Constitutionality of torture

Republican senators Arlen Specter and John McCain and Lindsey Graham are media favorites who get a lot of positive attention for seeming to stand up for the right thing even though they almost invariably capitulate to the White House. (McCain in particular has this totally undeserved reputation as a ‘maverick’ and ‘straight talker’ and ‘moderate’ when in fact all he does is talk and does not back it up with action that would make such a reputation truly deserved. To me he seems like any other Bush-kowtowing hardliner.)

He and Specter and Graham have repeatedly choreographed elaborate kabuki dances with the White House which begin by staking a position in seeming opposition to some extreme White House proposal such as torture, and then after ‘negotiations’ with the White House, celebrate a ‘compromise’ which essentially capitulates to the Bush administration, giving it almost exactly what it wanted in the first place. So we now repeatedly witness the spectacle of the White House essentially negotiating with itself through these agents, and then all these complicit parties patting themselves on the back for working out a ‘compromise’, with the media celebrating the ‘democratic process at work’ and hailing the ‘bipartisan’ spirit.

Some of the legislators who voted in favor of the torture bill did so even though they thought it was bad legislation, presumably because they thought that the Supreme Court would rule it unconstitutional and thus no lasting harm would be done.

Sen. Arlen Specter (R-PA), who voted for the bill even after his amendment to preserve certain rights for detainees was defeated, called the proposal “patently unconstitutional on its face,”

Apart from the fact that this is craven behavior and buck passing, there are also serious concerns as to whether this works even as a strategy. Bruce Ackerman, a professor of law and political science at Yale and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, writing in the September 28, 2006 issue of the Los Angeles Times says that this is an extremely dangerous strategy for the following reason:

But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority. (my emphasis)

This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case — upholding the military detention of tens of thousands of Japanese Americans during World War II — has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures.

Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.

But it is clear that the White House is not content to merely hope that the Supreme Court upholds this law and has already started on a dangerous strategy to intimidate the Court to go along with this legislation, which I will write about in the next post.

This is a grave moment in this country’s history. Jesus’ General is a satirical website in which the author adopts the persona of a war-loving (but cowardly), gay-hating (but closeted), Bush-worshiping, devout, intolerant, bigoted Christian in order to write his amusing and whimsical posts. But the passage of this legislation was too much for him to parody and so he gave rein to his serious side (or his ‘inner Frenchman’ as he refers to it) to reveal his real feelings:

The memorial to the United States I posted yesterday caused a few people to wonder if I’d given up. They were wrong. I was merely doing what I do every day here, expressing the way I felt about the day’s events.

Although I expected we’d lose the fight in the Senate, the final result nonetheless brought tears to my eyes. I had witnessed the death of the nation I loved, or more specifically, the murder of a set of ideals, upon which a nation was structured. I felt a need to memorialize that loss.

I target patriotism almost daily with my satire, but it’s not a love for country I mock, rather it is the simple-minded nationalism of the right; a patriotism that values symbols over substance; a patriotism that drives legislators who angrily acted to ban flag burning to pass a law gutting our Bill of Rights.

The basic values I love most, the ideals that made me proud to be an American, due process, habeas corpus, the proscriptions against cruel and unusual punishment and the use of coercion to compel confession were destroyed in the name of that kind of patriotism yesterday. Our America, liberal America, died with those ideals.

That’s why I mourned.

But today is a new day, a day in which I hope we will all resolve to fight harder than ever to bring our America back.

You should read the whole thing and bookmark the General’s site if you have not already done so because he illustrates well how to reveal deeper and serious truths using a light and humorous touch.

POST SCRIPT: Bill of Rights? What Bill of Rights?

Even in these cynical days, I find it hard to believe stories like this.

Attorney David Lane said that on June 16, Steve Howards was walking his 7-year-old son to a piano practice, when he saw Cheney surrounded by a group of people in an outdoor mall area, shaking hands and posing for pictures with several people.

According to the lawsuit filed at U.S. District Court in Denver, Howards and his son walked to about two-to-three feet from where Cheney was standing, and said to the vice president, “I think your policies in Iraq are reprehensible,” or words to that effect, then walked on.

Ten minutes later, according to Howards’ lawsuit, he and his son were walking back through the same area, when they were approached by Secret Service agent Virgil D. “Gus” Reichle Jr., who asked Howards if he had “assaulted” the vice president. Howards denied doing so, but was nonetheless placed in handcuffs and taken to the Eagle County Jail.

The lawsuit states that the Secret Service agent instructed that Howards should be issued a summons for harassment, but that on July 6 the Eagle County District Attorney’s Office dismissed all charges against Howards.

If the facts of this story are true, Howards had better watch his step. All the president has to do is declare that he and his son are enemy combatants and they can be shipped off to Guantanamo and never be heard from again. While Guantanamo may have piano wire, I doubt that they will use it to provide piano lessons for his son.


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