When the Military Commissions Act, which among other things suspended habeas corpus for suspected terrorists, went to the Senate floor in September, Sen. Arlen Specter (R-Pa.) noted, “Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we’ll be back on this floor again” after the courts reject the legislation.
Fortunately, senators aren’t waiting for courts to intervene; they’re taking the law on before the MCA is struck down. In December, we saw the first inkling that the MCA might be revisited in 2007. Today Sens. Chris Dodd (D-Conn.) and Bob Menendez (D-N.J.) unveiled the first step.
[The Restoring the Constitution Act of 2007 — A Bill to Provide for the Effective Prosecution of Terrorists and to Guarantee Due Process Rights], according to Dodd, would reintroduce habeas corpus protections to Guantanamo Bay detainees; create an independent court review to military commission rulings; and bar information obtained through “coercion” (read: torture); among other provisions.
Whether Dodd and Menendez’s legal fix will pass is unclear. It essentially reverses the Bush administration’s favored Military Commissions Act of last year, which stripped habeas rights from terrorism detainees — and passed the Senate with 65 votes.
The bill would almost certainly face a veto from the White House. But with civil liberties lawyers gearing up for a litany of legal challenges to the MCA’s constitutionality, Dodd and Menendez might have an opening.
We can certainly hope so.
It’s worth adding here that Dodd voted against the MCA last fall, but Menendez, perhaps worried about winning a full term, voted for it. Now, he’s trying to help correct his mistake. Good for him.
The full text of the legislation is online (.pdf), but for those who prefer to review a more talking-points style version of the bill, here’s a rundown of what the bill does:
1. It restores the writ of habeas corpus for individuals held in US custody.
2. It narrows the definition of unlawful enemy combatant to individuals who directly participate in a zone of active combat against the United States, and to individuals who participated in attacks against the United States on September 11, 2001.
3. It requires that the United States live up to its Geneva Convention obligations by deleting a prohibition in law that bars detainees from invoking Geneva Conventions as a source of rights at trial.
4. It permits accused to retain qualified civilian attorneys to represent them at trial, or to choose self representation.
5. It prevents the use of evidence in court gained through the unreliable and immoral practices of torture and coercion.
6. It charges the military judge with the responsibility for ensuring that the jury is apprised of sources, methods and activities associated with acquiring out of court statements that if known to the jury would impact on the credibility of the statement, or alternatively that such statements are not introduced at trial.
7. It empowers military judges to exclude hearsay evidence they deem to be unreliable.
8. It authorizes the US Court of Appeals for the Armed Forces to review decisions by the military commissions.
9. It limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight.
10. It clarifies the definition of war crimes in statute to include certain violations of the Geneva Conventions.
11. Finally, it provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions.
Dodd also has a good video clip, explaining why he thinks the measure is important.
I have to say, it’s encouraging to see Dem senators following up on this. It might have been easy (and rather cynical) to focus on new policy goals, and let the MCA stand, but it was a mistake worth correcting. I’m glad some senators realize that.