SEN. ARLEN SPECTER (R-Pa.), who has often complained about judicial second-guessing of congressional reasoning, practically pleaded with the Supreme Court recently to substitute its judgment for that of the legislative branch. Specter believes that prisoners at Guantanamo Bay should be able to file habeas corpus petitions challenging their confinement, and he offered legislation that would have allowed them to do so. It failed, and Specter ended up voting for a bill that denies them that right, later expressing confidence that the Supreme Court would "clean it up."
Now Specter is having second -- or is it third? -- thoughts. Earlier this month, he joined with his successor as Judiciary Committee chairman, Sen. Patrick J. Leahy (D-Vt.), in introducing the Habeas Corpus Restoration Act of 2006. The bill, which presumably will be reintroduced in January, would repeal provisions of the Military Commissions Act that withheld habeas protection from foreigners deemed "enemy combatants."
That law has already resulted in a legal defeat for Salim Ahmed Hamdan, the former driver for Osama bin Laden who won a victory in the Supreme Court in June. Last week, a federal judge ruled that the law barred Hamdan, who is imprisoned at Guantanamo, from challenging his confinement in court. But the judge also ruled that the law was unconstitutional because it denied habeas rights to foreigners living in the U.S.
Of the 51 senators who voted against affording habeas protection to present and future enemy combatants, six will be missing from the next Congress. Prospects for remedial legislation would seem equally bright in the new House of Representatives, where Democrats will have a majority of 233 to 202. Even if the majorities for passage weren't veto-proof, President Bush might think twice about rejecting legislation restoring a privilege with roots in the Magna Carta.
As Specter points out, the Constitution allows for the suspension of the writ only in times of invasion or rebellion, and "we are suffering neither of those alternatives at the present time." Habeas protection for enemy combatants -- not just those at Guantanamo but other aliens who might be detained in the future -- is not just a legal nicety. Without such protection, real injustices could be suffered by flesh-and-blood individuals.
Mark Denbeaux, a Seton Hall University law professor who studied transcripts of proceedings in which Guantanamo inmates were classified as enemy combatants, has said that the process afforded prisoners little opportunity to contest the allegations against them. "These were not hearings," he said. "These were shams." Even if he's wrong, the military has nothing to fear from the ancient safeguard of habeas corpus.