[Congressional Record: January 4, 2007 (Senate)] [Page S179-S181] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS 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 unconstitutional. 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 insufficient. 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 government. 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 detention. 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 review. 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 wrong. ____ 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, SECTION 1. SHORT TITLE. This Act may be cited as the ``Habeas Corpus Restoration Act of 2007''. SEC. 2. RESTORATION OF HABEAS CORPUS FOR THOSE DETAINED BY 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 following: ``(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 chapter.''. SEC. 3. EFFECTIVE DATE AND APPLICABILITY. The amendments made by this Act shall-- (1) take effect on the date of the enactment of this Act; and (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, 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. 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. ______