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Mr. President, I rise today to urge our colleagues to join with me in supporting the Specter-Leahy-Dodd amendment to restore the writ of habeas corpus for individuals held in U.S. custody.  I am pleased to be an original cosponsor of this amendment and a cosponsor of the underlying bill from which it is drawn -- S. 185, the Habeas Corpus Restoration Act, also introduced by Senators Specter and Leahy. 

For over 700 years the legal system has recognized the importance of habeas corpus, the right of an individual to question the legality of his or her detention.

The Military Commissions Act is perhaps the most disappointing and dangerous piece of legislation passed in the more than quarter-century I have been a member of the Senate.  Among its many troublesome provisions, the act eliminated habeas corpus for those individuals held by our government as enemy combatants. 

By stripping these individuals of the right to petition the government, we have undermined our nation’s long-standing commitment to the rule of law and human rights.  Advocates of this provision argued that stripping away this fundamental right was necessary to protect our nation’s security. That is totally false.  We can both effectively prosecute terrorists and remain true to our values.  In fact, doing so makes us stronger. 

I stand here on the Senate floor today seeking to undo what Congress did last year when it summarily stripped habeas corpus rights with the enactment of the Military Commissions Act.  Were our founding fathers alive today, they would be seriously dismayed to realize how far our country has strayed from the values they enshrined in our Constitution with the adoption of this measure.

Stripping of habeas rights is just one of a number of egregious provisions included in the Military Commissions Act.  That is why earlier this year I introduced S. 576, the Restoring the Constitution Act to address these errors. 

In addition to restoring habeas corpus rights, S. 576 would also require the United States to live up to its Geneva Convention obligations, provide detainees access to attorneys for trials, make admissible at trial evidence gained through torture or coercion, empower military judges to exclude hearsay evidence they deem to be unreliable, and provide for the expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionality of all of its provisions. 

The Restoring the Constitution Act would undo the most damaging and unconstitutional aspects of the Military Commissions Act while providing the U.S. military a greater ability to bring our enemies to justice through military commissions.

I take a backseat to no one when it comes to defending our nation’s security.  Let me be clear, I believe military commissions in very limited circumstances may be effective in bringing combatants to justice. 

But there is a right way and a wrong way to win the fight that we are in.  Procedures that adhere to bedrock legal principles, such as habeas corpus, abide by the Geneva Conventions, and exclude hearsay evidence or evidence obtained through torture or coercion—to name but a few—do not make us weak.  Quite the contrary, they demonstrate that no terrorist can destroy our way of life and the fundamental values that have guided our nation for over two centuries. 

During the debate on the Military Commissions Act last year, Senator Specter, Senator Leahy and I offered an amendment that would have retained the writ of habeas corpus.  Unfortunately, our amendment was rejected by the Senate. 

On September 28, 2006, I voted against the Military Commissions Act.  Sadly, I was in the minority in doing so.  I was and remain deeply disappointed that the Senate passed that misguided legislation. That day was a dark day in the history of the United States Senate.  On that day we abandoned our commitment not only to human rights, but also to the rule of law –commitments that separate us from our enemies -- commitments that have been fundamental to American leadership since the end of World War II. 

This issue has special resonance with me because of my father Thomas Dodd, who also sat in this body as a United States Senator from Connecticut.  Before becoming a Senator, my father was a prosecutor working alongside Justice Robert Jackson at the Nuremberg war crimes tribunals. 

There, the United States demonstrated to the world its profound commitment to the rule of law, due process, and human rights.  Many of our allies did not see the need for trials for Nazis then held by the Allied forces.  Indeed, many of them called for summary executions of prisoners, including no less a figure than British Prime Minister Winston Churchill. 

The United States said no. 

Instead we insisted on giving the Nazis—members of the world’s most barbaric regime—the protections and rights of the rule of law. 

The Nuremberg trials not only brought many of the Nazi war criminals to justice, but helped demonstrate to the world the importance of providing even the most heinous criminals the protections of the law.  Doing so makes our nation incalculably stronger, not weaker.

But I fear that Congress has allowed President Bush to diminish our nation’s commitment to human rights and the rule of law.  We have failed to stand up for our most cherished values.  We let the fear of being seen as weak override our duty to protect the Constitution.

It is not too late to right the wrong of last year. 

While I am hopeful that the federal courts will strike down many of the provisions of the Military Commissions Act, a decision earlier this year by the U.S. Court of Appeals for the District of Columbia demonstrates the need for the amendment before us today.  On February 20, 2007, the U.S. Court of Appeals for the District of Columbia upheld the provisions of the Military Commissions Act eliminating the writ of habeas corpus for enemy combatants.  Despite two recent Supreme Court decisions suggesting that habeas rights cannot legislatively be stripped away, the split decision by the U.S. Court of Appeals for the District of Columbia underlines the need for the Congress to proactively act now to unambiguously restore habeas rights.

For more than 60 years, the United States has helped to lead the world through its commitment to human rights, democracy and the rule of law.  Last year our nation lost the moral high ground.  This year, Congress must reassert to the nation, the President, and the courts that we recognize the vital role of habeas corpus in our legal system. 

I believe the Specter-Leahy-Dodd amendment is the first step in undoing the terrible damage that the Military Commissions Act has done to our legal system and our international reputation so much damage.  I implore my colleagues to begin today to undo the harm done to our nation’s reputation by voting to restore habeas rights which have always been a core element of our jurisprudence. 

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