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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, December 07, 2006

Possibilities for restoring habeas corpus rights

(updated below)

The incoming and outgoing Chairmen of the Senate Judiciary Committee, Pat Leahy and Arlen Specter, yesterday jointly introduced legislation to repeal the portion of the Military Commissions Act which purports to eliminate habeas corpus rights for detainees and strip federal courts of jurisdiction to adjudicate detainee claims. The statements submitted by each, along with the text of their bill, can be found here (Pat Leahy's statement is highly worth reading; every day, he sounds more and more like a passionate liberty-defending blogger).

This bill, particularly in its current form, has no chance of passing. In October, Specter introduced an amendment to the Military Commission Act prior to its enactment which would have deleted from the bill the provision abolishing habeas corpus. That amendment failed 51-48. Specter then proceeded, the following day, to vote for the MCA even though it abolished habeas corpus rights.

Now that the MCA and its habeas-eliminating provision has been signed into law, repealing it is close to impossible under the circumstances (but not outright impossible - see below). Not only would the Specter-Leahy bill need to attract 60 votes in order to overcome a Mitch McConnell-led filibuster, it would need 66 votes in order to override what would, without question, be President Bush's second veto (it would be remarkably illustrative if the only two measures over the course of six years which moved the President to exercise his veto power were a bill to provide for stem cell research and another to protect the 900-year-old writ of habeas corpus).

It is true that five of the GOP Senators who voted against Specter's habeas amendment in October have now been replaced by Democrats (the habeas-opposing Santorum, Allen, Talent, DeWine and Burns are gone; Chafee voted in favor of Specter's amendment). But even if all five of the new Democrats vote in favor of this bill, that brings the total only to 53. Seven additional votes would be required to end a filibuster, and 13 additional votes would be needed to override a veto. And as Lindsey Graham tauntingly suggested yesterday, it is uncertain whether all five new Democrats would support the restoration of habeas corpus (though I believe they all would).

It's worth pausing here for a moment to remind ourselves of the profoundly deceitful "rationale" underlying the Military Commissions Act, as recited yesterday by Sen. Graham, one of the most aggressive habeas corpus opponents in the Senate (h/t Edward Copeland):

"I'm curious to see what the five new Democrats would think about giving terrorists the ability to sue our troops in federal court and having federal district court judges make wartime decisions," Graham said Wednesday. "I got a feeling a lot of them would agree with me."

As always, those accused of being "Terrorists" by the President are, by definition, "Terrorists." If we had a minimally functioning political process, Sen. Graham would not be able to justify the denial of judicial review to determine if someone is really guilty by arguing that terrorists should not have rights. That's like opposing criminal trials for accused murderers on the ground that murderers shouldn't have any rights. Yet, there he is, making that self-evidently dishonest argument without any hint of a challenge from the "reporter" who merely transcribes it.

In any event, it is certainly possible (I'd even say likely, though far from certain) that the Supreme Court will rule unconstitutional the MCA's elimination of habeas corpus, on the ground that, among other things, habeas corpus rights can be suspended only "in Cases of Rebellion or Invasion" (Art I., Sec. 9), and even then, only when "the public Safety may require it." Contrary to the rabid fantasies of Bush followers, we have not been invaded nor are we faced with rebellion, and the Constitution therefore does not permit the suspension of habeas corpus.

The argument that habeas corpus has not really been suspended because detainees have been provided a satisfactory alternative -- namely, adjudication of their status by the Pentagon's Combatant Status Review Tribunals -- is frivolous. The CSRT is a one-sided, Kafka-esque mockery of a judicial procedure that even most show-trial-loving dictators would be embarrassed to sanction (read the Leahy/Specter statement for a summary of just some of the reasons why that is so, as well as these superb materials from Thomas Sullivan detailing the laughable CSRT procedures). It seems highly unlikely that the Supreme Court will view that as a sufficient process to serve as an alternative to habeas corpus.

