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From The Colbert Report April 15, 2009.

Stephen Colbert takes President Obama to task for his decision to preserve the habeas corpus policy of the Bush administration at Bagram Air Force Base in Afghanistan.

Colbert: You see, the President is fighting a federal court's ruling that the detainees at Afghanistan's Bagram Air Force Base have the right to habeas corpus. That they have the right to challenge their detention. But he's just following the long-standing principle of American justice: guilty until proven forgotten about. That is essentially the same stance taken by George Bush with one important difference: Obama makes the kids like it.

Now I don't know why he's denying them habeas corpus. I can only assume the guys they've got detained over there did something really unforgiveable. Like remind Obama he was once a professor of Constitional law. That is cold.

Stephen Colbert is correct to criticize the President for this. We need to support the President when he's right and not act like the right wing did with Bush and their blind support of him no matter what, and call him out when he's wrong.

April 13, 2009 MSNBC Rachel Maddow Show

I can't wait for the usual comments about how this means the opposite of how it appears, Obama's extended super brilliant chess game, etc.:

WASHINGTON — The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.

In a court filing, the Justice Department also asked District Judge John D. Bates not to proceed with the habeas-corpus cases of three detainees at Bagram Air Base outside Kabul, Afghanistan. Judge Bates ruled last week that the three — each of whom says he was seized outside of Afghanistan — could challenge their detention in court.

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.

The Supreme Court’s recent ruling on habeas corpus and suspected terrorist detainees has faded a bit on the political world’s radar, but the McCain campaign continues to believe the issue will benefit their candidate. Indeed, just this afternoon, McCain’s in-house blogger blasted Barack Obama’s campaign for “conflicting answers” on whether Osama bin Laden would be entitled to habeas. The blogger admonished Obama for trying to “have it both ways on this issue.”

That’s an interesting choice of criticisms.

John McCain initially responded to the Supreme Court ruling with mild disappointment. “[I]t is a decision that the Supreme Court has made,” McCain said. “Now we need to move forward.” A day later, McCain said the high court’s ruling was “one of the worst decisions in the history of this country.” It was quite a rapid reversal.

McCain spent the ensuing days bragging about his support for indefinite detention, which is odd, considering that McCain adopted Barack Obama’s position on the issue as recently as three years ago. Here’s what he told Tim Russert June 19, 2005, which as you’ll notice, is the exact opposite of his position now:

“Now, I know that some of these guys [at Guantanamo] are terrible, terrible killers and the worst kind of scum of humanity. But, one, they deserve to have some adjudication of their cases. And there’s a fear that if you release them that they’ll go back and fight again against us. And that may have already happened. But balance that against what it’s doing to our reputation throughout the world and whether it’s enhancing recruiting for people to join al-Qaeda and other organizations and want to do bad things to the United States of America. I think, on balance, the argument has got to be — the weight of evidence has got to be that we’ve got to adjudicate these people’s cases, and that means that if it means releasing some of them, you’ll have to release them.

“Look, even Adolf Eichmann got a trial.”

Imagine, just for a moment, what the right would do if Obama said, for the sake of our national reputation, that we might have release terrorist suspects at Guantanamo Bay. Indeed, if we took McCain’s quote, attributed it to Obama, and sent it to Fox News and the Wall Street Journal editorial page, they’d talk about little else for the rest of the year.

Perhaps Michael Goldfarb, McCain’s in-house blogger, can remind us again of which candidate is offering “conflicting answers” and trying to “have it both ways on this issue.”

At this point, I’m confused.

Download | play Download | play (h/t Heather)

Lord, save us from the idiot pundit class. The smackdown the Supreme Court gave the Bush administration is making the GOP very unhappy. I mean, how dare we consider a fundamental building block of justice since the Magna Carta anything less than an unacceptable allowance for activist judges?

And how do we know it's a bad decision? Fear, fear, fear!!!! Newt says it'll cost us a city! A notion not far off from Scalia's remarkably legal citation-free dissent that this decision "will almost certainly cause more Americans to be killed." Oooohhh....be afraid, America. Little obnoxiously liberal notions like the right for people like Maher Arar to know why he was detained and to prove his innocence are things that the Republicans don't think they should have to held to.

