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Senate Rejects Habeas Corpus in Interrogation Bill

September 28, 2006 at 6:10 PM EDT

JUDY WOODRUFF, NewsHour Special Correspondent: That warning comes from Republican Arlen Specter, chairman of the Senate Judiciary Committee. He believes that new military tribunal legislation that has moved through Congress contains a grievous error: It limits habeas corpus, the right that terror suspects would have to challenge the legality of their imprisonment in court.

Senator Specter insists that that is clearly unconstitutional, and he says it’s only a matter of time before the Supreme Court agrees with him.

Here to debate Specter’s concerns and other aspects of the bill are David Rivkin. He’s an attorney who previously served in the administrations of President Reagan and the first President Bush.

And Bruce Fein, former associate deputy attorney general under President Reagan.

Gentlemen, thank you both for being with us.

BRUCE FEIN, Former Associate Deputy Attorney General: Thank you.

DAVID RIVKIN, Attorney, Reagan and George H.W. Bush Administrations: Good to be with you.

JUDY WOODRUFF: David Rivkin, to you first. Before we discuss the merits, I want to clarify: Who is covered exactly under this legislation and under what circumstances?

DAVID RIVKIN: This legislation is a comprehensive system regulating all aspects of dealing, capturing detainees, interrogating, prosecuting unlawful enemy combatants. We’re basically talking about people who engage in hostilities against the United States, very important, Judy. They’re not just terrorists.

They’re individuals who are affiliated with organizations in a state of armed conflict against the United States, al-Qaida and Taliban, and that definition largely tracks customary international law and definitions existent in prior U.S. cases, including a World War II case involving German saboteurs.

JUDY WOODRUFF: You’re saying they’re not just enemy combatants? Did I hear you say that?

DAVID RIVKIN: Yes, they have to be unlawful enemy combatants to be tried by military commissions. These are combatants who do not follow the four key requirements: do not wear a uniform; do not bear arms openly; do not make a commitment to comply with the laws and customs of a war.

Who does it cover?

JUDY WOODRUFF: Bruce Fein, do you agree with that definition?

BRUCE FEIN: Only in part, because the definition also includes those who have provided material support to any foreign terrorist organization. So if you gave money, if you gave arms, you didn't have to be involved in active hostilities, you're an enemy combatant and subject to the military commission, which is a much larger universe than those David described.

JUDY WOODRUFF: But, David, what about that? Let's clarify that before we talk about the merits...

DAVID RIVKIN: I don't agree with that. I believe that the way the language would be applied and clarified it is not enough to contribute money, unless, of course, you're a quartermaster, unless you're a professional fundraiser for al-Qaida. But merely contributing money to an entity like Al Qaeda, you should be prosecuted under the criminal justice system.

JUDY WOODRUFF: All right. Again, before we get to the merits, if we can't even agree on who it covers, is that significant?

BRUCE FEIN: Well, of course it is, because the military tribunal system offers far less procedure protections than a civilian system does. And I think David is just incorrect. It's true, if you're innocent and giving money to an organization you don't know is supplying terrorist organizations, you're not guilty. But the statutory language reads, if you know that you're providing some kind of material support -- it could be weapons or your home -- you are then an enemy combatant, deemed as guilty as someone who's involved in shooting a gun or a missile.

U.S. interests

JUDY WOODRUFF: All right. I don't think we're going to resolve this now, so let's move on, at any rate, and talk about the merits of this. David Rivkin, the basic question to me is: Does this legislation best serve the interests of the United States?

DAVID RIVKIN: It does. And the important thing, before we get into any details, is this: This is the first time both political branches have spoken in unison to address the entire range of issues.

As you know, the critics from the last several years have blamed the president for using his power -- in my opinion quite constitutionally -- to come up with the detention interrogation of prosecution regime, it kept saying. Let Congress be involved. Congress is involved. From now on, critics, including my good friend, Bruce, if they don't like something, you can no longer say this is just George Bush.

