Leading Judiciary Senators Plan Bipartisan Amendment To Restore Habeas Protections To DoD Authorization Bill

July 10 - Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.) took to the Senate floor today to urge senators to adopt an amendment they plan to offer later this week that would restore the habeas corpus protections stripped as a result of last year’s Military Commissions Act.

The Specter-Leahy Amendment (No. 2022) to the National Defense Authorization Act of 2007 builds off of a bill the senators introduced on the first day of this session that would restore these basic safeguards to roughly 12 million legal permanent residents of the United States. The bill was reported out of the Judiciary Committee on a bipartisan vote last month.

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Below is Chairman Leahy’s statement on the amendment, followed by the closed captioning transcript of the floor remarks of Leahy and Specter, and comments from Republicans, military officials and faith leaders supporting the effort to restore habeas corpus protections.

Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
On Amendment 2022, The Habeas Corpus Restoration Act Of 2007
To S. 1547, The National Defense Authorization Act
July 10, 2007

This week, the Senate considers the National Defense Authorization Act. I am proud to join Senator Specter in introducing as an amendment to that bill the Habeas Corpus Restoration Act of 2007. I thank Senator Specter for his strong and consistent leadership on this issue. I hope all Senators will join us in restoring basic American values and the rule of law, while making our Nation stronger.

Last year, Congress committed an historic mistake by suspending the Great Writ of habeas corpus — not just for those confined at Guantanamo Bay, but for millions of legal residents in the United States. The Senate Judiciary Committee’s hearing in May on this bill illustrated the broad agreement among people of diverse political beliefs and backgrounds that the mistake committed in the Military Commissions Act of 2006 must be corrected. This Habeas Corpus Restoration Act of 2007 has 25 cosponsors, and the Senate Judiciary Committee passed it last month on a bipartisan basis.

Habeas corpus was recklessly undermined in last year’s Military Commissions Act. Like the internment of Japanese Americans during World War II, the elimination of habeas rights was an action driven by fear, and it was a stain on America’s reputation in the world. This is a time of testing. Future generations will look back to examine the choices we made during a time when security was too often invoked as a watchword to convince us to slacken our defense of liberty and the rule of law.

The Great Writ of habeas corpus is the legal process that guarantees an opportunity to go to court and challenge the abuse of power by the Government. It is enshrined in the Constitution, and stalwart conservative Justice Antonin Scalia has recently referred to it as “the very core of liberty secured by our Anglo-Saxon system of separated powers.” The Military Commissions Act rolled back these protections by eliminating that right, permanently, for any non-citizen labeled an enemy combatant. In fact, a detainee does not have to be found to be an enemy combatant; it is enough for the Government to say someone is “awaiting” determination of that status.

The sweep of this habeas provision goes far beyond the few hundred detainees currently held at Guantanamo Bay, and it includes an estimated 12 million lawful permanent residents in the United States today. These are people who work and pay taxes, people who abide by our laws and should be entitled to fair treatment. Under this law, any of these people can be detained, forever, without any ability to challenge their detention in court. Stanford Professor Mariano-Florentino Cuellar called this an issue about which the Latino community, which encompasses so many of the nation’s legal permanent residents, must be concerned.

Giving the Government such raw, unfettered power should concern every American. Since last fall, I have been describing 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 secretly suspects of ties to terrorism. I suggested that, on the basis of this donation and perhaps a report of “suspicious behavior” from an overzealous neighbor or a cursory review of library records, this permanent resident could be brought in for questioning, denied a lawyer, and confined indefinitely. Such a person would have no recourse in the courts for years, for decades, forever.

Many people viewed this kind of nightmare scenario as fanciful. It was not. In November, that scenario was confirmed by the Department of Justice itself in a legal brief submitted in a federal court in Virginia. They asserted that the Military Commissions Act allows the Government to detain any non-citizen designated 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 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.”

That 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 court decisions 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 this Administration’s lawlessness. This Supreme Court, and other conservative federal courts, and recently even military judges, have repeatedly overturned the lawless systems set up by this Administration governing detainees.

Many have hoped that the courts will come to the rescue again on the issue of habeas corpus. With the continued drift of the Supreme Court toward endorsing greater executive power, we cannot count on their intervention. Congress cannot and must not outsource its moral responsibility.

We all want to make America safe from terrorism. But I implore those who supported this change to think about whether eliminating habeas truly makes America safer in the world, and whether it comports with the values, liberties, and legal traditions we hold most dear.

