Good News!

by hilzoy

The California Daily Journal, via How Appealing, via dKos:

"Sen. Patrick Leahy of Vermont, who is expected to become chairman, confirmed Thursday that he is drafting a bill to undo portions of a recently passed law that prevent terrorism detainees from going to federal court to challenge the government's right to hold them indefinitely. (...)

Leahy, who was among the 32 Democrats who voted against the bill, has been the most outspoken critic of the restrictions on habeas corpus.

"It was crazy," he said during an interview broadcast Wednesday on National Public Radio. "After 200 years of habeas corpus, we threw it out after just a few hours of debate."

He has also voiced concern that the bill allows the White House to determine what kinds of coercive interrogation procedures are off-limits."

I said earlier that " all I can do is think of little phrases like "Chairman Leahy", and grin." This is why.

Comments

[Jay S]

I can hear the howls of "soft on terrorism" now. The Senator had better have a campaign laid out with arguments and sound bites prepared to beat back the fear mongers. This may end up as another nasty slug fest instead of reasoned debate. I suspect that the public will need to be turned around on this as well to have a successful outcome. Too few people even understand what Habeas Corpus is, even in congress. This looks like an uphill battle to me. I hope he has the ability to carry it off.

[Katherine]

It's uphill, no doubt. But the knee jerk "oh no, they'll say we're soft on terrorism" reaction is self-fulfilling.

Polls on this issue are actually not bad--they're quite favorable depending on how you phrase the questions. No doubt they will have to become far more so before this has a shot.

There's no shortage of factual material out there. This story is my personal favorite. Leahy and his staff probably know a lot of it--the trick is getting his colleagues and the press to pay attention.

[Jay S]

I don't see how it's self fulfilling to assert they are going continue to do something they have already done.

Here's soon to be ex-senator Talent on MTP :

SEN. TALENT: Tim, she said the program is illegal. I mean, this is a program every president’s used since Jimmy Carter. She supported the Hamdan decision, which as you know, put a stop to our interrogation of foreign terrorists because our CIA agents were afraid of being sued. She supported The New York Times release of classified information. She’s recently said, to a group of her supporters in Paris, she...

MS. McCASKILL: Now, I...

SEN. TALENT: ...said to them she’s deeply concerned that we haven’t granted habeas corpus privileges to captured terrorists, which is—would allow them to sue us because they’re not getting high-speed Internet. You know, she supports an artificial timetable for withdrawing from Iraq. It’s not a question of politics, it’s not a question of people’s motives, it’s a question of what’s going to win this war. And positions of weakness are not going to do it.

Sen. Leahy needs to be able to fight through this sort of nonsensical rhetoric in order to win this battle. Good intentions won't win this alone. If it polls well depending on how you ask the question, then he needs to be sure he sets the framing of the question.

[bob mcmanus]

Embarrass and weaken the President, get publicity and attention, at minimum. I am impressed.

[Jay S]

Perhaps I was too pessimistic. The relevant Senate amendment failed 48-51 with Republicans Smith, Specter and Sununu voting for it. Talent, Allen, Santorum and others are gone. I didn't remember it being that close. A "bipartisan" win in the Senate might tamp down the critics. Everybody loves a winner. How will this play in the House?

[CaseyL]

"[W]ould allow them to sue us because they’re not getting high-speed Internet."

These kinds of statements make me want to tear my hair out. They're juvenile, mindless, and have nothing to do with the substance of the issue. I'm tired of having my intelligence insulted.

And I dare to hope, after the results Tuesday, that Americans are also tired of having their intelligence insulted; that they're ready and eager to hear substantive debate and statements about why habeas is vital, and why we have nothing to fear by restoring the most basic judicial human right there is.

Go, Pat Leahy!

[CharleyCarp]

Jay S, it was pretty close in House Armed Services too. All Dems in favor of striking the habeas stripping. Not sure whether any Republicans crossed over -- I have a hazy memory that 3 did, but that might have been a different vote.

