Habeas what

Habeas Corpus and a Senate Race in Maine

John Nichols Thu Sep 20, 12:18 AM ET

The United States Senate celebrated this week’s 220th anniversary of the Constitution by failing to endorse the restoration of the habeas corpus protections that legal scholar Albert Venn Dicey once described as being “worth a hundred constitutional articles guaranteeing individual liberty.”

Of all the insults to the nation’s founding principles that have been recorded in this era of undeclared wars, unwarranted spying and unlimited executive excess, none is more galling than this one.

That a single senator, having sworn an oath to defend the Constitution, would vote against the renewal of habeas corpus protections ought to be a shock to the system.

That 43 of them — enough to block a cloture motion that would have allowed the Senate majority to undo the damage done by the Military Commissions Act of 2006 — is evidence of the depth to which the Republic has sunk.

The founders of the American experiment left no doubt of the commitment of the new United States to the rule of law and right. While Madison, Mason and their contemporaries assumed that habeas corpus protections would be embraced and respected by all Americans who understood the point of their revolt against the British crown, they specifically added a notation to the Constitution stating that, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”

In absence of rebellion or invasion, the Congress voted last fall — at the behest of then-White House political czar Karl Rove, who hoped in vain that fear-mongering might renew Republican electoral prospects — to suspend habeas corpus protections for suspects deemed to be “unlawful enemy combatants” by the Bush administration.

Wednesday’s cloture vote provided an opportunity for senators to recommit themselves to the Constitution.

Of the 56 votes to restore habeas corpus protections, 49 came from Democrats and one from Vermont Independent Bernie Sanders, who caucuses with the Democrats. Six came from Republicans: Nebraska’s Chuck Hagel, Indiana’s Richard Lugar, Oregon’s Gordon Smith, Maine’s Olympia Snowe, Pennsylvania’s Arlen Specter and New Hampshire’s John Sununu.

Of the 43 votes against the Constitution, 42 came from Republicans and one from Independent-Democrat Joe Lieberman of Connecticut.

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