To Senate Dems: If Republicans Won't Allow an Up or Down Vote on Habeas Corpus, Don't Allow an Up or Down Vote on Mukasey Attorney General Confirmation

05/25/2011 12:15 pm ET
  • Miles Mogulescu Entertainment attorney, producer, writer and political activist

As public approval of Congress sinks to 11% (less than half of Pres. Bush record low 24%), it's time for Congressional Democrats to start playing hardball if they are to accomplish anything against a tough and wily Republican minority.

On September 19, Senate Republicans fillibustered a bill--supported by 56 out of 100 Senators--to restore the Constitutional right of Habeas Corpus. Although 56 Senators supported the restoration of Habeas Corpus, the votes of 42 Republicans plus Joe Lieberman prevented an up or down vote on the Senate floor.

The right of Habeas Corpus means that the King (or the President) cannot lock people up indefinitely without a court review. It's a fundamental liberty that dates back as far as 12th century England and was considered so important by the Founders that it was enshrined in Article 1 of the United States Constitution. Last year, the then-Republican majority Congress passed an act eliminating the right of Habeas Corpus for non-Americans whom the President declares "enemy combatants". The filibustered bill would have restored the right of Habeas Corpus.

Now President Bush and Senate Republicans want a quick Senate vote to confirm Bush's nominee Michael Mukasey as Attorney General to replace the disgraced Alberto Gonzales. Democrats seem in a big hurry to oblige, perhaps on the theory that--despite Mukasey's approval of secret warrants to detain Muslims and hold them in preventive detention after September 11th and despite his refusal to give a clear answer to Sen. Russ Feingold on whether the President has the right to order a violation of Federal surveillance law--he's the least bad alternative that they're likely to get out of the Bush administration. But to rush through his confirmation because he's not quite as bad as Alberto Gonzales, as Sen. Chuck Schumer seems to want to do, is to set the bar of justice incredibly low.

Instead of rushing to oblige President Bush, the Senate Democrats need to start playing hardball with the Republicans and be as clever at using Senate rules to accomplish their goals as the Republicans have been. Here's a quid pro quo: Until the Republicans allow an up or down vote on restoring Habeas Corpus and President Bush signs the Bill, the Democrats will not allow an up or down vote on the Mukasey nomination to come to the Senate floor.

In exchange for confirming a new Republican Attorney General, the Democrats should insist on restoring some of the constitutional rights that were abridged under the last Attorney General. If the Republicans won't do this, the nation will survive for a while with the office of Attorney General vacant. In fact it will survive a lot better than it will with our Constitutional liberties continuing to be abridged.

Of course to do this, the Democratic leadership will need to have the courage to stand before the American people and say that tearing up the U.S. Constitution is not the way to combat terrorism--In fact, if killing 3,000 Americans (including my cousin) is enough get us to destroy our own liberty, then the people who flew those planes into those buildings are winning. The Democratic leadership would have to be willing to stand up to Republican attacks that defending the Constitution means that they are weak on national security and fight back. In light of the Democratic leadership caving to Pres. Bush on pending legislation to authorize wiretaps without individual warrants, as required by the Constitution, it's hard to be that hopeful.

But unless Congressional Democrats show some strength and stand on principal, the public's respect for the Democratic Congress will continue to be even more dismal than their respect for President Bush.