Saturday, September 23, 2006

Is a filibuster really unthinkable?

Sandy Levinson

One might think that only Republicans inhabit the US Senate, inasmuch as Democrats have seemingly been more than happy to have sat back while McCain, Graham, and Warner ostensibly took on the Bush Administration. But it is clear that that strategy has failed: The troika's Republican loyalties (not to mention conservatism) have taken precedence over a bitter-end fight, and we are left with a disgraceful bill, as explicated in many of the previous posts by Marty Lederman and others.

No one can seriously believe, with regard to the future welfare of the United States, that the bill MUST pass beforee the election in six short weeks. The pressure to pass the bill now is entirely an artifact of Karl Rove's re-election strategy for a Repubican Party that has deservedly lost the trust of the American people. (The most recent ratings for Congress are somewhere in the low 20's; i.e., over three-quarters of the American people disapprove of the present Congress, roughly the same percentage that believes the US is headed in the wrong direction.) Unfathomably, the Republicans retain a slight lead in the "better able to fight terrorism" department, though I am curious if this will survive tomorrow's lead story by Mark Maezetti, "Spy Agencies Say Iraq War Worsens Terror Threat." I assume that the Administration will try to ferret out these latest leaks of embarrassing classified information, the import of which is that Iraq has been an unmitigated disaster with regard to staving off terrorism and terrorists. It will, I trust, be far harder to dismiss the "consensus view of the 16 disparate spy services inside government" than, say, yet another eloquent column by Frank Rich that should bring any American to tears about the truly criminal incompetence of Donald Rumsfeld.

Even if it is expecting too much of the frightened Democrats actually to oppose the vaunted "compromise"/capitulation on grounds of principle, is it really too much to say that legislation that so fundamentally affects the future of this country in manifold ways--see, e.g., statements by Colin Powell and many other retired military people and other "respectable" sources who can scarcely be described as bleeding-heart liberals--actually needs what Congress purports on occasion to provide, i.e., serious hearings and even genuine debate? At the very least, one might expect such hearings to explore what is actually in the bill with regard to which methods of interrogation are "criminalized," which prohibited (even if not criminalized?), and so on, not to mention getting the professional opinion of (probably former) State and Defense Department officials as to the costs, in the international political system, of going our own way with regard to defining the Geneva Conventions and Common Article 3.

So why shouldn't we (i.e., people who maintain some loyalty, however foolish, to the Democratic Party) expect "our" leaders at least to filibuster the bill until after the election? The current atmosphere is precisely like that during the summer of 2002, when Tom Daschle made a disastrous--is it too much to call it, at least with the benefit of hindsight, "contemptible"?--decision to shut down any debate about Iraq because of a belief that Bush owned the issue and the Democrats had to change the subject. We know what happened then.

So who might take the lead in calling for a serious debate instead of this unseemly haste to pass legislation that almost no one has read (and those who have read it quite literally do not understand exactly what it means)? Let me make the audacious suggestion that the person best poised to do so is Joseph Lieberman. He is almost uniquely positioned to be taken seriously. It would, I strongly suspect, assure his re-election (by bringing back at least some now-disgruntled Democrats), and the Republicans could scarcely turn around and accuse him of being a softie. He doesn't even have to promise to vote against the final bill. For all I care, he can say that he is inclined to support it, but only AFTER THE ELECTION. All that he needs to say is that rushing to pass the bill before it is genuinely scrutinized is not the way a respectable country makes such fundamental decisions about its core values.

I am genuinely curious whether the right-wing critics who post on Balkinization really believe that this IS a model of legislative deportment. Do they believe that the American Enterprise Institute is harboring a dangerous radical in its midst named Norman Ornstein and that he should be fired for expressing dismay about the way Congress is behaving?


There are numerous possible "hang fire" scenarios on this bill. Watch Senator Specter on the habeas issue, a preview during Monday's hearing. He and Leahy might do a tag-team thing. I doubt Lieberman will step in to initiate a delay in taking up the measure, or in voting on it.

