[Congressional Record: January 4, 2007 (Senate)]
[Page S179-S181]                      


      Mr. SPECTER (for himself and Mr. Leahy):
  S. 185. A bill to restore habeas corpus for those detained by the 
United States; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I will introduce legislation denominated 
the Habeas Corpus Restoration Act. Last year, in the Military 
Commissions Act, the constitutional right of habeas corpus was 
attempted to be abrogated. I fought to pass an amendment to strike that 
provision of the Act which was voted 51 to 48. I say ``attempted to be 
abrogated'' because, in my legal judgment, that provision in the Act is 
  It is hard to see how there can be legislation to eliminate the 
constitutional right to habeas corpus when the Constitution is explicit 
that habeas corpus may not be suspended except in time of invasion or 
rebellion, and we do not have either of those circumstances present, as 
was conceded by the advocates of the legislation last year to take away 
the right of habeas corpus.
  We have had Supreme Court decisions which have made it plain that 
habeas corpus is available to noncitizens and that habeas corpus 
applies to territory controlled by the United States, specifically, 
including Guantanamo. More recently, however, we had a decision in the 
U.S. District Court for the District of Columbia applying the habeas 
corpus jurisdiction stripping provision of the Military Commissions 
Act, but I believe we will see the appellate courts strike down this 
legislative provision.
  The contention that the gravamen or the substance of habeas corpus is 
provided by the statutory review to the Circuit Court of the District 
of Columbia is fallacious on its face. All the statute does is allow 
for a review of the regularity of proceedings. In my prepared 
statement, I cite an example of litigation before a federal district 
court, where a person charged with consorting with al-Qaida asked: 
``What was the name of the person? He asked: What was the name of the 
person I'm supposed to have consorted with? And the Presiding Officer 
said: I don't know, which, according to the opinion, brought uproarious 
laughter from the audience. Here a man is charged with consorting with 
al-Qaida, and they cannot even tell him the name of the person he is 
alleged to have consorted with.
  The hearing before the Judiciary Committee, which I chaired, 
contained expansive, detailed evidence about the proceedings under the 
review provisions in Guantanamo, which are grossly, totally 
  The New York Times had an extensive article on this subject, starting 
on the front page, last Sunday, and continuing on a full page on the 
back page about what is happening at Guantanamo. It is hard to see how 
in America, or in a jurisdiction controlled by the United States, these 
proceedings could substitute for even rudimentary due process of law.
  As I might add, the Habeas Corpus Restoration Act was introduced in 
the 109th Congress. I offered the bill on behalf of myself and Senator 
Leahy. Consequently, we had this bill listed in the 109th Congress as a 
Specter-Leahy bill, and with Senator Leahy's consent, it is denominated 
as the Specter-Leahy bill again in the 110th Congress.
  Mr. President, I ask unanimous consent that my prepared text 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 2007

       Mr. SPECTER. Mr. President, I seek recognition today to 
     introduce the ``Habeas Corpus Restoration Act of 2007.'' Last 
     September, during debate on the Military Commissions Act, I 
     introduced an amendment to strike section 7 of the Act and 
     thereby preserve the constitutional right of habeas corpus 
     for the approximately 450 individuals detained at Guantanamo 
     Bay. Because my amendment was not agreed to, by a narrow vote 
     of 48-51, the right to the writ of habeas corpus was denied 
     to those detainees. The privilege of the writ of habeas 
     corpus has therefore been suspended.
       On December 5, with my colleague Senator Leahy, I 
     introduced the ``Habeas Corpus Restoration Act of 2006'' to 
     restore the writ of habeas corpus and bring this country back 
     into compliance with the United States Constitution. After 
     all, the United States Constitution is unambiguous in Article 
     1, Section 9, Clause 2, where it states: ``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.'' Today, along with Senator Leahy, I am 
     reintroducing this important legislation.
       The Habeas Corpus Restoration Act is very simple: It 
     strikes the federal habeas corpus limitations imposed by the 
     Military Commissions Act and the Detainee Treatment Act. In 
     so doing, the bill affords aliens detained by the United 
     States within its territorial jurisdiction, including those 
     detained at the Guantanamo Bay Naval Base, the right to 
     challenge their detention and military commission trial 
     procedures by an application for writ of habeas corpus. It 
     will ensure that the constitutional right of habeas corpus is 
     afforded to all individuals detained by the United States 
       The Framers explicitly intended to extend habeas 
     protections to all, absent a case of rebellion, invasion, or 
     the interest of public safety. This principle was ratified by 
     the Supreme Court in the case of Hamdi v. Rumsfeld, where 
     Justice O'Connor stated ``[a]ll agree that absent suspension, 
     the writ of habeas corpus remains available to every 
     individual detained within the United States.''
       This protection extends to those detained in Guantanamo 
     since it is a facility exclusively under the control of the 
     United States. In Rasul v. Bush, the Supreme Court held that 
     habeas corpus rights apply even to aliens held at Guantanamo 
     Bay. One does not need to be a United States citizen to be 
     afforded basic constitutional habeas corpus rights and the 
     U.S. Constitution draws no distinction between American 
     citizens and aliens held in U.S. custody.
       Although some argue that Combatant Status Review Tribunals, 
     commonly referred to as ``CSRTs,'' are an adequate and 
     effective means to challenge detention in accordance with the 
     Supreme Court's decision in Swain v. Pressley, I couldn't 
     disagree more. In my view, CSRTs are a sham. We have learned 
     a great deal about the cursory review provided by these 
     tribunals at Guantanamo Bay. They operate with very little 
     information. Somebody is picked up on the battlefield. There 
     is no record preserved as to what that individual did. If 
     there was a weapon involved, it was collected and mixed in 
     with many other weapons. There is no chain of custody or even 
     a record of what was seized. In sum, CSRTs are nothing more 
     than a one-sided interrogation by the military tribunal 
     members. These proceedings simply do not comport with basic 
     fairness because the individuals detained do not have the 
     right to 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.'' It is essential that we provide an adequate 
     means to evaluate the legality of an individual's continued 
       Typically, the CSRT will advise the detainee that the 
     evidence against them is

