[Congressional Record: July 31, 2008 (Senate)]
[Page S7886-S7888]                        

                             HABEAS CORPUS

  Mr. LEAHY. Mr. President, last month's 5-4 Supreme Court decision in 
Boumediene v. Bush reaffirmed our core American values, and served as a 
stinging rebuke to the Bush administration's flawed power grabs over 
the last 6 years. The Bush administration's repeated attempts to 
eliminate meaningful review of its actions by the Federal judiciary 
have again failed to withstand Supreme Court review. This decision is a 
vindication for those of us who have maintained from the beginning that 
the administration's detention policies were not only unwise, but were 
also unconstitutional.
  In the wake of the tragic attacks on September 11, 2001, toward the 
beginning of President Bush's first term in office, this country had an 
opportunity to come together to show that we could bring the 
perpetrators of heinous acts to justice, consistent with our history 
and our most deeply valued principles. I and others reached out to the 
White House to try to craft a thoughtful and effective bipartisan 
  Instead, this White House, supported by the Republican leadership in 
Congress, pursued its goal of increasing executive power at the expense 
of the other branches. In so doing, they chose a path that disregarded 
basic rights, lessened our standing in the world, trampled some of our 
most deeply held values, and brought us no closer to delivering justice 
to those who have injured us.
  At a recent Senate Judiciary Committee hearing, which explored the 
mistakes and missed opportunities of the past few years, we heard from 
Will Gunn, a retired U.S. Air Force colonel and the former chief 
defense counsel of the Military Commissions. He believes that ``many of 
our detention policies and actions in creating the Guantanamo military 
commissions have seriously eroded fundamental American principles of 
the rule of law in the eyes of Americans and in the eyes of the rest of 
the world.'' Kate Martin, the Director of the Center for National 
Security Studies, said that the administration's decision to ignore the 
law of war and constitutional requirements had proved to be 
``disastrous,'' and that ``[d]isrespect for the law has harmed, not 
enhanced, our national security.''
  I agree with these sobering assessments. I think that we are less 
safe as a result of the Bush administration's policies.
  Some of us have tried in vain for years to move this country away 
from this destructive course, but, ironically, it has taken a 
conservative Supreme Court to remind this administration that the 
President's claim to unlimited power to override our laws is wrong. 
Boumediene is only the latest example of the Supreme Court decisively 
rejecting the administration's illegal and misguided policies.
  In 2004, the Supreme Court decided two habeas-related cases Rasul and 
Hamdi. In those cases, the Court rejected the Bush administration's 
reckless and ill-advised attempts to deprive citizens and noncitizens 
of their right to challenge their indefinite detention in Federal 
court. I said at the time that these decisions ``reaffirm the 
judiciary's role as a check and a balance, as the Constitution intends, 
on power grabs by other branches.'' I also called on the Republican-led 
Congress to ``stop acting as a wholly owned subsidiary of this 
administration and to exercise its constitutional responsibility to 
rein in White House unilateralism and overreaching.''
  The following year the Republican-led Congress attempted to overrule 
the Supreme Court's Rasul decision by passing the Detainee Treatment 
Act, DTA. I spoke out against the habeas-stripping provisions contained 
in the DTA. I warned that ``in order to uphold our commitment to the 
rule of law, we must allow detainees the right to challenge their 
detention in Federal court.''
  This effort to prevent people from using habeas procedures to 
challenge the basis for their detention in Federal court backfired. In 
a later decision in the Hamdan case the Supreme Court rejected the view 
that the DTA stripped the courts of jurisdiction over pending habeas 
cases. I applauded the Hamdan decision at the time as a ``triumph for 
our constitutional system of checks and balances.''
  But once again, instead of following the Supreme Court's repeated 
reminders that our Government must respect our Constitution and laws, 
within weeks of the Hamdan decision, the last Congress, acting in 
complicity with the Bush administration, hastily passed the Military 
Commissions Act in the run-up to the 2006 mid-term elections. That bill 
sought, once again, to strip access to Federal courts for noncitizens 
determined to be enemy combatants or who were merely ``awaiting 
determination.'' It aimed to take away habeas rights not just for 
detainees held at Guantanamo Bay, but also potentially for millions of 
lawful permanent residents working and paying taxes in this country.
  I voted no. These were my words then:

       Over 200 years of jurisprudence in this country, and 
     following an hour of debate, we get rid of it. My God, have 
     the Members of this Senate gone back and read their oath of 
     office upholding the Constitution? [W]e are about to put the 
     darkest blot possible on this Nation's conscience.

