The passage of the Detainee Trial Bill by the Senate, 65-34, together with a House vote to authorize warrantless wiretapping 232-191 added to the Senate cloture vote on the Secure Fence Act (71-28) has some commentators, like Jack Balkin, accusing the Democratic Party of spinelessness. How else to explain the rout? How else to account for the stunning margins?
If the Democrats do not stand up to the President on this bill, if they refuse to filibuster it or even threaten to filibuster it, they do not deserve to win any additional seats in the House or in the Senate. They will have delivered a grievous blow to our system of checks and balances, stained America's reputation around the world, and allowed an obscenity to disfigure the American system of law and justice. Far worse than a misguided zealot is the moral coward who says nothing and allows that zealotry to do real harm.
But I think the real problem is subtly different from that. One commenter at Balkinization came near to identifying the real cause of the Democrat's troubles.
Your complaints highlight the double bind all of our elected officials are in: Either they are denounced as soft and weak by their opponents for not marching lock-step behind the administration's "war" on terror, or they are called soft and weak by everyone else for going along with the majority party.
The reason the Republican Party can impose the double-bind on its political opponents is because the Democratic Party has never really articulated a plausible counter-strategy against the terrorist threat. The party has positions, to be sure. But they mostly consist of reactions to or modifications of the Bush administration's strategy. Calls to "bring home the boys from Iraq by a date certain" or a pledge to "work more closely with our allies to pursue the real terrorists" were perceived for what they were: attempts to present the negation of policy as policy. For example, on the subject of the detention and interrogation of terrorist suspects Democrats focused on the dangers to liberty and the possible inhumanity the bill presented without providing a plausible alternative path to how terrorists could be effectively questioned or put away. This was a psychological nonstarter. Answering that "waterboarding" was cruel to the question how do you get information to protect the public was to miss the point. You can tell a man about to jump from a plane his parachute is defective, but unless you offer another he'll jump with the defective rather than none at all.
A position largely based on negation has no depth. The Supreme Court's Hamdan decision was a stroke of political luck for the Bush administration and a disguised curse for the Democratic Party because it moved the onus of detainee policy from the White House to the Legislature. It was no longer enough to criticize what the President wanted. The legislators had to specify what they wanted; and that turned out to be a harder problem altogether. One which in the end, the Democratic Party was not prepared to fully answer.
The cost of abdicating the strategy of the War on Terror to one party because its prosecution was unthinkable to the antiwar faction of the other was that it reduced the public choice to that of the brake versus the accelerator. Given that choice the public would inevitably opt to lurch forward, rather than do nothing at all. This was the double-bind which Balkin's commenter said bound the Democrats. And the ropes were tightened by those on its Left who did not appreciate that many Bush critics were in opposition not because they were anti-war so much as desirous of winning the war; that their doubts were driven not by pacifism as by skepticism as to the means employed. What the Netroots achieved by bludgeoning Hillary into silence and tarring Joe Lieberman was to make the Bush war policy the only game in town.
That allowed the President to survive any number of mistakes which would otherwise have proved politically fatal. Because whatever else President Bush was -- and he made certain everyone knew it -- he was manifestly committed to winning the War on Terror. And with of the yawning absence of a Democratic war strategy, the more tightly he clung to his policies in the face of the brickbats thrown at him, the more committed to victory he seemed. It's an axiom in politics that you can't beat something with nothing. And its not enough to trip up the point man on the squad. It is necessary to shoulder your way to the front. And because that didn't happen a nation which deserves an intelligent choice on defense policy meant that they too were gripped by the double-bind.