Senate Votes To Ban Harsh Interrogation Methods, Including Waterboarding

The vote was 51 to 45. Now the bill goes to Pres. Bush, who of course has promised to veto it, on the grounds that it “would prevent the president from taking the lawful actions necessary to protect Americans from attack in wartime.” Of course if the actions were lawful, the Senate would not be banning them. The Senate is banning these actions because they are very much not lawful, but the president — a practitioner of magical thinking — believes that if he wants something to be legal, he has only to ask his loyal attorneys to declare it legal, and — presto! — it is legal.

And for those who think that experience is the best teacher — not always. Sen. McCain voted against banning waterboarding and other forms of torture.

… Sen. John McCain (R-AZ), a former prisoner of war, has spoken strongly in favor of implementing the Army Field Manual standard. When confronted today with the decision of whether to stick with his conscience or cave to the right wing, McCain chose to ditch his principles and instead vote to preserve waterboarding[.] …

In this one way, McCain seems to be consistent: He is always willing to ditch his principles for the right offer.

Think Progress notes additionally that “After Bush vetoes the bill, McCain will again be confronted with a vote to either stand with President Bush or stand against torture. He indicated with his vote today where he will come down on that issue.”

The Fourth Amendment Is Impractical

So say the best legal opinions money and power can buy, as Scott Horton tells us in his piece about yesterday’s Senate approval of retroactive immunity for telecoms who helped and are helping the Bush administration spy on Americans’ emails and phone calls.

If things proceed on the course now set by the Bush Administration and its shortsighted collaborators, and the national surveillance state is achieved in short order, then future generations looking back and tracing the destruction of the grand design of our Constitution may settle on yesterday, February 12, 2008, as the date of the decisive breach. It hardly got a mention in the media, obsessed as it was with reports on the primary elections, the use of drugs in sporting events, and that unfailing topic, the weather. Yesterday the Senate voted down the resolution offered by Senator Dodd to block retroactive immunity for the telecoms and it voted for a measure which guts the Constitution’s ban on warrantless searches by extending blanket authority to the Executive to snoop on the nation’s citizens in a wide variety of circumstances, subject to no independent checks. On the key vote, the Republicans in the Senate continued to function in lock-step, as they have on almost all significant issues for the last seven years, while the Democrats fragmented. Their vote summed up everything that’s wrong with Washington politics today. Fear and hard campaign cash rule the roost, and the Constitution is regarded as a meaningless scrap of parchment, indeed, a nuisance.

All that the other side has is fear: fear of Islamists, fear of more terrorist attacks, fear of being called unpatriotic, or anti-American, or a terrorist sympathizer– fear, when you come right down to it, of becoming a target of that illegal surveillance for the very act of opposing it, or supporting or being associated with others who oppose it.

For example: this Wall Street Journal editorial criticizing Barack Obama for voting against retroactive immunity:

It says something about his national security world view, or his callowness, that Mr. Obama would vote to punish private companies that even the bipartisan Senate Intelligence Committee said had “acted in good faith.” Had Senator Obama prevailed, a President Obama might well have been told “no way” when he asked private Americans to help his Administration fight terrorists. Mr. Obama also voted against the overall bill, putting him in MoveOn.org territory.

The defeat of these antiwar amendments means the legislation now moves to the House in a strong position. Speaker Nancy Pelosi is in the Dodd-Obama camp, but 21 Blue Dog Democrats have sent her a letter saying they are happy with the Senate bill. She may try to pass the restrictions that failed in the Senate, and Republicans should tell her to make their day. This is a fight Senator McCain should want to have right up through Election Day, with Democrats having to explain why they want to hamstring the best weapon — real-time surveillance — we have against al Qaeda.

Or this, from a post by Brian Faughnan at The Weekly Standard:

Here’s the FISA state of play: the Senate yesterday soundly rejected an amendment by Chris Dodd to deny telecom companies legal protections for their good-faith cooperation with terrorist surveillance. Dodd and other liberals apparently want future requests to the telecom companies to sound like this: “Hi, I’m with the CIA and we want you to listen in on Osama bin Laden’s phone calls. It’s an urgent matter of national security, and you better have plenty to spend on lawyers because you’ll get sued out the wazoo.”

