When Congress created military commissions to try detainees held at Guantanamo Bay, Cuba, last year, it eliminated habeas corpus, or the right of such detainees to challenge their detention in court. There's now a new push in Congress to restore that right.
Sen. Arlen Specter (R-PA) has been trying all week to add an amendment to legislation on the Senate floor dealing with homeland security protections. His measure would restore the right of habeas corpus, despite strong opposition from the Bush administration.
Noting the strong opposition to his amendment, Specter admits that there is little prospect of forcing a vote on the measure. But he says he is confident the Supreme Court will eventually find the stripping of habeas corpus rights unconstitutional.
"We passed a statute which takes away federal court jurisdiction to make a simple determination: Is there a reason to hold them?" Specter said. "And we ought not to let that stand."
Some Republicans and Democrats have expressed support for Specter's amendment. But restoring habeas corpus rights is fiercely opposed by many Republicans, including South Carolina's Lindsey Graham.
Allowing a judge, instead of the military, to determine the status of people plotting attacks on the United States "would be a mistake of monumental proportions," Graham said.
Graham points to a recent federal appeals court decision that upholds the military commissions act.
But Specter says the ruling is at odds with the Supreme Court, in that it argues Congress has a right to pass statutes, "but [it] ignores the plain language of Justice Stevens speaking for a majority of the court, that it's a constitutional right, and that cannot be changed by an act of Congress," Specter said. "And the Supreme Court will tell the Court of Appeals that when they get the case."
On Friday, a series of closed-door military hearings begins at the prison camp in Guantanamo Bay. At issue is whether 14 suspected terrorists transferred there from secret CIA prisons, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, should be tried by military commissions as unlawful enemy combatants.
Only 10 of the 390 people being held in Guantanamo have been charged with anything. Petitions by 160 inmates challenging their detention in court have been thrown out due to the law passed by Congress.