Today's Senate vote on President Bush's detainee legislation, after House approval yesterday, marks a defining moment for this nation.

How far from our historic and Constitutional values are we willing to stray? How mercilessly are we willing to treat those we suspect to be our enemies? How much raw, unchecked power are we willing to hand over to the executive?

The legislation before the Senate today would ban torture, but let Bush define it; would allow the president to imprison indefinitely anyone he decides falls under a wide-ranging new definition of unlawful combatant; would suspend the Great Writ of habeas corpus; would immunize retroactively those who may have engaged in torture. And that's just for starters.

It's a red-letter day for the country. It's also a telling day for our political system.

The people have lost confidence in their president. Despite that small recent uptick in the polls, Bush remains deeply unpopular with the American public, mistrusted by a majority, widely considered out of touch with the nation's real priorities.

But he's still got Congress wrapped around his little finger.

Today's vote will show more clearly than ever before that, when push comes to shove, the Republicans who control Congress are in lock step behind the president, and the Democrats - who could block him, if they chose to do so - are too afraid to put up a real fight.

The kind of emotionless, he-said-she-said news coverage, lacking analysis and obsessed with incremental developments and political posturing - in short, much of modern political journalism - just doesn't do this story justice.

Enemy Combatants: A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret - there's no requirement that this list be published.

Habeas Corpus: Detainees in US military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable - already a contradiction in terms - and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

Yes, the NY Times gets it. But it's not telling the whole truth.

The truth is that the United States government is presently holding, torturing, and even murdering countless numbers of people who have no chance in hell of obtaining a lawyer, let alone anything resembling a trial. The government is doing this under the direct orders of George W. Bush. There is no law, no bill, and no legislature who can stop him. If Congress were to pass a law unequivocally banning torture and send it to him, he'd use it for toilet paper. If the Supreme Court were to rule against Bush in the harshest and bluntest language, he'd yawn.

The truth is that there is a rogue presidency and there has been, since January, 2001 (earlier, if you count the stolen election). Certainly, everyone in Washington knows it, but no one dares to admit it. The bill legalizing torture merely enables congress to pretend they still have some influence over an executive that from day one was governing, not as if they had a mandate, but as if Bush were a dictator. If, for some miracle, the bill didn't pass, every congress-critter knows Bush would keep on torturing.

Better to vote to pass and preserve the appearance of a working American government, the thinking goes. For the very thought that the US government is seriously broken - that the Executive is beyond the control of anyone and everyone in the world - is such a truly awesome and terrifying thought that it can never be publicly acknowledged. If ever it is, if the American crisis gets outed and Congress and the Supremes openly assert that the executive has run completely amok and is beyond control, the world consequences are staggering. It is the stuff of doomsday novels.

And this brings up the dilemma of a post Nov. 7 world. Apparently, one if not both houses of Congress may be controlled by Democrats. Now what? You think Bush is gonna get impeached? Put on trial for war crimes? Forget it. You think they're gonna repeal the pro-torture law they're about to pass? You can almost certainly forget that, too. Remember: it is crucial to maintain the illusion that Congress still has some say, as it was in November of 2002 about the Bush/Iraq war.

If, for some reason, Congress does decide to move against Bush in some substantive way, there will be hell to pay. Those of us who well remember Watergate remember that while it was genuinely thrilling to have Nixon caught, disgraced, and removed, it was also a time of extreme tension. Would Nixon tough the impeachment trial out, causing the country incalculable harm? It looked for quite a long time that he would. About Bush, there is no doubt.

Since the day after the 2000 election, Bush and his goons have been playing chicken with the very structure of the United States Government, double-daring anyone to try and stop them. If Congress does try - and I'm not talking little things like wrecking Social Security, that'll happen and a dictator can afford to let things like that wait a while, I'm talking atomic bang bang and thumbscrews - he will force the private Constitutional crisis into the open. And there is no guarantee that Bush will lose.

And that is the truth. The Congress has been given an awful choice: Vote to approve torture and the suspension of habeas or show the world that yes, you really do have no genuine power to check Bush.

Of course, all of Congress should vote against the bill anyway. But they won't. And to themselves, they will justify the vote as saying they made a hard choice but made the best one they could for their country.

Me, well... I've gone on record numerous times about how much I dread radicalism and serious national crises (which are two reasons Bush scares the hell out of me). The prospect of an open Constitutional confrontation, Bush vs. the Congress plus the Supremes... Jesus Christ. Perhaps I should understand the Congress had no real choice?

