Sitting on the Sidelines

We're currently in the midst of one of the most important legislative debates we'll ever have in this country. At stake are the very ideals we have striven so hard over the years to achieve, ideals which have come to define us--at least until recently--and which we have tried so hard to instill in others. More than any other time in recent history, the very core of who we are as a nation is on the line. And remarkably, one of the country's two major political parties has chosen to sit out the debate entirely.

The White House is currently pressing very hard for a bill that would signal to the world our abandonment of the minimum standard of conduct laid out in the Geneva Conventions, a treaty signed onto by nearly ever sovereign nation, many at our behest. We would be doing this for the sole purpose of allowing our intelligence agents to continue using interrogation techniques that nearly everyone (except, of course, our president) concedes amount to torture.

This same proposed bill would strip all detainees of habeas corpus rights and set up a system of military tribunals that would embarrass a banana republic.

As this debate rages on, however, there is a deafening silence among Democrats in Washington. The lead stories in the major newspapers are filled with colorful quotes on the issue, none of them by Democrats. Instead, our Democratic leaders are sitting on the sidelines, allowing this important fight to be waged by Republican proxies: McCain, Warner, Graham, Powell.

Now, some believe this a wise strategic move by the Democrats, that by sitting back and allowing the Republicans to duke it out with each other, they are somehow avoiding the trap that Karl Rove has set for them and can perhaps avoid being labeled as "soft on terror." I couldn't disagree more.

First and most obviously, the Democrats have been burned by this strategy before. Remember, Republican Arlen Specter talked a good talk when it came to holding the administration accountable for its blatant law-breaking, but in the end his "compromise" surveillance deal gave the White House everything it could ever have hoped for, and more. It wouldn't surprise me at all if, as others have pointed out, this is all an elaborate kabuki dance that will end in a compromise which gives the White House almost everything it wanted. When you allow others to fight your fights, you tend to get screwed when they prematurely surrender.

But even if McCain & Co. stick to their guns and somehow manage to get the president to sign on to their legislation, you still end up with a law that was drafted by some very conservative Republicans, a law that reflects virtually zero Democratic input. As Jack Balkin writes:

It's important to understand that although Senators McCain, Graham and Warner are getting a lot of great press on their disagreements with President Bush, and are being widely championed as brave defenders of human rights, the bill they have authored in the Senate is not a good bill; it is merely less terrible than the one the President is pushing. . . .

In particular, the McCain-Graham-Warner bill, like the President's, would prevent anyone detained in Guantanamo Bay (or any other detention facility outside the U.S.) from challenging what has been done to them in court except as an appeal from the decision of a military commission.

That means that if the government decides never to try an individual before a commission, but just holds them in prison indefinitely, there is no way that they can ever get a hearing on whether they are being held illegally-- because they are not in fact a terrorist; or a hearing on whether they are being treated illegally-- because they have been abused or tortured or subjected to one of the Administration's "alternative sets of procedures"-- a.k.a. torture lite.

So if a person at Guantanamo Bay isn't in fact a terrorist and isn't a danger to the United States, but never is subjected to a military commission hearing, there is no way they can get out if the military wants to hold them. And of course, one expects that the military isn't going to make trials of people who aren't dangerous and aren't terrorists a major priority, because it wants to use the military commissions for those people whom it believes are the worst actors and for whom it has the most incuplatory evidence. Abolishing the right of habeas corpus has the perverse effective of stripping access to justice for those detainees who are most likely to be innocent and harmless, and therefore most deserving of access to the Great Writ of habeas corpus.

Stripping detainees of habeas rights is a big deal. And by not even bothering to enter the debate, the Democrats have effectively ceded this issue without a fight. And for what? Do Democrats really think staying quiet on these issues is going to keep Karl Rove and his minions from accusing them of being soft on terror? Do they think they really have any chance of winning the votes of people who are strongly in favor of torturing people and setting up kangaroo courts?

That's ridiculous. The most destructive stereotype about Democrats is not that they are soft on terror; it's that they're spineless, that they're afraid to say what they actually believe. And that's exactly the stereotype that the Democrats are reinforcing by sitting this one out. Moreover, by allowing the Republicans to monopolize the airwaves on this issue, Democrats only reinforce the notion that national security is a GOP issue, that the only serious thinkers in the room are on the right side of the aisle.

If the Democrats ever hope to prevail on these issues, they'll have to overcome their paralyzing fear of being demagogued by the Karl Roves of the world. Yes, if they stand up for what they know instinctively to be right, they will be accused of supporting "terrorists' rights" or worse. But that's going to happen anyway. And such tactics are not likely to be as effective as they were in the past. That is especially true if the Democrats go on the offensive (and stay on the offensive). They should accuse the Republicans of debasing American values, of pursuing policies that would make our founding fathers spin in their graves. They should use terms like "kangaroo courts" and "banana republic." They should point out that in a matter of a few years, the Bush administration has managed to sully a national reputation that our fathers and grandfathers worked very hard to earn, and that if we consciously abandon the Geneva Conventions, it will, in one fell swoop, scuttle that reputation forever and put our soldiers at much greater risk in future wars.

Not everyone is going to buy that, but at least it will counterbalance the lunacy coming from the right. It will inspire the Democratic base, and if repeated confidently and clearly, it may well convince more than a few fence-sitters that the Democratic party actually does stand for something meaningful. It's time for Democratic politicians to stop watching the debate from the sidelines and to start asserting themselves. If ever there was a time when it mattered, it's now.