You have to say this is John McCain, you know, this is John Warner, this is everybody who have considered it the way it should be in a democracy.

JUDY WOODRUFF: So Congress will have spoken by the time this...

DAVID RIVKIN: Precisely. Very precisely.

BRUCE FEIN: But this happened only because the Supreme Court told the president he couldn't act unilaterally. It's not like the president volunteered to bring Congress in as a partner.

JUDY WOODRUFF: Well, let me ask this, David Rivkin. Does this legislation give the government the ability that it needs to interrogate and to prosecute these individuals?

DAVID RIVKIN: It does. And I believe it does in a way that would withstand judicial challenge and balance its competing equities of fairness, and yet national security.

Let me just say this: The people are getting more due process under this system than any alien enemy combatants have ever gotten in American history, and more than the Constitution demands. So they've gotten their basic floor, plus some.

JUDY WOODRUFF: You're saying it serves the government's interest, the people of the United States, and you're saying it also gives due process to these...

BRUCE FEIN: I think that's misconceived. Number one, no civilized nation, Judy, has an interest in detaining someone in violation of the laws. No civilized nation.

All habeas corpus does is enable a detainee to ask a court to demand of the executive branch the legal and factual foundations for their detentions. That is a writ and a right that goes back to Magna Carta, 1215. It was enshrined in the United States Constitution, and it's effective without any implementing legislation.

It could only be suspended if there's an actual invasion of us -- which is not occurring now -- or a case of rebellion, which is not occurring now. And the reason for this writ...

JUDY WOODRUFF: And you're saying it is suspended in this...

BRUCE FEIN: In this, that, yes, you do not have the right to apply for habeas corpus proceedings in requiring the administration to give the factual and legal foundation for your detention. And this is something that was debated in the hearing that David and I testified to on Monday.

And the reason why we have this writ is because the executive branch can make errors. Just think of the recent news about Maher Arar. He was the Canadian citizen who has been deported to Syria and tortured under the mistaken belief that he was in cahoots with terrorism.

DAVID RIVKIN: Totally untrue. We have two bites at the apple in Article Three courts. In the D.C. Circuit, one of the best circuit courts in the land, at the front end after you go for combatant status review tribunal, you get the level of scrutiny.

And the court will look at two issues, the D.C. Circuit. First, will the rules apply for military commissions, if it's a commission prosecution, or if it's combatant status for these tribunals?

Second, was the totality of your treatment, Judy, consistent with the constitutional laws of the United States? That is exactly the same standard the Supreme Court has applied in enemy combatant cases before. That is what the Constitution requires.

So for Bruce to say it's not habeas corpus is the worst kind of formalism, because habeas is not a word. Habeas corpus means a meaningful opportunity for the court to inquire into why the power of a government is being brought to bear upon you, and that's being done here.

Habeas corpus

JUDY WOODRUFF: If they have the right, Bruce Fein, to do this at the start of the process, as Mr. Rivkin...

DAVID RIVKIN: And at the end.

JUDY WOODRUFF: ... and he's saying at the end, then what's the complaint?

BRUCE FEIN: Because he's wrong, that the truncated proceedings that are available before the combatant status review tribunal don't even approximate the openness and ability to confront adverse evidence and discover evidence that enable you to prove your case in a typical habeas corpus proceeding.

If it weren't the case, Judy, they wouldn't have required this jiggered-together, half-baked effort to try to provide some limited judicial review. They would have applied the typical habeas corpus proceedings.

And let me give you an example of how this works. We have Jose Padilla. He's being charged right now as providing material assistance to a terrorist organization in a civilian court. Under that theory, he could also be tried in a military tribunal.

The administration is pursuing this in a civilian court where he'll have customary habeas corpus rights. Why shouldn't he have that same right if he's tried in a military tribunal?


DAVID RIVKIN: Very simply, the traditional habeas process that Bruce is talking about is a very austere, very streamlined process. What we have in this country in the last 30 years, we have a growth of habeas proceedings that begin to resemble the criminal justice...

