Commission Omissions

COMMISSION OMISSIONS… A couple of people wrote to me about my post yesterday, pointing out that Chris Dodd and Patrick Leahy both have measures in the works addressing the Military Commissions Act, which is true. But I don?t think these efforts will get very far?beyond Dodd, Leahy, Carl Levin and a few others, there doesn’t seem to be a strong will among Senate Democrats to push too hard on this one.

Considering that Bush would almost certainly veto any change to the legislation, that?s not unreasonable. But it does sadden me that the removal of habeas corpus, at the very least, isn?t perceived as an issue worth taking up in order to raise its profile and to embarrass Bush by forcing a veto. (The always worthwhile Boston Globe Ideas section had an interesting piece a few weeks ago looking at why civil liberties issues have historically tended to be ?political non-starters.?)

It?s worth remembering that until the act was passed, the abuses of Guantanamo, Abu Ghraib, extraordinary renditions, and so on, were entirely within the control and knowledge of the executive branch. By insisting on the bill right before a tight midterm election, the administration managed to get Congress to acquiesce in its activities, a fact which has been under-appreciated so far, and which seems unlikely to change anytime soon. And perhaps acquiesce is too light a word: Joseph Margulies, the lead counsel who successfully argued the Rasul case before the Supreme Court, suggested in a talk today that the act grants the President greater powers than he?d claimed before it was passed. Considering that Congress didn?t know exactly what it was actually agreeing to, that seems plausible.

So with a legislative change unlikely, what?s next? A legal challenge to the habeas provisions is already underway, and Margulies believes that ?if the court remains as presently constituted, I think we?ll win.? (Hang in there, Justice Stevens!) But any challenge to the commissions themselves will have to wait until someone is tried in one, which, according to Margulies, could take some time.

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