Habeas Corpus Returnicus

President Bush's victory in getting the rules he wanted to try suspected terrorists could be diminished.

The top Republican on the Senate Judiciary Committee signaled this week that he'll join prominent Democrats in seeking to restore legal rights to hundreds of suspected terrorists confined at Guantanamo Bay, Cuba, and elsewhere.

While the measure to restore the right of habeas corpus has almost no chance of passing before Congress adjourns later this week, the message is clear: When Democrats take over in early January, the issue could resurface.

The Military Commissions Act of 2006, which Bush signed into law in October, prevents detainees who aren't U.S. citizens from challenging their detentions in civilian courts. But Senate Judiciary Committee Chairman Arlen Specter, R-Pa., who voted for the legislation despite his opposition to stripping such rights from detainees, on Tuesday reintroduced legislation to restore those rights. A similar measure sponsored by Specter failed by three votes in October.

In a speech on the Senate floor, Specter said he was reintroducing the issue to prevent federal courts from striking down the legislation, which some of the detainees' attorneys have challenged.

But some lawmakers privately speculated that Specter may have decided to reintroduce the legislation after a recent article in the New Yorker magazine suggested that his desire to retain his powerful committee chairmanship led him to go along with the administration's wishes.

Specter on Tuesday repeated his contention that the act violates the Constitution.

"The Constitution of the United States is explicit that habeas corpus may be suspended only in time of rebellion or invasion," Specter said on the floor. "We are suffering neither of those alternatives at the present time. We have not been invaded, and there has not been a rebellion. That much is conceded."

You know what, though, on a side note...? News outlets don't need to report only on what Republicans are up to any more, as if when the Republican acts, then a policy takes on meaning. Okay, okay, Specter is an important figure here as the top Republican on the Senate Judiciary Committee. But wouldn't it be interesting to explore how the new majority is going about judicial reform?

UPDATE:

See, also, Glenn Greenwald. And here's incoming Senate Judiciary Chair Pat Leahy's statement. Greenwald suggests,

...the only type of bill which would seem to have any chance of passing would be a habeas restoration bill along the lines of Specter's limited amendment -- one which negates the truly inane objection that habeas rights will somehow "flood" our court system and which allows the compromise-fetishists in Washington and in the Senate to vigorously support it. There is obviously no good reason to limit habeas rights in this fashion, but if that is the only way to at least allow detainees some access to a court, it is imperative that this be pursued.

The difference between a limited, one-time-only habeas challenge and unlimited habeas rights is significant. But the difference between a one-time-only habeas right and no habeas rights at all (i.e., lifetime imprisonment with no opportunity to contest the validity of one's detention or treatment) is an entire universe. Being able to access a federal court -- as opposed to rotting in Guantanamo with no tribunal to hear your complaints -- can change everything for a detainee. Once in federal court, all sorts of abuses and injustices can come to light, which is precisely why the Bush administration and its Congressional servants are so eager to extinguish that right in full.