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WASHINGTON � A close political fight is expected soon in the U.S. Senate over a proposal to restore the ability of federal courts to hear challenges by detainees being held within the territorial jurisdiction of the United States. Less than a year after enacting the court-stripping provisions in the Military Commissions Act of 2006 (MCA), the lawmakers will renew debate, perhaps before their July 4th recess, over whether these detainees in the nation’s war on terrorism should have the right to the centuries-old remedy of habeas corpus. Supporters of restoring the habeas remedy � who include a broad mix of bar leaders, legal scholars, active and retired military lawyers and civil rights groups across the political spectrum � say they are hopeful that legislation will reach President Bush by the end of this summer. The words “expected” and “hopeful” are necessarily cautious expressions in a Senate that is so narrowly divided that reaching the magic “60″ votes to end debate is often elusive on controversial legislation. Last fall, during debate on the proposed MCA in the then-Republican controlled Senate, Judiciary Chairman Arlen Specter, R-Pa., offered an amendment to strike the habeas-stripping provisions, but the amendment failed, 48-51. But the political and legal dynamics are changing, say Senate staffers and others following the issue closely. Democrats now control the Senate and generally favor reinstating habeas review. A bill restoring federal courts’ habeas jurisdiction � S.185 � recently moved out of the Senate Judiciary Committee, albeit on a party-line vote, with Specter the only Republican supporting it. And, in a key case, an appellate court panel just a week ago rejected in strong terms the Bush administration’s broad view of the current court-stripping provisions. “We’re very excited [S.185] has come out of the judiciary committee and we’re very hopeful it will be passed either as stand-alone legislation or as an amendment to another bill,” said Karen Mathis, president of the American Bar Association and partner in the Denver office of McElroy, Deutsch, Mulvaney & Carpenter. “People should not be held by the government without independent judicial review of their detention.” A simple bill The ABA, which has lobbied vigorously on this issue on the Hill, and the American Civil Liberties Union (ACLU), the Alliance for Justice and others, support the Senate bill as well as a similar House bill � H.R. 1467 � sponsored by representatives Jerrold Nadler, D-N.Y., and Jane Harmon, D-Calif. But supporters’ energies now focus on the Senate because the issue has moved to the Senate floor � the House bill is still in two committees � and it may face action after the Senate completes its current floor debate on energy legislation. When introducing S.185 last January, Specter, the chief sponsor with Senate Judiciary Chairman Patrick Leahy, D-Vt., said the proposed Habeas Corpus Restoration Act was “very simple.” “It strikes the federal habeas corpus limitations imposed by the Military Commissions Act and the Detainee Treatment Act,” he explained. “In so doing, the bill affords aliens detained by the United States within its territorial jurisdiction, including those detained at the Guant�namo Bay Naval Base, the right to challenge their detention and military commission trial procedures by an application for writ of habeas corpus.” But as with much of habeas’ history, the road to S.185 has not been so simple. Congressional efforts to strip the federal courts of habeas jurisdiction in detainee cases date to the Supreme Court’s ruling in 2004 in Rasul v. Bush, 542 U.S. 466. The justices held there that courts had statutory habeas jurisdiction to hear challenges by detainees held at Guant�namo Bay Naval Base, because the land, although owned by Cuba, was, in effect, within the territorial control of the United States. In 2005, Congress enacted the Detainee Treatment Act to establish uniform standards for interrogation of detainees and procedures for the operation of Combatant Status Review Tribunals and military commissions. The act also eliminated the courts’ statutory jurisdiction over habeas claims by aliens at Guant�namo as well as other causes of action related to their treatment and living conditions. But a year later, the Supreme Court, in Hamdan v. Rumsfeld, 126 S.Ct. 2749, held that the habeas-stripping provisions in the Detainee Treatment Act did not apply to pending cases and it found that the military commissions violated military and international law. Congress jumped back into the fray last fall with the MCA, making clear that the habeas bar applies to all pending and future cases as of the date of that statute’s enactment and granting only narrow court review of the military proceedings. With the MCA as authority, the Bush administration then successfully sought dismissal of numerous detainee habeas petitions pending in the U.S. Circuit Court of Appeals for the District of Columbia. The Supreme Court thus far has declined to review appeals from those dismissals � appeals which raise serious constitutional questions involving the suspension of the habeas corpus clause and the separation of powers. But the high court will almost inevitably