Senate Rejects Terror Suspect Habeas

The Senate has narrowly failed to pass habeas corpus protection for terrorist suspects:

The Senate narrowly rejected legislation on Wednesday that would have given military detainees the right to protest their detention in federal court. The 56-43 vote against the bill, by Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., fell four votes shy of the 60 needed to cut off debate. It was a blow for human rights groups that say a current ban on habeas corpus petitions could lead to the indefinite detention of individuals wrongfully suspected of terrorism.

Steve Benen is frustrated:

First, every Democrat in the Senate supported restoring habeas, including conservative Dems from red states who are up for re-election. There is a patriotic party that’s still willing to stand up for American principles; it’s called the Democratic Party. Second, six Senate Republicans had the decency to break party ranks on the issue: Sens. Snowe (Maine), Sununu (N.H.), Specter (Pa.), Hagel (Neb.), Lugar (Ind.), and Smith (Ore.). And third, Joe Lieberman supported the Republican filibuster and voted with the GOP. What a disgrace.

Keep in mind, this was just the vote to allow a vote. It’s one thing for conservatives to oppose habeas corpus, but these guys wouldn’t even allow an up-or-down vote on a basic principle of Western Civilization. Indeed, it’s horrifying to think that supporting habeas is suddenly “old school” — as in Magna Carta in 1215 old school. But that’s where we’ve come, thanks to the radicalization of today’s Republican Party.

We’re in agreement that holding people who are neither prisoners of war nor criminals in prison indefinitely without at least some minimal measure of due process is bad policy. But can we dispense with the reverse-Coulter rhetoric?

Using parliamentary tactics to forestall a floor vote in the Senate on something that a majority would otherwise support is hardly something invented by the current Republican minority. More importantly, the large plurality who opposed this measure are neither unpatriotic nor radical; they merely differ on how far we should go in the name of protecting Americans from the very real threat of Islamist terrorism.

Those being held at Gitmo and elsewhere are not American citizens and therefore not entitled to the full protection of the Constitution. Nor are they soldiers, subject to the protocols of the Geneva Conventions. They’re accused terrorists caught as unprivileged belligerents in a conflict where Americans are being killed.

My sense is that they are nonetheless entitled to some modicum of due process so that they can present evidence on their behalf that they’re not who we claim they are. We’ve rounded up a large number of people whose language we don’t speak in a conflict where our enemy doesn’t wear uniforms. Some number of these people, then, are sure to be innocent bystanders or at least non-threatening. We need some orderly, fair process to sort that out.

It’s nonetheless understandable that some disagree, fearing that judges would order dangerous people released. During time of war, we’ve routinely violated our founding principles in the name of security, using the argument that “the Constitution isn’t a suicide pact.” Abraham Lincoln suspended habeas corpus for American citizens. Woodrow Wilson restricted the freedom of expression. Franklin Roosevelt ordered Japanese Americans locked away in detention camps.

While I think those judgments were alarmist and unnecessary in addition to illegal, it’s not hard to see why they were made. Presidents take on a great burden of responsibility and “better safe than sorry” is a reasonable fallback position. Those of us pontificating from the sidelines don’t have to bear the consequences of being wrong.

FILED UNDER: Congress, Law and the Courts, Terrorism, US Politics, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Patrick T. McGuire says:

    We’re in agreement that holding people who are neither prisoners of war…

    If they are not prisoners of war, how are they being held in military detention? Is not a person who is captured on the battlefield, in a time of war, a prisoner of war?

  2. yetanotherjohn says:

    What I liked best was the idea that a minority blocking the extension of US constitutional rights to non-US citizens is some how a blow against the constitution, but no mention of the democrats using the same parliamentary tactic to avoid fulfilling their mandate under the constitution.

    BTW, aren’t these people covered under the military tribunals set up? It may not be the full protection of the US constitution, but isn’t that away to “sort them out”?

  3. James Joyner says:

    If they are not prisoners of war, how are they being held in military detention? Is not a person who is captured on the battlefield, in a time of war, a prisoner of war?

    They’re not POWs under international law because they weren’t in uniform. The military is holding them because they captured them and, since they’re not being charged with crimes, nobody else has the authority to do so.

    aren’t these people covered under the military tribunals set up?

    Apparently not. That system actually has some due process protections built in.

  4. Tlaloc says:

    Using parliamentary tactics to forestall a floor vote in the Senate on something that a majority would otherwise support is hardly something invented by the current Republican minority.

    True but a filibuster was never supposed to be the norm, it was supposed to be an extreme measure and yet this congress, or more specifically the republicans of this congress have made it the norm. They have used it as a standard tactic despite then enormous amount of whining they did when democrats used it (far far less) last congress.

