Some 56 months after the first terrorism suspects arrived at the US prison camp at Guantánamo Bay, Cuba, Congress is rushing to pass new legislation on how to bring them to trial – or not.
It's the "not" – President Bush's claim that any "enemy combatant" can be detained indefinitely, without access to US courts – that is the last obstacle to finishing a bill this week.
The White House and a trio of Republican senators already resolved how trials would handle secret evidence and evidence obtained using harsh interrogation techniques, allowing detainees to see evidence against them, but in redacted form. Sens. John McCain of Arizona, John Warner of Virginia, and Lindsey Graham of South Carolina also forced the White House to back off its intent to reinterpret terms of the 1949 Geneva Conventions, especially the ban on "humiliating and degrading treatment."
But the deal did not affect a provision that critics say is a more fundamental threat to the rule of law and the nation's reputation: a bid to strip federal courts of jurisdiction to hear cases brought by "unlawful enemy combatants" seeking to challenge their detainment.
Supporters say the action is needed because a flood of pending habeas cases is a distraction from the war on terror and strains military resources. Critics say that's no justification for curbing a fundamental constitutional right.
"A persuasive argument can be made that the Writ of Habeas Corpus, the Great Writ, is the single most important bulwark in protecting our rights and freedoms ... and those who have suspended it have often been treated harshly by history," said John Huston, a retired rear admiral and former top lawyer in the Navy, at a hearing called Monday by the Senate Judiciary Committee.
"It is too facile to say that the men detained in Guantánamo 'are all terrorists,' 'the worst of the worst,' and 'all killers.' Maybe they are. Maybe they aren't. The point of habeas corpus is to answer those questions," he adds.
Monday's hearing, attended by three senators, marks the only hearing on the habeas corpus provision before the House and Senate vote on the bill. The legislation may come before the full House as early as Wednesday.
"This is momentous, far-reaching legislation, which is being rushed through on the eve of elections," added Thomas Sullivan, a former US Attorney for the northern district of Illinois, who has represented 10 Guantánamo detainees, three of whom were released in May 2006.
Judiciary Committee chairman Arlen Specter (R) of Pennsylvania, who called Monday's hearing after reviewing last week's deal on military commissions, says he wants to offer an amendment simply deleting the provision eliminating habeas corpus.
The US Constitution says there are only two conditions for abolishing habeas corpus: rebellion or invasion when "the public safety may require it." Senator Specter and some conservative critics of the draft bill on military commissions say that neither condition is currently met.
"The United States is neither in a state of rebellion nor invasion. Consequently, it would be problematic for Congress to modify the constitutionally protected writ of habeas corpus under current events," Kenneth Starr, the former independent prosecutor on the Whitewater investigation during the Clinton presidency, wrote in a letter to Specter.
The issues involved in this legislation are complex and important, say those on both sides. Sen. John Cornyn (R) of Texas, who backs the legislation, said annual status review hearings, called for under the Detainee Treatment Act, give war-on-terror detainees the same access to meaningful review as habeas corpus.
"The level of due process that the detainees are getting far exceeds the level of due process accorded to any combatants – captured combatants, lawful or unlawful – in any war in human history," says David Rivkin, a Washington attorney who consults with the White House on detainee issues. It's a "fair and balanced approach to judicial review, eliminating repetitive challenges, banning forum shopping, and yet preserving the necessary essentials of a judicial review for detained unlawful combatants," he adds.
In debate this week, both sides will be watching how aggressively Democrats defend the habeas provision. Sen. Patrick Leahy (D) of Vermont, the ranking Democrat on the Judiciary Committee, was the only member of his party to attend Monday's hearings. He says he worries that only about 5 percent of the Guantánamo detainees were picked up by US troops on the battlefield, and that some innocents may have been turned over to the US to "settle a score" or for a bounty.
The issue has the potential to affect every American, says Eric Freedman, a constitutional lawyer at Hofstra Law School and author of a book on habeas corpus. "Every story about an innocent business traveler or tourist picked up through error is [one] that could happen to anybody," he says. "The whole concept of checks and balances is that when the executive branch acts as judge, jury, and executioner, government power is going to be exercised wrongly."