By Corine Hegland, National Journal
© National Journal Group Inc.
Friday, March 23, 2006

Sen. Arlen Specter, R-Pa., ranking member of the Senate Judiciary Committee, filed an amicus brief with the Supreme Court Thursday night urging the court to quickly hear and decide an appeal from Guantanamo detainees challenging the constitutionality of the Military Commissions Act. The MCA, which was signed into law last October, strips detainees of their habeas corpus rights, or their ability to challenge their detention in court.

"The question presented here is not whether some of the individuals should continue to be detained," Specter's brief argues. "They should. The question is whether the U.S. Constitution ensures that the writ of habeas corpus is available for detainees to contest the legality of their detention by the executive."

On Feb. 20, the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of the MCA and dismissed two cases covering 63 Guantanamo detainees. Lawyers for the detainees immediately filed an appeal with the Supreme Court. They are now wrestling with the Justice Department over whether the court should accept the case for this term, which concludes in late June or early July.

Specter's brief urges the court to accept the case. "If the Court declines to resolve these important issues in this term, the detainees could face more than another full year in legal limbo. Although Congress will continue to discharge duties, at the end of the day, it falls to this Court to say, emphatically, what the law is," it says.

Specter has long argued that Guantanamo detainees have a constitutional right to the courts. In January, he and Judiciary Chairman Patrick Leahy, D-Vt., introduced a bill to restore the detainees' habeas rights. If and when that bill, or a similar measure introduced by Sen. Christopher Dodd, D-Ct., is debated, however, it will mark Congress' third round of arguments over habeas and detainees.

Specter's March 22 brief dryly notes the "extensive debate" within Congress over the last few years, saying, "While this exchange of ideas is surely healthy and appropriate, the conversation has begun to generate diminishing returns. Meanwhile, the detainees wait, and uncertainty surrounds a fundamental constitutional principle."