http://balkin.blogspot.com/2006/09/on-way-to-banana-republic.html
Saturday, September 23, 2006
by Sandy Levinson
Rick Klein has a story in today's Boston Globe, tellingly titled "Congress in Dark on Terror Program," that notes that almost no members of Congress have the foggiest idea what is actually covered by the new "anti-terror" legislation being rammed through the Congress as part of the desperate effort by the Bush Administration to limit Republican losses in the forthcoming elections. ``'I don't know what the CIA has been doing, nor should I know,' said Senator Jeff Sessions, an Alabama Republican." This is par for the course. ``'You're not having any checks and balances here,' said Norman J. Ornstein, a resident scholar at the conservative American Enterprise Institute. 'It sure doesn't look to me as if they stood up and did anything other than bare their teeth for some ceremonial barking, before giving the president a whole lot of leeway. I find it really troubling.'"
This is not the way a serious legislature would operate, but who really believes any longer that we have a serious legislature? What we have is a dominant party (it is a misnomer to describe the Republicans in the Senate as the "majority" inasmuch as Democratic candidates over the past three elections cycles have received 3,000,000 more votes than their Republican counterparts; the "majority" is an artifact of our indefensiblly apportioned Senate) that operates by the American equivalent of the fuhrer-prinzip, and an "opposition party" that has no discernible backbone, as Mark Graber notes.
Madisonian democracy, r.i.p., since we sure as hell have nothing resembling it now.
Posted 9:23 AM by Sandy Levinson
http://www.boston.com/news/nation/washington/articles/2006/09/23/congress_in_dark_on_terror_program/
By Rick Klein, Globe Staff | September 23, 2006
WASHINGTON -- As lawmakers prepare to debate the CIA's special interrogation program for terrorism suspects, fewer than 10 percent of the members of Congress have been told which interrogation techniques have been used in the past, and none of them know which ones would be permissible under proposed changes to the War Crimes Act.
Only about 40 of the 535 senators and representatives -- the top members of leadership in both parties, members of the House and Senate intelligence committees, and a small handful of others -- have been briefed on the past practices of the CIA program, which permits more aggressive interrogation tactics than those used by other agencies.
The lack of consultation means that senators and representatives will be voting next week to authorize a program that most know little about, raising questions about Congress's oft-repeated vow to increase its oversight of the war on terrorism.
``You're not having any checks and balances here," said Norman J. Ornstein, a resident scholar at the conservative American Enterprise Institute. ``It sure doesn't look to me as if they stood up and did anything other than bare their teeth for some ceremonial barking, before giving the president a whole lot of leeway. I find it really troubling."
Beyond the briefings received by the 40 senators and representatives, the three Republican senators who initially opposed the president's proposal -- John McCain of Arizona, Lindsey O. Graham of South Carolina, and John W. Warner of Virginia -- were given additional details of the CIA program as part of their negotiations with the White House, according to a congressional aide. The senators' offices declined to say what, if any, extra information they were given.
Democrats complain that the White House has kept most of Congress in the dark to prevent any criticism of the program.
``They're saying, `Trust us,' " said Representative John F. Tierney, Democrat of Salem, who, as a member of the House Intelligence Committee, has received briefings but is forbidden to talk about them. ``The president is perfectly set with taking as much leeway as he can. That's his history, and it keeps getting us into trouble."
Tierney also blamed congressional leaders for failing to demand more access to information. But some members of the Republican majority say they should be kept in the dark about interrogation methods, since widely distributing such information could result in leaks.
``I don't know what the CIA has been doing, nor should I know," said Senator Jeff Sessions, an Alabama Republican.
The Bush administration said it is following the example of previous administrations in limiting briefings to a select group of lawmakers.
The top leaders of Congress -- the House speaker, Senate majority leader, House and Senate minority leaders, and chairs and ranking members of the intelligence committees -- were first briefed on the program in late 2001, according to the Office of the Director of National Intelligence.
The full intelligence committees were later included, with additional briefings coming as more revelations became public in media reports. Several more lawmakers were briefed last year when Congress began discussing a torture ban, according to the national intelligence office.
``Specific techniques are classified," said Stephen J. Hadley, the president's national security adviser. ``The reason is, if there's public discussion of techniques, then the terrorists are able to train against them."
But critics point out that the Army Field Manual spells out in detail which interrogation techniques are acceptable and which are prohibited.
``This idea that they can't say what the law prohibits and what it doesn't, it's absurd," said Martin Lederman, a Georgetown law professor and former legal adviser in the Clinton administration Justice Department. ``It's not good government. Congress could push back. There are ways to push back, but they just choose not to do so."
Earlier this month, Bush publicly acknowledged the CIA interrogation program for the first time. CIA agents ``used an additional set of procedures" to interrogate ``high-value" terrorist suspects at secret prisons, the president said in a speech at the White House.
Bush urged senators, who were already drafting a new plan for military tribunals for terrorism suspects, to rewrite the laws of evidence to allow for the CIA program. But his proposal to reinterpret the Geneva Conventions to allow harsher interrogation techniques ran into fierce opposition from the three Republican senators. This week, in a compromise, the senators persuaded the president to keep the conventions intact and instead to rewrite the War Crimes Act to outlaw certain extreme methods -- and implicitly allow others.
The deal limits the Bush administration to techniques that do not run afoul of broad categories of conduct -- things like torture, sexual assault, ``mutilation or maiming," and the intentional causing of ``serious bodily injury" would be in violation .
But because the legislation does not specifically outlaw any of the techniques that have been reported to have been part of the CIA arsenal -- including hypothermia, food and sleep deprivation, forced stress positions, and the simulated drowning technique known as ``water-boarding" -- members of Congress will not truly know what they are approving when they vote next week.
The CIA program could wind up continuing precisely as it has in the past, despite assurances from the White House and Republicans in Congress that the Geneva Conventions will be respected, said Major Thomas Fleener, a defense lawyer in the military.
``It doesn't appear to actually limit what the CIA can do," Fleener, an Army reserve officer, said of the compromise proposal. ``It's Congress just giving the president the right to reestablish the old system."
The Republican senators involved in negotiating the deal acknowledged that the White House would have wide discretion in reconstituting the program.
``Our goal as Congress is not to sit down and try to write techniques for interrogators," Graham said.
But disagreements about the bill's impact emerged soon after the deal was reached Thursday afternoon. Graham said that he believes that water-boarding would ``not be in compliance" with the bill he helped craft.
Hadley, however, said he could not comment on particular techniques, and declined to say whether the bill will force the president to take any previously utilized methods off the table.
He said CIA Director Michael V. Hayden will consult with members of Congress to develop a newly fashioned interrogation program, and said the president will have the final word in an executive order. Yet that order will not include information about specific techniques so as not to provide details that could be exploited by terrorists, Hadley said. ``What he will do is give some standards and regulations," he said.
Most Democrats appear poised to support the bill, but some say they will insist on being given more information before supporting changes to the War Crimes Act. Representative Jane Harmon, the ranking Democrat on the House intelligence committee, said she will insist that the president detail the interrogation techniques he plans to approve, and provide a legal justification for each one before the intelligence committee.