Hold the Habeas

Overheard on Wait Wait Don’t Tell Me this weekend…

When Democrats said that this bill, in stripping detainees of the right of Habeas Corpus, was potentially violating a legal principle that goes back 900 years to the Magna Carta, President Bush responded by saying he didn’t realize the United States was that old.

But here’s the bright side of the whole thing. The bill is a way of reaching out to our enemies. The president has said they hate us for our freedoms, so getting rid of them is sort of a peace offering.

Gotta laugh sometimes to keep from crying, eh?

Listen to the whole show at npr.org and, on a more serious note, don’t forget the fantastic Habeas Schmabeas episode of This American Life. So much for that whole right to a fair trial thing.

1 Response to “Hold the Habeas”

  1. 1 Kathy

    I thought this might interest you.

    Congressional Record: December 5, 2006 (Senate)
    Page S11197-S11199


    Mr. SPECTER (for himself and Mr. Leahy):
    S. 4081. A bill to restore habeas corpus for those detained by the
    United States; to the Committee on the Judiciary.
    Mr. SPECTER. Mr. President, I introduce legislation which is
    captioned “Habeas Corpus Restoration Act of 2006” which I introduced
    on behalf of myself and Senator Leahy.
    The legislation which was adopted earlier this year on war crimes
    struck out habeas corpus jurisdiction of the Federal courts, sought to
    limit jurisdiction of the Federal courts on habeas corpus for
    Guantanamo detainees and others detained on charges of being enemy
    combatants or war criminals.
    There was very extended debate on the issue at that time. The bill
    reported by the Armed Services Committee and backed by the
    administration eliminated the jurisdiction of the Federal courts. I
    offered an amendment to reinstate habeas corpus. It was defeated 51 to
    48. This legislation would reinstate habeas corpus jurisdiction of the
    Federal courts. It is my view that the Federal courts will strike down
    the provisions in the legislation eliminating Federal court
    jurisdiction for a number of reasons. One is that the Constitution of
    the United States is explicit that habeas corpus may be suspended only
    in time of rebellion or invasion. We are suffering neither of those
    alternatives at the present time. We have not been invaded, and there
    has not been a rebellion. That much is conceded.
    There has been an effort made to contend that those constitutional
    rights are maintained with the very limited review which goes to the
    Court of Appeals for the District of Columbia.
    In the limited time I have today I will not go into great detail
    during the course of the argument as it appears in the Congressional
    Record as to why that does not maintain the traditional constitutional
    right of habeas corpus, a right which has existed in Anglo Saxon
    jurisprudence since King John in 1215 at Runnymede. The Supreme Court
    of the United States in the Hamdi case made it plain that these habeas
    corpus rights apply to aliens as well as to citizens.
    The administration has taken the position now that someone who is
    making a charge of having been tortured, which is a violation of U.S.
    law, may not be permitted to disclose the specifics of his
    interrogation which he says constituted torture because al-Qaida will
    find out what our interrogation techniques are and will move to train
    their operatives so they can withstand those interrogations.
    It is unthinkable, in my opinion, to have a system of laws where
    someone who claims to have been tortured cannot describe what has
    happened to him to get judicial relief because al-Qaida may be able to
    educate or train their operatives to avoid those techniques.
    I supported the ultimate legislation on war crimes tribunals because
    it provided for recognition of the Geneva Conventions. It also provided
    for confrontation. It also provided for limitations on interrogation
    It was my view as I expressed it at the time that with the
    severability clause the Federal courts would eliminate the restriction
    on their jurisdiction. But as a precautionary matter, to put the matter
    in issue, this legislation is being introduced at this time.
    I ask unanimous consent that the summary of the Habeas Corpus
    Restoration Act of 2006 be printed in the Record.
    There being no objection, the material was ordered to be printed in
    the Record, as follows:

