Legislators may reconsider suspending habeas corpus for detainees

While the measure to restore the right of habeas corpus has almost no chance of passing before Congress adjourns later this week, the message is clear: When Democrats take over in early January, the issue could resurface.

The Military Commissions Act of 2006, which Bush signed into law in October, prevents detainees who aren't U.S. citizens from challenging their detentions in civilian courts. But Senate Judiciary Committee Chairman Arlen Specter, R-Pa., who voted for the legislation despite his opposition to stripping such rights from detainees, on Tuesday reintroduced legislation to restore those rights. A similar measure sponsored by Specter failed by three votes in October.

In a speech on the Senate floor, Specter said he was reintroducing the issue to prevent federal courts from striking down the legislation, which some of the detainees' attorneys have challenged.

But some lawmakers privately speculated that Specter may have decided to reintroduce the legislation after a recent article in the New Yorker magazine suggested that his desire to retain his powerful committee chairmanship led him to go along with the administration's wishes.

Specter on Tuesday repeated his contention that the act violates the Constitution.

"The Constitution of the United States is explicit that habeas corpus may be suspended only in time of rebellion or invasion," Specter said on the floor. "We are suffering neither of those alternatives at the present time. We have not been invaded, and there has not been a rebellion. That much is conceded."

His co-sponsor, Sen. Patrick Leahy, D-Vt., who'll become chairman of the Judiciary Committee when the Democrats take over in January, noted that the effort to secure habeas appeals for all detainees failed by only three votes.

"Since then, the American people have spoken against the administration's stay- the-course approach to national security and against a rubber-stamp Congress that accommodated this administration's efforts to grab more and more power," Leahy said. "Abolishing habeas corpus for anyone who the government thinks might have assisted enemies of the United States is unnecessary and morally wrong. It is a betrayal of the most basic values of freedom for which America stands."

But Sen. Lindsey Graham, R-S.C., who's served as a military lawyer and a judge and who helped craft the detainee legislation, said he'd oppose the move. And he said he doubted that even a Democratic-led Senate would go along with it. During the debate, Republicans had sought to portray Democrats who were opposed to lifting such rights as soft on terrorists.

"I'm curious to see what the five new Democrats would think about giving terrorists the ability to sue our troops in federal court and having federal district court judges make wartime decisions," Graham said Wednesday. "I got a feeling a lot of them would agree with me."

Attorneys for some of those detainees hailed the decision to revisit the issue.

"There's strong support in Congress, and if the issue was significantly understood, there'd be overwhelming support among Americans," said Jonathan Hafetz, who handles detainee cases for the Brennan Center for Justice at New York University School of Law. "The issue is not whether or not America should detain or try suspected terrorists, the issue is whether we're going to have a lawful and fair process."

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