Like I said in the late update, Marty Lederman seems to think the White House walked away with everything on this one. From my very non-legal understanding of things, from what I can tell, we agreed not to reinterpret the Geneva Conventions, only to violate them.

according to the NYT habeas corpus is being done away with, all CIA will be forgiven as it will be done retroactive, Waterboarding will no longer be allowed, but the secret prisons have not been discussed yet. They are against International Law no matter what we say, as well as what torture we have already done. Spector said on the floor of the Senate yesterday that any attempt to do away with Habeas would have to be Unconstitutional, but Spector is about as reliable as the town drunk left to guard the still. I did a diary earlier at dkos, but the above info is newer. here is the link to my diary.http://www.dailykos.com/story/2006/9/21/18559/3374

This is hardly an articulate comment. Let me simply say:

I am sickened and repulsed by what America has come to.

We have a Congress, including the Senate, that acts as a rubber stamp for Bush, that has never seen a Bush proposal that they can't accept, that will, in the end, quietly replace everything they publicly insist be removed from a Bush proposal.  So, I just can't get my mind to go thru the motions of analyzing this particular fluff event.  One thing we can be sure of:  the Bush administration will continue to do whatever they wish, and if that includes torture, transporting US citizens abroad for others to torture, and totally ignoring habeus corpus, then those things will continue to happen.  With our brief attention spans few of us will even remember that we had an agreement not to do those things. 

Hoppy in Sacramento

the White House walked away with everything on this one.

That seems to be right, as far as I can tell. I don't understand everything yet, but this much seems to be clear:

1. The ostensible compromise on the McCain-Graham-Warner side is that they withdrew their objections to the use of secret evidence in detainee trials.

2. Rather than redefine our interpretation of the Geneva Conventions supposedly too vague definitions of cruel, inhumane and degrading, a specific list of prohibited tactics will be laid out in the War Crimes Act (leaving it to the torturer to be more creative). These will constitute 'grave breaches' punishable under the WCA; lesser offenses will be handled within the Executive Branch (but is any offense not in the list lesser? What if it's, um, greater?)

3. No detainees will have habeas corpus rights to challenge their detentions in federal court. Those who have been found to be unlawful combatants will be allowed to appeal this determination in federal courts, but the courts will only have the ability to rule on whether the Combatant Status Review Panel in the case properly followed its own procedures.

This last bit strikes me as pretty radical: all they have to do is effectively stop the review process and everybody left inside will have no recourse to challenge their imprisonment. That pretty well defines a legal black hole.

To be fair the Dems on the committee did offer an amendment to restore habeus corpus rights; it was voted down on party lines.

Digby had this one nailed from the get-go(link):

However, I must say that I'm so jaded about those so-called independent Republicans, particularly Huckelberry and McCain, that I have a strong feeling that this is some sort of Kabuki. Huck, especially, has never once failed to validate my belief that he is a phony little prick, pretending to be a moderating influence when he's really just an egomaniac. (Besides, if there's one member of congress who is subject to Rovemail, it's him. I just don't see him bucking the president on something that's important to him.)

I admit to similar feelings about Lindsay Graham. To paraphrase Shakespeare, it's like a tale told by a closet @$$kisser, full of sound and fury, signifying nothing in the end.

I agree with Devon's analysis here (to the limited extent that I am familiar with the compromise). It looks like Graham-McCain-Warner put more emphasis on maintaining the Geneva Conventions standards, grave offenses of which are now codified into federal criminal law under the War Crimes Act, but compromised on the nature of the tribunals (according to AP, hearsay evidence will be allowed, evidence coerced via torture before the late 2005 rule change banning "cruel, inhuman or degrading treatment" is admissible, and detainees cannot bring federal habeas corpus suits - but they do get access to evidence in trials).

