Leahy: ‘We have a profoundly important and dangerous choice to make today’ --

 “What has changed in the last five years that our Government is so inept and our people so terrified that we must do what no bomb or attack could ever do by taking away the very freedoms that define America?  Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?”

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 Statement Of Sen. Patrick Leahy
On Specter-Leahy-Dodd Amendment To Strike Section 7
Of The Military Commission Bill  
Senate Floor
September 28, 2006

Mr. LEAHY:  Mr. President, there are approximately 12 million lawful permanent residents in the United States today, people who work for American firms, raise American kids, and pay American taxes.  Section 7 of the bill before us represents a choice about how to treat them.  This bill could have been restricted to traditional notions of enemy combatants – foreign fighters captured on the battlefield – but the drafters of this bill chose not to do so.  So let’s be clear about the choice this bill would make.  Let’s be absolutely clear about what this bill says to lawful permanent residents of the United States.  And then let’s decide if it’s the right message to send to them, and to the rest of the world.

Imagine that you are a law-abiding, lawful permanent resident.  In your spare time, you do charitable fundraising for international relief agencies that lend a hand in disasters.  You send money abroad to those in need.  You are selective in the charities you support, but you do not discriminate on grounds of religion.  Then one day there is a knock on your door.  The Government thinks that the Muslim charity you sent money to may be funneling money to terrorists, and it thinks you may be involved.  And perhaps an overzealous neighbor who saw a group of Muslims come to your house has reported “suspicious behavior.”  You are brought in for questioning. 

Initially, you are not too worried.  This is America, you are innocent, and you have faith in American justice.  You know your rights, and you ask for a lawyer.  But no lawyer comes.  Once again, since you know your rights, you refuse to answer further questions.  Then the interrogators get angry.  Then comes solitary confinement, then fierce dogs, then freezing cold that induces hypothermia, then waterboarding, then threats of being sent to a country famous for its torture techniques, then Guantanamo.  And then nothing, for years, for decades, for the rest of your life. 

That may sound more like an experience from some oppressive and authoritarian regime, something that would have happened under the Taliban, something that Saddam Hussein would have ordered or something out of Kafka. There is a reason why that does not and cannot happen in America.  The protection is called habeas corpus or, if you do not like the Latin phrase by which it has been known throughout out history, call it access to the independent federal courts to review the authority and legality by which the Government has taken and is holding someone in custody.  It is a fundamental protection woven into the fabric of our Nation.

Proposed Bill Eliminates Freedoms; Casts Wide Net in Defining ‘Enemy Combatants’

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.

If we pass this bill today, that will all be gone 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.  That will be gone for another estimated 11 million immigrants that the Senate has been working to bring out of the shadows with comprehensive immigration reform. 

The bill before us would not merely suspend the writ of habeas corpus; it would eliminate it permanently.  It would cut off all habeas petitions – not just those founded on relatively technical claims, but also those founded on claims of complete innocence.  It would not be limited to enemy combatants in the traditional sense of foreign fighters captured on the battlefield; it would apply to any alien picked up anywhere in the world and suspected of possibly supporting enemies of the United States.  We do not need this bill for those truly captured on the battlefield who had taken up arms against the United States. That is why the definition of “enemy combatant” has been so expansively redefined in the dark of night.  This bill is designed instead to sweep others into the net and it would not require even an administrative determination that the Government’s suspicions have a reasonable basis.  By its plain language, it would deny all access to the courts of any alien “awaiting” a Government determination as to whether the alien is an enemy combatant, a determination that the Government would be free to delay as long as it liked—for years, for decades, for the length of the conflict which is so undefined and may last for decades or more. 

That is not speculation.  It is not a critic’s characterization of the bill.  It is what the bill plainly says, on its face.  It is what the Bush-Cheney Administration is demanding.  It is what any member who votes against the Specter-Leahy amendment and for the bill today will be endorsing. 

Bill Goes Beyond Detainee Treatment Act

The habeas-stripping provisions in the current bill go far beyond what Congress did in the Detainee Treatment Act in at least three respects.  First, as the Supreme Court pointed out in Hamdan, the DTA removed habeas jurisdiction only prospectively for future cases.  By contrast, the new bill would strip habeas jurisdiction retroactively even from pending cases. That is an extraordinary action that runs counter to long held U.S. policies disfavoring retroactive legislation.  Second, the DTA applied only to detainees at Guantanamo. The new legislation goes far beyond Guantanamo and strips the right to habeas of any alien, even in the United States, if the alien has been determined an enemy combatant or is awaiting a determination whether he is an enemy combatant.  That would allow the government to hold even a permanent resident alien forever without the right to habeas while the government decides whether he is an enemy combatant.  And third, the impact of those provisions is extended by the new definition of enemy combatant proposed in the current bill.  The bill would extend the definition to include persons who supported hostilities against the United States, even if they did not engage in armed conflict against the United States or its allies.  That, again, is an extraordinary extension of existing law and of the persons whom the law would authorize the government to detain without any access to the historic writ of habeas corpus.