The timetable is tight in any event, especially so if there are amendments. Assuming Frist pushes to get a vote via filing a cloture motion, I haven't attempted a nose count of Senators who would be willing to vote against cloture, or against the bill. There are the usual "fearless" ones, Feingold, Boxer, Harkin, Feinstein ... but they number 20 or less.

There are also another handful of Republicans who signed onto Warner's version last week - Sununu, Snowe, Chafee, Lugar, DeWine, Smith, Hagel. They haven't signaled agreement with the so-called compromise. All of them will swing based on the way the wind is blowing, without regard to the substance of the legislation - as long as they believe the smoke they are blowing will fool enough of "their" voters. Anyway, my bottom line is agreement that a filibuster is possible, and maybe likely - but the key players and counts aren't clear yet. I personally think that the bill is complex enough and important enough that withholding a vote on the basis of "need more time to analyze it and think about it" is a principled stand. In other words, I think voting "no" to cloture is perfectly appropriate for this bill - unlike my firmly held belief that using cloture to block something that one KNOWS he is dead set against is an abuse of parliamentary procedure, and is a practice that should bring ridicule on the
practitioner. See judicial nominations. But that's another subject.

It'll be a very interesting week in the Senate, that's for sure. I believe a failed cloture vote is a significant possibility - at this point my gut tells me it's the most likely outcome.

Excellent post Sandy.

I really feel that we are on the precipice as country, and I have a feeling that the democrats and republicans will push our country over together this week.

There hasn't been a glimmer of hope from the democrats in the last 6 dark years, why should we expect one now? All we can do is plead and hope.

I've never felt quite so sickened by the actions of our elected officials.

Why We Worry

I think a filibuster could be politically sutainable if it were viewed as an act of principle rather than politics. Dems could say that they stood back and waited to see what would happen when McCain, et al objected becuase their concern was the principle not the politics but now the principle is not being sustained and so further action is required; that there is no reason to pass the law so fast, that it needs to be more carefully considered, that it might not withstand judicial scrutiny and the president is the one playing politics trying to get it passed so fast. Since the public view of the president is much changed now from 2002 people might well buy that he is just trying to push it through fast for political reasons. There should be one leading dem spokesman to keep the message coherent (and the spokesman should be someone who is, in fact, coherent). I think habeas might be a politically feasible basis for emphasizing where the problem is, that habeas is not about giving rights to terrorists but about protecting the rights of persons erroneously accused of being terrorists, that this is one of our core values and that our values are one of our strengths in the war on terrorism just as they were in WWII and the Cold War. We should describe the president's position as a position of weakness in that the president apparently lacks confidence in our values and that they are far stronger than the terrorists who are, after all, themselves acting from a position of weakness. People want leadership on this issue. The president's advantage on terrorism has been sustained by people's belief that whatever his defects he is acting out of firm conviction that terrorism must be defeated and they are not so sure about us democrats. I also think that if the democrats would stand up and take the potential political heat that the many republicans and conservatives out there who are shocked by where this is going will be willing to let themselves be associated with the democrats' position, thereby further demonstrating that it is an issue of principle, not politics. With regard to torture, we should say that it is both morally wrong and pragmatically wrong becuase it does not work, diverts resources from what may work and the controversy it causes is a diversion from a successful war on terrorism. I know, I know, I know that saying that it is morally wrong should be enough, but emphasizing that it is also pragmatically wrong is a way to emphasize that democrats are seriously trying to defeat terrorism.

Regarding the judicial scrutiny matter, can not a pretty good case be made that the Constitution assumes that the privilege of the writ of habeas corpus is inherent in the judicial power and that Congress cannot deny all jurisdiction since an absolute denial of jurisdiction is, in effect, prohibiting, rather than suspending, the avaialability of the writ, when Congress is limited to only being able to suspend, and then only in the event of invasion or rebellion?

Unfathomably, the Republicans retain a slight lead in the "better able to fight terrorism" department,

Since 'better able to fight terrorism' is simply pollsterese for 'kill brown people and blow shit up', I am not surprised the Republicans have a slight lead.

They have actual hecatombs of dead Moslems to point to.

The Democrats have only promises.

