Arlen Specter: Senator Specter Speaks On The Senate Floor Regarding Habeas Corpus

July 10th, 2007 -- Washington, D.C. - Today, U.S. Senator Arlen Specter (R-Pa), ranking member of the Senate Judiciary Committee, spoke on the floor of the Senate regarding habeas corpus.

A copy of his remarks are below:

Mr. President, I thank my distinguished colleague from Vermont, the chairman of the Judiciary Committee, for his generous remarks. I compliment him on his leadership on the committee and for his work generally, but especially on our efforts to restore habeas corpus.

The Great Writ has been the law since 1215 for Great Britain, and it has been the law of the United States of America since the founding of the Constitution. That writ allows someone in detention to receive evidence of a reason for detention before the detention can continue. Regrettably, the legislation in the Military Commissions Act, passed last year, eliminated the writ of habeas corpus.

I offered an amendment last September, which was defeated narrowly 48 to 51, and then on December 5, 2006. Again on January 4 of this year, with the new Congress, I reintroduced legislation to bring back the writ of habeas corpus.

We have on the detainees in Guantanamo a procedure on what is called the Combat Status Review Board. The procedures there are fundamentally unfair in not establishing any colorable reason for detention. That has been demonstrated in a variety of contexts.

One which I would quote at the outset is an opinion which appears in 355 F. Supp. 443, in a case captioned "In re Guantanamo Detainee Cases," where the court comments about the procedures in the case captioned "Boumediene v. Bush." This involves an individual, a detainee, who was charged with associating with al‑Qaida. This is what the transcript says.

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Then the detainee goes on to comment about his inability to respond to the charges that he associated with someone from al‑Qaida because he does not have any way to identify the individual with whom he was supposed to have associated. Nobody could even give him his name.

At one point the detainee comments about his difficulty in responding to a charge when there is no charge, and as the opinion says, everyone in the tribunal laughs. The court notes the laughter reflected in the transcript is understandable. This exchange might have been truly humorous had the consequences of the detainee's enemy combatant status not been so terribly serious and had the detainee's criticism of this process not been so piercingly accurate.

But here is a case reported where the Combat Status Review Board upheld detention when they could not even tell the detainee the identity of the person who was supposedly an al‑Qaida person with whom he was supposed to have been associated.

There has been considerable comment about the fundamentally unfair tactics in the Combat Status Review Board, but none came into sharper focus than the declaration of LTC Stephen Abraham, who worked on the Combat Status Review Board, and who found, with some substantial detail, the process was fundamentally flawed. Results were influenced by pressure from superiors rather than based on concrete evidence.

I ask unanimous consent, Mr. President, that the text of the declaration of LTC Stephen Abraham be printed in the Record at the end of my remarks to permit me to abbreviate the length of this floor statement.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SPECTER. The Court of Appeals for the District of Columbia came down with the decision in the Boumediene case saying that the act of Congress was effective in eliminating habeas corpus, but in so doing, the Court of Appeals for the District of Columbia really ignored the decision of the Supreme Court of the United States in Rasul v. Bush.

To read the opinion of the Court of Appeals, for a student of the law, is not hard to understand; it is impossible to understand. I think a fair reading of the circuit opinion, simply stated, is that they flagrantly disregarded the holding of the Supreme Court of the United States, which under our system of laws they are obligated to uphold. They analyzed Rasul and said Rasul was based on the statute providing for habeas corpus and not on the constitutional mandate that habeas corpus is a part of the Constitution of the United States.

There can be no doubt that habeas corpus is a constitutional mandate because the Constitution explicitly states that habeas corpus may be suspended only in time of invasion or rebellion, and no one contends that we have either invasion or rebellion. The opinion of Rasul is explicit.

Mr. President, I ask unanimous consent that relevant portions of the Rasul opinion be printed in the Record following my statement ‑‑

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SPECTER. Without taking the time to read them into the Record now because they are apparent on their face that the opinion by Justice Stevens goes through the chronology of the writ, starting with King John at Runnymede in 1215 and running through the adoption of the constitutional provision in the U.S. Constitution.