    For people who pride themselves on originalism and textualism they sure like to rape the constitution when it suits them.

    Congress is supposed to run on the basis of majority rule for most issues. The Filibuster was provided as a brake on the most extreme actions by the majority. If the republicans continue to use it as their reflexive action to any bill sponsored by a democrat we’re probably going to see the thing disappear entirely.

  5. James Joyner says:

    True but a filibuster was never supposed to be the norm, it was supposed to be an extreme measure and yet this congress, or more specifically the republicans of this congress have made it the norm. They have used it as a standard tactic despite then enormous amount of whining they did when democrats used it (far far less) last congress.

    I agree that the filibuster is being used much more routinely than in the past. I disagree that the uptick started in January.

  6. Tlaloc says:

    During time of war, we’ve routinely violated our founding principles in the name of security, using the argument that “the Constitution isn’t a suicide pact.”

    which is just a cute way of saying we don’t really mean what we say.

    Cue Spinal Tap:

    David St. Hubbins: We say, “Love your brother.” We don’t say it really, but…
    Nigel Tufnel: We don’t literally say it.
    David St. Hubbins: No, we don’t say it.
    Nigel Tufnel: We don’t really, literally mean it.
    David St. Hubbins: No, we don’t believe it either, but…
    Nigel Tufnel: But we’re not racists.
    David St. Hubbins: But that message should be clear, anyway.
    Nigel Tufnel: We’re anything but racists.

  7. Tlaloc says:

    I agree that the filibuster is being used much more routinely than in the past. I disagree that the uptick started in January.

    well…

    Seven months into the current two-year term, the Senate has held 42 “cloture” votes aimed at shutting off extended debate — filibusters, or sometimes only the threat of one — and moving to up-or-down votes on contested legislation….

    Nearly 1 in 6 roll-call votes in the Senate this year have been cloture votes. If this pace of blocking legislation continues, this 110th Congress will be on track to roughly triple the previous record number of cloture votes — 58 each in the two Congresses from 1999-2002, according to the Senate Historical Office.

    http://www.mcclatchydc.com/homepage/story/18218.html

    (check out the graphic on that page)

    3x the previous record which was NOT the previous congress? Sounds like a hell of an uptick to me. YMMV.

  8. James Joyner says:

    That the present pace will continue is a rather silly assumption. Further, how many of these have been on the war and related issues? It’s really variations of the same vote over and over.

    I’d note, too, that this is precisely the type of thing for which the filibuster was intended: Major issues of public policy. It doesn’t get much bigger than war and peace.

  9. Triumph says:

    My sense is that they are nonetheless entitled to some modicum of due process so that they can present evidence on their behalf that they’re not who we claim they are.

    How about right to habeus corpus proceedings? The government has already released hundreds of innocent people from Gitmo who never should have been held. Had these people had access to counsel and the courts, they would have been able to get on with their lives instead of wasting away in Bush’s jail.

    They’re accused terrorists caught as unprivileged belligerents in a conflict where Americans are being killed.

    This “accusation” process is what is most troubling. For many people who have been detained at Guantanamo there has been absolutely no evidence that they were engaging in anything illegal.

    Jamal al-Harith, for instance, was just picked up off the street by the Taliban prior to the US invasion. When the jail he was in was liberated by the Northern Alliance, they transferred him to Bush’s custody. No evidence of terrorist ties were ever produced, yet the guy was held for like three years.

    Those of us pontificating from the sidelines don’t have to bear the consequences of being wrong.

    Actually, you may have to bear the consequences–if you were labeled an enemy combatant like Jose Padilla–you could be locked up and denied access to an attorney.

    Having such unadulterated faith in the wisdom of the government to insure your freedoms is not healthy.

  10. Tano says:

    The issue with regard to Habeaus Corpus is whether the government has any reasonable basis for detaining an individual – i.e. whether there is any minimal set of evidence to justify the detention.

    Whether the supposed offense is mass murder or jaywalking should make little difference, for if there is no evidentiary reason to legitimatly suspect someone of the crime, then there is no rational reason to believe that the person held is actually guilty of anything.

    HC is in place to protect INNOCENT people, not terrorists or criminals. A refusal of Habeaus rights is nothing more than a refusal to apply a minimal level of discipline to the armed forces.

    We should not allow violence, including the ability to arrest and detain people, to be used in our name without some minimal level of accountability. To refuse to demand that the government show at least some minimal justification for the detention is to argue for allowing our government to become an agent of tyranny (the undisciplined and unaccountable use of power).