  Regrettably, the Federal appellate court in Washington, DC the same 
court whose limited review was supposed to serve as a substitute for 
the Great Writ fumbled its opportunity to set things right. It held 
that the jurisdiction-stripping provisions did not violate the 
  Those of us who recognized that Congress had committed a historic 
error when it recklessly eliminated the Great Writ of habeas corpus 
tried to reverse what had been done. But even with the support of 
several Republican Members of this body, Senator Specter and I fell 4 
votes short of the 60 votes

[[Page S7887]]

required to overcome a Republican filibuster of our effort last year to 
restore habeas rights by adding the Habeas Corpus Restoration Act as an 
amendment to the Department of Defense authorization bill.
  In its Boumediene decision, the U.S. Supreme Court fulfilled its 
constitutional responsibility--a responsibility in which so many others 
had failed and upheld the Constitution and our core American values. 
After Boumediene, the administration's record in the Supreme Court on 
habeas is now 0 for 4. Four times it has sought to erode the time-
honored habeas right that protects the liberties our forebears fought 
and died for. And four times the Supreme Court has repudiated these 
ill-advised efforts.
  One cannot help but wonder where we would be in the fight against 
terrorism today had the Bush administration spent more time trying to 
catch and try terrorists, and less time trying to erode our time-
honored constitutional traditions.
  What did a majority of the conservative Supreme Court actually say in 
Boumediene? First, it reiterated that the Constitution extends to 
Guantanamo Bay, Cuba. So the Bush administration's cynical gambit to 
house detainees just miles from the Florida coast to avoid judicial 
scrutiny and accountability for its conduct has failed as a matter of 
constitutional law. As the opinion of the Supreme Court correctly 
recognizes, the basic protections represented by the Great Writ ``must 
not be subject to manipulation by those whose power it is designed to 
  Second, the Supreme Court held that the administration's detention 
procedures put in place back in 2005 are a constitutionally inadequate 
substitute for habeas corpus. The Court found that the so-called 
combatant status review tribunals established to determine if detainees 
held at Guantanamo Bay have correctly been identified as enemy 
combatants are hopelessly flawed. I have maintained all along that it 
is unfair and un-American to detain anyone without judicial recourse 
based on proceedings that do not allow those held even the most basic 
due process rights.
  Third, the Supreme Court held that the provisions of the Military 
Commissions Act that strip away all habeas rights for the Guantanamo 
detainees and others are unconstitutional.
  The Supreme Court's opinion written by Justice Kennedy is quite 
eloquent and moving. While recognizing the executive authority and 
responsibility to apprehend and detain those who pose a real danger to 
our security, Justice Kennedy went on to note:

       Security subsists, too, in fidelity to freedom's first 
     principles. Chief among those are freedom from arbitrary and 
     unlawful restraint and the personal liberty that is secured 
     by adherence to the separation of powers.

  He wisely counsels that the Constitution is fundamental, that ``[o]ur 
basic charter cannot be contracted away,'' and that the Constitution is 
not something the administration is able ``to switch on and off at 
will.'' He rightly concludes:

       The laws and Constitution are designed to survive, and 
     remain in force, in extraordinary times. Liberty and security 
     can be reconciled; and in our system they are reconciled 
     within the framework of the law. The Framers decided that 
     habeas corpus, a right of first importance, must be a part of 
     that framework, a part of that law.

