Following up on their earlier efforts to prevent the stripping of fundamental legal protections in the Military Commissions Act, Senators Arlen Specter (R-Pa.) and Patrick Leahy (D-Vt.) have introduced the Habeas Corpus Restoration Act of 2006. 

The bill would restore basic legal and human rights for 12 million lawful permanent residents in the United States that were rolled back  as a result of the passage of the Military Commissions Act of 2006.   Below is Sen. Leahy’s statement on the introduction of the bill, as well as his co-sponsorship of the Effective Terrorists Prosecution Act of 2006.

Statement of Senator Patrick Leahy
On S. 4081, Habeas Corpus Restoration Act of 2006
And S. 4060, the Effective Terrorists Prosecution Act of 2006
December 5, 2006

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 non-citizen 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 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 than The Washington Post story suggested.  The Justice Department’s brief says that the Government can detain any non-citizen 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 any battlefield.  They can be people who give money, or people that any group of decision-makers 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 United States 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 six weeks before a mid-term 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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