MADELEINE BRAND, host:
This is DAY TO DAY from NPR News. I'm Madeleine Brand.
Senate Democrats are expected to debate several aspects of the president's war powers this week. They hope to start with a proposal to restore the rights of habeas corpus to detainees who have been labeled enemy combatants.
Joining us now to discuss this is Slate.com legal analyst and a regular here on DAY TO DAY, Dahlia Lithwick.
Ms. DAHLIA LITHWICK (Slate): How are you, Madeleine?
BRAND: Well, talk about habeas corpus at the top of their list. Why?
Ms. LITHWICK: Well, habeas corpus is sort of one of these great, great granddaddies of our legal tradition. It legally and technically means bring forth the body. And it's sort of this principle that's been embodied in, you know, the Magna Carta, in the Constitution, and it essentially says, look, the state cannot hold somebody without justifying why they're being held. And so habeas corpus is this sort of august, august right, and the Constitution provides that it can only be suspended in cases of, quote, "rebellion or invasion." And it's only been suspended once, until it was sort of suspended by the Congress, and that was by President Lincoln during the Civil War. So it's an enormously important right and the suspension of that right is hugely consequential.
BRAND: So, so far it's been suspended for the detainees at Guantanamo. And is this bill designed to give them back that right?
Ms. LITHWICK: It is designed to do exactly that. There's been, in effect, a turf war going on between Congress and the courts and the president over the right to habeas corpus for years now. And this is an attempt by Congress to sort of get in the camp of the Supreme Court, get out of the president's court, and say, in effect, this right is too sacred to be suspended at this moment.
BRAND: Who is behind this bill and what does it say exactly?
Ms. LITHWICK: Well, it's Senators Leahy and Arlen Specter. And it's called the Habeas Corpus Restoration Act of 2007. It essentially undoes legislation that was enacted last fall when the Congress more or less overruled the Supreme Court. In 2006, as you'll remember in the Hamdan case, the Supreme Court said, no, we still have jurisdiction to hear at least pending habeas corpus appeals from so-called enemy combatants. Shortly thereafter, Congress passed legislation that essentially authorized the military tribunals that were going on at Guantanamo but also stripped the detainees the right to file habeas petition and said even those with pending petitions cannot be heard. So this would restore that right to so-called enemy combatants, give them that moment to go into court and say I challenge the facts of this detention. Tell me why I'm here.
BRAND: How likely is this bill to pass? And if passed, how likely will it be signed by the president?
Ms. LITHWICK: Well, we're hearing lots of talk right now of the possibility of a filibuster, and we are also, yes, hearing talk that the president would veto it. One other timely little note about this, as we start to discuss the possibility of Judge Mukasey being given the attorney general gig, is that he wrote a piece in the Wall Street Journal quite recently before his name was officially floated as the president's probable choice in which he essentially said he questioned the wisdom of granting habeas jurisdiction to the folks at Guantanamo. So he actually has spoken to this issue. Whether or not that proves to be, you know, something that hangs over his confirmation hearing remains to be seen.
BRAND: Dahlia Lithwick of Slate.com, thank you.
Ms. LITHWICK: My pleasure.
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