- The Washington Times - Sunday, October 15, 2006

Republican Sen. Arlen Specter, chairman of the Senate Judiciary Committee, has, from time to time, acted independently of the administration. Recently, for example, he has passionately opposed legislation, favored by the White House, that would take away the right of U.S. detainees to petition our courts in protest of their state and their conditions of confinement. But, despite his dedication to the “great writ,” he voted last month for the Military Commissions Act of 2006 that bars detainees habeas petitions.

The first Specter said indignantly, while this bill was being supported by the administration, “It would allow legal counsel and a day in court to only those detainees selected by the Pentagon for prosecution. Other suspects could be held indefinitely without a hearing (possibly for the rest of their lives).”

We hold at least 14,000 of these other suspects around the world, many of whom will never be charged or tried — not counting an untold number of other prisoners deprived of habeas who will be held under other provisions of this new law. Therefore, a Sept. 24 affirmation of our rule of law by the first Specter was all the more vital as we try to convince the world of the values we fight for:

“If the courts are not open to decide constitutional issues,” he said, “how is constitutionality to be tested?”

How indeed? The very next day, at the National Press Club in Washington, the senator, speaking further of our rule of law, made a statement that should be repeated in every American classroom on civics. Protesting the abandonment of habeas corpus, he said:

“(Habeas corpus) has been the way traditionally of determining whether the detention is lawful. It’s been around for a long time, since the Great Writ (in the Magna Carta in 1215). And it is emblazoned in the Constitution specifically that it can be suspended only in case of (rebellion) or invasion. I’m not going to support a bill that’s blatantly unconstitutional.”

Seeing and hearing Mr. Specter say that on television made me feel like cheering, and I did. Also approving of Mr. Specter’s reminder of this centuries-old protection of the individual — any individual, citizen or not, in our custody — was columnist David Sarasohn of the daily Oregonian, who told his readers: “There’s a 1297 edition of the Magna Carta in the National Archives. There’s even a replica, printed in gold, right in the middle of the Capitol.”

Since 65 senators — including the second Specter — voted for the Military Commissions Act of 2006, revoking habeas rights for our detainees, I suppose it wouldn’t have mattered if that Magna Carta replica had been placed right smack in the middle of the Senate chamber as they voted.

But why did Mr. Specter — after harking back to the crucial reductions of the arbitrary powers of King John at Runnymede in 1215 — actually vote for the bill that gives that British monarch a posthumous victory?

In an Oct. 1 editorial in The Washington Post, “Profiles in Cowardice,” there is a report on why Mr. Specter — after his own amendment to preserve habeas failed on a 51-to-48 vote — then put his principles aside.

“(First) when his amendment failed…the senator said he would vote against the bill, calling it (revoking habeas) ‘patently unconstitutional on its face.’ Then he voted for it. The bill, he then explained, had good points, and the courts ‘will clean it up.’”

With the midterm elections looming, only one Republican voted against the bill — the irrepressibly independent Lincoln Chafee of Rhode Island, recently saved from losing a primary contest by the Republican National Committee to try to keep control of the Senate. Republican Sen. Olympia Snowe of Maine sat out the vote, maybe instead visiting the 1297 edition of the Magna Carta at the National Archives to try to make up her mind.

This transcendence of party loyalty over the once Great Writ, as its emblazonment in the Constitution fades, reminded me of what, long ago, the then-Mayor of New York, John Lindsay — who had gained that office even though he was a Republican in that overwhelmingly Democratic city — told me about his previous days in the House of Representatives.

A tenacious civil libertarian who never abandoned his principles, Mr. Lindsay, while a Congressman, was one of the very few members to oppose the abuses of the Fourth Amendment by the then-Attorney General Robert Kennedy, who had signed a number of wiretap orders — some of them pushed for by J. Edgar Hoover, including the one on Martin Luther King Jr. (See Taylor Branch’s book “At Canaan’s Edge,” published by Simon and Schuster, 2006.)

Mr. Lindsay told me that when he tried to get colleagues to move on the floor against unconstitutional abuses (including Hoover’s practices), he was often brushed off by members on both sides of the aisle, saying, “Let the courts decide.”

I did not think that Mr. Specter would be in that company. I’ll never know how many other members of the House and Senate voted for the upending of the rule of law in the Military Commissions Act of 2006 by letting the Supreme Court decide. After all, it’s only the Constitution they themselves also swore to protect.


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