Democrats bear responsibility for restoring habeas corpus

They affirmatively passed the Military Commissions Act in September and thus are now obligated to repeal its most tyrannical provision.

Published May 9, 2007 10:40AM (EDT)

(updated below - updated again)

The Military Commissions Act of 2006 is, without question, the single worst law enacted during the Bush presidency, and is one of the most destructive laws passed in the last several decades. It is not merely a bad law. It vests in the President the power to detain people indefinitely with no meaningful opportunity to contest the government's accusations. That is the very power the Founders sought first and foremost to prohibit.

More significantly, whether a country permits its political leaders to imprison people arbitrarily and with no process is one of the few defining attributes dividing free and civilized countries from lawless tyrannies. Or, as Thomas Jefferson put it in his 1789 letter to Thomas Paine: "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." To vest the President with the power to imprison people indefinitely with no charges is fundamentally to transform the type of country we are.

House Democrats are apparently now debating whether to vote on a bill to restore habeas corpus. Matt Stoller provides some of the legislative details and information needed to pressure them to do so, and he explains why quick action is required. This morning, The New York Times and even The Washington Post editorialized in favor of habeas restoration. It would be a profound -- and truly inexcusable -- abdication of Democrats' responsibilities for them to do anything other then devote full-scale efforts to restoring habeas corpus.

It is worthwhile to review briefly the history of how this legislative atrocity came to be. When the White House proposed this bill, Democrats were as meek and as silent as could be. They literally disappeared from the debate, allowing the illusion of "negotiations" between the White House on the one hand, and a handful of allegedly principled and independent Republican Senators (McCain, Warner and Graham) on the other.

When -- as was both painfully predictable and predicted -- those Republican Senators capitulated almost in full to the White House, "winning" only the most meaninglessly symbolic linguistic changes to the bill while acquiescing to its most Draconian provisions, the fate of the bill was sealed because Democrats had ceded their authority to those "rebel" GOP Senators.

On the most important bill of the Bush presidency, Congressional Democrats chose to remain absent from the debate -- and allow the fate of habeas corpus to rest on the obvious delusion that Congressional Republicans would protect it -- because they were petrified that Karl Rove, in the imminent midterm elections, would call them "pro-terrorist" if they protected habeas corpus. Of course, just as Rove insinuated that they were "pro-Saddam" in 2002 despite half of them voting to wage war against Iraq, Rove suggested they were "pro-terrorist" in 2006 despite Democrats allowing the MCA to pass.

It is true that most Democrats in both the House and Senate ultimately voted against this law (though 12 Democratic Senators out of 44 voted in favor). But even among the Senate Democrats who did vote against its enactment, many of them did not even reveal how they would vote until -- literally -- the very day before the vote occurred, and many such Democratic Senators announced their opposition only once it became clear that it would pass.

Just to remind ourselves of the behavior of the Democrats during the "debate," here are a few illustrative paragraphs from The New York Times article reporting on the "negotiations" over the bill that continued even after the grand McCain-Warner-Graham "compromise" was reached, whereby the "rebel GOP Senators" continued to make concessions to the White House which broadened even further the new powers vested in the President:

But Republicans were optimistic about eliminating last-minute concerns over a separate measure laying out rules for interrogating terrorism suspects and trying them before military tribunals. They said they were hoping to send the bill to Mr. Bush by the end of the week for a signing ceremony that could help them kick off the home stretch of the campaign with a message that Republicans were taking strong steps to protect the nation from terror attacks.

"I think we are good to go," said Senator Lindsey Graham, Republican of South Carolina and one of three Republican senators who last week forced the administration into negotiations over the detainee measure.

Democrats, while being careful to say that they had made no decision to block the detainee bill, expressed rising concerns about changes to the proposal that they said went beyond what Senator Bill Frist of Tennessee, the Republican leader, had described Monday as merely "technical changes" . . . .

"These are significant changes, not technical changes," said Senator Carl Levin of Michigan, the senior Democrat on the Armed Services Committee, where the original bill backed by Senators Warner, McCain and Graham was approved. "It's hard to know how to vote on a bill that's this much in motion."

It's hard to know how to vote on a bill that's this much in motion. Outside of a handful of Democratic lawmakers, that whiny procedural complaint was the sum total of the Democrats' "opposition" to the MCA until the day before, when its fate was sealed.

Far worse, many Democrats -- led by Harry Reid (who at the last minute announced his opposition) -- even spoke favorably of the MCA in the days immediately preceding the vote:

Democrats, who have found themselves on the losing end of the national security debate the past two national elections, said the changes to the bill had not yet reached a level that would cause them to try to block it altogether.

"We want to do this," said Senator Harry Reid of Nevada, the Democratic leader. "And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution."

Full-scale (and consciously chosen) Democratic capitulation -- along with, in some cases, actual support for this bill -- is what placed them in that predicament, as the Times article from several days earlier made clear:

Democrats have allowed three Republican senators with strong military credentials -- John W. Warner of Virginia, John McCain of Arizona and Lindsey Graham of South Carolina -- to take the lead in resisting the president on the issue. Democratic leaders were largely positive about the agreement reached Thursday, signaling that they would continue to cooperate, rather than risk looking obstructionist heading into the midterms.

