Torturing Justice

The Republicans managed to push their legislation through the Senate yesterday. My take on this is twofold. On the one side, I agree with the Democrats as reported by the New York Times

Democrats argued that the rules were being rushed through for political gain too close to a major election and that they would fundamentally threaten the foundations of the American legal system and come back to haunt lawmakers as one of the greatest mistakes in history.

This legislation is a mistake and only being pushed right now to give the Republicans a ‘rescue-ring’ issue for the next few weeks. Passing this bill now let’s the Republican party hammer on the anti-terror button for the next few of weeks, drowning out the negative press caused by the ‘Trends in Global Terrorism’ report from the intelligence agencies. The Democrats voting for the bill were left with little manoeuvring room; it was either vote for the legislation or be painted a friend of terrorism.

But I wonder if there isn’t even more political bait and switch going on. It is very possible that this legislation won’t pass even the current Supreme Court.

Senator Carl Levin of Michigan, the senior Democrat on the Armed Services Committee, arguing for an amendment to strike a provision to bar suspects from challenging their detentions in court, said it “is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees.”

The amendment failed, 51 to 49.

Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the provision barring court detainees’ challenges, an outcome that would send the legislation right back to Congress.

“We should have done it right, because we’re going to have to do it again,” said Senator Gordon H. Smith, Republican of Oregon, who voted to strike the provision and yet supported the bill. [my emphasis]

It will be interesting to see if Bush adds any signing statements limiting even this legislation. If yes, he will probably sign the law shortly before the election and include signing statements again limiting the Geneva Conventions.

But even if Bush signs the legislation as is, I wonder how many Senators are hoping this will just buy time. If the Supreme Court kills this sometime next year, it would give the likely Republican Senate (and  a possible Republican controlled Congress) the chance to replay this theatre for the Presidential elections.

Especially McCain might be hoping the cards fall this way. The anti-war feeling in the US will probably increase over the next few years. McCain can use the failure of this law and his status as a former prisoner of war to push more responsible legislation in two years. He can win brownie points while remaining well in character. If the Supreme Court doesn’t kill the law and the war starts looking up (or elves take over the Middle East), he can leave it more or less as is. For McCain it’s an almost win-win situation; probably what he was planning.

Oh! And if McCain changes the legislation, Bush can push the Justice Department to charge lots of intelligence agents and administration officials just before he leaves office. Then during his last days in office, he pardons them. Outwitted those justices again! (Boy can I spin conspiracy plots.)

I just wish the political system weren’t in such bad shape with all the problems at the moment. That’s what keeps torturing me.

Update:
Go read  The Blind leading the Willing by Dahlia Lithwick over at Slate. She’s probably my favorite legal journalist. (And she has an excellent sense of humor.) Her take is even darker than mine. Congress doesn’t know what they are talking about, or worse, they are actively trying to avoid finding out.

Best comment: “enemy combatants (a term that sweeps in citizens and noncitizens, Swiss grandmothers and Don Rumsfeld’s neighbor if-that-bastard-doesn’t-trim-his-hedge)” lol!

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