speech." To clarify: McCain, the Geneva Conventions' great defender, is signing off on interrogation limits he knows nothing about. And so, it appears, will the most of the rest of Congress.

But that's not all. Congress doesn't want to know what it's bargaining away this week. In the Boston Globe this weekend, Rick Klein revealed that only  "10 percent of the members of Congress have been told which interrogation techniques have been used in the past, and none of them know which ones would be permissible under proposed changes to the War Crimes Act." More troubling still, this congressional ignorance seems to be by choice. Klein quotes Sen. Jeff Sessions, the Alabama Republican, as saying, "I don't know what the CIA has been doing, nor should I know." Evidently, "widely distributing such information could result in leaks."

We've reached a defining moment in our democracy when our elected officials are celebrating their own blind ignorance as a means of keeping the rest of us blindly ignorant as well.



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