While the Leahy-Specter bill appears doomed to certain defeat -- and was thus likely introduced for symbolic reasons (in Specter's case to dishonestly cleanse himself from the support he lent to the passage of the MCA) -- there is a much more plausible legislative tactic for restoring habeas corpus rights which ought to be pursued.

As I wrote about previously, this Washington Post article by Jeffrey Smith strongly suggested that Specter could have saved at least limited habeas corpus rights, but chose not to. Specter had two amendments -- one to restore full habeas rights to detainees (the one he introduced and which failed), and another one which would have provided limited habeas rights (limiting challenges to one-per-lifetime and kicking in only after a full year in detention). The Post article suggests that Specter's more limited amendment commanded majority support in the Senate, and that had Specter introduced it, it would have passed. But Bill Frist permitted him to introduce only one amendment, and he chose the one which failed.

Thus, the only type of bill which would seem to have any chance of passing would be a habeas restoration bill along the lines of Specter's limited amendment -- one which negates the truly inane objection that habeas rights will somehow "flood" our court system and which allows the compromise-fetishists in Washington and in the Senate to vigorously support it. There is obviously no good reason to limit habeas rights in this fashion, but if that is the only way to at least allow detainees some access to a court, it is imperative that this be pursued.

The difference between a limited, one-time-only habeas challenge and unlimited habeas rights is significant. But the difference between a one-time-only habeas right and no habeas rights at all (i.e., lifetime imprisonment with no opportunity to contest the validity of one's detention or treatment) is an entire universe. Being able to access a federal court -- as opposed to rotting in Guantanamo with no tribunal to hear your complaints -- can change everything for a detainee. Once in federal court, all sorts of abuses and injustices can come to light, which is precisely why the Bush administration and its Congressional servants are so eager to extinguish that right in full.

If Leahy, Chris Dodd and other Democrats are going genuinely to pursue the restoration of habeas corpus, they should do so in a way that creates some genuine opportunity for succeeding. The bill introduced yesterday has none. Their intention might be to introduce a full-fledged habeas restoration bill at first and then negotiate a more limited version that can attract the 66 votes needed to override a presidential veto (even forcing a presidential veto by overcoming a filibuster would be worthwhile on many levels). But it remains to be seen if this will be a real attempt or just a symbolic, futile one.

UPDATE: As indicated above, the materials assembled by Thomas Sullivan regarding the travesty known as the CSRT hearing are really worth reading. In comments, Dan D excerpts this description of what happened with one detainee:

Murat Kurnaz (Tab 4): Mr. Kurnaz, a German resident of Turkish descent, was traveling through Pakistan with Islamic missionaries in November 2001 when he was detained by local police and eventually turned over to U.S. officials. The U.S. justified Mr. Kurnaz's detention on the basis that he was associated with a man who allegedly committed a suicide bombing in Turkey.

In his CSRT hearing, Mr. Kurnaz explained how he knew the alleged suicide bomber but did not know he was a terrorist; and he believed terrorism is not the way of Islam. Based on classified evidence Mr. Kurnaz was not allowed to review or answer, the CSRT upheld the determination that Mr. Kurnaz was an enemy combatant and associated with al Qaida.

However, when that information was later declassified, it contained no evidence directly linking Mr. Kurnaz to a1 Qaida, and showed U.S. and foreign intelligence agencies believed that Mr. Kurnaz did not have links to al Qaida.

The alleged suicide bomber was found alive in Germany, and German authorities said they had no proof that he was a terrorist. After being detained for five years without charge, Mr. Kurnaz was released in August 2006. (See Carol D. Leonnig, Panel Ignored Evidence on Detainee: U.S. Military Intelligence, German Authorities Found No Ties to Terrorists, The Washington Post, March 27, 2005, p. Al.)

And I'm sure he was treated very humanely during his five years in Guantanamo. Historians and others are going to look back on this exceptionally dark period of time in our country's history -- which is filled with incidents like this and far worse, only a fraction of which are known and some of which have yet to happen -- and ask how our Government could have engaged in conduct like this with so little opposition or challenge.

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