Those Confusing Habeas Corpus Bill Numbers - And The Important Text

I wrote on Sunday about the status of Senator Arlen Specter's (R-PA) Habeas Corpus Restoration Act of 2007, which will likely come to a vote in the U.S. Senate this week and that will restore the fundamental right of due process under the law to those in American custody. I listed the Senators who had stepped up to the plate to cosponsor such an important piece of legislation and urged readers to contact the offices of Democrats not yet cosponsoring the bill to give them a push in the right direction.

There's a bit of confusion about the actual bill number and I wanted to quickly clear that up today.

S. 185, which I've been writing about, and which currently has 29 cosponsors -- 28 Democrats and Independent Bernie Sanders of Vermont -- has been the operative version of the Habeas Corpus Restoration Act of 2007 since it was introduced by Specter and Patrick Leahy (D-VT) on the first day of the new Congress in January.

What people will see come to the Senate floor this week as an amendment to the Department of Defense (DoD) authorizations bill is S. Amdt. 2022, which is simply S. 185 renumbered as an amendment to the DoD legislation. In fact, the text of S. 185 and S. Amdt. 2022 are identical as follows:

RESTORATION OF HABEAS CORPUS FOR THOSE DETAINED BY THE UNITED STATES.

(a) In General.--Section 2241 of title 28, United States Code, is amended by striking subsection (e).

(b) Title 10.--Section 950j of title 10, United States Code, is amended by striking subsection (b) and inserting the following:

"(b) Limited Review of Military Commission Procedures and Actions.--Except as otherwise provided in this chapter or in section 2241 of title 28 or any other habeas corpus provision, and notwithstanding any other provision of law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.''.

(c) Effective Date and Applicability.--The amendments made by this section shall--

(1) take effect on the date of the enactment of this Act; and

(2) apply to any case that is pending on or after the date of enactment of this Act.

While it's short and sweet, it can still look to some like legal gobbledygook, so here's where the rubber meets the road: It's the part up top that says "Section 2241 of title 28, United States Code, is amended by striking subsection (e)."

From the Military Commissions Act, here's subsection (e):

"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

That's the downright un-American nonsense the Specter-Leahy bill will get rid of.

So it doesn’t matter whether it's called S. 185 or S. Amdt. 2022 as it does the exact same thing of, as Senator Leahy said last week, "restoring basic American values and the rule of law, while making our Nation stronger."

"I don't think that there's a more important issue to come before this body," said Specter on the Senate floor. "What happens in Iraq obviously is of enormous importance, but if we lose the basic fundamental rights to require evidence before somebody is held in detention, if we lose the right of habeas corpus, it is a very sad day in America."

In terms of what Democratic Senators are stepping up and cosponsoring the legislation, our count remains the same. Twenty-eight Democrats had signed up to cosponsor the original S. 185 and the 14 current cosponsors of the new S. Amdt. 2022 also have their names attached to S. 185.

Which leaves us with the following Democrats who haven't signed on to support either one:

• Daniel Akaka (D-HI)
• Max Baucus (D-MT)
• Evan Bayh (D-IN)
• Robert Casey (D-PA)
• Kent Conrad (D-ND)
• Byron Dorgan (D-ND)
• Daniel Inouye (D-HI)
• Tim Johnson (D-SD)
• Herb Kohl (D-WI)
• Mary Landrieu (D-LA)
• Blanche Lincoln (D-AR)
• Barbara Mikulski (D-MD)
• Patty Murray (D-WA)
• Ben Nelson (D-NE)
• Mark Pryor (D-AR)
• Jack Reed (D-RI)
• Charles Schumer (D-NY)
• Jon Tester (D-MT)
• James Webb (D-VA)
• Ron Wyden (D-OR)

Does it matter if they sign on as cosponsors to the Habeas Corpus Restoration Act of 2007? Yes, it does. For one, it tells us what our running vote count is and gives us some sense of who's going to ultimately vote for it. While the Senators listed above may very well intend on voting for the bill's passage, we don’t know that at the moment -- and for something this fundamental to American values, they need to stand up and be counted. Cosponsoring the bill also demonstrates leadership on this vital issue and that's what we want to see.

So get on the phone today and call the Senators still not committed to cosponsoring this critical legislation as they may still need a nudge to sign on that dotted line.

Here's the toll-free number to dial at the U.S. Capitol: 800-862-5530. Just call and ask to be connected to your Senator's office. If you get a chronic busy signal you can see a directory of direct lines to Senate offices here (PDF).

A vote on this should occur by Thursday.

Update: I neglected to mention that Tim Johnson is still recovering from health problems and may not be able to cosponsor this legislation. I've noted that so many times in the last six months that I assumed it was common knowledge, but regret the omission. That said, Johnson is updating press statements on his web site on a regular basis and could state his support for restoring Habeas Corpus were he so moved.