Habeas Restoration: Down To The Razor Thin Wire
I am told by a source who knows the head count that we are within a slim margin on the habeas restoration amendment — and that the vote could still go either way. It is a razor thin margin right now, which means there is no Senator whose vote can be taken for granted.
Yesterday, I asked you to make a few calls on behalf of habeas restoration and the Constitution. Today, I’m asking you to make some more. The following list are the Senators who are currently being targeted for not having an announced position one way or the other:
Sen. Joe Lieberman (I-CT)
Sen. Ben Nelson (D-NE)
Sen. Chuck Hagel (R-NE)
Sen. Richard Lugar (R-IN)
Sen. Larry Craig (R-ID)
Sen. Susan Collins (R-ME)
Sen. Olympia Snowe (R-ME)
Sen. Norm Coleman (R-MN)
Sen. George Voinavich (R-OH)
Sen. John Sununu (R-NH)
Sen. Mary Landrieu (D-LA)
Sen. Gordon Smith (R-OR)
Sen. Lamar Alexander (R-TN)
Please, take some time this morning to call both your Senators — whether they are on this list or not — and then call a few from the above list as well to voice your support for the full restoration of habeas. You can call your Senators toll free using the following numbers (h/t to katymine):
1 (800) 828 – 0498
1 (800) 459 – 1887
1 (800) 614 – 2803
1 (866) 340 – 9281
1 (866) 338 – 1015
1 (877) 851 – 6437
If you are searching for reasons why your elected representatives should support habeas restoration, here are a few somewhat paraphrased from a source close to the process):
— The Military Commissions Act’s elimination of habeas rights is not restricted to Guantanamo detainees. It applies to any one of the approximately 12 million lawful permanent residents in the United States today, people who work and pay taxes here. The MCA permits the Government to detain these lawful residents, potentially forever, without ever charging them or notifying them of the reasons for detention, without holding a trial, or having that trial subject to an independent judicial review. The government need not even find that a non-citizen is an enemy combatant for habeas rights to be stripped. A detainee can simply be “awaiting” determination, which can go on indefinitely.
— Restoring habeas would send a clear message that when we preach democracy and the importance of civil rights to the rest of the world, we are not being hypocritical. Restoring habeas is in America’s national strategic interest, as habeas restoration would best ensure that we have a credible system for detaining people who actually pose a threat to the U.S.
— The American Bar Association supports this bill. They commented that habeas “serves as an important check on the power of executive detention and embodies the fundamental principle that one should not be held by the government without opportunity for a fair and impartial determination that there is a reasonable basis in law and fact for the detention.” Respected conservatives including University of Chicago Professor Richard Epstein, and David Keene, head of the American Conservative Union, have called for restoring habeas rights. So have evangelical leaders, including Professor David Gushee, head of Evangelicals for Human Rights. Former top military lawyers have strongly advocated for restoring habeas rights. Rear Admiral Donald Guter, former Judge Advocate General of the Navy, wrote that the elimination of habeas rights for detainees “makes us weaker and imperils our valiant troops.” Respect for the rule of law is not a partisan issue — it is a patriotic American issue, and Americans who support liberty and justice for all know that the current policy is simply wrong.
— Scholars have identified one case in which a U.S. court actually granted habeas relief to an enemy alien. In the unreported case of United States v. Thomas Williams, Chief Justice Marshall, riding circuit, granted relief to an alien enemy combatant irregularly detained. Further, if habeas was available to enemy alien prisoners of war in the two World War II-era cases of Ex Parte Quirin and In re Yamashita, where the petitioners had already benefited from some kind of judicial proceeding or military commission, then surely habeas is available to those who seek to challenge executive detention without having had the benefit of any process in accordance with the law of war.
— Federal district courts can easily handle habeas petitions from Guantanamo detainees, which is precisely what they were doing before habeas was stripped away by the last Congress. Habeas petitions were proceeding in an orderly manner in the District Court in Washington, D.C.; no detainees were ordered released; and no judge had ordered changes to detainees’ conditions of confinement. A distinguished group of retired judges wrote to Congress last year, saying that judges have been doing this, and doing it well, for years.
— Federal judges are all cleared to view classified documents, and there are procedures in place that were approved by Congress to handle classified information in federal proceedings. It demeans our federal judiciary to assert that judges cannot be trusted to safeguard classified information, as they have been doing for decades.
— In habeas proceedings judges need not – and do not – bring in the detainee and hold an evidentiary hearing in every case. If habeas were restored, the U.S. District Court in Washington, D.C. would have great discretion on how to manage habeas petitions from the Guantanamo detainees. A habeas hearing is nothing like a full-blown trial. All of the presumptions are in favor of the government. The government merely has to lay out its basis for the decision to detain – all of which can be done through affidavit statements without having to bring in live witnesses or pull anyone off the battlefield. The burden rests with the detainee to prove that he is being held illegally. (And, I would point out that all of Jon Kyl’s bloviating on this yesterday afternoon was both false and misleading — and it was done on the floor of the Senate. For shame.)
— Most federal habeas claims are resolved in the government’s favor on the basis of paper submissions alone. The habeas claims considered prior to passage of the MCA did not result in soldiers being pulled in from the battlefield.
Please make some calls today. For your Constitution, for your nation…and for all the generations to come. Help the Senate choose liberty and justice for all.
(Photo of razor wire via -po.)
UPDATE: The Amendment is S.2022 — it is the same as the original S.185 which passed the Senate Judiciary committee, and both were sponsored by Leahy and Specter.