A World Beyond The Law

by hilzoy

In my last post, I asked the question: why are Lindsey Graham and the administration so eager to strip detainees of their legal rights? I considered various arguments that they have advanced, and as far as I can tell, they don't really hold up. Detainee cases are not clogging the courts, and while they might interfere with interrogations by, for example, breaking detainees' isolation and giving them a ray of hope, they do not in any way make it impossible for those interrogations to continue.

So why are they doing this? Everyone has probably figured this out long before I did, but: I was thinking of the habeas-stripping provisions from the point of view of a detainee, who might wonder: what legal recourse do I have if this bill goes through? How can I protest my detention if, for instance, I have been found innocent but not released, or if I have been tortured? The answer to that question is, as far as I can tell, 'you have no recourse'; and that horrified me.

But then it occurred to me to think of it from a different angle: from the perspective of the system of extraterritorial prisons that we seem to be setting up. From that point of view, the main question raised by the "compromise" bill (pdf) is a different one, namely: who has the right to question, in a court of law, any aspect of our treatment of alien combatants held outside the US? As far as I can tell, with very limited exceptions, the answer to this question is: no one but the very same government that set the system up in the first place.

This means, basically, that this bill will remove the entire system of detention, with the exception of its military commissions and combatant status review tribunals, from any judicial oversight at all.

Courts do not get to decide for themselves to investigate some activity that they suspect might violate the law. In order for a court to consider the question whether something is lawful, someone has to bring them a case that raises that question. By preventing anyone but the government from bringing any such case, this bill ensures that unless the government decides to bring one itself, no case that would give the courts a reason to consider anything that goes on during a prisoner's detention and interrogation can ever be brought. Which is to say: it removes the entire system of detention, except for its military commissions and CSRTs, from any judicial review. Literally anything could be going on during interrogation and detention, and the courts would have no way to pronounce on its legality, or to require anything to change.

To see why, consider some sections of the "compromise bill". First, it would add to the statute governing habeas corpus the following provision:

"(c)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who --

(A) is currently in United States custody; and

(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who --

(A) is currently in United States custody; and

(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (p. 82)

(Note: paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005 basically say that courts can hear cases brought by alien detainees only if those cases allege that their civilian status review board or military tribunal did not follow their own rules, or that those rules are not themselves consistent with the laws or the Constitution.)

This applies to all cases pending when the bill becomes law, and of course to any that are filed thereafter. What it means is: no alien detained by the US can file any civil suit about anything other than: whether his tribunal or commission followed its own rules, and whether those rules are legal or constitutional. Specifically, they cannot file suits alleging that they have been tortured during detention, that war crimes have been committed against them, that their rights are being interfered with outside their commission or tribunal, or anything else of the kind. Nor, if their commission or tribunal has found them innocent but the government does not release them, can they protest their continued detention in court.

Basically: no civil suits relating to the conditions in which detainees are detained or interrogated are allowed by this law. Civil suits can be brought by private individuals. Criminal charges, on the other hand, can be brought only by the government. By preventing detainees from bringing civil cases based on the conditions of their detention and interrogation, this bill prevents anyone other than the government from bringing those conditions to the attention of the courts. In so doing, it leaves the question whether the courts will ever have occasion to consider the conditions and practices in extraterritorial detention facilities entirely up to the very same government that instituted those conditions in the first place.

Specifically: the "compromise bill" bans certain forms of torture. As Marty Lederman and others have argued, it defines torture much too narrowly. However, even if its definition of torture were absolutely impeccable, ask yourself this question: how, exactly, would it be enforced? How could the Courts even take cognizance of any torture that might be going on, given that any habeas claim, and "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States" is prohibited?

As far as I can see, the answer is: unless the government brings criminal charges against someone, it couldn't. We could be waterboarding every single detainee every single day; we could be pulling out their toenails with pliers; we could be beating every one of them to a pulp, or asphyxiating them, or sending serious electric currents through their genitalia, or keeping them awake for weeks on end until they became psychotic, or running them over with trucks, and the courts would have no way to stop it.

In any other context, creating such a system would strike us as ludicrous. It would be crazy to set things up in such a way that the question whether the court could take cognizance of an act of recklessness or negligence, or a crime like bank robbery, were left up to the person who had committed it. "Hmm", one imagines someone whose reckless indifference to human life lead to thousands of deaths thinking to herself, "should I allow the courts to look into my conduct, and possibly sanction me? Gosh: what a tough question!" "Heavens," a rapist might add, "I am equally baffled by the question: should I allow the courts to take cognizance of my forcing people to have sex with me? What a conundrum!" And while they were sitting around scratching their heads, their actions would remain entirely beyond the law.

There's no reason I can think of why this should be different. Even if we knew that the present government scrupulously obeyed the law, it would be a terrible mistake to give the government, for the foreseeable future, the power to decide whether the courts could ever consider the conditions in which thousands of people were detained. In the case of this administration, however, it would be insane.

We know that this administration has consistently interpreted the laws governing detention to permit as much as possible. We also know that it takes the position that it has the right to break laws at will. (Article 2 powers, doncha know.) We know that it has a record of abusing detainees, and that in some cases they have tortured people to death. Why on earth would we want to let them completely remove their detention program from any judicial oversight?

***

Sandy Levinson writes:

"One of the first things contemporary law students learn is that one cannot separate "rights" from "remedies." This basically goes back to Oliver Wendell Holmes' argument, made most concisely in "The Path of the Law" (1897) that a "bad man" interested in knowing what "the law" is will be concerned not with "the law on the books" (Roscoe Pound's term), but, rather "the law in action" (ditto), which means, practically speaking, a "prediction" that the iron fist of the state, usually operating through courts, will be brought to bear if the "bad man" violates the law. If there is in fact no iron fist, then, for the "bad man" at least, there is no law, for there is no cost at all to violating it and the "bad man," by Holmesian definition, is a pure Chicago-type economist concerned only with calculation of costs (the "payment" exacted by the state) and benefits (the gains for one's actions)."

The "compromise bill" defines torture much too narrowly, and it inexcusably allows the President to decide what many of its prohibitions actually mean. But those rights it does create are virtually meaningless, since it not only fails to provide any remedy to those whose rights are violated; it goes to great lengths to ensure that no remedy is available to them. Especially in the hands of the Bush administration, its "protections" are not worth the paper they are printed on.

Levinson goes on to ask:

"So are we on our way toward an American version of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did?"

He then considers whether it's appropriate to compare the Bush administration to the Nazis. He answers 'no', as I would. But that concerns the question: would we be likely to use the sort of structure Fraenkel describes in ways that are comparably awful? Would we, for instance, embark on genocide? Presumably not.

But if we restrict ourselves to the much more straightforward question: are we, in fact, on our way to creating the sort of structure Fraenkel describes?, we don't need to get into those questions. We can say that we, like the Weimar Republic, have a legislature, without having to get into the question whether we and they have used our legislatures in the same ways. Likewise, we can ask whether we are on the way to creating a dual state, "in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy", without implying anything about whether, if so, we are likely to use it the ways the Nazis did. This is a simple question of legal structure*.

As far as I can tell, the answer to the question whether we are on the way to creating a dual state is: yes, and if the "compromise bill" passes, we will actually have arrived. We will, in fact, have two legal worlds: our world, in which people have legally enforceable rights, and the shadow world of the detainees, in which literally anything can be done with impunity, and there are no courts to appeal to.

A country that contains such a shadow world is not the country I love. And this bill is unworthy of my country.

You can find your Senators' contact information here, and your Representative's information here (enter zip code at top left.) Call them and let them know how you feel. This is not partisan; it's about whether or not we live under the rule of law, in a country that cares about basic justice.

***

* In saying that the question whether we have a dual state is a simple question of legal structure, I don't mean to imply that having such a structure wouldn't, in all likelihood, lead very bad things to happen. I only mean to distinguish the question: do we have that structure? from the quite different question: are we as bad as the Nazis? so that I can say 'no' to the second, and get back to the first.

Having a legal structure that's a standing invitation to torture is quite bad enough. Getting into questions about whether we're as bad as Nazis just makes it easier to overlook this while we congratulate ourselves on the dubious achievement of not being as bad as one of the worst countries in history. I am not interested in stupid comparisons; I care a lot more about trying to figure out how we can be the best country we can possibly be, and what I can to do help us get there.

Comments

[Anarch]

Your answer is far more eloquent and detailed than my original one, but I think they boil down to the same thing.

Why are they doing this? Because they can.

[russell]

I see a couple of reasons.

On principle, Bush, Cheney, and their advisors appear to be believe that, as a function of their office, they should be bound by no restriction, and should be accountable to no one. This is just one of many efforts they've undertaken over the last few years to make that dream a reality.

As a practical matter, Bush would like to make things, illegal things, that he has already approved or that have been done in his name, legal, so that he and his friends will not face legal action and possible imprisonment.

Nothing whatsoever is more important to them than that they consolidate and retain power, and that that power not be limited in any way. If you think that's an overstatement, I'd be interested to know why.

If they could achieve that goal without having to go through the annoyance of the legal process, I have no doubt that they would. Fortunately, so far it hasn't come to that.

Anarch -- actually, they can't. The only reason it seems like they can is because noone will stand up to them. It would, actually, take damn little to stop them. All that is required is for others to say "No".

What are they going to do, declare martial law? Disband Congress? Imprison judges? I don't think they have the nerve to try. They will push this crap for exactly as long as noone makes them stop. The means are there to do so.

Say "no". It's your country.

Thank you

[hilzoy]

russell: this bill is, as far as the detainees go, as bad as martial law. Possibly worse, because it only affects them, making the rest of us less likely to get up in arms about it.

