Habeas for Military Detainees

The Senate has been mostly boring this week.

S. Amdt. 286 by Senators Specter, Leahy and Dodd is sure to be a serious friction point, however. Perhaps there will be some fireworks later in the week. The subject was raised, briefly, on the 6th, and has been under some significant debate time today (Wednesday, March 7th).

SPECTER OFFERS HABEAS AMENDMENT TO 9-11 BILL
March 6th, 2007

Washington, D.C. - Today, Senate Judiciary Committee Ranking Member, Senator Arlen Specter (R-Pa.) for himself, Senate Judiciary Committee Chairman, Senator Patrick Leahy (D-Vt.) and Senator Christopher Dodd (D-Ct.) called up S.A 286, to restore habeas corpus to those detained by the United States. The amendment is to modify S. 4, Improving America's Security Act of 2007.

The amendment strikes the federal habeas corpus limitation imposed by the Military Commissions Act and the Detainee Treatment Act by restoring the rights of aliens detained within U.S. territorial jurisdiction to challenge their detention by filing writs of habeas corpus.

The effect of the legislation will ensure that the federal courts of jurisdiction will have the opportunity to hear the nearly 200 habeas corpus applications currently pending on behalf of the detainees at Guantanamo Bay, Cuba. The legislation restores jurisdiction and allows those cases to be decided on their merits. It also allows habeas corpus challenges to military commission procedures.

Below is the text of the amendment: ...[snip - click on the link]

Senator Specter notices that his amendment won't get a vote in the context of the 9/11 Commissions bill. Hahahahaha!.

And in other Senate news, Mitch McConnell just pissed off Senator Collins with a cloture motion on S.Amdt. 312. I doubt she's upset over the contents of the amendment, or having a debate on it - her irk is simply a matter, as bill manager, of not having notice and control over the parliamentary procedure.

But McConnell's stepping in gives me reason to look closely at S.Amdt.312. Its contents produce a new criminal terrorism offense of "recruitment," and this must be contentious, otherwise there would be no cloture motion to elevate the prominence of the amendment in legislative process.

Chapter 113B of title 18, United States Code, is amended by inserting after section 2332b the following: Sec. 2332c. Recruitment of persons to participate in terrorism.

(1) IN GENERAL.--It shall be unlawful to employ, solicit, induce, command, or cause another person to commit an act of domestic terrorism or international terrorism or a Federal crime of terrorism, with the intent that the person commit such act or crime of terrorism ...

... the term `Federal crime of terrorism' has the meaning given that term in section 2332b of this title

It creates quite a bit of new "grey area," particularly with absence of definition of domestic terrorism, and is a complex modification to an already complex criminal code. See 18 USC 2332b for context.

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This is an interesting development on "Military v. Civilian" action ...

Congressional Intelligence Oversight in Jeopardy

... an anonymous Senator yesterday blocked Senate consideration of the pending Intelligence Authorization Act for FY 2007. ...

The Senator who is holding up the bill is Sen. Jim DeMint (R-SC), according to Tim Starks of Congressional Quarterly.

Sen. DeMint "is said to be concerned about provisions of the bill that require the Bush administration to report to Congress on its detention policies, such as those pertaining to its secret CIA prisons, as well as a provision to declassify the total intelligence budget," CQ reported on March 6.

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UPDATE @ March 8

The below link is to a section of the Congressional Record for March 7, where Senators Specter, Graham and others debate habeas corpus.

Improving America's Security Act

Good debate on the 8th too, Specter, Kyl and Graham. Graham says that the government has to prove by a preponderance of the evidence (more likely than not), with the presumption running favor of the government (meaning the prisoner has to rebut the government) that a person is an enemy combatant, in order to hold them indefinitely.

I'm not sure if the prisoner's rebuttal is required to specifically address the government's evidence, but if so, I can imagine that chore would be "complicated" in cases where the government's evidence is withheld from the prisoner.

UPDATE @ 17:00

Senator Reid offers a series of Four Iraq Surge resolutions, including the Gregg proposal, to be taken up on Monday and Tuesday next week, a total of 12 hours of debate followed by votes on each of the debated measures.