Absolutely not. The time truly is long overdue where there simply is no choice but to say "enough." It should have been enough over the stolen election, or the neglect that led to 9/11, or Schiavo, or the filibuster. But voting to permit the US government to sidestep Geneva? To suspend habeas? What the fuck is Congress thinking, for crissakes?

… There's no question about it. Any person in Congress who votes for this - listening, Hillary? - will never get my vote again. Ever, not even for dogcatcher, let alone president. If there is going to be a public Constitutional crisis over Bush's rogue presidency - and there will be sooner or later, guaranteed - bring it on now.

The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated.

The vote, 65-to-34, came after more than 10 hours of often impassioned debate touching on the Constitution, the horrors of Sept. 11 and the nation's role in the world, but it was also underscored by a measure of politics as Congress prepares to break for the final month of campaigning before closely fought midterm elections.

Following in the footsteps of the House, the Senate this afternoon approved the bill which vests in the President the power of indefinite, unreviewable detention (even of US citizens) and which also legalizes various torture techniques. It is not hyperbole to say that his is one of the most tyrannical and dangerous bills to be enacted in our nation's history.

… The Democrats lacked the votes for a filibuster and therefore did not attempt one. Twelve (out of 44) Senate Democrats voted in favor of this bill, while only one Republican (Chafee) voted against it. The dishonorable list of Democrats voting for the bill: Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich).

One can look at the Democrats' conduct here in one of two ways. On the one hand, it is true that the Democrats disappeared from the debate until today, all but hiding behind John McCain in the futile hope that he would remain steadfast in his opposition to the White House. When McCain predictably capitulated and agreed to a bill that gave the Bush administration virtually everything it wanted, the Democrats, by their own doing, had very few options. Once the Democrats designated McCain as the Noble and Wise Torture Expert who spoke on their behalf, it became very difficult for them to oppose the "compromise" bill after McCain announced that he was blessing it. Democrats painted themselves into this corner by failing forcefully to advocate their own position against torture and indefinite detention.

Nonetheless, it is simply a fact that every Republican in the House and the Senate (with one sole exception in each) voted in favor of this tyrannical bill, while Democrats overwhelmingly opposed it (in the House, 160 Democrats voted "no," while 34 voted "yes"). With those facts assembled, it is fair to say that the Republicans are the party of torture, indefinite and unreviewable detention powers, and limitless presidential power, even over US citizens on US soil. By contrast, Democrats have largely opposed these tyrannical, un-American and truly dangerous measures. Even if Democrats didn't oppose them as vociferously as they could have and should have - and that is plainly the case - this is still a meaningful and, at this point in our country's history, a critically important contrast.

Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).

... There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny - one of the very powers this country was founded in order to prevent.

One could cite an infinite number of sources to demonstrate what a profound betrayal this bill is of the fundamental promises of the American system of government. As Justice Jackson wrote in his concurring opinion in Brown v. Allen, 344 US 443, 533 (1953):

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

Thomas Jefferson, in his letter to Thomas Paine, 1789. ME 7:408, Papers 15:269, said: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." And Patrick Henry warned us well in advance about Government officials who would seek to claim the right to imprison people without a trial:

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

In one sense, these observations are compelling because they define the core of what our country is supposed to be. But in another sense, they don't matter, because our Government is controlled by people and their followers who literally don't understand and, worse, simply do not believe in the defining values and principles of America. They know that this bill is a seizure of the most un-American powers imaginable, but their allegiance is to the acquisition of unlimited power and nothing else.

It was taken as an article of faith by Beltway Democrats that Americans want to relinquish these protections and radically change our system of government in the name of terrorism, so no political figures of national significance really tried to convince them they ought not to. We'll never really know whether Americans really wanted to do this or not because the debate was never engaged. It was ceded.

And as a result, we are now about to vest in the President the power to order anyone - US citizen, resident alien or foreign national - detained indefinitely in a military prison regardless of where they are - US soil or outside of the country. American detainees are cut off from any meaningful judicial review and everyone else is cut off completely. They can be subject to torture with no recourse, and all of this happens on the unchecked say-so of the administration. Really, what could be more significant than this?

... During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus protections. Then he voted for it.

The American Civil Liberties Union expressed distress as the Senate adopted S.3930, the Military Commissions Act of 2006. That bill is identical to legislation adopted by the House yesterday and removes important checks on the president by: failing to protect due process, eliminating habeas corpus for many detainees, undermining enforcement of the Geneva Conventions, and giving a "get out of jail free card" to senior officials who authorized or ordered illegal torture and abuse.

