Battle Over Habeas Corpus Returns
Monday 02 April 2007
What could turn out to be an epic battle is brewing in the US Senate. But unlike most of this chamber's epic battles,
this one pits Republican against Republican.
The battle is over the Habeas Corpus Restoration Act of 2007. The proposed legislation would repeal provisions of the
Military Commissions Act of 2006 that stripped US civilian courts from jurisdiction to hear or consider applications for
a writ of habeas corpus filed by aliens detained as enemy combatants.
And the protagonists are arguably two of the Senate's sharpest legal minds: Senator Arlen Specter of Pennsylvania and
Senator Lindsey Graham of South Carolina.
The principal issue in this latest chapter of the detainee drama is whether Congress will, on its own, vote to
reconsider a key provision of legislation it passed last year at the suggestion of the Supreme Court - or whether the
case will get to the court before lawmakers have a chance to vote.
Legal advocacy organizations such as the Center for Constitutional Rights have already petitioned the high court to
review the MCA, and have asked for oral arguments before summer.
Their action has been accelerated by the recent decision of a lower federal appeals court, which ruled 2-1 that
detainees in US custody at Guantánamo Bay, Cuba, have no right to challenge their imprisonment in federal courts.
The court's decision found that overruling the MCA would "defy the will of Congress," and asserted that habeas corpus
does not apply to foreigners who are not in the US. It effectively ruled that the US Naval Base at Guantánamo Bay is a
property leased by the US from Cuba, and that Cuba has sovereignty over it.
Ironically, it was a suggestion contained in a Supreme Court decision that led to "the will of Congress" - passage of
the MCA. The high court had previously upheld Guantánamo detainees' right to contest their incarceration in two landmark
decisions in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. That decision
followed similar rulings from two lower federal appeals courts.
But in its Hamdan decision, the high court said that Congress could take further action on the issue. That action
resulted in enactment of the Military Commissions Act of 2006, which stripped civilian courts of jurisdiction as well as
setting up special military trials for detainees.
While the Senate has been preoccupied with other issues, including the president's request for emergency supplemental
spending to fund the Iraq and Afghanistan wars, the Habeas Corpus Restoration Act of 2007 has been on hold. But now that
the emergency funding bill has been passed by the Senate and is on its way to a Senate-House conference committee - and
then to a promised presidential veto - Congress-watchers are expecting the habeas legislation to re-emerge. That action
will no doubt have been made more urgent by the guilty plea of "Australian Taliban" detainee David Hicks, the first-ever
conviction by a Military Commission at Guantánamo.
When the Senate begins debating the MCA, Senators Specter and Graham can be expected to spearhead the debate. Specter
will be joined by the powerful chairman of the Senate Judiciary Committee, Senator Patrick Leahy (D-Vt.), a co-sponsor
of the legislation, by a host of other Democrats, and a few Specter-like Republicans. Graham's position will have the
backing of most Republicans, largely conservatives.
Specter - a former prosecutor - will bolster his position with a panoply of complex constitutional as well as moral
arguments. But at the core of these will be a straightforward legal contention: If people under the effective control of
the US have no habeas rights, why did the framers of the Constitution specify that habeas rights could only be suspended
in times of invasion or armed insurrection against the government? Neither of these, he says, is present today. Specter
is also likely to emphasize the negative impacts of Guantánamo and its legal failings on America's reputation abroad.
Graham, an Air Force reserve colonel who has been a military lawyer and judge for 20 years, will take the position that
prisoners of war - or those designated as enemy combatants - are not protected by the Constitution and have never had
the right to petition civilian courts to determine their reasons for being held. He is also likely to argue that federal
judges are not trained to hear military cases, that hundreds of habeas petitions will clog court calendars for years,
that many of the civilian judges and lawyers involved in these proceedings do not have the necessary security
clearances, and that public hearings could well compromise national security by revealing classified information.
Another MCA-repeal bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is a candidate for
the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify
other parts of the law.
Senator Specter, who frequently finds himself at odds with the administration of his own party, appears to be hedging
his bets. While joining Senator Leahy in pressing for the Senate to take up the MCA-repeal legislation, Specter has
meanwhile submitted a "friend of the court" brief to the Supreme Court in support of a petition for a writ of certiorari
that asks the court to hear the case.
The petition was filed by the Center for Constitutional Rights, the legal advocacy organization that coordinates the
work of hundreds of pro-bono lawyers who have volunteered to defend Guantánamo detainees. There are still close to 400
prisoners at the base in Cuba, many of whom have long since been declared "no further threat" to the US and are awaiting
In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in
these cases. The arguments have been aired and re-aired. The time is ripe for this court to address the constitutional
infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of
law prevails at Guantánamo."
Wells Dixon, an attorney with the Center for Constitutional Rights Guantánamo Global Justice Initiative, said, "We are
pleased that Senator Specter has joined us in asking the court to reaffirm the right of the detainees to challenge their
detention in a court of law. This will be the third time the court rules on this issue while our clients have languished
for more than five years without a chance to prove their innocence or even, in some cases, have access to an attorney.
It is time to return to the rule of law on which our country was founded."
Specter does not discount further efforts by Congress to resolve the issue, but argues that the court has a critical
role to play, both in establishing what the Constitution requires and in giving the detainees the opportunity to argue
the merits of their cases.
He believes the debate in Congress is ultimately not helping: "While this exchange of ideas is surely healthy and
appropriate, the conversation has begun to generate diminishing returns. Meanwhile, the detainees wait, and uncertainty
surrounds a fundamental constitutional principle. If the court declines to resolve these important issues in this term,
the detainees could face more than another full year in legal limbo."
Then, even if the Congress acts to repeal the habeas section of the MCA, the new legislation could well face a Bush
veto - without the votes necessary to override it.
Thus, Guantánamo is likely to be with us for some time to come - the issue that simply won't go away.
William Fisher has managed economic development programs in the Middle East and in many other parts of the world for
the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and
for the Associated Press in Florida. Go to The World According to Bill Fisher