Democrats Will Revisit Military Habeas Debate
    By Lawrence Hurley
    The Daily Journal

    Friday 10 November 2006

Likely chair Leahy objects to limits on detainees' rights.

    Washington - An effort to restore habeas corpus rights for enemy combatants could be the first test of the Democrats' resolve to change course in the Senate Judiciary Committee.

    Sen. Patrick Leahy of Vermont, who is expected to become chairman, confirmed Thursday that he is drafting a bill to undo portions of a recently passed law that prevent terrorism detainees from going to federal court to challenge the government's right to hold them indefinitely.

    Reversing the Damage

    Leahy's goal is to "try and do something to reverse the damage," said his spokeswoman, Tracy Schmaler.

    Depending how the legislation is worded, it could set up a partisan showdown and even draw a veto from President Bush, according to experts.

    It was just last month that Bush, with strong Republican backing in Congress, signed the law that suspends habeas rights for detainees and sets up a new protocol for trying them before military commissions.

    Many Democrats opposed the Military Commissions Act largely because of the language that prevents detainees from challenging their confinement. Some also had concerns about the definition of torture in the law, with critics complaining that certain procedures that could be described as torture were not categorically outlawed.

    The act is so controversial that civil rights lawyers filed a constitutional challenge immediately after Bush signed it.

    "It Was Crazy"

    Multiple cases are currently pending before the US Court of Appeals for the D.C. Circuit.

    Leahy, who was among the 32 Democrats who voted against the bill, has been the most outspoken critic of the restrictions on habeas corpus.

    "It was crazy," he said during an interview broadcast Wednesday on National Public Radio. "After 200 years of habeas corpus, we threw it out after just a few hours of debate."

    He has also voiced concern that the bill allows the White House to determine what kinds of coercive interrogation procedures are off-limits.

    As the ranking Democrat on the Judiciary Committee, Leahy is set to replace Sen. Arlen Specter, R-Pa., as chairman. Specter also spoke out against the provisions of the detainee bill that stripped habeas corpus rights, but he ultimately voted in favor of the legislation.

    Observers say they aren't surprised that Leahy wants to use his new power to reverse course.

    "Obviously that's a sentiment shared by many," said Scott L. Silliman, Director of the Center for Law, Ethics & National Security at Duke University School of Law.

    He described the habeas corpus section as "the most controversial part of the act" and characterized the debate over its constitutionality as "a close question."

    Leahy's hint that he will take quick action won praise from Bill Goodman, legal director of the Center for Constitutional Rights in New York, which brought one of the pending court challenges.

    "The court challenge will proceed unless the members of Congress are able to amend the statute," Goodman said.

    At issue in the litigation is whether Congress had the power to declare that habeas corpus restrictions first enshrined in the December 2005 Detainee Treatment Act can be applied retroactively to detainees who were picked up following the Sept. 11, 2001, terrorist attacks.

    The US Supreme Court ruled earlier this year that the Detainee Treatment Act was not retroactive. Hamdan v. Rumsfeld, 126 S. Ct. 2749.

    The law enacted last month allows detainees a limited right of appeal in federal court, but only after a military tribunal convicts them.

    Silliman speculated that Leahy could win broad support in Congress if it is narrowly drafted so as to restore habeas rights only for detainees who already have petitions pending in court, but would shut off that avenue for detainees to file habeas petitions in the future.

    "There would be a lot of people in agreement with that," Silliman said.

    But he cautioned even with control of both chambers of Congress, Democrats will likely face opposition from Republicans who supported the original bill.

    Furthermore, experts point out that Bush could veto any law that Congress passes. Silliman said he doubted whether Democrats would be able to garner enough votes to withstand a veto. To do so, they would need a two-thirds majority in both chambers.