Congressional Record: December 5, 2006 (Senate)
Page S11197-S11199             


      Mr. SPECTER (for himself and Mr. Leahy):
  S. 4081. A bill to restore habeas corpus for those detained by the 
United States; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I introduce legislation which is 
captioned ``Habeas Corpus Restoration Act of 2006'' which I introduced 
on behalf of myself and Senator Leahy.
  The legislation which was adopted earlier this year on war crimes 
struck out habeas corpus jurisdiction of the Federal courts, sought to 
limit jurisdiction of the Federal courts on habeas corpus for 
Guantanamo detainees and others detained on charges of being enemy 
combatants or war criminals.
  There was very extended debate on the issue at that time. The bill 
reported by the Armed Services Committee and backed by the 
administration eliminated the jurisdiction of the Federal courts. I 
offered an amendment to reinstate habeas corpus. It was defeated 51 to 
48. This legislation would reinstate habeas corpus jurisdiction of the 
Federal courts. It is my view that the Federal courts will strike down 
the provisions in the legislation eliminating Federal court 
jurisdiction for a number of reasons. One is that the Constitution of 
the United States is explicit that habeas corpus may be suspended only 
in time of rebellion or invasion. We are suffering neither of those 
alternatives at the present time. We have not been invaded, and there 
has not been a rebellion. That much is conceded.
  There has been an effort made to contend that those constitutional 
rights are maintained with the very limited review which goes to the 
Court of Appeals for the District of Columbia.
  In the limited time I have today I will not go into great detail 
during the course of the argument as it appears in the Congressional 
Record as to why that does not maintain the traditional constitutional 
right of habeas corpus, a right which has existed in Anglo Saxon 
jurisprudence since King John in 1215 at Runnymede. The Supreme Court 
of the United States in the Hamdi case made it plain that these habeas 
corpus rights apply to aliens as well as to citizens.
  The administration has taken the position now that someone who is 
making a charge of having been tortured, which is a violation of U.S. 
law, may not be permitted to disclose the specifics of his 
interrogation which he says constituted torture because al-Qaida will 
find out what our interrogation techniques are and will move to train 
their operatives so they can withstand those interrogations.
  It is unthinkable, in my opinion, to have a system of laws where 
someone who claims to have been tortured cannot describe what has 
happened to him to get judicial relief because al-Qaida may be able to 
educate or train their operatives to avoid those techniques.
  I supported the ultimate legislation on war crimes tribunals because 
it provided for recognition of the Geneva Conventions. It also provided 
for confrontation. It also provided for limitations on interrogation 
  It was my view as I expressed it at the time that with the 
severability clause the Federal courts would eliminate the restriction 
on their jurisdiction. But as a precautionary matter, to put the matter 
in issue, this legislation is being introduced at this time.
  I ask unanimous consent that the summary of the Habeas Corpus 
Restoration Act of 2006 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 Habeas Corpus Restoration Act of 2006

       The bill strikes the new limitations on habeas corpus 
     created in the Military Commissions Act of 2006, Public Law 
     109-366, 2006 Stat. 3930.
       The MCA added two new habeas provisions--
       (1) A new paragraph in the federal habeas statute, 28 
     U.S.C. Sec. 2241(e), that would bar any alien detained by the 
     United States as an enemy combatant from filing a writ of 
     habeas corpus. The new paragraph was to apply to all pending 
     cases ``without exception'' thereby barring all pending 
     habeas corpus applications pending on behalf of Guantanamo 
     Bay detainees.
       (2) An entirely new habeas corpus limitation that barred 
     any habeas review of military commission procedures. Had this 
     bill been passed before the Hamdan v. Rumsfeld case was 
     decided, the Supreme Court would not have had jurisdiction to 
     review and reject the military commission procedures that 
     were at issue. This new habeas limitation was added to 
     federal law as 10 U.S.C. Sec. 950j(b).
       The Habeas Corpus Restoration Act would strike these two 
     provisions from the law in their entirety, thereby restoring 
     the right of aliens detained within U.S. territorial 
     jurisdiction (including at Gitmo) to challenge their 
     detention via file writs of habeas corpus.
       Because the Military Commissions Act already completely 
     repealed and superseded the habeas limitations created by the 
     Graham Amendment to the Detainee Treatment Act of 2005, the 
     bill would restore the state of play before the DTA.
       Actual effect--The MCA would deprive federal courts of 
     jurisdiction to hear the 196 habeas corpus applications 
     currently pending on behalf of the detainees at Guantanamo 
     Bay, Cuba. This bill would restore jurisdiction and allow 
     those cases to be decided on their merits. It would also 
     allow habeas corpus challenges to military commission 

    Article 1, Section 9, Clause 2 of the United States Constitution

       ``The 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.''

