Thursday, December 14, 2006

and now for the bad news

I don’t want to circle the wagons or join the circling buzzards just yet, but the one-two punch of Senator Tim Johnson’s “stroke like” event (possibly a TIA) and emergency surgery coupled with a terrible decision by US District Judge James Robertson in the case of Salim Ahmed Hamdan does once again have me feeling that habeas corpus is circling the drain.

As I write this, Senator Johnson (D-SD) is reportedly still in surgery. Rumors are flying, and I can’t really begin to speculate on what the outcome will be here, but that hasn’t stopped South Dakota’s Secretary of State from clarifying (no doubt he was asked—I’ll give him the benefit of the doubt) that if Johnson cannot complete his term, South Dakota’s Republican Governor, Michael Rounds, can appoint a replacement for the next two years.

If Rounds appoints a Republican to fill Johnson’s seat, then the Senate drops to a 50-50 Dem/Rep split with Vice President Cankles breaking the tie.

This is especially bad news for those of us who were looking for the 110th Congress to undue some of the damage done to our Constitution and 800 years of common law by the 109th—most specifically through passage of the Dungeons Act. More commonly known as the Military Commissions Act, S.3930 not only allowed for the president to establish military commissions to try present and future “enemy combatants,” it gives the self-same president the power to declare who is an enemy combatant, gives the president the power to ignore the Geneva Conventions with regards to torture, and denies detainees the right to challenge their imprisonment on habeas grounds in federal court. The law even retroactively barred current pending challenges from going forward.

I am not a lawyer, but many who are find that last point wholly unconstitutional, and expected the courts to agree. Even our current wingy Supreme Court has stood up for the habeas rights of detainees in both the Rasul and previous Hamdan decisions. As Barbara Olshansky of the Center for Constitutional Rights noted on Wednesday, “this is the first time in the history of this country that a court has held that a man may be held by our government in a place where no law applies.”

I write all of this, I’m afraid, with a small note of irony because Tim Johnson was one of a handful of Democrats that voted for S.3930. I found that an inexplicable and unforgivable vote, and was looking forward to a primary challenge to Johnson in 2008, but that is for then. . . .

This is for now: Senator Johnson is an important part of the slim Democratic majority in the Senate. If those of us who believe in the US Constitution and the most basic of universal human rights are to have any hope of walking back the damage done by the last Congress, we need 51 Senate Democratic Caucus votes in this one.

As a compassionate human being, I would wish Mr. Tim Johnson the best regardless of the circumstances, but in this case, this believer in human rights and the rule of law wishes Senator Tim Johnson a speedy and full recovery.

(Postscript: Though I do examine the political implications of the South Dakota Senator’s possible TIA in this post, it is disappointing to note that the coverage of Tim Johnson’s health provided by the Washington Post explicitly links Harry Reid’s rushing to Johnson’s bedside with the fragile Democratic majority, implying the Majority Leader-to-be Reid’s concern was not for a friend and colleague, but for his own political future. Did I say “disappointing”? I meant to say “disgusting.”)


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