With George W. Bush’s diminished popularity, embattled Republican candidates have mastered the fine art of knifing their titular leader. But these commonplace acts of betrayal usually reside in the realm of mere symbolism—a presidential photo-op carefully avoided, a potshot at Donald Rumsfeld. They don’t involve sinking the president’s number-one policypriority and shredding his ace-in-the-hole election strategy. That’s why GOP Senators John McCain, Lindsey Graham, and John Warner racked up major style points for brashly challenging the president’s request for broader authority to try suspected terrorists. Their apostasy has justly received many rounds of applause. For the moment, they have prevented the president from legalizing waterboarding, sleep deprivation, hypothermia, and other forms of torture that the White House refuses to classify as such, halting a revolution in U.S. law that would redefine the Geneva Conventions.
But the dissident senators haven’t just stepped forward in the name of human rights; they are extolling the virtues of compromise. There is now an alternative proposal by McCain, Graham, and Warner on the table. And, while their resistance toward the president has been brave, their legislation is not. Before Democrats eagerly embrace McCain et al., they should understand the bill’s many shortcomings.
In the Hamdan v. Rumsfeld decision, the Supreme Court announced that, unless Congress changes the rules, the treatment of enemy combatants must adhere to minimal due process procedures, namely those found in ordinary court-martial proceedings. Unfortunately, you won’t find those protections here. For starters, the bill strips federal courts of the ability to hear challenges to the military commissions until after the trials are completed—which could result in years of legal uncertainty. It also repeals the writ of habeas corpus for suspected enemy combatants held at Guantánamo Bay who are never formally charged with a crime, making it impossible for them to challenge the lawfulness of their detentions. It denies suspected terrorists the right to see exculpatory evidence held by the government, to confront their interrogators in court, or even to see the original transcripts (rather than the translated summaries) of their statements to interrogators. When the government used similar procedures in the past, military prosecutors threatened to resign because they considered them fundamentally unfair. To be blunt: The compromise proposed by the three senators takes the administration’s proposals as a starting point and then proceeds to roll back only a few of its more odious provisions.
McCain, Warner, and Graham aren’t the only Republican senators to challenge administration policy and then fall short when positing an alternative. Arlen Specter sharply criticized the administration’s approach to wiretapping but then delivered an alternative bill that constitutes the most radical revision of surveillance law in a generation. His bill actually removes Bush’s surveillance program from the exclusive oversight of the Foreign Intelligence Surveillance (fisa) court. It would allow the interception of every call to and from the United States without a warrant or court order, as long as the government was not focusing on any particular suspect in the United States. By eliminating the requirement that the attorney general personally approve warrantless surveillance and report to the fisa court, the Specter bill would allow even broader domestic spying than even the administration wants. Unfortunately, Specter’s bill cleared the Senate last week. Fortunately, competing legislation still stands a small chance of passage.
The stakes in the current debate could not be higher. In Hamdan, the Supreme Court indicated that nearly any program that Congress authorizes is likely, in most respects, to pass constitutional muster. This increases the responsibility on Congress to exercise meaningful oversight over the president, rather than acting like a pliant rubber stamp. Almost every congressional session in recent memory has ended with preelection pandering: members of Congress trying to prove to their constituents that they are tough on crime, with new death penalty laws or sentencing enhancements. This is, in other words, never a conducive time of year to hash out major constitutional issues—especially when new legislation could eliminate crucial judicial and congressional checks on presidential power for generations to come. Rather than bending over backward to accommodate a grasping and politically weakened president, Congress would do better, for the moment, to pass nothing at all.
This article originally ran in the October 2, 2006 issue of the magazine.