Again: if this passes, they could waterboard every detainee every day from now until eternity, and unless the government itself decided to press charges, there would be no way to get this to court.

Unless, of course, I could get standing to sue on the grounds that no longer living in a country that respects the rule of law harms my sense of justice.

[dmbeaster]

Denying courts jurisdiction as a weapon to prevent legal scrutiny is an old Republican fetish. It has floated around since the early days of the abortion controversy.

And it is entirely right to point to Holmes' comment that the denial of a remedy is the functional equivalent of eliminating the laws in question. It is pointless to have laws that cannot be enforced.

US Constitution, Article III, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

From Article III, Section 2

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The argument is that since Congress can create inferior courts at its pleasure and define the appellate jurisdiction of the supreme court, it can simply eviscerate most of the federal court system. Don't like the laws but lack the power or political will to delete them? Them wipe out the remedy, and pretend that you still respect the law.

Republicans -- the Party of Ideas.

[bob mcmanus]

Neither Founding Fathers nor the Post-War Consensus relied on the intrinsic good nature of people to protect them from themselves. They probably did rely on a certain percentage of the people being good enough.

"Not as bad as the Nazis" does seem to rely on our intrinsic good nature, and Bush and his gang never stint in telling us how good we good guys, or a least a portion of us, are.

The question is not "Are we as bad as the Nazis?" The question is, or should be, "Are the institutions in place willing and capable of preventing Nazi-like, or some lesser bad, actions and policies."

Bush is telling us that we don't need no stinking institutions, because "we" are not as bad as the Nazis. He could be right. But it doesn't matter, because the institutions are impotent and pointless anachronisms.

I would die for those institutions. But that doesn't matter, for I have no institutional tools and weapons with which to resist. "With what army?" say my liberal friends, laughing at me as their enemies torture. They are correct.

Liberal democracy and institutions cannot defend themselves from authoritarian revolution. We are in a world beyond the law.
Choose a gang, bloods or crips, Sunni or Shia. But don't try to call the cops.

[Gary Farber]

Linked here.

[Anarch]

Anarch -- actually, they can't. The only reason it seems like they can is because noone will stand up to them. It would, actually, take damn little to stop them. All that is required is for others to say "No".

I completely agree. And that's the point: because no-one is saying "No", they can -- so they are.

[Were I too have amplified I'd've said something similar to what you said in your post so I think we're just focussing on different facets here.]

[Anarch]

I should add, incidentally, in re Hilzoy's earlier mention of the Nazis, that exactly the same thing was true of the Nazi Party in the 20s and early 30s: all that was required was for the right people, or just enough people, to say "No". They could have been stopped at almost any time -- up to the remilitarization of the Rhineland (possibly even later), but also as early as 1923 -- had people simply said "No." It's because no-one did that the Nazis became what we think of today.

I'm not saying that the aspirations of the Bush administration are anything like those of the Nazis; as near as I can tell, they're not (at least in any meaningful way). I do think, however, that this ceaseless desire to destroy all things which stand between them and the unrestrained exercise of their will is common to both, as is a certain craven love of bullying. I strongly hope that either the right, or enough, Americans stand up against them and say "No" but at this point I'm no longer holding my breath.

I will, however, be calling my Senators on Monday and telling them that if either refuses to filibuster this bill they will lost my vote forever. It ain't much, but it's what I can do.

[John Thullen]

I think the American electorate will look at this "our world, shadow world" arrangement and will like what they see.

This will win elections for Republicans.

At some point, of course, human nature being what conservatives love to tell us it is, someone's going to get "our world" and the "shadow world" mixed up. Kind of like Nixon got the Brookings Institute and Democratic Party offices mixed up with the Politburo way back when.

You see at some point an American, one of the regular-looking ones, probably a liberal humanist of some kind, will shoot his or her mouth off and offend some touchy Republican and the government will accidentally on purpose frame them for worse deeds and send them into the shadow world, never to be heard from again.

This won't cause much of a ripple among the electorate because after all, liberal humanists are suspect and what's one less of them.

The shite will hit the fan during a Democratic Administration when a professional Republican traitor, like Duke Cunningham, who, after all stole money that could have been used to protect American soldiers overseas, or say, Pat Robertson, who, after all, makes terrorist threats on White House stationary a part of his show, gets the Democratic White House mad enough that they get sent to shadow world for some well-deserved testical electrification and a round of corpse dehabeasing. Using the tools and foul institutions provided them by one George W. Bush.

Then we'll have a scandal. The screaming from the Right will be deafening.

I can't wait to ignore it.

[Gary Farber]

"It's because no-one did that the Nazis became what we think of today."

Um, there were a noticeable number of German objectors to Nazi practices during the times you name, actually. It's a very long list.

"Not enough" would be correct. "No-one" is wildly wrong.

[Frank]

Both my Senators are Democrats so I won't be denying them my vote even if they vote the wrong way. On the other hand I've been face to face with Congressmen before, now I have spitting in their faces to look forward to.

[Anarch]

Gary: Um, there were a noticeable number of German objectors to Nazi practices during the times you name, actually. It's a very long list.

You're correct that "no-one" is overstrong; but given the size of Germany, no, I'd disagree that it's a "very long list", particularly if you exclude the objectors whose primary objection was that the tyranny being imposed wasn't theirs.

Frank: Both my Senators are Democrats so I won't be denying them my vote even if they vote the wrong way.

Both of mine are too, and I will.

[Anarch]

The hell? Italics begone!

[hilzoy]

Anarch: consider waiting to deny them your vote until after the midterms.

Hearings will go a long, long way. Hearings on, say, Iraqi reconstruction profiteering. The combination of something like that and new Democrats who are self-assured on national security will go a long, long way towards changing things, I think.

If you do deny them your vote, then spend the week before election day working for Joe Sestak, and send him money ;)

[John Thullen]

Madame Defarge -- she knits furiously!

[Gary Farber]

"You're correct that 'no-one' is overstrong; but given the size of Germany, no, I'd disagree that it's a 'very long list', particularly if you exclude the objectors whose primary objection was that the tyranny being imposed wasn't theirs."

One might say "relatively few," but I consider a list with tens of thousands of names on it, possibly hundreds of thousands, to be "very long." YMMV.

It wasn't Jews the concentration camps first started filling with.

"If you do deny them your vote, then spend the week before election day working for Joe Sestak, and send him money ;)"

And Ed Perlmutter, please.

[bob mcmanus]

Accch, I have probably said enough. And I promised myself to study Carl Schmitt tonight.

There are enough people in America to stop them, as there were in Weimar Germany.
They want to stop them, it is no lack of desire.

Were Schmitt & Strauss right? Do liberal democracies create the kind of leadership that cannot defend itself? Is liberal democracy worth the risk?

I was wondering if the animals looked at the Left around 1973, and said:"We did it the wrong way this time. But these guys won't really fight the next time we try for power."

All you libs still sure you hate the draft? Andrew and Charles Bird hate the draft.

[Frank]

Anarch- I'm going to add my endorsement of the Hilzoy plan. I'm mostly too depressed and poor to contribute time and money though I made an exception for Lamont. Of course 6 years ago I was a Libertarian, so I don't expect Democrats to do anything I'd be proud to support. Just continue not to be Republicans and they've got my vote. Still even contemplating voting for this abomination makes any representative seem incredibly vile, but the sadists are still more of a problem than the cowards.

[Frank]

bob- I never did. I think universal adulthood conscription is fairer than a random system though. It also has the advantage of being closer to the system the founders wanted with every able bodied adult a part of the militia.

[bob mcmanus]

Ooooh, crazy talk. What if Clinton had somehow managed to force Al Gore into the White House? He had a lot of power, he might have had some help in the military, he could have tried martial law or a suspension of elections. I can't see how he could really have done it, this cheating, this abuse of institutional power to achieve ends, must be built over years.

But imagine no 9/11. No Iraq. No nation-killing deficit. No torture. Decent help for the victims of Katrina. God help us, no nuclear attack on Iran. God knows what is to come.

Lets say 250,000 lives saved, with two years to go, maybe millions of lives saved. Are those lives not worth anything? Do we value our self-satisfaction and institutional security more than individual life itself?

What price to stop Hitler in 1933?

[hilzoy]

bob m: I have never been sure I hated the draft. My main reason for ambivalence is the number of Army people who are against it.

Of course, it helps that I would not have been draftable throughout the years when someone might have been interested: I can form my views from a position of absolute safety. Who knows what I would have thought otherwise. I hope the same, but who knows.

One of the things I always liked about John Rawls was that he introduced a measure calling for the end of the educational deferment into the Harvard faculty assembly sometime in the mid-60s (I want to say '67, but realistically I can't be sure of the year), on the grounds that it compounded class unfairness.

[Katherine]

I don't think refusing to vote helps. But I no longer donate money or time to Democratic campaigns just because they're Democrats*--that energy goes into human rights orgs instead.

I just don't buy that there's no constituency opposed to torture and indefinite detention. The polls are surprisingly good (go back and compare them to Vietnam-era polls on My Lai). With any leadership from the Democrats, they'd be even better.

There is also a smaller, but still quite significant group, who is very strongly opposed to these practices.

There's a constituency. What we lack (with certain honorable exceptions) is representatives in Washington.

*Individual candidates I like, or who are going up against awful incumbents, are another story. Perlmutter and Sestak appear to fit the bill.

[bob mcmanus]

"My main reason for ambivalence is the number of Army people who are against it."

Well, I won't get into the Army opposing the draft, but I do have to say that Andrew the other day mentioning the 13th Amendment pulled me up and stood me short. I think he is right, a peacetime draft, the kind that would change the nature of the people (long story) is probably unconstitutional amd un-American.