Back to the Geneva Conventions, under the bill, the "grave breaches" of the Geneva Conventions (which will now be listed under the War Crimes Act) are "acts such as torture, rape, biological experiments and cruel and inhuman treatment." But what to make of the "the President has the authority to interpret 'the meaning and application' of the Geneva Conventions" part?

I think the primary purposes of this clause are: 1) to ensure that the bill does not subject US troops/agents to International Criminal Court proceedings, and 2) to appease conservatives who are strongly opposed to the US losing any sovereignty to international law or int'l institutions. Keep in mind that Bush has always seized on this sentiment, using language like his 2004 debate line that the US shouldn't have to take "an international test" before making military decisions.

Overall, I think this compromise has some great elements, including the codification of torture and other grave offenses of the GC into the War Crimes Act. The habeas corpus issue is troubling, and I wonder if that will really meet court standards. And by the way, I do not believe that Lindsey Graham et. al. ever were pushing for federal habeas corpus rights for detainees (no cite here - please correct me if wrong - but I remember him saying he did not think they deserved them), so I don't think that was much of a compromise for them.

Let's just hope the House throws a monkey wrench into this legislation. If not, perhaps some activist judges will. It ain't over yet.

I have no sources so I'm just guessing here -- but the usual m.o. of Bush in a negotiation is to a) stake out a ridiculously radical position, so that the merely extremely radical position will appear moderate b) agree to the extremely radical position as a compromise, but declare victory and leak that eh got everything he wanted, then c) puruse the ridiculously radicaly policy anyway.

I would suspect therefore that the GOP Senators may have been told they'd get the WH to support their goals (really the military brass's goals) on Geneva, that the WH is leaking it got everything except a superficial agreement on Geneva, and unless the Dems win the Senate, we'll have a policy that disregards Geneva anyway.

If the Dems win the Senate, the Republicans will demonstrate an atavistic affinity for the filibuster. Frist's recent threat v/v this issue was a merely a preview.

What deal?

~OGD~

Chris Mackey (a pseudonym) a senior Army interrogator at Kandahar and later, Bagram, details the effectiveness and limitations of legal interrogation in his book, THE INTERROGATORS: INSIDE THE SECRET WAR AGAINST AL QAEDA. Mackey and his colleagues were horrified at the revelations of Abu Ghraib.

Mackey: "The abuses at Abu Ghraib are unforgiveable not just because they were cruel but because they set us back. The more a prisoner hates America, the harder he will be to break. The more a population hates America, the less likely its citizens will be to lead us to a suspect." (p. xxiii)

Mackey: "One of our biggest successes in Afghanistan came when a valuable prisoner decided to cooperate not because he had been abused (he had not been), but precisely because he realized he would not be tortured. He had heard so many horror stories that when he was treated decently, his prior worldview snapped, and suddenly we had an ally." (p. xxiii) [This case is extensively addressed in a chapter of its own.]

Yet another voice from the frontlines that BushCo refuses to hear.

Just as a point of information, the Magna Carta didn't introduce the concept into English law; it merely specified it as one of a series of complaints against King John.

In point of fact, the Magna Carta is really over-rated when cited as the source of this and many other concepts; it had been ignored by the king within months of being forced to sign it.

Also, the Magna Carta in no way did away with judicial torture, much of which was carried out in other venues than royal courts.

He tortured the knaves so judiciously that soon he was the ruler of the Queen's judiciary.

Do you understand the deal

Simple enough:

- Alternative interrogation up to death is allowed along as it is denied.

- Trials will dispense with the usual farce of considering the possibility of innocence.

What's the problem?

Best, Terry

This entire "fight" over the Geneva Convention is a setup for both sides of the issue, all done for the participants to look good to the voters come November. Bush gets to look like the tough big boy he loves so much and this group of three Senators appear as if they are truly looking out after our rights and National image. Both sides win this "bogus battle of the bullies" and nothing really changes. This whole thing is looking as if the President will still get to do what he wants despite the fracas created about our military men and women's safety.