    Habeas Corpus Restoration Act of 2006

    The bill strikes the new limitations on habeas corpus
    created in the Military Commissions Act of 2006, Public Law
    109-366, 2006 Stat. 3930.
    The MCA added two new habeas provisions–
    (1) A new paragraph in the federal habeas statute, 28
    U.S.C. Sec. 2241(e), that would bar any alien detained by the
    United States as an enemy combatant from filing a writ of
    habeas corpus. The new paragraph was to apply to all pending
    cases “without exception” thereby barring all pending
    habeas corpus applications pending on behalf of Guantanamo
    Bay detainees.
    (2) An entirely new habeas corpus limitation that barred
    any habeas review of military commission procedures. Had this
    bill been passed before the Hamdan v. Rumsfeld case was
    decided, the Supreme Court would not have had jurisdiction to
    review and reject the military commission procedures that
    were at issue. This new habeas limitation was added to
    federal law as 10 U.S.C. Sec. 950j(b).
    The Habeas Corpus Restoration Act would strike these two
    provisions from the law in their entirety, thereby restoring
    the right of aliens detained within U.S. territorial
    jurisdiction (including at Gitmo) to challenge their
    detention via file writs of habeas corpus.
    Because the Military Commissions Act already completely
    repealed and superseded the habeas limitations created by the
    Graham Amendment to the Detainee Treatment Act of 2005, the
    bill would restore the state of play before the DTA.
    Actual effect–The MCA would deprive federal courts of
    jurisdiction to hear the 196 habeas corpus applications
    currently pending on behalf of the detainees at Guantanamo
    Bay, Cuba. This bill would restore jurisdiction and allow
    those cases to be decided on their merits. It would also
    allow habeas corpus challenges to military commission

    Article 1, Section 9, Clause 2 of the United States Constitution

    “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.”

    Select United States Supreme Court Decision Quotes

    In the 2004 Supreme Court decision of Hamdi v. Rumsfeld,
    Justice O’Connor stated,

    [[Page S11198]]

    “All agree that, absent suspension, the writ of habeas
    corpus remains available to every individual detained within
    the United States.”
    Justice O’Connor was unequivocally in stating, “[w]e have
    long since made clear that a state of war is not a blank
    check for the President when it comes to the rights of the
    Nation’s citizens.”
    The Hamdi court made clear that “[i]t is during our most
    challenging and uncertain moments that our Nation’s
    commitment to due process is most severely tested; and it is
    in those times that we must preserve our commitment at home
    to the principles for which we fight abroad.”
    Regarding habeas corpus, Justice O’Connor wrote, “we have
    made clear that, unless Congress acts to suspend it, the
    Great Writ of habeas corpus allows the Judicial Branch to
    play a necessary role in maintaining this delicate balance of
    governance, serving as an important judicial check on the
    Executive’s discretion in the realm of detentions.”
    In 1949, Justice Murphy dissented in Korematsu v. United
    States: “[i]ndividuals must not be left impoverished of
    their constitutional rights on a plea of military necessity
    that has neither substance nor support” . . . “[t]he
    judicial test of whether the Government, on a plea of
    military necessity, can validly deprive an individual of any
    of his constitutional rights is whether the deprivation is
    reasonably related to a public danger that is so `immediate,
    imminent, and impending’ as not to admit of delay and not to
    permit the intervention of ordinary constitutional processes
    to alleviate the danger.”

    CSRTs are not an Adequate and Effective Substitute for Habeas Corpus

    Combatant Status Review Tribunals, commonly referred to as
    “CSRTs,” are not an adequate and effective means to
    challenge detention in accordance with the Supreme Court’s
    decision in Swain v. Pressley (“the substitution of a
    collateral remedy which is neither inadequate nor ineffective
    to test the legality of a person’s detention does not
    constitute a suspension of the writ of habeas corpus.”).
    CSRTs are not adversarial, but consist of a one-sided
    interrogation of the detainee by the tribunal members. The
    proceedings do not comport with basic fairness because the
    individuals detained do not have the right to confront
    accusers, call witnesses, or know what evidence there is
    against them. As Justice O’Connor wrote in her plurality
    opinion in the Hamdi case, “[a]n interrogation by one’s
    captor, however effective an intelligence-gathering tool,
    hardly constitutes a constitutionally adequate factfinding
    before a neutral decisionmaker.”
    According to the September 25, 2006 Judiciary Committee
    testimony of the former U.S. Attorney for the Northern
    District of Illinois, Thomas Sullivan, who has been to
    Guantanamo on many occasions and has represented many
    detainees. Mr. Sullivan cited hearings where individuals were
    summoned before the tribunal, but did not speak the language,
    did not have an attorney, did not have access to the
    information which was presented against them, and continued
    to be detained.
    For example, in the case of Abdul Hadi al Siba’i, a Saudi
    Arabian police officer who came to Afghanistan in August 2001
    to build schools and a mosque, Mr. Sullivan described how Mr.
    Siba’i had no lawyer, spoke through a translator, and was
    read the charges against him, but with no access to the
    underlying evidence. According to Mr. Sullivan, his client
    was returned to Saudi Arabia after a prolonged detention
    without a trial, compensation, or apology. Mr. Sullivan
    received no notice that his client was to be returned to
    Saudi Arabia.

    Mr. President, I ask unanimous consent that the text of the bill be
    printed in the Record.
    There being no objection, the bill was ordered to be printed in the
    Record, as follows:

    S. 4081

    Be it enacted by the Senate and House of Representatives of
    the United States of America in Congress assembled,


    This Act may be cited as the “Habeas Corpus Restoration
    Act of 2006”.