So I would be compromising or abandoning my principles toward an end. I don't know how to stop once it is started, I don't know how to start. But I wish we had more people on the left who were too free.

[KCinDC]

Bob, once Fox News had pronounced Bush president on election night, the sense of entitlement was established. I fear that any outcome that had resulted in Gore becoming president could only have ended in assassination. Whether President Lieberman could have then avoided the same fate is an open question.

[bob mcmanus]

KC:One life. I am sure there are Ericks and Josh's who would come around these parts and say:"I would never let the Gore Presidency happen, and I have a gun." 1000 lives. 10,000 lives. And to be fair, all of us didn't know Bush would be this bad.

I am just asking questions about brutal tradeoffs and moral sacrifices. I have zero high ground tonight. I am injecting huge risks into the system, risks and calculations that people like Brad Delong and Tim Burke consider very wicked. I sure don't expect officers of the court and moral professors to play these games. And I don't really expect anyone to listen, although I know a lot of people are reading Schmitt & Strauss & Agamben. I got Schmitt open in another window, and he is a pig. Look him up at Wiki.

How could Hitler have been stopped in Germany? I will not accept no for an answer.

What about America made Bush possible, and how can we change it? I will not accept no, or no cause, or too many causes, for an answer.

What can we do to make torture impossible? I do not accept "nothing" here either, and will try to measure the costs.

[bob mcmanus]

"What we lack (with certain honorable exceptions) is representatives in Washington."

Tautological. Why don't we have the right kind, or enough etc, of representatives in Washington?

[KCinDC]

Bob, I wasn't suggesting anything about whether the sacrifice of one life (or N lives) was worth it, just saying that I wasn't so sure your scenario of a Gore presidency would have played out as you described.

[Anarch]

One might say "relatively few," but I consider a list with tens of thousands of names on it, possibly hundreds of thousands, to be "very long." YMMV.

On the scale of a country like Germany? MMDDV (:

It wasn't Jews the concentration camps first started filling with.

Uh, yes, I was aware of this. Any particular reason you brought it up?

[Anarch]

Anarch: consider waiting to deny them your vote until after the midterms.

I did consider that. I also considered what I felt were the (personal) moral implications of voting for a Senator who failed to oppose the bill. And I'm sorry, but this crosses a line for me; I couldn't live with myself if I became complicit in this travesty. I could, of course, change my mind -- and please, this is not the rallying cry for a campaign to do just that -- but right now I'm too damn angry, too damn frustrated and just too damn disgusted with the eternal "lesser of two evils" [and it is actual evil we're talking about now] to play that game any more.

[global yokel]

I'm still not convinced that the Bushniks and their co-conspirators in Congress are genuinely interested in using torture as an intelligence-gathering methodology.

My suspicion is that they are trying to cover their ass for crimes ALREADY committed. They are worried that if the Congress goes Democratic in Novemer, and if we get a Democrat in the White House in '08, that they might find themselves in orange jump suits and handcuffs in front of a tribunal at The Hague.

I think that what they are up to at the moment is to create a legal and political environment where it is less likely that they are prosecuted for their war crimes in the future.

[russell]

The immediate, concrete, and specific thing that everyone reading this can do is get on the horn on Monday morning, call their Senators and Representative, and let them know in no unclear terms that anything other than an absolutely clear and unequivocal position, publicly stated, in opposition to either the White House bill or the McCain et al compromise will result in at least one vote lost. Not that many people call, your voice will count for a few thousand, most likely.

You can also give money to people who have taken a public position in opposition to this garbage. They aren't that hard to find, and I'm sure they'll appreciate the dough. 10 bucks is great, 100 is fabulous. Do what you can.

Write a letter to the editor of your local paper.

Put a freaking bumper sticker on your car.

When people talk about this crap, and they do, let them know what you think.

Anybody can do everything I've just named, and it makes a difference. Tiny differences are differences.

And, if that doesn't get us there, maybe it's time to elevate things another notch. I'm not talking about anything remotely like violence, there are many, many, many steps short of that. In any case, let's hope it doesn't get even that far.

Blogs are a wonderful venue for discussion and debate, but you have to do more. Get off your butt. This is, actually, no joke.

According to Blackstone, the first recorded habeus writ dates from 1305. That is 700 years of legal precedent about to be flushed down the toilet.

What kind of world do you want to live in? It might cost you something to make it happen. The other guys have put their chips on the table. Ante up.

Thanks -

[Anderson]

With any leadership from the Democrats, they'd be even better.

And if pigs could sing ...

Put a freaking bumper sticker on your car.

Yeah, I had hoped that "Who Would Jesus Torture?" was getting old, but it looks like it won't be retired just yet.

(I wish I had a bumper-sticker maker--"Remember When America Was Against Torture?" would be a good one.)

[the cubist]

hilzoy,

An unflinching, superior post; you have written and thought through to a terrifying truth.

russell,

Amen.

"Arrest The Police State!"

[hilzoy]

Anderson: I really wish I hadn't tossed out the 'Don't Blame Me; I voted For Justice Ginsburg' bumper stickers I had made up after 2000. (The idea of having them made up was, oddly enough, what got me off the couch after three days of post-SC decision depression.)

[liberal japonicus]

A TiO post following up on Bob's 9:00. I will, sourly, point out that the urge to print up bumper stickers seems less an act of defiance and more trying to defuse the situation with laughter and humor, of which I can find none at the moment, except to suggest a bumper sticker that says 'The US: a proud sponsor of torture since 2001'. I'm going to slice up wet rolls of tatami.

[bob mcmanus]

Foucault writes that “for millennia, man remained...a living animal with the additional capacity for a political existence; modern man is an animal whose politics places his existence as a living being in question" (HS1 143). ...Internet Encyclopedia of Philosophy article on Agamben

The state, until it fades away, is coercion and violence. That is its nature and purpose.
I think this is felt experience for many or most on the right;I fear the left has forgotten it. An NGO does not need borders or armies. Politics is controlled violence, when you join a state you surrender your body, your life to the group. You do. The group then returns a limited sovereignty back to you. This is not the state as we would wish it to be, but the state as it is.

Some of the left, or potential left, feels and shares this violence. Feminists, gays, and the poor. Too many have disowned their share of the violence, have alienated themselves from the state, from themselves in a Democracy. Torture feels impossible.

An acceptance of potential for violence, an internalization and possession of the coercive nature of the state is empowerment.
It doesn't require actual violence to be effective, but it does require the willingness. A woman with a black belt owns her violence, is both restrained and freed by herself.

Electoral politics is good stuff, and should be encouraged. It is not freedom, but a concession. It is an acceptance of limits imposed, by others or by yourself.

But the other side must understand we won't always stop there, that we share in the coercive nature of state power, that we are not scared of ourselves or of throwing a punch. I don't know how to inject, to recuperate this violence on the left. It was around in the 30s and the 60s, and the Right caved. Don't let anybody kid you, a march or sit-in or strike only has the appearance of non-violence...the meaning and message of 50,000 people around the Pentagon is clear.

There must be consequences. There, at the very least, must be War Crimes Trials.

[Ficus]

Anarch:

I was just today considering the same thought: could I ever vote for a Democrat again if they do not stand up now? The way I feel right now, the answer is no.

They have been piercingly silent about this legislation, choosing to prattle on about Chavez and other crap that doesn't carry a fraction of the import. Maybe they'll wake up and take a stand. Maybe.

I'm doing what I can. I'm sending every single Democratic Senator a letter (copy at http://pavingenglish.livejournal.com) prompting action. And Monday and Tuesday I'm hitting the phones.

A filibuster could stop this crap legislation dead in its tracks, but it's going to take some party unity, some message, and some leadership. I have little faith that the Dems are going to get there without serious prompting, unfortunately.

[russell]

I'm doing what I can. I'm sending every single Democratic Senator a letter (copy at http://pavingenglish.livejournal.com) prompting action. And Monday and Tuesday I'm hitting the phones.

Everyone reading this could do this much.

Go for it. What do you have to lose?

Thanks -

[CaseyL]

Is any human rights organization ready to bring suit to get the Torture Bill in front of a court for Constitutional review? Because it seems to me the bill is unConstitutional on its face.

Yes, I am aware of the fact that the Bush Admin has ignored previous SCOTUS decisions; and that, in fact, the Torture Bill is designed to override the decisions against the Admin which have already been handed down. I'm also aware that a SCOTUS decision against the Torture Bill hangs on a fragile, elderly reed.

But just because Bush will ignore a SCOTUS decision doesn't make the Torture Bill legal. He'd have to amend the Constitution itself to do that, wouldn't he?

(I'm also aware that hoping for court review doesn't mean I shouldn't write to my Congresscritters. I will do so, though I'm pretty sure Washington's delegation will vote against it anyway.)

[Ara]

I have to admit that I don't share anyone's optimism. On the one hand, the history of the Republic has been dotted by these episodes where the government seemed to forget what it was made out of. The country is becoming a torture state without so much as a peep of popular protest -- not anywhere -- from people for whom, presumably, patriotism and government were important things -- from people who grew up, I was told, holding their civic values dear. Let's face it: there is such deep disconnect and deep alienation, that people feel the federal government is too distant to have any impact on their lives and too large to influence. I would have thought that this kind expansion of federal power would not have come without civil disturbances. And what about all that anti-government separatism from the 90s, the Timothy McVeighs? I heard about a county in Kansas that made it illegal (obviously not an enforceable law) for the EPA to enter the county. Create a worldwide network of torture camps, and there is not a sound from these people who are supposedly so distrustful of the federal government. I'm forced into believing that the vast majority of Americans are either selfishly apathetic, misinformed, or racist. Why shouldn't I think this?

