The American Civil Liberties Union is right when it says that last week’s Senate Judiciary Committee vote in favor of the restoration of habeas corpus protections “signals to the White House and the Republican minority in Congress that this is a real issue.”
But that does not mean that renewal of the most basic of our Constitutional guarantees is just around the corner.
The frustrating fight to restore habeas corpus has reached an important milestone. Democrats appear to have signed on for the struggle. But Republicans, for the most part, remain wrong or silent.
That creates a calculus that must be understood by serious constitutionalists. This fight is about more than gaining partisan advantage or “sending a message.” A fundamental of the republic is at stake. Thus, it is essential to recognize that, even though Democrats control the Congress, GOP control of the White House means that this constitutional restoration project must now focus attention and energy on those congressional Republicans who call themselves “strict constructionists.” Only if the Senate votes overwhelmingly for the restoration of habeas corpus will there be any chance of forcing the hand of a president who has not distinguished himself as an enthusiast for the Bill of Rights.
Is it reasonable to think that grass-roots activists might succeed in forcing a significant number of Republicans to do the right thing?
Absolutely, especially when we recognize the progress that has been made thus far. And even more so when we consider that this progress is a direct reflection of the fact that the passion for restoring habeas corpus has always been greater at the grass roots than in Washington. People were shocked when a Republican-controlled Congress moved to undermine an essential check in the American Constitution — a protection the U.S. Supreme Court has described as “the fundamental instrument for safeguarding individual freedom against lawless state action.”
After Democrats won control of the U.S. House and Senate last November, the popular Internet site www.democrats.com asked people to identify the first action the new Congress should take. The online survey listed 140 possible changes. The top response? “Restore habeas corpus.”
Of course, it was not just Democrats who were worried about the kick in the teeth that the Constitution had taken. Earlier this year, the conservatives and libertarians associated with the Liberty Coalition and the right-wing legal scholars at the Rutherford Institute signed onto a letter outlining 10 steps the new Congress could take to restore U.S. moral authority in the world. The first step was: Restore habeas corpus.
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The messages from the grassroots were heard in Washington.
The new Senate Judiciary Committee chairman, Patrick Leahy, D-Vt., took the lead in declaring that the hasty approval prior to the 2006 election of the Military Commissions Act — the measure that attacked habeas corpus — represented a dark moment in our history. “The passage of this bill was a profound mistake, and its elimination of habeas corpus review was its worst error. Righting this wrong is one of my top priorities,” explained Leahy, who with the ranking Republican on the committee, Pennsylvania Sen. Arlen Specter, introduced the Habeas Corpus Restoration Act on the first day of the new Congress.
Leahy and Specter were quickly joined in their initiative by the Senate’s chief defender of constitutional protections, Wisconsin Democrat Russ Feingold.
Over time, all four Democratic senators who are seeking their party’s presidential nomination — first New York’s Hillary Clinton, then Connecticut’s Chris Dodd, then Illinois’ Barack Obama and finally Delaware’s Joe Biden — became co-sponsors.
The signs of Democratic solidarity on the issue are good.
Unfortunately, with the exception of Specter, Republicans have failed to come on board for restoring the traditional reading of the founding document. Going into the Judiciary Committee vote on the act, Specter’s was the only Republican name on the list of 20 co-sponsors.
The pattern held when the committee voted 10-8 to send the Habeas Corpus Restoration Act to the full Senate with no amendments. It was frustrating, indeed, that all but one Republican on the committee that is should take the lead in upholding the Constitution voted against it.
As the measure moves to the full Senate — for a vote that could take place in a matter of weeks — the challenge will be to build Republican support. It can be done. Republicans, especially those in the party’s “old-right” wing, have broken with the White House on the Patriot Act, warrantless wiretapping and other Bill of Rights issues. The list starts with New Hampshire’s John Sununu, Alaska’s Lisa Murkowski, Idaho’s Larry Craig and Nebraska’s Chuck Hagel, all of whom have, like Specter, gotten into dust ups with the administration over civil liberties. But its should not stop there; every Republican who claims to favor a literal — “strict constructionist” — reading of the Constitution ought to be targeted for intensive lobbying. These Republicans must be convinced, as Specter has been, that the essential fight to restore habeas corpus is about more than party or ideology.
It is about respecting the most basic premises of the American experiment.
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