Top conservative thinkers like Professor Richard Epstein, and David Keene, head of the American Conservative Union, agree that this change betrays centuries of legal tradition and practice. Professor David Gushee, head of Evangelicals for Human Rights, submitted a declaration calling the elimination of habeas rights and related changes “deeply lamentable” and “fraught with danger to basic human rights.” General Colin Powell recently advocated habeas rights for detainees, asking, “Isn’t that what our system’s all about?”

Perhaps most powerful for me was the testimony of Rear Admiral Donald Guter, who was working in his office in the Pentagon as Judge Advocate General of the Navy on September 11, 2001, and saw first hand the effects of terrorism. His credibility is unimpeachable when he says that denying habeas rights to detainees endangers our troops and undermines our military efforts.

In testimony to the Committee, Admiral Guter wrote, “As we limit the rights of human beings, even those of the enemy, we become more like the enemy. That makes us weaker and imperils our valiant troops, serving not just in Iraq and Afghanistan, but around the globe.”

He was right. Whether you are an individual soldier, or a great Nation, it is difficult to defend the higher ground by taking the lower road. The world knows what our enemies stand for. The world also knows what this country has tried to stand for and live up to – in the best of times, and the worst of times.

Now, as we work to reauthorize the many programs that compose our valiant armed forces, it is the right time to heed the advice of Admiral Guter and so many others of our top military lawyers who tell us that eliminating basic legal rights undermines our fighting men and women; it does not make them stronger. And the elimination of basic legal rights undermines, not strengthens, our ability to achieve justice.

It is from strength that America should defend our values and our way of life. It is from the strength of our freedoms, our Constitution, and the rule of law that we shall prevail. I hope all in the Senate, Republicans and Democrats, will join us in standing up for a stronger America, for the America we believe in, and support the Habeas Corpus Restoration Act of 2007.

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Habeas Corpus Restoration Act of 2007
Republicans, Military Officials and Faith Leaders Support Bipartisan Bill

Colin Powell – June 10, 2007, “Meet the Press”

“Guantanamo has become a major, major problem for America’s perception as it’s seen, the way the world perceives America. And if it was up to me, I would close Guantanamo not tomorrow, but this afternoon. I’d close it.”

“And I would not let any of those people go. I would simply move them to the United States and put them into our federal legal system. The concern was, ‘Well, then they’ll have access to lawyers, then they’ll have access to writs of habeas corpus.’ So what? Let them. Isn’t that what our system’s all about? And, by the way, America, unfortunately, has two million people in jail all of whom had lawyers and access to writs of habeas corpus. And so we can handle bad people in our system. And so I would get rid of Guantanamo and I’d get rid of the military commission system and use established procedures in federal law or in the manual for courts-martial. I would do that because I think it’s a more equitable way to do it and it’s more understandable in constitutional terms. I would always—I would also do it because every morning I pick up a paper and some authoritarian figure, some person somewhere is using Guantanamo to hide their own misdeeds.”

Colin Powell is a former Chairman of the Joint Chiefs of Staff and Secretary of State

Kenneth Starr – September 24, 2006, Letter to the Senate Judiciary Committee

“Although S. 3930 contains many laudable improvements to military commissions procedure, section 6 of the bill effectively bars detainees at the U.S. Naval Base at Guantanamo Bay, Cuba from applying for habeas corpus review of their executive detention. I am concerned that limitation may go too far in limiting habeas corpus relief….”

“Article 1, section 9, clause 2 of the United States Constitution provides that ‘[t]he 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.’ The United States is neither in a state of rebellion nor invasion. Consequently, it would problematic for Congress to modify the constitutionally protected writ of habeas corpus under current events.”

“Although no one wants the War on Terror to be litigated in the courts, Congress should act cautiously to strike a balance between the need to detain enemy combatants during the present conflict and the need to honor the historic privilege of the writ of habeas corpus.”

Kenneth Starr is a former federal judge on the D.C. Circuit Court of Appeals and current Dean of Pepperdine University’s School of Law

Richard A. Epstein – May 17, 2007, Letter to Senator Arlen Specter

“I am writing this short letter to you to express my strong support for S. 185, which seeks in a sensible fashion to undo much of the serious damage to our constitutional structure that has been wrought by the Military Commissions Act of 2006, insofar as it removed all of the traditional protections that the writ of Habeas Corpus long supplied to individuals, citizens and aliens alike, who seek to challenge the legality of their detentions before an independent federal judge.”

“As written, this provision draws no distinction among various kinds of aliens. Those who are lawfully in the United States, even as permanent aliens, are treated the same as enemy combatants found in uniform abroad.”

Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School

David A. Keene – May 21, 2007, Statement for the record for the Senate Judiciary Committee

“Earlier this year, I was pleased to join with a broad, bipartisan group of more than forty-five legal and policy experts in a statement urging restoration of the habeas jurisdiction stripped by the MCA.”

“Although I agree that our government must and does have the power to detain foreign terrorists to protect national security, repealing federal court jurisdiction over habeas corpus does not serve that goal. It is crucial that we maintain habeas corpus to ensure that we are detaining the right people and complying with the rule of law.”

“Therefore, I urge Congress to restore the habeas corpus jurisdiction that was eliminated by the Military Commissions Act because of who we are and what this great nation represents. Congress should act to preserve our constitutional system of checks and balances, and restore this established and traditional avenue of judicial review.”

David A. Keene is the Chairman of the American Conservative Union and Co-Chair of the Constitution Project’s Liberty & Security Initiative

Dr. David P. Gushee – May 18, 2007, Letter to the Senate Judiciary Committee

“Speaking as an individual, as a Christian citizen, I support the effort you are making to restore habeas corpus for detainees in US custody. I urge you to lead in the reconsideration of the full panoply of legal and moral issues raised here. And in light of the fairly wide support offered within the evangelical community to “An Evangelical Declaration Against Torture: Protecting Human Rights in an Age of Terror,” I believe that my convictions on this issue represent the views of millions of evangelical Christians.”

Dr. David P. Gushee is University Fellow and Graves Professor of Moral Philosophy at Union University and Chair of Evangelicals for Human Rights

Former U.S. Attorneys and Justice Department Officials – April 30, 2007, Letter to Members of the Senate and House of Representatives

“The right of habeas corpus was enshrined in the Constitution by our Founding Fathers so that anyone the Executive detains may challenge the lawfulness of his detention. It is a vital part of our system of checks and balances, and an important safeguard against mistakes which may be made even by well-intentioned government officials. The rights the American justice system provides to those imprisoned promote the credibility and validity of the system itself. If the men at Guantanamo are not provided these rights, a cloud will always remain over the validity of their detention.”

Among others, this letter was signed by former Congressman and U.S. Attorney, Robert L. Barr Jr. of Georgia, and former Attorney General Janet Reno.

Former High Ranking Military Lawyers – March 7, 2007, Letter to the Senate Judiciary Committee

“In discarding habeas corpus, we are jettisoning one of the core principles of our nation precisely when we should be showcasing to the world our great respect for the rule of law and basic rights. These are the characteristics that make our nation great. These are the values that our men and women in uniform are fighting to preserve.”

“The denial of habeas corpus also threatens to harm our national interests by placing American civilians at risk. Imagine if an enemy of the United States arrested an American citizen – a nurse or interpreter or employee of a military contractor – because they once provided assistance to our armed forces, and held that American without charge or opportunity to challenge their detention in court. We would be outraged, and rightly so. Yet, this is the precedent we are setting by holding without charge those deemed to have aided the enemy and denying them access to a court that could review the basis of their detention.”

“A judicial check on the decision to detain is in the best tradition of the United States – a tradition that ensures accountability, accuracy, and credibility. Restoring habeas corpus will help ensure that we are detaining the right people and showcase to the world our respect for the rule of law and the values that distinguish America from our enemies.”

Along with others, this letter was signed by Rear Admiral Don Guter, USN (Ret.) and Rear Admiral John D. Hutson, USN (Ret.), both of whom have served as the Navy’s Judge Advocate General

Former Federal Judges – September 2006, Letter to Members of Congress

“[D]epriving the courts of habeas jurisdiction will jeopardize the Judiciary’s ability to ensure that Executive detentions are not grounded on torture or other abuse. Senator John McCain and others have rightly insisted that the proposed military commissions established to try terror suspects of war crimes must not be permitted to rely on evidence secured by unlawful coercion. But stripping district courts of habeas jurisdiction would undermine this goal by permitting the Executive to detain without trial based on the same coerced evidence.”

“For two hundred years, the federal judiciary has maintained Chief Justice Marshall’s solemn admonition that ours is a government of laws, and not of men. The proposed legislation imperils this proud history by abandoning the Great Writ to the siren call of military necessity. We urge you to remove the provision stripping habeas jurisdiction from the proposed Military Commissions Act of 2006 and to reject any legislation that deprives the federal courts of habeas jurisdiction of pending Guantanamo detainee cases.”

Along with other former U.S. District and Circuit Appeals Court Judges, the signers include former U.S. District Judge and FBI Director William Sessions and former Third Circuit Judges John Gibbons and Timothy Lewis.

Source: Senate Judiciary Committee Chairman Patrick Leahy