Habeas Corpus isn't odious. It's necessary.

So I was thinking a little about this "indefinite incarceration" thing. An odious anathema, the ability to do this was tacked onto a Defense spending bill - pretty much assuring it wouldn't be challenged too heartily. As was, indeed, the case. (I couldn't help notice that even the Tea Party pipsqueaks didn't put up much an argument; so much for their idolization of The Constitution!) Initially it seemed that this was inserted at the request of the Republicans, but it turned out The White House wanted it; they mumbled a protest or two, it was revealed the Administration requested it, Congress didn't protest it and it became the law. The President (meaning "anyone who works for him") can lock you up indefinitely if they deem you a threat or a terrorist or something. What's striking is how I've not heard anyone say "but we'll be very careful!"

This isn't quite like Abe Lincoln's suspension of Habeas Corpus - that was done by decree and was, quite frankly, a coldly calculated political move. Its intention was to stop Baltimore, and hence Maryland, from going to the Confederates. It succeeded in that goal. The current painful effort isn't like that at all!

One of the main complaints of the Colonists was the much-exercised ability of the Crown to lock you up and forget where they put the key. So the Constitutional Convention inserted language that stopped that from happening:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. 

Old Abe relied on the second part of that sentence. This new legislation doesn't seem to rely on any part of that sentence; it simply ignores the entire Suspension Clause altogether! Which isn't necessarily a good idea - the Supremes struck Abe's efforts down, and this effort will, likely as not, also be found unconstitutional. As well as abhorrent.

What I don't get is how it ended up being a law!

Here's how it's supposed to work: some busybody proposes a law. If it's accepted, it gets debated and language of the proposed law is massaged and tweaked (usually to benefit the 1% better). In all of this, Congressional lawyers, and in this case, White House counsel, all peer at the proposed language. One would hope that the Justice Dept was involved in this as well; one would hope, but it's not clear they were, so they probably weren't. If the language is found to be blatantly unconstitutional, the law is quietly dropped and everyone pretends it was never proposed or even existed. As you can probably tell - there's a lot of room for things to go wrong. And here, they most certainly did.

So the question becomes "How did this get approved?" It's the sort of thing you expect a rookie administration to do; it's the kind of thing I'd expect any of that motley crew of Republicans to do if they became President. But we're into the late stages of what is hopefully Obama's first term - this sort of nonsense shouldn't even be proposed in brain-storming sessions. It's so unconstitutional you could successfully argue that it's anti-Constitutional! (I can imagine where the suggestion came from: the national security apparatus dearly loves its draconian measures. How the hell they managed to persuade this sort of idiocy through to being a law is beyond imagination; "Wag the Dog" becomes a goddamned fairy tale in comparison.)

Despite Mr Obama's signing statement saying he wouldn't exercise such authority (why ask for it, then?), no other president will be constrained by that. The only way they'll be constrained is by the Supreme Court again upholding the right to habeas corpus. Which means some sap or two will have to be arrested and incarcerated; eventually they'll get a lawyer who will be able to challenge the law in court. The hearing of which will be contested on national security grounds. And it'll be a loooong time before anyone gets their day in court; simply getting that day will take years!

How in the world did such an odious amendment make it into law? That's something Darrell Issa, in his enthusiasm to denigrate the Obama Administration, could do some good looking into. Solyndra is a kindergarten spat compared to this. Shame on the Obama Administration for coming up with something like this, and shame on Congress for allowing, eagerly allowing, it to happen!

Carolyn Ann