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“What has changed in the last five years that our Government is so inept and our people so terrified that we must do what no bomb or attack could ever do by taking away the very freedoms that define America? Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?”
The habeas-stripping provisions in the current bill go far beyond what Congress did in the Detainee Treatment Act in at least three respects. First, as the Supreme Court pointed out in Hamdan, the DTA removed habeas jurisdiction only prospectively for future cases. By contrast, the new bill would strip habeas jurisdiction retroactively even from pending cases. That is an extraordinary action that runs counter to long held U.S. policies disfavoring retroactive legislation. Second, the DTA applied only to detainees at Guantanamo. The new legislation goes far beyond Guantanamo and strips the right to habeas of any alien, even in the United States, if the alien has been determined an enemy combatant or is awaiting a determination whether he is an enemy combatant. That would allow the government to hold even a permanent resident alien forever without the right to habeas while the government decides whether he is an enemy combatant. And third, the impact of those provisions is extended by the new definition of enemy combatant proposed in the current bill. The bill would extend the definition to include persons who supported hostilities against the United States, even if they did not engage in armed conflict against the United States or its allies. That, again, is an extraordinary extension of existing law and of the persons whom the law would authorize the government to detain without any access to the historic writ of habeas corpus.