    (a) In General.–Section 2241 of title 28, United States
    Code, is amended by striking subsection (e).
    (b) Title 10.–Section 950j of title 10, United States
    Code, is amended by striking subsection (b) and inserting the
    “(b) Limited Review of Military Commission Procedures and
    Actions.–Except as otherwise provided in this chapter or in
    section 2241 of title 28 or any other habeas corpus
    provision, and notwithstanding any other provision of law, no
    court, justice, or judge shall have jurisdiction to hear or
    consider any claim or cause of action whatsoever, including
    any action pending on or filed after the date of the
    enactment of the Military Commissions Act of 2006, relating
    to the prosecution, trial, or judgment of a military
    commission under this chapter, including challenges to the
    lawfulness of procedures of military commissions under this


    The amendments made by this Act shall–
    (1) take effect on the date of the enactment of this Act;
    (2) apply to any case that is pending on or after the date
    of enactment of this Act.

    Mr. LEAHY. Mr. President, I am pleased to join the chairman of the
    Judiciary Committee and cosponsor the Habeas Corpus Restoration Act of
    2006. This bill would restore the great writ of habeas corpus, a
    cornerstone of American liberty for hundreds of years that Congress and
    the President rolled back in an unprecedented and unnecessary way with
    September’s Military Commissions Act.
    I am also pleased to join Senator Dodd as a cosponsor of the
    Effective Terrorists Prosecution Act of 2006. That bill would likewise
    restore the liberties guaranteed by the writ of habeas corpus. It would
    also correct many of the other very disturbing provisions of the
    Military Commissions Act by narrowing that act’s extremely broad
    definition of “unlawful enemy combatants,” excluding evidence
    obtained by coercion, and allowing defendants to review evidence used
    against them.
    Habeas corpus provides a remedy against arbitrary detentions and
    constitutional violations. It guarantees an opportunity to go to court,
    with the aid of a lawyer, to prove one’s innocence. As Justice Scalia
    stated in the Hamdi case: “The very core of liberty secured by our
    Anglo-Saxon system of separated powers has been freedom from indefinite
    imprisonment at the will of the Executive.” The remedy that secures
    that most basic of freedoms is habeas corpus.
    The Military Commissions Act eliminated that right, permanently, for
    any non-citizen determined to be an enemy combatant, or even
    “awaiting” such a determination. That includes the approximately 12
    million lawful permanent residents in the United States today, people
    who work for American firms, raise American kids, and pay American
    taxes. This new law means that any of these people can be detained,
    forever, without any ability to challenge their detention in federal
    court–or anywhere else–simply on the Government’s say-so that they
    are awaiting determination whether they are enemy combatants.
    I regret that Chairman Specter and I were unsuccessful in our efforts
    to stop this injustice when the President and the Republican leadership
    insisted on rushing the Military Commissions Act through Congress in
    the lead-up to the elections. We supported an amendment which would
    have removed the habeas-stripping provision from the Military
    Commissions Act. It failed by just three votes. I was saddened that the
    bill passed even with this poisonous habeas provision. Since then, the
    American people have spoken against the administration’s “stay the
    course” approach to national security and against a rubber stamp
    Congress that accommodated this administration’s efforts to grab more
    and more power.
    When we debated Chairman Specter’s amendment to remove the habeas-
    stripping provision back in September, I spelled out a nightmare
    scenario about a hard-working legal permanent resident who makes an
    innocent donation to, among other charities, a Muslim charity that the
    Government thinks might be funneling money to terrorists. I suggested
    that, on the basis of this donation and perhaps a report of
    “suspicious behavior” from an overzealous neighbor based on visits
    from Muslim guests, the permanent resident could be brought in for
    questioning, denied a lawyer, confined, and even tortured. And this
    lawful permanent resident would have no recourse in the courts for
    years, for decades, forever.
    Many people viewed this kind of nightmare scenario as fanciful, just
    the rhetoric of a politician. It was not. It is all spelled out clearly
    in the language of the law that this body passed. Last month, the
    scenario I spelled out was confirmed by the Department of Justice
    itself in a legal brief submitted in a Federal court in Virginia. The
    Justice Department, in a brief to dismiss a detainee’s habeas case,
    said that the Military Commissions Act allows the Government to detain
    any noncitizen declared to be an enemy combatant without giving that
    person any ability to challenge his detention in court. This is true,
    the Justice Department said, even for someone arrested and imprisoned
    in the United States. The

    [[Page S11199]]