The high speed internet thing would be funny if it wasn't so effective among people not paying attention. Let me pose this question to literalists and Republicans: if one assumes that the lawsuit in question seeks to have a trial on the merits concerning the legality of holding the petitioner as an enemy combatant, and one further assumes that the issue with regard to high speed internet was a request by a lawyer to be allowed to resume use of the public computer in the public library on the windward side on the base, over the lunch hour (on such terms as are set by the library for use by the public), where the only alternative for internet access is dial-up on the leeward side (where the lawyer isn't going to be between 8 am and 6 pm) usable late in the evening, would it follow that soon-to-be-ex-Sen. Talent is something of a weasel?

[Jay S]

Thanks Charley. I haven't been able to find anything supporting or refuting that claim. It looks like Sen. Graham may be a similar animal

There are now close to 200 habeas petitions filed by enemy combatants requesting better mail delivery, more exercise, judge-supervised interrogation, Internet access and the right to view DVDs.

Is there some source to understand these assertions and whether there is any relationship to habeas?

[cleek]

*pop* *pop* *poppop* *pop*

that's the sound of little wingnut brains exploding in fury.

giving rights to terrorists?!

[CharleyCarp]

In each and every case Sen. Graham refers to -- and I'll admit to imitating the breathless way he said 'and they want DVS' for a year now -- the actual case is a habeas case seeking review of the lawfulness of the detention, and the things he lists are not the point of the suit, but incidental relief like the internet access issue.

'Better mail delivery' is most likely a reference to our complaints that the government stop holding or denying our mail to the prisoners, for example. Katherine or Hilzoy had a post about the DVD thing, I think. Iirc, it was a specific request by a prisoner: the government had sent interrogators pretending to be lawyers to question the prisoner, and when the real lawyers showed up, he wanted to see a DVD of his parents talking to them. This was granted.

Lindsey Graham is perfectly aware of the nature of the requests he's talking about. He knows perfectly well that these are not the bases of the suits, but he also knows that someone not paying attention could miss this fact. I couldn't think less of him for it, or of the permissive morally relativistic culture that conservatives have been so adept at advancing where people who support him don't bat an eye at such things. (I shouldn't say that Talent is a weasel -- for all I know, he's only been misled by Graham, and doesn't himself know that these bits of incidental relief are only that).

We've been lucky not to have to file that kind of thing: the government hasn't jacked lawyers from my firm around as much as some others, and our clients haven't drawn shocking treatment since we began representing them. So, our motions have been of a type Sen. Graham didn't find worth discussing:

* Asking for 30 days notice before transferring/rendering our clients to some other facility/country.

* Asking that all evidence related to the clients be preserved.

* Asking for leave to take discovery regarding government records on the torture of one client, and the torture of other prisoners who might have made statements about him.

* Asking that a classified factual statement be submitted for our newest client. (We have one for the other).

* Asking that the attorney-client privileged documents, and other property seized from the client (this summer they took all writings from all prisoners) be returned, and that an accounting be presented of any reading of attorney client privileged matter (they read plenty, apparently, before admitting they were doing it).

[CharleyCarp]

And Jay S, if you want the facts on what has, and has not, been filed in court, you really have to look at the court filings (for which you'd need a PACER subscription). This kind of thing is objectively determinable.

[CharleyCarp]

Oh, and I think there's plenty of public support to 'clean up the mess in Guantanamo' provided that the 9/11 conspirators are held to account. If people who don't believe in either constitutional government or the self-evident rights of every human being have their heads exploding, well, that's a small enough price to pay.

[liberal japonicus]

If people who don't believe in either constitutional government or the self-evident rights of every human being have their heads exploding, well, that's a small enough price to pay.

That's not a price, that's what makes it worth it.

[CharleyCarp]

And I see from the front page of the http://www.washingtonpost.com/wp-dyn/content/article/2006/11/11/AR2006111101103.html>Post that Mr. Rove hasn't learned a damn thing. Great. More of that 51% stuff.

[OCSteve]

I’m curious about this:

Silliman speculated that Leahy could win broad support in Congress if it is narrowly drafted so as to restore habeas rights only for detainees who already have petitions pending in court, but would shut off that avenue for detainees to file habeas petitions in the future.

"There would be a lot of people in agreement with that," Silliman said.