If we vote today to abolish rights of access to the justice system to any alien detainee who is suspected – not determined, not even charged, but just suspected -- of assisting terrorists, that will do by the back door what cannot be done up front.  That will remove the check that our legal system provides against arbitrarily detaining people for life without charge and, for that matter, could make any limits against torture and cruel and inhuman treatment obsolete because they will be unenforceable.  We will have removed the mechanism the Constitution provides to check Government overreaching and lawlessness.  If this bill became effective, it would make it impossible for aliens ever to challenge and prove such abuses. 

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 the Bush-Cheney Administration lawlessness.  Certainly the rubberstamp Republican Congress has not done it, or even investigated it.  With this bill, the Congress will have completed the job of eviscerating its role as a check and balance on the Administration.  The Senate has turned its back on the Warner-Levin bill, a bipartisan bill reported by the Armed Services Committee, to jam through the Bush-Cheney bill.    With a few corrections, the Senate committee bill would have done the job.  This bill gives up the ghost.  This bill is not a check on the Administration but a voucher for future wrongdoing.

Betrayal of Basic Values  of Freedoms -
Makes Mockery of Bush Administration’s Claim of ‘Exporting Freedom Across the Globe’

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. 

I read yesterday from former Secretary of State Colin Powell’s letter, in which he voiced concern about our moral authority in the war against terrorism.  This General and former head of the Joint Chiefs of Staff and former Secretary of State was right.

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.”

I ask unanimous consent to place in the record a letter from more than 60 law school deans and professors.  They note: “The Congress would gravely disserve our global reputation as a law-abiding country by enacting bills that seek to combat terrorism by stripping judicial review.”

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.

In Wake of 9-11 Congress Provided Executive Authority to Detain Aliens With Appropriate Judicial Check
(Section of the 2001 PATRIOT Act)

The post-9/11 world requires us to make adjustments.  In the original PATRIOT Act five years ago, we made adjustments to accommodate the needs of the Executive, and more recently, we sought to fine-tune those adjustments.  I think some of those adjustments sacrificed civil liberties unnecessarily, but I also believe that many provisions in the PATRIOT Act were appropriate.  I wrote many of the provisions of the PATRIOT Act, and I voted for it.

This bill is of an entirely different nature.  Where the PATRIOT Act took a cautious approach to civil liberties, this bill takes an entirely dismissive and cavalier approach to basic human rights and to the Constitution.

In the aftermath of 9/11, Congress provided in section 412 of the PATRIOT Act that an alien may be held without charge if, and only if, the Attorney General certifies that he is a terrorist or that he is engaged in activity that endangers the national security.  He may be held for seven days, after which he must be placed in removal proceedings, charged with a crime, or released.  There is judicial review through habeas corpus proceedings, with appeal to the D.C. Circuit.

Compare that to section 7 of the current bill.  The current bill does not provide for judicial review.  It would preclude it.  It does not require a certification by the Attorney General that the alien is a terrorist.  It would apply if the alien was “awaiting” a Government determination whether the alien is an “enemy combatant.”  And it is not limited to seven days.  It would enable the Government to detain an alien for life without any recourse whatsoever to justice.

An Important And Dangerous Choice With This Bill

What has changed in the past five years that justifies not merely suspending, but abolishing the writ of habeas corpus for a broad category of people who have not been found guilty or even charged with any crime?  What has changed in the last five years that our Government is so inept and our people so terrified that we must do what no bomb or attack could ever do by taking away the very freedoms that define America? Why would we allow the terrorists to win by doing to ourselves what they could never do and abandon the principles for which so many Americans today and through our history have fought and sacrificed?   What has happened that the Senate is willing to turn America from a bastion of freedom into a caldron of suspicion ruled by a Government of unchecked power?

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 now, six weeks before a mid-term election, the Bush-Cheney Administration and its supplicants here in Congress deem a complete abolition of the writ the highest priority – a priority so urgent that we are allowed no time to properly review, debate and amend a bill we first saw in its current form less that 72 hours ago.  Notwithstanding the harm the Administration has done to national security with its mismanaged misadventure in Iraq, there is no new national security crisis.  There is only a Republican political crisis.  And that, as we all know, is why this un-American, unconstitutional legislation is before us today.

We have a profoundly important and dangerous choice to make today.  The danger is not that we adopt a “pre-9/11 mentality.”  We adopted a post-9/11 mentality in the PATRIOT Act when we declined to suspend the writ, and we can do so again today.  The danger, as Senator Feingold has stated in a different context, is that we adopt a pre-1776 mentality: one that dismisses the Constitution on which our American freedoms are founded.  Actually, it is worse than that.  Habeas corpus was the most basic protection of freedom that Englishmen secured from their King in the Magna Carta.  The mentality adopted by this bill, in abolishing habeas corpus for a broad swath of people, is a pre-1215 mentality.

Every one of us has sworn an oath to uphold the Constitution.  In order to uphold that oath, I believe we have a duty to vote for this amendment and against this irresponsible and flagrantly unconstitutional bill.  That is what I shall do, and I urge all Senators on both sides of the aisle to join me.

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