Latest Major Action: 6/26/2007
Placed on Senate Legislative Calendar under General Orders. Calendar No. 220. Senate Report 110-090 - HABEAS CORPUS RESTORATION ACT OF 2007
http://thomas.loc.gov/cgi-bin/cpquery/?&dbname=cp110&sid=cp110yi67F&refer=&r_n=sr090.110&item=&sel=TOC_29845&II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION
A. HEARING
On May 22, 2007, the Judiciary Committee held a hearing on `Restoring Habeas Corpus: Protecting American Values and the Great Writ,' which examined the public policy and constitutional implications of Congress's decision to eliminate statutory habeas rights for those the U.S. Government deems `enemy combatants.' At the hearing, the former Judge Advocate General of the U.S. Navy, Rear Admiral Donald J. Guter, and William H. Taft IV, former Deputy Secretary of Defense under President George H.W. Bush and a former senior State Department advisor in the current administration, testified that removing the fundamental protection that habeas provides does not make us safer against acts of terrorism, but instead leads us away from American values and the image we have earned as a nation that promotes and lives by the rule of law. Admiral Guter testified that habeas corpus is not a special right; but is instead what we expect for our citizens and military personnel abroad, and what we should extend to all persons. Mr. Taft pointed out that civilian court review of military determinations greatly enhances the proceedings' legitimacy, and that civilian courts are well-positioned to handle--and in fact did handle prior to the MCA--habeas challenges by detainees.
Attorney David B. Rivkin, Jr., testifying against restoring detainees' habeas rights, maintained that the procedures erected by the DTA and MCA are fair because they provide detainees with sufficient judicial process. Two law professors--Orin Kerr of George Washington University and Mariano-Florentino Cuellar of Stanford University--countered this notion, arguing that, in view of recent Supreme Court precedent, Congress may have exceeded its constitutional authority by stripping away habeas rights from the detainees without providing a constitutionally adequate alternative. Professor Cuellar also pointed out that the law currently permits the creation of a `massive unaccountable detention system' that could be used against any one of the more than 12 million U.S. lawful permanent residents, including millions of such persons of Latino origin.
Mr. Rivkin also argued that the CSRTs provide more rights to detainees than what the Geneva Conventions require. But Mr. Taft pointed out that the Geneva Conventions--and the U.S.'s own regulations--require a hearing at or near the time of capture to determine whether the person is in fact a prisoner of war who can lawfully be detained. A hearing at or near the time and place of capture allows for greater accuracy, and cannot be replicated later. Mr. Taft pointed out in written testimony that, even if CSRTs are more elaborate than hearings pursuant to the Geneva Conventions, habeas corpus proceedings' determinations are more reliable than CSRT hearings.
B. LEGISLATIVE HISTORY
On September 27, 2006, Senator Specter introduced an amendment to the Military Commissions Act, Amendment 5087 to S. 3930, striking the MCA's habeas provision. Senator Leahy and seven other senators co-sponsored the amendment. The amendment was briefly debated and then failed on a vote of 48-51 on September 28, 2006.
On December 5, 2006, Senator Specter introduced S. 4081, the Habeas Corpus Restoration Act of 2006, with Senator Leahy as the original cosponsor. This bill, which is identical to the Habeas Corpus Restoration Act of 2007, went slightly further than Amendment 5087, reversing the habeas-stripping provision in the DTA as well as that in the MCA.
On January 4, 2007, Senators Specter and Leahy introduced the Habeas Corpus Restoration Act of 2007. On February 28, 2007, Senator Specter submitted a version of the bill, with Senator Leahy and four other co-sponsors, as Amendment 286 to S. 4, the Improving America's Security Act of 2007. The amendment was ruled non-germane by the chair.
After the Senate Judiciary Committee's hearing on May 22, 2007, the Habeas Corpus Restoration Act was considered by the Committee on June 7, 2007.
The Committee voted 11-8 to report the bill favorably to the Senate, without amendment. 
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