Sherry Chandler

[Further update: Blinding Justice, an editorial in the New York Times for November 17:

There was much discussion last week about the Senate's attempt to strip Guantánamo detainees of habeas rights. The effort to weaken habeas rights for ordinary American prisoners has drawn far less attention, but there is a real danger that this law will be passed. Even if it is not, its supporters may simply add parts of it to other bills as amendments.]

[Update: The bill passed yesterday, according to the Washington Post, "would codify the treatment of military detainees and establish new legal rights for terrorism suspects. One of those provisions, sponsored by Sen. John McCain (R-Ariz.), would establish strict guidelines for interrogation of suspected terrorists. Another would dramatically alter U.S. policy for treating captured terrorism suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights."

The one objection to the compromise came from Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). He denounced the measure as "untenable and unthinkable," because he said it would eliminate Supreme Court jurisdiction over the legal treatment of detainees.

Last week, Graham won narrow Senate approval of a harsher amendment that would deny detainees in military prisons such as Guantanamo Bay, Cuba, virtually all access to federal courts -- access that had been granted by the Supreme Court. But Graham decided to compromise with Levin, hoping to win broader approval.

The final version would grant detainees sentenced to death or at least 10 years in prison an automatic review by the U.S. Court of Appeals for the District of Columbia Circuit. The court would be able to determine guilt or innocence or the constitutionality of a military trial. Detainees given lesser sentences could also petition the court for a review.]

I am not a historian and I am a pacifist so I am venturing way out on a very shakey limb here but

I am coming to think that most wars are lost in the aftermath — I think that’s called winning the war and losing the peace. We are certainly losing the “peace” in Iraq. And I think an argument could be made that we lost our own Civil War in the Reconstruction Period — the peace — that followed. The union is still intact but if you take the red state/blue state dichotomy seriously it sometimes seems pretty tottery. The South is rising again in its ugliest form. We may yet practice a kind of de facto slavery. Katrina raised that question most graphically.

“Prisoners of the Senate,” an editorial in the NYTimes yesterday by Anthony Lewis addresses one of the errors that was made after the Civil War:

AFTER the Northern victory in the Civil War, laws passed by Congress during the era of Reconstruction imposed military governments on the former Confederate states. A Mississippi editor, William H. McCardle, was arrested by the military and charged with publishing incendiary and libelous articles. He was held for trial before a military commission. But he went to a federal court and sought his release on a writ of habeas corpus, arguing that military rule of civilians was unconstitutional.

When McCardle lost in the trial court, he appealed to the Supreme Court, as the statute allowed. The Supreme Court agreed to decide the case and heard argument on it. Critics of the Reconstruction system thought, on the basis of recent decisions, that the court was about to return the South to civilian government.

But before the Supreme Court could hand down its decision, the Radical Republicans who controlled Congress repealed the law that allowed McCardle to bring forward his habeas corpus appeal. The justices then held that they had no power to decide the case. They dismissed the appeal. Military rule of the Southern states continued.

Ex Parte McCardle, as the case is called, was decided in 1869. Ever since, most legal scholars have regarded it as a terrible blot on the constitutional history of this country: a decision that Congress could thwart a test of an imprisonment’s lawfulness even after the Supreme Court had taken the case.

The parallels to the current situation are obvious, just as they are obvious in George Clooney’s “Good Night and Good Luck.” McCarthyism played fast and loose with habeas corpus, and last week the Senate passed the Graham amendment that takes habeas corpus away from the prisoners at Guantanamo Bay, just as the Supreme Court has agreed to hear their cases.

The differences are also obvious. None of these situations can be summed up in a few hundred words on a blog. Yet it also seems obvious to me that it is as vital to win the philosophical war as to win the physical one. That we can’t win the war on the ground unless we win the war for hearts and minds. To bring back old echoes: The whole world is watching.