  The Supreme Court reaffirmed American values, our fundamental 
adherence to our Constitution and the rule of law, and our great 
strength in so doing.
  What is surprising is not that the U.S. Supreme Court would follow 
through on the earlier holdings of its opinions by Justice O'Connor and 
Justice Stevens, himself a decorated combat veteran, but that the 
decision was not unanimous.
  Justice Scalia's dissent reads like a threatening partisan statement 
from Vice President Cheney's office rather than an independent judicial 
review of the case. He uses language about Islam that was rightly 
condemned as wrong and counterproductive by this administration's own 
intelligence community, and he repeats the administration's tragically 
mistaken mantra by lumping the various factions of Islam, including 
those in Iraq, as a monolithic ``enemy'' collectively responsible for 
the attacks on the United States on September 11. Most disappointing is 
that his hyperbolic rhetoric is hard to square with his own 
acknowledgement in the 2004 Hamdi case that habeas corpus is ``the very 
core of our liberty secured in our Anglo-Saxon system of separation of 
powers'' and that ``indefinite imprisonment on reasonable suspicion is 
not an available option of treatment for those accused of aiding the 
enemy, absent a suspension of the writ.''
  What role should Congress play as the Federal judiciary begins to 
implement the Boumediene decision? According to Attorney General 
Mukasey in his recent remarks on the future of habeas, Congress should 
jump in the fray again in an election year. Although he does not even 
have legislation to propose, he asks Congress to act hastily to 
minimize judicial oversight and maximize executive power. The Attorney 
General seems to have adopted the Bush administration's mantra: ``Don't 
trust the courts.''
  The Attorney General has it exactly wrong. Congress made a mistake in 
2005 when it bent to the will of the Bush administration by passing the 
Detainee Treatment Act, which created the detainee review process that 
the Supreme Court has now determined is hopelessly inadequate. Congress 
made a mistake in 2006 when it bent to the will of the Bush 
administration by passing the Military Commission Act, which, as we now 
know, violated the U.S. Constitution in its efforts to stop the Federal 
courts from reviewing executive detention decisions.
  It would be foolish to bend to the will of the Bush administration 
once again to try to weaken or circumvent the Boumediene decision. 
Worse, by hastily legislating now, we would risk perpetuating the 
terrible policy judgments of years past that have led us so far astray 
in the fight against terrorism.
  I trust our Federal courts to get it right. Had we relied on them to 
dispense American justice, perhaps we would have accomplished more in 
the fight against terrorism over the last several years. Our courts 
have proven themselves up to the task of trying the likes of Zacarias 
Moussaoui and Jose Padilla in difficult, complex and sensitive federal 
proceedings where unlike the restricted rights available in habeas 
proceedings these defendants enjoyed the full panoply of constitutional 
protections. These men now stand convicted of terrorism-related 
offenses and they will spend the rest of their lives in prison, as they 
should. Just as I would not have questioned Attorney General Mukasey's 
ability to deal with terrorism-related prosecutions when he was a judge 
in Manhattan, I do not question the ability of the Federal judges in 
Washington, DC, to handle the habeas petitions from the detainees in 
Guantanamo Bay, Cuba responsibly and diligently--particularly where our 
courts have proved up to the task in so many actual criminal trials.

  I was particularly disappointed to hear the Attorney General attempt 
to play on Americans' fears by suggesting that, in the wake of a 
Supreme Court decision affirming our core values, our national security 
will be somehow jeopardized if Congress does not act. He knows that no 
detainee has been set free as a result of the Boumediene decision, and 
that the government will have ample opportunity to justify its 
detention decisions on favorable standard of proof. He knows that 
Federal courts have successfully conducted terrorism cases using 
procedures derived from the Classified Information Procedures Act to 
ensure that classified information is safeguarded, and there have been 
no leaks of information where those procedures have been employed. And 
he knows that the federal court in Washington, DC, is taking steps to 
streamline and consolidate habeas proceedings to avoid unnecessary 
  In fact, the Federal bench in Washington, DC, is working hard to 
follow the rule of the Supreme Court by ensuring a prompt, safe and 
orderly disposition of the 250 or so detainee habeas petitions. The 
judges, the Department of Justice, and lawyers for the detainees are 
now working to resolve key issues that will allow the cases to proceed 
in the months ahead.
  The court has also taken steps on its own to consolidate common 
issues before one judge former Chief Judge Thomas F. Hogan--to 
streamline the review process as much as possible. In the meantime, for 
those detainees who have been charged under the law of