  11. brainy435 says:

    “Nor are they soldiers, subject to the protocols of the Geneva Conventions. They’re accused terrorists caught as unprivileged belligerents in a conflict where Americans are being killed.”

    They’re in direct violation of the Geneva Conventions. We would be fully justified in shooting them as spies for fighting out of uniform, or any number of actual war crimes… unlike the imaginary ones leveled against the president.

    In a fair world we would be able to seperate the innocent from the guilty, but the enemy’s tactics make that almost impossible. That’s on THEM, not us. For all the Jamal al-Harith’s we have a number of detainees returning to the battlefield to try and kill American soldiers. I’m on the side of protecting the American soldiers, not the terrorists.

  12. James Joyner says:

    Having such unadulterated faith in the wisdom of the government to insure your freedoms is not healthy.

    We’re in agreement. I merely acknowledge that people can disagree and not be evil or un-American.

  13. I was just about to ask the same question. Aren’t combatants captured out of uniform in war considered spies and potentially subject to summary execution? Would that satisfy the due process concerns? Or aren’t we still at war?

  14. Andy says:

    I was just about to ask the same question. Aren’t combatants captured out of uniform in war considered spies and potentially subject to summary execution? Would that satisfy the due process concerns? Or aren’t we still at war?

    Shorter Charles Austin: We should just kill anyone who we find near a battlefield.

  15. Tano says:

    “In a fair world we would be able to seperate the innocent from the guilty, but the enemy’s tactics make that almost impossible. That’s on THEM, not us.”

    What kind of a bizarre and sick logic is this? Because the enemy makes it difficult for us to distinguish the innocent from the guilty, we allow ourselves to do violence to the innocent without concern?

    “I’m on the side of protecting the American soldiers, not the terrorists.”

    What is that supposed to mean? No one is interested in protecting the terrorists, the issue is INNOCENT people. Sheeesh….

  16. Billy says:

    Or aren’t we still at war?

    The elephant in the room – NO WE ARE NOT.

    I won’t bother to argue this point; either you’ve read the constitution or you haven’t. War is defined therein. It has not been declared.

    The one historical exception of an undeclared war that could possibly, by analog, justify the suppression of fundamental rights under the constitution, the American Civil War, is not an apt comparison for innumerable and patently obvious reasons. Citations of Korea, Vietnam, or Granada will highlight the ignorance of the writer.

    What I liked best was the idea that a minority blocking the extension of US constitutional rights to non-US citizens is some how a blow against the constitution, but no mention of the democrats using the same parliamentary tactic to avoid fulfilling their mandate under the constitution.

    What I like best is the outright ignorance that the fundamental rights afforded under the constitution are not, in most cases, limited to American citizens. Alienage is a suspect class re: discrimination under the 14th amendment. Look it up.

  17. Yeah Andy, that’s what I meant to say. Thanks for clearing that up for me. Then again, maybe “combatants captured out of uniform” isn’t exactly synonymous with “anyone near a battlefield.” And maybe summary execution of spies as permitted under the laws of war is a little different than indiscriminate killing of anyone. And maybe rhetorical questions aren’t really declarative statements. But hey, it is so much easier to willfully misinterpret the words of others and to project malevolent motives than to actually try to respond intelligently to difficult questions.

  18. davod says:

    What undeclared war? Read the Iraq resolution.

  19. Tlaloc says:

    That the present pace will continue is a rather silly assumption.

    Uh…why? Usually when making predictions about the future you use the trends of the past.

    Further, how many of these have been on the war and related issues? It’s really variations of the same vote over and over.

    I very much doubt that all or even most of the filibusters have been in regards to the war. the two today were for giving DC a house seat and restoring the habeus corpus rights.

    I’d note, too, that this is precisely the type of thing for which the filibuster was intended: Major issues of public policy. It doesn’t get much bigger than war and peace.

    And DC getting a representative…and tax hikes on oil companies…and the employer free choice act…

    When those meet the criteria I’m hard pressed to think of anything that isn’t a major issue of public policy. I guess the same can be said for the GOP (unless they are in the majority, of course).

  20. Tlaloc says:

    What undeclared war? Read the Iraq resolution.

    No declaration of war there. In fact we haven’t had a declaration of war since WW2 IIRC. Remember a declaration of war is a specific thing, it isn’t just anytime the govt gets pissy. A DoW puts into effect various conditions.

  21. James Joyner says:

    And DC getting a representative.

    The bill in question is rather obviously unconstitutional.

  22. Billy says:

    But hey, it is so much easier to willfully misinterpret the words of others and to project malevolent motives than to actually try to respond intelligently to difficult questions.

