Restoring habeas rights?
on Dec 18, 2006 at 11:16 am
Even as the federal courts are reviewing Congress’ move to strip them of authority to hear challenges to military detention of foreign nationals in the war on terrorism, Congress is likely to be considering whether to undo what it has just done. The two leaders of the Senate Judiciary Committee are planning to move ahead with a bill to restore all of the habeas rights that detainees had before Congress adopted the Military Commissions Act of 2006 in October.
Two, and perhaps three, federal courts will be at work early in the new year trying to decipher the new Act’s court-stripping provisions. Even if the D.C. Circuit Court has decided two packets of cases on the issue by that time, it could have before it a new appeal on the same question in the case of Salem Ahmed Hamdan. The Fourth Circuit Court will be holding a heairng on Feb. 1 addressing the same question. Conceivably, the Supreme Court might be drawn into this new controversy soon, either in an appeal from the D.C. Circuit or perhaps a direct appeal in the Hamdan case.
It is unlikely that any of this judicial activity will be put on hold to see what Congress does with the proposal to restore habeas rights for the detainees. But Sen. Patrick Leahy, the Vermont Democrat who is scheduled to become Judiciary Committee chairman, and Sen. Arlen Specter, the Pennsylvaia Republican who is due to leave the chairmanship, have announced plans to move ahead with thier new bill, S. 4081, titled “To restore habeas corpus for those detained by the United States.” The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here.
Of course, all pending bills expired when Congress recessed last week, but the Leahy-Specter bill will be offered again in January. The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in the just-ended session, his move failed by a 51-48 vote. The Senate’s membership, of course, has changed markedly after the November election.
President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would not be enough votes in Congress to override a veto, even with Democrats in control.
Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.