    Washington Post wrote that the brief “raises the possibility that any
    of the millions of immigrants living in the United States could be
    subject to indefinite detention if they are accused of ties to
    terrorist groups.”
    In fact, the situation is more stark even than the Washington Post
    story suggested. The Justice Department’s brief says that the
    Government can detain any noncitizen declared to be an enemy combatant.
    But the law this Congress passed says the Government need not even make
    that declaration; they can hold people indefinitely who are just
    awaiting determination whether or not they are enemy combatants. It
    gets worse. Republican leaders in the Senate followed the White House’s
    lead and greatly expanded the definition of “enemy combatants” in the
    dark of night in the final days before the bill’s passage, so that
    enemy combatants need not be soldiers on battlefield. They can be
    people who give money, or people that any group of decisionmakers
    selected by the President decides to call enemy combatants. The
    possibilities are chilling.
    The administration has made it clear that they intend to use every
    expansive definition and unchecked power given to them by the new law.
    Last month’s Justice Department brief made clear that any of our legal
    immigrants could be held indefinitely without recourse in court.
    Earlier in November, the Justice Department went to court to say that
    detainees who had been held in secret CIA prisons could not even meet
    with lawyers because they might tell their lawyers about the cruel
    interrogation techniques used against them. In other words, if our
    Government tortures somebody, that person loses his right to a lawyer
    because he might tell the lawyer about having been tortured. A law
    professor was quoted as saying about the government’s position in that
    case: “Kafka-esque doesn’t do it justice. This is `Alice in
    Wonderland.’ ” We are not talking about nightmare scenarios here. We
    are talking about today’s reality.
    We have eliminated basic legal and human rights for the 12 million
    lawful permanent residents who live and work among us, to say nothing
    of the millions of other legal immigrants and visitors who we welcome
    to our shores each year. We have removed the check that our legal
    system provides against the Government arbitrarily detaining people for
    life without charge, and we may well have made many of our remaining
    limits against torture and cruel and inhuman treatment obsolete because
    they are unenforceable. We have removed the mechanism the Constitution
    provides to check Government overreaching and lawlessness.
    This is wrong. It is unconstitutional. It is un-American. It is
    designed to ensure that the Bush-Cheney administration will never again
    be embarrassed by a U.S. Supreme Court decision reviewing its unlawful
    abuses of power. The conservative Supreme Court, with seven of its nine
    members appointed by Republican Presidents, has been the only check on
    the Bush-Cheney administration’s lawlessness. Certainly the outgoing
    rubberstamp Republican Congress has not done it, or even investigated
    it. With passage of the Military Commissions Act, the Republican
    Congress completed the job of eviscerating its role as a check and
    balance on the administration.
    Abolishing habeas corpus for anyone who the Government thinks might
    have assisted enemies of the United States is unnecessary and morally
    wrong. It is a betrayal of the most basic values of freedom for which
    America stands. It makes a mockery of the Bush-Cheney administration’s
    lofty rhetoric about exporting freedom across the globe.
    Admiral John Hutson testified before the Judiciary Committee that
    stripping the courts of habeas jurisdiction was inconsistent with
    American history and tradition. He concluded, “We don’t need to do
    this. America is too strong.” Even Kenneth Starr, the former
    independent counsel and Solicitor General to the first President Bush,
    wrote that the Constitution’s conditions for suspending habeas corpus
    have not been met, and that doing so would be problematic.
    Under the Constitution, a suspension of the writ may only be
    justified during an invasion or a rebellion, when the public safety
    demands it. Six weeks after the deadliest attack on American soil in
    our history, the Congress that passed the PATRIOT Act rightly concluded
    that a suspension of the writ would not be justified. Yet 6 weeks
    before a midterm election, the Bush-Cheney administration and the
    Republican Congress deemed a complete abolition of the writ their
    highest priority. Notwithstanding the harm the administration has done
    to national security with its mismanaged misadventure in Iraq, there
    was no new national security crisis. There was only a Republican
    political crisis. The people have now spoken, and it is time to reverse
    the dangerous choices this Congress made.
    Rolling back the Military Commissions Act’s disastrous habeas
    provision will set the stage for us to approach that issue in a way
    consistent with our needs and our values. We should take steps to
    ensure that our enemies can be tried efficiently and quickly and to
    prevent our courts from being tied up with frivolous suits. But
    abolishing the writ of habeas corpus for millions of legal immigrants
    and others, denying their right to get into court to challenge
    indefinite detainment on the Government’s say-so, is not the answer.
    I hope that others will hear the call of the American people for a
    new direction and work to correct these and other problems with the new
    law, including the gutting of the War Crimes Act, which I was proud to
    help spearhead with strong bipartisan support in 1997.
    I will keep working on these issues until we restore the checks and
    balances that make our country great. We can ensure our security
    without giving up our liberty.

    works cited:

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