One of the reasons I'm not optimistic is that the scope of state power is so much greater than what it was in the past. The tyranny of King George certainly did not extend to a global network of secret torture camps. It is simply too easy -- with all this state power -- for people who are somewhat tactically intelligent to manipulate people's fear, gullibility, or indifference.

[bob mcmanus]

"...for people who are somewhat tactically intelligent to manipulate people's fear, gullibility, or indifference."

Turn off your TV. Meaning news & talk, including CSpan. Tried that again last week, and was shocked how lame Brian Lamb was on the Federalist Papers. TV News rots the brain, and the alienation from America is good for you.

[Gary Farber]

"On the scale of a country like Germany? MMDDV (:"

This would be a frivolous point to disagree about, but if you'd like to sit down with me, and give me a dollar for each such person, given that it wouldn't take "very long," which you've now oddly asserted twice, that would be lovely.

Notice that I carefully distinguished between what was "relative" and not. The point is not relative to the population of Germany, but absolute.

Maybe you missed that?

It wasn't Jews the concentration camps first started filling with.

Uh, yes, I was aware of this. Any particular reason you brought it up?

Because thousands filled the camp, and I'd say it would take "very long" to list their names.

This is a pretty dumb argument.

You're claiming it wouldn't take "very long" to list, say, 150,000 people.

Instead, you should claim that the percentage of Germans who resisted Hitler was regretably small, which is what I repeatedly said. This point is uncontroversial. That a list of tens of thousands of people is "very long" is not controversial.

That should be the end of the meaningless "debate," surely.

[Gary Farber]

"On the scale of a country like Germany? MMDDV (:"

This is probably not a useful disagreement.

I'm pretty sure we agree on most stuff.

I'm inclined towards Rodney King here: why can't we all get along, including you and me?

This would be a frivolous point to disagree about, but if you'd like to sit down with me, and give me a dollar for each such person, given that it wouldn't take "very long," which you've now oddly asserted twice, that would be lovely.

Notice that I carefully distinguished between what was "relative" and not. The point is not relative to the population of Germany, but absolute.

Perhaps this shouldn't be a point of disagreement?

It wasn't Jews the concentration camps first started filling with.

Uh, yes, I was aware of this. Any particular reason you brought it up?

Because thousands filled the camp, and I'd say it would take "very long" to list their names. And they were largely political opponents of Hitler. Those folks who existed in significant numbers until later.

This is not a particularly enlightening argument.

You're claiming it wouldn't take "very long" to list, say, 150,000 people.

Instead, perhaps you should claim that the percentage of Germans who resisted Hitler was regretably small, which is what I repeatedly said. This point is uncontroversial. That a list of tens of thousands of people is "very long" is not controversial.

Possibly we can agree on this in a friendly manner?

[Gary Farber]

I have no idea how the prior post got entered, but there we have an example of my going from one point to an attempt to be more useful.

Huzzah.

[Katherine]

Anarch:

I am as upset and angry as you are at the Democrats, but I don't think it makes much sense to express those beliefs in a way that does absolutely no good and a small amount of harm on the specific issues you're upset about.

A vote for a Democratic House Rep. is a vote for Henry Waxman with subpoena power. A vote for a Democratic Senator is a vote for Patrick Leahy and Carl Levin with subpoena power. It would absolutely make a difference.

[CharleyCarp]

The think 'without a peep' is pretty far wide of the mark. There've been plenty of peeps, and you can 'peep' to your reps (and get your friends in Maine etc to peep to theirs).

CaseyL, while there's been pretty good mobilization, I'm not sure any human rights group would have standing to bring an 8th Amendment claim. A prisoner would, if he had a court that would hear his claim. Too bad this bill eliminates that completely.

[CharleyCarp]

I think . . .

[Steward Beta]

Instead, perhaps you should claim that the percentage of Germans who resisted Hitler was regretably small, which is what I repeatedly said. This point is uncontroversial. That a list of tens of thousands of people is "very long" is not controversial.

One Day not to far in the future some historian is probably going to say something very similar about Americans & GW Bush.

[bob mcmanus]

"It would absolutely make a difference."

How much? I am not here arguing about electing Dems, but asking how do we make certain they are...energetic...in investigation. The post-Vietnam investigations were not powerful or productive, everybody wanted to get past that stuff.

The pressure on Congresspersons to get along and be productive will be incredible, even in current conditions, and I think external conditions will be much worse in the next two years. The DC Establishment doesn't like the cocktail parties getting uncomfortable.

Republicans have always been willing to tear the country to shreads and really hurt their open enemies. Hurt citizens, as in Debs and the Hollywood Ten going to jail. As in every library in America having anti-communist watchdogs.

We are going to be disappointed in our congresspeople if we don't terrify them now.

[Katherine]

The reason I named those particular Dems is that I particularly trust them on these issues (I'm not always sure I agree with Levin's approach, but he definitely cares & knows his stuff).

That said, you're right to worry...I think it's crucial, if we are going to have real investigations, that we take control of at least one house in 2006, while the administration is still in office. Otherwise the argument will be that this is vindictive and we need to move past it. That may be the argument in 2007 too, but it'll be an easier sell in 2009 and beyond.

[Katherine]

I hope someone reads this into the Congressional record.

[Nell]

Bob: Why don't we have the right kind, or enough etc, of representatives in Washington?

Because the system of campaign finance is legalized bribery, and "representatives" represent the PACs and lobbies that do the most to ease their non-stop fundraising.

Because corporate control of media channels and of politics has increased tremendously over the last thirty years.

Because over the same period laws and judges (2:1 appointed by Republicans) have gutted the ability of workers to organize, aided by corporate-managed globalization and failure to enforce immigration laws against employers, only against immigrants.

Democrats are no kind of solution per se. Chuck Schumer (pro-John Bolton, pro-torture of Arabs) is at the heart of the problem.

That wing of the party isn't going to like Jim Webb, if we can get him elected. The fact that he was coming to our little town that day for a rally and fundraiser is the only thing that kept me going on Friday. I had to just put aside my rage and disgust at Democratic "leaders" over their complicity with the torturers long enough to keep going.

Now that the events (both big successes) are behind me, and I've had a chance to read over the discussion here and elsewhere, I'm shaking with anger. I can't accept that there is no way for the base to reach the craven, complacent Democrats in Congress who have chosen not to oppose an official policy of torture and lawless, recourseless detention. {I'm aware that the tone I'm taking here is not conducive to reaching them.}

[Anarch]

Katherine: I am as upset and angry as you are at the Democrats, but I don't think it makes much sense to express those beliefs in a way that does absolutely no good and a small amount of harm on the specific issues you're upset about.

See, that's part of the problem: I'm not convinced that it does "a small amount of harm", nor yet "absolutely no good", to refuse to vote for someone who won't take a stand against torture. In fact, I'm rapidly becoming convinced that voting for the Democrats irrespective of their actual stance -- i.e. purely on the grounds that they're better than the Republicans, which, though true, is the ultimate in damning with faint praise -- is itself actually, tangibly harmful since it legitimates the odious DLC triangulation strategy that got us into this mess in the first place.

Or, to be really blunt about it: if I won't vote my principles, why should they?

[bob mcmanus]

Marshall on Broder

Broder. Obama/Graham in whenever. Obama is a disappointment to me, but Lindsay Graham is not even in the same moral universe. I guess habeas-killer Graham is in Broder's universe.

Blame the Polls

This is from Ezra, but was around. In late 2000, polls showed Rove that there was no political center. Goodbye "compassionate conservatism." Elections are about turnout and polarization/enthusiasm. Whatever the equivalent of gay marriage is for Democrats, they should run on it and with it. Run on hate.

[liberal japonicus]

I'll mark up Anarch in the McManus and me column. It seems to me that if someone, anyone, would try and do an individual filibuster on this, even though they would get worn down, that person would have a wonderful chance at seizing the initiative. They wouldn't need to read recipes or the DC phone book like Strom Thurmond, she or he could simply read the reports that go into graphic detail about torture. Is there really not one senator who might try that? I don't think there is, but my question is why not?

[Anarch]

Gary: My point, such as it was, was precisely that there is no such thing as "absolute length" or "absolute size" so it's meaningless to talk as if there were. The only meaningful comparisons in this regard are relative. Of course, were I to give you a dollar for every name on the list you'd be happy; all that demonstrates is that the notion of "size" isn't interchangeable between groups of people and dollars. To flip the comparison the other way, I can't imagine you'd be too happy if I gave you hundreds of thousands of oxygen molecules and told you that that was all you could breathe from now on. A number is a number is a number; what makes it "large" or "small" depends on the context in which it's being used.

[I should add, incidentally, that there are absolutish arguments of magnitude that I do find compelling but they operate in different ways, along different axes, and with different metrics than the ones we're talking about. As always, YMMV.]

[Katherine]

Anarch--

are there close House or Senate races in your area?

[Anarch]

LJ: They wouldn't need to read recipes or the DC phone book like Strom Thurmond, she or he could simply read the reports that go into graphic detail about torture. Is there really not one senator who might try that?

One of my deeper wishes, in a world where the Democrats had a spine and a flair for the dramatic, would be for them to actually waterboard someone in the middle of Congresss while the cameras were rolling. A willing participant, of course, who could then testify as to the nature of the experience. I figure the sight of someone choking, gagging, screaming, crying and likely vomiting on the Senate floor should convince a larger portion of the American people of the horror of these ways -- and remind themselves of their increasingly-forgotten humanity -- than all the articles we can write, eloquent though they may be.

Of course, knowing the Administration right now, they'd probably get the FCC to censor the feed... which is why YouTube is a wonderful thing.

