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Move Along, Lady Liberty, This Doesn't Concern You

Six months ago today, habeas corpus passed quietly away. And I still don't know how we let it happen.
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Six months ago today, you lost a piece of your soul. You may not have realized it, even though this loss was painful. Even though you are less moral, righteous, and fair for it. Six months ago today, a piece of you was tortured to death--not at the hands of an Iraqi militia group, not in some dank Cuban prison, but in the now-diminished heart of our nation, at the hands of our president. Six months ago today, habeas corpus passed quietly away. And I still don't know how we let it happen.

The Military Commissions Act was passed without fuss by a rubber-stamp congress on September 28 and 29 of 2006 and signed into law on October 17. It is thirty-nine pages of largely lawyer-speak, but buried within the sterility of its stated purpose ("to authorize trial by military commission for violations of the law of war, and for other purposes") are a cascade of carefully worded outrages, horrors, and (depending on which legal scholar you consult) constitutional violations. The act gives the president the power to declare anyone--citizen or non-citizen--for any number of frighteningly vague reasons, an "unlawful enemy combatant." Once this particular feat is accomplished, said unlawful enemy combatant can be held indefinitely, tortured, and denied the writ of habeas corpus--the right to know the reason for and challenge his or her detainment in a court of law--under the following provisions (among others) of the act:

The following provisions . . . shall not apply to trial by military commission . . . (A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial.

No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

I know that our nation's outrage is spread a little thin these days, what with all the Imus firings and anatomically correct chocolate Jesus sculptures we're forced to contend with, but surely the undermining of our nation's moral core and the fundamental code upon which all truly democratic societies are built should merit at least a blip on the radar? (That's the right to challenge the government about your imprisonment, though the current government really, really wishes you didn't know that.) Especially when the rest of the Act is taken into consideration.

For instance, in case all those waterboard and "forced stress" confessions aren't enough to convict Boxcutter McBombsalot at a military commission, the prosecution can admit hearsay evidence! And not have to tell anyone where it came from! (Courtesy of this clause: The military judge . . . shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable.) And if any of those pesky little things called facts threaten to get in the way (like, you know, someone's innocence, perhaps, despite his detainment at Gitmo for five years?), the judge can prohibit the presentation of evidence he or she deems a "waste of time"!

And if that makes you think that someone should lodge a complaint to those Military Commission folks, well, "No authority convening a military commission under this chapter may censure, reprimand, or admonish the military commission, or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the military commission, or with respect to any other exercises of its or his functions in the conduct of the proceedings." In other words? Kindly to be shutting up now, please. Sorry!

Such a catastrophic failure of the Bush administration comes as no surprise to me. I wish I could say that the catastrophic failure of the mainstream media to cover this tragedy--and thus, perhaps, prevent it--was a surprise, but the cricket-chirping, tumbleweeding silence that befell our nation's press after 9/11 has yet to be broken. There were exceptions, of course. Jon Stewart picked up the slack, as he so often does. And Keith Olbermann spoke against the bill with his usual brilliant and vitriolic flair (which is why we still love you, Keith, even when you make it really, really hard). Said his guest, George Washington University constitution law professor Jonathan Turley, "the Congress just gave the president despotic powers, and you could hear the yawn across the country as people turned to, you know, Dancing with the Stars . . . What happened today changed us. And I'm not too sure we're going to change back anytime soon." Two days later, Olbie graced the world with a Special Comment about this bleak situation. Only some 616,000 Americans watched; the rest of us were too busy listening to Day 452 in the Continuing Saga of John Mark Karr.


Where, I ask you, was the national outrage? Where were the protests in the streets? Where were shouts of "liberty!" and "freedom!" and who forgot to remind George Bush that when you're fighting a war of ideals, you have already lost when you slip from the moral high ground?

Yet does the blame for the eerie silence all lay at the feet of this mythic creature dubbed the MSM? Of course not; CNN wouldn't show hundreds of hours of Jean Benet coverage if people didn't tune in to watch it. But the media have a moral obligation to give people what they need as well as what they want, and really, isn't it a bit unfair to assume that constitutional law can't be as interesting as murdered child beauty queens? We don't all run screaming at the first hint of Latin, you know. So get with it, media! You are the democracy police. And when your morals slip, so too do our nation's.

So today, I lay a rose at the grave of this once-great institution, this fundamental democratic right first conceived almost eight hundred years ago in the Magna Carta. I only hope that some poor schmuck won't be forced to wear its thorns.

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