Balkinization: Further tales from a banana republic

Further tales from a banana republic

Sandy Levinson

I strongly recommend a column in today's Boston Globe by Peter Canellos. It is tellingly titled "Congress heads into torture debate blind." It concludes as follows:

Congressional leaders have made only token gestures of demanding briefings by the administration. And the Globe reported over the summer that only about a dozen members of Congress had availed themselves of the opportunity to read the national intelligence bill, which outlines the Bush administration's policies in the war on terrorism.

Many members told the Globe that they didn't read the bill because they would then be barred from discussing it, making any debate impossible.

But watchdog groups have suggested that no debate -- or a debate behind closed doors, with security rules in place -- might well be preferable to a debate that offers only a false appearance of congressional oversight.

Having no debate indicates -- correctly -- that the administration is on its own in deciding which interrogation techniques are lawful. Having a debate conveys the impression that the constitutional system of checks and balances is in operation. But with most members left in the dark, so is the constitutional system.

Again, I ask the right-wing readers of Balkinization: Is this the way they envision governance in a respectable republic? Why aren't conservatives outraged at the degradation of what we used to believe was a system of representative democracy and the slide into a form of caesarism? I heard former Sen. John Danforth last night explain that he is a loyal Republican because he believes in "limited government." But he chooses to aim his fire at the Christian Right rather to say anything at all about the embrace of unlimited government in the name of an endless "war on terror." At the end of the day, he is just another Republican loyalist. I hope against hope that Sen. Specter will at long last genuinely stand firm against the Bush juggernaut, but it remains to be seen.

Posted 8:39 AM by Sandy Levinson [link]

Comments:

Professor,

This has been the way of Congress ever since September 18, 2001, when our officials unconstitutionally granted war powers not for a state of armed conflict between nations, which is the only meaning the Constitution could be construed to allow, but for a campaign to end an injurious condition. Shortly on the heels of that dereliction of duty we saw worse, the rolling back of limits on the intelligence community put in place after the nation learned about COINTELPRO. H.R. 3162 was a long time in the making and had relatively little to do with pursuing justice against the organizers of nine-one-one; it was a well known and long standing aim of the intelligence community to get back what they lost post-Watergate. And with an unbridled opportunism and a truly Orwellian mastery of newspeak, H.R. 3162 was given a jawbreaker of a "short title" with an acronym of USAPATRIOT, which in turn the complacent and complicit media called "The Patriot Act." Numerous accounts tell us that Congress passed H.R. 3162 without reading it.

Why would we be surprised that they are doing it again?

When we let bad rhetoric such as "war on drugs" or "war on terror" or "war on poverty" be legislatively embodied, as we did with AUMF, we have to expect the kind of negligence we have seen in our elected officials ever since. It isn't just a dry matter of "framing" as professor Lakoff would seem to have it; there are vital, visceral matters of emotional response and abeyance of reason when confronted with such emotionally loaded terms.

There should be no surprise that Congress is going blindly down the well-intended path towards a national policy of torture. We all know where such paths lead. It is our responsibility to find a detour. One small part of working on that detour is to deny the perpetrators their language. There is no war on terror.

# posted by

Robert Link : 10:22 AM

Professor Levinson:

Most of the coercive methods were leaked and made the subject of public debate months ago. For example, see...

http://www.guardian.co.uk/usa/
story/0,,1874823,00.html

In any case, the current list of interrogation techniques is not important. The Congress is not voting on a list of techniques. These techniques can and will be changed in the future depending on their effectiveness and enemy training to resist them.

What is important are the baseline definitions in the legislation being considered this week. Anyone who does not read this important bill thoroughly before voting should be ashamed.

# posted by

Bart DePalma : 10:54 AM

I hope against hope that Sen. Specter will at long last genuinely stand firm against the Bush juggernaut, but it remains to be seen.

What leads you to believe Specter is even a candidate to "stand firm?" AFAIK, he is supporting the torture/interrogation provisions without reservation.

He has raised questions about the denial of habeus in the bill, but it's just talk. From today's Washington Post: "Congressional sources said Specter is unlikely to derail the compromise legislation over those objections."

On the twinned "terrorism" issue of warrantless surveillance, Specter started off posturing as a critical opponent, but has been carrying the White House's water to gut FISA for several months now.

# posted by

JaO : 12:31 PM

Sandy,

From what I understand in the article, the House and Senate intelligence committees have been briefed plus the House and Senate leadership from both parties, plus a few others.