           Select United States Supreme Court Decision Quotes

       In the 2004 Supreme Court decision of Hamdi v. Rumsfeld, 
     Justice O'Connor stated,

[[Page S11198]]

     ``All agree that, absent suspension, the writ of habeas 
     corpus remains available to every individual detained within 
     the United States.''
       Justice O'Connor was unequivocally in stating, ``[w]e have 
     long since made clear that a state of war is not a blank 
     check for the President when it comes to the rights of the 
     Nation's citizens.''
       The Hamdi court made clear that ``[i]t is during our most 
     challenging and uncertain moments that our Nation's 
     commitment to due process is most severely tested; and it is 
     in those times that we must preserve our commitment at home 
     to the principles for which we fight abroad.''
       Regarding habeas corpus, Justice O'Connor wrote, ``we have 
     made clear that, unless Congress acts to suspend it, the 
     Great Writ of habeas corpus allows the Judicial Branch to 
     play a necessary role in maintaining this delicate balance of 
     governance, serving as an important judicial check on the 
     Executive's discretion in the realm of detentions.''
       In 1949, Justice Murphy dissented in Korematsu v. United 
     States: ``[i]ndividuals must not be left impoverished of 
     their constitutional rights on a plea of military necessity 
     that has neither substance nor support'' . . . ``[t]he 
     judicial test of whether the Government, on a plea of 
     military necessity, can validly deprive an individual of any 
     of his constitutional rights is whether the deprivation is 
     reasonably related to a public danger that is so `immediate, 
     imminent, and impending' as not to admit of delay and not to 
     permit the intervention of ordinary constitutional processes 
     to alleviate the danger.''

  CSRTs are not an Adequate and Effective Substitute for Habeas Corpus

       Combatant Status Review Tribunals, commonly referred to as 
     ``CSRTs,'' are not an adequate and effective means to 
     challenge detention in accordance with the Supreme Court's 
     decision in Swain v. Pressley (``the substitution of a 
     collateral remedy which is neither inadequate nor ineffective 
     to test the legality of a person's detention does not 
     constitute a suspension of the writ of habeas corpus.'').
       CSRTs are not adversarial, but consist of a one-sided 
     interrogation of the detainee by the tribunal members. The 
     proceedings do not comport with basic fairness because the 
     individuals detained do not have the right to confront 
     accusers, call witnesses, or know what evidence there is 
     against them. As Justice O'Connor wrote in her plurality 
     opinion in the Hamdi case, ``[a]n interrogation by one's 
     captor, however effective an intelligence-gathering tool, 
     hardly constitutes a constitutionally adequate factfinding 
     before a neutral decisionmaker.''
       According to the September 25, 2006 Judiciary Committee 
     testimony of the former U.S. Attorney for the Northern 
     District of Illinois, Thomas Sullivan, who has been to 
     Guantanamo on many occasions and has represented many 
     detainees. Mr. Sullivan cited hearings where individuals were 
     summoned before the tribunal, but did not speak the language, 
     did not have an attorney, did not have access to the 
     information which was presented against them, and continued 
     to be detained.
       For example, in the case of Abdul Hadi al Siba'i, a Saudi 
     Arabian police officer who came to Afghanistan in August 2001 
     to build schools and a mosque, Mr. Sullivan described how Mr. 
     Siba'i had no lawyer, spoke through a translator, and was 
     read the charges against him, but with no access to the 
     underlying evidence. According to Mr. Sullivan, his client 
     was returned to Saudi Arabia after a prolonged detention 
     without a trial, compensation, or apology. Mr. Sullivan 
     received no notice that his client was to be returned to 
     Saudi Arabia.

  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 4081

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Habeas Corpus Restoration 
     Act of 2006''.

                   THE UNITED STATES.

       (a) In General.--Section 2241 of title 28, United States 
     Code, is amended by striking subsection (e).
       (b) Title 10.--Section 950j of title 10, United States 
     Code, is amended by striking subsection (b) and inserting the 
       ``(b) Limited Review of Military Commission Procedures and 
     Actions.--Except as otherwise provided in this chapter or in 
     section 2241 of title 28 or any other habeas corpus 
     provision, and notwithstanding any other provision of law, no 
     court, justice, or judge shall have jurisdiction to hear or 
     consider any claim or cause of action whatsoever, including 
     any action pending on or filed after the date of the 
     enactment of the Military Commissions Act of 2006, relating 
     to the prosecution, trial, or judgment of a military 
     commission under this chapter, including challenges to the 
     lawfulness of procedures of military commissions under this 


       The amendments made by this Act shall--
       (1) take effect on the date of the enactment of this Act; 
       (2) apply to any case that is pending on or after the date 
     of enactment of this Act.

  Mr. LEAHY. Mr. President, 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 noncitizen 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

[[Page S11199]]

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 even than the Washington Post 
story suggested. The Justice Department's brief says that the 
Government can detain any noncitizen 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 battlefield. They can be 
people who give money, or people that any group of decisionmakers 
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 U.S. 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 6 weeks 
before a midterm 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.