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                                                       Calendar No. 220
110th Congress                                                   Report
 1st Session                                                     110-90




                 June 26, 2007.--Ordered to be printed


Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with


                         [To accompany S. 185]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 185), to restore habeas corpus for those detained by 
the United States, reports favorably thereon without amendment, 
and recommends that the bill do pass.


  I. Purpose of the Habeas Corpus Restoration Act of 2007.............1
 II. History of the Bill and Committee Consideration..................9
III. Section-by-Section Summary of the Bill..........................10
 IV. Cost Estimate...................................................11
  V. Regulatory Impact Evaluation....................................12
 VI. Conclusion......................................................12
VII. Additional and Minority Views...................................13
VIII.Changes in Existing Law Made by the Bill as Reported............46

        I. Purpose of the Habeas Corpus Restoration Act of 2007

    Ranking Member Specter introduced the Habeas Corpus 
Restoration Act of 2007 on January 4, 2007, with Chairman Leahy 
as the original cosponsor. Senators Feinstein, Brown, Feingold, 
Lautenberg, Clinton, Salazar, Dodd, Harkin, Rockefeller, Levin, 
Obama, Cantwell, Whitehouse, Kerry, Durbin, Biden, Kennedy, 
Boxer, Bingaman, Cardin, Sanders, and Stabenow have since 
joined as cosponsors.
    This legislation repeals those provisions of the Detainee 
Treatment Act of 2005 (DTA) and the Military Commissions Act of 
2006 (MCA) that eliminated the jurisdiction of any court to 
hear or consider applications for a writ of habeas corpus filed 
by aliens who have been determined by the United States to be 
properly detained as enemy combatants, or are awaiting such 
determination. The legislation would therefore permit detainees 
held by the United States Government as enemy combatants, or as 
potential enemy combatants, to file writs of habeas corpus and 
other related actions in the United States District Courts, 
subject to limitations on habeas that pre-dated the DTA. It 
also allows courts to consider legal challenges to military 
commissions only as provided by the Uniform Code of Military 
Justice or by a habeas corpus proceeding.

                             A. BACKGROUND

1. Brief History of the Great Writ

    The writ of habeas corpus protects individuals against 
unlawful exercises of state power. It provides the means for a 
person detained by the state to require that the government 
demonstrate to a neutral judge that there is a factual and 
legal basis for his or her detention. The writ has roots at 
least as far back as 16th century England, and beginning with 
Parliament's passage of the Habeas Corpus Act of 1679, this 
protection became known as the ``Great Writ.''
    Habeas corpus has long been a cornerstone of Anglo-Saxon 
and American legal traditions. At English common law, courts 
exercised habeas jurisdiction not only within the Crown's 
formal territorial limits, but also over other areas over which 
the Crown exercised sovereign control. The Great Writ was 
imported into the laws of all 13 American colonies, and it was 
one of the first subjects to which the first Congress turned 
its attention. The Judiciary Act of 1789 specifically empowered 
federal courts to issue writs of habeas corpus ``for the 
purpose of an inquiry into the cause of commitment.''
    Habeas corpus is also the only common law writ mentioned in 
the Constitution. Article I, section 9 provides that the ``Writ 
of Habeas Corpus shall not be suspended, unless when in Cases 
of rebellion or invasion the public Safety may require it.'' 
Thus, the Founders clearly established their intention that 
habeas corpus serve as a bulwark of individual liberty. Indeed, 
habeas has only been suspended four times in American history--
including twice during the Civil War when the safety of 
Washington, D.C. was threatened by mobs in Maryland--and the 
writ has never been suspended absent an active insurrection or 
    The right of enemy aliens to petition for habeas relief in 
U.S. courts is also well-established. While there is no precise 
historical analogue to the detainees presently held at 
Guantanamo Bay, United States courts have entertained habeas 
claims by aliens who were being held as enemy combatants. For 
example, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme 
Court allowed a habeas challenge brought by a group of German 
saboteurs held for law of war offenses to go forward, reasoning 
that, ``[i]n view of the public importance of the questions 
raised by their petitions and of the duty which rests on the 
courts, in time of war as well as in time of peace, to preserve 
unimpaired the constitutional safeguards of civil liberty,'' 
the cases must be allowed to proceed. The Supreme Court also 
exercised habeas jurisdiction over an enemy alien in In re 
Yamashita, 327 U.S. 1 (1946), in which a Japanese general stood 
accused of war crimes.\1\
    \1\ Scholars have identified one case in which a U.S. court 
actually granted habeas relief to an enemy alien. See Gerald L. Neuman 
and Charles F. Hobson, John Marshall and the Enemy Alien, 9 Green Bag 
2d 39, 42 (discussing unreported case of United States v. Thomas 
Williams, in which Chief Justice Marshall, riding circuit, granted 
relief to an alien enemy combatant irregularly detained).
    Throughout American history, the writ has served to 
guarantee people seized and detained by the government the 
right to question the grounds for their detention, and has been 
available to citizens, non-citizens, slaves, and alleged 
enemies. The writ has served as a critical check on arbitrary 
and unlawful executive detention as well as, more recently, a 
legal tool for bringing post-conviction, collateral challenges 
in criminal cases.