    Just as it’s easier to fail to acknowledge a superior argument than it is to admit you’ve been outgunned. Case in point:

    The bill in question is rather obviously unconstitutional.

  23. brainy435 says:

    To Billy and Tlaloc, show me specifically where in the constitution it tells you the verbiage you must use to declare war. It tells you who, not how. Just because Congress wants to leave the door open for plausible deniability in case the crap hits the fan after the fact doesn’t make it any less legitimate.

    To Tano, you may want to switch to decaf or comment on what I actually write and not put words in my… um… fingers. We have the clear authority to hold any prisoners engaging us during war for as long as the conflict continues. It is on the ENEMY to conduct themselves according to the rules of war, which civilized societies agreed on to protect civilians. If they do not, we are pretty much obligated to execute them, because they have by their own actions willingly put civilians at risk by not making themselves discernible from those civilians. America does not execute spies, and I think we’ve seen how detrimental that is in terms of more civilian casualties. At the same time, we have a responsibility to give our soldiers as much protection as possible, and that includes shielding them from the unfortunate deaths and detentions that occur as a result of the enemy’s actions. We go to great lengths to try and protect the innocent, but ultimately any innocent lives ended or interrupted by detention is the fault of our enemy, not us. Erring on the side of caution to the extent you advocate sets more terrorists free and kills more American soldiers and Iraqi civilians.

  24. Zelsdorf Ragshaft III says:

    Who amongst you wants to let these vicious killers loose to reek havoc on your children? Invite these innocent murders into your homes. Did you watch the senseless destruction of the Giant Buddha’s? They are Taliban. Friends of the Democratic party.

  25. Billy says:

    …show me specifically where in the constitution it tells you the verbiage you must use to declare war.

    Article I, Section 8, Clause 11.

    Here’s what a declaration of war looks like. You’ll notice the language “state of war between the United States and . . . is hereby formally declared.” That’s not one of the possible ways of declaring war, it’s the ONLY way.

    Are we done with that now?

  26. geekWithA.45 says:

    I’m just passing through, but this caught my eye.

    Article I, Section 8, Clause 11 provides that…congress…has…the power:

    “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”

    This does not specify or require any particular form of that declaration.

    Billy’s position that there is one, and only one form of declaration of war is not supported.

  27. Billy says:

    That a declaration of war must be unequivocal to meet constitutional muster is not questioned by any but the most facile of commentators.

    It’s quite illustrative of the desperation of the “give up any rights because we’re pissing our pants at the thought of terrorism” camp that this is where you hinge your justifications. Not even the GOP seriously argue this in anything other than a rhetorical context.

    But, then, most of them have at least a basic understanding of the law, which is more than I can say for some.

  28. Boyd says:

    …most of them have at least a basic understanding of the law…

    Or the Constitution.

    …which is more than I can say for some.

    Such as, oh, say, Billy.

    Article I, Section 8, Clause 11:

    [The Congress shall have power] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

    I keep re-reading that clause to find the form prescribed for declaring war, but somehow I don’t find it.

    Sorry for the sarcasm, but Billy’s unfounded air of superiority and misplaced arrogance kinda rubbed me the wrong way. For some odd reason.

  29. Michael says:

    I’d note, too, that this is precisely the type of thing for which the filibuster was intended: Major issues of public policy. It doesn’t get much bigger than war and peace.

    I don’t see how a bill providing Habeas protection to non-citizens in US custody is a matter of war or peace, it’s a matter of due process isn’t it?

    The bill in question is rather obviously unconstitutional.

    That’s up to the courts to decide, isn’t it? If the Republicans really thought it was that blatantly unconstitutional, they could have allowed a vote, voted against it, and then brought it to court.

  30. James Joyner says:

    I don’t see how a bill providing Habeas protection to non-citizens in US custody is a matter of war or peace, it’s a matter of due process isn’t it?

    It’s a fundamental question in how we handle the war on terrorism.

    That’s up to the courts to decide, isn’t it? If the Republicans really thought it was that blatantly unconstitutional, they could have allowed a vote, voted against it, and then brought it to court.

    Legislators swear and oath to the Constitution every bit as much as judges. If they feel strongly that something’s unconstitutional, they have a duty to do everything in their power to defeat it.

  31. Michael says:

    What undeclared war? Read the Iraq resolution.

    Former Attorney General ALberto Gonzales disagrees with you.
    http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States#Current_status_of_the_U.S._debate

    The February 6, 2006, testimony of Alberto Gonzales to the U.S. Senate Judiciary Committee Hearing on Wartime Executive Power and the National Security Agency’s Surveillance Authority, however indicates otherwise:

    GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you’re possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we’re not talking about a war declaration. This is an authorization only to use military force.

