Abstention

[mmcirvin]

Via this page, I see that the representative in my newly adopted district, Marty Meehan, did not vote on the abominable pro-torture/pro-general-tyranny law just passed by Congress. I may have to start bothering him to a degree that was unnecessary in the old place. Or hoping for a viable primary challenge.

My Senators were reliably against, but there was no attempt to filibuster. There seems to be some disagreement as to whether the Senate deal cut to allow debate on the Specter amendment (which would have restored habeas corpus protections, and failed by two votes) really forbade filibustering, but it appears that they just barely failed to have enough votes to sustain one anyway. It's shameful either way, and the deal was a bad idea.



Much attention has been paid to the revocation of habeas corpus for aliens detained under the law. There are many other terrible things about it, but the worst thing about it may be that it gives Congressional approval to the administration's category of "unlawful enemy combatants," whom the executive branch is allowed to detain as it sees fit, and who are designated on the executive branch's say-so with no judicial oversight whatsoever.

Under this law, if, say, they're sufficiently pissed off by this LiveJournal post, the DoD could declare me an unlawful enemy combatant tomorrow, hold me without charges and I would have no legal recourse whatsoever. Since I'm a citizen, I'd still have habeas, but it wouldn't do any good since the response to any habeas challenge would just be "we say you're an unlawful enemy combatant". The stated intention of the law is to use it on dangerous terrorist suspects, but stated intentions count for nothing; the executive practice it's legitimizing has not turned out that way very reliably, and the way the system is supposed to work, you're not supposed to have to take this on trust. This or some future administration could use it to support a completely arbitrary reign of terror.



I am still just idealistic enough to believe that, in general, Democrats (and Republicans) who stand up against this sort of ratification of executive thuggery will ultimately look stronger rather than weaker. After all, as Jack Balkin says, Democrats got nothing for caving; Bush and the Republicans are going to paint them as terrorist-coddlers anyway.

Even if opposing torture and arbitrary detention is a career-ender, screw it, this isn't the sort of thing you play stupid campaign games with.

Comments

Even worse,

[vardissakheli.livejournal.com]

I think, is the blatant disregard for the ex post facto clause. I'm not a very active activist, but the wiretap thing on top of this got me riled up enough to write to the local papers. These bills are written to remove rights from people retroactively, flying in the face of the most basic principles of fairness we learn in kindergarten. My letter was in the Freeman on Sunday, and somewhat grammatically garbled in the Journal today. (I tried to learn from my last experience with the Journal and made a point of simplifying my sentences to avoid misinterpretation. The editor smooshed them right back into the complex mishmash I had originally written, apparently to save a few characters to make room for an unnecessary qualifier to soft-pedal my statement. In the process, she changed a passive verb to active without giving it a new subject, making it appear that I was bizarrely anthropomorphizing the law.)

I hold out hope that the courts will strike the retroactive provisions of these laws. I tend to doubt even Scalia is enough of a bully to dangle habeas rights in front of a prisoner only to snatch them back.

Re: Even worse,

[mmcirvin.livejournal.com]

Scott Lemieux thinks that the suspension of habeas and jurisdiction-stripping are arguably constitutional (http://lefarkins.blogspot.com/2006/09/if-my-fellow-citizens-want-to-go-to.html), though this is a regrettable thing.

I haven't heard anything else about the ex-post-facto-law angle yet, but would the jurisdiction-stripping keep them from even hearing such a challenge?

Re: Even worse,

[indyresolve.livejournal.com]

If you would have asked most lawyers this question before June 29th, 2006 the answer would have been "Congress not only has the Constitutional authority to to remove jurisdiction, and even before cases pending prior to the enactment of the jurisdiction stripping law, but even if the law is not clear about pending cases, then the Surpreme Court has always ruled in favor of lack of jurisdiction"

Justice Scalia, in his dissent in Hamdan v. Rumsfeld, 05-184 (2006, U.S. Supreme Court Slip Opinion) goes at some length (the whole decision is amazingly lengthy) giving the previously understood state of the law and the prior case precedents supporting this understanding.

And of course, Congress passed the Detainee Treatment Act on December 30th, 2005 specifically to strip the court of jurisdiction in this and similar cases and didn't think twice about needing to explicitly insist that the law applied in pending cases because it was universally understood that it would, and that their language was sufficient based on those prior Supreme Court cases.

Nevertheless a majority of the Court, strongly desirous of issuing a decision on the matter, overturned the presumption of interpretation in favor of stripping pending cases so they could publish their opinion. It would have been nice had the majority simply said "Look, we don't think the old rule is reasonable and we're changing it", but instead they decide to stand on legal shaky ground and attempt to distinguish Hamdan from those other cases so that they wont be accussed of activism. It's an arguable point, but right or wrong, they're the majority and they "win".

But this is what you call a "one-free-bite-of-the-apple" decision, because of course, in the future, Congress will always include the line "to all future cases and cases pending at the time of the establishment of this law" when they want to strip jurisdiction - which is undisputedly Constitutionally authorized. So the overturned precedent will be meaningless in the future, but even if they only get this one bite, Hamdan is a big one!