THE BLOG
03/09/2007 04:40 pm ET Updated May 25, 2011

A Course Correction on Habeas Corpus

The Bush Administration has never completely found its way out of the "fog of law" that set in after the 9/11 attacks. Few question that September 11th and the threat of future attacks required a swift and forceful response. Many Members of Congress-me included-offered to help the President create a legal framework to guide this response, setting the ground rules for detaining, interrogating and eventually trying terrorism suspects.

We had an opportunity to show the world that the United States could fight those who would do us harm and protect our core values-that we could be both strong and just.

We missed that opportunity big time. The Administration chose to act unilaterally, claiming for itself the right to ignore core provisions of US law regarding the treatment of detainees. It brushed off international agreements like the Geneva Conventions, which protect our troops and set the bar for human rights. And it refused to compromise on last year's Military Commissions Act, which I strongly opposed, but which passed handily in the Republican-controlled 109th Congress.

As a result, the United States has paid a steep price in eroded moral authority. We have never been as unpopular in the world as we are now. We have flouted the very legal protections we have sought to export to the rest of the world. We have undermined international human rights standards that we helped create, and which we have used to press other nations to protect the rights of their citizens.

Yesterday, Rep. Jerry Nadler (D-NY) and I introduced two bills to correct the worst excesses of the Military Commissions Act and restore our international standing.

The "Habeas Corpus Restoration Act" would reinstate the right of habeas corpus for terrorism detainees so they can challenge their detention before an impartial judge. The second bill, the "Restoring the Constitution Act," affirms the applicability of the Geneva Conventions, prohibits the use of coerced testimony, and gives the trial judge more discretion to ensure a fair trial.

These are not partisan issues. At yesterday's press conference, Republican Sen. Arlen Specter described a discussion with Sen. Lindsey Graham over whether habeas corpus is a constitutional right. Specter pointed out that the Constitution says "the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion." Graham could not claim that either condition is present. (Too bad that Specter voted for the Military Commissions Act.)

Congress should never have passed the Military Commissions Act and the President should never have signed it into law-and it's a sad commentary on this institution that we must now try to pass new legislation to fix such a flawed statute. But fix it we must, and our bills are, we hope, the beginning of a badly needed course correction.