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A View From the Hill---Part the Second

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 9, 2007

Okay, so it’s been a while since we’ve spoken about the sitch on Capitol Hill. Time to rectify that oversight on my part. The Times editorial board runs it down for us in an aggressive little piece calling on Congress to stick habeas restoration in the Defense Authorization Bill. The pull-out, with a little commentary to follow:

But let’s be clear. There is nothing ”conservative” or ”tough on terrorism” in selectively stripping people of their rights. Suspending habeas corpus is an extreme notion on the radical fringes of democratic philosophy. As four retired military chief prosecutors — from the Navy, the Marines and the Army — pointed out to Congress, holding prisoners without access to courts merely feeds Al Qaeda’s propaganda machine, increases the risk to the American military and sets a precedent by which other governments could justify detaining American civilians without charges or appeal.Consider some of the other wild-eyed liberals calling on Congress to restore habeas corpus: William Sessions, director of the F.B.I. under the first President Bush; David Keene, head of the American Conservative Union; the National Association of Evangelicals; David Neff, editor of Christianity Today, founded by the Rev. Billy Graham; a long list of other evangelical leaders and scholars; and nearly two dozen sitting and retired federal judges.There are a half-dozen bills in the House and the Senate that would restore habeas corpus. But the Democratic leadership has not found a way to bring the issue to a vote. The first vehicle is the Defense Department’s budget authorization bill. But Representative Ike Skelton, chairman of the House Armed Services Committee, chose not to include habeas corpus in his baseline version of the measure, known as the chairman’s mark, which will be taken up by the committee today.

For more background on the various legislative options for habeas restoration, see Part the First of this continuing series. As for the Times editorial, let me just set you up with a few helpful links.The House Armed Services Committee is set to “mark-up” its version of the legislation necessary to authorize defense spending for the next fiscal year. “Mark up” is basically just what it sounds like. The bible of Congressional procedure, aptly titled Congressional Procedures and the Policy Process defines “marking up” as: “Going through the contents of a piece of legislation in committee or subcommittee, considerng its provisions in large and small portions, acting on amendments to provisions and proposed revisions to the language, inserting new sections and phraseology, and so on.”That’s going to happen this morning at 9 a.m. in the Rayburn House Office Building.For the full text of the bill being “marked up” today, see here.One thing. This isn’t the same bill that President Bush vetoed earlier this month. That was an “emergency” supplemental spending bill for continued operations in Afghanistan and Iraq. The bill that’s in committee today is the big enchilada of defense legislation—it sets force strength, authorizes big weapons systems, all that good stuff.Were it to go to the President’s desk with a habeas restoration section inserted, Mr. Bush would be stuck in a wee bit of a bind. He’s likely to be advised by his buddy Dick Cheney to veto a stand alone bill restoring habeas and due process for the Gitmo prisoners, but saying no to Defense Authorization would be like, to quote a completely unrelated Supreme Court decision, “burn[ing] the house to roast the pig.” (Just as an aside, who roasts pigs in a house?)The Washington Post, which also has an excellent editorial, makes exactly this point:

Armed Services Committee Chairman Ike Skelton (D-Mo.) says he favors the reform. At a hearing on Guantanamo last month he said he thought Congress acted unconstitutionally in denying prisoners habeas. But Mr. Skelton didn’t include the amendment in the draft bill he circulated to his committee. His staff says he concluded that the measure should be contained in a stand-alone piece of legislation, which he is said to be preparing. That strategy is at odds both with recent legislative history and with the judgment of most congressional observers: Mr. Bush, they point out, won’t hesitate to veto a bill on habeas corpus but might be induced to accept the reform if it were attached to one of the annual defense bills. That is how Congress managed to force the reform of prisoner treatment known as the McCain amendment two years ago.

We like Ike. Give us a little habeas action in the bill, er, sir.