2. Recent developments in Habeas Corpus Law

    Shortly after the September 11, 2001 attacks, Congress 
passed a joint resolution authorizing the President to use 
``all necessary and appropriate force against those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks * * * or harbored 
such organizations or persons.'' The United States then 
conducted a military campaign in Afghanistan against al Qaeda 
and the Taliban regime that had supported al Qaeda.
    In February 2002, following the collapse of the Taliban 
regime, the White House determined that while Taliban detainees 
are covered under the Geneva Conventions, Al Qaeda detainees 
are not. The White House further declared that none of the 
detainees qualified for prisoner-of-war (POW) status, deemed 
all detainees ``unlawful enemy combatants,'' and asserted the 
right to detain them without trial indefinitely. Around this 
same time, the U.S. Government began holding non-citizens 
captured abroad at the U.S. naval base at Guantanamo Bay, Cuba, 
and declared that certain of these detainees would, at an 
appropriate time, be tried by military commissions to be 
convened at Guantanamo Bay.
    By mid-2002, the Guantanamo detainees began filing habeas 
petitions in the United States District Court for the District 
of Columbia, challenging the conditions of their confinement, 
access to counsel and, most fundamentally, their status as 
enemy combatants. These habeas cases proceeded before several 
district judges, but the court agreed to deal with all 
administrative matters before a single judge. During these 
proceedings, no judge ordered the release of any petitioner, 
and no judge ordered a change in the conditions of confinement 
or treatment of any Guantanamo detainee.
    In June 2004, the U.S. Supreme Court decided the first 
appeal of a jurisdictional dismissal of a detainee habeas case 
involving an alien held at Guantanamo Bay. In Rasul v. Bush, 
542 U.S. 466 (2004), the Court ruled that the federal habeas 
statute (28 U.S.C. Sec. 2241) conferred on district courts 
jurisdiction to hear challenges of aliens held at Guantanamo 
Bay. The Court based its jurisdictional ruling in part on its 
finding that the United States exercises plenary and exclusive 
jurisdiction over Guantanamo Bay. The Court confirmed that, at 
common law, courts exercised habeas jurisdiction over the 
claims of aliens detained outside the territorial ambit of the 
British Empire, and it also observed that the reach of the 
habeas statute had expanded over the past two centuries. 
Following Rasul, the Pentagon established administrative 
hearings, called ``Combatant Status Review Tribunals'' (CSRTs), 
to permit detainees to contest their status as ``enemy 
combatants.'' This led to the filing of additional habeas 
petitions in the District Court for the District of Columbia.
    In the last two years, Congress has twice sought to divest 
the courts of jurisdiction to hear habeas challenges by 
detainees. In December 2005, Congress passed the DTA which, 
among other things, attempted to strip the courts of 
jurisdiction to hear detainees' challenges by eliminating the 
federal courts' statutory authority over habeas claims by 
aliens detained at Guantanamo Bay. In Hamdan v. Rumsfeld, 126 
S. Ct. 2749 (2006), however, the Supreme Court rejected the 
view that the DTA left it without jurisdiction to review a 
pending habeas challenge to the validity of military 
commissions established by President Bush to try suspected 
    Following the Court's decision in Hamdan, and taking only a 
few weeks from the introduction of the bill to final passage, 
the 109th Congress in September 2006 passed the MCA, which 
authorized President Bush to convene military commissions to 
try the Guantanamo detainees. The MCA also amended the DTA to 
definitively restrict access to federal courts by all alien 
enemy combatants, and those awaiting determination whether or 
not they were enemy combatants, by eliminating pending and 
future habeas claims other than the limited review of military 
proceedings permitted under the DTA.
    In February 2007, a panel of the United States Court of 
Appeals for the D.C. Circuit, in Boumediene v. Rumsfeld, 476 
F.3d 981, ruled 2-1 that the section of the MCA that deprives 
courts of jurisdiction over habeas petitions of aliens detained 
as enemy combatants at Guantanamo Bay does not violate the 
Suspension Clause of the Constitution, because the Constitution 
confers no rights on aliens without property or presence in the 
United States. On April 2, 2007, the Supreme Court declined to 
review the decision.