[Gromit]

I worry that Anarch, Nell, and Bob are right. I know Katherine isn't exactly advocating this, but we've been doing the "just get past this next election, and then we'll get our house in order" thing for years now, and losing at every turn. The national Democrats aren't a party in any meaningful sense. They don't see the past six years as a series of losses, because the ones who are still there to have opinions have won their races, and that's always been their first priority, way ahead of retaking Congress or the Presidency. Even Kerry and Lieberman (for now) still have offices, and looking at Gore's transformation from milquetoast to firebrand, I think, validates the thesis.

Maybe the Democratic party needs a whole slew of Lamont-style primary challenges next cycle to get the party to stop taking the base for granted. Maybe we need to fix the Presidential primary system that gives us candidates like John Kerry and, I fear, Hillary Clinton. I really don't know, but what we are doing now hasn't fixed the problem, and given that the Democrats appear poised to once again flee from the Iraq issue (are they being conned by their pollsters, or what?) I have no reason to think it will work this time around.

We've got to accept that changing the party is a multi-cycle project. It's bitter medicine, but folks like me have been arguing this since 2000 and have always been shouted down by the "pragmatists" of the party, whose candidates then turn around and vote for war in Iraq, for turning a blind eye to torture, and the like.

I guess this is easy for me to say -- my Representative is pretty much impeccable and in a safe seat, and my state is both solidly red and won't elect a senator this cycle anyway. But I fear that 2006 will see only modest gains for Democrats, and in 2008 the "lets just win this one election" mindset will prevail again.

[Nell]

Gromit, my approach is more like Katherine's than Bob's or Anarch's. Habeas-stripper Warner is my Senator, but thanks to the Senate and House Democrats' complete absence from the torture/tribunal debate, most people think he's some kind of hero.

I'm focused on the immediate practical issue of what it will take to get the D's to filibuster. This is a line we can't let the country cross without putting up every bit of resistance possible. Democrats who won't support a filibuster don't deserve to be elected or re-elected. Period.

[Anarch]

Katherine: are there close House or Senate races in your area?

I had to check around but no, there aren't. The closest race that I can vote in would be the Kohl-Lorge Senate race (currently polling at 59-31 in Rasmussen). There's a hideously important race up in the Wisconsin 8th -- John Gard is a POS who needs to be booted out of politics as fast as possible -- but I have no idea what the polling is on that one and I can't vote up there anyway. Besides, the Democrat challenger there (Kagen) is a friend's former allergist and (thus I happen to know) is the kind of man who would vote against torture so those particular qualms of mine don't play.

It's moot, though. Even if there were close races, I'd still have to put my foot down. I will not be complicit in the construction of the American torture state.

Let me return the question to you, though, if I may: suppose Waxman, Leahy and Levin get subpoena power. What makes you think that anything will come of this? IOW, what makes you think that they'll receive the backing of the Democrats as a party in the key battles that will inevitably lie ahead for them instead of, say, quashing their investigations out of "deference" to the Bush Administration?

Gromit: Maybe the Democratic party needs a whole slew of Lamont-style primary challenges next cycle to get the party to stop taking the base for granted.

Pretty much, yeah. I'm also wondering about the "conned by their pollsters" effect, although it seems more probable to me that they're just, well, short-sighted cowards. My personal belief at this point is that the irrational attachment to triangulation, to maintaining the ideal of "bipartisan comity" despite all the evidence to the contrary, and to preserving the status quo exceeds all reason for the vast majority of Democratic politicians and operatives; and that they're going to need some major shocks to the system before they wake up.

Of course, the same is true with bells on for the media, but that's a topic for another time.

Edited on preview: fwiw, what I'm advocating is almost exactly the same as what Nell just said and, well, not terribly much like what bob's been advocating. I must've been unclear, though I don't know on exactly what.

[hilzoy]

Anarch: there's a brief post on WI-08 here. It says that this looks like a possibly D pickup. If he'd vote against torture, then by all means head up there and volunteer. If you're not going to vote, do something.

Though, of course, I realize that I'm not the boss of you ;)

[Katherine]

" I know Katherine isn't exactly advocating this, but we've been doing the "just get past this next election, and then we'll get our house in order" thing for years now, and losing at every turn."

I am not advocating anything resembling that. May I just point out something I wrote 10 days ago?

My prediction is 2002: The Sequel.

Dems don't risk filibustering Specter's NSA bill or much one on the detainee bills to win the election, and many of them actually vote yes. Then they lose the election anyway (by lose I mean "make small gains in both houses but don't get a majority in either).

Now, of course, the Democrats want to run on Iraq--now, when it's too late for the outcome to be anything but a complete f***ing disaster. And I think back to 2002, and being told that, yes, the war vote was disappointing but we needed to keep the Senate.

Maybe in 2010 they can run against the Bush scandals while supporting President McCain's authorization to use force in Iran.

I also was posting comments like this all week:

The letter Graham, Warner and McCain most need right now is a letter thanking them for the good parts of the bill BUT ALSO, AND EVEN MORE IMPORTANTLY asking them to change the bad parts of the bill, such as ending habeas jurisdiction over Guantanamo and weakening the war crimes act. .... I appreciate the difference between Warner, Graham, and McCain and the President on this--it's all that's standing between us and an awful outcome--but their role is much more complicated and ambiguous than is being made out in the press (which is one thing) or the large majority of liberal weblogs (which is really starting to annoy me.)

Their bill ends habeas jurisdiction for every person in Guantanamo--it overturns Rasul v. Bush, and if it had passed last fall (which Graham pushed for, and all three voted for) Hamdan never would have happened. And it leaves some innocent guys to be detained forever based on kangaroo courts. It weakens the War Crimes Act considerably. It's much better than the alternative, it may be the best we can do, but it's also much worse than the current law. To put haloes on these guys as the defenders of human rights and American honor--it's a fundamental misunderstanding of the political situation, and it's going to kill the small chance we have of improving their bill. Please cut it out.

I'm sorry about the tone--I just keep writing this comment on all sorts of prominent blogs, and they keep ignoring me. I also wrote a long series on this last year and a few months ago to be prepared for this bill, and it's just ignored. I know people aren't interested in this all the time, but when they are interested all of a sudden, but are misinformed, it is extremely frustrating.

I've been worrying about this, and trying to get other people to prepare for this bill, for months. Now, when it's too late, all of a sudden I'm not hard core enough and possibly "complicit in the American torture state" because I'd vote for a Democrat in a close race? (As it is I'm writing in, btw, because I believe in voting and I can't stand Emmanuel. But that's a quixotic little gesture. I've done things that could conceivably help on these issues, but that's just not one of them.)

[CharleyCarp]

I'll differ with Nell here. We got GWB as president because, among other things, millions of people bought into the demonstrably untrue myth that there was no material difference between Bush and Gore. How'd that work out?

In a vote between evils, take the lesser. In a vote between a really bad guy, a not all that good guy who just might win, and a saint who can't possibly win, you have to decide whether you can afford sainthood. The answer is usually not.

We don't know if the Lamont challenge is going to work in Connecticut. I hope it does. If it does, though, it will be because of the weakness of the Republican party there. You can't try this in North Carolina, Texas, or Ohio, or plenty of districts all over the country. Not without a years-long effort at creating the proper conditions in the district/state/country.

[Katherine]

um, hilzoy's approach here is much more constructive, as usual.

I have no desire at all to defend the Democrats, anyway. It's more: staying at home to send a message won't work because they're too dense to receive the message you're trying to send. I look at the 2002 elections as showing that selling out Iraq didn't pay--they look at it as showing that they shouldn't have opposed the Homeland Security bill, and they better sell out NO MATTER WHAT this time. Check out what Durbin told the AP:

He didn't quite say so, but it seems likely the deal announced Thursday _ and blessed by Sen. John McCain of Arizona as well as Bush _ will draw significant Democratic support when it reaches the Senate floor.

Beyond the tribute to the importance of American values and Geneva Conventions protections for wartime prisoners, Democrats, particularly in the Senate, are applying painfully learned lessons of past campaigns.

"This is a Max Cleland moment," said Sen. Dick Durbin, D-Ill., referring to the Georgia Democrat defeated for re-election in 2002. Republicans are "trying to produce a vote that provides a 30-second ad like the one that defeated Cleland," he added.

That's DURBIN, who I would have said before this week was one of the best five guys in the Senate on this.

I don't know what their problem is. I don't know if there's anything that will change this attitude. Lamont style challenges seem like the best shot. Losing general elections won't work though--it will always have been possible to sell out more.

I've just given up on the Democrats showing any courage or leadership. I'll vote for them, because they're clearly better, and I'll do more for candidates who deserve it. But I don't identify with the Democratic party the way I did a few years ago, and the energy that went into campaigns for Democratic candidates a few years ago now goes elsewhere.

[liberal japonicus]

fwiw, what I'm advocating is almost exactly the same as what Nell just said and, well, not terribly much like what bob's been advocating.

That's my fault, when I said that you were in the Bob and me column, what I meant was that the arguments that Bob has been making about the way the situation seem to have come to pass and your points seemed to be cut from the same cloth. I think he has put his finger on the problem, but it is not one that admits a 'do this and it will be solved' sort of option.

If this is true and if this issue is a line in the sand, the question is how do we comfortably agree to disagree with those who espouse Republican ideas? I don't think waving the magic McCain card is a get out of jail free card, nor is someone saying that hey, they voted for Kerry rather than Bush. At some point, the pendulum swings from 'I have to modify my beliefs to get people on the opposite side to accept them' to 'They have to prove their sincerity on this issue before I trust them at all'. I had a sinking feeling that it was just kabuki, but thought it would be really pissing on people's parades to say 'wait a minute, just because Graham was a JAG, he still pretended he made statements on the floor to try and undermine Hamden'. If someone does that for National Alfalfa Day, no problem, but to participate in the farce of presenting it to the Supreme Court as evidence means that he should get no slack. Of course, Broder thinks that he should be the future standard bearer of the Republican party.