I am very curious to see what this "deal" specifically says and even more curious to see if the Democrats have the collective balls to try to take corrective measures once said details are revealed.

Well I for one would be DELIGHTED if we applied the same standards to "enemy combatants" as we would POWs -- but that's precisely the issue. They are NOT treated as POWs. Bushies spun out of whole cloth some new "classification" of prisoners then made up the means of imprisoning them and trying them under rules laid out by that legal genius, Rumsfeld, leaving out most due process protections recognized under U.S. and customary international law.
Forget U.S. Code of Military Justice and forget the Geneva Conventions (which determine a) how to treat POWs AND if a combatant is NOT a POW, how to determine what they are (see Article V).

This whole think sickens me too.

POWs?

"Ilegal Combatants", isn't that the term * and the neocons came up with to keep from allowing these "terrorist" suspects to have any rights whatsoever and to disallow them the rights POWs have under the Geneva Conventions?

Hard to see how this deal will in any way change business as usual in Bushco's gulags. I'd like to know what Powell and the other military members who objected to the original bill will have to say.

Question for all Americans: Are you a member of the Pro-Torture Party? Congratulations on your nice campaign.

Bush and Company NEED terrorists to attack us before the election. Clearly he's signaling to the world that it's OK to torture any captured American soldier or citizen. (Incidently, America's own illegal and immoral treatment of prisoners is acceptable, too.)

Bush, Cheney and Rove need fresh video of Amercans being tortured and killed, just prior to the election, so they can say, "See it's a dangerous world full of evil terrorists, and only the Pro-Torture Party can fight these Islamofascists in the only manner they understand. We're tough on terrorism -- Democrats are weak."

This all fits together, but it's an absolute shame that it does.

Polly Tics, shall I assume, then, you believe McCain should still be labelled a maverick?

Do you disagree, as Josh Marshall has posed, that this "compromise" amounts to McCain and company essentially allowing torture to continue? 

Dissent Protects Democracy.

 ...it creates an opportunity to challenge the McCain mythos by going out hard and saying he's caved on his principles, and they're shocked that such a maverick turns out to be in it for nothing more than an election-grubbing shill.

McCain has created dozens of similar opportunities that Democrats could have used in the past 6 years!  Have they done so?  Only on blogs, griping away, but not being heard by any but the choir itself.

This morning the daily newspaper in Charlottesville, Virginia has as its banner headline--1 inch bold lettering:

Weed ad mislabels man as felon

It seems that ONE of the TWO MZM defense contracters (remember Randy Cunningham?) who got great deals from Weed's opponent (Virgil Goode) got a plea agreement.  One plead guilty to felony charges and the other plead guilty to a misdemeanor.  Weed's ad refers to them both as felons.

Thus the headline.  I never saw a banner headline when the felony was plead, nor when the misdemeanor was plead.  I never saw a headline about Goode's acceptance of "straw" campaign donations.

We have a long way to go.

Jan Knaus

On the habeas-stripping provisions, this occurs to me:

This move is obviously important to Bush, because it undoes the challenge to the unitary executive theory caused by the Supreme Court ruling in Rasul v. Bush in 2004.  But the provision probably won't survive judicial review.  It will set back the progress of detainees who might have some hope of getting sprung - figure that if this goes through, it'll take two to three years before the challenge reaches the SCOTUS.  

Meanwhile, on the left, many have wondered why the Administration would push so hard to concentrate so much power in the hands of the executive branch, when they know full well that this power will someday be in the hands of a President not to their liking.  

Here's a theory: what they're after is a temporary unitary executive doctrine.  Which is to say, they're grabbing as much power as recklessly as they can while they can, knowing that they can make the most of it before it is constricted, around the time the next president gets to town. 

I would rate this comment a 5. Not only am I too sickened and repulsed but I am all but overcome with grief, especially when I remember the days of promise so many years ago.