Mr. GINGRICH: On the other hand, I will say, the recent Supreme Court decision to turn over to a local district judge decisions of national security and life and death that should be made by the president and the Congress is the most extraordinarily arrogant and destructive decision the Supreme Court has made in its history.

REID: In its history.

Mr. GINGRICH: In its history. Worse than Dred Scott, worse than--because--for this following reason: The court has now knowingly stepped in--and this morning's newspapers say smugglers had actually gotten the design of a nuclear weapon, that we now have the evidence that people out there had a nuclear weapon design. And this court is saying that any random district judge, based on whatever their personal caprice is, whatever their personal ideological bias, can intervene with a terrorist in such a way--and this is something that the Italians will tell you about fighting the mafia.

Worse than Dred Scott? Wasn't that a dog whistle used by GWB for indicating the kind of justices he'd pick for SCOTUS? And the whole "mushroom cloud" fear of smugglers getting nuclear plans? Dude, it's called the Google. It's not hard to get bomb plans online or in the library, for that matter--manufacturing them is another issue. But that has NOTHING to do with the Boumediene case. Boumediene said that habeas corpus still applied at Guantanamo, despite its location in Cuba because the US has sovereign rights over it and the Military Commissions Act of 2006 was an unconstitutional suspension of habeas corpus.

But again, facts have a liberal bias, don't they, Newt?

Transcripts below the fold:

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This token Christian has to say it...thank God for the ACLU. (Yes, I mean that, Bill-O.)

The American Civil Liberties Union today filed a motion asking a federal judge to hold the Central Intelligence Agency (CIA) in contempt, charging that the agency flouted a court order when it destroyed at least two videotapes documenting the harsh interrogation of prisoners in its custody....

“The interrogation techniques employed by our government raise fundamental questions of human rights and decency,” said Arthur Eisenberg, New York Civil Liberties Union Legal Director. “The CIA cannot avoid those questions by simply destroying the evidence.” Read more...

No, it's not a remake of the movie. This is the sad but true story of Al-Timimi and Omar Khadr, and the desecration of justice under Bush.

Reports have begun to circulate that the Administration has put together a group of scholars headed by a right-wing activist judge to craft legislation to introduce a new court of Star Chamber, perhaps to be floated in the coming year. As we see in the public pronouncements of the Bush Administration, accusations leveled at detainees in the war on terror are leveled for political effect, and often to parallel partisan political campaigns. If those accusations are rejected by a court, it therefore undermines confidence in the Administration and the Party. Which is why, in the Bush view of justice, a failure to convict is unacceptable. And which is why the Bush view of justice is no justice at all. ... read on

Cuz if you're really going to go pre-Habeas Corpus Act, you gotta have your own Star Chamber.

Let's be clear and unvarnished...44 of our Senators hate the Constitution and basic civil rights. They do not believe in the fundamental right of due process. RestoreHabeas.org has the breakdown.

Absolutely unacceptable. With all the horrors that we hear about Hamdan, about suicides, about innocent people rounded up for bounties and left to rot in Guantanamo and Abu Ghraib, it is absolutely immoral that 44 senators feel that entrusting basic civil rights of any person to the Bush administration is the way to go.

Senator Dodd has not given up the fight:

"America's moral standing, and with it the security of the United States, suffered another setback today, atop a pile of setbacks that has accumulated over the past six years. The outcome of this vote is both symbolic and tragic. Each of us in the Senate faced a decision either to cast a vote in favor of helping to restore America's reputation in the world, or to help dig deeper the hole of utter disrespect for the rule of law that the Bush Administration has created. Unfortunately, too many of my colleagues chose the latter, and my disappointment runs deep. But I will not rest my case with this vote. Instead, this defeat will only deepen my resolve to restore the rule of law and with it American security, for far too much is at stake - for every American - to simply give up the fight."

Restore Habeas:

This week, we have a critical opportunity to restore habeas corpus.