My Congressman, Earl Blumenauer, has issued a Condemnation of Legalizing Torture and a call for an investigation. Please urge your Representative to join him in taking this stand.
Here is the link:

Sorry, I'll try the link again:

Prof. Levinson has a point there--Lieberman has much to win, and little to lose here. He should take the cue from religious leaders in his state. See excellent statement posted on The Nation website:
Torture is a Moral Issue

by _NONE

[posted online on September 23, 2006]

As religious leaders in Connecticut we are deeply concerned, indeed horrified, that Congress is poised to legalize torture. Earlier this week, at a press conference at Hartford Seminary, we spoke in one voice to say emphatically: No torture anywhere anytime--no exceptions. We joined our voices with those of national religious leaders in the National Religious Campaign Against Torture who published an advertisement signed by national figures in Washington's Roll Call on the same day.

We are compelled to speak again because the just-announced Republican "compromise" threatens to compromise the rule of law and the laws of God. Torture is a moral and legal issue; it is also a profoundly religious issue, for it degrades the image of God in the tortured and the torturer alike. Our moral compass is swinging wildly. To tolerate, or worse decriminalize, torture jeopardizes the soul of our nation.

If we were not to raise our voices in outrage at this time, the very stones would cry out.

What is the basis of our concern?

§?We are concerned that the proposed legislation eviscerates the War Crimes Act of 1996. That act makes it a crime for any American to commit "grave violations" of the Geneva Conventions. But the "compromise" just announced amends the War Crimes Act to under cut that and to give the President unilateral authority--unchecked by Congress or the courts--to declare what is a violation of the War Crimes Act.

The President would then have the power to decriminalize the very prisoner abuse--at Abu Ghraib, Guantánamo, and secret prisons around the world--that rightly has caused American shame and international outrage. Under the legislation now proposed, even the list of permissible forms of interrogation will be kept secret. When reporters asked National Security Advisor Stephen Hadley whether waterboarding was permitted under the agreement, he refused even to answer the question.

§?We are concerned that the proposed law retroactively decriminalizes violations of the War Crimes Act. This sends a message that our country is offering one hundred percent tolerance for torture. We insist on zero tolerance for torture. But the bill extends tolerance to mercenaries and top government officials. This is highly self-serving. As former CIA general counsel, Jeffrey H. Smith, recently told the Washington Post regarding accusations of illegal activities by CIA officials, "The fault here is with more senior people who authorized interrogation techniques that amount to torture" and should now be liable, instead of "the officers who carried it out." This legislation would provide such senior officials a "get out of jail free" card.

§?We are concerned that this legislation removes the right of habeas corpus for those held as illegal combatants. This overturns the Supreme Court's Rasul decision and strips the courts of their ability to prevent torture and abuse. Habeas corpus cases have been the sole means for challenging the abuse of those held at Guantánamo.

§?We are concerned that the so-called compromise will allow the use of evidence coerced through cruel and abusive treatment. Experience has shown that such provisions are an inducement to torture.

§?We are concerned that the bill allows the President to declare any foreigner, anywhere, an "illegal enemy combatant" and then detain them forever without trial. Is this what the rule of law has come to for our country?

§?We are concerned that the bill, in spite of claims that it preserves the Geneva Conventions, in fact does nothing to prevent the reinterpretation of those Conventions at will. Thus, it will invite other countries to do the same--as past and present military leaders warned when they opposed the President's initial version of the bill.

Former Secretary of State and head of the Joint Chiefs of Staff Colin Powell, recently warned that "The world is beginning to doubt the moral basis of our fight against terrorism," and that "to redefine Common Article 3" of the Geneva Conventions "would add to those doubts." We are concerned that the proposed legislation, far from showing U.S. commitment to the Geneva Conventions, will only intensify those doubts.

§?We are concerned that this proposal is deliberately designed to undermine the efforts of the Supreme Court in the Rasul and Hamdan cases to assert the basic democratic Constitutional principle that the rule of law applies to the President and the executive branch.

§?We are concerned that President Bush may gut the remaining limitations in this act, just as he did to those in the previous McCain torture law, by issuing a Presidential signing statement.

