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Senate, White House Hypocrisy on Torture--A Commentary by Prof. Bruce Ackerman

America is reaching a turning point on torture.

Congress will soon consider two amendments that threaten a descent into hypocrisy. Both have been tacked onto the defense authorization bill. A provision by Sen. John McCain (R., Ariz.) is an unconditional bar on torture - a prospect President Bush finds so damaging he is threatening to veto the entire bill.

But he won't have to, thanks to a recent amendment by Sen. Lindsay Graham (R., S.C.). This one bars Guantanamo detainees from going to federal court to enforce the rights that McCain would declare sacrosanct.

A shabby compromise is in the making. Bush removes his veto threat - as long as Graham's amendment remains in the bill - to transform McCain's principles into a hypocritical gesture: Listen up, world, we are against torture at Guantanamo - as long as nobody can complain about it.

To deflect critics, Graham has created an exception to allow Guantanamo inmates their day in court once they are finally convicted of a crime by a military tribunal. But this exception creates more perverse incentives. If a detainee has been victimized, the best way to cover it up is to hold him indefinitely as an "enemy combatant" and never send him before a military tribunal. That way, he will never get access to a federal court.

At present, only nine of the 500 Guantanamo detainees have been charged with crimes, and none have yet been convicted. How long will it take for Americans to learn what is really going on inside?

Graham's amendment poses even greater damage. The Supreme Court has recently decided to hear a case from a Guantanamo inmate who insists that the due process clause of the Fifth Amendment requires a judicial hearing immediately. Graham's rider may require the court to drop this case in midstream.

Congress has made a similar assault on judicial independence only once before. After the Civil War, a Union Army commander threw a Mississippi newspaper editor in jail for agitating against Reconstruction. When William McCardle petitioned for habeas corpus, the Supreme Court seemed about to free him. But Congress intervened to strip the case from the court's docket, and the justices caved, leaving McCardle in military prison.

Perhaps the modern court will show more backbone this time around. If it doesn't, it will gravely weaken its authority. The Graham rider threatens to reverberate far beyond Guantanamo, endangering the constitutional rights of all Americans.

Despite the high stakes, Graham did not even give Congress a fair chance to consider the matter. He made an end run around the Senate Judiciary Committee, chaired by Sen. Arlen Specter (R., Pa.), and persuaded the Senate to accept his court-stripping rider as a floor amendment. Specter eloquently protested, but he was outvoted in the rush to push the matter into a conference committee.

The Senate leadership plans to continue its rush tactics this week. It will ask the Senate to rubber-stamp the final conference bill before it begins its Christmas recess. But Specter should stand firm against a cynical compromise that will defang McCain's anti-torture initiative. Given the grave issues raised by the Graham amendment, a filibuster is entirely appropriate to give the judiciary committee a chance to expose the Graham amendment to sober second thought. It would be tragic if McCain's admirable proposal becomes an occasion for yet another assault on the fundamental principles of the American Constitution.

Bruce Ackerman is author of the forthcoming book Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.