http://www.fas.org/irp/congress/2006_cr/s4081.html--------------------------------------------------------------------------------
Congressional Record: December 5, 2006 (Senate)
Page S11197-S11199
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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, ``
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 ``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: ``ndividuals must not be left impoverished of
their constitutional rights on a plea of military necessity
that has neither substance nor support'' . . . ``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, ``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: ``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.
______
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