  32. brainy435 says:

    Billy makes my argument for me at the same time he argues against it. The clause has no set definition of how, precisely, congress is to exercise their power to “declare war.” Because we used to do it in a stricter sense in no way invalidates our current approach, in regards to constitutionality. Whether the approach we have used the last few decades is intelligent is highly debatable, however for other reasons.

    I’d note for Michael that Gonzales’s testimony is the exact word wrangling our current form of “declaring war” was designed to allow. We have in effect met the constitutional requirement, thanks to its vagueness, while allowing us to insist to others that we haven’t REALLY declared war as far as “affecting treaties, diplomatic relations.” I would rather see us use the stricter form and do it right, but it’s not unconstitutional.

  33. davod says:

    Part of HR114 followed by a statement from the Federation of American Scientists, no friend of the Bush Administration.

    HR114 – A joint resolution to authorize the use of United States Armed Forces against Iraq.

    …SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

    (a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to–

    (1) defend the national security of the United States against the continuing threat posed by Iraq; and

    (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

    (b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that–

    (1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

    (2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.

    (c) War Powers Resolution Requirements-

    (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

    (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.

    The FAS (No friend of the Bush Administration states the following “…P.L. 107-243 clearly confers broad authority on the President to use force. The authority granted is not limited to the implementation of previously adopted Security Council resolutions concerning Iraq but includes “all relevant … resolutions.” Thus, it appears to incorporate resolutions concerning Iraq that may by adopted by the Security Council in the future as well as those already adopted. The authority also appears to extend beyond compelling Iraq’s disarmament to implementing the full range of concerns expressed in those resolutions. The President’s exercise of the authority granted is not dependent upon a finding that Iraq was complicit in the attacks of September 11, 2001. Moreover, the authority conferred can be used for the purpose of defending “the national security of the United States against the continuing threat posed by Iraq. On March 19, 2003, President Bush used the authority granted in P.L. 107-243 by launching a military attack against Iraq.”

  34. Billy says:

    …Billy’s unfounded air of superiority and misplaced arrogance kinda rubbed me the wrong way. For some odd reason.

    First, I displayed zero arrogance, merely an understanding of the subject matter that is sorely lacking from a majority of the posts in this thread. Second, you came to this conclusion because you didn’t read what I said. In your defense, I referenced a declaration of war, and said that it was the only way to operate constitutionally. I should have been clearer – my point was that declarations of war have to be unequivocal, not that any specific language needs to be used. I clarified this point prior to your post, which clearly illustrates both your lack of foundation on constitutional law and inability to comprehend basic English.

    The point is, if we can plausibly debate whether a bill has exercised the war powers clause, then it hasn’t. This is inarguably the situation as it currently exists regarding Iraq. Please further demonstrate how little you know by arguing against this absolutely uncontroversial position.

    Billy makes my argument for me at the same time he argues against it. The clause has no set definition of how, precisely, congress is to exercise their power to “declare war.” Because we used to do it in a stricter sense in no way invalidates our current approach, in regards to constitutionality. Whether the approach we have used the last few decades is intelligent is highly debatable, however for other reasons.

    “Our current approach” in the context of this conversation wrongfully and disingenuously implies that war has been declared. It has not.

    If what you meant was instead that it is not unconstitional for the President to use force when the country is not at war, then I cannot disagree. However, the justification for stripping Habeas has frequently been stated as “we’re at war,” and I am quite tired of people who have no idea what they’re talking about spouting this lie because it supports their cowardice.

  35. brainy435 says:

    “First, I displayed zero arrogance, merely an understanding of the subject matter that is sorely lacking from a majority of the posts in this thread.”

    That’s arrogance. Ironic, since you said it while claiming not to be arrogant. DOUBLY so since for all your “understanding of the subject matter” you then have to admit you were wrong.

    The fact is that we declared war, just as we did in Korea and Vietnam, without making a Declaration of War. We did this to meet the requirement of the constitution to have declared war, without having to really deal with the messy aspects of a Declaration of War. Congress authorizing force meets the vague constitutional threshold of going to war, hence we are at war. Its a very fine point and based solely on technicalities, but unfortunately that’s the world we live in.

  36. Billy says:

    Everything you just said is wrong in so many ways that it’s not even worth trying.

    Please come back when you’ve taken some classes in law, history, or best of all, legal history. Or at least read a book about one or more of those subjects.

  37. brainy435 says:

    “Everything you just said is wrong in so many ways that it’s not even worth trying.”

    Not even going to admit it this time, eh?