Get It Right This Time on Habeas Rules

When a lame-duck, lame-brained Congress late last year passed the Military Commissions Act of 2006, it was immediately apparent that the measure would not solve the problems it was created to solve and in some cases would make bad situations worse. And, indeed, that's precisely how things have unfolded "on the ground" in the legal war on terrorism.

The dubious law, hastily-enacted while the Republicans still controlled Capitol Hill, did not promptly break the logjam holding up military tribunals for the terror detainees down at Guantanamo Bay, Cuba. And it stripped away from certain legal residents of the United States their right to use the federal courts to challenge their detention by the government. It was, in effect, a colossal waste of time, energy and political capital. So here we all are, 10 months later, waiting for our legislators to get it right.

The Senate this morning votes on the Habeas Corpus Restoration Act, a measure designed to correct at least one of the many failures of last year's Commission's Act. The new legislation has bipartisan support-- Sen. Arlen Specter (R-Pa.) is a cosponsor and heavy-hitting former Rep. Bob Barr (R-Ga.) has been championing the bill from the sidelines. If the Congress passes it, the President should sign it. And if he does not, his veto ought to be overridden. No excuses this time when it comes to detainee rights-- if they are worth addressing, they are worth addressing right.

Here's how the Washington Post editorial board frame it yesterday: "Administration allies in Congress also bear responsibility for failing to craft an alternative legal system that could have served the interests of national security while bestowing on detainees meaningful legal protections. The tribunals and commissions at Guantanamo Bay concocted for such purposes were laughable in their ineffectiveness and deplorably lacking in fundamental fairness. When federal courts began to shoot down the tribunals and commissions as legally insufficient, what did Congress do? It passed a law to strip judges of jurisdiction over these cases."

The New York Times editorial page used stronger language: "Mr. Bush was determined to avoid judicial scrutiny of the extralegal system of prisons he created after the Sept. 11 attacks. With the help of his allies on Capitol Hill, he railroaded the habeas corpus suspension through the Republican-controlled Congress. The administration's disinformation machine portrayed the debate as a fight between tough-minded conservatives who wanted to defeat terrorism and addled liberals who would coddle the worst kinds of criminals. It was nothing of the kind."

And, finally, Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee and another co-sponsor of the measure says, noted on his website: "Top conservative thinkers, evangelical activists, and prominent members of the Latino community have all spoken out on the need to restore these basic American rights. General Colin Powell, like many leading former military and diplomatic officials, has spoken of the importance of these habeas rights. He asked, 'Isn't that what our system's all about?' "

Leahy continued: "Perhaps most powerful for me was the testimony of Rear Admiral Donald Guter, who was working in his office in the Pentagon as Judge Advocate General of the Navy on September 11, 2001, and saw first hand the effects of terrorism. His credibility is unimpeachable when he says that denying habeas rights to detainees endangers our troops and undermines our military efforts. Admiral Guter testified: 'As we limit the rights of human beings, even those of the enemy, we become more like the enemy. That makes us weaker and imperils our valiant troops, serving not just in Iraq and Afghanistan, but around the globe.' "

By Andrew Cohen |  September 19, 2007; 7:53 AM ET
Previous: Confirm First, Fight Second | Next: Update: Republicans Say No to Habeas Return

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The abrogation of habeas corpus in the absence of insurrection or invasion will go down in history as one of the most grevious offenses to our liberty ever committed by our government. Shame to all who voted for it. Shame to the administration for proposing and signing it. But especially shame to those Senators who opposed it and had the power to defeat it merely by asking for a cloture vote.

My prediction: The act will pass and the President will sign it. Then another of those signing statements will be issued from the VP's office saying that it will be implemented consistent with the President's warped view of constitutional powers.

Posted by: Nellie | September 19, 2007 09:36 AM

I guess I overestimated the GOP's reverence for freedom.

Someone please tell me when this perpetual GOP fillibuster is going to end. Will it take the 2008 election putting 60+ Democrats in the Senate, or will these freedom-hating morons buy a clue before then?

Posted by: Nellie | September 19, 2007 03:01 PM

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