These are grim days for the Constitution. At press time, the House had passed the catastrophic "compromise" negotiated by senators McCain & Co. to the President's "enemy combatants" bill, and the Senate was poised to do the same. The only thing compromised is the rule of law; the bill would still strip detainees of the right to appeal, would broaden the President's unilateral powers to decide who is an enemy and which interrogation methods violate the Geneva Conventions, and would fatally undermine the War Crimes Act. The bill is being 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. Patrick Leahy, Democratic leader on the Senate Judiciary Committee, spoke eloquently against the bill's habeas-stripping provisions, but none of the Senate's Democratic lions appeared ready to put up a fight to amend or slow the bill.

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." At this writing, Democrats as well as Republicans have failed the test.

© 2006 The Nation

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