That said, such practices aren't so unusual, especially in regards to sensitive/national security matters.

It is part of the purpose of the committee system - to allow a few trusted individuals from both parties access to sensitive information. In doing so, they can make their decisions and pass along their throughts to their colleagues. This both helps prevents the leaking of sensitive information while still allowing thoughtful decisions to be made. It's up to each respective party to have trusted individuals in the relevant committee. Individual party members then rely the committee members' opinions on the sensitive legislation.

Despite the negative framing by you and the columnist, the practice is fairly normal and hardly indicative of a "banana republic."

# posted by

humblelawstudent : 3:24 PM

I believe Senator Specter is sincere in his expression of dismay over the habeas provisions. He's been quite consistent in that regard over an extended period of time.
My guess is that the report of "unlikely to derail" is a reflection of the Senate as a whole, not of him personally. The administration can afford to lose a number of Senators' votes.

# posted by

cboldt : 3:30 PM

If it walks like a banana, quacks like a banana...

I think Professor Levinson and the Globe are right. In the old days, both parties did it to some extent nationally and at state level. There was a moment a few years ago when a state legislator here in TX admitted on a talk show that he'd voted for a bill without reading it. All hell broke loose. And rightly. This decade's crop of Republicans is made up of probably the most venal legislators and appointed functionaries in US history. Among other things Congressional leaders have been guilty of holding midnight meetings to change the wording in bills and jam them through a session that night or the next day before the wording can be challenged. Specter's record is one of limp protest followed by going along to get along.

History will not be kind to these guys. With luck, the next several years may be living hell for many. We can but hope -- and work hard to expose them and make their lives miserable.

# posted by

PrairieW : 4:01 PM

I think the key word is "humblestudent"'s comment is "trusted." The fact is that no one should have any trust in (most of) the Republicans who are running things in the House and Senate these days, just as no one, including John McCain, should trust the White House.

Secondly, I agree that voting for bills one hasn't read is often SOP. I think the difference here is that most people seem to recognize that this is not just any old bill, that it crosses a real rubicon with regard to presidential power, "respect for the opinions of mankind," any semblance of due process for many detainees, and the like. THAT requires reading and anguished debate in a way that voting indefensible sugar subsides and the like does not.

# posted by

Sandy Levinson : 4:27 PM

Quoting Prof: Levinson:
------
I think the key word is "humblestudent"'s comment is "trusted." The fact is that no one should have any trust in (most of) the Republicans who are running things in the House and Senate these days, just as no one, including John McCain, should trust the White House.
------

I would extend this to say that we should not trust congressional Democrats either. They have been all too willing to roll over when they perceive the slightest whiff of a swiftboat-style attack -- which is pretty much all the time.

The upshot? We've got to ride herd on our governments all the time. What did the abolitionist say? "The price of Liberty is eternal vigilance?" It is.

Quote:
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Secondly, I agree that voting for bills one hasn't read is often SOP.
------

There ought to be a constitutional qui tam right, enforceable by an action in any state or federal court, that creates substantial financial liability for any legislator who votes for (and any executive who signs) legislation that she has not read. Properly enforced, such a provision would force legislatures radically to reduce the volume and complexity of legislation they consider.

Quote:
------
I think the difference here is that most people seem to recognize that this is not just any old bill, that it crosses a real rubicon with regard to presidential power, "respect for the opinions of mankind," any semblance of due process for many detainees, and the like. THAT requires reading and anguished debate in a way that voting indefensible sugar subsides and the like does not.
------

I agree. And the limited legislative review that we're actually getting on these bills is yet another reason to oppose provisions that strip courts of jurisdiction to review them.

# posted by

Tonal Crow : 5:01 PM

Professor,

I specifically mentioned Dems and Reps. You may not trust the Reps - but do you distrust the Dems in the Committee and the Dem leadership so much as well?

# posted by

humblelawstudent : 5:25 PM

humblelawstudent writes: "I specifically mentioned Dems and Reps. You may not trust the Reps - but do you distrust the Dems in the Committee and the Dem leadership so much as well?"

I can't speak for the professor, but for myself, yes, I distrust the Dems just as much right now. How many voted against AUMF? 1. How many even had the courage to abstain or failed to vote for other reasons? 12. How many Dems, then, blindly voted to enact a mockery of the Constitution by granting war powers for the so-called war on terror? And why should we expect more of then now?

# posted by

Robert Link : 10:25 PM