Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Judiciary Committee,
On Amendment 2022, The Habeas Corpus Restoration Act Of 2007, To H.R. 1585
Senate Floor
September 19, 2007 

At the beginning of this debate, I said that Congress committed a historic error when it eliminated the Great Writ of habeas corpus not just for those detained at Guantanamo Bay, but also for millions of permanent legal residents here in the United States.  Listening to the arguments these last few days of those opposed to restoring habeas rights, it becomes ever more apparent that this was a mistake the last Congress and the administration made based on fear. 

Opponents make the alarmist argument that if we permit people to challenge their detention in federal court, we will jeopardize our national security and place ourselves in greater danger.  In fact, the opposite is true. 

We have heard these kinds of arguments before during trying and turbulent times in American history, such as when the government shamefully interned tens of thousands of Japanese-Americans during World War II.  We should know by now that it hurts this country, and especially our men and women in uniform, when we allow public policy to be guided by fear, rather than by American values and freedoms.   

The critics of habeas restoration resort to scare tactics because they know that history and the facts are against them.  The truth is that casting aside the time-honored protection of habeas corpus makes us more vulnerable as a nation because it leads us away from our core American values and calls into question our historic role as a defender of human rights around the world.  It also allows our enemies to accomplish something they could never achieve on a battlefield – whittling away the liberties that make us who we are. 

The need for the Great Writ has never been stronger than it is today.  We have an Administration that at every opportunity has aggressively sought unchecked Executive power, while working to erode or eliminate constitutionally enshrined checks on that power by the courts and by Congress.  Stripping away habeas rights, which allow people to go to court to challenge detention by the executive, is just the latest brazen attempt in a six-year-long effort to consolidate power in the Executive Branch.  Congress has too often been complicit in this effort, and I hope we will begin to reverse this trend now. 

The writ of habeas corpus is not some special benefit to be honored only when it is convenient.  As no less a conservative than Justice Antonin Scalia has written, “[t]he 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.”   Habeas has served for centuries to protect individuals against unlawful exercises of state power.  

Habeas corpus is the only common law writ enshrined in the Constitution.  Article I, section 9 provides that the “Writ of Habeas Corpus shall not be suspended, unless when in Cases of rebellion or invasion the public Safety may require it.”  The Judiciary Act of 1789 specifically empowered federal courts to issue writs of habeas corpus “for the purpose of an inquiry into the cause of commitment.”  In more than two centuries since then, habeas has only been suspended four times, all of them at times of active rebellion or invasion.  Even this Administration does not claim that we are at such a point now.  

The Military Commissions Act of 2006 spurned centuries of tradition and empowered the Executive to detain non-citizens – potentially forever – with no meaningful check by another branch of government.  With this Act, Congress permanently eliminated the right of habeas corpus for any non-citizen determined to be an enemy combatant, or even “awaiting” such a determination.  So a mere accusation by the Executive is enough to keep a person in custody indefinitely, and that detention is not subject to review.  As our Founders knew well, no administration can be trusted with that kind of power. 

The Specter-Leahy amendment would restore the proper balance of power between the branches of Government by re-establishing the law on habeas as it existed prior to the passage of the Detainee Treatment Act and the Military Commissions Act.  It creates no new legal rights.  The U.S. Supreme Court confirmed in the Rasul case that American and British courts have routinely assumed jurisdiction over habeas claims made by aliens.   

British courts in the 18^th Century considered habeas claims of aliens held as enemy combatants, as did the United States Supreme Court during World War Two.  These courts considered habeas claims of alien enemy combatants who had already received military trials – meaning even before their habeas claims, they had already received more process than most non-citizen detainees will ever get now.  Our first Chief Justice, John Marshall, in one instance granted relief to an alien enemy combatant bringing a habeas claim.  In most of these historical cases, though, habeas petitioners lost and were not granted any relief, and indeed most habeas petitioners have their claims dismissed with a simple, one-page ruling from a judge.  This historical record is evidence that habeas can be relied upon as a necessary, but entirely reasonable, check on executive power. 

As in the past, non-citizen detainees alleged to be enemy combatants should at least have the right to go into an independent court to assert that they are being held in error.  And, as in the past, a court will only grant habeas relief if the petitioner is able to in fact establish this error.  If the detainees held at Guantanamo truly are the worst of the worst of our enemies, surely it will be easy for the government to make a baseline showing in court that they are lawfully detained.  Of course, senior government and military officials have told the press a story very different from the party line.  They have told the New York Times that the government detained many of the Guantanamo detainees in error.

In any case, the sweep of the Military Commissions Act goes well beyond the few hundred detainees currently held at Guantanamo Bay.  It threatens the civil liberties of an estimated 12 million lawful permanent residents of the United States who work and pay taxes in this country.  Under current law, any of these people can be detained forever, without the ability to challenge their detention in federal court, simply on the Executive’s say-so.  As we heard from Professor Mariano-Florentino Cuellar at the Judiciary Committee’s hearing on this issue, this is of particular concern to the Latino community, which includes so many of the hard-working lawful permanent residents in this country. 