JUDY WOODRUFF: And, again, this is the ability of people who are charged to go and to question the legality of their...

DAVID RIVKIN: Right, to have an impartial court. What is being given in this legislation is far more than the constitutional floor on habeas.

What is not happening here, frankly, is the kind of habeas that lawyers in the last 30 years have pioneered, where you can go have multiple habeas petitions, can forum shop. And we now have petitions filed challenging things like lack of access to Internet in Guantanamo. That is not what due process is about.

JUDY WOODRUFF: And not only that, Bruce Fein, we just heard Senator Graham earlier on the program saying, "We're not going to turn this war into a mockery." He talked about -- you know, he said these are people who have been wanting to -- trying to kill Americans. Why should we, in effect...

BRUCE FEIN: And, you know, that smacks of the Queen of Hearts in "Alice in Wonderland." Sentence first, verdict afterwards. We haven't tried them yet! Sometimes you can get it wrong.

We had 120,000 Japanese-Americans interned in World War II because we got it wrong in suspecting they were disloyal. Maher Arar, they said, "Well, we know he's an enemy combatant. We can torture him."

And this is an instance where Lindsey Graham is saying, "Hey, they're already guilty." Then why have a trial at all? Just go ahead and imprison them if that were the standard.

DAVID RIVKIN: Let me explain. A fundamental difference is this. People like myself and supporters of the administration believe that we're giving the people their right that is constitutionally due and then so. People like Bruce and the critics believe, "Let's give them more and more and more and more rights."

I disagree with that, but let's be honest. Let the American people decide they want to support people who want to give more rights than these people are due or those who want to give rights that are due. That is a very -- let's not pretend that those additional rights, Bruce, are compelled constitutionally.

BRUCE FEIN: The constitutional rights, as Justice Robert Jackson said, are not subject to majority vote. They don't turn on the outcome of any election. The great writ was enshrined in the Constitution so majorities from time to time couldn't strip an individual of his right to have an opportunity to claim that his detention was illegal. It doesn't make any difference...

DAVID RIVKIN: These guys are getting more than the great writ.

BRUCE FEIN: And what will happen -- and I submit, Judy, in this case is the United States Supreme Court will strike down the legislation, as they did before the president's claims...

Evidence obtained by torture

JUDY WOODRUFF: You're saying it's going back to the court?

BRUCE FEIN: It will go back to the courts. I can guarantee you that. And this Congress will have to start all over again, because of this reckless assault on the simple proposition that someone ought to be able to get an impartial judge to decide whether they're being held illegally or not.

DAVID RIVKIN: But they are getting an impartial judge. This rhetoric is over the top. I would predict -- and let's resume on this issue -- but the Supreme Court will uphold this. Of course, there will be challenges.

JUDY WOODRUFF: Do you think it is going to be challenged?

DAVID RIVKIN: Of course! Because this legislation features at least three different ways in which people can challenge this. Of course. It will be sustained.

JUDY WOODRUFF: And, in your view, sustained or overturned?

DAVID RIVKIN: It would be overturned, except it would be overturned in its basic thrust. I have no doubt that there may be an individual instance, because it's a meaningful review, where the judicial would look at a particular prosecution or a particular decision to detain somebody and would overturn it, as it should be, because this is not, contrary to what Bruce is saying, a kangaroo court. This would be a fair engagement by the judiciary.

BRUCE FEIN: Let me give you just one example.

JUDY WOODRUFF: Last comment, quickly.

BRUCE FEIN: Yes, with regard to trying to prove someone is an illegal combatant, the statute enables information obtained by torture to be utilized.

DAVID RIVKIN: It's not true.

BRUCE FEIN: That is correct, with the enemy combatants. It's not true in the military commissions, but with enemy combatants, you can use evidence obtained by torture, which, in my judgment, would clearly be unconstitutional.

JUDY WOODRUFF: All right. Clearly, we didn't resolve this, but we gave you both an opportunity here to give your side of the argument. We appreciate it.

Bruce Fein, David Rivkin, thank you both. We appreciate it.