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Bush and the 'Third Awakening'

Behind the Smokescreen

Detainee policy is being hotly debated on Capitol Hill this week. But the press coverage of the White House arm-twisting is arguably missing the big story: The loss of habeas corpus.

As blogger Hilzoy writes, the ostensibly moderate Republican bill on detainee policy "would eliminate the right of any alien who is in US custody outside the US, or who 'has been determined by the United States to have been properly detained as an enemy combatant', to file for habeas corpus. . . .

"Denying the right to file for habeas corpus to all people detained outside the US, or who have been found to have been properly detained as an enemy combatant, means that virtually all detainees would have no legal recourse if they felt they had been unjustly imprisoned, or if their legal rights had been violated."

Combine that with a broad definition for "enemy combatant" and you've got a momentous shift in American law.

Legal blogger Marty Lederman adds: "With respect to the Administration's detention and interrogation practices, it would largely undermine the salutary effects of the landmark Supreme Court decisions in Rasul and Hamdan, and might well provide effective legal cover for many of the CIA's 'alternative' techniques.

Ann Woolner writes a timely Bloomberg opinion column about the reshaping of America's legal landscape since September 11, 2001.

"As a measure of how far things have gone in the law, consider a single amendment to an anti-torture bill passed last year.

"Congress curtailed one of the most elemental rights, that of habeas corpus, when it said the men held at Guantanamo Bay could no longer go to the U.S. Supreme Court to challenge any aspect of their imprisonment.

"That's 'just about the most stupendously significant act that the Congress of the United States can take,' Justice David Souter remarked at an oral argument this spring."

Yale Professor Bruce Ackerman , writes in a Philadelphia Inquirer op-ed: "Consider the case of Jose Padilla. A few months after Sept. 11, the president declared him an 'enemy combatant,' and locked him up in a military brig for three and half years. During all this time, Padilla was denied the right to challenge his detention before a military or civilian tribunal. . . .

"This gives the presidency a terrible precedent for the next Sept. 11. We all hope that this attack won't come for a long time. But the day after the next tragedy, the Padilla case will be invoked to support the president if he sweeps hundreds or thousands into military detention. After a year or two the Supreme Court may intervene on the side of freedom. But perhaps the vote will go 5-4 the wrong way.

"It can't happen to me, we tell ourselves. Very few Americans have done anything to support the Islamo-fascists, whatever President Bush may mean by this dark term. But the next attack may be by home-grown terrorists. All of us are potential Jose Padillas, not a select few."

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