This "compromise" shows two things. The real danger of having one party in control of all branches of government. One can only image the political pressure on the Republican Senators to playball with the Republican President.

It also demonstrates the need of the Democrats to show some spine and explain the issue to the American people. Obviously Republicans still believe they have the Democrats boxed in. Either they will rollover or be seen as soft on terrorism. Unless Democrats are willing to debate this issue they will lose on this issue, and so will the Country, everytime.

Daniel A. Greenbaum

A Lesson In Republican Doublespeak:

On Tuesday, the Grantville Republican told a Douglas County Chamber of Commerce luncheon that he "voted for torture" and that "we need to get information out of these people the best way we can," the Douglas County Sentinel reported.

He said Wednesday that he should have "put that another way."

"Maybe I shouldn't have said I voted for torture," he said in an interview with The Associated Press. "I should have said I voted against the anti-torture bill."

I'm going to get accused to flying the "Rove planned the whole thing" flag, but...

One of the issues in the midterm is making the election a referrendum on the president. That will be especially easy to do if Republican congressmen are seen as the president's lapdogs and rubber-stampers.

Here we have a case where a bunch of senators very publically stand up to the president (including a couple who we wouldn't expect this sort of thing from, like Graham), with the Democrats conveniently silent because they interpret the whole thing as a republican meltdown.

The president gets to go on torturing people, and can point to "the agreement" as tacit justification. Republican candidates got a news cycle or two full of "republicans stand up to the president(?)" headlines. Sounds like a good deal.

Granted, it would take a talented puppeteer to pull the whole thing off, and the outcome isn't entirely republican-friendly with the NYT/WaPo reponse... but they certainly didn't have any booming condemnations on CNN this morning. *Shrug*

Thoughts?

Clearly, that is satire. No?

There is something so stupid, so shortsighted, so wrongheaded about this "deal" that you have to wonder why our fellow Americans are willing to endanger our soldiers, our ideals, our constitution, our future and for what? So they can torture people?

Why are these people who are forever pounding the drum of patriotism and love of country so contemptous of the constitution, so cynical and disdainful towards the American people? The very reason men like Madison and Jefferson were so intent upon enumerating our rights was because they knew governments cannot be trusted to respect human bounderies, and that they will continue to encroach and encroach until those rights are gone. How long will it be before they start torturing us because they don't like our beliefs or our politics?

This is the way it starts...

I've got to hand it to the Democrats. The strategy of allowing the Republicans to "thrash out" their differences on the treatment and prosecution of detainees has played out exactly as planned...for the Republicans. Don't let anyone convince you that you can go to the well too often...that is if you are a Republican and your opponent is a fully inept Democratic Party.

Amidst a trend of favorable polling data and a firestorm of speeches by the President to refocus the voting public on their fear of terrorism, the Democrats stood in the background for the past two weeks and watched what the GOP will call the difficult work of creating legislation that preserves our commitment to civil liberties while at the same time providing our determined President with the essential tools needed to pursue those who seek to kill us all.

OK, perhaps I'm being too harsh. There is a possibility that in the past two weeks the Democrats were able to devise their sixth iteration of a campaign slogan and strategy to roll out with less than 50 days to the election. Perhaps they could call it "Fifty States, Fifty Days...But Never Fifty Percent"! It's catchy, it's succinct, and it may well be accurate come November 8th. Arrgghh!

Read more here:

www.thoughttheater.com

This from the BBC ...

Senator McCain said: "There is no doubt that the integrity and the letter and the spirit of the Geneva Conventions have been preserved."

However, the American Civil Liberties Union saw the agreement quite differently. Caroline Fredrickson, Director of its Washington Legislative Office, commented: "This is a compromise of America's commitment to the rule of law. The proposal would make the core protections of Common Article 3 of the Geneva Conventions irrelevant and unenforceable.

"In a telling move, during a call with reporters today, National Security Advisor Stephen Hadley would not even answer a question about whether waterboarding would be permitted under the agreement."