On preview, I see Katherine taking exception. No one can fault you for what you have done and I'm certainly not saying that you aren't hard core enough in your beliefs. It's trying to locate where the hard core should be. One way to look at it is that the Civil Rights Act passed, in large part, because of the impetus provided by the March on Washington for Jobs and Freedom. It seems to me that what is required is a similar public act that can focus attention in a similar way. This shouldn't be taken as a condemnation for what you have done or what you continue to do. It's that the whole sorry spectacle suggests that a bigger shock to the system is necessary.

[Gromit]

I certainly would never question your hardcore-ness, Katherine. I'm just noticing that every election in which liberals/progressives compromise to back a Democratic loser is a missed opportunity to work on fixing the party. I hope I'm mistaken, and even after this blow from the combined forces of McCain and Bush the Democrats still have a decent chance of retaking something.

[CharleyCarp]

Gee, I see I'm pretty far out of the mainstream. So just how well is that whole Ralph Nader thing working out?

[Anarch]

hilzoy: It says that this looks like a possibly D pickup.

Yeah, I knew that. [Knew that back in April, actually, when my friend remarked that his former allergist was running there.] Catch is, I haven't seen any post-primary polling to confirm this.

If he'd vote against torture, then by all means head up there and volunteer. If you're not going to vote, do something.

I didn't say I wasn't going to vote, I said I wouldn't vote for any Democrat who wasn't willing to filibuster the torture bill.

CharleyCarp: In a vote between a really bad guy, a not all that good guy who just might win, and a saint who can't possibly win, you have to decide whether you can afford sainthood.

Well, that's easy: there ain't no saints running.

If, however, you restrict the vote to a bad guy and a guy who on paper seems like a decent sort but who happens to fold every time an important issue comes to the table... that's a different scenario entirely. And I'm increasingly inclined to vote for neither, not because I can't see any difference between them, but because I can't abide the way the doormat doesn't just fail to stop the excesses of the bad guys, but enables them by providing the kind of saccharine "bipartisanship" the bad guys need to cover their malfeasances.

You can't try this in North Carolina, Texas, or Ohio, or plenty of districts all over the country. Not without a years-long effort at creating the proper conditions in the district/state/country.

The point is, a Lamont-style challenge is part of a years-long effort at creating those proper conditions. It's by no means the only part -- it's imperative, for example, that the ground operations continue year-round until such time as the conditions have been shifted, not just during the election cycle -- but without a specific focal point or catalyst, those ground operations aren't going to accomplish much.

And FWIW, I think you could absolutely run a Lamont-style campaign in both Ohio and North Carolina. [Texas? Probably not, or at least not yet.] You'd almost certainly lose in NC, of course, but I think you could get a respectable showing and, frankly, I'd say you'd have as good a shot at Ohio as you would any other way. It's not really about the winning, though; it's about legitimating progessive politics, about bringing ideas back into the mainstream, and about drawing new support for the ground operations that will help alter the political landscape for the future.

Yes, it requires a willingness to take risks that probably won't pay off this election cycle. But what's the alternative? If the current Dems can't muster the spine to block the destruction of 700 years of Western jurisprudence, how is trying the same strategy of "electable Democrats" going to accomplish a damn thing?

On preview: So just how well is that whole Ralph Nader thing working out?

Dunno. How's the whole John Kerry thing working out?

Katherine: all of a sudden I'm not hard core enough and possibly "complicit in the American torture state" because I'd vote for a Democrat in a close race?

If I implied that about you in any way whatsoever, I apologize. That was not at all my intent and it's demonstrably untrue in more ways than I could begin say.

FWIW, the difference that I see is precisely that I don't see the Dems as "clearly better" when it comes to their actual voting record. They ought to be better; they're better on paper, they're better on rhetoric, they're better in almost every way conceivable... except when it counts. And this, for me, is the limit: they might not be the vicious abettors like the GOP but if they can't even muster the spine on a no-brainer like the torture bill, they're not worth saving -- because in the end, I can't trust them to save us.

[bob mcmanus]

"So just how well is that whole Ralph Nader thing working out?"

Just spent an hour on a Great Britain Socialist page. They post biographies of dead socialists once a week. La Passionara, the only nationally revered Republican figure during the Civil War, came back to Spain when Franco died after 40 years in Russia and got elected to Parliament.

They talk about beavers a lot on that blog. They look for mentions of beavers in Dante, in Mandeville. The idea is "a twig at a time."

I am so short of answers I ain't hatin on the Naderites no more.

[Katherine]

Everyone--I know it's not meant personally, I'm just in a lousy mood.

As far as a march on Washington type-thing: unless there's some enormous catalyst like the start of the Iraq war (in which case the march is going to be too late) those things don't just spontaneously happen in a month's time. They were years in the making.

I always used to wonder how all that 60s stuff my parents are sentimental about started, and so I've observed exactly how I got drawn into this. It's interesting: it's very contingent, but it's also self-reinforcing. You hear about this Arar case and get upset, so you look further into it, so when the Abu Ghraib photos and torture memos come out you don't buy that it was a few bad apples, so you write your 3L paper on rendition, so you volunteer as an RA for a book on Guantanamo, so you write a series on habeas stripping....the more of this you do, the more you know about these issues, and the more you get to know other people who work on these issues, and this draws you further in.

That's how it happens. I'm not going to say it's "organic" because that's too hokey for words, but it's informal, and self reinforcing.

Something more is definitely required. But the "something more" required is not staying home on election day, or making a bunch of despairing, bitter weblog comments for a week and then sort of forgetting about it (I'm not talking about anyone in particular here, I'm thinking of the intermittent attention this gets from the really prominent sites--you know, 2-3 weeks ago a lot the big liberal weblogs were more concerned with the "Path to 9/11" movie & were largely praising McCain, Graham and Warner.)

Charley--I'm not sure you're talking to me, but I don't see how this translates to a Nader-esque approach:

"I'll vote for them, because they're clearly better, and I'll do more for candidates who deserve it"?

When I say I've given up on the Democrats I don't mean I am going to become a Green, I mean I'm more inclined to give $ to Human Rights Watch than to the DNC.

Anarch--if you actually look at the roll call votes and committee votes there is in fact a gaping difference between the parties. The votes on investigations and confirmations, in particular, tend to be very very close to party-line. The habeas bill the first time wasn't far off from party line.

McCain, Graham and Warner TALK a better game than this on most Democrats but tend to fold on many votes (or in some cases be leading the charge in the other direction.) In contrast, while most Democrats do not talk a good game, on actual votes they tend to be pretty good (there are exceptions, like Lieberman and Nelson, and they don't filibuster.) But the voting records are very very different.

This guy was the person who told me he had to stop reading about the upcoming elections because he was getting his hopes up too much about Waxman getting subpoena power.

[Nell]

Let's de-personalize and de-polarize this. We're all in different situations wrt the elections we can make some difference in. I withdraw any characterizations of "Anarch's position", "Katherine's position", etc., and ask others to do likewise. The shorthand isn't helpful here.

Pace CharleyCarp, I am not saying, and have not said since January 2001, that there is no difference between the two parties. But this does feel exactly like 2002, only more so, in that the Democrats appear to have chosen the path that is policy and electoral poison.

Democratic Senators and Congresspeople need to be pressured, with whatever works, to make a goal-line stand and filibuster this horrible, horrible legislation.

They must be shown, via letters to the editor, demonstrations, sit-ins in their offices, lobbying visits, and faxes and calls and emails that it is to their electoral benefit as well as the right thing to do.

Please: Use the simplest, shortest, most powerful arguments you can fashion from the many excellent blog posts of the last three days to write a letter to the editor. This very afternoon/evening. Email it, along with contact numbers for your Rep and Senators, to at least three friends and ask them to take action.

The demand is to filibuster the detainee bills: don't legalize torture, don't reverse 700 years of the fundamentals of due process. We don't need this legislation to make us safe: Bush needs it to protect himself, not us.

[CharleyCarp]

almost certainly lose in NC, of course, but I think you could get a respectable showing

Understanding that you have better on-the-ground sources there than I do, I'll defer -- very grudgingly, I'll admit -- on the latter point. No argument on the former.

It's not really about the winning, though; it's about legitimating progessive politics, about bringing ideas back into the mainstream, and about drawing new support for the ground operations that will help alter the political landscape for the future.

I really and truly wish you the best of luck with this. I think it would be a really good idea to build it up at the state and local level before you go through a decade of killing moderate Dems in favor of Republicans at the national level.

I can't beleive that you think any Dem (or any human being) would've beaten Bush in 2004. I'm certain no Dem in the running would have come as close. I'm also certain that Gore would have won in a rout in 2000 if it hadn't been for the exact critique you are offering here.

I'd like to see a filibuster of the torture bill. Better yet, I'd like to see Levin prevail in removing the habeas stripping provisions when it comes up tomorrow. I can understand, though, if a Dem senator in a close race sits down with Levin and says he can go along in committee, but will lose the election if he joins a filibuster. The solution isn't to defeat that guy, and replace him with a Republican, it's to build the movement you want so that he and his successors aren't afraid that these kinds of Max Cleland attacks will work. What have you done to build it these last 6 years? What business do you have calling people cowards who don't have constituents who will back them up? I think you'd be extremely hard pressed to find more than a couple of Democrats who disappoint you on every sinle important issue -- but even if they did, you have also to figure in the effect their being there has on the Republicans. It's not nothing.