Senator McConnell objects, even though the so-called Gregg amendment (S.641) is one of the measures included.

This will be an interesting debate to review - McConnell listed sixteen Iraq measures that have been offered by the Democrats.

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UPDATE @ March 9

March 7 debate on habeas (Specter, Graham)
March 8 debate on habeas (Kyl, Specter, Graham)

The debates are actually quite well done, which is unusual by my observation, as most debates in the Senate reduce (in my opinion) to misdirection.

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Senator Lott's ire yesterday was due to his sense that the Senate would be held over late Friday or even into Saturday, as back-room negotiations proceed as to which amendments will be horse-traded for which others. Until the back-room deals are settled, there is no public action from the floor of the Senate.

Lott 1) wants to go home for the usual "long weekend" that Senators are accustomed to and 2) is concerned at public/political reaction to the appearance that the Senate is inactive.

The specific parliamentary item that he threatened to use as a lever to get the back-room deals moving along was to move to table the Sununu amendment, S.Amdt.291.

  Mr. LOTT. ... Can I inquire, Mr. President, what is the pending business?

  The PRESIDING OFFICER. The pending question is Sununu amendment No. 291 to the substitute to S. 4.

  Mr. LOTT. Parliamentary inquiry, Mr. President: Would a motion to move the previous question be a proper way to proceed?

  The PRESIDING OFFICER. There is no such motion in the Senate.

  Mr. LOTT. Would a motion to table be in order, Mr. President?

  The PRESIDING OFFICER. A motion to table is in order.

  Mr. LOTT. It is not my prerogative, but I am threatening it.

A snark by Senator Lott, but VERY informative as to formal Senate procedure. There is no motion to move the previous question, and a motion to table is not, as a practical matter, within the prerogative of an individual Senator.

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  Mr. REID. Madam President, I ask unanimous consent that Monday, this coming Monday, March 12 at 3 p.m., the Senate begin debate on the following: S.J. Res. 9, sponsored by Senator Reid of Nevada; S. Res. 101, sponsored by Senator Reid of Nevada; S. Con. Res. 7 by Senator Warner; S. Res. 70 by Senator McCain; S. 641 by Senator Gregg; that there be 6 hours for debate on these items en bloc on Monday, equally divided between the two leaders or their designees; that no amendments or other motions be in order to any of the above; that on Tuesday, March 13 there be 6 more hours for debate on the above, divided in the same way; that at the conclusion or yielding back of that time, the Senate vote on each of the above in the above order; and that the preceding all occur without intervening action or debate. ...

  Mr. REID. Before my friend leaves, I renew my consent making it 60 votes rather than 50 votes. Does that affect anything?

  Mr. McCONNELL. I object.

The above just a convenience "for the record," as the issue will come up again. The political debate is fairly transparent, and the details in the various measures are, at this point, staking out the outer perimeter of the debate.

It's interesting that Reid was willing to concede a 60 vote margin for passage. McConnell's rationale for objecting is to give time to tweak the political message, and to insure that the language brought to the floor for debate and vote is not limited to the language in the set of five resolutions in Reid's list.

UPDATE @ 09:37

The cloture vote on S.Amdt.312 is going to fail. In theory, this keeps the amendment alive for debate, but in practice it serves as an excuse to table or otherwise dispose of the amendment.

UPDATE @ 09:55

It went down, 46-49, not even getting a majority. Next up is a cloture motion that represents limiting debate on the bill as a whole. This one could be interesting, but most likely cloture will pass. If it doesn't pass, again, as above, it doesn't kill the bill, it keeps it alive and doesn't result in the post-cloture condition where non-germane amendments are easily disposed of.

Cloture is going to carry easily. There is token opposition to cloture from the Republicans.

UPDATE @ 10:19

And the cloture motion passes 69-26. Vote for the bill is scheduled for Tuesday.

The unanimous consent agreement includes a clause that the pending vote on the substitute amendment and the bill do not preclude Senator Reid offering a motion to proceed to the consideration of some other bill. Simply means that Reid is preserving the option of moving to take up a bill that he KNOWS the Republicans will object to.

No more roll call votes today, Senator Lott is probably pleased with that development.