Given that the President has said there are currently no prisoners in the special CIA interrogation program, we are uncertain of the urgency in passing this legislation right now. We fear that the urgency stems from the upcoming mid-term elections, with the possibility of the Democrats gaining control of the House or Senate and initiating war crimes hearings. This legislation seems not to be about protecting our military personnel or even US citizens; rather, it appears to be designed to protect the leaders at the top of the chain of command who have tolerated, promoted, and justified torture.

Our own sense of urgency arises from a desire to protect the soul and integrity of our nation. Will we be a nation that abides by our own Constitution and upholds international law? Will we be a nation that is "under God" with justice for all? Or will we become a nation that punishes those who follow the orders while exonerating those who give them?

The scriptures of many traditions offer a version of the "golden rule": "Do unto others as you would have them do unto you." This principle is the guide for the lives of both individuals and nations. The moral basis is clear. Yet there is also a simple utilitarian reason to observe this principle: abandon the rule of law and you yourself will be subject to the consequences.

As religious leaders, we call upon our Congressional delegation and all who would lead or represent us to stand firmly against this attempt to amend the law of the land, to set the United States apart from international law. The moral character and the security of our nation and its people are at stake.


Rev. Dr. Davida Foy Crabtree, Conference Minister of Connecticut Conference of United Church of Christ

Bishop Andrew D. Smith, Bishop of Episcopal Diocese of Connecticut

Rev Judy Allbee, Executive Minister of American Baptist Churches of Connecticut

Rev. Dana Lindsley, Executive Presbyter of the Presbytery of Southern New England

Dr. Ingrid Mattson, Professor of Islamic Studies of Hartford Seminary and President of the Islamic Society of North America

Rabbi Jeffrey Glickman, Temple Beth Hillel, Wethersfield, Connecticut

Rabbi Donna Berman, Executive Director, Charter Oak Cultural Center

Rev. Allie Perry, Coordinating Committee of National Religious Campaign Against Torture

Badr Malik, Executive Director, Council on American-Islamic Relations, Connecticut Chapter

Rev. Kathleen McTigue, Unitarian Society of New Haven

Rev. Dennis Calhoun, Middlebury Congregational Church

John Humphries, Hartford Friends Meeting

Rev. Thomas O'Rourke, Roman Catholic Church of the Ascension

Rev. Susan Power-Trucksess, Presbyterian Minister

Rev. Dr. Carl S.Dudley, Faculty Emeritus, Hartford Seminary

Sandy is right. Lieberman is probably the only Democratic Senator that has sufficient credibility on this issue with the mainstream of America.

Nevertheless, it probably isn't enough. I doubt he could honestly convince enough people to take a hard look at this bill. If somehow he could shoehorn some prominent Republican, then his chances would shoot up. But, Bush has successfully co-opted the McCain et al., so I doubt there is much of a chance of success.

As to your Norman Ornstein point, he can have his opinion. Yes, he is a respected Congressional watcher, if not one of the most respected. But, it doesn't mean he is always right.

gregpolitics said...

I think a filibuster could be politically sutainable if it were viewed as an act of principle rather than politics. Dems could say that they stood back and waited to see what would happen when McCain, et al objected becuase their concern was the principle not the politics but now the principle is not being sustained and so further action is required...

The problem with this track is that by sitting back and letting the Repubs duke it out, the Dems will now have a tough time trying to assert themselves into the debate. And of course any Democrat opposition will be characterized as "playing politics" by the GOP sycophants in the media. Rove sure knew what he was doing when it setup this faux revolt.

Re: cbolt's comment (the first to this post): Although I too favor a filibuster (not to mention a Nuremberg trial for any senator who votes for cloture), I find cbolt's values odd. I "need more time to analyze it and think about it" is NOT a principled stand. A principled stand is "Torture is evil"; I "need more time to analyze it" is a cowardly (albeit acceptable) stand.

cbolt's "firmly held belief that using cloture to block something that one KNOWS he is dead set against is an abuse of parliamentary procedure" seems to imply that cbolt finds using cloture for that purpose to be a greater evil than torture. Strange.

To Henry - if the Sneaotr know enough the bill to be against it, then the Senator should vote YES to cloture, and NO to the bill.
Your intimation that I make some sort of comaprative analysis betwen parliamentary process and torture does not represent my sentiments.

