Senate Argues Restoring Habeas Corpus

The Senate enters the second week of debate on a defense bill setting military policies and authorizing next year's Pentagon spending. Some senators are pushing to restore the legal protections of foreign detainees deemed to be "unlawful enemy combatants."

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STEVE INSKEEP, host:

Here in the United States, the Senate is debating military policies and next year's spending for the Pentagon. Now as part of this defense bill, some lawmakers also want to force changes in President Bush's Iraq policy, but there's another subject of contention. Some senators are pushing to restore the legal protections of foreign detainees deemed to be unlawful enemy combatants.

Here's NPR's David Welna.

DAVID WELNA: Last year, a Republican-run Congress approved a set of new rules for legal proceedings involving detainees in places like Guantanamo Bay, Cuba. Stripped out of the so-called Military Commissions Act at the behest of the Bush administration was the centuries old right of detainees to challenge their detention in court - what's known as the grand writ of habeas corpus. With Democrats now controlling Congress, judiciary committee Chairman Patrick Leahy says the time has come to restore that protection for everyone detained by U.S. authorities.

Senator PATRICK LEAHY (Democrat, Vermont): Habeas corpus was recklessly undermined in last year's Military Commissions Act. And like the internment of Japanese-Americans during World War II, the elimination of habeas rights was an action driven by fear, has been a stain on America's reputation in the world.

WELNA: Leahy's been joined by Arlen Specter, the judiciary panel's top Republican in co-sponsoring the Habeas Corpus Restoration Act. Last week, Specter interrupted the debate about Iraq on the Senate floor to spotlight that legislation, which he and Leahy are offering as an amendment to the Defense Policy bill.

Senator ARLEN SPECTER (Republican, Pennsylvania): What happens in Iraq obviously is of enormous importance. But if we lose the basic fundamental rights to require evidence before somebody is held in detention, if we lose the right of Habeas Corpus, it is a very sad day in America.

WELNA: Specter is not the only prominent Republican publicly defying President Bush's wish to restrict Habeas Corpus. The president's first Secretary of State, Colin Powell, declared last month on NBC's "Meet the Press" that it was time to shut down Guantanamo and move the detainees into the nation's federal legal system.

Mr. COLIN POWELL (Former Secretary of State; Retired Army General): The concern was, well, then they'll have access to lawyers. Then they'll have access to writs of Habeas Corpus. So what? Let them. Isn't that what our system's all about? And by the way, America, unfortunately, has 2 million people in jail, all of whom had lawyers and access to writs of Habeas Corpus. And so we can handle bad people with our system.

Senator LINDSEY GRAHAM (Republican, South Carolina): I am dead set against allowing federal judges to make military decisions that they are not trained to make.

WELNA: South Carolina Republican Senator Lindsey Graham is himself a judge advocate with the Air Force Reserve. He's also one of the Senate's most ardent opponents of allowing detainees to challenge their detention in federal courts.

Sen. GRAHAM: Everybody will have their day in court, but I am not going to sit on the sidelines and watch this war be criminalized. These are not common criminals. They're accused of being warriors, involved in a global war. And I think our military id best equipped to determine who's part of the enemy force and the judges in our courts will be able to review military decisions in terms of whether it was fair.

WELNA: Senate GOP leaders are expected to filibuster any attempt to restore Habeas Corpus. Trent Lot is the Senate's number two Republican.

Senator TRENT LOTT (Republican, Mississippi): It's going to be a hard sell to say that these people at Guantanamo and others are entitled to all the legal niceties of the American legal system based on who they are and what they did. So, the least with me, it won't be well received.

WELNA: Still, the defense policy bill already has some provisions aimed at improving legal protections for detainees. Armed Services Chairman Carl Levin says they're basic protections.

Senator CARL LEVIN (Democrat, Michigan; Chairman, Senate Armed Services Committee): Including after a few years at Guantanamo, you have to have a lawyer if you want one. You cannot be proven to be an illegal combatant based on coerced testimony and a few changes like that, which we think will be required by a court. As a matter of fact, if there's any hope that the procedures that are in places there will past muster within American court.

WELNA: Human Rights Watch's Tom Malinowski says these are important provisions.

Mr. TOM MALINOWSKI (Washington Advocacy Director, Human Rights Watch): For detainees in Guantanamo, this will be a significant improvement. It will give them a fighting chance to demonstrate that they are not the people who the government says they are. The danger is that we end up with a permanent system - a detention without charge - for anybody who any president believes to be a threat.

WELNA: Closing the Guantanamo Bay Detention Facility, Malinowski says, would be a good first step. California Democrat Dianne Feinstein is proposing to do just that with an amendment to the defense bill, but she says it's been blocked.

Senator DIANNE FEINSTEIN (Democrat, California): There are people that really don't want to give me a vote on it. And so I'd probably have to go to cloture, and whether it will get 60 votes or not is just a wish and a prayer right now, I think.

WELNA: That same 60 votes threshold needed to break a filibuster may also kill the Habeas Corpus amendment. Though the Supreme Court now plans to weigh in on that issue as well.

David Welna, NPR News, the Capitol.

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Primer: Guantanamo Detainees' Rights

Supreme Court Will Hear Detainee Cases

A guard talks with a Guantanamo detainee in an April 2007 file photo. The Supreme Court has agreed to review whether detainees at the U.S. prison camp in Cuba can challenge their confinement in federal court. Paul J. Richards/AFP/Getty Images hide caption

itoggle caption Paul J. Richards/AFP/Getty Images

About the Author

Anne Hawke is an editor and producer with NPR. She is a graduate of New York University's School of Law.

