Slate's Bizbox
jurisprudence: The law, lawyers, and the court.

The Blind Leading the WillingA compromise between those who don't care and those who don't want to know.

By Dahlia Lithwick
Posted Wednesday, Sept. 27, 2006, at 6:11 PM ET

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.

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.

Over at the National Review Online they exult that the CIA torture program isn't just the president's project anymore. "Now it is just as much the program of Congress and of John McCain." Not quite right. Now it's the president's program that John McCain chooses not to know about.

And just to be completely certain, Congress is taking the courts down with it. No serious reader of the detainee-compromise bill can dispute that the whole point here is to sideline the courts. This bill immunizes some forms of detainee abuse and ignores others. It strips courts of habeas-corpus jurisdiction and denies so-called unlawful enemy combatants (a term that sweeps in citizens and noncitizens, Swiss grandmothers and Don Rumsfeld's neighbor if-that-bastard-doesn't-trim-his-hedge) the right to assert Geneva Convention claims in courts. Many detainees may never stand trial on the most basic question of whether they have done anything wrong. And courts will apparently now be powerless to do anything about any of this.

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.

Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Dahlia Lithwick is a Slate senior editor.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

Remarks from the Fray:

It seems clear by now that this is a carefully choreographed dance, repeated again and again: Bush engages in some outrageous policy, or proposes some outrageous legislation, concerning the War on Terror. A few high-profile Republican senators—usually McCain, Graham, Warner and Specter—voice strong opposition and garner loud praise from the media. A week or two later there is the big announcement: a compromise has been reached!

But the compromise inevitably is virtually identical to Bush's initial proposal. The difference between the non-compromise and the compromise is that the media, having just invested so heavily in the canonization of the brave, courageous, selfless, Republican-senator heroes, happily bills the final choreography as a compromise.

The newspaper headlines scream: COMPROMISE. Actually, they should scream: RUBBER STAMP. […]

If the meaning of the Geneva Conventions and other laws is nothing more than whatever the leader of a government or international movement says they mean, they mean nothing at all. The members of the media could explain that that is what Bush wants and that that is what the compromise does. Or they could at least not call these intricately orchestrated ballets anything but what they are. What they are, of course, are frauds. And the media is complicit in them.

--TheSavant

(To reply, click here.)

Sadly, this turn of events is to be expected. The writing has really been on the wall for some time. I can recall about two weeks after 9/11 some U.S. Senator (can't recall the name, an elderly looking chap) was talking on a news-show about the "sentiment on the hill." I found his position disturbing, to say the least.

The commentator was asking about all sorts of things, from the U.S. using chemical weapons to just this sort of thing, torturing "detainees."
The senator began with a rather blustery but weak disclaimer about the U.S. having this great tradition of law and high moral standards. He then said that this sometimes got in the way of "getting things done" and that this clash would be resolved -- not by open democratic debate - but rather by secrecy and subterfuge.

I can recall him sputtering that Congress would "never approve" of some of these measures, but that "*somone* will have to do it" and that "it will just have to get done", etc. etc. Willful ignorance is what he was preaching. Don't bother me with the dirty details, just take care of it. And there are always plenty of people willing to "take care of it", for a price, and then some.

Sadly, this kind of attitude precisely reflects ones held in states like early Nazi Germany or early Soviet Russia. The terror of the executive branch is held out as a necessary and even desirable thing. The brave torturers are doing what "needs to done" - consequences be damned, in order to protect us. We not only don't want to be told what is going on, but we forbid ourselves being told (state secrets!).

On the whole, the Weimar legislature probably *loved* the emergency powers given the German executive. It excused them from having to vote on controversial or divisive issues. No need to take a risky/messy stand when 'der fuhrer' would simply mandate policy - if often in secrecy. Thus, Hitler came to power in a constitutional (if not exactly democratic) fashion. After it was the only way to beat the communists - and the only way for Stalin to beat the capitalists - and the U.S. to beat the terrorists? I'd suggest it's a road better not taken.

--fozzy

(To reply, click here.)

(9/28)

Washington Post
The Washington Post
OPINIONS
A Grand Tour
David Broder | While the stars align for Obama, McCain is looking like the odd-man-out on foreign policy.
Annette Heuser: A Honeymoon
PLUS » Achenblog: The New Capitalism Socialism