Tipping point

It's discouraging how much credit Sens. Warner, Graham, and McCain are getting for resisting some of the worst aspects of the Bush administration's proposals for detention, interrogation, and due process for persons suspected of terrorist activity. The bar has been lowered so much that we're expected to give high praise for a bill that forbids the use of secret evidence, or evidence obtained through torture. We shouldn't even be considering these tools of dictatorship.

More importantly, as a message from the Center for Constitutional Rights today says:

The debate around these bills misses the point: both versions strip away the fundamental right to habeas corpus, the right to challenge your detention in a court of law. ... Anyone in U.S. custody, at home or abroad, must have the right to challenge their detention in court. Nothing is more fundamental to our democracy than this right.

Without access to courts, all other protections are meaningless and unenforceable. Legal and human rights observers like Jack Balkin and Marty Lederman of Balkinization and Hilzoy and Katherine of Obsidian Wings have shown how much of what we have learned about the fact and conditions of detention, and about the abuse and torture inflicted in our names, has depended on the exercise of habeas rights by detainees.

Politically, and in policy terms, the best approach to take to the Bush administration's push for immediate Congressional action on military commissions (tribunals), interrogation, and detention is to say:
Cool your jets!

We're mired in a ruinous occupation of Iraq today because Congress allowed itself to be stampeded into a vote authorizing war in the period leading up to midterm elections four years ago. Now, again, the Bush administration is using national security and constitutional issues as an electoral club, and the Democratic leaders seem to have learned very little. Instead of insisting that these crucial decisions be made only after a full and free debate, they're agreeing to vote before the elections and accepting the "leadership" of Republicans who only want to chip away at a few of Bush's totalitarian proposals (and are signaling a willingness to compromise even on those).

So: tell your Senators to slow down and push off voting on legislation that could overturn hundreds of years of legal tradition until after November.

In the event that they prove as shortsighted and deaf to constituents as they were in 2002, and such a bill comes to the floor in the next month, urge your Senators to support a floor amendment to restore habeas corpus rights. Sens. Specter and Levin plan to introduce such an amendment if either of the current detainee treatment bills comes to the floor: S.3901, The Military Commissions Act of 2006, sponsored by Sen. Warner, or the administration bill, S.3861, sponsored by Sen. Frist (named 'The Bringing Terrorists to Justice Act of 2006'; if only!).

Tell your Senators today that they must vote to save habeas corpus. Call 202-224-3121, fax a message, or use the email feature on many Senators' websites. Virginians: Warner needs to hear from you most of all. Phone: 202-224-2023, fax: 202-224-6295, email: (via web): http://warner.senate.gov

Update: 11:00 pm 20 Sept - It's not often that a blog slug like me who posts once a week manages to be on the cutting edge, but I anticipated the admirable Digby by two whole days here.