"This legislation gives the president new unchecked powers to detain, abuse, and try people at Guantanamo Bay and other government facilities around the world," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "Unfortunately for America, the Senate chose not to deliberate today. Instead, it joined the House and President Bush in jamming through a hastily written bill before running home to try to campaign."

Senators rejected several amendments that would have corrected shortcomings in the legislation. The bill gives the president license to weaken enforcement of the basic protections in Common Article 3 of the Geneva Conventions. As passed, the president would have new power to decide much of the scope of authorized conduct and the severity of punishment, giving him unparalleled power to unilaterally determine whether the government can carry out cruelty and abuse.

Additionally, the bill undermines the American value of due process by permitting convictions based on evidence literally beaten out of a witness or obtained through other abuse by either our government or other countries. Government officials who authorized or ordered illegal acts of torture and abuse would receive retroactive immunity for many of these acts, providing a "get out of jail free" card that is backdated nine years.

In the closest vote today, the Senate rejected by a 51-48 vote an amendment by Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT) to preserve minimal protections of the courts in their historical and constitutional role as a check on the executive branch, through habeas corpus.

"Nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas petition," said Christopher Anders, an ACLU Legislative Counsel. "But that's exactly what Congress just approved."

"Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of more rights for terrorists," Hastert said in a statement. "So the same terrorists who plan to harm innocent Americans and their freedom worldwide would be coddled, if we followed the Democrat plan."

The "Democratic plan" is simply to expect the government to obey existing laws rather than brushing them aside with a quick legislative assist, but what is truly offensive and disingenuous about Hastert's attack is the assumption that Democrats want to "coddle terrorists" rather than "protect the innocent." It is astonishing that the GOP, so long distrustful of the ability of government to make decisions wisely, is now populated with members who are certain that the executive branch will never err in taking custody of a suspected terrorist. The rights that protect against a wrongful conviction - freedom from tortured confessions and a ban against the inherently unreliable evidence that coercion produces, confrontation of witnesses, discovery of evidence, judicial review and more - can be safely withheld because of ... presidential infallibility?

… Those who oppose the president's "terrorism" bills recognize that law enforcement agencies - from the smallest police department to Homeland Security and the CIA - don't get it right every time. … Why are Hastert and his ilk so convinced that it is unnecessary to provide terrorism detainees with basic procedural protections that can save the falsely accused from a lifetime of indefinite detention?

It is monstrous that the GOP uses respect for our nation's founding principles as an object of political ridicule and scorn. But it has been monstrous for Republicans to work tirelessly to imprison so many for so long while attacking Democrats for being "soft on crime." And just as it has been frustrating to watch Democrats capitulate on crime (it was Bill Clinton, after all, who signed legislation that severely limited the scope of federal habeas corpus review), it is sad to see Democrats who are unwilling to protect our constitutional values today.

Harry Reid, on the Ed Schultz show today, said there just weren't enough votes to sustain a filibuster. Why not? Why would anyone in the legislative branch tolerate an executive power grab of this dimension? Democrats had the power to stop this arrogant betrayal of the Constitution. Why didn't they exercise that power? Because they didn't want to seem soft on terrorism? What kind of politician are you if you can't explain the difference between "coddling terrorists" and "protecting the innocent from an incompetent branch of government"?

President Bush suggested Thursday that Democrats don't have the stomach to fight the war on terror, battling back in the election-season clamor over administration intelligence showing terrorism spreading.

"Five years after 9/11, the worst attack on the American homeland in our history, Democrats offer nothing but criticism and obstruction and endless second-guessing," Bush said at a Republican fundraiser.

"The party of FDR and the party of Harry Truman has become the party of cut and run," Bush told a convention-center audience of over 2,000 people. The event put $2.5 million in the campaign accounts of Alabama Gov. Bob Riley and the state GOP.

I strongly believe this legislation is unconstitutional. It will almost certainly be struck down by the Supreme Court. And when that happens, we'll be back here several years from now debating how to bring terrorists to justice.

The families of the 9/11 victims and the nation have been waiting five years for the perpetrators of these attacks to be brought to justice. They should not have to wait longer. We should get this right now - and we are not doing so by passing this bill. The National security policies of this administration and Republican Congress may have been tough, but they haven't been smart. The American people are paying a price for their mistakes.

History will judge our actions here today. I am convinced that future generations will view passage of this bill as a grave error. I wish to be recorded as one who voted against taking this step.