Leahy Urges Restoration of Habeas Corpus Rights
Judiciary Chairman Testifies Before Senate Armed Services Committee
On Repealing Provisions Of Military Commissions Act

WASHINGTON (Thursday, April 26) -- Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, today testified before the Senate Armed Services Committee on the need to restore habeas corpus protections.  Leahy and Senator Arlen Specter (R-Pa.), ranking member of the Judiciary Committee, introduced the Habeas Corpus Restoration Act of 2007 (S. 185) earlier this Congress.  The bipartisan bill would restore these fundamental protections by repealing provisions of the Military Commissions Act of 2006.

Testimony Of Senator Patrick Leahy
Before Hearing Of The Senate Armed Services Committee
April 26, 2007

I thank Chairman Levin and Ranking Member McCain for granting my request to testify before the Senate Armed Services Committee this morning, and for convening this important hearing.  The way that we treat people who are detained by our government outside of the judicial system, and the laws we pass governing those detainees, provides a window into our own values, our own traditions, and our own identity as a country.  This issue is central to the way America is viewed in the world and the way we view ourselves as a nation. 

Unfortunately, the image of America created by our treatment of detainees and by laws we have passed on this issue is not the kind of image that I, or many of you, would have preferred to present to the world.  Last year’s Military Commissions Act -- reported by this Committee and then altered at the request of the White House before Senate passage -- was a mistake of historic proportions. 

It is on the elimination of habeas corpus rights, that I would like to focus this morning.  Speaking as an American, a Senator and as the Chairman of the Judiciary Committee, I believe that it was the worst of the unfortunate changes made by that hastily-passed legislation in the weeks before an election.

Senator Specter and I fought hard to remove the disastrous habeas provision from the bill and, with the support of Senator Levin and many others, came within a couple of votes of prevailing.  I hope that we will work together in a bipartisan way to correct this historic wrong.  I anticipate that the Judiciary Committee will hold a hearing on this issue next month.  With the help of Chairman Levin and others, I hope we can fix this serious and corrosive problem by this summer.

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 Military Commissions Act.  The Military Commissions Act eliminated that right, permanently, for any non-citizen labeled an enemy combatant -- even if the detainee is “awaiting” determination of that status.  The sweep of its habeas provision goes far beyond the few hundred detainees currently held at Guantanamo Bay, and includes an estimated 12 million lawful permanent residents in the United States today.  These are lawful residents of the United States, people who work and pay taxes, people who abide by our laws and should be entitled to fair treatment. 

It applies to anyone who is visiting the United States and other legal immigrants as well.  These are people we have traditionally welcomed to our shores and invited to experience the freedoms that made America the most admired country in the world.  This new law means that any of these people can be detained, forever – that’s right, forever -- without any ability to challenge their detention in federal court, or anywhere else, simply on the Government’s say-so that they are awaiting determination as to whether they are enemy combatants.

Last fall, I spelled out a nightmare scenario about a hard-working legal permanent resident who makes an innocent donation to a charity to help poor people around the world in the finest American tradition.  If that charity is secretly suspected by the Government to fund critics of the United States Government, that innocent act could lead to an indefinite and unchallengeable incarceration.  On the basis of a charitable donation and perhaps a report of “suspicious behavior” from an overzealous neighbor or from information secretly obtained from a cursory review of the person’s library borrowings, 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. 

This is the kind of “disappearance” that America has criticized and condemned in parts of the world ruled by autocratic regimes.  That is not America.  And that is not the image of America we want the world to have. 

Many people viewed this kind of nightmare scenario as fanciful, but sadly it was not.  Indeed, last November just after enactment of these provisions, the scenario I spelled out was confirmed by the Department of Justice 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 as an enemy combatant without giving that person any ability to challenge his detention in court.  And this is not just at Guantanamo Bay for those who this Administration likes to call the worst of the worst.  The Justice Department said it is true even for someone arrested and imprisoned in the United States. 

We have removed a vital check that our legal system provides against the Government arbitrarily detaining people for life without charge.  This is wrong.  It is unconstitutional.  It is un-American. 

A group of four distinguished admirals and generals, who have served as senior military lawyers, argued passionately for fixing this problem in a letter they sent to me last month.  They wrote, “In discarding habeas corpus, we are jettisoning one of the core principles of our nation precisely when we should be showcasing to the world our respect for the rule of law and basic rights.  These are the characteristics that make our nation great.  These are the values our men and women in uniform are fighting to preserve.”

We should take steps to ensure that our enemies can be brought to justice.  I introduced a bill to do that back in 2002, as did Senator Specter, when we each proposed to establish military commissions.  Establishing appropriate military commissions is not the question.  But what we must revisit and correct is the suspension of the writ of habeas corpus for millions of legal immigrants and others, denying their right to challenge indefinite detention on the Government’s say-so.

It is from strength that America should defend our values and our way of life.  It is from the strength of our freedoms, our Constitution and the rule of law that we can prevail.  We should not be legislating from fear.  We can ensure our security without giving up our liberty.  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.  

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