Shorter: it's better to have a guy who does what he can -- even if its not a filibuster -- but keeps his sit than a guy who gets elected on a 'no restrictions on torture' platform.

As I said on the other thread, Meehan gets all the Dems on the House committee to vote against habeas stripping, and all I see are complaints about how Dems never stand for anything. Levin has a play tomorrow. Most Dems will support it, and those that don't should hear about it. Should be hearing about it today . . .

[Anarch]

What Nell said and, on reflection, what Katharine said. [Mostly (: ] Comity!

[CharleyCarp]

I join in Nell's of 1:57.

[Nell]

I'm a little tired myself. I'm definitely not in a good enough mood to respond as genially as I ought when characterized as holding myself aloof, refusing to support the lesser of two evils. I've worked twelve hours a day for the last month in support of the local Democratic party and the Jim Webb campaign.

I'm as furious as I am about the Democrats who hoped someone else would do their political work for them because this approach was not only cowardly but politically stupid -- and I fear that the anger and despair this is causing at the base of the party is going to hurt us at the polls.

[hilzoy]

To add to what CharleyCarp said: when I chanced to see part of the House Judiciary Committee hearing on the bill, I saw Rep. Nadler give an impassioned speech about torture; and then I saw all the Democrats speak against the bill, and all the Republicans speak for it. If CSPAN hadn't cut away, and I hadn't finished lunch, I would then have seen the Democrats actually defeat the bill in committee, along with such other sights as: Marty Meehan introducing an amendment that would have taken out the habeas-stripping provisions.

It's not true that they don't do anything. To the extent that it is true, it is, among other things, a reflection on their constituents. It is our job to deliver to them the kinds of constituents they need, by talking to everyone we know about this, and really trying to change people's minds, and to inform people about what's at stake.

This is a democracy, and in a democracy it is not possible for any one person, like, say, me, to change policy because I think it's very important. I have to change the minds of my fellow citizens. That's our job now.

[CharleyCarp]

Nell, if Jim Webb called one of my senators and said, 'please don't filibuster because it will help Allen' should they tell him he's wrong? Would he be? Should they tell him 'Too bad, you deserve to lose?'

It would be great to have a Virginia where Webb would never even think such a thing. I know that you work hard to create that Virginia. I'm afraid, though, that you have not yet succeeded, and so if either of my senators told me Webb had called them and asked what I thought, I'd have to weigh it out pretty carefully.

[Nell]

Jim Webb is a rarity among Democratic Senate candidates who doesn't have to pretend to equate habeas-stripping with toughness. He would no more make the call you're positing than he would fly to the moon.

That call sounds a whole lot more like something that would come from Bob Casey or Debbie Stabenow.

[CharleyCarp]

Good answer. But do you really think that there's no chance that a filibuster helps Allen?

[Katherine]

The habeas committee votes should not be overlooked. And the House dems should not be overlooked, either--especially the Mass delegation: Meehan and Markey are quite a pair.

OTOH, barring a miracle from Specter and Levin, I'm still very angry about the leadership.

Even as a matter of sheer tactics, was it REALLY wise to entrust this to a 2008 Republican presidential candidate?

I recognize the political realities of some districts, but there is also a default assumption that doing the right thing is political suicide (see: the Schiavo mess) and a complete failure to realize that the odds of a single vote dooming you politically are actually relatively slim.
I've said this before, but, it's our 1% doctrine: "If there's a 1% chance doing the right thing will throw the election to the Republicans, we have to treat that as a certainty."

Citizens, journalists, human rights orgs, etc. have a job to do just as much as Democratic politicans--but as far as I'm concerned, there's a lot more people in the former groups doing their jobs than the latter.

[Nell]

I think the chance that a filibuster helps Allen is quite small, since we have a candidate who's willing to call Allen's position what it is: rubber-stamping torture, endangering American soldiers (including Jim Webb, Jr.), undermining the rule of law, and making us all less safe.

I think the chance is much greater that Reid, Durbin, Levin and others will cause a whole lot of Democratic activists to kick furniture and wonder why the hell they bother doing all this scutwork by praising the "compromise" and pretending that it just needs a few tweaks.

Speaking of tweaks, CC, please tell all you know about Levin and the process upcoming in the Senate. I'm on many human rights email networks and I have gotten no useful heads-up or guidance since the "compromise".

[Anarch]

I can't beleive that you think any Dem (or any human being) would've beaten Bush in 2004.

It's not so much any particular individual (Kerry v. Wes Clark v. whoever) as it was the strategy that Kerry employed. Despite the blindingly obvious fact that he was going to get hit, and hit hard, by ruthlessly unfair smears and calumnies, he wasn't ready for them and when he did finally respond he did so in ways that didn't help, or didn't help enough.

I mean, to some extent I'm obviously Sunday morning quarterbacking here* but it was obvious to me even then that Kerry needed to start swinging. He absolutely could not afford to rest on his laurels, could not afford to turn the other cheek, could not afford to run a campaign that tried to rise above Bush's (and Cheney's and Rove's) malfeasances because if he did he'd get turned into mincemeat. That Kerry did as well as he did is, I think, more a testament to how colossally the Bush Administration and the GOP had screwed the country than it is to any particular strategy of the Democrats'.

* I watch college ball.

I'm also certain that Gore would have won in a rout in 2000 if it hadn't been for the exact critique you are offering here.

Strangely, I've offered exactly that same critique myself and have been (and sometimes continue to be) just as harsh towards the 2000 Nader voters as you. The difference is: it wasn't knowable in 2000 that the Dems would spend six years unable to mount any effective resistance to Bush's depredations. [Of course, the extent of Bush's depredations weren't knowable either... but that he was substantially worse than Gore was IMO knowable.] Instead, what I see time and time again is the Dems (as a party) cavilling towards the mythical center in this endless quest for something; I dunno what, electibility? a lowered profile? Damned if I know, but it's frustrating, exhausting and, frankly, insulting to those of us who keep offering our support in the hopes that they'll eventually do something with it.

I should add: it may be that they've finally got the ball rolling against this torture bill; I didn't see the House debate and so maybe I'm still working on last month's cycle. Here's to hoping.

I think you'd be extremely hard pressed to find more than a couple of Democrats who disappoint you on every sinle important issue -- but even if they did, you have also to figure in the effect their being there has on the Republicans.

You kidding me? I can't think of a single Democrat who hasn't disappointed me on something and that's a good thing. [I barely agree with myself half the time.] That's not the issue on the table, though. The issue on the table is this issue: should we legalize torture? And that's one issue I can damn well expect all Democrats -- in Congress or no -- to agree with me on.

What have you done to build it these last 6 years? What business do you have calling people cowards who don't have constituents who will back them up?

Volunteered at phone banks, spoken up at various meetings, tried to convince my friends to vote wisely (and have succeeded at least twice on people who more or less identified as Republicans), and on one occasion called my Senator and explicitly told him that if he were to support a particular bill that he would have my electoral support come hell or high water. [He didn't.] Not enough, clearly -- and I mean that without a trace of sarcasm.

And fwiw, just we're clear: I think you're doing God's own work, I respect the hell out of you and I completely understand what you're saying. I should do, it's what I've been saying for the past six years. At this point, though, I'm no longer convinced it's right. The Dems need to make a stand and I think they need to have it made brutally clear to them that there will be real, material, personal costs to their selling us -- by which I mean America -- out again.

As a final side-note, I agree with Nell that this highly depends on who your Senator is, what the race is like, etc. One thing I'd like to put forward is this: IMO the single perception that most undermines the Democrats is the notion that they lack principles. This goal-line stand is exactly the kind of issue which most clearly reveals this. If the Democrats as a party do not stand up against this, supposedly one of our most hallowed principles, then what the hell do we stand for? Yes, there's a framing issue at stake here; yes, it could be politically risky in some Democratic races; but damn it, if we don't stand up for the little guy here -- for those who are being tortured, for those whose families have disappeared, for those being stripped of their most fundamental rights on the whim of the spoiled child in the Oval Office -- then we don't deserve to win.

So yeah, I'm drawing a line in the sand. I'm not trying to convince anyone of its correctness because I'm not convinced of it myself -- but I am convinced that a line needs to be drawn and, for me, here is as good a place as any.

[Anarch]

And before I head out, one final final side-note:

hilzoy: Though, of course, I realize that I'm not the boss of you ;)

God, I wish... ;)

[bob mcmanus]

Comity ain't my job description

"I always used to wonder how all that 60s stuff my parents are sentimental about started"

"Tune in, turn on, drop out" :)

was a metaphor, of course. How 'bout:

"Education, enlightenment, alienation"

...meaning you can't change the system from within the system, or, alternatively, you can't change the system and preserve the system simultaneously.

That can mean anything from a commune in Oregon to local feminist politics to just having an attitude about what you are doing, maybe a secret attitude.

"The System". In the leftysphere I see hatin on the Democrats, I see hatin on the media, and I am just startin to see just a little hatin on the socio-economic structure that constrains and empowers politics and discourse. TV campaigns and media consolidation. Pretty soon maybe people will be gettin tired of "whack-a-mole".

[Katherine]

Well, for all my crankiness this thread is making me want to donate to three Democratic candidates.

Also, note that for all my kvetching about giving up on the Dems as opposed to Charley's more tolerant attitude it gets us to the exact same place:

--vote Dem in the general election
--support Lamont & candidates like him in the primaries
--write and call Congress on big votes and try to get others to do the same
--try to change public opinion, and hope the Democrats will at least follow if they won't lead.

I still can't believe Durbin, though.