But, if a Senator votes "yes" to cloture, then he is of course increasing the chance of the bill's passage. You may not be making a comparative analysis betwen parliamentary process and torture, but the effect of your proposal is to give priority to the former.

A YES to cloture is not always tantamount to a vote for passage - although it is usually presented that way, and most often acts that way. Cloture (if the motion is made) is also a route to REJECTION of the bill.
If cloture is called for, a failed cloture motion leaves the bill or matter as pending business, and does not dispose of it one way or the other.
I just prefer arguments on the merits to winning by abuse of the process. I appreciate that (many) others feel differently. Viva la differance.

How is filibustering abuse of the process? It is the process. No particular motivation is required to engage in it. There are grounds to oppose the process, but, when torturing people (to death in dozens of cases) is at stake, these grounds seem trivial.

"Abuse of the process" is an indefinite phrase. If your use of the phrase implies "permitted by the rules," them I have to concede that the use of a NAY cloture vote to block consideration of a pending matter than one knows one is opposed to is not abuse - it's not abuse because the rules permit it.
But the nominal purpose of cloture is to make sure a sufficient number of the deciding body have reached their position via the application of reason - cloture is a device to facilitate a proper expression of the will of the majority, and a proper expression can't be done until enough of the members have reached their reasoned decision. If everybody know how they are going to vote, then get on with the vote.
For the torture issue, imagine the situation reversed, where torture is legitimized by statute, and the Senate is considering revoking the law that permits torture. Would you support cloture to prevent the vote? Would it be okay if less than a majority held up the vote, on the grounds that they wanted to keep torture? I bring it up only to say that at some point, process is important. Better to debate openly, on the merits.
Which, much as I wish it would happen, isn't happening, and generally doesn't happen.

Where does it say that "the nominal purpose of cloture is to make sure a sufficient number of the deciding body have reached their position via the application of reason - cloture is a device to facilitate a proper expression of the will of the majority"? That is a plausible justification for it, but the Senate, of course, is not a democratic institution, and so the filibuster might also be justified as a device to give the "minority" (which today happens to represent a majority of voters) a say in the process. But I do not mean to start a debate about whether to retain the filibuster or when it is appropriate to use it. I favor the use of any legal means available to stop torture, regardless of one's view of those means or how it would play out in a hypothetical situation.

Roberts Rules of order is one place that the nominal function of cloture is discussed. It's where I first read of the function, as opposed to just the presence of the device. The Senate has no "I move to take the vote" facility - cloture substitutes for unanimous consent.
As with any rule, it can be used and abused. The Senate has been known to set 60 vote hurdles to pass legislation just to get agreement to take the vote. See UC Agreement regarding the stem-cell research bills for an example. There's nothing to say the Senate can't provide that a 90% vote be required to pass a law - or to let 10% of them pass laws. But those "fringe" areas naturally strike people as odd, because we're hard-wired toward majority vote for most things, and supermajority for selected others (treaties, amend constitution, etc.).
I fully expect the Senate to continue to abuse cloture. I'm just stated my (low) opinion of the practice.
What you are implying is that a majority of Senators approves of torture. That (approves of torture) is inflammatory shorthand, and unless the Senators express the meaning of "torture" in more definite terms, they'll be limited to a "do too - do not" debate.
I expect mostly a smoke screen. Business as usual.

May I say that I find it a bit strange that a discussion of the propriety of torturing other human beings and/or leaving those declared "enemy combatants" to incarceration for life without the slightest semblance of due process (unlike those relatively few who will be actually tried) has morphed into a discussion of the ethics of filibustering. Not, of course, that it isn't an interesting discussion....

Well, given the title of the post, a discussion of "filibuster" was inevitable.
Had I not been tangentially accused of justifying torture in order to honor parliamentary process, my first post would have been my last.
I'll leave it at that. Toodles.

"Well, given the title of the post, a discussion of "filibuster" was inevitable."

Fair point! Let me join many politicians and the Pope by apologizing if I caused any offense. Moreover, a rereading of the various postings certainly indicates that the debate about torture was never far removed from the debate about the ethics of "taking advantage" of Senate procedures.

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