September 19, 2007
Bring Us The Body... Of Case Law
A bloc of 42 Republicans -- and Joe Lieberman -- have rejected a vote on an amendment that would restore habeas corpus rights to terrorism suspects. (See reports on how the vote went down here, here and here.)
The Senate rejection leaves the question of constitutionality to the Supreme Court, which is scheduled to weigh this matter in the coming term anyway. Several of the justices -- quite possibly a majority -- are disturbed that the Detainee Treatment Act of 2005 strips terror suspects of the right to appeal their detention.
This most fundamental of rights may only be suspended during invasion or insurrection, per the U.S. Constitution, no matter if the accused is a foreigner or a citizen. The further we get away from the 9/11 attacks -- the very reason for this shadowy system of justice -- the more uncomfortable the justices seem about the entire military detention process. Several have struggled with the squishy boundaries of what the "war on terror" even means. This may explain the court's unprecedented June reversal of its own decision not to hear the petitions of two prisoners challenging their detentions.
Last year, President Bush asked Congress to validate the denial of habeas corpus, which they gamely did with the Military Commissions Act. Originally, the justices said the congressional statute settled the matter, but then two -- Justices John Paul Stevens and Anthony Kennedy -- appear to have changed their minds. Part of the reason may be that Congress goofed big time by specifying that only "unlawful enemy combatants" could be tried in the military tribunals. None of Gitmo's 340 or so occupants are classified as "unlawful," and at least two military judges have decided they can't be tried as a result.
In addition, it's quite possible that Stevens and Kennedy decided they ought to weigh in on the matter, no matter what Congress does. The last time the justices debated the issue, in last year's Hamdan v. Rumsfeld ruling [PDF], several showed deep discomfort with this aspect of the Detainee Treatment Act.
That more members of Congress are also rethinking the habeas prohibition will probably be considered by the justices. Three more Republicans joined the majority in voting to end debate today than did last year, when Arlen Specter tried to push a reversal of the habeas provision. Even if Specter et al. had prevailed today, it's not clear that the amendment would have received a veto-proof majority. A rather powerful argument for the provision is that without it, the federal courts are vulnerable to a flood of appeals from terrorism detainees. We've already seen how squabbles over evidentiary procedures have slowed down the Zacarias Moussaoui and Jose Padilla cases; try multiplying that by 300.
That said, the White House has reason to worry about this pending judicial challenge. This was Specter on the floor of the Senate yesterday: "It is a matter of a fundamental constitutional right that people should not be held in detention unless there is an evidentiary reason to do so, or at least some showing that the person ought to be in detention."
That's Constitution 101. The Bush administration has had to wing its way through the war on terrorism, and overall, the courts and especially Congress have been forgiving. But that leash, as 56 senators showed today, does not extend infinitely.
Posted at 4:11 PM
Posted to:
Arlen Specter, Bush Administration, Congress, Constitution, Detainees, President Bush, Senate, Supreme Court, Terrorism
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