Speaking of the terms of debate

The Senate bills would still gut things like habeas corpus (the right to be brought before a tribunal and charged publicly with a crime, and so to challenge one's detention).

It isn't just torture or Article 3. The pending bills would remove habeas corpus. That isn't even a matter for compromise. And where are the Democrats on that? Once again selling our birthright for a mess of pottage? I have no doubt the Supreme Court would return it, eventually. But this issue is not just about who wins and who loses, or who's calling the tune of the dance.

This issue is about justice. Equal protection. Due process. Habeas corpus. That last goes back to the Magna Carta, it is part of the great golden thread of Anglo-American jurisprudence:

Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to ...the defence of insanity and subject also to any statutory exception’.

This famous statement of the nature of the legal burden of proof in criminal trials is, in effect, simply a restatement of a fundamental presumption that underpins our criminal justice system namely, that a person is presumed to be innocent until proven guilty. In McIntosh v Lord Advocate [2001] 3 WLR 107, Lord Bingham of Cornhill referred to the judgment of Sachs J in State v Coetzee [1997] 2 LRC 593 where the significance of this presumption was explained. The learned judge said:

‘...the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system’.

And without habeas corpus, the presumption of innocence is completely useless. Without it, we have no reason to believe in our legal system. Without it, we have no legal system at all; just a system of fears, driven by ideologies and opinions.

This is why it is about justice, and the debate must only be about justice.