For a variety of reasons, I have, until now, been keeping rather mum on the debate over the Military Commission Act of 2006. In light of today's New York Times editorial, one of the strongest and harshest I've ever read in _any_ paper, let alone the paper of record, and in light of this morning's 51-48 defeat of the Specter Amendment in the U.S. Senate, I think the time has come to say something.
The problem is, I don't know what to say. Yes, the bill has all kinds of horribles hidden (some in plain view) within its text. But I'm a federal courts geek. And so, whereas there's lots to say about the various substantive issues -- the authorization of military commisssions, the definition of "enemy combatant," the evisceration of Geneva Convention rights -- to me, there's just nothing that stacks up to Congress's continuing attempt to oust the federal courts of jurisdiction to decide some of the most basic and fundamental questions that our legal system has ever confronted. And the MCA, in its current form, would preclude federal jurisdiction over virtually any habeas petition filed by a non-citizen detainee in the war on terrorism. That is, Congress is, for lack of a better word, too scared that the courts might just take issue with such a blatant assault on long-held, well-established conceptions both of individual rights and limitations on governmental power. And so, in one fell swoop, Congress is showing its arrogance all while arrogating what may well be the most important check in our system of checks and balances -- the countermajoritarian role of the courts in checking the excesses of the political branches.
The Alien and Sedition Acts of 1798, which provided the epigraph for today's Times editorial, were simply bad policy. But the MCA is far worse, because it denies to the courts the opportunity to decide whether it is unconstitutionally bad policy. If the courts are to be such bit players in our system, why raise such a huff over nominees to the federal bench?
Because I simply don't know what to say anymore, I'll just quote somebody else: Justice Frank Murphy, dissenting in In re Yamashita:
While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others. We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. And it is applicable in both war and peace. We must act accordingly. Indeed, an uncurbed spirt of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit. The people's faith in the fairness and objectiveness of the law can be seriously undercut by that spirit. The fires of nationalism can be further kindled. And the hearts of all mankind can be embittered and filled with hatred, leaving forlorn and impoverished the noble ideal of malice toward none and charity to all.
This morning's Times editorial concluded by calling the MCA "a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts." I fear, given the damage it may well do to the proper separation of powers, that such a conslusion is overly optimistic. The substantive provisions of the Act may well be constitutional, but that should be for the courts, and not for the political branches, to decide.