As bad as this bill being passed today by the US Senate is, the light at the end of the dark tunnel it constructs is the near-inevitability of it being struck down by the Supreme Court as unconstitutional. How could it not? It would take some truly remarkable language-twisting to fit the Constitution's instructions about habeas corpus to the intent of this bill. I'll go into more detail as I study the issue more deeply, so in the meantime I'll make a point to link to folks who already have that kind of in-depth insight. I'll start today with Nat Hentoff:
Last June, the Supreme Court (Hamdan v. Rumsfeld) ruled that our federal courts have the power to hear habeas-corpus petitions from detainees on the legal basis for their imprisonment - and the conditions of their treatment. Habeas corpus, the "Great Writ," which has roots at least as far back as the Magna Carta (the year 1215), is embedded in the Constitution as the most fundamental protection against loss of liberty. But in the both acclaimed and denounced bill put through the Senate Armed Services Committee by Republicans John Warner (Virginia), John McCain (Arizona) and Lindsey Graham (South Carolina), habeas-corpus rights have been removed.
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In the blizzard of expensive TV ads and scathing stump speeches as the midterm elections approach, I doubt if any of the candidates and their supporters will focus on, or even mention, this assault on habeas corpus. But nine retired federal judges have tried to awaken Congress to this constitutional crisis. Among them are such often-honored jurists as Shirley Hufstedler, Nathaniel Jones, Patricia Wald, H. Lee Sarokin and William Sessions (who was head of the CIA and the FBI).
They write, particularly with regard to Sen. McCain's concerns about torture, that without habeas petitions, how will the judiciary ensure that "Executive detentions are not grounded on torture"? The judges also remind Congress that the writ of habeas corpus has been suspended only four times in our history - and then, the Constitution states, only in "Cases of Rebellion or Invasion (when) the public Safety may require it.")
To be sure, Abraham Lincoln suspended habeas during the horrors of the Civil War; but in 1866, the Supreme Court declared that action unconstitutional because the civilian courts were still open during the war - as they still are right now.
