EVEN IF HE SAYS SO HIMSELF, Sen. Arlen Specter (R-Pa.), the chairman of the Senate Judiciary Committee, is an expert on constitutional law. So his warning that the Supreme Court is likely to invalidate pending legislation that would create military commissions to try terrorist suspects deserves a hearing -- in the Senate.
The problem with the legislation -- even with the improvements forced on the White House by Sen. John McCain (R-Ariz.) -- is that it would make it impossible for alleged enemy combatants to file what is known as a writ of habeas corpus, which allows them to challenge the legality of their imprisonment.
In 2004, the Supreme Court rejected the Bush administration's position and ruled that detainees at the U.S. facility at Guantanamo Bay were entitled to file such petitions. In its decision, the high court cited a statute giving federal courts the authority to review habeas petitions. But in his majority opinion, Justice John Paul Stevens also quoted a 1945 case in which the court noted that habeas corpus is "a writ antecedent to statute ... throwing its root deep into the genius of our common law." In fact, the "Great Writ" can be traced back to the Magna Carta. And although the Constitution allows Congress to suspend habeas corpus in "cases of rebellion or invasion," Specter rightly noted that "we don't have either."
The argument for allowing detainees to file habeas petitions goes beyond avoiding the embarrassment of a rebuke from the Supreme Court, which has already twice rebuffed the administration's legal strategy in the war against terrorism. Thirty-three former U.S. diplomats have sent a letter to Congress warning that "to deny habeas corpus to our detainees can be seen as prescription for how the captured members of our own military, diplomatic and NGO [nongovernmental organization] personnel stationed abroad may be treated."
On Wednesday, the House approved a bill that does not permit detainees to file habeas corpus petitions. That means that it will be up to Specter and his colleagues to preserve the Great Writ when the Senate votes, as early as today.