Editorial: Democrats fail test on core civil right

Published May 15, 2007

Does the Democratic-controlled Congress have the will to repeal a repugnant provision of the Military Commissions Act? Passed in a rush before the last election, the law stains this country's national reputation as a bulwark of liberty. It strips habeas corpus rights from the prisoners in Guantanamo, making it impossible for people who have now been held for up to five years without charge to challenge the legitimacy of their continued detention before a real court.

The Democrats promised to set things right, which means restoring this important civil liberty. But it appears politics might be getting in the way.

An opportunity arose last week to add an amendment to the annual defense authorization bill that would have returned habeas corpus rights to detainees. The votes reportedly were there, but House Armed Services Committee Chairman Ike Skelton, D-Mo., failed to support the effort. He says he intends to sponsor a stand-alone measure to accomplish the same thing.

It was a political calculation, one almost as distressing for what it says about Democrats as what it means for the Guantanamo prisoners caught in a legal black hole. A stand-alone bill is far less likely to succeed than an attachment to a must-pass annual defense bill. Undoubtedly, President Bush will veto any effort to limit his power to hold people indefinitely without an independent review - a power granted under the Military Commissions Act that Bush had previously declared for himself. But he might have a harder time vetoing a bill that includes many things he wants.

If the Democrats were serious about returning the checks and balances to our legal system, they would add a habeas corpus amendment to every vital piece of relevant legislation until the president capitulates or there are enough votes for an override. This is a matter of principle. It doesn't matter what the other party's sound bites might sound like in the next election.

If the Republicans claim that restoring this fundamental protection of our Constitution is somehow coddling terrorists, then Democrats can point to the likes of William Sessions, former FBI director under the first President Bush, as well as numerous other notable conservative leaders who are urging Congress to resurrect habeas corpus.

To do nothing with an opportunity to right a terrible historical wrong is nearly as bad as continuing to defend it. The Democrats missed an important opportunity to demonstrate leadership and political courage. They attracted voters last November by promising to make things right. Now they need to make good on their word.