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A Glaring Omission

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 21, 2007

Ari Melber posts on HuffPo and The Nation about’s omission of habeas restoration in a membership survey intended to set institutional priorities. is circulating a new survey asking its 3.3 million members to plan the group’s “next steps,” offering a dozen choices ranging from issues on the national agenda, like ending the Iraq War and climate change, to less mainstream items such as impeachment. But the survey does not even mention Bush’s worst domestic transgression: the suspension of habeas corpus and other fundamental rights in last year’s Military Commissions Act (MCA).The omission is particularly glaring because habeas corpus and constitutional rights are one of the top priorities of the netroots activists who comprise the membership of In a survey of over 400 netroots activists after the November election, restoring habeas corpus ranked first for legislative priorities – above even Iraq withdrawal. MoveOn members have said “restoring the Constitution” should be one of the top priorities for the Democratic Congress, according to MoveOn spokesperson Jennifer Lindenauer, and several leading bloggers recently pressed Congressional Democrats to jam habeas restoration into a defense spending bill. Restoring habeas “is something that we elected them to get done,” blogged MyDD’s Matt Stoller.

That’s definitely a fair point (and thanks for the shoutout at the end of the post!). I also think there’s something of a problem in terms of messaging on the issue. Outside of the legal field or engaged net-slash-grassroots, folks just don’t know what’s at stake in the MCA debate or what’s been happening down in Gitmo.The administration is primarily to blame (obviously), but it’s interesting why. I’d bet dollars to donuts that any messaging the political guys have done on military detentions says: sell it like it’s normal.Instead of paeans to the exceptionalism of the “war on terror” (though there are plenty of those as well), the main spin has been to paint Gitmo as just another in a long line of military detention facilities, facilities that are par for the course in military conflicts worldwide.That’s an outrageous tidbit of misinformation. This is doubly true because people, on either side of the fence, become incensed when you actually tell the truth about Gitmo, and that is this: it is an entirely new animal in American law and history.The administration has created, largely out of whole cloth, a real-live gulag, where people are sent without any meaningful way to get the government to show its cards as to why they’ve been sent there.There’s another good analogy that, I think, works nicely.First, a little bit of background. I have to admit, I was a little confused about the legal side of this thing (hey, it happens, right?) when I first started this project. My thinking was that the primary “ask” on the part of the policy wonks was the creation of habeas rights similar to the regular criminal justice system.Now, in plain English, the states and the federal government normally use “habeas corpus” petitions as what legal types call “collateral review,” which effectively works like a second appeal. You get busted, you get charged, you get convicted, you appeal, you appeal again, you get turned down, you bring a habeas petition (usually in a different court, though it doesn’t have to be), and you get to present evidence again that you didn’t do it.In this context, habeas corpus was a particularly important legal tool in the struggle for equal rights for African-Americans in the Jim Crow South. The federal government was able to use it as a way for federal courts to review obviously deficient sentences handed down by those stereotypical all-white Southern juries.BUT, and this is a huge BUT, habeas is ancient. I mean like Rolling Stones old. Historically, it developed as a generic way to compel the government to justify locking somebody up. That’s what some folks have called the “Tower of London” habeas, which is a particularly apt description. Henceforth and forevermore, I will call it TOL Habeas (trademark pending). [As an aside, that’s kind of a sweet name for a band.]In any event, this Tower of London Habeas is what advocates are typically referring to, and what the MCA purports to deny to the various stripes of “enemy combatants” held either in the U.S. or at Gitmo. And, most importantly, it’s never been denied to prisoners in quite this way. We’ve never had inmates held in a perpetual “war,” on territory that for all intents and purposes is American soil, who haven’t the ability to invoke that Tower of London Habeas to challenge their detention. And that’s particularly true if these “enemy combatants” are being held on sovereign American territory.I know this is kind of a rambling post (which is bad when you’re talking about messaging), but the bottom line is this: people get really exercised when they hear that the government is using very shaky legal reasoning to effectively throw away the key. That’s the message that all habeas advocates need to be shouting out their windows. We should all be saying we’re not going to take it anymore.Incidentally, for more on the boring legal stuff above, see this White Paper by NYU’s Brennan Center. It’s the clearest exposition on the subject I’ve seen and provides all the ammo one needs to make the argument that the post-9/11 military detention policies, as set up under the Military Commissions and Detainee Treatment Acts, are totally unprecendented in the history of this country (which would make them, by definition, “un-American,” right?).And with that, I’m out.

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