What the Senate Hath Writ

The latest chatter in cyberspace.
Nov. 14 2005 5:51 PM

What the Senate Hath Writ

A Senate amendment thought to undermine the writ of habeas corpus has bloggers in a frenzy. They also discuss a report that Supreme Court nominee Sam Alito stated his committed opposition to Roe v. Wade way back in 1985 as well as the long-expected but much-feared end for Fox's Arrested Development.

What the Senate hath writ: The Senate approved an amendment last week, introduced by Lindsay Graham, R-S.C., that would deprive suspected terrorists in American custody of the right to challenge their detainment in U.S. courts. Legal and political bloggers alike are puzzling over the possible ramifications.

"Has the Senate suspended the writ of Habeas Corpus?" wondersInstaPundit Glenn Reynolds, a law professor. Ethics professor Hilzoy and law student Katherine Regina, two moderates who have been covering the story exhaustively at Obsidian Wings, say yes. "As best I can tell, [the Graham amendment] strips the courts of all power to hear any habeas motion from a detainee, or any other challenge to a detainee's detention, and that this applies to any cases that have already been brought and are now pending," writes Hilzoy. Others generally agree. "This would effectively end all litigation brought on behalf of the detainees at Guantanamo Bay, as well as any future litigation on behalf of those imprisoned at the CIA secret detention camps," reports Jeralyn Merritt at TalkLeft.

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The amendment, writes Marty Lederman of SCOTUSblog, "would be a very momentous development, and would probably mean that most or all of the Administration's decisions on, and conduct regarding, detention, interrogation and abuse at GTMO, would be impervious to judicial review and oversight." Others see even wider implications for the prosecution of the war on terror. "This amendment is an open invitation to continue the policies of secret prisons, torture & rendition," writes Wayne, a lefty, at Just a Bump in the Beltway.

"There may be dimensions to this that I have not considered, but given the track record of the U.S. in many 'suspected' terrorist charge claims that turned out wrong, I think it is a huge mistake to empower the federal government with this type of uncontested authority," argues foreign policy wonk Steve Clemons at The Washington Note. "Call me a conservative if you will—but I don't trust a government that can not be challenged by all people, citizen or not, in a court of law." Many likeminded bloggers are heralding a second amendment, expected this week from Jeff Bingaman, D-N.M., which promises to effectively undo the Graham amendment.

"Torture, black sites, indefinite detention and deprival of due process—the United States has forfeited its right to lecture other nations about freedom and democracy," writesVanity Fair essayist James Wolcott. "Red, white, and blue are no longer the true colors of this country's flag; the flags that fly in the Capital should be henceforth be prison gray."

Read more about the Graham amendment.

The elephant enters the room:In a 1985 document outlining his conservative credentials, Supreme Court nominee Sam Alito wrote that "the Constitution does not protect a right to an abortion," the Washington Times reports. Though Alito ruled with pro-choice advocates in three of four abortion cases he heard as an appellate judge, many watching the confirmation battle see the news as evidence of ideological commitment, rather than openmindedness.

"I think this clearly vindicates those of us who led the anti-Miers fight," argues conservative Stephen Bainbridge, a professor of corporate law. "Only by standing up to Bush and the party loyalists were conservatives able to get a judge who gives us a shot at advancing movement concerns." At the National Review's legal group blog Bench Memos, Wendy Long praises the statement as "the correct, intellectually respectable position widely held by respected Supreme Court Justices, federal court judges, lawyers, and scholars from across the political spectrum, irrespective of their personal views on abortion."

"This document raises the stakes dramatically for the left, because while the twenty-year old job application says nothing about how Judge Alito would rule as Justice Alito, it does present the first ever case of a nominee with a decisive declaration on the subject of Roe," notes conservative radio host Hugh Hewitt.

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