The Habeas Corpus Restoration Act gives us a chance to reverse one of the Bush Administration's many assaults on our civil liberties.

We all want to make America safe from terrorism, but becoming a nation that sanctions the unlawful detention of its own residents -- detaining and jailing them without the chance to appear before a judge -- does not make us safe. Instead, it violates a value that we have held dear for centuries -- safeguarding our individual freedom before arbitrary state action.

You can sign on to co-sponsor the bill here.

Chris Dodd guest blogged over at Taylor Marsh on the importance of restoring habeas.  And Christy at FDL has a list of congress critters we're targeting for phone calls. C'mon...the Constitution needs your help today.

FDL:

(P)lease make some calls on the Habeas Restoration amendment today [..]. (S.185 has morphed into S.2022 as a potential amendment to the defense bill currently under debate.) I am told through the Congressional grapevine that a vote on the amendment is likely for Tuesday - that's tomorrow! - and that pressure needs to especially be applied to the following Senators: Lieberman, Ben Nelson, Hagel, Lugar, Craig, Collins, and Alexander.

Please, call your own Senators and voice your support for the restoration of habeas rights and respect for the Constitution and the rule of law. And throw in an extra call or two for the Senators on the waffling list above. For why this is important - and why it needs our support now - read here. And here.

Christy has phone numbers to reach the Senate. Bob clarifies the confusion about the bill numbers and why it's critical to get the Senators on record as supporting or sponsoring the bill(s).

UPDATE: It looks like the calls made to Reid are having an impact. He's just announced that he will file a cloture motion on the Reed-Levin redeployment bill. This should tell you that your voice CAN make a difference. Please call the Senators and ask them to sign on to the Habeas Restoration Act. There's less than 24 hours left before the vote.

That title alone should send shivers down your spine.

Bob Geiger:

It's been almost three weeks since I last wrote about the status of cosponsorship on the Habeas Corpus Restoration Act of 2007, a bill by Senator Arlen Specter (R-PA) that would "...restore habeas corpus for those detained by the United States." At that point, the legislation had 23 cosponsors -- 22 Democrats and Independent Bernie Sanders of Vermont -- and I thought I would check back in today and see who has stepped up to show leadership on this issue since then.

With the addition over the last couple of weeks of Senators Byrd, Carper, Klobuchar, McCaskill, Menendez and Nelson (Bill), there are 28 Democratic Senators, along with Sanders, cosponsoring Specter's S. 185, which could very well come up for a vote next week as an amendment to the Defense Department authorization bill. [..]

So I again raise the question: Where are the other Democrats?[..]

The following Democratic Senators have still not signed up to cosponsor the Habeas Corpus Restoration Act of 2007:

• Daniel Akaka (D-HI)
• Max Baucus (D-MT)
• Evan Bayh (D-IN)
• Robert Casey (D-PA)
• Kent Conrad (D-ND)
• Byron Dorgan (D-ND)
• Daniel Inouye (D-HI)
• Tim Johnson (D-SD)
• Herb Kohl (D-WI)
• Mary Landrieu (D-LA)
• Blanche Lincoln (D-AR)
• Barbara Mikulski (D-MD)
• Patty Murray (D-WA)
• Ben Nelson (D-NE)
• Mark Pryor (D-AR)
• Jack Reed (D-RI)
• Charles Schumer (D-NY)
• Jon Tester (D-MT)
• James Webb (D-VA)
• Ron Wyden (D-OR)

Again, I put it to you that it lies with us to pierce through the Beltway bubble. Please contact these Democrats (especially if you're in their district) and ask them why they have not gone on record restoring this basic civil (and human) right.

UPDATE: Poster Brendan reminds us that Sen. Tim Johnson is still recuperating from his brain hemorrhage and it would be unfair to castigate his lack of vote on this matter.

Christy at FireDogLake has suggestions for Bending Congressional Ears to restore this most basic civil right.

Bob Geiger counts 22 Democrats supporting restoration and asks Where's The Rest?

Admitting you've made a mistake is not something we hear from elected officials often. But Sherrod Brown did just that...

