Habeas Corpus Restoration Act of 2006

Mr. President, I am pleased to join the chairman of the Judiciary Committee and cosponsor the Habeas Corpus Restoration Act of 2006. This bill would restore the great writ of habeas corpus, a cornerstone of American liberty for hundreds of years that Congress and the President rolled back in an unprecedented and unnecessary way with September's Military Commissions Act.

I am also pleased to join Senator Dodd as a cosponsor of the Effective Terrorists Prosecution Act of 2006. That bill would likewise restore the liberties guaranteed by the writ of habeas corpus. It would also correct many of the other very disturbing provisions of the Military Commissions Act by narrowing that act's extremely broad definition of ``unlawful enemy combatants,'' excluding evidence obtained by coercion, and allowing defendants to review evidence used against them.

Habeas corpus provides a remedy against arbitrary detentions and constitutional violations. It guarantees an opportunity to go to court, with the aid of a lawyer, to prove one's innocence. As Justice Scalia stated in the Hamdi case: ``The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.'' The remedy that secures that most basic of freedoms is habeas corpus.

The Military Commissions Act eliminated that right, permanently, for any non-citizen determined to be an enemy combatant, or even ``awaiting'' such a determination. That includes the approximately 12 million lawful permanent residents in the United States today, people who work for American firms, raise American kids, and pay American taxes. This new law means that any of these people can be detained, forever, without any ability to challenge their detention in federal court--or anywhere else--simply on the Government's say-so that they are awaiting determination whether they are enemy combatants.

I regret that Chairman Specter and I were unsuccessful in our efforts to stop this injustice when the President and the Republican leadership insisted on rushing the Military Commissions Act through Congress in the lead-up to the elections. We supported an amendment which would have removed the habeas-stripping provision from the Military Commissions Act. It failed by just three votes. I was saddened that the bill passed even with this poisonous habeas provision. Since then, the American people have spoken against the administration's ``stay the course'' approach to national security and against a rubber stamp Congress that accommodated this administration's efforts to grab more and more power.

When we debated Chairman Specter's amendment to remove the habeas- stripping provision back in September, I spelled out a nightmare scenario about a hard-working legal permanent resident who makes an innocent donation to, among other charities, a Muslim charity that the Government thinks might be funneling money to terrorists. I suggested that, on the basis of this donation and perhaps a report of ``suspicious behavior'' from an overzealous neighbor based on visits from Muslim guests, the permanent resident could be brought in for questioning, denied a lawyer, confined, and even tortured. And this lawful permanent resident would have no recourse in the courts for years, for decades, forever.

Many people viewed this kind of nightmare scenario as fanciful, just the rhetoric of a politician. It was not. It is all spelled out clearly in the language of the law that this body passed. Last month, the scenario I spelled out was confirmed by the Department of Justice itself in a legal brief submitted in a Federal court in Virginia. The Justice Department, in a brief to dismiss a detainee's habeas case, said that the Military Commissions Act allows the Government to detain any noncitizen declared to be an enemy combatant without giving that person any ability to challenge his detention in court. This is true, the Justice Department said, even for someone arrested and imprisoned in the United States. The

Washington Post wrote that the brief ``raises the possibility that any of the millions of immigrants living in the United States could be subject to indefinite detention if they are accused of ties to terrorist groups.''

In fact, the situation is more stark even than the Washington Post story suggested. The Justice Department's brief says that the Government can detain any noncitizen declared to be an enemy combatant. But the law this Congress passed says the Government need not even make that declaration; they can hold people indefinitely who are just awaiting determination whether or not they are enemy combatants. It gets worse. Republican leaders in the Senate followed the White House's lead and greatly expanded the definition of ``enemy combatants'' in the dark of night in the final days before the bill's passage, so that enemy combatants need not be soldiers on battlefield. They can be people who give money, or people that any group of decisionmakers selected by the President decides to call enemy combatants. The possibilities are chilling.

The administration has made it clear that they intend to use every expansive definition and unchecked power given to them by the new law. Last month's Justice Department brief made clear that any of our legal immigrants could be held indefinitely without recourse in court. Earlier in November, the Justice Department went to court to say that detainees who had been held in secret CIA prisons could not even meet with lawyers because they might tell their lawyers about the cruel interrogation techniques used against them. In other words, if our Government tortures somebody, that person loses his right to a lawyer because he might tell the lawyer about having been tortured. A law professor was quoted as saying about the government's position in that case: ``Kafka-esque doesn't do it justice. This is `Alice in Wonderland.' '' We are not talking about nightmare scenarios here. We are talking about today's reality.