[[Page S7888]]

war, the district court has ruled that the military commissions may 
proceed as planned, and that the right to habeas corpus will 
crystallize only once there is a final judgment.
  The Bush administration can hardly complain if it takes the Federal 
district judges presiding over these habeas cases some time to resolve 
them. After all, it was the Bush administration that tried to avoid 
court scrutiny at all costs for the last 7 years. The Supreme Court 
having rejected this effort, the courts must now be permitted to do 
their jobs.
  Is there anything that Congress should do at this time? One thing 
that Congress could and in my view should do is to pass the Habeas 
Corpus Restoration Act that Senator Specter and I introduced in the 
wake of the passage of the Detainee Treatment Act, and with which we 
sought to modify the Military Commissions Act. A bipartisan majority of 
the Senate voted with us last year when we were seeking to add it to 
the Department of Defense authorization bill, but we were forestalled 
by a filibuster. I trust that those who said they were not ready to 
join us last year because of the pendency of the Supreme Court case 
will join us now and do the right thing. It was Congress's mistake to 
pass the habeas stripping provisions of the Detainee Treatment Act and 
the Military Commissions Act, and we should correct it by passing our 
bill to amend the law. The Supreme Court has already declared those 
provisions unconstitutional and ineffective. In my view, it is a shame 
that the Supreme Court had to step in before we corrected our mistake.

  These unconstitutional habeas-stripping provisions are a blot on the 
Senate, and on the Congress, and should not reside in our laws. We 
should reverse the Senate's action and correct its error. I do not want 
to see another Senate apologize years down the road for passing laws 
designed to strip habeas rights, as we have seen belated apologies for 
America's treatment of Native Americans, the internment of Japanese 
Americans, and other grievous errors in our past. I do not want a 
future Senate to look back with shame or have to issue an apology for 
unconstitutional legislation coming from this great body. Congress 
should pass the provisions of the Habeas Corpus Restoration Act.
  Thereafter we will need to join together in the weeks and months 
ahead to rethink the misconceived legal framework that has been devised 
by this administration. We will need to work together--with each other, 
with the House and with the new administration--to supplement our laws, 
consistent with our Constitution and core values, and to restore our 
leadership in the world and more effectively defend our Nation. We can 
recapture the bipartisanship that we demonstrated in the days 
immediately following 9/11 and move forward, not as Democrats or 
Republicans, but as Americans.
  The Supreme Court was explicit that its decision in Boumediene only 
reached the unconstitutional attempt to strip habeas corpus review from 
these detainees and that the Detainee Treatment Act and combatant 
status review tribunal process remain intact.
  Likewise, the Attorney General and Department of Justice have said 
that the military commissions will continue, and a federal judge in 
Washington, DC, recently ruled against a detainee's effort to secure 
habeas review before his military commission was to commence.
  I think we will need to review both processes. The military 
commission system is so deeply flawed that after close to seven years 
it has only just started its first trial. The world will never view 
those proceedings as fair or consistent with the rule of law. We are 
too strong and confident a nation to seek vengeance or be driven by 
fear. America is great in part because it does not shirk from its legal 
obligations but embraces them and lives by them. When America acts, as 
it did, to circumvent the law by holding prisoners off shore, to 
contract out torture to third parties, or to suspend the Great Writ, we 
are not the America envisioned by our Founders and preserved by every 
previous generation of Americans.
  I look forward to working in the next session with Senator Feinstein 
on her initiative to close the Guantanamo Bay facility, and begin to 
erase the damage it has done to the United States' reputation around 
the world. She has sponsored legislation to move us in that direction. 
I want to commend Senator Whitehouse for his legislative proposal to 
establish a congressional commission to make nonpartisan 
recommendations to Congress on how best to proceed in the future. I 
know that Senators Durbin and Specter introduced military commission 
bills back in 2002, around the same time that I did. We will need to 
work across committee lines and across the aisle, to involve not only 
the reconstituted Department of Justice, but also the Departments of 
Defense and State as we go forward. We will need to reconsider where 
else we went wrong and how to set the entire system on better, stronger