Congress Fails to "Restore" Habeas Corpus This Morning

Democratic Senator Pat Leahy continues to claim all kinds of disaster that hasn't actually happened regarding habeas corpus. This morning, his "Habeas Corpus Restoration Act," cosponsored by faux-Republican Arlen Specter, was considered by the Senate.

The bill failed to reach cloture 56-43 (which means we'll probably be seeing it again). Notable fence-jumpers on this are Republicans Specter, Chuck Hagel, Richard Lugar, George Smith, Olympia Snowe, and John Sununu. They voted for cloture. Independent Joe Lieberman, in a reversal from his vote on a similar bill last September, was the only non-Republican who voted against.

This isn't encouraging. We are only three votes away from seeing key provisions of the Military Commissions Act undone.

Leahy makes what I will charitably call "errors" in his attempts to gather support for the bill. I hope to spend some time on posts about habeas corpus, but am a little busy right now preparing for an advocacy tournament. For now, see National Review Online's excellent editorial on the topic.

If ever there has been cravenness hidden under bold rhetoric, it is the Habeas Corpus Restoration Act of 2007, brainchild of the Senate Judiciary Committee’s senior members, Arlen Specter and Patrick Leahy. This effort to return to the federal district courts the cases of alien enemy combatants held at Guantanamo Bay might more aptly be called the “Avoiding Congressional Accountability Act” — or, as the Brookings Institution’s Benjamin Wittes has tartly suggested, the “Leave It to Justice Kennedy Act.”

Posted by: Gabriel Malor at 02:19 PM

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1 Gabriel,

I am glad you got to this. I was going to give it a whack but I figured one of the damn lawyers around here would get to it.

Help me out with something please, this all goes back to Rasul v. Bush, right? The Military Commissions Act over turned that decision (which as per the norm, Scalia had a great dissent) and the Democrats and Specter (but I repeat myself) have been trying to undo that ever since.

It's frightening and a little sad that a majority of US Senators are hell bent on extending rights to terrorists that have never been extended to any enemy combatant or legitimate POW in history.

Posted by: Drew at September 19, 2007 03:01 PM (hlYel)

2 Eh, should have read your NRO link first. This whole thing is the progeny of the awful Rasul decision.

Posted by: Drew at September 19, 2007 03:05 PM (hlYel)

3 This is precisely why we shouldn't be "detaining" jihadis except under extraordinary circumstances. As unlawful combatants, they should get a quick walk past an interrogator and a bullet as soon as practicable.

Posted by: mojo at September 19, 2007 03:14 PM (g1cNf)

4 Hagel can't retire soon enough...

Posted by: richard mcenroe at September 19, 2007 03:23 PM (SpVRp)

5 mojo, the problem with that is that the "quick walk past an interrogator" means that we'll have the combatant-detainee in custody. That means his death is not a combat death, but a summary execution.

Posted by: Gabriel Malor at September 19, 2007 03:24 PM (2+M8y)

6 George Smith is actually Gordon Smith. But who cares?

Remember, not a dime to the Republican Senate Campaign Committee. No money for George--er, Gordon--Smith.

Posted by: OregonGuy at September 19, 2007 03:33 PM (0W7z2)

7 The Court did a shatteringly bad job in Rasul, Drew. What was pretty clear before (statutory habeas only extends to territory in which federal courts exercise jurisdiction and to citizens or aliens with a sufficient connection to the U.S) became a mess (statutory habeas still exists within the jurisdiction of the federal courts, but can extend outside of areas where courts exercise jurisdiction, despite the language of the habeas statute, and therefore it isn't necessary that an alien outside of the U.S. jurisdiction have a sufficient connection to the U.S. to avail himself of a habeas petition).

The problem with the MCA isn't statutory habeas. Congress can take away what (the Supreme Court says, anyways) Congress has already granted. The problem is constitutional habeas. Constitutional habeas is a little amorphous. We know what is definitely included: citizens. We know what is definitely excluded: alien enemy combatants who committed their crimes outside the U.S. and have never been inside U.S. territory.

The fear now is that the numbskulls who determined that for purposes of statutory habeas, Guantanamo Bay counts as U.S. territory, will decide the same thing for constitutional habeas.

Posted by: Gabriel Malor at September 19, 2007 03:34 PM (2+M8y)

8 The problem with the MCA isn't statutory habeas. Congress can take away what (the Supreme Court says, anyways) Congress has already granted.

Which is what the MCA did in light of Rasul, right?

The question of constitutional habeas hasn't come up yet, except as applied to U.S. citizens in Hamdi, has it? I imagine there's a case working its way up but I don't know the name. Do you?

On the upside, O'Connor was on the court for Rausl (and in the majority of the 5-4 vote). Let's hope Alito comes through.

Posted by: Drew at September 19, 2007 03:53 PM (hlYel)

9 The problem in Rasul is Kennedy. He concurred with the result, making it essentially 6-3 and he specifically agreed with the majority's determination that U.S. exclusive control over Guantanamo Bay makes it U.S. territory for purposes of habeas corpus.

Posted by: Gabriel Malor at September 19, 2007 04:15 PM (1Ug6U)

10 Oh, and yes, several cases are on their way to the Court with the issue of constitutional habeas, including the latest Hamdi decision (PDF). (BTW, Judge Robertson in that decision does a really good job explaining the difference between statutory and constitutional habeas.)

The other case are named Al Odah and Boumediene.

Posted by: Gabriel Malor at September 19, 2007 04:19 PM (1Ug6U)

11 Doh, I misread the breakdown. Of course Kennedy is the problem. What else is new? Why did Douglas Ginsburg have to toke up while teaching in law school!?$#@#!

Posted by: Drew at September 19, 2007 04:23 PM (hlYel)

12 How embarrassing. That link is to Hamdan v. Rumsfeld. That's the one that's on its way back to the Supreme Court. Not Hamdi. My bad.

Hamdi = citizens can be held as enemy combatants.
Hamdan = alien unlawful combatant can be held, but Congress has to authorize military commissions.

Posted by: Gabriel Malor at September 19, 2007 04:38 PM (1Ug6U)

Just noticed that the Post changed the headline on this story from "restore detainee rights" to "expand detainee rights".

This is about providing/giving complete access to civilian courts to enemy alien detainees held overseas. Something we have never done and that would be absolutely disastrous for this nation.

At least one adult is still working over there.

SMG

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