We have eliminated basic legal and human rights for the 12 million lawful permanent residents who live and work among us, to say nothing of the millions of other legal immigrants and visitors who we welcome to our shores each year. We have removed the check that our legal system provides against the Government arbitrarily detaining people for life without charge, and we may well have made many of our remaining limits against torture and cruel and inhuman treatment obsolete because they are unenforceable. We have removed the mechanism the Constitution provides to check Government overreaching and lawlessness.

This is wrong. It is unconstitutional. It is un-American. It is designed to ensure that the Bush-Cheney administration will never again be embarrassed by a U.S. Supreme Court decision reviewing its unlawful abuses of power. The conservative Supreme Court, with seven of its nine members appointed by Republican Presidents, has been the only check on the Bush-Cheney administration's lawlessness. Certainly the outgoing rubberstamp Republican Congress has not done it, or even investigated it. With passage of the Military Commissions Act, the Republican Congress completed the job of eviscerating its role as a check and balance on the administration.

Abolishing habeas corpus for anyone who the Government thinks might have assisted enemies of the United States is unnecessary and morally wrong. It is a betrayal of the most basic values of freedom for which America stands. It makes a mockery of the Bush-Cheney administration's lofty rhetoric about exporting freedom across the globe.

Admiral John Hutson testified before the Judiciary Committee that stripping the courts of habeas jurisdiction was inconsistent with American history and tradition. He concluded, ``We don't need to do this. America is too strong.'' Even Kenneth Starr, the former independent counsel and Solicitor General to the first President Bush, wrote that the Constitution's conditions for suspending habeas corpus have not been met, and that doing so would be problematic.

Under the Constitution, a suspension of the writ may only be justified during an invasion or a rebellion, when the public safety demands it. Six weeks after the deadliest attack on American soil in our history, the Congress that passed the PATRIOT Act rightly concluded that a suspension of the writ would not be justified. Yet 6 weeks before a midterm election, the Bush-Cheney administration and the Republican Congress deemed a complete abolition of the writ their highest priority. Notwithstanding the harm the administration has done to national security with its mismanaged misadventure in Iraq, there was no new national security crisis. There was only a Republican political crisis. The people have now spoken, and it is time to reverse the dangerous choices this Congress made.

Rolling back the Military Commissions Act's disastrous habeas provision will set the stage for us to approach that issue in a way consistent with our needs and our values. We should take steps to ensure that our enemies can be tried efficiently and quickly and to prevent our courts from being tied up with frivolous suits. But abolishing the writ of habeas corpus for millions of legal immigrants and others, denying their right to get into court to challenge indefinite detainment on the Government's say-so, is not the answer.

I hope that others will hear the call of the American people for a new direction and work to correct these and other problems with the new law, including the gutting of the War Crimes Act, which I was proud to help spearhead with strong bipartisan support in 1997.

I will keep working on these issues until we restore the checks and balances that make our country great. We can ensure our security without giving up our liberty.

Mr. President, I introduce legislation which is captioned ``Habeas Corpus Restoration Act of 2006'' which I introduced on behalf of myself and Senator Leahy.

The legislation which was adopted earlier this year on war crimes struck out habeas corpus jurisdiction of the Federal courts, sought to limit jurisdiction of the Federal courts on habeas corpus for Guantanamo detainees and others detained on charges of being enemy combatants or war criminals.

There was very extended debate on the issue at that time. The bill reported by the Armed Services Committee and backed by the administration eliminated the jurisdiction of the Federal courts. I offered an amendment to reinstate habeas corpus. It was defeated 51 to 48. This legislation would reinstate habeas corpus jurisdiction of the Federal courts. 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.

There has been an effort made to contend that those constitutional rights are maintained with the very limited review which goes to the Court of Appeals for the District of Columbia.

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.

The administration has taken the position now that someone who is making a charge of having been tortured, which is a violation of U.S. law, may not be permitted to disclose the specifics of his interrogation which he says constituted torture because al-Qaida will find out what our interrogation techniques are and will move to train their operatives so they can withstand those interrogations.