If that is the only way to insure a veto-proof majority in both chambers, would you find that acceptable? Or would you prefer to go for full restoration even if you knew it would likely be vetoed and you don’t have the 2/3 in both chambers to override?

Also, I have a question about “incidental relief”. Why include those things in a habeas case? Can’t they be filed separately? It seems to provide ready made talking points for those like Graham.

[Jesurgislac]

If that is the only way to insure a veto-proof majority in both chambers, would you find that acceptable?

Well, I wouldn't.

It would of course be better for the prisoners who already have petitions pending. But it does nothing to take away the awful shame for the US of having repealed habeas corpus - nor of course does it do anything for the prisoners who will need to petition the courts against their extra-judicial imprisonment in the future.

[pedro]

The enthusiasm with which Republican leaders embrace populist draconian counter-terrorism measures is, to me, orders of magnitude more troubling than the incompetence of the current administration. The very same people who have recently exploited (and exacerbated) prejudice against sexual minorities are now creating a constituency for Banana republic-style justice.

[lily]

I don't think it is a good idea to compromise fundamental prinicles in order to get a veto proof majority. Pass the legislation with the votes it gets and let Bush veto ---he'll come off as the partisan extremist and the legislation can be passed later, either over his veto or after he's gone.

[LizardBreath]

If that is the only way to insure a veto-proof majority in both chambers, would you find that acceptable?

Good God, no. The problem with denying habeas rights to any category of prisoner is that it allows us to lock them up and throw away the key with no legal recourse whatsoever, on any grounds we like (if the grounds can't be challenged in court, then it doesn't matter much what we say they are, does it?)

This is shameful, regardless of what the category of prisoner is that we claim this power over.

[russell]

If that is the only way to insure a veto-proof majority in both chambers, would you find that acceptable?

No.

If Republicans want compromise in tax policy, student loan rates, or entitlement funding, perhaps -- perhaps -- there is room for dialog.

Habeas should be off the table. It should never have been on the table.

Leahy should draft the bill as described. The Democratic leadership should explain, in plain English, why the change is needed, and what the actual suits filed from Guantanamo involve. If drafted, the bill will come up for a vote, and will likely pass. If Bush wants to veto it, let him go ahead and do so. Then, let every Republican Congressperson go on public record as supporting the veto or not.

If it doesn't get through this time, it will next time.

Graham and Talent are, in fact, lying weasels. The shrieking of the punditocracy will, in fact, begin right on schedule.

The Dems should ignore them all. They lost. Public policy is for grownups. I'm pleased to see Leahy taking the initiative on this.

Thank you -

[Katherine]

"Also, I have a question about “incidental relief”. Why include those things in a habeas case? Can’t they be filed separately?"

They aren't in the original habeas petition. They do have to be filed in the same case though--you can't just file motions in court if you don't have an open case.

As far as pending cases: half the people at GTMO don't have habeas petitions right now, and virtually no one at other prisons has one. They tried to get everyone a case before the Graham amendment passed by doing emergency "John Doe" petitions for everyone without a lawyer last year, but those suits were recently thrown out.

I think focusing on something other than complete repeal of the MCA makes sense. I would tend towards focusing on:

1) the habeas petitions
2) amending the war crimes act to specifically outlaw waterboarding, "cold cell", "forced standing", & some other specific techniques....though this has the drawback of possibly missing new, creative forms of Not-Torture that they may come up with.
3) the anti-rendition bill that Leahy is already sponsoring (Hamdan and the MCA didn't actually do anything about rendition, but the issue needs to be addressed and it seems better to have one uphill fight than two or three. And, Congress seems to have finally learned who Maher Arar was a couple months ago).

[OCSteve]

Well, I wouldn't.

I don't think it is a good idea to compromise fundamental prinicles in order to get a veto proof majority.

Good God, no.

No.

Where I was going with this, is that if Democrats went with the compromise, it would be much easier to get through. You’d get enough Republicans on board, possibly even enough to make it clear that any veto would be overridden.

Then you have two classes of detainee – old and new. Wouldn’t the courts find on the very first challenge by a new detainee – that the two classes could not be treated differently? I don’t know the legal terminology, but in the end wouldn’t the courts say that new detainees had to be extended the same rights as old detainees?