What a mountain of manure. This is not about “listening in on Osama bin Laden” — this is about listening in on phone calls placed by a Pulitzer Prize-winning journalist researching a book on 9/11 — and then accusing the journalist’s daughter — who wasn’t even home at the time — of placing the calls. And when stuff like that happens, the victims have no recourse whatsoever — because Republicans and Democrats in Congress totally buy into the Bush administration’s totalitarian argument for allowing private companies to violate the law with impunity:

The issue in focus was a retroactive grant of immunity to telecommunications giants which violated the rights of millions of Americans by facilitating warrantless surveillance by the Bush Administration. With the exception of Qwest, they were knowingly complicit in criminal acts. And in a touch worthy of a totalitarian state, Qwest quickly found its CEO under criminal investigation and prosecuted. In fact the White House’s own arguments smack of the mentality of totalitarianism. Here’s the leading argument that the White House offers up in favor of the legislation:

“Companies should not be held responsible for verifying the government’s determination that requested assistance was necessary and lawful — and such an impossible requirement would hurt our ability to keep the Nation safe.”

But as Dan Froomkin notes at the Washington Post, “Isn’t that the very definition of a police state: that companies should do whatever the government asks, even if they know it’s illegal?” Indeed it is.

I certainly find it interesting, to say the least, that our brave troops fighting in Iraq and Afghanistan to preserve our freedoms here at home were not able to stop Congress from trashing the Constitution, and that the same folks who tell us that Americans’ freedom hinges on the Marines being able to recruit in Berkeley or play urban guerrilla war games in downtown Toledo, can write post after post about legally indemnifying companies so they can break the law at the government’s request, without mentioning the word “freedom” even once.

Poison and Evil Everywhere You Look

About the only news that’s making me feel hopeful right now is that Obama has swept Maryland, Virginia, and Washington, D.C.

Other than that, it’s poison and evil everywhere you look.

I posted yesterday about the Senate passage of the telecom bill with retroactive immunity intact. After the bill was approved, Dodd was asked on a conference call with reporters why so many Democrats had voted with the Republicans:

The Senate had “just sanctioned” the “single largest invasion of privacy in the history of the country,” he said. When asked why he thought so many Dem senators had crossed over, he replied: “Unfortunately, those who are advocating this notion that you have to give up liberties in order to be more secure are apparently prevailing. They seem to be convincing people that you’re at risk politically or we’re at risk as a nation if we don’t give up rights.”

Until yesterday, I didn’t even know that the president of William and Mary College, Gene Nichol, has been under attack by Christianists for opposing endorsements of religion at W&M — a public university — and for refusing, on First Amendment grounds, to bar a sexually explicit art exhibit organized by a student organization. I learned about it when I saw Michelle Malkin’s post, linked from Memeorandum, announcing that the campaign to get him fired or force his resignation had been successful. “William and Mary President Resigns in Disgrace,” Malkin titled her piece. She also posted Nichol’s lengthy (over 1,600 words) resignation letter, which struck me as an odd thing for her to do, because the letter is profoundly moving, and clearly undercuts any notion that Nichol was disgraced by what happened. It’s rather his persecutors at the university and on the right in general who are disgraced.

Here is the letter in its entirety. It’s long, but reading it is really the best way to get an understanding of the constitutional and ethical issues involved.

Dear Members of the William & Mary Community:

I was informed by the Rector on Sunday, after our Charter Day celebrations, that my contract will not be renewed in July. Appropriately, serving the College in the wake of such a decision is beyond my imagining. Accordingly, I have advised the Rector, and announce today, effective immediately, my resignation as president of the College of William & Mary. I return to the faculty of the school of law to resume teaching and writing.

I have made four decisions, or sets of decisions, during my tenure that have stirred ample controversy.

First, as is widely known, I altered the way a Christian cross was displayed in a public facility, on a public university campus, in a chapel used regularly for secular College events — both voluntary and mandatory — in order to help Jewish, Muslim, Hindu, and other religious minorities feel more meaningfully included as members of our broad community. The decision was likely required by any effective notion of separation of church and state. And it was certainly motivated by the desire to extend the College’s welcome more generously to all. We are charged, as state actors, to respect and accommodate all religions, and to endorse none. The decision did no more.

Second, I have refused, now on two occasions, to ban from the campus a program funded by our student-fee-based, and student-governed, speaker series. To stop the production because I found it offensive, or unappealing, would have violated both the First Amendment and the traditions of openness and inquiry that sustain great universities. It would have been a knowing, intentional denial of the constitutional rights of our students. It is perhaps worth recalling that my very first act as president of the College was to swear on oath not to do so.

Third, in my early months here, recognizing that we likely had fewer poor, or Pell eligible, students than any public university in America, and that our record was getting worse, I introduced an aggressive Gateway scholarship program for Virginians demonstrating the strongest financial need. Under its terms, resident students from families earning $40,000 a year or less have 100% of their need met, without loans. Gateway has increased our Pell eligible students by 20% in the past two years.

