Tuesday, December 19, 2006

The resurrection of habeas corpus

Despite all the self-flagellation, teeth gnashing, pity wallowing, and name calling by civil libertarians lately (including Yours Truly), the Republic may not be in flames after all.

This is not to say that the Constitution-trashers (i.e., George “It’s Just A Goddamned Piece of Paper” Bush and the Cheney Cabal) aren’t still flicking their Bics, but some people may have rediscovered their cojones after all. Of course, having a newly installed Democratic majority standing behind you does afford some small measure of moral support. That said, Arlen Specter (R-PA), last seen begging the Supreme Court to clean up the shit pile he had left on the Senate floor with the Military Commissions Act, has announced (Da-Dah!) the Habeas Corpus Restoration Act of 2006.

Take it away, Arlen!

It is my view that the Federal courts will strike down the provisions in the legislation eliminating Federal court jurisdiction for a number of reasons. One is that the Constitution of the United States is explicit that habeas corpus may be suspended only in time of rebellion or invasion. We are suffering neither of those alternatives at the present time. We have not been invaded, and there has not been a rebellion. That much is conceded.


In the limited time I have today I will not go into great detail during the course of the argument as it appears in the Congressional Record as to why that does not maintain the traditional constitutional right of habeas corpus, a right which has existed in Anglo Saxon jurisprudence since King John in 1215 at Runnymede. The Supreme Court of the United States in the Hamdi case made it plain that these habeas corpus rights apply to aliens as well as to citizens.


It was my view as I expressed it at the time that with the severability clause the Federal courts would eliminate the restriction on their jurisdiction. But as a precautionary matter, to put the matter in issue, this legislation is being introduced at this time.

I ask unanimous consent that the summary of the Habeas Corpus Restoration Act of 2006 be printed in the Record.

The bill is co-sponsored by Patrick Leahy (D-VT ), and is expected to be presented for a floor vote with the new Senate session, immediately after the end of the New Year’s break.

You may want to check out Leahy’s statement on his introduction of the Effective Terrorists Prosecution Act of 2006.

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