On Dec. 5, Senators Arlen Spector (R-PA) and Patrick Leahy (D-VT), the outgoing and incoming chairs of the Senate Judiciary Committee, introduced a bill to Congress that would restore habeas corpus jurisdiction.[1]  --  "The bill strikes the new limitations on habeas corpus created in the Military Commissions Act of 2006," said Sen. Specter.  --  Sen. Leahy said of the "great writ of habeas corpus" that it has been a "cornerstone of American liberty for hundreds of years that Congress and the President [it] rolled back in an unprecedented and unnecessary way with September's Military Commissions Act," which he called "poisonous."  --  Referring to the Nov. 7 elections, Sen.Leahy said:  "The people have now spoken, and it is time to reverse the dangerous choices this Congress made. . . p;. 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." ...

1.

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

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

http://www.fas.org/irp/congress/2006_cr/s4081.html

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 techniques.

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 procedures.

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

HAMDI

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."

KOREMATSU

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 SUSBTITUTE 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,

SECTION 1. SHORT TITLE.

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

SEC. 2. RESTORATION OF HABEAS CORPUS FOR THOSE DETAINED BY THE UNITED STATES.

(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 following: "(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 chapter.''

SEC. 3. EFFECTIVE DATE AND APPLICABILITY.

The amendments made by this Act shall --

(1) take effect on the date of the enactment of this Act; and

(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: "Kafkaesque 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.