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Senate Argues Restoring Habeas Corpus

STEVE INSKEEP, Host:

Here's NPR's David Welna.

DAVID WELNA: Last year, a Republican-run Congress approved a set of new rules for legal proceedings involving detainees in places like Guantanamo Bay, Cuba. Stripped out of the so-called Military Commissions Act at the behest of the Bush administration was the centuries old right of detainees to challenge their detention in court - what's known as the grand writ of habeas corpus. With Democrats now controlling Congress, judiciary committee Chairman Patrick Leahy says the time has come to restore that protection for everyone detained by U.S. authorities.

INSKEEP: Habeas corpus was recklessly undermined in last year's Military Commissions Act. And like the internment of Japanese-Americans during World War II, the elimination of habeas rights was an action driven by fear, has been a stain on America's reputation in the world.

WELNA: Leahy's been joined by Arlen Specter, the judiciary panel's top Republican in co-sponsoring the Habeas Corpus Restoration Act. Last week, Specter interrupted the debate about Iraq on the Senate floor to spotlight that legislation, which he and Leahy are offering as an amendment to the Defense Policy bill.

INSKEEP: What happens in Iraq obviously is of enormous importance. But if we lose the basic fundamental rights to require evidence before somebody is held in detention, if we lose the right of Habeas Corpus, it is a very sad day in America.

WELNA: Specter is not the only prominent Republican publicly defying President Bush's wish to restrict Habeas Corpus. The president's first Secretary of State, Colin Powell, declared last month on NBC's "Meet the Press" that it was time to shut down Guantanamo and move the detainees into the nation's federal legal system.

M: The concern was, well, then they'll have access to lawyers. Then they'll have access to writs of Habeas Corpus. So what? Let them. Isn't that what our system's all about? And by the way, America, unfortunately, has 2 million people in jail, all of whom had lawyers and access to writs of Habeas Corpus. And so we can handle bad people with our system.

INSKEEP: I am dead set against allowing federal judges to make military decisions that they are not trained to make.

WELNA: South Carolina Republican Senator Lindsey Graham is himself a judge advocate with the Air Force Reserve. He's also one of the Senate's most ardent opponents of allowing detainees to challenge their detention in federal courts.

INSKEEP: Everybody will have their day in court, but I am not going to sit on the sidelines and watch this war be criminalized. These are not common criminals. They're accused of being warriors, involved in a global war. And I think our military id best equipped to determine who's part of the enemy force and the judges in our courts will be able to review military decisions in terms of whether it was fair.

WELNA: Senate GOP leaders are expected to filibuster any attempt to restore Habeas Corpus. Trent Lot is the Senate's number two Republican.

INSKEEP: It's going to be a hard sell to say that these people at Guantanamo and others are entitled to all the legal niceties of the American legal system based on who they are and what they did. So, the least with me, it won't be well received.

WELNA: Still, the defense policy bill already has some provisions aimed at improving legal protections for detainees. Armed Services Chairman Carl Levin says they're basic protections.

INSKEEP: Including after a few years at Guantanamo, you have to have a lawyer if you want one. You cannot be proven to be an illegal combatant based on coerced testimony and a few changes like that, which we think will be required by a court. As a matter of fact, if there's any hope that the procedures that are in places there will past muster within American court.

WELNA: Human Rights Watch's Tom Malinowski says these are important provisions.

M: For detainees in Guantanamo, this will be a significant improvement. It will give them a fighting chance to demonstrate that they are not the people who the government says they are. The danger is that we end up with a permanent system - a detention without charge - for anybody who any president believes to be a threat.

WELNA: Closing the Guantanamo Bay Detention Facility, Malinowski says, would be a good first step. California Democrat Dianne Feinstein is proposing to do just that with an amendment to the defense bill, but she says it's been blocked.

INSKEEP: There are people that really don't want to give me a vote on it. And so I'd probably have to go to cloture, and whether it will get 60 votes or not is just a wish and a prayer right now, I think.

WELNA: David Welna, NPR News, the Capitol. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

David Welna is NPR's national security correspondent.