December 16, 2005 -"Huffington Post" -- -- Today, for two separate reasons, has been an incredible day in America. First, the United States has legitimized torture and secondly, the President has admitted to an impeachable offense.

First, the media has been totally misled on the alleged Bush-McCain agreement on torture. McCain capitulated. It is not a defeat for Bush. It is a win for Cheney.

Torture is not banned or in any way impeded.

Under the compromise, anyone charged with torture can defend himself if a "reasonable" person could have concluded they were following a lawful order.

That defense "loophole" totally corrodes the ban. It is the CIA, or the torturing agency, who will decide what a "reasonable" person could have concluded. Can you imagine those agencies in the interrogation business torturing on their own in trying to decide what is reasonable or what is not? What is not "reasonable" if the interrogator (wrongfully or rightfully) believes he has a ticking-bomb situation? Will a CIA or military officer issue a narrow order if he knows his interrogator believes, in this case, torture will work?

The Bush-McCain torture compromise legitimizes torture. It is the first time that has happened in this country. Not in the two World Wars, Korea, the Cold War or Vietnam did the government ever seek or get the power this bill gives them.

The worst part of it is that most of the media missed it and got it wrong.

Secondly, the President in authorizing surveillance without seeking a court order has committed a crime. The Federal Communications Act criminalizes surveillance without a warrant. It is an impeachable offense. This was also totally missed by the media.

Martin Garbus is a partner in the law firm of Davis & Gilbert LLP and one of the country's leading trial lawyers.

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