[Congressional Record (Bound Edition), Volume 153 (2007), Part 18]
[Senate]
[Page 24629]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        MILITARY COMMISSIONS ACT

  The ACTING PRESIDENT pro tempore. The Senator from New Jersey is 
recognized.
  Mr. MENENDEZ. Mr. President, first of all, thank you for taking some 
time and presiding in the chair so I can make this statement.
  Last year, I made a very difficult decision. I voted for the Military 
Commissions Act because I believed it would make our Nation safer and 
help us fight the war on terrorism. I did not support the bill, 
however, without reservations.
  I said at the time it was not the law I would have written. To the 
contrary, I supported the bill with the understanding we would go back 
and fix some of the problems that remained unsolved. Tomorrow, the 
Senate has an opportunity to fix one of the most glaring of those 
problems, the failure to provide detainees with the right to habeas 
corpus.
  A right to habeas corpus was a fundamental right in the eyes of our 
Founding Fathers. It was seen as a mechanism for accountability within 
our Government, giving prisoners a way to challenge detentions that 
were unlawful or unconstitutional.
  A right to habeas corpus has remained a cornerstone of our criminal 
justice system since our very beginning as a Nation. It continues to be 
reaffirmed time and time again by every court in the land. Granting all 
prisoners the right to petition for habeas corpus is something that 
makes our Nation special and sets us apart.
  Now, I am sure many Americans may wonder: Well, what is habeas 
corpus? What is the big fuss about this habeas corpus thing? Well, let 
me try to explain.
  Habeas corpus gives a person, a citizen, people, the right to ensure 
they are being held by the Government lawfully, that they were not the 
victim of malfeasance or misfeasance on the part of the Government. It 
is not an easy standard to meet, and it is not taken lightly by the 
court system.
  To make a case for habeas corpus requires a significant amount of 
proof that a detention of that individual violates the laws of the 
United States. Let me say that one more time. Proving that you are 
entitled to relief, proving that you are entitled to a writ of habeas 
corpus by the court, is not an easy task.
  The claim is usually denied. Only those who truly deserve the writ 
are able to obtain it. I say this to reassure those who may feel that 
granting detainees the right to habeas corpus, as the amendment would 
do, would quickly let loose those who would then attack our country and 
our citizens. That simply will not happen.
  What will happen is those detainees who are being held unlawfully, if 
there are any who are being held unlawfully, who are being denied their 
basic human rights, will have a chance to make their case in court. 
They will, for the first time, be able to argue they are being held 
without any evidence of wrongdoing. They will be able to argue, 
possibly, they were tortured for a confession that is simply not true.
  In short, they will be allowed to hold our great Nation to the 
standard of fairness, lawfulness, and decency that our Founding Fathers 
established when they penned the U.S. Constitution.
  Some people may not believe detainees are entitled to such a basic 
right. They argue these people may not be U.S. citizens; that they do 
not believe the Constitution provides them with any protection or any 
guarantees.
  I disagree. I would ask those people one thing: If the terrorists 
convince us to throw away the very rights that make us free, the very 
rights that make our Nation what we uniquely are, does that not mean 
the terrorists have won?
  If we believe in the rule of law, and if we believe in a system of 
justice, we must give all people detained by our Government the right 
to challenge that detention. Our Government must play by the rules. It 
must detain people who are supposed to be detained, and it must be 
prepared to make that case in a court of law.
  The United States can do better than depending on indefinite, 
unchallengeable detentions to imprison an individual suspected to be a 
terrorist. We do not need shortcuts to keep our Nation safe.
  We can fight the war on terror and respect human rights at the same 
time. What makes America worthy of fighting for and dying for is the 
Constitution and the Bill of Rights. It sets us apart from the rest of 
the world, and we cannot permit its erosion or its undermining. The 
Constitution and the Bill of Rights need to be preserved.
  Therefore, I intend to fully support the Leahy-Specter amendment that 
will be offered tomorrow to restore habeas rights to detainees. I urge 
my colleagues to do the same.
  I yield the floor.

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