Oh. My. God.
Here we are, with the Supreme Court finally accepting Hamdan for review, with the McCain/Leahy amendment on torture finally getting some traction, and now this.
The Senate just voted to block access to federal courts for anyone the Pentagon chooses:
"(1) In General: Section 2241 of Title 28, United States Code, is amended by adding at the end the following new subsection:
"(e) No court, justice, or judge shall have jurisdiction to consider -
(1) An application for a writ of habeas corpus based on policies established by the Secretary of Defense under Section 1071 (a) of the National Defense Authorization Act for Fiscal Year 2006 filed by an alien who is detained by the Secretary of Defense, or
(2) any other action, challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant."
(2) Effective Date: The amendment made by paragraph 1 shall apply to any application or other action pending on or after the date of the enactment of this Act."
I spent my morning writing about habeas corpus in an entirely different context. I don't think this would be constitutional if attempted, but please go here, and do what they say. As the Times notes, Sen. Jeff Bingaman is pulling together some allies to block this poison from entering the already-polluted national bloodstream. (Hilzoy at Obsidian Wings, who alerted many of us to it, has some observations here about the minimal appeals rights left in by the amendment.)
I missed this on Wednesday, when Hilzoy first wrote about it, because I was busy most of the day talking about domestic violence in immigrant families.
At one point Anindita, of the Urban Justice Center, told me a reason many may not call the cops: "These are women [from countries like Pakistan and the Congo] who have grown up terrified of the uniform." If the free pass for SecDef above stands, all of us may feel a little like that.
Hilzoy quotes the decision that prompted this, which is entirely appropriate; I chose a section less directly applicable, but one that reminds us all why This. Can. Not. Stand.
“Executive imprisonment has been considered oppres-sive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England de-veloped the writ of habeas corpus largely to preserve these immunities from executive restraint.” ''
As it turns out, Justice Stevens was actually quoting the great Justice Black, from fifty years earlier. And here, from that same opinion, is something that speaks to the issue much more powerfully.
The Founders abhorred arbitrary one-man imprisonments. Their belief was - our constitutional principles are - that no person of any faith, rich or poor, high or low, native or foreigner, white or colored, can have his life, liberty or property taken "without due process of law." This means to me that neither the federal police not federal prosecutors nor any other governmental official, whatever his title, can put or keep people in prison without accountability to courts of justice. It means that individual liberty is too highly prized in this country to allow executive officials to imprison and hold people on the basis of information kept secret from courts.
Let's hope that both Roberts and Scalito meant it when they talked about respect for precedent. And that enough Senators (see the link) show some backbone here, perhaps building on what they showed last week in the "Rule 21" dance.