Statement Of Senator Patrick Leahy
In Opposition To The Graham Amendment
November 15, 2005

Mr. President, I commend my colleagues across the aisle who are attempting to address the treatment of detainees in U.S. custody, despite resistance from members of their own party and the strong opposition of the White House.  I know Senator Graham has worked closely with Senator McCain and others to give our troops the clear guidance they need to effectively detain and interrogate enemy prisoners, and I commend him for that.  The Legislative Branch has not met its obligation of oversight and policymaking in this area.  For months, Senator Graham has been prodding the Congress to take action.  He is one of the few members of his party to forcefully speak out on the need to change the Administration’s policies. 

While I support Senator Graham’s efforts on these issues, I cannot support his amendment to strip federal courts of the authority to consider a habeas petition from detainees being held in U.S. custody as enemy combatants.

The Graham amendment would deny prisoners who the Administration claims are unlawful combatants the right to challenge their detention.  At no time in the history of this Nation have habeas rights been permanently cut off from a group of prisoners.  Even President Lincoln’s suspension of habeas was temporary.  The Supreme Court has held numerous times that enemy combatants can challenge their detention.

Many of my colleagues across the aisle argue that terrorists do not deserve access to our federal courts.  This argument would be far more persuasive if all of the detainees at Guantanamo Bay were terrorists.  Unfortunately, many of them are almost certainly not.  Numerous press accounts have quoted unnamed officials who believe that a significant percentage of those detained at Guantanamo do not have a connection to terrorism.  And yet they have been held for years without the right to challenge their detention in a fair and impartial hearing, a situation that does significant harm to our Nation’s reputation as a leader in human rights and which puts our own soldiers at risk. 

Filing a writ of habeas corpus is often the detainee’s only opportunity to openly challenge the basis for his detention.  Providing detainees this right is not about coddling terrorists – it is about showing the world that we are a nation of laws and that that we are willing to uphold the values that we urge other nations to follow.  It is about honoring and respecting the principles that are part of our heritage as Americans and that have been a beacon to the rest of the world.  Allowing a detainee to file a habeas petition provides legitimacy to our detention system and quells speculation that we are holding innocent people in secret prisons without any right to due process.

Some members of the Senate have argued that these prisoners should be tried in the military justice system.  I think that we could all agree on such a course if the Administration had worked with Congress from the start and established with our approval procedures that are fair and consistent with our tradition of military justice.  I introduced a bill in the 107^th Congress to do just that.  So did Senator Specter.  The fact is that the system that has been established by the Administration to try individuals held at Guantanamo is not a system that reflects our values.  It does not give due process or independent review. 

Everyone in Congress agrees that we must capture and detain terrorist suspects, but it can and should be done in accord with the laws of war and in a manner that upholds our commitment to the rule of law.  The Judiciary Committee held a hearing on detainee issues in June.  At that hearing, Senator Graham said that once enemy combatant status has been conferred upon someone, “it is almost impossible not to envision that some form of prosecution would follow.”  He continued, “We can do this and be a rule of law nation.  We can prove to the world that even among the worst people in the world, the rule of law is not an inconsistent concept.”  I agree with Senator Graham, but I strongly believe that in order to uphold our commitment to the rule of law, we must allow detainees the right to challenge their detention in federal court.

As Chairman Specter noted on the floor last week, there are existing procedures under habeas corpus that have been upheld by the Supreme Court, that do not invite frivolous claims, and that are appropriate.  Senator Graham’s amendment would not only restrict habeas in a manner never done before in our Nation, but, as the Chairman of the Judiciary Committee said last week, it would open a Pandora’s box. 

The Chairman is right.  He spoke forcefully again this morning about the danger of such court stripping efforts.  We must not rush to change a legal right that predates our Constitution.  Creating one exemption to the Great Writ only invites more.  The Judiciary Committee has jurisdiction over habeas corpus and it should have the first opportunity to review any proposed changed carefully and thoroughly.  Although congressional action on the issue of foreign detainees is long overdue, we must not act hastily when the Great Writ – something that protects us all – is at stake. 

I ask unanimous consent to place in the record a letter from the deans of four of our Nation’s most prestigious law school that articulates the dangers of adopting the Graham amendment. 

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