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November 04, 2005

Torture, Civil Liberties and Terrorists
Posted by Morton H. Halperin

The only way we can lose the fight against terrorists is if we allow them to goad us into betraying our deepest values.  By sanctioning torture and violating civil liberties, the Bush Administration has set us on a course that does just that.  But the administration's misguided efforts are finally meeting with effective resistance.  There is a real chance that with continuing public pressure Congress will adopt two important measures for the end of the year.

(My colleague Suzanne Nossel dealt with the merits of the arguments about sanctioning torture at some length yesterday and I will not repeat this, but I endorse her comments.)

The Senate has led the way by adopting with overwhelming support two critical restrictions on the President's power.  First, by unanimous consent, it accepted significant changes in the Patriot Act section usually known misleadingly as the "library" provision since it relates to a whole range of documents (I return to this below). Second, it adopted by a vote of 90-9 an amendment to the Defense Appropriations bill (HR 2863 sections 8154, 8155) which prohibits cruel, inhuman, or degrading treatment of persons held anywhere by the Department of Defense or any other agency of the government. 

But success is not yet assured.  The House did not adopt either of the rights-protective provisions adopted by the Senate. Both hang in the balance in negotiations between the House and Senate.  Meanwhile, the administration threatens to veto both the reauthorization of the expiring provisions of the Patriot Act and the Defense Appropriations bill.

The anti-torture provision was adopted in the Senate under the leadership of Senator McCain and with the support of 90 Senators.  It has now been endorsed in the House by more than 13 moderate Republicans.  Their support, along with that of key Democrats including the ranking member of the DoD approrpriations sub-committee, gives the provision a clear majority in the House. House Republican leaders have reportedly told the administration that if put to a vote, the provision would be approved by the House.  For that reason the Republican House leadership put off appointing conferees on the bill since this would have permitted ranking Democrat Murtha to offer a motion to instruct the conferees to accept the Senate anti-torture language.

The anti-torture provisions were adopted in the Senate despite intense lobbying by Vice President Cheney.  The indictment of Scooter Libby may further weaken the hand of those within the administration who have staunchly defended the notion of presidential power to authorize torture, including Cheney (or "Official C," as perhaps he should be known).  After the torture provision was adopted, Cheney secretly suggested that the administration could live with the prohibition if the CIA was exempted.  Leaders of the anti-torture effort on both sides of the aisle in the House as well as the Senate have shown no interest in that proposal.

Senator McCain put his amendment on the Defense Appropriations bill only after Senate Majority Leader Bill Frist pulled the DoD Authorization bill off the floor in order to avoid a vote on the McCain amendment.  He has now agreed to bring the bill back next week and to permit a vote on the amendment.  There is no doubt that it will pass overwhelmingly again.  In the meantime, moderate Republicans in the House are signaling their strong and growing support for the provision in the wake of strong endorsements from former Secretary of State Colin Powell and many retired military officers.  Leading Republican foreign policy statesmen are expected to express their concern about torture and degrading treatment shortly.

Reports suggest that the administration is deeply split on this issue.  With continuing strong public pressure, this is a fight that can be won.

The favorable change in the Patriot Act -- now in conference between the House and Senate -- could lead to another important victory for respect for human rights and the rule of law.  The Senate version of the bill limits the ability of the government to get records from libraries and other institutions by either sending a letter demanding it or getting an order from the FISA court.  Under current law the government need only assert that the information is needed for a terrorism investigation and the judge can only determine that the government is making that assertion, not that it has underlying facts to support it.  The Senate amendment to the renewal of the expiring Patriot Act provisions requires proof of a much clearer nexus to a suspected terrorist and gives the Court the role it should have in determining if the government has demonstrated that there is probable cause to believe that the facts are true.

The Patriot Act conference is reportedly bogged down in fights over extraneous provisions added by the House and has not yet reached this issue.  When and if it does, there is a real prospect of getting the Senate language adopted.  Key civil liberties groups have made it clear to the conferees that this provision is the most important one in the  bill and have urged Senators to hold fast.  It is not yet clear if the House would go along with the Senate language.

By the time Congress goes home at the end of the session it might well have adopted these two provisions.  If so, this will mark at long last not only a turning point towards a greater role for Congress in the struggle against terrorists, but also recognition of the need to stand for the highest ideals of the nation as we protect our security. 


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I am confused by the procedural posture. You say the McCain Amendment was passed in the Senate by 90 to 9. But then you say:

"Senator McCain put his amendment on the Defense Appropriations bill only after Senate Majority Leader Bill Frist pulled the DoD Authorization bill off the floor in order to avoid a vote on the McCain amendment. He has now agreed to bring the bill back next week and to permit a vote on the amendment."

Does the amendment have to be voted on again? Why?

Frist was able to avoid a vote on the Defense Authorization bill by pulling the bill off the floor. He could not do that with the Defense Appropriations bill and McCain was able to get a vote on his amendment on that bill. He would prefer to have his amendment on the authorization bill and got it added to that bill today by unanimous consent.



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