As Matt Bai noted this morning, the dominant story of the past two weeks isn't so much Congress's haggling over Iraq as its frenetic posturing over the now infamous "Petraeus or Betray Us" ad. Published in the Times on September 10th, the ad has provided a welcome distraction for Republicans dismayed by the grim reality of Iraq -- as well as, in a less sanctimonious way, Democrats eager to dodge criticism of their own inability to end the war.
Yet the catchphrase has also obscured the most significant news of all: namely, the Republican maneuvering to block a bill, introduced by Senator Leahy and Senator Specter, that would have restored America's commitment to due process.
To understand why that's so important, we need to go back to this time last year. At the end of last September -- less than two months before the mid-term elections -- a Republican-controlled Congress forced through the Military Commissions Act, which expressly denies detainees the right either to appeal to the Geneva Conventions or to file a writ of habeas corpus. As a result of those provisions, any person the military now classifies as an "alien unlawful enemy combatant" has no legal recourse outside the military itself. Thanks to the MCA, in other words, America's avowed commitment to universal due process officially went out the window.
The Leahy-Specter proposal sought to change that. Entitled "The Habeas Corpus Restoration Act," the bill would have allowed us to defend our sovereignty without compromising our principles. The military would still have been able to capture, detain, and even try suspected terrorists. But because the bill would have restored habeas corpus, there also would have been judicial oversight.
Yet the bill didn't even come to a vote. Forty-two Republican Senators, along with Senator Lieberman, killed the measure outright. Consequently the MCA was left intact -- and with it, American due process was left in abeyance.
Which brings me to my main point: America's failure in Iraq is less significant than its failure to uphold due process. To say that, of course, is not to diminish the national tragedy that our involvement there has become. Rather, it's merely to say that however disastrous Iraq may be, our operations in Iraq will only ever be a single instance of American foreign policy. Accordingly, our failures there will also only ever represent the failure of a specific strategy in a specific place -- not, that is, the failure of American principles more generally.
By contrast, the MCA's restriction of due process strikes at the very core of American legitimacy. The United States, after all, is the world's most thoroughly post-ethnic nation. What that means isn't merely that Americans define themselves by an idea rather than a bloodline. It also means that the validity of American governance rests not on how well it sustains a given culture or race, but how well it sustains the principles which, in a very fundamental sense, are America.
By contradicting those principles, the MCA effectively calls into question the legitimacy of American democracy. After all, hand-in-hand with our commitment to freedom is our belief that all individuals have an inalienable right to the due process of law. You simply can't have one without the other. Yet in denying habeas corpus, the MCA disavowed at once our commitment to both freedom and due process alike.
In the end, the fact that the MCA threatens what it means to be American is precisely why it needs to be either amended or repealed. Our failures in Iraq will never represent a complete betrayal of America, because American identity extends well beyond any single policy, no matter how regrettable. By contrast the MCA represents a thoroughgoing betrayal. To suspend due process is to suspend an integral aspect of American identity; it throws the entire idea of America into doubt.
Last week, the Senate had a golden opportunity to restore that idea in full. How reprehensible, then, that they were too distracted to seize it.
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