Last September, President Bush used the leverage of a midterm election to pressure Congress into granting his administration broad powers to detain, interrogate and try "enemy combatants" in the war on terrorism. The hastily considered bill had many flaws, but perhaps the most serious was a provision stripping foreign detainees of the right of habeas corpus, by which they could appeal their detentions, their treatment or the fairness of their trials to U.S. courts. With Congress under their control, Democrats have the chance to correct this serious breach of liberty. They should move quickly.
Two substantial pieces of legislation have been introduced in the Senate so far. One is a bipartisan measure backed by Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., and his predecessor as chairman, Sen. Arlen Specter, R-Pa. Their bill would simply and straightforwardly restore the habeas right - which is spelled out in Article I of the Constitution and has been a fundamental guarantor of freedom in Anglo-Saxon common law since the 12th century - for all foreign prisoners in U.S. jurisdiction. The measure was narrowly defeated last year in the Senate by a vote of 51 to 48. Since then the elections have changed the arithmetic, and supporters believe a comfortable majority is within reach, though some compromises may be necessary to overcome a filibuster.
A much broader bill was introduced Tuesday by a group of Democrats led by Sen. Christopher J. Dodd, D-Conn., who is a candidate for president. In addition to affirming the habeas right, the Restoring the Constitution Act would correct many other problems with the military commissions law. It would prevent the administration from introducing evidence at the trials that was obtained through coercion; close loopholes that might allow the CIA to use abusive interrogation techniques; and improve the appeals process. The measure would also narrow - in our view excessively - the current law's overly broad definition of who can be defined as an "enemy combatant" subject to trial by a military commission. At present, even legal residents of the United States who do no more than "support" a terrorist group could be tried as enemy combatants; under Mr. Dodd's bill, only al-Qaida members connected to the Sept. 11, 2001, attacks and fighters captured in "a zone of active combat against the United States" would be covered.
Most of the Dodd bill's reforms are badly needed. But many could be addressed through the courts if the habeas right were restored. Over the past several years, court supervision has proved essential to curbing the Bush administration's excesses in holding and interrogating prisoners at Guantanamo Bay and elsewhere. Court rulings or the imminent prospect of them have caused prisoners held incommunicado to be granted attorneys and hearings, trial procedures to be improved and abusive treatment to be curbed. There is much still to do to reform foreign detentions; Congress needs to put the federal court system back into the process. It can do so by guaranteeing detainees the basic human right to appeal their imprisonment.
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