Habeas Corpus and a Senate Race in Maine

The United States Senate celebrated this week's 220th anniversary of the Constitution by failing to endorse the restoration of the habeas corpus protections that legal scholar Albert Venn Dicey once described as being "worth a hundred constitutional articles guaranteeing individual liberty."

Of all the insults to the nation's founding principles that have been recorded in this era of undeclared wars, unwarranted spying and unlimited executive excess, none is more galling than this one.

That a single senator, having sworn an oath to defend the Constitution, would vote against the renewal of habeas corpus protections ought to be a shock to the system.

That 43 of them -- enough to block a cloture motion that would have allowed the Senate majority to undo the damage done by the Military Commissions Act of 2006 -- is evidence of the depth to which the Republic has sunk.

The founders of the American experiment left no doubt of the commitment of the new United States to the rule of law and right. While Madison, Mason and their contemporaries assumed that habeas corpus protections would be embraced and respected by all Americans who understood the point of their revolt against the British crown, they specifically added a notation to the Constitution stating that, "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."

In absence of rebellion or invasion, the Congress voted last fall -- at the behest of then-White House political czar Karl Rove, who hoped in vain that fear-mongering might renew Republican electoral prospects -- to suspend habeas corpus protections for suspects deemed to be "unlawful enemy combatants" by the Bush administration.

Wednesday's cloture vote provided an opportunity for senators to recommit themselves to the Constitution.

Of the 56 votes to restore habeas corpus protections, 49 came from Democrats and one from Vermont Independent Bernie Sanders, who caucuses with the Democrats. Six came from Republicans: Nebraska's Chuck Hagel, Indiana's Richard Lugar, Oregon's Gordon Smith, Maine's Olympia Snowe, Pennsylvania's Arlen Specter and New Hampshire's John Sununu.

Of the 43 votes against the Constitution, 42 came from Republicans and one from Independent-Democrat Joe Lieberman of Connecticut.

What is the best way to react to the vote? By remembering that the two more vulnerable Republican incumbents up for reelection next year, Norm Coleman of Minnesota and Susan Collins of Maine, voted against restoring habeas corpus. They were joined in their Constitutional heresy by four potentially vulnerable Republicans -- John Barrasso of Wyoming, Pete Domenici of New Mexico, Mitch McConnell of Kentucky and Ted Stevens of Alaska.

In 2008, the Constitution needs to be a campaign issue.

Senators are either for it or against it. And those senators who are against it need to be forced to explain why they should not be replaced by challengers who are committed to swear sincere oaths to defend the document and the fundamental values that it outlines.

Maine's Collins deserves special attention in this regard. While her fellow Republican senator, Snowe, broke ranks to cast a pro-Constitution vote Wednesday, Collins continued to cast her lot with the Bush administration. It is notable that Collins' Democratic challenger, Congressman Tom Allen, voted against the Military Commissions Act last fall.

Allen's name now tops the list of House co-sponsors of the Habeas Corpus Restoration Act of 2007. The Democrat is, as well, a co-sponsor of a number of other measures designed to renew basic liberties and the rule of law, including the Torture Outsourcing Prevention Act, which would prohibit extraordinary rendition of suspects in U.S. custody, and the aptly named: Restoring the Constitution Act of 2007.

The Collins-Allen race offers Maine voters a stark choice, as well as a rare opportunity to cast a vote for Constitutional renewal -- as Maine Republican Snowe did on Wednesday, while Maine Republican Collins did not.

Perhaps the next time the Senate votes on habeas corpus, Maine will have two senators who favor who will bear true faith and allegiance to their oaths to "support and defend the Constitution of the United States against all enemies, foreign and domestic."

John Nichols' new book is The Genius of Impeachment: The Founders' Cure for Royalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use of the 'heroic medicine' that is impeachment with a call for Democratic leaders to 'reclaim and reuse the most vital tool handed to us by the founders for the defense of our most basic liberties.'"

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