National Defense Authorization Act for Fiscal Year 2008

Floor Speech

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008

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Mr. KENNEDY. Mr. President, I am cosponsoring this amendment because I strongly support the restoration of the right to habeas corpus for noncitizens detained as enemy combatants.

This bill will reinstate one of the cornerstones of the rule of law. Habeas corpus protects one of our most fundamental guarantees: that the Government may not arbitrarily deprive persons of their liberty.

President Bush and Congress undermined that guarantee last year by enacting the Military Commissions Act, which stripped courts of jurisdiction over habeas corpus petitions by enemy combatants. That legislation is a stain on our human rights record and an insult to the rule of law. It is almost surely unconstitutional.

For centuries, the writ of habeas corpus has been a core principle of Anglo-American jurisprudence. Since the days of the Magna Carta in the 17th century, it has been a primary means for persons to challenge their unlawful government detention. Literally, the Latin phrase means ``have the body'' meaning that persons detained must be brought physically before a court or judge to consider the legality of their detention.

The writ prevents indefinite detention and ensures that individuals cannot be held in endless detainment, without indictment or trial. It requires the Government to prove to a court that it has a legal basis for its decision to deprive such persons of their liberty.

The Framers considered this principle so important that the writ of habeas corpus is the only common law writ enshrined in the Constitution. Article I, section 9, clause 2, specifically states, ``The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.''

Mr. President, 9/11 was a tragic time for our country, but we did not set aside the Constitution or the rule of law after those vicious attacks. We did not decide as a nation to stoop to the level of the terrorists. In fact, we have always been united in our belief that an essential part of winning the war on terrorism and protecting the Nation is safeguarding the values that Americans stand for, both at home and throughout the world.

Instead of standing by these principles, however, the Bush administration used 9/11 to justify abandoning this basic American value. It has consistently undermined habeas corpus, claiming that the Constitution, statutory habeas corpus, and the Geneva Conventions, which Alberto Gonzales described as ``quaint,'' do not apply to enemy combatants held at Guantanamo Bay or elsewhere.

The administration even went so far as to establish detention facilities outside the United States to avoid the reach of U.S. courts and the application of basic legal protections such as habeas corpus. The administration's purpose was to hold these combatants indefinitely and try them in military commissions.

The commissions, however, have severely limited the rights of alleged enemy combatants. The accused have no access to the evidence which the Government claims it possesses and no ability to provide a meaningful defense. The tribunals are a sham and an insult to the rule of law.

The administration's lawlessness failed. Last year, the Supreme Court ruled in Hamdan v. Rumsfeld that Federal courts have jurisdiction over habeas corpus petitions brought by detainees at Guantanamo Bay. Justice Stevens reminded the administration that ``in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law.''

In the face of this clear Supreme Court precedent, the administration and Congress recklessly responded with the Military Commissions Act, which eliminated the right of all noncitizens labeled by the executive as enemy combatants to be heard in an Article 3 court. This bill will repeal these disgraceful provisions of the Military Commissions Act and restore the right to habeas corpus for detainees held at Guantanamo Bay and elsewhere. I urge my colleagues to vote for the rule of law and to support this amendment.

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