Now, it is true there is also a statute which provides for a writ of habeas corpus. The Court of Appeals said the portion of Justice Stevens' opinion as to the constitutional basis for habeas corpus was dictum and that the holding involved the statute. The Court of Appeals says since the holding involved the statute, the statute could be changed. It is true the statute was changed by the Congress of the United States, but the Congress of the United States, by statute, cannot change the constitutional mandate of habeas corpus.

For the Court of Appeals for the District of Columbia to say the constitutional basis for habeas corpus in Rasul was not the holding but only the statute was the holding is, simply stated, ridiculous. It is insulting to the Supreme Court of the United States for what the Court of Appeals for the District of Columbia did. Pretty harsh words, but accurate words, and I say them with respect for every court. But as a lawyer who has worked with the Constitution for a number of decades, it was hard for me to comprehend how the District of Columbia Court of Appeals could come to that conclusion. But they did. Well, I think it is about to be corrected.

There has been a curious history on the petition for a writ of certiorari to review the decision by the Court of Appeals for the District of Columbia. There were only three votes for the original petition for a writ of certiorari, which surprised people because Justice Stevens did not vote for certiorari. But, instead, he joined with Justice Kennedy in an opinion saying they would await another appeal from the Combat Status Review Board. The speculation by the analysts was that Justice Stevens was reluctant to see certiorari granted because Rasul might be overruled.

But then after the declaration of LTC Stephen Abraham appeared in the public press, there was a petition for reconsideration of the writ of certiorari. On this occasion, it was granted in a very unusual procedure. It made the front pages. I have studied the Constitution for a long time, and I did not know that a petition for reconsideration on a writ of certiorari takes five votes. Perhaps my distinguished colleague from Vermont knew that. I asked that question of quite a few lawyers. I have not found one yet, and some very learned in constitutional law who knew if you petition for reconsideration on a writ of certiorari, it takes five votes.

Mr. LEAHY. Mr. President, if the Senator will yield on that point, when I saw that in the press I went and looked it up too. It was a surprise to me. It will be interesting to see what might come out of it, but I think it goes back, though, to what the Senator and I have talked about. We should not have to be bucking this to the Supreme Court for them to decide. We should correct the error here.

I will be leaving the floor at this moment, Mr. President, but I want to assure the Senator from Pennsylvania, when they do allow our amendment to come up, I will be here with him proudly side by side on this issue. We can correct what otherwise would become a historic mistake. With his help, his leadership, we will do that.

Mr. SPECTER. Mr. President, I thank my colleague from Vermont for those comments. I do not think there is a more important issue to come before this body. What happens in Iraq, obviously, is of enormous importance. But if we lose the basic fundamental rights to require evidence before somebody is held in detention, if we lose the right of habeas corpus, it is a very sad day in America.

But, in any event, now the Supreme Court of the United States has granted certiorari in the Boumediene case. The speculation is that Justice Kennedy was the fifth vote, along with Justice Stevens. They do not tell you who the five votes are, but we know there were three votes initially from Justice Souter and Justice Breyer and Justice Ginsburg granting it, voting to grant certiorari before, and Justice Stevens and Justice Kennedy writing a separate opinion, and the other four Justices voting to deny certiorari.

So I think this case is headed to the Supreme Court of the United States for reversal by the opinion by the Court of Appeals for the District of Columbia. But I believe the Congress should act in the interim. That is why Senator Leahy and I are pressing this issue on the Department of Defense authorization bill. I hope it will not be cited as grounds for veto if we are successful in putting this amendment through. We cannot offer it yet because there is an amendment pending, and the request to set the amendment aside, which requires unanimous consent, was objected to. But this is a very important amendment. The procedures in Guantanamo under the Combat Status Review Board are woefully inadequate, do not satisfy the requirements of the Supreme Court of the United States in having a collateral proceeding which is adequate to protect the rights of someone who is in detention.

So when we are permitted to offer the amendment, we will do so. But I ask my colleagues to consider the background as to what has happened here, the importance of it and its abrogation, what is happening with Guantanamo, the disrepute there, and what is happening with the Combat Status Review Board so that the Congress can correct what I consider to be an error made last year and stand up and not await a decision by the Supreme Court of the United States.

I thank the Chair, and I yield the floor.

Source: Senator Arlen Specter