By Bill Gertz
House Republicans are set to introduce legislation next week aimed at clarifying recent laws by affirming that all U.S. detainees maintain due process rights amid concerns over the erosion of individual freedoms.
The divisive issue of detainee legislation nearly derailed passage of the 2012 Defense Authorization Act, according to lawmakers involved in the debate.
The new legislation, known as the Right to Habeas Corpus Act, has bipartisan support and will seek to affirm due process rights in the 2001 law authorizing the use of force in the war on terrorism, as well as more recent detainee provisions contained in last year's defense authorization act, according to the bill's sponsors.
The main sponsors are Reps. Scott Rigell (R., Va.) and Jeff Landry (R., La.) along with a growing list of at least seven other Republicans and one Democrat.
"There is a tremendous amount of unrest among the American people as to the intrusiveness that the federal government is applying on their lives and their liberties," Landry told the Free Beacon. "And we have a duty in Congress to ensure that the protections that the Constitution affords are not in any way diminished."
"I really think we had a strong, six-foot fence as a bulwark in protecting our rights in the writ of habeas corpus," Rigell said in an interview. "But this legislation makes it a 10-foot fence with barbed wire. It's got bipartisan support, and I'm real pleased with that."
Rigell said differences among Republicans over the detention language nearly derailed the defense authorization bill in December. Some Republicans during a heated, late-night conference meeting felt the language on detainees was ambiguous and could provide a legal precedent for suspending habeas corpus, he said.
The dispute was settled and the bill passed after House Speaker John Boehner called on Republicans to pass it after a promise to address the concerns of the detainee provisions later.
"That was a tipping point for me, because I was conflicted," Rigell said, who voted to pass the bill.
Habeas corpus is the foundation for legal due process and access to fair trial, Landry said, noting the case of now former American citizen Yaser Hamdi, who was captured and detained in Afghanistan in 2001 and held for nearly three years without trial.
The 2012 defense law gives the military the power to detain al Qaeda or Taliban terrorists "under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." It further states that the military can hold captured terrorists "in military custody pending disposition under the law of war."
Critics of the language have said the law is too broad and could be misconstrued as impinging on Americans' constitutional right of habeas corpus, a basic element of due process legal rights.
Habeas corpus, Latin for "you have the body," is legal action designed to free prisoners from unlawful detention by allowing them to go before a court.
The president has the power to suspend habeas corpus in times of war.
Landry said he regarded the language of the 2012 defense authorization act as implying a change in the individual right to prevent unlawful detention.
"Basically, there became, in my opinion, an implied waiver of that right," Landry said. "It gave the impression that [the administration] felt they arrest American citizens and hold them indefinitely without the basic right of due process."
The new draft legislation states that "nothing in the Authorization for Use of Military Force or the National Defense Authorization Act for Fiscal Year 2012 shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force."
The 2001 use of force law gives the president the power to "use all necessary and appropriate force against those nations, organizations, or persons" involved in the September 11 attacks "in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The legislation grew out of an exchange on the House floor between Landry and Rep. Howard P. "Buck" McKeon, House Armed Services Committee chairman, during debate in December on the defense bill. Landry questioned whether the detainee provisions would change the rights of American citizens to habeas corpus, and McKeon assured him there were no changes but agreed to continue to look closer at the issue.
A McKeon aide said the chairman is confident that the bill did not change any rights of Americans, but because of the misperceptions agreed to the new bill.
The bill is expected to be introduced formally next week and could become part of the fiscal 2013 defense authorization bill that will be marked up in the next several weeks.
"Our expectation and hope is that Rigell-Landry will erase any doubts or misperceptions," the aide said.
"This is to affirm that Americans will always have their day in court."
Multiple sponsors, both Republican and Democratic, are expected for the bill.
In a draft "Dear Colleague" letter to House members, Rigell and Landry stated that the bill is intended to "erase absolutely any doubts that the detainee provisions could be misconstrued to lead to the indefinite detention of American citizens without the right of redress."
"This legislation is the culmination of the efforts of a bipartisan coalition of members to protect, without a shadow of a doubt, the liberties of all Americans from indefinite detention," the lawmakers stated. "The Right to Habeas Corpus Act was fully coordinated amongst our respective staffs and the Committees on Armed Services and Judiciary."
Some conservatives criticized the detainee provisions in the defense law and prompted several members of Congress to press for the clarification, according to congressional aides.
The American Civil Liberties Union in February criticized President Obama for signing the defense bill into law last December. "The breadth of the [defense bill's] worldwide detention authority violates the Constitution and international law because it is not limited to people captured in an actual armed conflict, as required by the laws of war," the liberal rights group said.