UPCOMING: BATTLE OF THE LEGAL TITANS

By William Fisher

What could turn out to be an epic battle is brewing in the US Senate. But unlike most of this chamber’s epic battles, this one pits Republican against Republican.

The battle is over the Habeas Corpus Restoration Act of 2007. The proposed legislation would repeal provisions of the Military Commissions Act of 2006 that stripped US civilian courts from jurisdiction to hear or consider applications for a writ of habeas corpus filed by aliens detained as enemy combatants.

And the protagonists are arguably two of the Senate’s sharpest legal minds: Senator Arlen Specter of Pennsylvania and Senator Lindsey Graham of South Carolina.

The principal issue in this latest chapter of the detainee drama is whether congress will, on its own, vote to reconsider a key provision of legislation it passed last year at the suggestion of the Supreme Court – or whether the case will get to the court before lawmakers have a chance to vote.

Legal advocacy organizations such as the Center for Constitutional Rights have already petitioned the high court to review the MCA, and have asked for oral arguments before summer.

Their action has been accelerated by the recent decision of a lower federal appeals court, which ruled 2-1 that detainees in US custody at Guantanamo Bay, Cuba, have no right to challenge their imprisonment in federal courts.

The court's decision found that overruling the MCA would "defy the will of congress," and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.

Ironically, it was a suggestion contained in a Supreme Court decision that led to “the will of congress” -- passage of the MCA. The high court had previously upheld Guantanamo detainees' right to contest their incarceration in two landmark decisions in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. That decision followed similar rulings from two lower federal appeals courts.

But in its Hamdan decision, the high court said that Congress could take further action on the issue. That action resulted in enactment of the Military Commissions Act of 2006, which stripped civilian courts of jurisdiction as well as setting up special military trials for detainees.

While the senate has been preoccupied with other issues, including the president’s request for emergency supplemental spending to fund the Iraq and Afghanistan wars, the Habeas Corpus Restoration Act of 2007 has been on hold. But now that the emergency funding bill has been passed by the senate and is on its way to a Senate-House conference committee – and then to a promised presidential veto -- congress-watchers are expecting the habeas legislation to re-emerge. That action will no doubt have been made more urgent by the guilty plea of “Australian Taliban” detainee, David Hicks, the first-ever conviction by a Military Commission at Guantanamo.

When the senate begins debating the MCA, Sens. Specter and Graham can be expected to spearhead the debate. Specter will be joined by the powerful chairman of the Senate Judiciary Committee, Sen. Patrick Leahy of Vermont, a co-sponsor of the legislation, a host of other Democrats, and a few Specter-like Republicans. Graham’s position will have the backing of most Republicans, largely conservatives.

Specter – a former prosecutor – will bolster his position with panoply of complex constitutional as well as moral arguments. But at the core of these will be a straightforward legal contention: If people under the effective control of the US have no habeas rights, why did the framers of the Constitution specify that habeas rights could only be suspended in times of invasion or armed insurrection against the government? Neither of these, he says, is present today. Specter is also likely to emphasize the negative impacts of Guantanamo and its legal failings on America’s reputation abroad.

Graham, an Air Force reserve colonel who has been a military lawyer and judge for 20 years, will take the position that prisoners of war – or those designated as enemy combatants – are not protected by the Constitution and have ever had the right to petition civilian courts to determine their reasons for being held. He is also likely to argue that federal judges are not trained to hear military cases, that hundreds of habeas petitions will clog court calendars for years, that many of the civilian judges and the lawyers involved in these proceedings do not have the necessary security clearances, and that public hearings could well compromise national security by revealing classified information.

Another MCA-repeal bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is a candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.

Sen. Specter, who frequently finds himself at odds with the administration of his own party, appears to be hedging his bets. While joining Sen. Leahy in pressing for the senate to take up the MCA-repeal legislation, Specter has meanwhile submitted a “friend of the court” brief to the Supreme Court in support of a petition for a writ of certiorari that asks the court to hear the case.

The petition was filed by the Center for Constitutional Rights, the legal advocacy organization that coordinates the work of hundreds of pro-bono lawyers who have volunteered to defend Guantanamo detainees. There are still close to 400 prisoners at the Cuban base, many of whom have long since been declared “no further threat” to the US and who are awaiting release.

In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."

Wells Dixon, an attorney with the Center for Constitutional Rights Guantánamo Global Justice Initiative, said, "We are pleased that Senator Specter has joined us in asking the Court to reaffirm the right of the detainees to challenge their detention in a court of law. This will be the third time the Court rules on this issue while our clients have languished for more than five years without a chance to prove their innocence or even, in some cases, have access to an attorney. It is time to return to the rule of law on which our country was founded."

Specter does not discount further efforts by Congress to resolve the issue but argues that the Court has a critical role to play, both in establishing what the Constitution requires and in giving the detainees the opportunity to argue the merits of their cases.

He believes the debate in Congress is ultimately not helping: "While this exchange of ideas is surely healthy and appropriate, the conversation has begun to generate diminishing returns. Meanwhile, the detainees wait, and uncertainty surrounds a fundamental constitutional principle. If the Court declines to resolve these important issues in this term, the detainees could face more than another full year in legal limbo."

Then, even if the Congress acts to repeal the habeas section of the MCA, the new legislation could well face a Bush veto – without the votes necessary to over-ride it.

Thus, Guantanamo is likely to be with us for some time to come – the issue that simply won’t go away.