The cursory review process set up by Congress for detainees, called combatant status review tribunals or CSRTs, is no substitute for habeas corpus because, among many other deficiencies, it does not provide a neutral arbiter – a federal judge – to review the factual record for error.  This summer, Lieutenant Colonel Stephen Abraham, a military lawyer who participated in the CSRT process, said in a sworn affidavit that the evidence presented to CSRTs “lack[s] even the most fundamental earmarks of objectively credible evidence.”  He also said that superiors pressured the officers on review panels to find detainees to be “enemy combatants.”  That is neither just nor fair, and rigged tribunals are not the way this country has ever dispensed justice, nor the way it should.  Court review allowed under current law that relies on the findings of such a flawed system falls well short of the independent review that our system of checks and balances demands.   

Restoring habeas would send a clear message that when we promote democracy and the importance of human rights to the rest of the world, we are practicing what we preach.  We need to listen to our military leaders and foreign policy specialists on this point.  Former Navy Judge Advocate General Donald Guter told the Judiciary Committee in May that by stripping even our enemies of basic rights, we are providing a pretext for those who capture our troops or civilians to deny them basic rights.  William H. Taft IV, former Deputy Secretary of Defense under President George H. W. Bush, and a former State Department advisor in the current administration, told us that stripping the courts of habeas jurisdiction sacrificed an important opportunity to enhance the credibility of our detention system.  Restoring habeas to detainees will improve our strategic and diplomatic position in the world and remove a rallying point for our enemies.   

The right to habeas corpus is a limited right.  Habeas does not give a person the right to a trial.  It does not give a habeas petitioner a right to personally appear in court, and it most certainly does not mean that U.S. servicemen and women will be pulled from the battlefield to testify in such proceedings.  All the government must do to defeat a habeas claim is demonstrate to a judge by a preponderance of the evidence that the detainee is being lawfully held.  Most habeas petitions are rejected by the federal courts without the need to call a single witness.  In fact, habeas petitions can be, and routinely are, disposed of in federal court based on a single affidavit by a government agent explaining the basis for detention.  Habeas simply provides an opportunity for a detainee to argue to an independent federal judge that he or she is being held in error.  If the detainee is properly held, this is a claim the government can easily overcome. 

Recent history makes clear that restoring habeas will not invite habeas litigation from abroad, as some have claimed.  The Supreme Court found habeas jurisdiction at Guantanamo Bay because Guantanamo is, for all intents and purposes, a U.S. territory.  U.S. courts have found no habeas jurisdiction in cases of detainees captured, detained, and held in Iraq.  There was no flood of international habeas petitions following the 2004 Rasul decision validating the extension of habeas rights to Guantanamo, and there will not be if habeas is restored now.   

Guantanamo detainees had habeas rights until those rights were conclusively taken away last year.  Between 2002 and late 2006, these claims were handled by judges in the U.S. District Court in Washington, D.C.  The judges in that court released no detainees, and they issued no orders compelling the government to alter the detainees’ conditions of confinement.  Habeas is a necessary and appropriate check on Executive power, but it is a far cry from a get-out-of-jail-free card.  

Opponents of habeas restoration suggest that other countries will not open their courts to petitions from enemy aliens.  But if a foreign country imprisoned an American – say, an aid worker, a nurse or a civilian contract employee – and held that person without charge as a “combatant” simply because he or she supported the U.S. military, the U.S. Government would surely demand that the American have a chance to go to court.  By denying basic rights to alien detainees, we encourage other nations to do the same to American civilians – and they will. 

Critics of the Specter-Leahy bill also point to released detainees who they assert went back to the battlefield, as a reason not to restore habeas rights.  But the truth is that those Guantanamo detainees who have been released since 9/11 have been freed by the military following its own process, not by federal judges on habeas review.  

The critics’ assertions that habeas proceedings in federal court will somehow lead to the sharing of classified information with terrorists is merely fear-mongering.  This argument demeans our federal judiciary and ignores the procedures established by Congress to insure that classified information is safeguarded in federal proceedings.  Federal judges have significant discretion in determining what kinds of evidence to consider, and what witnesses, if any, to allow for a habeas claim.  Many detainee habeas claims could therefore be resolved with no recourse to classified documents at all.  Where classified evidence is relevant, all federal judges are cleared to view such information, and they are well-equipped to deal with it without compromising national security.

We must not succumb to baseless, fear-driven arguments.  The sky will not fall if we vote to restore habeas.  Quite the contrary:  Congress will take a positive step toward returning to our core American values of liberty, due process, and checks and balances.  In doing so, we will increase America’s security and bolster our place in the world.  That is why this amendment has support from across the political and ideological spectrum. 

I thank Senator Dodd, Senator Menendez, and Senator Specter for coming to the floor and eloquently calling for a return to basic American values and the rule of law.  Yesterday, 41 Republicans voted to filibuster a bill that would have given the hundreds of thousands of residents of the District of Columbia the fundamental right to vote for Congress.  I hope they will not follow that sad day with a filibuster today of legislation to restore the fundamental right of someone held by the government without charge to go to court. 

The most daunting challenge in the age of terrorism is to strike the proper balance between maintaining our national security against very real threats and preserving the civil liberties that are the proudest legacy of our Founders.  More than ever, in the wake of September 11^th, we must remain vigilant against security threats, but we must never forget that our values are the foundation that makes our nation strong.  Now is the time to reaffirm those values by renewing this country’s fundamental, longstanding commitment to habeas corpus review.   I urge every Senator to support the Specter-Leahy amendment to restore habeas corpus. 

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