Detainee Treatment—Compromise Objections from Sen. Leahy and Others

As we mentioned last Thursday, the “compromise” on terrorism detainee treatment seems to carry a provision which strips federal courts of the right to hear petitions of habeas corpus. Senator Patrick Leahy (D-VT) has criticized the proposed legislation saying that, for all the “breathless” debates about the fine-points of the compromise, “a central and more sweeping issue” has been “ignored.”^[1] While the rules governing the military commissions are certainly important, “they will apply to only a few cases.”^[2] This is because, in the five years that President Bush announced his intention to use military commissions, a total of 10 individuals have been tried, and an additional 14 are expected to be tried; “for the vast majority of the almost 500 prisoners at Guantanamo, the Administration’s position remains as stated by Secretary Donald Rumsfeld three years ago: It has no interest in trying them.”^[3]

Buried on page 81 of the proposed bill is a provision which “would perpetuate the indefinite detention of hundreds of individuals against whom the Government has brought no charges and presented no evidence, without any recourse to justice whatsoever.”^[4] In Sen. Leahy’s words, “That is un-American, and it is contrary to American interests.”^[5] In other words, says Sen. Leahy, the bill “would permit the President to detain indefinitely – even for life – any alien, whether in the United States or abroad, whether a foreign resident or a lawful permanent resident, without any meaningful opportunity for the alien to challenge his detention. The Administration would not even need to assert, much less prove, that the alien was an enemy combatant; it would suffice that the alien was ‘awaiting [a] determination’ on that issue.”^[6]

Senator Leahy is not the only one to have habeas corpus concerns, however. Senator Arlen Specter “said Monday he still had major concerns” about that provision in the bill.^[7] ``If it comes back to the Supreme Court, the Supreme Court will teach Congress another lesson,'' he said, referring to Hamdan.^[8]

John D. Hutson, a retired rear admiral, urged Sen. Specter and others to reject the legislation, saying that without habeas corpus and other “kinds of protections, we’re just another banana republic.”^[9] A former United States Attorney, Thomas P. Sullivan, also testified that he believed that “’if this bill is passed with these habeas-stripping provisions in it, then after [he is] dead and the members of this Senate hearing are dead, an apology will be made…just as we did for the incarceration of the Japanese citizens in the Second World War.’”^[10]

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[1] Senator Patrick Leahy, Hearing on “Examining Proposals to Limit Guantanamo Detainees’ Access to Habeas Corpus Review, Sep. 25, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Kate Zernike and Carl Hulse, Detainee Bill Faces New Wrinkle, NY Times, Sep. 26, 2006.
[8] Id.
[9] Id.
[10] Id.