Oh, Nell: as I understand it, Levin and Specter are co-sponsoring an amendment to remove the habeas stripping portions of the bill. There will be a judiciary hearing Monday, and a vote--I'm not sure when a vote, but I think they're going to need to be able to stop it on the floor, not just judiciary.

bob--no tuning in or dropping out in my family. We're geeks, see.

[KCinDC]

Katherine, I guess Durbin is still in the mindset that made him offer his embarrassing tearful apology for his appropriately outraged statement about torture before. Maybe he's right that he's doomed electorally if he stands firm on his beliefs, but I really hope that's not true.

[hilzoy]

Besides all the other stuff, I want to reiterate a point I tried to make in my Give To Joe Sestak post:

This is happening in part because the Democrats got mau-maued on national security. We need to support people who have the confidence to push back against that. Not that anyone is immune (cough, Max Cleland, cough cough), but people who are not fully confident in their own national security credentials are a lot easier to cow than people who are.

[hilzoy]

PS: looking up Sestak's contribute page for that last comment, I found myself unexpectedly giving him money again.

Blogging: it costs more than you think.

But in a good way.

[Nell]

Correction to my post at 2:38: endangering American soldiers (including Jim Webb, Jr.)

Jim Webb, Jr. is not a soldier but a Marine. They're big on the distinction.

[CharleyCarp]

Anarch, I don't mean that to sound as aggressive as it came out. Let me put it this way: I think the time to start drawing lines and issuing ultimatums comes when there's a viable alternative. I don't think that destruction of Democratic Moderation will lead to a golden age of Democratic Progressivism, unless that age is coming anyway and the only thing standing in its way is Democratic Moderation.

I think you've done a funny judo with my disappointment point. I wouldn't ask how many Dems disappoint you sometimes, but how many disappoint you all the time. The former situation you'll have in the coming golden age of Democratic Progressivism. The latter -- well, I'm not sure what you want from these people.

Nell, I'm glad you have a good candidate, but the question about whether a filibuster helps Allen has to do with the mindset of swing voters, not the character of your candidate. On this issue, Allen doesn't have to run against Webb; he can run against Ted Kennedy. I hope you're right that the swing voter in Virginia isn't going to vote on this stuff, or rather that Webb can keep the focus off of it.

You know, Levin and others introduced an alternative to the torture bill back when the Admin came out with its bill -- probably a day or two before the Graham/Warner bill was introduced. (iirc) This is why I'm irritated by the constant refrain that Democrats have just sat back and did nothing. Were they supposed to barge into the room where McCain was negotiating with Hadley? Grab a mike from Graham and say that their bill was better than either version? Our folks have been working the hell out of this thing since the first bill came out, and I don't think 'Dems sitting on the sidelines' is remotely correct, no matter what kind of glib line some reporter was able to get about the politics from Reid. (On this issue, Reid's focus has been to try to play this in a way that it won't be a Cleland moment. The danger has always been apparent that it would end up that way, I am not aware of any Democrat who ever thought that the Graham/Warner/McCain thing was going to get them all the way off the hook on the Cleland attack. From a habeas perspective, this was always crystal clear, in that Graham is and has consistently been a driving force for habeas stripping.)

Can we get a filibuster? Only if enough people don't feel vulnerable. What happened to Max Cleland was ugly, but it worked, and it would work if they did it again this year. And I don't think it's his fault in any way that it worked.

[matttbastard]

Elizabeth">http://www.suntimes.com/output/otherviews/cst-edt-ref23b.html">Elizabeth Holtzman points to the elephant over in the corner:

Thirty-two years ago, President Gerald Ford created a political firestorm by pardoning former President Richard Nixon of all crimes he may have committed in Watergate -- and lost his election as a result. Now, President Bush, to avoid a similar public outcry, is quietly trying to pardon himself of any crimes connected with the torture and mistreatment of U.S. detainees.

The ''pardon'' is buried in Bush's proposed legislation to create a new kind of military tribunal for cases involving top al-Qaida operatives. The ''pardon'' provision has nothing to do with the tribunals. Instead, it guts the War Crimes Act of 1996, a federal law that makes it a crime, in some cases punishable by death, to mistreat detainees in violation of the Geneva Conventions and makes the new, weaker terms of the War Crimes Act retroactive to 9/11.

Press accounts of the provision have described it as providing immunity for CIA interrogators. But its terms cover the president and other top officials because the act applies to any U.S. national.

[Katherine]

"Were they supposed to barge into the room where McCain was negotiating with Hadley? Grab a mike from Graham and say that their bill was better than either version?"

Here is what they are supposed to do, on this issue and in general: recognize that they can influence public opinion on these issues, and try to do so.

Oh, and also, to know what the hell is going on, as far as both the facts and what the bills they're considering actually do.

A few of them do both, of course.

I know it's hard to get coverage but I've actually looked on their websites and the Congressional record, and I've seen close to nothing.

[kenB]

The image I have of congresscritters is that they're largely poll- and focus group-driven. Is it fair to assume that the Dem pollsters are running the numbers and telling the politicians that fighting back on this issue will hurt them? Are any of these guys trying out different messages to see what will work? Given the numbers from the news polls on Americans' opinions about torture, I have to think that there are ways to play this that will resonate, if anyone's looking for them.

[Nell]

Charley, you are making the assumption that Katherine decried many comments ago, that a stand against torture and for due process is a political loser. I'm not making a point about Webb's character, but about his political approach: he's showing the right way to run against the disaster that is Republican policy on national security.

Webb isn't trying to keep the focus off it, but adopting the far more politically effective stance that the way to protect this country is to use common sense and not throw away the things that are best about it.

You also are trying to have it both ways about the Senate Democratic leadership: You want to say they've been working hard on it, in opposition, but also that "Reid's focus has been to try to play this in a way that it won't be a Cleland moment. The danger has always been apparent that it would end up that way."

Yeah, no kidding, so instead of leaving the media and political field to the likely 2008 Republican nominee, Democrats should have been making it clear from the get-go that there is no need for any new legislation on interrogation, and that they would filibuster to prevent legalizing torture -- and particularly to prevent retroactively legalizing it to cover Bush's rear end. They should have been making noise about the 700-year-old, fundamental right of habeas corpus being in danger of being flushed away by Republicans, both the "moderate" and extremist variety.

It's completely disingenuous to say that Reid's statement doesn't convey the real approach of the Dem leadership, but was a glib line extracted from him by a reporter. Right. Harry Reid's been around the media track, and he's not the only one to say these things; Durbin and Levin are singing the same tune.

I have been following the development of these bills and these issues as closely as I know how, and I've never heard of Levin's bill before your post. Doesn't that say something about how the Dem leaders are playing this?

This whole disaster reminds me more than I can stomach of the passive, uncoordinated approach to the Alito nomination in 2005 and the stampede to war in 2002. Everyone with a political bone in their body could see what the Republicans would run on: it's all they have. You don't prepare for that by evading it, but by countering it, preferably pre-emptively.

Swopa at Needlenose has been hammering on this theme for a year. His post on the situation the Dem acceptance of the "compromise" is one that I agree with in every detail. A taste:

At first, it seemed like the Senate Democrats might be attempting something like the drafting principle in stock car racing, lurking quietly behind in the slipstream as [the] simian trio of McCain, Graham, and Warner absorbed the headwind of opposing the Fear President. Unfortunately, it's now obvious that they were comfortable staying in second place for the entire race... and if they're not careful, it's where they're going to up on Election Day, too. ... Democrats are going to get the worst of all worlds -- they're going to acquiesce to allowing officially-endorsed torture by the United States, look spineless to the public for not taking a stand, and get slandered by the Republicans just as [if they had]. This is what learned helplessness gets you...

Charley, there's more than a hint of that same political learned helplessness in your comments, and that's what Katherine and I are objecting to.

Leadership is making the political case, not deciding in advance that it's a political loser.

[Ugh]

Bought a copy of Kafka's "The Trial" today. It had been placed in the "current events" section.

[the cubist]

It appears to me that Rove may be running both sides' campaigns-- Dems _and_ Repugs-- with the help of the Hoover Fairy (the 21st century NSA equivalent of J. Edgar's fabled blackmail files).
This would explain a lot.

We desperately need principled leadership from the Dems, if there is to be an electoral solution to this at all.

[CharleyCarp]

Nell, I don't think the decision to deal with this on an inside, rather than public, basis was necessarily a political mistake. Nationalizing the election on the issue probably is a loser -- at least it is in some parts of the country in some races. And no about of posturing by Reid or Pelosi would have made it any better in those races. Probably worse. The Rove gambit on this subject didn't pay for 2 weeks after September 11 (that is, I think they were hoping to draw Reid and Pelosi into a fight) and I absolutely don't see how we're any worse off today than we would have been 3 weeks ago, had Graham/Warner/McCain not had their little thing. They folded because the WH told them they were killing the strategy. And they were -- one week more, and there wouldn't be a bill, or recorded votes, with which to beat Dems over the head.

Anyone who refuses to vote for their local Dem candidate because they think the leadership is spineless has no business complaining about GWB.

Maybe your Mr. Webb ought to put out a statement tomorrow. Tough guys favor fair trials, or whatever it is he'd say.

[CharleyCarp]

The http://thomas.loc.gov/cgi-bin/query/z?c109:S.3875:>bill I was thinking of was introduced by Reid and Durbin. I have a copy of the press release that went out when it was introduced, but don't recall it having been picked up.

[Nell]

I absolutely don't see how we're any worse off today than we would have been 3 weeks ago, had Graham/Warner/McCain not had their little thing.

In policy terms, maybe. Politically? Well, we just disagree. It's a little surprising to see you characterize the outside approach (that didn't happen) as "posturing". Something to do with professional perspective, perhaps; you're part of the inside approach, where people in my position are inherently outside.