It is unthinkable, in my opinion, to have a system of laws where someone who claims to have been tortured cannot describe what has happened to him to get judicial relief because al-Qaida may be able to educate or train their operatives to avoid those techniques.

I supported the ultimate legislation on war crimes tribunals because it provided for recognition of the Geneva Conventions. It also provided for confrontation. It also provided for limitations on interrogation techniques.

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.

Mr. President, I rise today to introduce the Water and Power Infrastructure Security bill, S. 4079. This legislation will amend the Reclamation Safety of Dams Act of 1978 to authorize improvement for the security of dams and other facilities.

On September 11, 2001, America's view of national security changed. The threat of terrorist attacks on our own soil became a reality for each and every one of us. This possibility forced Americans to rethink security in many different sectors including the need to secure infrastructure such as our Nation's dams.

As a result of the 9/11 attacks, the Bureau of Reclamation set up site security programs, implemented more complex surveillance systems, erected protection barriers, and devoted substantial funding in the process.

Initially, the Bureau covered these added security costs, recognizing that water and power infrastructure benefits the public generally. This was a pattern established after the Pearl Harbor attacks when the Federal Government covered the added security costs at these public facilities.

Indeed, all Americans benefit from stable power sources and improved flood control. Other universal benefits of public dams include recreation, water supply, and fish and wildlife.

However, in recent years the Bureau has begun to shift these costs onto the energy rate payers probably due to pressure from Office of Management and Budget. Thus, hard working American families, many of whom are family farmers with limited incomes, are forced to shoulder this large financial burden. Shifting the burden of national security to family farmers is patently unfair.

Our bill amends the Reclamation Safety of Dams Act to require to clarify that consumers of public power must contribute to site security at Federal dams. However, the bill would limit their contribution to 15 percent of total security costs. This provides a more equitable division of dam security costs between local and national beneficiaries. The bill also would require the Secretary of the Interior to involve project beneficiaries in the planning and building of site security. Finally, the bill requires the Bureau to provide Congress a five-year plan on dam security and an annual report of its expenditures.

There is no question we need to protect our critical infrastructure. It seems logical that the costs of these national and multi-purpose facilities should not be imposed on a concentrated group of energy consumers. However, customers who depend on the Bureau of Reclamation facilities are willing to pay their fair allotment of the security reflected in this legislation.

I believe this bill strikes a good balance between reasonable costs and a legitimate amount of transparency. Ultimately, its about working together as Americans to protect our critical infrastructure and provide a fair cost distribution system. I urge my colleagues to support this bill.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, earlier today the Judiciary Committee held a hearing on hedge funds and what is happening in that important area where we now find that we have an area in the securities field which involves some $1.3 trillion, some 30 percent of the stock trading, and no regulation. The Judiciary Committee held hearings contemporaneously with the consideration of Sarbanes-Oxley and that legislates in the field to deal with criminal sanctions for insider trading violations. The issue which we took up in some detail in the Judiciary Committee today involves allegations that there was insider trading, a matter yet to be resolved. But out of the Judiciary Committee inquiry, draft legislation has been circulated which has three very important provisions.

First of all, on criminal jurisdiction there are Federal decisions which have precluded the Department of Justice from collaborating with the Securities and Exchange Commission. The draft legislation which has been circulated would authorize that. There is no reason the SEC and the Department of Justice should not be able to collaborate when they find evidence of criminal conduct to act to prosecute.

The second provision of the draft legislation would authorize more compensation for whistleblowers. The fact is, the SEC is doing very little by way of encouraging whistleblowers to bring forward insider information and to stop insider trading. The legislation would authorize the Attorney General to provide for compensation up to 30 percent for whistleblowers from a penalty, fines or settlement, and also protection for the whistleblowers.

The third provision in the draft legislation which has been circulated would provide for regulations on small investors who do not have the sophistication to conduct due diligence and also for pension funds which are invested in hedge funds.

The testimony of the attorney general from Connecticut, Richard Blumenthal today went into some detail about how the failure of Amaranth recently, which amounted to some $6.5 billion, touched pension funds and many of the small investors.

We have circulated this legislation, and we will be asking for comments. I thought I would describe it very briefly this afternoon. It will be introduced formally as soon as we have had an opportunity to get comments from interested parties.

(The remarks of Mr. SPECTER pertaining to the introduction of S. 4081 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.