Amending Basic Rights

Two things happened today which got me thinking about the idea of basic rights, the Constitution, and a debate I think the country needs to have. Chris Dodd (D-Conn) introduced a bill today to restore Habeas Corpus protections and bar information obtained through torture. Basically, Habeas Corpus is the protection for citizens from unlawful detention, the right to appear before a judge to challenge ones imprisonment. Also today, Jose Padilla was deemed fit for trial by U.S. prison doctors. Padilla is an American Citizen who was detained in 2002 and deemed an "enemy combatant" by President Bush. Since his initial arrest, he has been denied his citizen's right to Habeas Corpus, detained without charges for five years, kept in strict solitary confinement, and routinely applied blindfolds and noise canceling headphones. His lawyer recently said that Padilla is "so docile and inactive that his behavior was like that of ‘a piece of furniture.’ ”

Congressman Dodd's Restoring the Constitution Act of 2007 would also repeal certain provisions of the Military Commissions Act, specifically those giving the President the power to create a Military Trail System outside of the jurisdiction of the U.S. court system, denial of the accused to see the evidence against him or her, the power of the President to waive the Geneva Conventions and torture bans, and the protection of all military personnel and agents of the Executive Branch from prosecution stemming from any aspect of the Military Commissions Act.

According to the U.S. Constitution, all citizens are protected by habeas corpus, except in instance of rebellion or invasion. President Lincoln briefly suspended habeas corpus during the Civil War, when the South rebelled. Aside from that, not even during the War of 1812 when Canada and Britain not only invaded the U.S., but burned the capital down, was this right ever questioned. Appearing before the Senate Judiciary Committee during the debate over the Military Commissions Act, Attorney-General Alberto Gonzalez testified that he believes “there is no express grant of habeas in the Constitution.” Gonzalez' thinking legal thinking is that "The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas...''

At the root of all this is the question: where do our rights come from? This is the debate worth having, because there are two critical ways of thinking around this issue, and, considering our current administration and the case of Jose Padilla, it's far more relevant than the little attention given it by the media. One school of thought, the one which many conservatives proscribe to, is that the Constitution gives us our rights, and that all things outside the scope of the original framing fall outside the scope of "basic rights." Speaking to the ACLU, Supreme Court Justice Scalia recently said that there is "no basis in the U.S. Constitution for abortion or homosexual rights..." While Scalia went on to say that such social issues should be settled by majority rule and not the courts, it is an example of the same idea, that the Constitution and the Bill of Rights are the basis of all our freedoms and protections.

The other school of thought says that the Constitution doesn't grant us our rights, that all our rights, freedoms, and protections come from the people, and that the Constitution is only there to limit Government. In fact, James Madison had originally objected to attaching a Bill of Rights to the Constitution because he believed it would wrongly create the impression that the document granted said rights, as the first school of thought insists, and he believed those rights and freedoms were a basic assumption. While the framers were just people like any of us, with their own faults and hypocrisies, they did clearly state that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

While there is a lot of gray area in between, it's an argument worth having. It makes one lament Reagan doing away with the requirement that civics be taught in school. My opinions fall mostly with the latter, that our rights are innate, not just as Americans but as humans. I'd like to have a national discussion on these issues, and the media needs to educate, rather than bury the story under easy headlines from the Anna Nicole Smith soap opera. Maybe I'm wrong, it wouldn't be the first time. I am, after all, no longer an Air America apologist.

--Patrick

Retracting It (Or: No Longer In Defense of Milkshake)

I owe an apology. I owe an apology to Sam, Marcus, Daniel, Chad, Brent, and every other Bears fan in the world. I was pulling for the Colts; because they've been so good for so long, and my Patriots have knocked them out year after year; because after these past six seasons, they'd moved from hated nemesis to respected rival; because I wanted Tony Dungy and Peyton Manning to get their rightful turn at the top of the mountain.

I was wrong.

Back when I was a kid, I remember the Broncos coming so close year after year, and when they finally ousted Green Bay to "win one for John," I put aside my Bronco-hating ways to tip my hat to Elway. I remember the tears coming down his cheek as he raised the Lombardi trophy. In recent years, I remember those same tears, as Tom Brady shook his head from side to side in disbelief in the hail of confetti culminating year after year of underdog achievements, and Jerome Bettis, who I let my distaste of the Steelers subside for when he and Bill Cowher hoisted that same trophy together. They'd worked so hard to get there, and there was nothing but joy in those scenes.

After the clock ran out on Chicago last night, it was all flat.

