“Lock ‘Em Up, Throw Away The Key”

            Earlier this week I published an op-ed in The Boston Globe discussing the ways in which the Senate Judiciary Committee can enforce compliance with its subpoenas. That Committee has been investigating whether the Bush White House improperly fired a number of United States attorneys because those attorneys were reluctant to pursue politicized prosecutions, or were otherwise not exercising fidelity to the Republican Party agenda. (I personally believe that what’s become known as “the U.S. Attorneys scandal” is probably much ado about very little, given the extraordinary amount of discretion the President has in naming U.S. Attorneys, but this does not diminish the Senate’s right, and power, to inquire and investigate the matter.)

In recent years, the Senate has asked the Department of Justice—controlled by the executive branch—to enforce subpoenas and citations for contempt of Congress. I suggested that the Senate should simply bypass that procedure, instead using its inherent powers to hold the likes of White House advisors Harriet Miers and Joshua Bolten in contempt not only for refusing to answer questions, but moreover for the effrontery of failing to even show up! Under the ancient framework of legislative privilege and powers, the Senate could simply dispatch its Sergeant-at-Arms to arrest the recalcitrant witness and put him/her in the jail cell in the Capitol Building until testimony is forthcoming.

            I received a number of angry communications from fellow civil libertarians (and some administration partisans not so much interested in the civil liberties issue) excoriating me for suggesting that a witness should be convicted and locked up for contempt without a traditional federal court trial, but simply by a vote of the “kangaroo court” known as the United States Senate. These critics are misreading the issue at work here, because they don’t fully understand the procedure involved. Once a witness is arrested and locked up for contempt—with such incarceration aimed at coercing compliance with the legislative subpoena—that witness is not without recourse to judicial relief. The good old United States Constitution contains its much-honored guarantee of the ancient writ of habeas corpus, which allows a person unlawfully held to test his/her detention in the federal courts. The Constitution’s Art. I, Sec. 8, clause 2 reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” At that point, the courts would be able to rule on whether the equally ancient “inherent contempt” power of the legislative branch remains viable and, if so, what procedural protections must be granted to the recalcitrant witness.

            Under these circumstances, one would hope that All the President’s Men (and Women) might gain a renewed respect for habeas corpus, which they’ve spent so much time and energy seeking to destroy.


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