Defining Compromise: GOP Sticks It To The Dems genre: Just Jihad & Polispeak & Six Degrees of Speculation
I've got to hand it to the Democrats. The strategy of allowing the Republicans to "thrash out" their differences on the treatment and prosecution of detainees has played out exactly as planned...for the Republicans. Don't let anyone convince you that you can go to the well too often...that is if you are a Republican and your opponent is a fully inept Democratic Party.
Amidst a trend of favorable polling data and a firestorm of speeches by the President to refocus the voting public on their fear of terrorism, the Democrats stood in the background for the past two weeks and watched what the GOP will call the difficult work of creating legislation that preserves our commitment to civil liberties while at the same time providing our determined President with the essential tools needed to pursue those who seek to kill us all.
OK, perhaps I'm being too harsh. There is a possibility that in the past two weeks the Democrats were able to devise their sixth iteration of a campaign slogan and strategy to roll out with less than 50 days to the election. Perhaps they could call it "Fifty States, Fifty Days...But Never Fifty Percent"! It's catchy, it's succinct, and it may well be accurate come November 8th.
Enough with the sarcasm. Marty Lederman has a good article explaining the details (as much as we know at this moment) on the recently announced mea culpa between the White House and the Trojan horse triumvirate. I've included some key excerpts but follow the above link if you care to read the draft language.
Here's the language. It's not subtle at all, and it only takes 30 seconds or so to see that the Senators have capitulated entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. [UPDATE: I hear word that Senator McCain thinks the definition of "grave breaches" covers the "alternative" CIA techniques. I hope he can make that interpretation stick somehow, but on quickly reading the language, it still seems to me as if it's carefully crafted to exclude the CIA techniques. Also, some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.]
And then, for good measure -- and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation -- section 7 would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories." [UPDATE: I've heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that's so, it's not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]
If I'm right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.
Granted, this isn't final language and it would take some legal clarification to fully interpret the exact meaning, but at first glance it looks to be both vague enough to allow the President and his operatives the wiggle room they sought with regards to the treatment of detainees and detailed enough to allow the three amigos to assert that they were able to honor the important principles they sought to protect...a win-win for the GOP...a lose-lose for the Democrats.
In addition to the Lederman article, Digby also offers commentary on the political fall out here. I've included some excerpts below.
The Republicans are now standing shoulder to shoulder having worked this whole thing out --- they are strong, they are tough, they are moral, and they are willing to work together to form a compromise that they can all live with. Aren't they great? This is why we should vote Republican.
Here's how the optics look to me:
McCain, the Republican rebel maverick, showed that Republicans are moral and look out for their troops.
Bush, the Republican statesman and leader, showed that he is committed to protecting Americans but that he is willing to listen and compromise when people of good faith express reservations about tactics.
The Democrats showed they are ciphers who don't have the stones to even say a word when the most important moral issue confronting the government is being debated.
Unless the Dems ready to threaten to filibuster a national security bill a month before an election --- which I doubt --- I expect that the Republicans are going to rush this through the conference and force through this piece of shit bill in a hurry, just like they forced the AUMF through in October 2002 and give the republicans a big honking "victory" in the GWOT.
The Dems are all going to be twisted into pretzels and look like they have no backbones as they struggle with a united GOP saying that McCain and Huckleberry Graham made sure "the program" is moral and necessary. Vote for it for the terrorists. So they'll end up voting for it without getting any benefit from it.
I honestly think it would have been much, much better if they'd have forced their way into the debate and taken a firm stand -- if only to show they give a damn. This is a turn-out election and I have a feeling many a Democrat's stomach will turn as they see this triumph of GOP "leadership" in action. Why bother to vote when the Democrats don't bother to show up?
Clearly, the GOP has scored another victory with what I've previously called their counterintuitive approach to political strategy. Each time one of these faux fights plays out, they stake their claim to integrity, conviction, and leadership. Each time the Democrats wring their hands believing the GOP is finally unraveling...even though history tells us otherwise. At the same time, the voting public is left to wonder if the Democrats have a position on the issues other than opposing the Republicans...or if they possess enough leadership ability to be given majority control of the House or the Senate...or the presidency for that matter.
Hang in there friends, the battle isn't over yet...rumor has it the Democratic focus groups are in the process of testing slogans for the 2008 presidential election. Honestly, if the Democrats don't take back the floor and start framing the issues, we will once again be left with our all too familiar meme..."We'll get them next time".