To Show Principles Like Feingold’s
Sherrod Brown is the Democratic candidate in Ohio for the US Senate. Brown is challenging the incumbent Republican senator, Mike Dewine. Brown is currently a member of the House of Representatives and is one of 34 Democrats who voted to support the passage of the “Military Commissions Act,” the “torture” legislation dealing with non-American citizens detained as terrorist suspects. This act empowers our government the right to deny detainees any right of judicial review of their detention.
It is surprising and disconcerting that our Democratic challenger would support such legislation and would agree on this matter with the likes of Dewine, Hastert, Boehner, Frist, McConnell, Santorum -- political hacks who consistently show no principles and who consistently seek first to do whatever is needed to gain political advantage. The most charitable explanation of Brown’s vote is that he fears the Republican slime machine, and, in this matter, he is willing to compromise his own principles. The Republican play book, after all, has already been revealed by Majority Leader Boehner in his comment: “I wonder if (the Democrats) are more interested in protecting the terrorists than protecting the American people." A less charitable explanation for Brown’s vote is the possibility that Brown is simply revealing himself for who he is: he is not compromising principles, he is just another politician, not encumbered by principles, making his decisions based upon what his polling data shows. He knows that Democrats will continue to support him over DeWine, and, by this vote, he hopes to be inoculated from the ferocious “protecting terrorists” attacks against him that Republicans would otherwise be funding.
But Democrats who parse their principles for what they hope is political gain, I believe, greatly underestimate a huge and growing number of the American voters -- who include many Republicans and Independents -- who are looking for political leaders who are willing to take principled stands. By his "yes," Brown has missed an opportunity to elevate his race for senator to one based on principles; Brown has missed an opportunity to take a principled stand. I feel that this could have been a successful wedge issue for Brown, had he made a principled stand, rather than making the political calculation that he made. Had Brown taken a stand against this legislation, such a stand would have revealed a character of courage that would have had wide appeal and would have worked in his favor. His calculation of compromising principles for political gain, I feel, will be read as cowardice and, therefore, even from a political standpoint, his calculation was simply wrong. He is ahead in the polls -- but, by refusing to make a courageous choice in this matter, he may find that the enthusiasm of his supporters may diminish.
I would like my senator from Ohio to make the type of speech on the senate floor that was made by Russ Fingold, in his explanation for his “no” vote. The first part of this speech, dealing with habeas corpus, is excerpted below:
Statement of U.S. Senator Russ Feingold
In Opposition of the Military Commissions Act
Mr. President, I oppose the Military Commissions Act.
Let me be clear: I welcome efforts to bring terrorists to justice. It is about time. This Administration has too long been distracted by the war in Iraq from the fight against al Qaeda. We need a renewed focus on the terrorist networks that present the greatest threat to this country.
But Mr. President, we wouldn’t be where we are today, five years after September 11 with not a single Guantanamo Bay detainee having been brought to trial, if the President had come to Congress in the first place, rather than unilaterally creating military commissions that didn’t comply with the law. The President wanted to act on his own, and he dared the Supreme Court to stop him. And he lost. The Hamdan decision was an historic rebuke to an Administration that has acted for years as if it were above the law.
Finally, only because he was essentially ordered to do so by the Supreme Court, the President has agreed to consult with Congress. I would have hoped that we would take this opportunity to pass legislation that allows us to proceed in accordance with our laws and our values. That is what separates America from our enemies. These trials, conducted appropriately, have the potential to demonstrate to the world that our democratic, constitutional system of government is our greatest strength in fighting those who attacked us.
And that is why I am saddened that I must oppose this legislation. Because, Mr. President, the trials conducted under this legislation will send a very different signal to the world, one that I fear will put our own troops and personnel in jeopardy both now and in future conflicts. To take just a few examples, this legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be put to death. That is simply unacceptable. We would not stand for another country to try our citizens under those rules, and we should not stand for our own government to do so, either.
Not only that, this legislation would deny detainees at Guantanamo Bay and elsewhere—people who have been held for years but have not been tried or even charged with any crime—the ability to challenge their detention in court. Among its many flaws, this is the most troubling—that the legislation seeks to suspend the Great Writ of habeas corpus.
The legislation before us is better than that originally proposed by the President, which would have largely codified the procedures the Supreme Court has already rejected. And that is thanks to the efforts of some of my Republican colleagues for whom I have great respect and admiration.
But this bill remains deeply flawed, and I cannot support it.
One of the most disturbing provisions of this bill eliminates the right of habeas corpus for those detained as enemy combatants. I support an amendment by Senator Specter to strike that provision from the bill. I ask unanimous consent that my separate statement on that amendment be put in the record at the appropriate point.
Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.
Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.
As a group of retired judges wrote to Congress, habeas corpus “safeguards the most hallowed judicial role in our constitutional democracy – ensuring that no man is imprisoned unlawfully.”
Mr. President, this bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.
Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.
Mr. President, that is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation.
Mr. President, why would we turn our back on hundreds of years of history and our nation’s commitment to liberty -- particularly when there is no good reason to do so? We should be working to provide a lawful system of military commissions so that those who have committed war crimes can be brought to justice. We can do that quite well without denying one of the most basic rights guaranteed by the Constitution to those held in custody by our government.
Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular – the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not, in fact, enemy combatants. Unless any of my colleagues can say with absolute certainty that everyone detained as an enemy combatant was correctly detained – and there is ample evidence to suggest that is not the case – then we should make sure that people can’t simply be locked up forever, without court review, based on someone slapping a “terrorist” label on them.
There is another reason why we must not deprive detainees of habeas corpus, and that is the fact that the American system of government is supposed to set an example for the world, as a beacon of democracy. And this provision will only serve to harm others’ perception of our system of government.
Mr. President, a group of retired diplomats sent a very moving letter explaining their concerns about this habeas-stripping provision. Here is what they said: “To proclaim democratic government to the rest of the world as the supreme form of government at the very moment we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interests in the larger world.”
Many, many dedicated patriotic Americans share these grave reservations about this particular provision of the bill.
They have reservations not because they sympathize with suspected terrorists. Not because they are soft on national security. Not because they don’t understand the threat we face. No. They, and we in the Senate who support the Specter amendment, are concerned about this provision because we care about the Constitution, because we care about the image that American presents to the world as we fight the terrorists. Because we know that the writ of habeas corpus provides one of the most significant protections of human freedom against arbitrary government action ever created. If we sacrifice it here, we will head down a road that history will judge harshly and our descendants will regret.
Mr. President, we must not imperil our proud history. We must not abandon the Great Writ. We must not jeopardize our nation’s proud traditions and principles by suspending the writ of habeas corpus, and permitting our government to pick people up off the street, even in U.S. cities, and detain them indefinitely without court review. That is not what America is about.
Unfortunately, the suspension of the Great Writ is not the only problem with this legislation, nor is it the only instance where the legislation goes beyond establishing military commissions to include unnecessary provisions with deeply troubling results.