[OCSteve]

Katherine – thanks for the explanation. My legal knowledge is pretty lacking (obviously).

[Jesurgislac]

OCSteve: Then you have two classes of detainee – old and new. Wouldn’t the courts find on the very first challenge by a new detainee – that the two classes could not be treated differently? I don’t know the legal terminology, but in the end wouldn’t the courts say that new detainees had to be extended the same rights as old detainees?

Ah. Yes, that makes sense. (To me, a non-lawyer, so that may mean nothing.) I'm still not sure I agree, mind you, but I see what you're getting at.

[lily]

I don't know if yur scheme would work or not. My problem ( other than ethical considerations) with the idea of a compromise is that compromises tend to be permenent. If one tries to amend the compromise later the attempt is likely to be shot down as overly partisan and the violation of an agreement. On an issue of this magnitude it's better to try to pass the legislation you actually want to live with.

[CharleyCarp]

It seems to me that the new prisoners would have the Suspension argument we all make now -- so the distinction probably wouldn't hold up.

To be honest, as much as I agree with everyone above about the need to preserve habeas, in my capacity as citizen, in my capacity as lawyer, if the government offered a deal that would help my clients, I'd seriously consider taking it, even if it didn't help others. It's the curse (and blessing) of the advocate's role.

Getting a bill past the President isn't rocket science. Attach it as a rider to an Iraq funding supplemental. Or something else he's not going to veto. This is what having a majority really means.

[Jay S]

Thanks again Charley. I thought there was something about DVD's that I had read, but without the family video part I couldn't dredge it up. Here's the Hilzoy post. Your summary was accurate.
I understand this stuff is objectively determinable, I just don't see the press or politicians doing their job on this. When claims are made that are divorced of any context, it is hard to track them back to their source. They get reiterated without challenge and become part of the conventional wisdom.

[CharleyCarp]

OCS, Katherine is right about the incidental relief. The courts have entered a protective order that governs our access to the base and the prisoners. It regulates how mail is handled, what we can and cannot say, and a bunch of other details. The government jacks people around quite a bit. Banning a Pashto interpreter because of her Washington Post article (which they had cleared) for example. Changing the rules on using the library. Suspending a team that gave their client a copy of an Amnesty International report.

One can bring these issues before one's judge, in the form of a motion within the case. And the government typically gets a stern lecture on not being arbitrary, and promises to do better. We're still locked out of the public library, but I never miss lunch, so it's no hardship . . .

[xanax]

Attn: Front Pagers: bit o' spam on your May 12, 2005 "Demonstration Effects" thread.

[OCSteve]

Thanks for the legal clarifications.

[Michael Cain]

If that is the only way to insure a veto-proof majority in both chambers, would you find that acceptable?

Add me to the list of those who find this unacceptable. We do not take people who may or may not be terrorists (or murderers, or child molesters, or anything else) and lock them up without a reasonable opportunity to defend themselves. Let the other side run on the platform that that kind of stuff is okay, and see how well it works in '08.

[liberal japonicus]

OCSteve,
Since you are taking a poll, count me in with the rest (which I guess counts me out of accepting a compromise on this for the sake of veto proofing). In fact, one of the things that bothers me intensely about the republican pr machine is the ability to take positions that seem to be designed for creating majorities, rather than as a true expression of principles. A short list would be
-gay marriage
-abortion
-Iraq reconstruction
-immigration
-taxes
-role of Christianity in the state

I can understand that people will have opinions that are different from mine on these issues and come to those opinions honestly, but I suspect that a number of Republicans (especially those who were tasked with maintaining the majority, such as Rove, Mehlmen, Delay fr'ex) don't actually believe in the principles they espouse, but that they provide cover for gaining the support of people for whom these principles are honestly held (cf. Kuo's book). I am willing to tolerate the Democrats to make some concessions to acquire veto proof majorities on some things, but this is too close to first principles for me to say it should be done with habeus.

[Jesurgislac]

If people who have been accused of terrorism, but not yet charged, let alone convicted, can be referred to without qualification as "terrorists", can we expect everyone who does that to refer to Donald Rumsfeld as a war criminal