Fourth, from the outset of my presidency, I have made it clear that if the College is to reach its aspirations of leadership, it is essential that it become a more diverse, less homogeneous institution. In the past two and half years we have proceeded, with surprising success, to assure that is so. Our last two entering classes have been, by good measure, the most diverse in the College’s history. We have, in the past two and a half years, more than doubled our number of faculty members of color. And we have more effectively integrated the administrative leadership of William & Mary. It is no longer the case, as it was when I arrived, that we could host a leadership retreat inviting the 35 senior administrators of the College and see, around the table, no persons of color.

As the result of these decisions, the last sixteen months have been challenging ones for me and my family. A committed, relentless, frequently untruthful and vicious campaign — on the internet and in the press — has been waged against me, my wife and my daughters. It has been joined, occasionally, by members of the Virginia House of Delegates — including last week’s steps by the Privileges and Elections Committee to effectively threaten Board appointees if I were not fired over decisions concerning the Wren Cross and the Sex Workers’ Art Show. That campaign has now been rendered successful. And those same voices will no doubt claim victory today.

It is fair to say that, over the course of the past year, I have, more than once, considered either resigning my post or abandoning the positions I have taken on these matters — which I believe crucial to the College’s future. But as I did so, I thought of other persons as well.

I thought of those students, staff, faculty, and alumni, not of the religious majority, who have told me of the power of even small steps, like the decision over display of the Wren Cross, to recognize that they, too, are full members of this inspiring community.

I have thought of those students, faculty, and staff who, in the past three years, have joined us with explicit hopes and assurances that the College could become more effectively opened to those of different races, backgrounds, and economic circumstances — and I have thought of my own unwillingness to voluntarily abandon their efforts, and their prospects, in mid-stream.

I have thought of faculty and staff members here who have, for decades, believed that the College has, unlike many of its competitors, failed to place the challenge of becoming an effectively diverse institution center stage — and who, as a result, have been strongly encouraged by the progress of the last two years.

I have thought of the students who define and personify the College’s belief in community, in service, in openness, in idealism — those who make William & Mary a unique repository of the American promise. And I have believed it unworthy, regardless of burden, to break our bonds of partnership.

And I have thought, perhaps most acutely, of my wife and three remarkable daughters. I’ve believed it vital to understand, with them, that though defeat may at times come, it is crucial not to surrender to the loud and the vitriolic and the angry — just because they are loud and vitriolic and angry. Recalling the old Methodist hymn that commands us “not to be afraid to defend the weak because of the anger of the strong,” nor “afraid to defend the poor because of the anger of the rich.” So I have sought not to yield. The Board’s decision, of course, changes that.

To my faculty colleagues, who have here created a distinctive culture of engaged, student-centered teaching and research, I will remember your strong and steadfast support until the end of my days.

To those staff members and alumni of this accomplished and heartening community, who have struggled to make the William & Mary of the future worthy of its distinctive past, I regret that I will no longer be part of that uplifting cause. But I have little doubt where the course of history lies.

And, finally, to the life-changing and soul-inspiring students of the College, the largest surprise of my professional life, those who have created in me a surpassing faith not only in an institution, but in a generation, I have not words to touch my affections. My belief in your promise has been the central and defining focus of my presidency. The too-quick ending of our work together is among the most profound and wrenching disappointments in my life. Your support, particularly of the past few weeks and days, will remain the strongest balm I’ve known. I am confident of the triumphs and contributions the future holds for women and men of such power and commitment.

I add only that, on Sunday, the Board of Visitors offered both my wife and me substantial economic incentives if we would agree “not to characterize [the non-renewal decision] as based on ideological grounds” or make any other statement about my departure without their approval. Some members may have intended this as a gesture of generosity to ease my transition. But the stipulation of censorship made it seem like something else entirely. We, of course, rejected the offer. It would have required that I make statements I believe to be untrue and that I believe most would find non-credible. I’ve said before that the values of the College are not for sale. Neither are ours.

Mine, to be sure, has not been a perfect presidency. I have sometimes moved too swiftly, and perhaps paid insufficient attention to the processes and practices of a strong and complex university. A wiser leader would likely have done otherwise. But I have believed, and attempted to explain, from even before my arrival on the campus, that an emboldened future for the College of William & Mary requires wider horizons, more fully opened doors, a broader membership, and a more engaging clash of perspectives than the sometimes narrowed gauges of the past have allowed. I step down today believing it still.