All one can say is that if they set out intentionally to convince the world that US citizens deserve whatever they get, they could hardly do a better job. I tend to side with the intentional & craven interpretation of their behavior, but, it hardly matters. The effect is still devastating. What is sad is that it is so unlikely the karma will come home to roost on those who have most earned and deserve it.

I think those of us who stand for the UDHR and Geneva need to fly our UN flags. Mine goes out today.

So you failed to pick up my sarcasm. I am saying the same exact thing you are.

The problem I have, aside from the whole, you know, "we're still torturing people" thing, is that DEMS (and so called "Ind.'s," which, as Karl Rove knows, there's really no such thing) will probably come out in droves and support McCain in 08, and there's a good chance he's the next Prez.   

We agree he's not a maverick -- how to convince the voters? That's a particular problem for the Dems in 08. 

Dissent Protects Democracy.

I attended a talk by Barack Obama this morning in Bolingbrook IL. I stopped him on his way to his car afterwards and asked if he would filibuster these bills. His response was that they didn't have the votes for a filibuster, and they were going to have to try to add amendments to make it more palatable. His parting words were "that's why they throw all things out just before the election." Unfortunately I only had about 60 seconds for this exchange.

As I was driving home, I became more and more discouraged at the idea that there weren't 41 Democrats with enough principles to stand up to this obscene set of bills. I know they are concerned with negative ads, but I think they are misjudging the landscape on this one. I think this is an issue that needs to be fought on strong principles and that the American people would see through the repubs attempt to smear the Dems on this one. Hell, they're going to get smeared anyhow, why not stand up for something? It reminded me of Clinton's showdown with Gingrich over the budget--Clinton forced the showdown, stood on principle, and turned his presidency around. I think this is an issue we should push right back in their faces.

The trick will be opposing this while not allowing the conservative narrative -- Dems weak on terror -- win out.

We need to shift the public's focus to the question of what kind of country we want to be and on this instance as another example of Republicans failing to live up to their own standards.

Whether the issue is spending or cronyism or the constitution or the principles this country has always stood for in the world, Republicans have proven that they cannot be trusted to uphold the standards they profess to believe in. They will always instead choose the path that is more expedient.

We should then reiterate again why torture is wrong, ineffective in its immediate purpose and detrimental to the overall goals of the war on terror.

You cannot defeat terror by terrorizing.

You cannot defend international law by violating it.

etc.

Someone religious such as Barack Obama should add this point: What profit a nation to live if it should lose its soul? (I may be getting the quote partially wrong)

The main thing is to shift the discussion to what this WOT is now really about: what kind of country we are going to be.

Are there any Democratic leaders who will take up this challenge?

I’m afraid I share your fear about steams of INDependents coming out for McCain in 2008 and that is JUST what he’s going for with this torture pitch. Our only hope is that the Dem’s begin to START fighting the Republicans and STOP being afraid to fight the “real” terror threat. Unless and until the party defines itself out of whole cloth, we will not be able to stop the Republicans who actually DO delineate their ideas, albeit a horrific representation it may be.

So we need to put pen to paper, fingers to keyboard and hands to phones and call our representatives to tell THEM that it’s time to stand up and fight!

Heck, if the Democrats don’t get their act together and get a real candidate this time around (and I do NOT mean Hillary) we will be stuck with one more Republican President…and worse yet, a Republican Congress.

So sorry, I wasn’t sure if you were trolling for bites or being sarcastic with your first comment.

Why oh why don't Dems use what Bush wants to allow against him!!!

It's simply the art of guerilla war, and that was the Dems are in, a political guerilla war.

Here's my advice.

Get a list of all those the security services have mistakenly arrested and 'questioned' on suspected terrorism.

In this list I would have old people (like the guy arrested in South Africa on the whim of the FBI); a granny who, if who gave money innocently to a charity that was linked to 'terrorism', could be arrested and questioned regarding her 'terrorist' links; etc etc.

