A DARK DAY

Two of them, actually: the House passed the Military Commissions Act today, and the Senate seems certain to go along tomorrow. This is the bill which, in addition to immunizing CIA and military interrogators from prosecution for past outrages, attempts to prevent detainees from using the ancient writ of habeus corpus to challenge their detention.

Arlen Specter is actually showing some backbone by offering an amendment that would eliminate the provision denying habeus corpus, but it is said that he will fail--perhaps it has been arranged for the amendment to fail. Dark indeed.

(If all of the Democrats voted for Specter's amendment, along with him and Lincoln Chafee--locked in a tight race for his Senate seat in very blue Rhode Island--only four other Republicans would have to stand up for the Constitution. Graham? Hagel? Lugar? Snowe? Collins? McCain? Where are they?)

For an idea of what this law would mean, read this superb article by Sabin Willett, a Boston lawyer, in today's Boston Globe. (Your editor reads the op-ed pages almost every day. He's had articles published in some of America's best newspapers. This maybe the best op-ed piece he's ever read.)

I have a vision of some Democrat (Russ Feingold?) standing up to pull a Mr.-Smith-Goes-to-Washington moment, holding the fort and, perhaps, just perhaps, getting the public's attention. But those things only happen in movies, right?

Reams have been written about this, but let me make just a few points: Habeus Corpus is known as The Great Writ, because it is at the core of our legal system. The ability of a person held by the sovereign to force disclosure of the evidence against him is essential to any fair system of justice. The Constitution permits suspension of habeus corpus in only two instances: invasion or rebellion. It seems safe to assert that neither obtains today. The administration and its allies, in typically craven calculation, are not literally revoking the right of habeus corpus. Instead, they purport to strip the federal courts of jurisdiction to hear claims involving the writ when brought by detainees. It does not take a great legal scholar to think that the courts can recognize when Congress and the President attempt to avoid the unconstitutional nature of a deed through subterfuge. So, not only are Congress and the President about to pass a patently unconstitutional law, they are precipitating a constitutional crisis in the bargain.

A friend of mine says that this is "the day the city on the hill burned and no one called the fire department." Too true.