In a highly unusual reversal, the Supreme Court has agreed to review whether detainees at Guantanamo Bay, Cuba, can challenge their confinement in federal court by filing what is known as a writ of habeas corpus. The announcement represents a rare change of course for the nation's high court, which earlier decided not to take on the case.

Here, a guide to some of the legal issues involved:

What is habeas corpus?

"Habeas corpus" is a Latin phrase meaning "you have the body." It's an ancient concept. In old English law, it was used to refer to a judge's order (or "writ") to bring a prisoner before a court to determine whether his imprisonment was unlawful.

In modern times, death row inmates have used this process to get access to federal court to challenge their confinement. In 1996, however, Congress passed a law cutting back on habeas petitions in death-penalty cases, reasoning that those appeals had become so numerous that they were eroding the effectiveness of the death penalty.

What does habeas mean for a Guantanamo detainee?

For a detainee in the prison at the U.S. Naval base in Cuba, habeas corpus refers to the right to get direct access to federal court to challenge his imprisonment. Habeas is a process that challenges the lawfulness of how or why a detainee is confined at Guantanamo.

What is the current status of habeas review?

Detainees do not currently have access to federal courts through habeas corpus to challenge the lawfulness of their confinement. In 2005, Congress passed the Detainee Treatment Act, which eliminated habeas corpus for all detainees at Guantanamo.

The Guantanamo military tribunals, called military commissions, were created by executive order in November 2001, but in June 2006, the Supreme Court struck down the system. In October 2006, Congress passed the Military Commissions Act, establishing a new system of military tribunals to hear cases involving Guantanamo detainees. Those cases include allegations of war crimes, and determinations of whether a detainee is an enemy combatant. Access to federal court is available under the Detainee Treatment Act only if a detainee is appealing the determination of his status as an enemy combatant or a war crime conviction. (See accompanying chart.)

What has the Supreme Court said regarding habeas corpus and detainees?

The Supreme Court reversed itself Friday by deciding to hear a case involving 45 men at Guantanamo who filed writs of habeas corpus. The detainees are asking that a federal judge review whether it is constitutional to keep them locked up indefinitely as enemy combatants — without being charged or having access to lawyers.

But Congress has barred detainees from filing writs of habeas corpus. The detainees challenged that law in court, but a federal appeals court ruled against them in February. In April, the Supreme Court declined to review the appeals court's decision.

In changing course now, the high court ordered that new briefs be filed and said it would hear the cases later this year.

Meanwhile, Democrats on Capitol Hill are calling for Congress to restore detainees' rights to file habeas corpus lawsuits in federal court.

What changes are congressional Democrats calling for?

Democrats want to restore the right of habeas review to Guantanamo detainees. In early June, the Senate Judiciary Committee voted 11-8 for a proposal that would do just that. Sen. Arlen Specter of Pennsylvania was the only Republican to join the panel's Democrats in voting for the bill.

In response, the Justice Department issued a statement indicating that President Bush's senior advisers will recommend that he veto the bill.

Why does the Justice Department oppose these changes?

In a letter to Judiciary Committee Chairman Patrick Leahy (D-VT) in early June, Attorney General Alberto Gonzales said that granting detainees greater access to U.S. courts would overburden those courts. It would also delay the process of "bringing enemy combatants to justice." Quoting a 1950 Supreme Court ruling, Gonzales warned that "the extension of habeas corpus to alien combatants captured abroad 'would hamper the war effort and bring aid and comfort to the enemy.'"

Gonzales said the system of military tribunals created last year already offers Guantanamo detainees "an unprecedented degree of process."

Does the U.S. Constitution require that detainees be granted habeas review?

The Bush administration and many Republicans argue that the rights guaranteed under the U.S. Constitution — including the right to access the courts — extends only to individuals present on U.S. territory and to U.S. citizens who are terrorism suspects, not to alien detainees at Guantanamo.

Democrats and other critics of the Detainee Treatment Act argue that the removal of habeas corpus is unconstitutional. They claim that habeas is fundamental to civilized society, and that stripping Guantanamo detainees of that right has diminished America's moral standing abroad.

What other judicial processes are in place for Guantanamo detainees?

Only three cases have been brought under the new system of military commissions at Guantanamo Bay. Two of those cases were recently dismissed. In the third case, the detainee pleaded guilty and was repatriated to Australia.

Without habeas corpus, there are currently two routes to the federal courts. (See accompanying chart.) The Combatant Status Review Tribunal determines whether a detainee is an enemy combatant. The Court of Military Commissions decides whether a detainee committed war crimes. Both of those decisions are ultimately reviewable by the U.S. Circuit Court of Appeals for the District of Columbia and the Supreme Court of the United States.

To be released from Guantanamo, a detainee must either be deemed not an enemy combatant, or successfully challenge his detention on some other grounds through habeas review. If acquitted on war crimes charges, a detainee remains at Guantanamo as an enemy combatant. If convicted of war crimes, a detainee stays at Guantanamo until the end of his criminal sentence, even if the remaining detainees are released.

Sources: U.S. Department of Justice; Madeline Morris, a law professor at Duke University and chief counsel to the Office of the Chief Defense Counsel for Military Commissions.

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