be drawn back into this complex legal and political arena, according to scholars and others. That eventuality increased with the 2-1 ruling June 11 by a 4th Circuit panel in al-Marri v. Wright, No. 06-7427. The panel rejected the government’s argument that the MCA stripped the courts of jurisdiction to hear Ali Saleh Kahlah al-Marri’s habeas challenge to his detention in the United States. The government had argued that the habeas bar extended to legal resident aliens, such as al-Marri, seized in the United States and detained indefinitely as enemy combatants. Concern that the MCA’s habeas language could be read to block court access by legal resident aliens became another strong motivating factor in enacting S. 185, according to Leahy. “The sweep of this habeas provision goes far beyond the few hundred detainees currently held at Guant�namo Bay, and includes an estimated 12 million lawful permanent residents in the United States today,” he said. “These are people who work and pay taxes, people who abide by our laws and should be entitled to fair treatment. Under this law, any of these people can be detained, forever, without any ability to challenge their detention in court.” The habeas bills would eliminate that concern, said Jonathan Hafetz of the Brennan Center for Justice, who, along with Lawrence Lustberg of Newark, N.J.’s Gibbons, Andrew J. Savage III of Charleston’s Savage & Savage, and Mark Berman of Hartmann Doherty Rosa & Berman in Hackensack, N.J., represented al-Marri. “If you accept al-Marri can be detained as an enemy combatant, you have to accept that this can also happen to a U.S. citizen,” said Hafetz. “The government has said in our case that if all else was equal, but al-Marri was a U.S. citizen, they could do the same thing.” The Department of Justice last week said it would seek en banc review of the al-Marri decision. An appeal to the Supreme Court is likely whatever the outcome of that request. Counting heads Both the Senate and House bills would restore the courts’ habeas jurisdiction over detainee petitions to the Rasul view. “There’s majority support in the Senate for passing the Specter-Leahy bill,” said Christopher Anders, legislative counsel to the ACLU. “The problem, like most other things in the Senate, is it’s not, at this point, a 60-vote majority, but is somewhere in the low to mid 50s.” Also complicating the Senate scenario is the fact that most of the senators voted on the very similar Specter amendment to the MCA last September in a separate vote, he explained, adding, “Most feel they’re locked into past positions.” The most effective strategy, he and others said, may be to attach the habeas provision as an amendment to a larger Senate bill, such as the 2008 defense authorization bill. But even that strategy has risks, said one staffer. Defense is a hot potato on the Hill now. The authorization bill includes many issues, and “it would be easy for habeas to get caught in the crossfire,” she said. The House has never taken a separate vote on the habeas issue. There were crossover votes by both parties on final passage of the MCA. “Of everything that was in the MCA, habeas has always been the weak link politically, the least popular part of the act,” said Anders. “It’s an issue that has some cross-appeal. David Keene from the American Conservative Union and (former Solicitor General) Kenneth Starr have been very active on restoring habeas. Lots of retired military and William Howard Taft IV, legal counsel to Colin Powell and deputy secretary of defense under President Reagan, have been real leaders on the issue.” Anders and others believe they have a “good” chance of building Republican support for the habeas legislation in the House. Key to the chances in the Senate, said another lobbyist, will be Republican Senator Lindsey Graham of South Carolina, a lawyer and former military appellate judge. Graham, who played a leading role in the drafting and passage of the MCA, likely will lead the opposition to any changes in the act’s habeas provisions. “He will not support the bill,” said Kevin Bishop, Graham’s spokesman. “He will save his objections and amendments for the floor debate.” But Graham already has made his feelings clear. Earlier this year, he said “tinkering” with the MCA would slow efforts to bring terrorists to justice. He has argued that the detainees have no constitutional protections. Their habeas petitions, if allowed, would flood and occupy court calendars for years to come, he has said, and federal judges are singularly ill-equipped to make judgments stemming from military matters. “Never in the history of warfare have enemy prisoners been able to bring lawsuits about their detention,” said Graham. “Thousands of Germans and Japanese soldiers were captured and held by the military during World War II. Not one case was allowed in federal court where they were allowed to sue for their release. Our rules for the war on terror should be no different.” President Bush likely would veto any stand-alone bill restoring habeas rights for detainees, both sides agree. A veto would be more difficult if the habeas provision is included in an important appropriation bill, such as for the national defense.

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