Greetings From National Shame Week

We are rushing forward with a debate this week over military commissions and acceptable methods of torture that would have been unthinkable just a few short years ago. We've faced all sorts of threats as a nation in the past, armies who have burned our Capitol to the ground, internal civil wars that killed millions, a Nazi menace that exterminated 6 million people. Somehow this one particular threat, which we are blithely allowing to gain strength through our war in Iraq, demands that we do what we never considered in the previous 230 years: torture detainees, lock them up in secret detention centers hidden to the world, deny them the writ of habeas corpus or the ability to challenge their crimes, and basically sanction a police state wherein we debase ourselves and neglect our moral fiber.

For some unbelievable reason, the Democrats appear to be going along with this, or at least making precious little effort to slow it down, despite the mission creep that appears to be occurring to make this legislation more and more odious.

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.”

The changes had been made over the weekend, as negotiators from the House and White House adjusted a compromise that had been reached between the White House and Senate Republicans on Thursday.

In one change, the original language said that a suspect had the right to “examine and respond to” all evidence used against him. Mr. Graham and his colleagues in resisting the White House, Senators John W. Warner of Virginia and John McCain of Arizona, had insisted that the provision was necessary to prevent so-called secret trials. The bill submitted late Monday dropped the word “examine” and left only “respond to,” reviving complaints about secret trials, this time from Democrats.

In another, the original compromise said that evidence seized “outside the United States” could be admitted in court even if it had been obtained without a search warrant, a provision Republicans and Democrats agreed was necessary to deal with the unusual circumstances of seizing evidence on the battlefield.

The bill introduced Monday dropped the words “outside the United States,” which Democrats said meant that prosecutors could ignore American legal standards on search warrants within the country. The bill also broadened the definition of an unlawful enemy combatant, from anyone “engaged in hostilities against the United States” to include anyone who “has purposefully and materially supported hostilities against the United States.”

“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.”

I don't think it's that hard to know. Torture is WRONG. It's UN-AMERICAN. It also doesn't provide good intelligence, but that's besides the point. In addition this bill denies habeas corpus, and I think America needs a refresher course as to what that means, so devalued is our civic education these days.

The writ of Habeas Corpus was the cornerstone of our Republic; it was what separated us from the totalitarian countries, the dictatorships...our enemies. Habeas Corpus literally means "they have the body." The writ allows an individual in custody to file a petition asserting that his custody violates the law. After the petition is filed the Court is supposed to order that the prisoner be brought to Court so it can be determined whether or not the individual is imprisoned lawfully.

The jailer must then say why the prisoner is being held. The right to file a petition for a writ of Habeas Corpus has long been celebrated as the most efficient safeguard of the liberty of the individual. Habeas Corpus prevented the "King" from simply "disappearing" subjects into secret dungeons. It is mentioned in the Magna Carta of 1215 and was available in America from the time the first settlers came to its shores. It was one of a handful of rights included in the 1787 Constitution and was immediately enacted into statute by the First Congress in 1789. Our Supreme Court in Rasul v. Bush, 542 U.S. 466 (2004), held that the Guantánamo detainees could pursue the habeas actions to compel our government to justify their detentions.

This bill would overturn 800 years of world history in denying that writ. Lost in this debate is the fact that many of the people detained at Guantanamo and elsewhere are INNOCENT. The US government offered king's ransoms to Pakistanis for bringing in anyone they deemed a suspect. Paks seeking cash were turning in their friends, their dinner guests, literally anybody. And as the Times article said and this one in the Washington Post makes even more clear, anyone "who has purposefully and materially supported hostilities against the United States" would be denied this opportunity to defend themselves. Does that mean anyone who disagrees with the government? Anyone involved in actions against it? What does hostilities mean? How broadly may that be cast?

Well, Marty Lederman says very broadly:

Thus, if a person purposefully and materially supports hostilities, he will be an unlawful combatant, even if he never engages in any hostilities himself. [NOTE: At least one of the Administration's supporters believes that the mere filing of a habeas petition is a form of "aggression against the United States." Presumably that is not the intent of the drafters, or else all those attorneys now representing military detainees would become "unlawful enemy combatants"!]

The second subsection is, perhaps, even more alarming: It appears to suggest that even if a detainee has not engaged in hostilities or supported hostilities, he will be deemed an unlawful combatant if the Department of Defense has said so! Note that this definition is not limited to aliens abroad. It applies to persons in the United States, and to citizens and aliens alike [...]

It is worth noting one thing about the breadth of the habeas-stripping provision, both in the new draft and in last week's version, that has thus far received inadequate attention in the public debate. That provision would eliminate the right to petition for habeas for all alleged alien enemy combatants, whether or not the detainee has been determined to be an "unlawful" combatant -- indeed, even if the detainee is deemed a lawful combatant (e.g., a POW) -- and no matter where they are detained, including in the United States.

In a separate post at Balkinization, Jack Balkin calls the Democrats "moral cowards" and "spineless". There are a few Democrats that seem to get this, including Patrick Leahy and Louise Slaughter, who made an eloquent speech today:

We are at a crossroads today, and I fear that we will not by judged kindly by future Americans for what my Republican friends want us to do today.

This bill sends a clear message to both our friends and our enemies about what kind of people we are.

It shows them whether or not we are really willing to practice what we preach about freedom, democracy, and human dignity.

It is moments like this one when we reveal our true colors, and our real values.

Sadly, M. Speaker, those watching today will conclude that when the going gets tough, America's leaders are willing abandon our values...

...abandon them in favor of thuggish tactics they hope might make them safer for a little while.

But it's true, the majority of the Democrats, the ones that could stop this bill in its tracks, are remaining embarrassingly silent or feigning ignorance ("I haven't read the bill.") We have people on our side of the aisle like Senator Obama, who likes to excoriate other Democrats for lacking public expression of their faith and who claim their faith drives their actions. I don't know how you could be a Christian and vote to give the President dictatorial powers to detain, hide, and abuse prisoners. It's antithetical to Christian values. It's antithetical to anyone with a moral code.

We're spending a couple of weeks hastily drafting legislation, timed around an election, that will have profound effects for the rest of our lives. The most centrist editorial board in the country understands that is rushed and in severe error.

As we have said before, there is no need for Congress to act immediately. No terrorist suspects are being held in the CIA detention "program" that President Bush has so vigorously defended. Justice for the al-Qaeda suspects he has delivered to Guantanamo has already been delayed for years by the administration's actions and can wait a few more months. What's important is that any legal system approved by Congress pass the tests set by Sen. John W. Warner (R-Va.) months ago: that the United States can be proud of it, that the world will see it as fair and humane, and that the Supreme Court can uphold it [...]

White House pressure may have persuaded many in Congress that the easiest course is to quickly approve the detention bill in its present form and leave town. If so, their actions almost surely will come back to haunt them. Until this country adopts a legal system for the war on terrorism that meets Mr. Warner's standard, the war itself will be unwinnable.

Not only unwinnable, but unconscionable. These Democrats need to find their conscience and vote with it.