Thursday, September 28, 2024
By Steven L. Taylor

I wonder how many times in the coming days that people will defend the provision in the detainee bill that denies terror suspects the rights of habeas corpus by saying that Lincoln did it in during the Civil War.

Two things spring to mind. First, just because something was done in the past by a successful war President doesn’t necessarily make it a good thing. Second, and more importantly, it is one thing for a given President to engage in a particular activity during the crisis moments of a hot war, and it is wholly another to codify such things into law.

Via the NYT: Senate Passes Detainee Bill Sought by President Bush

It strips detainees of a habeas corpus right to challenge their detentions in court and broadly defines what kind of treatment of detainees is prosecutable as a war crime.


Senator Carl M. Levin of Michigan, the senior Democrat on the Armed Services Committee, argued that the habeas corpus provision “is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees.”

And even some Republicans who said voted for the bill said they expected the Supreme Court to strike down the legislation because of the habeas corpus provision, ultimately sending the legislation right back to Congress.

“We should have done it right, because we’re going to have to do it again,” said Senator Gordon Smith, a Republican from Oregon, who had voted to strike the habeas corpus provision, yet supported the bill.

One guess that the whole thing isn’t over, even once the President signs the bill.

Of course, as Scott Lemieux, points out, Congress has the Constitutinal authority to suspend habeas rights in times of war and invasion (see Article I, Section 9). Whether this is a good thing, however, is another question.

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6 Responses to “I Wonder (Lincoln and Habeas Corpus Edition)”

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    1. Chris Lawrence (guestblogger) Says:

      We discussed this in my American government class today… basically, there are 2 questions here:

      Can Congress suspend habeas corpus? Yes, under certain circumstances (as noted by Lemieux).

      Can Congress suspend habeas in areas not in insurrection where the normal civilian government is functioning? Ex parte Milligan says no.

      The key question is whether the Court will uphold Milligan, go further than Milligan, or allow this law to stand (and essentially overturn Milligan, at least in part).

      My gut feeling from how things shook out in Hamdi is either a or b. But who knows?

    2. Ratoe Says:

      Did the Hamdan case deal with the torture issue, as well? This so-called compromise–in addition to doing away with habeas corpus–also gives Congressional approval for the use of torture.

      If I recall correctly, the court’s main problem with the torture issue was that Congress had not approved it.

      So with this new bill, Congress is effectively supporting the use of torture. Unless I am mistaken, since language relating to the Geneva Convention was purged as a result of the “compromise”, I guess it might not be so clear since the majority in Hamdan alluded to the Geneva COnvention.

    3. LaurenceB Says:

      I’m no lawyer, but from what I’ve read it does indeed appear to me that this whole thing is “over”. The good guys lost. That happens sometimes. (sigh)

      I’ll be voting for the Democrats next election.

    4. Polimom Says » Repeat after me: it’ll all be okay Says:

      [...] The way to show one’s “toughness on terror” is to abrogate habeas corpus — the fundamental protection of an individual from the power of government, and specifically the Executive Branch. [...]

    5. Adam Herman Says:

      You know, if they’d just classify them as POWs, they wouldn’t have to worry about this crap. POWs are not entitled to challenge their detention.

    6. PoliBlog: A Rough Draft of my Thoughts » The Heart of the Problem Says:

      [...] And, as I noted in my post last night about suspending habeas corpus, the bottom line is that we are talking not about dramatic actions that governments undertake during a specific crisis when the hot war rages, but rather the codification of actions that will be undertaken when passions have cooled and the immediacy of the crisis has faded and when cooler heads ought to prevail. [...]

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