On Wednesday the Senate, by a vote of 56-43, failed to cut off debate on a bill that would have given U.S. detainees the right to challenge their detention in federal courts. According to the 2006 Military Commissions Act, detainees are denied habeas corpus. The Supreme Court has agreed to hear the case and consider if the ban on habeas corpus petitions is constitutional. Many, including the Republican co-sponsor of this bill, Sen. Arlen Specter (R-PA) believe that the ban is unconstitutional and the court will rule it so once they hear the case.

The Chairman of the Senate Judiciary Committee Sen. Patrick Leahy (D-VT) said, “The vote today showed that a majority of the Senate supports our efforts to correct the historic mistake made in last year’s Military Commissions Act, but there is still more work to be done to overcome the Republican filibuster.  Like the internment of Japanese Americans during World War II, the elimination of habeas rights was an action driven by fear, and it was a stain on America’s reputation in the world.”

One of the chief architects of the Military Commissions Act, Sen. Lindsey Graham (R-SC) defended the Act.  “Never in the history of warfare have enemy prisoners been able to bring lawsuits about their detention,” said Graham.  “Thousands of Germans and Japanese soldiers were captured and held by the military during World War II. Not one case was allowed in federal court where they were allowed to sue for their release. Our rules for the War on Terror should be no different.”

The problem with Sen. Graham’s logic is that if he considers the detainees POWs like those soldiers in Germany and Japan then they should have all the rights provided for them in the Geneva Conventions. It seems like politicians like Sen. Graham shift the status of those who are being detained based their political purposes on any given day.

Sen. Specter (R-PA) believes that the current ban is unconstitutional, and filed a legal brief in the pending Supreme Court case saying so. “I have filed a brief as amicus curiae in the case, urging the Supreme Court to overrule the District of Columbia case and to uphold the decision in Rasul v. Bush, which holds that there is a statutory right to habeas corpus and that is rooted in historic common law that predates the Constitution, tracing its roots to the Magna Carta with John at Runnymede in 1215. But pending any action by the Supreme Court of the United States, which is not by any means certain, notwithstanding my own view that the Supreme Court will reaffirm Rasul and reverse the Court of Appeals for the District of Columbia’s ruling in Boumediene, the Congress should now alter the statutory provision in 2006 and make it clear that the statutory right to habeas corpus applies to Guantanamo because of the total inadequacy of the fairness of the procedures under the Combatant Status Review Tribunal.”

People like Sen. Graham rely on arguments based on fear instead of the law to uphold the ban. “It’s time we put terror suspects on trial before military tribunals for their crimes against the United States,” said Graham. “If we begin tinkering with provisions of the MCA, it will slow efforts to bring terrorists to justice.  Some of the masterminds of the 9/11 attack on America are being held at Guantanamo Bay.  I’m ready to see them stand trial and suffer the consequences of their actions against the United States. It’s time for justice to be served, not delayed. I cannot think of a better way to undercut the War on Terror than to adopt the theory that Al Qaeda members are common criminals, not global warriors.”

I agree with Sen. Leahy who said, “It is difficult to defend the higher ground by taking the lower road.  The world knows what our enemies stand for.  The world also knows what this country has tried to stand for and live up to – in the best of times, and the worst of times.” The Republicans and the Bush administration have a very poor record when it comes to their attempts to except detainees from the legal process. They have lost every major decision that has come before the Supreme Court on the issue of detainee rights, and I don’t think that this case will be any different.

The administration can not deny the right of habeas corpus to detainees. No matter what system they devise, I think that detainees must be allowed to challenge their detention. The supporters of this bill were just trying to get out ahead of the potential court decision. The fact is that those who support the ban don’t have a legal leg to stand on, so they rely on arguments based on fear and patriotism.

Statement of Sen. Graham

Statement of Sen. Leahy

Remarks of Sen. Specter on the floor of the Senate

Jason Easley is the politics editor at www.411mania.com/politics His column The Political Universe appears on Tuesdays and Fridays.

Jason is also the host of TPU Radio, which can be heard at www.blogtalkradio.com/thepoliticaluniverse every Sunday morning at 11 AM ET.

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