These are grim days for the Constitution. The House and the Senate have passed the catastrophic “compromise” negotiated by senators McCain & Co. to the President’s “enemy combatants” bill. The only thing compromised is the rule of law; the bill still strips detainees of the right to appeal, broadens the President’s unilateral powers to decide who is an enemy and which interrogation methods violate the Geneva Conventions, and fatally undermines the War Crimes Act. The bill was rushed to passage just days after the Canadian government exonerated Maher Arar, “rendered” by the United States to Syria, imprisoned and tortured for nearly a year.
Did John McCain and his GOP colleagues cave? Yes. In particular, they betrayed the courageous military officers and Pentagon lawyers who for months fought for the rule of law. But the refusal of many Democrats to confront this constitutional crisis is more scandalous. For weeks Harry Reid and other Democratic leaders enjoyed the luxury of sitting on their hands while McCain and other Republicans publicly bucked the White House. But when vigorous Democratic opposition might have slowed the bill until a saner, less politicized moment after the election-season recess, a tepid Senator Reid refused to stand in its way: “We want to do this. And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution.” Never mind that the whole bill is out of compliance.
As more than 300 law professors wrote in a letter to Congressional leaders, the enemy-combatants debate is “an urgent test of our nation’s constitutional and democratic values.” Democrats as well as Republicans have failed the test.
