Supreme Court Slaps Bush, Congress on Habeas Corpus

By a 5-4 vote, the Supreme Court has ruled unconstitutional the provision of the Military Commissions Act of 2006 that suspended the use of habeas corpus by detainees in Bush's "war on terror." The MCA was pushed by Bush, and overwhelmingly approved by Congress, including both supposed anti-torture politician John McCain and many Democrats.

From Justice Kennedy's majority opinion:

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives....

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law....

Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. [Thanks to Phil at Daily Kos for the quotes]

The decision was a defeat for the attack on civil liberties championed by the Bush administration, which has led to years of indefinite detention and torture of prisoners at Guantanamo and other prisons in the U.S. gulag established in the wake of 9/11 and Bush's invasions of Iraq and Afghanistan. While championed by Bush, Cheney, et al., this tyrannical program of rights suspension and abuse has been backed by the Democratic Party, or at least a significant section of the party, which voted for MCA, the Patriot Act, and other anti-democratic legislation, and has also failed to hold the Bush Administration to account for any of their crimes.

The latest example of the failure of the Democratic Party leadership was the shameful suppression of Congressman Dennis Kucinich's resolution to impeach George W. Bush. Despite a throrough vetting of the crimes of the Bush administration in a speech that lasted over four hours on the House floor, the Democrats voted practically unanimously to send the bill to an ignominious fate: a referral to committee, where the bill could languish unheard and ignored for eternity, if need be. Democratic Party chair Howard Dean explained, "The American people sent us there [to Congress] to get things done... They didn't send us there to impeach the President." The failure to get anything of note done in this current Congress belies Dean's statement, and stands as mute testimony to the impotence of the mainstream Democratic Party's opposition policies.

To remind us of the Democrats role in the habeas controversy, let's refer back to an excellent article Glenn Greenwald wrote in May 2007:

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....

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....

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.

In all the disgust and even hatred that Bush's bellicose and autocratic and illegal policies have engendered, it becomes easy to forget that the Democrats acted way too often as a handmaiden to Bush, beginning with the Patriot Act, and further to the Iraq War. Even today, the supplemental funding bills for the continuation of U.S. military adventures and occupation policies in Iraq and Afghanistan are seen by the Democrats as opportunities to bargain for concessions on other issues, e.g., unemployment insurance, rather than as opportunities to secure principled opposition to a failed war policy. Along these lines, Speaker Pelosi now promises she'll deliver Bush's $170 billion war funding bill by July 4 (how patriotic of her).

The euphoria in certain circles over Obama's candidacy masks some very important political realities that cannot be ignored. The recent Supreme Court decision in the consolidated cases of Boumediene v. Bush and Al-Odah v. Bush is very welcome news. But in very important ways, it also points out how very, very far off the track politics in America has gone.