Maybe Digby called the legislative conclusion, but I don't think Digby called the public reaction. The report on NPR this morning was clear-eyed and pragmatic, and said there was more left unsaid than said. Nina Totenberg's analysis yesterday was equally critical. The New York Times has another editorial up today, pointing out more flaws in the legislation. There are loopholes here that you could drive Humvees through:
Both the White House and Senate versions contain provisions on rape and sexual assault that turn back the clock alarmingly. They are among the many flaws that must be fixed before Congress can responsibly pass this legislation.And the front page (on the website, anyway) article notes the "contradictions" and "legal paradoxes" in this proposed bill:
Rape, sexual assault and sexual abuse are mentioned twice in the bill — once as crimes that could be prosecuted before military tribunals if committed by an “illegal enemy combatant,” and once as “grave breaches” of the Geneva Conventions that could be prosecuted as war crimes if committed by an American against a detainee. But in each case, the wording creates new and disturbing loopholes.
It would impose new legal standards that it forbids the courts to enforce.Sen. Carl Levin has announced his concerns with the proposed law, and while he hasn't promised a filibuster, he's made public his interest in preserving the rule of law, and invoked Sen. Leahy's name in that effort.
It would guarantee terrorist masterminds charged with war crimes an array of procedural protections. But it would bar hundreds of minor figures and people who say they are innocent bystanders from access to the courts to challenge their potentially lifelong detentions.
And while there is substantial disagreement about just which harsh interrogation techniques the compromise would prohibit, there is no dispute that it would allow military prosecutors to use statements that had been obtained under harsh techniques that are now banned.
Is it all over but the crying? I'm not so sure anymore. This is beginning to seem clear, from the public reaction to the bill (by way of media reports, which is the most concrete reaction we're going to get):
“The only thing that was actually accomplished,” said Eric M. Freedman, a law professor at Hofstra University and the author of a book on habeas corpus, “was that the politicians got to announce the existence of a compromise. But in fact, most of the critical issues were not resolved.”And that's another loophole the Democrats could maneuver a victory through. It may be the Democrats will maneuver this bill into extinction, rather than grandstand it away. A loud noise of rejection might make some of us feel righteous and justified; but simple tinkering with the provisions might well kill it without leaving fingerprints the GOP could exploit.
And there is this, which I hadn't heard before:
The compromise adds a wrinkle, prohibiting the very invocation of the Geneva Conventions in civil cases and habeas proceedings and, depending on how one reads an ambiguous passage, perhaps criminal cases, too.Apart from all that, the groundswell of opinion that demands security over civil liberties, just doesn't seem to be there. It may be a good time to gum this legislation to death, rather than engage in a dramatic confrontation. And it may still be that this is how God delivers us from danger. Not by coming down and setting fire to wood, but by making sure the angels of our better nature, and our better sense, finally prevail.
The Senate Judiciary Committee will hold hearings on Monday on limiting detainees’ habeas challenges. If Congress does not act, Professor Freedman said, the courts may reject the habeas provisions in the law.
“An attempt to throw out of court many hundreds of pending cases that the Supreme Court has twice held have a right to be there,” he said, “is not likely to be met with a favorable reaction in the Supreme Court.”