01/16/2007 09:37 pm ET | Updated May 25, 2011

Restoring Habeas Corpus with Bloggers & Blink Tanks

Just before its implosion last November, the Republican Congress passed the Military Commissions Act (MCA), one of the worst legislative setbacks to human rights policy since World War II. The law dilutes restrictions against torture; provides new immunity for war criminals; eliminates habeas corpus, the sacrosanct right to go to court and challenge government detention, for US residents; and authorizes rigged military trials for people captured on and off the battlefield, without any oversight by American courts.

But the public barely noticed because Congress approved the sweeping legislation with no hearings in a seven-day rush before the midterm elections. Some Democrats in the new Congress say they will roll back the law. Yet they are under pressure instead to address the Iraq War and the requests of their top interest groups, which rarely focus on constitutional rights. Some Democrats want to avoid the entire issue, arguing that because Bush will veto any reforms, they should just hope the Supreme Court finds the law unconstitutional. (This timid logic was recently outlined by an anonymous Democratic Senate staffer who told the The New Yorker that "we're basically leaving it up to the courts" instead of confronting Bush.) But there is one progressive group with the political influence, financial clout and policy expertise to put constitutional rights on the Congressional agenda: the emerging network of liberal bloggers, netroots activists and blink tanks--blogs that function as online think tanks--that have been doggedly fighting the Bush Administration's six-year assault on the Constitution.

Many influential liberal bloggers are turning their attention to repealing the MCA. Bob Fertik, a blogger and founder of ImpeachPAC, a political action committee that raised more than $75,000 for House candidates who support impeachment hearings for Bush and Cheney, is one of many activist bloggers arguing that constitutional rights should top the "netroots legislative agenda." When one liberal website recently asked more than 400 online activists to vote on their preferred legislative priorities for Democrats, restoring habeas corpus ranked first--ahead of Iraq withdrawal and impeachment. During recent live chats with readers of Daily Kos, the top liberal blog, Democrats Chuck Schumer and John Edwards heard several pleas to repeal the MCA. One activist told Schumer, who serves on the Judiciary Committee, that while the election was encouraging, Democratic constituents were counting on the Senate to pass legislation "so that habeas corpus can be restored and all loopholes that allow torture [will] be closed."

Yet unlike political campaigns, which turn on mass opinion, the fate of Congressional legislation often depends on the opinions of a small group of political and media elites. Members of Congress, their staffs, Washington reporters and policy experts from top think tanks often determine the conventional wisdom on what issues Congress should tackle, which proposals are "serious" and what legislation is "doable." These elites follow popular blogs for the political pulse, but it is hard to imagine them scouring Daily Kos diaries for technical policy guidance. So even if Congressional staff and opinion leaders notice that habeas corpus is a big issue on the Internet left, that alone does not mean that repealing the MCA will be considered an achievable priority. If the netroots want to make that happen, a different discourse is necessary to persuade Beltway elites.

A disparate group of policy wonks, writing long posts on websites that garner a sliver of the audience of the top blogs, have been developing such a discourse. If Daily Kos functions as an online town hall meeting, with Q&A sessions for politicians and speeches by community activists, blink tanks are online think tanks, with proposals from credentialed experts and legislative discussions that assume deep and even technical knowledge of readers. These blink tanks tend to draw a small audience of people who are very interested in policy, including Congressional staff, Washington reporters and other influentials.

In the fifteen months since attorney Glenn Greenwald started his policy blog Unclaimed Territory, it has been cited by the Washington Post, the New York Times and even Senator Russ Feingold, during his hearings on the proposed censure of President Bush. It has also opened doors for Greenwald to meet with the staffs of seven US senators to discuss intelligence policy and strategies to halt the Bush Administration's abuse of presidential power. "I know that senators and their staffers listen to things that are said on the blogosphere," he explains, both because they want to gather "knowledge" and "curry favor with bloggers." Greenwald's top legislative goal for the new Congress is repeal of the MCA, but he thinks the most realistic objective for the netroots is specifically restoring habeas corpus. Only fifty-one senators voted to repeal habeas corpus last year, and several of them have now been replaced by Democrats, so the votes may already be there.

Another influential blink tank is Balkinization, which posts detailed essays about human rights, torture, constitutional law and presidential power from a distinguished group of Ivy League law professors, including former Clinton Justice Department official Marty Lederman. The site is impressively thorough, featuring technical legal reviews of pending legislation; stinging rebukes of the Bush Administration's human rights abuse; and frank criticism of oversight failures by Congressional leaders from both parties. Jack Balkin, professor of constitutional law at Yale and founder of the school's Information Society Project, argues that Internet speech plays a special role in public debates by "routing around" traditional media gatekeepers, without actually displacing them. That means legal experts can blog to publicize their views of legislation without relying on a reporter's summary, and reporters draw on the blogs for ideas and analysis. Balkinization was referenced on the Senate floor, in fact, by the man who is believed to be the best hope for rolling back the MCA, Senator Chris Dodd.

Dodd, one of the most liberal foreign policy voices in the Senate, has introduced the "Effective Terrorists Prosecution Act" to repeal key provisions of the MCA, including narrowing the Administration's vague definition of enemy combatants, banning trial evidence extracted through torture or coercion, revoking Bush's authority to "interpret" the Geneva Conventions to allow practices amounting to torture and restoring habeas corpus. Dodd's father served as a prosecutor at Nuremberg, and the Senator has long argued that human rights and fair trials are fundamental to the United States' moral authority. His spokeswoman says the bill is one of his "top priorities" this year.

Another senior Democratic staffer on Capitol Hill told me that members of Congress increasingly look to blogs to see which issues are important to their constituents. While lamenting that some Democratic incumbents have tried to avoid human rights issues for fear of a political backlash, he said "a sustained push by blogs and Internet activists groups like MoveOn" will prevent Democrats from "running away from these issues."

In that sense, the Democrats and this emerging netroots network essentially face the same question: What should they do with their new power? Will Congress live in Bush's shadow, reacting to his agenda and prematurely yielding in fear of his veto, or confront the six-year attack on the Constitution? Will the netroots maintain the mentality of a fluid campaign opposition or evolve into a significant force in politics and policy with an organized legislative agenda?

The answers may determine whether last year's hasty destruction of the 700-year-old Great Writ of habeas corpus--among other basic rights--was merely the last shameful act of a corrupt Congress headed for defeat, a mistake swiftly corrected by a new Congress with a new public mandate; or whether it constituted another blow to the fundamental tenets of the United States, perpetuated by its President and tolerated by its Congress, with ramifications that will long outlive the current era.

Ari Melber, a former legislative aide in the U.S. Senate, writes for, where this column first appeared.