The Tortuous Path
George Bush has fundamentally reshaped the "conventional wisdom" of American political life in a way that most presidents can only dream of. Ronald Reagan elicited only agreement, at least rhetorically, that "the era of big government is over." George Bush has elicited agreement that "those claiming to have been tortured by the United States have no rights that the United States is bound to respect" in any ordinary legal sense, as by having to show up in court. America will be paying for that reshaping for many, many years to come.
That's Sanford Levinson, who holds the W. St. John Garwood Centennial Chair in Law at the University of Texas Law School, writing on the Balkinization law blog about the deal on the use of torture in interrogating suspects in the "Global War on Terror" (or whatever it's currently called) which has been reached by Senate "rebels" and the White House. It's a little breathtaking to realize how much closer the United States is today to being a country that officially endorses torture than it was just Monday. But that's the sad reality of it.
More from Levinson:
So now we have a disgusting capitulation by the almost-tragic figure of John McCain, whose near-nobility has been thoroughly corrupted by his desire to be President (though there's no real doubt he'd be a far superior President to the incumbent) that removes any real prospect of a remedy for those tortured by the United States. No serious person could possibly believe that the US will ever actually prosecute any member of the CIA who engages in tortue--and we've know for at least two years now that the OLC memos are all about the CIA and not, in any serious way, about the military--and the capitulation deprives anyone victimized by the United States of a day in court. (And, of course, even if someone can get to court, as did the Canadian Mr. Amar, craven judges will allow the mantra "state secrets privilege" to trump any claim of right. So much for the "Equal Justice Under Law" carved over the US Supreme Court.)
So are we on our way toward an American versio of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did? No, I don't think the Bush Administration should be compared with the Nazis, but, as I've been repeatedly arguing vis-a-vis Carl Schmitt, I believe that we ignore the legal thinking and analysis that took place during Weimar and its aftermath at our peril. It is no great compliment to say that we are, as yet, nowhere near the Nazis. It should be enough to realize that the often brilliant analysts responding to the great crisis in their personal and professional lives may have something to teach us today about how political institutions operate under stress (and where demagogic and opportunistic politicians realize that there are potential gains to maximizing public fears of the Other).
This so-called "compromise" means, purely and simply, that we don't even profess to take seriously the minimal conditions for "the rule of law" with regard to those determined, often by fiat judgment, to be "the worst of the worst." What is even more dispiriting is that there is no reason to believe that the Democrats will defeat this disgrace, as they could through a filibuster that would simply delay its passage beyond the November elections, the whole point of this charade, because they are fearful of being tarred as "friends of the terrorists." There is, that is, no "opposition party" in America with regard to one of the deepest issues of our time. THAT is George W. Bush's biggest victory, helped along by Tom Daschle's (and John Kerry's and Hillary Clinton's etc.) absolutely disastrous decision in 2002 to write Bush a blank check on Iraq in order to focus the attention of the American electorate on prescription drugs for the elderly.
Also at Balkinization, Marty Lederman, focusing more on the legal nuts and bolts of the matter, explains Three of the Most Significant Problems with the "Compromise".