Further Attack on Habeas

This is, in my mind, probably the single most important issue of our time. With the Repugs in charge of both Congress and the WH, and increasingly, of the Court, we are seeing a steady whittling of our rights, and an increasing 'easing' of the barriers prosecutors have to jump to make and prosecute a case. Admittedly, I'm of the 'better a hundred guilty men....' school, but as noted earlier, if they can do this to (American Citizen) Jose Padilla, they can do it do you and me.

There are provisions in the new PATRIOT Act bill that further weaken habeas in federal law. Slate has a good column delineating the problems and flaws of the law. (Emphasis mine)

What's driving the effort to close off federal courts from prisoners? Have prisoners been exploiting legal loopholes to cut short their sentences? Hardly. The number of federal appeals brought by prisoners—and the success rate of those appeals—has steadily dropped for the last five years. Federal judges themselves decided as a body to oppose the current efforts in Congress to cut back further on prisoners' appeals.

Still, some lawmakers are determined to bend the courts to their will. If they really get their way, they'll eviscerate the centuries-old right of habeas corpus review as we know it—leaving all of us increasingly subject to the unilateral power of executive detention. Why stop with Jose Padilla or Ali Saleh Kahlah al-Marri if Congress is ready to let prosecutors lock up anyone and keep them there?

... In 1969, the Warren Court called the writ "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." But by the 1980s, the Rehnquist Court was grumbling about "abuse of the writ." Former Chief Justice William Rehnquist objected that death-row inmates were bringing appeal after appeal to drag out their cases and argued that habeas review encouraged federal judges needlessly to second-guess state courts. He didn't have much evidence. But he convinced a majority of his colleagues to limit the writ. In 1989 in Teague v. Lane, for example, the court excluded habeas claims based on new constitutional rules of civil procedure; in other cases the justices whittled away at prisoners' rights to file successive habeas petitions. ... As for the habeas rights of run-of-the-mill criminal defendants, the proposed revision to the Patriot Act would take from the federal courts, and give to the attorney general, the authority to decide that a state has a system for providing "competent counsel" for death-row prisoners. A state that is so designated may then speed up and limit federal habeas review of its death-row cases. If Congress lets the country's chief prosecutor decide which states qualify, then legislators would be shoving the courts out of the way precisely because they are a neutral arbiter with an institutional concern about procedural fairness. ... For right-wing lawmakers and prosecutors, the federal courts are sometimes an irritant. Though the ranks of the judiciary are increasingly conservative, the courts can't always be relied on to do the bidding of the president or of prosecutors. That, of course, is what the courts are for. The Constitution insulates judges from partisan politics to ensure that they will be free to safeguard the rights of the powerless. At his confirmation hearings in September, Chief Justice John Roberts said, "If the Constitution says that the little guy should win, the little guy's going to win in court before me." But if Congress has its way, the little guy will never get into the courtroom.