The Colts have been struggling for so many years, coming close many times, but when they finally won it all last night, they just seemed to be relieved it was over. The happiness seemed empty and staged. Peyton Manning talked to the media afterwards as if it were just another game. It wasn't just another game. It was a sloppy, rain soaked Super Bowl, but a Super Bowl none the less. The Bears fell back into base defense and bad-Rex showed up. The Colts played just good enough ball control to win. As Don Shula walked the trophy through two rows of Colts, lined up to touch it one by one, it all seemed contrived, it was all half smiles, it was as if there were still games left to be played.

I like Peyton Manning. I like Tony Dungy. I've lost my empathy for the colts. If not for Elliot's quip about, "all pre- and post-game shows are basically just an excuse to defrost Tommy Lasorda to see what he thinks," the aftermath of the game would have left everyone in the room with a sort of melancholy. Sure, we had chili. Sure, we had good Belgian beer. Sure, Peyton Manning and Tony Dungy finally won their Super Bowl, but maybe they won it four years too soon for them to really bleed emotion when they hoist the trophy. A week ago, I wanted Peyton Manning to get his ring -- as the game faded last night, I'd wished it'd been Urlacher and Lovie Smith instead.

The drinking game we'd thought up, to take a shot every time Jim Nantz compares Peyton Manning to Dan Marino, fell disappointingly short. Just like the Colts themselves. You won the frickin' Super Bowl, dude, act like it!

Bears Nation, I'm sorry. Brett Favre decided to play again next year, so between that and the rest of your division, you're guaranteed six wins to start next season. I won't make the same mistake next January.

--Patrick

Some thoughts on Executive Authority

It's worth mentioning that Congressman John Conyers (D-Michigan, Chairman of the House Judiciary Committee) began an inquiry today into President Bush's historically extravagant use of Presidential Signing Statements. Such signing statements are normally used sparingly when a President signs a Bill into law, but may note that a certain provision does not apply to the Executive Branch. Fairly straight forward, however Bush has used this provision more than 1,100 times since he took office, on everything from Exempting the Executive Branch from anti-torture legislation to Exempting the Executive Branch from laws making it illegal to intercept and open other people's mail.

At issue is the separation of powers. Bush has used Signing Statements so often that it now (actually, years ago, it's just that up until Congress had some weird rule about not questioning the President, probably relating to Ronald Reagan's 11th Commandment, that "Thou shalt not question a fellow Republican") creates a Constitutional Crisis, in which the Executive Branch has effectively undermined the Legislative Branch's sole ability to, well, legislate. Rep. Conyers announced his formal hearings on the same day that President Bush himself was fingered as having ordered the outing of CIA Operative Valerie Plame, and consequently destroying her team of anti-nuclear proliferation operatives, in an attempt to discredit Ambassador Joe Wilson and his Iraq War criticism.

These two events today come on the heels earlier this week of President Bush, through Executive Order, declaring that all Federal Regulatory Commissions (the Federal groups that regulate clean air and water, food and drug safety, civil rights, etc) will no longer be headed up by scientists, experts, and civil servants, but by his political appointees. We all remember Michael Brown, who headed FEMA and who's background was in raising show ponies. Bush has said this will allow him to make certain all Federal Regulatory Boards are now guided by his Administrative Beliefs. The same Administrative Beliefs that questioned contractors on their view of Roe v. Wade before offering them jobs in the reconstruction of Iraq.

I highly recommend reading Norm Ornstein and Thomas Mann's book, "The Broken Branch," about the faltering of the Legislative in the Executive's decade-long power consolidation. It's a much needed informed debate worth having in this country. It is also, however, worth noting that President Bush isn't the first President to use his office to excess. Three of the Progressive movement's greatest champions, Franklin Roosevelt, Teddy Roosevelt, and Abraham Lincoln, all stymied the other branches of Government in their day. FDR when he walked the line of socialism's safety net during the Depression, and imprisoned Japanese Americans during World War II; Teddy Roosevelt when he took on corporate power and private money against the Robber Barons, and Lincoln when he suspended Habeus Corpus during the Civil War.

The office of the President is so powerful because with the stroke of a pen, one man can change millions of lives. The current upheaval over Executive Authority should begin a debate about the separation of powers on those merits, and not solely as an excuse to further assail Bush. Remember, Congress and the Courts were complicit in facilitating the Patriot Act, the Military Commissions Act, and in the Warrentless Wiretapping Program. The Legislative Branch under the GOP gave away it's power to Bush, as the GOP itself believes in a strong Executive and a neutered Legislative and Court. Separation of powers is the start of the debate, one political party controlling all three branches of government, and the excess that breeds, is where it should move next.

--Patrick