Leahy  – Court-Stripping Provision In Mil. Comm. Bill Is ‘Un-American’ and Unconstitutional

Leahy Offers Bipartisan Amendment
To Protect Against Erroneous Detentions 

“Now is not the time to abandon American values, to shiver and quake, to rely on secrecy and torture. 

Those are ways of repression and oppression, not the American way.”

 Statement Of Sen. Patrick Leahy
On Specter-Leahy-Dodd Amendment
To Protect Against Erroneous Detentions
Senate Floor
September 27, 2006

Mr. LEAHY.  Mr. President, I join Senator Specter in offering this amendment to strike section 7 of the military commissions bill.  As currently drafted, this section would wrongfully, and in my view, unconstitutionally eliminate the writ of habeas corpus for anyone detained by this Administration on suspicion of being what they call an “enemy combatant,” which is a dangerous concept that is being expanded by a vague and ever-expanding definition.

Important as the rules for military commissions are, they will apply to only a few cases.  The Administration has charged a total of 10 people in the nearly five years since the President declared his intention to use military commissions, and it recently announced plans to charge 14 additional men.  But for the vast majority of the almost 500 prisoners at Guantanamo, and the thousands it has detained over the last five years, the Administration’s position remains as stated by Secretary Donald Rumsfeld three years ago:  It has no interest in trying them.

 

Perhaps the single most consequential provision of the so-called military commissions bill can now be found buried nearly 100 pages in to curtail judicial review and any meaningful accountability.  This provision would perpetuate the indefinite detention of hundreds of individuals against whom the Government has brought no charges and presented no evidence, without any recourse to justice whatsoever.  That is un-American, it is unconstitutional, and it is contrary to American interests.

 

Going forward, the bill departs even more radically from our most fundamental values.  And provisions that were profoundly troubling a week ago when the Armed Services Committee marked up the bill have gotten much worse in the course of closed-door revisions over the past five days, including the last round of revisions, which were sent around late yesterday, and that the majority now demands we immediately pass.  For example, the bill has been amended to eliminate habeas corpus review even for persons inside the United States, and even for persons who have not been determined to be enemy combatants. 

 

As the bill now stands, it would permit the President to detain indefinitely – even for life – any alien, whether in the United States or abroad, whether a foreign resident or a lawful permanent resident, without any meaningful opportunity for the alien to challenge his detention.  The Administration would not even need to assert, much less prove, that the alien was an enemy combatant; it would suffice that the alien was “awaiting a determination” on that issue.  In other words, the bill would send a message to the millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes.  Its message would be that our Government may at any minute pick them up and detain them indefinitely without charge, and without any access to the courts or even to military tribunals, unless and until the Government determines that they are not enemy combatants -- a term that the bill now defines in a tortured and unprecedentedly broad manner. 

Detained indefinitely, and unaccountably, until proven innocent.  Like Canadian citizen Maher Arar, shipped off to a torture cell in Syria by the Bush-Cheney Administration, despite what the Canadian Government recently concluded to be no evidence that Mr. Arar ever committed a crime or posed a threat to U.S. or Canadian security.  The Canadian Government has now documented that the wrong thing was done to the wrong man.  But the Bush-Cheney Administration has, as usual, evaded all accountability by hiding behind a purported state secrets privilege.

The Administration’s defenders would like to believe that Mr. Arar’s case is an isolated blunder, but it is not.  Numerous press accounts have quoted Administration officials who believe that a significant percentage of those detained at Guantanamo have no connection to terrorism.  In other words, the Bush-Cheney Administration has been holding for several years, and intends to hold indefinitely without trial or any recourse to justice, a substantial number of innocent people who were turned in by anonymous bounty hunters or picked up by mistake in the fog of war.

 

The most important purpose of habeas corpus is to correct errors like that – to protect the innocent.  It is precisely to prevent such abuses that the Constitution prohibits the suspension of the writ of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it.”  I have no doubt that this bill, which would permanently eliminate the writ of habeas for all aliens within and outside the United States whenever the Government says they might be enemy combatants, violates that prohibition, and that the present Supreme Court, including President Bush’s own appointees, would hold it unconstitutional. 

 

When former Secretary of State Colin Powell wrote of his concerns with the Administration’s bill, he wrote about doubts concerning our “moral authority in the war against terrorism.”  This General and former head of the Joint Chiefs of Staff was right.  Now we have heard from a number of current and former diplomats, military lawyers, federal judges, law professor and law school deans, and even the first President Bush’s Solicitor General, Ken Starr, that they have grave concerns with the habeas corpus stripping provisions of this bill.

 

Monday we rushed to hold a hearing before the Judiciary Committee on this important issue.  The surrogate for the Administration and former White House associate counsel Brad Berenson defended the habeas corpus stripping provisions by arguing that the United States has been and is still suffering from an invasion that requires the suspension of habeas corpus.  That is outrageous.  That is running scared.  That is wrong.  To quote Ken Starr:  “The United States is neither in a state of rebellion nor invasion.  Consequently, it would [be] problematic for Congress to modify the constitutionally protected writ of habeas corpus under current events.”  Of course, this latest version of the bill would not merely “modify” habeas; it would eliminate it for all aliens.

 

I agree with Mr. Starr that we should not suspend – and we should certainly not eliminate -- the great writ.  I also agree with more than 300 law professors, who described an earlier, less extreme version of the habeas provisions of this bill as “unwise and contrary to the most fundamental precepts of American constitutional traditions.”  And I agree with more than 30 former U.S. Ambassadors and other senior diplomats, who say that eliminating habeas corpus for aliens detained by the United States will harm our interests abroad, and put our own military, diplomatic, and other personnel stationed abroad at risk.  We cannot spread a message of freedom abroad if our message to those who come to America is that they may be detained indefinitely without any recourse to justice.

 

In the wake of the attack of 9/11, and in the fact of the continuing terrorist threat, now is not the time for the United States to abandon its principles.  Admiral Hutson was right to point out that when we do there would be little to distinguish America from a “banana republic” or the repressive regimes against which we are trying to rally the world and the human spirit.  Now is not the time to abandon American values, to shiver and quake, to rely on secrecy and torture.  Those are ways of repression and oppression, not the American way.

 

The habeas provisions of this bill are wrong-headed and flagrantly unconstitutional.  Tinkering with them would not make them less wrong-headed, but might make them less flagrantly unconstitutional, and I see no reason to save the Administration from itself and from the inevitable defeat when the Supreme Court strikes them down.  Why should those of us who take our oath to uphold the Constitution seriously, and who understand the fundamental importance of habeas to freedom, compromise with the drafters of this irresponsible bill?

 

That is why I am offering just one amendment, together with Senator Specter, to remove the habeas provisions from the bill in their entirety.  That is right thing to do.  We would still be left with the disgraceful but less extreme habeas-stripping provisions that we enacted earlier this year in the Detainee Treatment Act, but we would at least not make those bad provisions far worse.  By not totally eliminating habeas for all aliens, we can reduce the damage to America’s credibility as a champion of freedom, and show the American people and the courts that Congress is not entirely cavalier when it comes to its constitutional obligations.

 

This amendment would reduce the grave harm that will be done if the bill before us passes.  It was not too late last night for the Republican majority to make yet more revisions to this unconstitutional bill.  It is not too late today for us to make the bill a little less bad, and a little less offensive to the values of freedom for which America stands.  So I urge members on both sides of the aisle to vote for this amendment.

 

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