I have also hoped that this noble College might one day claim not only Thomas Jefferson’s pedigree, but his political philosophy as well. It was Jefferson who argued for a “wall of separation between church and state” — putting all religious sects “on an equal footing.” He expressly rejected the claim that speech should be suppressed because “it might influence others to do evil,” insisting instead that “we have nothing to fear from the demoralizing reasonings of some if others are left free to demonstrate their errors.” And he averred powerfully that “worth and genius” should “be sought from every condition” of society.

The College of William & Mary is a singular place of invention, rigor, commitment, character, and heart. I have been proud that even in a short term we have engaged a marvelous new Chancellor, successfully concluded a hugely-promising capital campaign, secured surprising support for a cutting-edge school of education and other essential physical facilities, seen the most vibrant applicant pools in our history, fostered path-breaking achievements in undergraduate research, more potently internationalized our programs and opportunities, led the nation in an explosion of civic engagement, invigorated the fruitful marriage of athletics and academics, lifted the salaries of our lowest-paid employees, and even hosted a queen. None of this compares, though, to the magic and the inspiration of the people — young and older — who Glenn and I have come to know here. You will remain always and forever at the center of our hearts.

Go Tribe. And hark upon the gale.

Gene Nichol

I’m left with a sense of deep sadness that people whose thinking has more in common with the Taliban than with Thomas Jefferson have come to have so much influence in this country.

Think Progress has more.

Also in yesterday’s news, Supreme Court Justice Antonin Scalia was asked about the use of torture in an interview with the BBC radio show, “Law in Action.” Here is how a self-described “originalist” judges the legality of torture and of the death penalty in the context of the U.S. Constitution’s ban on cruel and unusual punishment:

BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.

BBC: It’s a question that’s been raised by Alan Derschowitz and other people — this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession — hooray! — the person that has the key information to put everything right, and you stick a needle under his fingernail — you get the answer — and that should be allowed?

SCALIA: And you think it shouldn’t?

BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.

SCALIA: Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

Michael Goldfarb solemnly repeats Scalia’s twisted logic, including his use of Jack Bauer — a fictional tv character, for chrissake — to justify torture [boldface at the end is mine]:

We know Justice Scalia is a fan of Jack Bauer. As the Wall Street Journal quoted him last summer:

“Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives,” Judge Scalia reportedly said. “Are you going to convict Jack Bauer?” He then posed a series of questions to his fellow judges: “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer?”

“I don’t think so,” Scalia reportedly answered himself. “So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

It seems Scalia has further elaborated on his position in an interview with the BBC via Think Progress. Click through to listen, but the basic gist is that Scalia doesn’t believe it’s clear that the government is prevented from using coercive interrogation in order to prevent an imminent terrorist attack. His argument seems to rest on the fact that the Constitution forbids cruel and unusual punishment, but if the treatment is not meant as punishment, then there is some room for maneuver. The show’s host takes issue with his use of the ticking-time bomb scenario, which is often dismissed as so unlikely as to be irrelevant, but Scalia responds that once you accept the premise that there are conditions under which torture might be permissible, and he says it would be “absurd” to think otherwise, “then we’re into a different game.”

“How close does the threat have to be, and how severe [would the] infliction of pain be. I don’t think it’s easy at all, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say ‘oh, well it’s torture, and therefore it’s no good.’ You would not apply that in some real life situations. It may not be a ticking bomb in Los Angeles, but it may be where is this group that we know is plotting some very painful action against the United States. Where are they and what are they planning?”

The left will portray Scalia’s comments as somehow beyond the pale, but my sense is that Americans are pretty evenly divided on this as they are on most other issues relating to the war on terror. It would be troubling if the Supreme Court wasn’t as well.

How does one even respond to such fatuousness? There is so much sheer absurdity in it that one doesn’t know where to begin, or even if it’s worth it to try. The idea that torture is not punishing (to use a wholly inadequate term) in and of itself, but only if it’s “intended” as “punishment” is breathtaking. The evil, the immorality, does not lie in the torture itself, but in its “intended” use as “punishment.” If we say the torture is intended to “save lives” rather than to punish, then it’s legitimate.

Using that logic, burning a child in scalding hot water or against a hot stove is only wrong and should only be illegal if the intent is sadistic punishment. If the intent is to teach the child to test the bath water before getting in the tub, or to avoid touching a hot stove, then the act of burning the child is okay. Obviously, no sane, mentally healthy person would agree with that logic — because we as civilized people understand that abusing a child in that way can never, by its very nature, be consistent with a benign “intention.”

How upsetting and distressing it would be if our established and so-called “responsible” media were to argue that the deliberate infliction of unbearable pain on a child was not necessarily always wrong or illegal.