Bob Geiger: Audience Member: "In 2006, when you were still a member of the House of Representatives you voted for the Military Commissions Act, which had as one of its elements, the suspension of Habeas Corpus. Given your recent efforts to restore Habeas Corpus, would you still cast that same vote today."

Brown: "No, I was wrong."

Period.

Now that wasn't so hard, was it?

Apparently it is for others...but for Brown, once was not enough, because he did it again in an interview with The Young Turks too. Howie has more:

Notice Senator Brown does a thing only Democrats do and that Republicans never do. He admitted he had done wrong and he took responsibility for what he did. He didn't blame everyone else. It's been 9 months. I'll look forward to him making good on the promise he made to Cenk-- and to America-- today. (And, by the way, so far he's had a spectacular voting record in the Senate, even better than Bernie Sanders'!)

You can urge Sherrod Brown to support Sen. Dodd's legislation to pass the RCA. Dodd has the info here.

  Earlier this week, a panel of the Fourth Circuit Court of Appeals held that the government did not have the authority to detain Ali Saleh Kahlah Al-Marri--a Qatari national who had come to the United States on a student visa--indefinitely without process. Al-Marri, who the government claims is a terrorist, has spent the last four years in a military brig in South Carolina. He has not been charged with a crime or even an immigration violation.

In its court filings, the Bush administration argued that Congress had implicitly provided statutory authority for this sort of detention when it passed the Authorization for Use of Military Force (AUMF) shortly after 9/11. The Fourth Circuit rejected this argument, noting that "if Congress intended to grant this authority it could and would have said so explicitly."

The Court then pointed out an obvious historical flaw in this argument:

In fact, shortly after Congress enacted the AUMF, it enacted another statute that did explicitly authorize the President to arrest and detain "terrorist aliens" living within the United States believed to have come here to perpetrate acts of terrorism. . . .

[T]he Patriot Act establishes a specific method for the Government to detain aliens affiliated with terrorist organizations, who the Government believes have come to the United States to endanger our national security, conduct espionage and sabotage, use force and violence to overthrow the government, engage in terrorist activity, or even who are believed likely to engage in any terrorist activity. Congress could not have better described the Government's allegations against al-Marri -- and Congress decreed that individuals so described are not to be detained indefinitely but only for a limited time, and by civilian authorities, prior to deportation or criminal prosecution.

In sum, Congress has carefully prescribed the process by which it wishes to permit detention of "terrorist aliens" within the United States, and has expressly prohibited the indefinite detention the President seeks here. The Government's argument that the President may indefinitely detain al-Marri is thus contrary to Congress's expressed will.

Though the Court stopped there, the evidence that Congress did not wish to authorize this sort of detention is even more clear cut.

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As tempting as it was after the Iraq Supplemental Bill to lump Democrats and Republicans together, let's give credit where credit is due. The Democratic majority is the only reason we have to be hopeful of restoring this basic right taken away from us by the Bush Administration and their enabling Republican majority. Potentially, the entire Military Commissions Act could be dismantled. Ari Melber at The Nation has more:

Today the Senate Judiciary Committee passed an important bill to restore habeas corpus, the sacrosanct Constitutional right to challenge government detention in court, by a vote of eleven to eight.

Habeas corpus was revoked by last year's Military Commissions Act, which has been assailed as unconstitutional and un-American by leaders across the political spectrum. Today's habeas bill was backed by the Judiciary Committee's Democratic Chairman, Patrick Leahy, and its Republican Ranking Member, Arlen Specter. "The drive to restore this fundamental right has come from both sides of the aisle," said Sharon Bradford, an attorney at the bipartisan Constitution Project, in response to today's vote. "Restoring America's commitment to the rule of law is not a partisan cause; it is a patriotic one," she added.

Today's vote means the habeas bill can now be brought to the Senate floor at any time. One source with knowledge of the legislative plan said Majority Leader Harry Reid has committed to bringing the bill to a vote within the month.

Some Democrats are pushing Reid to go further, advocating more comprehensive human rights protections and a repeal of the entire Military Commissions Act.