Update on Habeas and Fourth Amendment Legislation

Thank you to everyone who called their senators and representative last week to restore habeas corpus and the Fourth Amendment. The efforts of BORDC and allied organizations resulted in thousands of calls being made to House and Senate offices.

This follow-up message provides updates on the two issues and suggested next steps.

Status of Habeas Corpus

In the Senate: On Wednesday, September 19, Senators Arlen Specter and Patrick Leahy attempted to attach an amendment (SA 2022), which replicates the Military Commissions Habeas Corpus Restoration Act of 2007, to the Defense Budget bill. Unfortunately, only 56 senators voted to bring the measure to a floor vote, 4 shy of the 60 votes needed.

What you can do: See how your senators voted here. If your senators supported the amendment, call and thank them. Six Republican senators joined with Democrats in the vote to restore habeas. But if your senator was one of the 43 naysayers, we have drafted some sample questions you can ask as you express your disappointment with the tactics of preventing an up or down vote on an issue that is so crucial to the strength of constitutional rights in our country. (See Suggested Questions at the end of this message.)

Find your senators' direct telephone numbers at www.senate.gov or dial the Dial the Capitol switchboard, 202-224-3121, and ask the operator to connect you (24 hours a day).

In the House: The week of September 24, two House committees--Armed Services and Judiciary--will consider Rep. Ike Skelton's bill to restore habeas corpus, H.R. 2826. Assuming the bill gains the support of both committees, it is expected to reach the House floor for a vote in the remaining two weeks before Columbus Day (October 8).

What you can do: Call your representative, even if you have already done so, to urge his or her support for a bill to restore habeas corpus. (For current bills that do this, see BORDC's Legislation Page.) Look up your representative's direct telephone number or dial the Capitol switchboard, 202-224-3121, and ask the operator to connect you (24 hours a day).

Status of Fourth Amendment Restoration

In the House: Last week, the House Intelligence and Judiciary Committees held three open hearings on the Protect America Act and the NSA warrantless wiretapping program. Two hearings featured testimony by Director of National Intelligence Mike McConnell. The House Judiciary Committee also heard testimony from advocates on both sides of the issue. The House Intelligence Committee will finalize the language of its draft bill in an October 4 "mark-up" session.

In the Senate: No open hearings have been held on this issue since the August recess. Nevertheless, the Senate Intelligence Committee plans to mark up a bill on October 2.

What you can do: The Senate Intelligence Committee's closed hearings on an issue as important as Americans' Fourth Amendment rights to be free from unreasonable searches and seizures should be opened up to public view and debate. In the two weeks remaining before a Senate bill emerges, call both of your senators to demand that Senate committees hold open hearings on this issue. Ask that the Senate Judiciary Committee continue to demand the documents itemized in its subpoena, about the warrantless wiretapping program and its legal justification.

Another opportunity is the Judiciary Committee's upcoming confirmation hearings with the president's nominee for attorney general, Judge Michael Mukasey. The committee should confirm no nominee without assurances that, if confirmed, he will turn over the documents listed in the subpoena.

Thank you for all you do!

The Bill of Rights Defense Committee:

Nancy Talanian, Director
Ben Grosscup, East Region Organizer
Hope Marston, West Region Organizer
Susan Heitker, Administrator

Suggested Questions Related to Habeas Corpus:

1. According to the Defense Department's own records, at least 86% of the men held at Guantánamo Bay were not caught on the battlefield, and many of them were sold to the U.S. military for a bounty. If you were swayed by Senator Kyl or Graham's erroneous statements that these were battlefield captures, are you willing to get the facts straight and tell Senator Specter or Leahy that you will reconsider your vote?

2. Did you know that the Combatant Status Review Tribunals (currently a detainee's only course to a legal determination) have been called into question by Lieutenant Colonel Stephen Abraham, whose testimony indicates their judgments are predetermined and an insult to the rule of law?

3. Three retired Judge Advocates General have urged Congress not to strip the courts of habeas corpus jurisdiction. Knowing this change to habeas upsets an established government balance, would you reconsider your vote?

4. Americans can't expect other countries to treat U.S. detainees better than we treat detainees from their countries. That several hundred Guantánamo detainees have already been released proves that our military made many mistakes. Habeas corpus is an internationally accepted remedy for sorting out which detainees should continue to be held and which should be released. Will you vote to restore habeas corpus to make sure the U.S. has fair procedures for detainees?

5. The Military Commissions Act went far beyond eliminating the rights of the remaining detainees at Guantánamo--it potentially reaches all 12 million lawful permanent residents of the United States, as well as visitors to the U.S. Are you willing to re-establish habeas corpus for lawful residents of this country?

6. Habeas corpus grants a fundamental right to challenge a potentially wrongful detention. It does not require Army personnel to come back from the battlefield to testify. It merely contests whether the wrong person was detained, and it is a fundamental right in Western law. All the government must do to defeat a habeas claim is to demonstrate to a judge that the detainee is being lawfully held. Why are you opposed to exercise of this fundamental right? If the government can't show the person is the right person, wouldn't you want them released?