Then get actors to play these people, and film those techniques Bush wants to be able to use on these actors.

I'm quite sure that the shock value will move a few people into voting against Bush

Regs, Shaggy

Sorry about the spelling mistakes in my earlier post.

Josh, why don't TMP do it; virally?

Make up an advert from clips you can find on the internet and set it up on YouTube, etc?

Come on, pull you finger out (not out of it's socket, that would be torture ;-) )

Regs, Shaggy

I just hope I don't have to see anymore headlines labelling McCain and Warner as "rebels." How were they rebels? Because they weren't in total lockstop with the White House. It's really sad, and a bit scary, when the smallest amount of political opposition deserves the rebel label.

And the whole McCain is a maverick shtick should stop too. McCain is no maverick and he never was. Paul Wellstone was a maverick. Patrick Moynihan was a maverick. McCain is a right-winger who happens to have a little common sense and some self-respect (although there are photos of him being kissed by Bush).

I hesitate to ask but has there been any polling about the use of torture?

One of the dilemmas in this whole discussion is the perception of the enemy and what that means. Bush, many letter writers to the NY Daily News are willing to let Bin Laden and other users of barbarism as the standard of our behavior. They do it so we should do it too. This is an example of letting the terrorists win. Talk about a debasement of our values. I presumed that peope like Bush did not believe in moral relativism.

I presume most people who participate at the Cafe would oppose torture on any condition. For this we should all be greatful. However, as a political matter the large gap is the way people on the left perceive the Islamic extermists and the danger they pose and the way most Americans do. This puts Democrats in an enormous trap.

Daniel A. Greenbaum

You're certainly not alone in being wrong about purported Dem strategy, LaFollette! Let's just say we need to take away from this two lessons -- lessons we should have taken away years ago, but...

1. The Democrats are now distinguished by being, at best, the least horrible political alternative, and,

2. No one in their right mind should have or ever should again trust John McCain or think, "He's basically a good guy." It's perfectly possible for someone to with a noble past to be a complete self-serving s.o.b. Which I believe McCain to be. The sometime enemy of our enemy is not our friend.

Note to self and others: vote for the future, not for the past.

A "dozen times". Again and again, I'm not disappointed by the WH - they've made their intentions absolutely clear from the get-go. The Onion editorial page nailed it in January, 2001.

The reason that most of my remaining hair ended up on my keyboard and in the sink this morning is McCain's actions. I really thought he took torture seriously.

Going forward - I truly hope some intrepid reporter has the gumption to pin him down with a carefully crafted question: "Thanks to your compromise, can you now categorically state that the United States, or anyone acting on its behalf, at home or abroad, will not torture, abuse, or de-humanize any detainees, POW's, or captees in any way, shape, or form?"

I ain't no lawyer with that thar sophisticated wordplay stuff, but there's got to be a way to make McCain admit that we are now, officially, in the torture business, and that he helped get us there.

Perhaps the few remaining members of Congress who actually oppose torture could convene on the steps of congress. There might be enough of them to play hacky-sack with the one or two reporters that show up.

Now, on to more pressing matters. Is there anything left in the house that I haven't beaten my head against today?

Which is precisely why we have a Constitution. It's supposed to help us through these troubled times.

The Democrats fall so easily into this trap because they don't have the fear factor that the right has. It's much more compelling to say, "We need to torture to stop another 9/11 from happening." That's damn compelling, even I stop and think, well maybe they are right. But then I remember that torturing people is barbaric.

The Democrats' argument is more like, "Well we shouldn't torture because it's wrong. We are selling ourselves down the river and putting our moral basis for fighting terrorism in jeopardy. And we should respect the laws and treaties we have signed into law."

There's no fear. There's no pop. Unfortunately for those of us on the left we bogged down with critical thought and see the world in shades of gray.