[[Page S180]]

     classified and restrict access. The U.S. District Court in 
     the In re Guantanamo case criticized the manner in which the 
     CSRT required detainees to answer allegations based on 
     information that cannot be disclosed. In a comical scene 
     during the hearing, a detainee advised the tribunal that he 
     could not answer an allegation that he had associated with a 
     known al Qaida operative because the tribunal would not 
     provide the name of the alleged operative. Since the tribunal 
     would not even provide the name of the operative, the 
     detainee could not answer even the most basic of allegations. 
     While laughter filled the courtroom at the time when the 
     detainee could not answer this simple allegation, we should 
     not forget the seriousness of this process and the manner in 
     which we are treating detainees of the United States.
       The Military Commission Act's habeas corpus provisions were 
     debated at a Senate Judiciary Committee hearing held on 
     September 25, 2006. At the hearing, I heard from a 
     distinguished and varied panel of witnesses, including the 
     attorney who represented Hamdan before the Supreme Court. 
     Perhaps most compelling during the hearing was the 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 was especially compelling when he made reference 
     to a number of individual cases where the proceedings 
     before the CSRT were completely insufficient. He 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. 
     These individuals either did not know what their charges 
     were, or those charges of which they were aware were vague 
     and illusory. For example, in the case of Abdul Hadi al 
     Siba'i, Mr. Sullivan described how his client had been 
     returned to Saudi Arabia after several months of 
     detainment and without a trial or any notice, 
     compensation, or apology. One can only suspect that the 
     United States government understood that the continued 
     detainment of this particular individual was wrong and 
     would expose weaknesses at trial.
       The failure to afford habeas review rights to detainees has 
     concerned Kenneth Starr, former Solicitor General and U.S. 
     Court of Appeals Judge for the District of Columbia. In a 
     letter directed to me as Judiciary Chairman, Mr. Starr 
     expressed his concern ``about the limitations on writ of 
     habeas corpus contained in the comprehensive military 
     commissions bill.''
       If Justice O'Connor feels that detainees have the right to 
     habeas review, but we are denying them this avenue of review, 
     how are detainees supposed to rebut facts that they are not 
     allowed to confront? This is why federal courts should be 
     open to hear habeas petitions of these detainees. The Supreme 
     Court is clear, and we should apply this precedent to the 
     current situation involving detainees at Guantanamo Bay.
       On the recent 5-year anniversary of 9/11, President Bush 
     repeated his commitment to bring terrorists to justice. 
     However, statistics tell us that most of the terrorists at 
     Guantanamo will never see the inside of a courtroom. Hundreds 
     will be held indefinitely. Of the over 400 detainees who 
     remain at Guantanamo, the Pentagon says another 110 have been 
     labeled as ``ready to release.'' But the real number we need 
     to look at is the remaining 325 or so detainees. How many 
     will face trial? Media reports citing Pentagon sources 
     suggest that only approximately 70 detainees will face trial.
       This leaves approximately 250 detainees--more than half of 
     those still at Guantanamo--who will be held indefinitely 
     simply because the United States considers them to be too 
     dangerous or in possession of sensitive intelligence 
     information. These detainees will have no ability to 
     challenge their confinement. My bill will ensure these 
     individuals held in U.S. custody will be afforded the 
     basic constitutional right to petition for habeas corpus 
       The short history of the Military Commissions Act 
     underscores the need for this legislation. The day after the 
     Act became law, the Justice Department filed notices in each 
     of the 181 Guantanamo habeas cases pending before the United 
     States District Court for the District of Columbia, 
     highlighting the jurisdiction-stripping and retroactivity 
     provisions of the Act. In at least one noteworthy case, the 
     District Court has already agreed that it now lacks authority 
     to hear such a habeas petition.
       On December 13, 2006, Judge James Robertson dismissed the 
     habeas petition of Salim Ahmed Hamdan--of Hamdan v. Rumsfeld 
     fame--for lack of subject matter jurisdiction. While I 
     disagree with Judge Robertson's conclusion that Hamdan has 
     ``no constitutional entitlement to habeas'' because he was 
     detained in Guantanamo rather than inside the United States, 
     this conclusion demonstrates the lack of judicial recourse 
     available to such detainees. Of course, the Military 
     Commissions Act is not strictly limited to those held in 
     Guantanamo. In another case, on November 13, 2006, the 
     Department of Justice filed a motion with the U.S. Court of 
     Appeals for the Fourth Circuit to dismiss the habeas petition 
     of alleged enemy combatant Ali Saleh Kahlah al-Marri. Unlike 
     Hamdan and other Guantanamo detainees, al-Marri has been 
     detained inside the United States. While we could simply wait 
     for the Supreme Court to rule on the constitutionality of 
     denying habeas rights to such detainees, I believe the United 
     States Congress has an obligation to act now and reverse this 