"A handful of principled Republican Senators have forced the White House to back down from the worst elements of its extreme proposal for new interrogation rules," said Jim Manley, a spokesman for Senator Harry Reid of Nevada, the Democratic leader.

It was a disgraceful performance by Democratic Congressional leaders all the way around -- driven by all of the worst elements plaguing our Beltway system -- and it resulted in the abolition of one of the most defining and long-standing American liberties: the right not to be imprisoned without charges, due process, and a determination of guilt in a real judicial proceeding.

As but one of the countless heinous examples of what this law authorizes, review the plight of Ali Saleh Kahlah al-Marri, a citizen of Qatar who, in 2001, was living with his wife and five children in the U.S. legally -- as a computer science graduate student at Bradley University in Peoria, Illinois -- when he was detained and then charged with making false statements when he was questioned as part of the 9/11 investigation.

Al-Marri vehemently denied the accusations, and his criminal trial was scheduled for July, 2003. But the trial never happened, because President Bush, one month before it was to begin, declared him an "enemy combatant," leading to the dismissal of the charges in court and his transfer to a military prison, where he has remained ever since -- indefinitely -- with no opportunity to contest the charges or to prove his innocence.

That is what the MCA has legalized. That is the system of American justice which the 2006 Congress imposed -- people swept off the streets of America and imprisoned indefinitely, with no charges and no venue to prove one's innocence. And while it was the Bush White House which initiated this practice and it was Republicans in Congress who voted for it, Democrats -- who calculated that meaningfully opposing this bill would be too politically costly and would jeopardize their election victory -- bear significant culpability for its enactment. And that means that they now bear principal responsibility for its repeal.

Needless to say, fear of appearing "soft on terrorism" is the primary impediment to habeas restoration. That fear is absurd. The Republicans' principal weapon in 2006 was the fear-mongering claim that Democrats were weak on terrorism because they oppose warrantless eavesdropping, "coercive interrogations," and lawless detentions. And yet Republicans were crushed in that election. It's not 2002 any more; the country has tuned out those sorts of scare tactics and that manipulative weapon has been overused and is impotent.

Moreover, this is not a hard argument to make, but in order for it to be understood, the argument needs to be made. Americans understand instinctively that to allow someone to contest accusations against them is not tantamount to allowing them to go free. It is easily conveyed that a critical aspect for punishing terrorists is to ensure that we only punish actual terrorists but provide a process whereby innocent people are not wrongfully imprisoned for life. If Democrats engage that debate, rather than run from it again, it is not difficult to make that case.

But none of that even matters. The right to be free of arbitrary executive imprisonment is -- and, since the founding of America, always has been -- a defining and distinguishing attribute of our country (notwithstanding shameful instances in our past where that right has been denied). All citizens -- including, actually especially, those sent to represent the people in Congress -- have an obligation to protect that right from government officials who seek to abolish it.

Having disgracefully abdicated that responsibility back in September because they wanted to win the midterm elections, Democrats -- now that they have won -- can cleanse their historic sin only by committing themselves, not symbolically but in actuality, to the restoration of habeas corpus. Whether they are willing to do so will speak volumes about their true character and about whether their November victory will result in anything other than some televised hearings. If Democrats are too afraid even to take a stand against the Bush administration in defense of this centuries-old core American liberty, it is impossible to imagine any even minimally risky stands they are willing to take.

UPDATE: Jeralyn Merritt at Talk Left has printed an e-mail from a reader which reports the following:

FYI-- Congresswoman, Rep. Kathy Castor, (D-FL-11th) who serves on both the Armed Services Comm. AND is the only freshman on the powerful Rules Committee which makes decisions about moving bills forward, met with Armed Services Chair Ike Skelton early this morning and they have decided to file a stand alone bill to restore habeas corpus rather than put it in the Defense Authorization Bill.

I spoke to her Chief of Staff personally, and he said she promises to work to move the bill along, so everyone will have to vote up or down on restoring habeas, and we'll all know by their vote where exactly everyone in Congress stands on restoring habeas.

I don't know enough about the legislative mechanics involved to know all of the implications, but I would think -- though it is purely speculative absent more knowledge -- that this is a good development, and a clean vote on whether to restore habeas corpus should be able to pass both houses (though not with a veto-proof majority).

UPDATE II: I'm hearing anecdotally that an amendment to the Defense Authorization bill would have been the easiest and quickest way to ensure a vote on habeas corpus, and that a stand-alone bill is a much lengthier and more difficult process, which would make the development reported by Talk Left bad news.

But without knowing the real legislative details (and I don't), it is hard to say, and there is clearly some confusion about what House Democrats are willing to do (see here, for instance). It sounds as though the House leadership is attempting to block efforts that would ensure a quick and certain vote, though I'm going to refrain from speculating further on that until there is clearer information and until people with a real knowledge of the process write about this.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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