As with so many political issues currently facing us, there are serious outrages in the McCain Torture Bill not getting as much coverage in the news because they're, frankly, less glamorous than waterboarding. The biggest, scariest, most significant of those outrages is the abolition of the writ of habeas corpus for aliens captured outside of the US (and perhaps even of resident aliens, or even US citizens, for all we know: lawyers are still looking over the bill to unravel all its ramifications).
For those of you a little rusty on your political science, here is
a refresher on habeas corpus:
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.Most of our modern civil rights were established, at best, with the Bill of Rights, and many not until much later. Habeas Corpus dates all the way back to the Magna Carta in 1215 (Habeas Corpus is the first 2 words of the writ originally delivered to the gaolers of Medieval Britain: Habeas corpus ad subjiciendum, or "Produce the body for the hearing."). It was also the only right considered so important and so universally agreed upon that the Founders included it in the Constitution itself (Article I, section 9).
In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291. [emphasis mine]
Yet the top priority for Bush the Republican Congress right now is the curtailing of that right for anyone detained abroad. Of course, there is PLENTY wrong with the McCain "I Heart Waterboarding" Bill (I just can't help but wonder, why on earth would Bush want so badly to have Congress officially absolve everyone involved in torture from any future punishment just 6 weeks before Republicans may lose Congress? Hmmm...), but the sudden disappearance of what you might call "the first civil right" is a pretty freakin' huge step in the wrong direction.
In fact, has any free society ever existed without habeas corpus? Is it even possible to have a "free" society without it?
I fail to see how.
It seems that there's a little bit of slippage in the debate over habeas corpus rights as well. Democrats are talking about the merits of having this right in general, whereas Republicans and conservatives are only talking about preserving this right for non-citizens captured overseas, since that is apparently not quite as far down the road to totalitarianism.
Bushistas foolishly suppose that Jefferson, Madison and Co., when articulating the concept of inalienable rights in our most hallowed documents, were only talking about American citizens. It is patently obvious, however, that the founders intended for constitutional protections to apply to everyone, whether citizen or otherwise. Furthermore, contrary to the conservative "rights for terrorists" attack, civil rights by their very nature apply not just even, but especially, in case the person is suspected of a crime (remember, despite what Bill O'Reilly says, in a land where the accused are innocent until proven guilty, we're talking about alleged terrorists-- the whole point of due process is to more correctly ascertain guilt).
Bush apologists will then argue that the McCain "Habeas Shmabeas" bill would only apply to non-citizens outside the country's physical boundaries. Yet even assuming that those people are the only ones made vulnerable by this monstrosity (a big huge "if"), the bill would still contravene the spirit of the law because, again, do you really think the Founding Fathers only considered people on American soil to be "created equal, that they are endowed by their Creator with certain inalienable rights" (yes, I know, that's in the Declaration of Independence, but surely that can be used to ascertain the founders' intentions when dealing with constitutional issues)? Now admittedly, civil rights in their legal manifestation are only understood to expressly apply to people currently in the country, but that's not because the founders thought that only American citizens deserve civil rights. Rather, it's because all American law generally only holds jurisdiction on American territory, which apparently Guantanamo Bay somehow is not.
Any advocacy of stripping habeas corpus rights from detainees, then, is in contravention of the Founding Fathers' understanding of human rights, and is a vile twisting of the law that will work to undo that which it is supposed to uphold: the protection of all humans as created equal and endowed with inalienable rights.
Which is the prerequisite to a free society.