  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 185

       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 2007''.

                   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, on the first day of this new Congress, I 
join Senator Specter to reintroduce a bill to restore the Great Writ of 
habeas corpus, a cornerstone of American liberty since the founding of 
this Nation. The Habeas Corpus Restoration Act of 2007 bill continues 
our efforts to amend last year's Military Commissions Act, to right a 
wrong and to restore a basic protection to American law. This is an 
issue on which we continue to work together and urge Senators on both 
sides of the aisle to join with us.
  As Justice Scalia wrote 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. It provides 
a check 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. This fundamental protection was rolled back in 
an unprecedented and unnecessary way in the run up to last fall's 
election by passage of the Military Commissions Act.
  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 and pay taxes in America and are lawful residents. This new 
law means that any of these people can be detained, forever, without 
any ability to challenge their detention Federal court--or anywhere 
else--simply on the Government's say-so that they are awaiting 
determination whether they are enemy combatants.
  I deeply regret that Senator 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 weeks before the recent elections. We proposed an 
amendment that would have removed the habeas-stripping provision from 
the Military Commissions Act. We fell just three votes short in those 
political charged days. It is my hope that the new Senate and new 
Congress will reconsider this matter, restore this fundamental 
protection and revitalize our tradition of checks and balances.
  Giving Government such raw, unfettered power as this law does should 
concern every American. Last fall 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 secretly suspects might be a source of funding for critics 
of the United States Government. I suggested that, on the basis of

[[Page S181]]

this donation and perhaps a report of ``suspicious behavior'' from an 
overzealous neighbor, the permanent resident could be brought in for 
questioning, denied a lawyer, confined, and even tortured. Such a 
person would have no recourse in the courts for years, for decades, 
  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. In November, the 
scenario I spelled out was confirmed by the Department of Justice 
itself in a legal brief submitted in 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 designated 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 even 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 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 donate small amounts of 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. 
November'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 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 a vital check that our legal 
system provides against the government arbitrarily detaining people for 
life without charge. We may well have also 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 this Administration's lawlessness. Certainly the last Congress 
did not do 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.
  Some Senators uneasy about the Military Commissions Act's disastrous 
habeas provision took solace in the thought that it would be struck 
down by the courts. Instead, the first court to consider that 
provision, a federal court in the District of Columbia, upheld the 
provision. We should not outsource our moral, legal and constitutional 
responsibility to the courts. Congress must be accountable for its 
actions and we should act to right this wrong.
  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 administration's lofty 
rhetoric about exporting freedom across the globe.
  We should take steps to ensure that our enemies can be brought to 
justice efficiently and quickly. I introduced a bill to do that back in 
2002, as did Senator Specter, when we each proposed a set of laws to 
establish military commissions. The Bush-Cheney Administration rejected 
our efforts and designed a regime the United States Supreme Court 
determined to be unlawful. Establishing appropriate military 
commissions is not the question. We all agree to do that. What we need 
to revisit is the suspension of the writ of habeas corpus for millions 
of legal immigrants and others, denying their right to challenge 
indefinite detainment on the, government's say-so.
  It is from strength that America should defend our values and our 
Constitution. It takes commitment to those values to demand 
accountability from the Government. In standing up for American values 
and security, I will keep working on this issue until we restore the 
checks and balances that are fundamental to preserving the liberties 
that define us as a nation. We can ensure our security without giving 
up our liberty.