                        B. NEED FOR LEGISLATION

    Habeas corpus allows someone who is imprisoned by the 
government to challenge his or her detention in court. It is 
enshrined in the Constitution, and Justice Antonin Scalia has 
recently referred to it as ``the very core of liberty secured 
by our Anglo-Saxon system of separated powers.'' Hamdi v. 
Rumsfeld, 542 U.S. 507, 554 (2004). The last Congress's 
decision to strip habeas rights from any non-citizen held as a 
possible enemy combatant, including not only Guantanamo 
detainees, but also any of the at least 12 million lawful 
permanent residents in this country, and to give the Executive 
the unilateral authority to detain indefinitely those merely 
suspected of being ``enemy combatants,'' was a historic mistake 
that this legislation will correct.
    The legislation is needed for several reasons. First, the 
DTA and MCA give far too much power to the Executive to detain 
alleged enemy combatants--potentially forever--with no 
meaningful check by another branch of government. Specifically, 
the DTA and MCA permanently eliminated the right of habeas 
corpus for any non-citizen determined to be an enemy combatant, 
or even ``awaiting'' such a determination. A mere accusation by 
the Executive is therefore sufficient to deny the time-honored 
right of habeas corpus, and that determination is unreviewable 
for as long as the government chooses. No administration can be 
trusted with that kind of power. That is why our Founders 
included habeas protections in the Constitution and permitted 
suspension only in certain specified and catastrophic types of 
declared national emergencies.
    Carving out an exception to this long-established legal 
principle for the sake of expediency was a mistake. Indeed, 
senior government and military officials have stated that the 
Executive detained many of the Guantanamo detainees in error. 
See Tim Golden and Don Van Natta, Jr., ``U.S. Said to Overstate 
Value of Guantanamo Detainees,'' New York Times, June 21, 2004. 
In fact, the government has said that the vast majority will 
never be tried by a military commission and, without habeas 
rights, they will have no means to challenge their detention 
before an independent court. Restoring habeas would prevent the 
possibility that others in the future who are innocent and 
wrongly detained could spend their entire lives in prison, 
without charge, in the custody of the U.S. Government.
    Second, it is important to note that the sweep of the MCA 
goes well beyond the few hundred detainees currently held at 
Guantanamo Bay. By its terms, the MCA threatens the civil 
liberties of millions of United States residents, including at 
least 12 million lawful permanent residents of the United 
States who work and pay taxes in this country. Under current 
law, any of these people can be detained forever, without the 
ability to challenge their detention in federal court, simply 
on the Executive's assertion that they are awaiting 
determination as to their status.\2\ At the Senate Judiciary 
Committee's hearing on this issue on May 22, 2007, Stanford Law 
Professor Mariano-Florentino Cuellar emphasized the MCA's 
potentially disproportionate impact on the Latino population: 
``I think it is very important for people who are members of 
the Latino community * * * to be vigilant and understand that 
laws can be used in ways other than the way they were intended 
to be used.'' Those legal immigrants whose rights have been 
stripped away, Professor Cuellar observed, pay billions of 
dollars in taxes to the U.S. Government, meet particular labor 
demands, and their children grow up to take important positions 
in American society.
    \2\ In a recent divided Fourth Circuit decision, the majority 
included language strongly suggesting that legal residents detained in 
the United States generally would be entitled to constitutional habeas 
rights, which were not limited by the MCA, and that those held 
``awaiting'' determination cannot be held indefinitely. Al-Marri v. 
Wright, No. 06-7427. However, the Government in that case argued that 
the MCA did strip habeas rights from a legal resident detained in the 
United States, including one indefinitely awaiting a status 
determination. This Fourth Circuit panel recognized the core importance 
of habeas rights in our legal and constitutional tradition, but the 
Executive has not, and there is no guarantee that future courts will--
which is why Congress needs to act now.
    Third, in passing the DTA and MCA, Congress failed to 
create an adequate substitute for habeas corpus. Absent a 
congressional finding that there is an on-going ``rebellion'' 
or ``invasion,'' the constitutionality of the MCA's habeas 
provision is suspect. The U.S. Supreme Court held in Swain v. 
Pressley, 430 U.S. 372 (1977), that any alternative to habeas 
must be ``adequate and effective'' to test the legality of a 
person's detention. But the CSRTs, the current alternative to 
habeas, lack even the most basic of protections that habeas 
provides, including the right to counsel and the right to be 
heard by an impartial judge. Rear Admiral Donald J. Guter, Dean 
of Duquesne Law School and former Judge Advocate General of the 
Navy, stressed at the Committee hearing that the CSRT process, 
which he referred to as a ``black hole,'' is unfair, 
inaccurate, and inconsistent. He cautioned, ``You can run 
somebody through a CSRT and then never charge them, and without 
habeas, their case is never to be heard.'' \3\ William Howard 
Taft IV, former Deputy Secretary of Defense under President 
George H. W. Bush, and a former State Department advisor in the 
current administration, has argued that CSRTs are not an 
adequate substitute for habeas, even if CSRTs were to be 
improved. He wrote in response to written questions from this 
Committee, ``I do not believe relating the ability of alien 
detainees in Guantanamo to bring habeas corpus petitions to the 
CSRT process would be desirable.''
    \3\ Lieutenant Colonel Stephen Abraham, a military lawyer who 
participated in CSRTs, said in a sworn affidavit that the CSRT process 
was ``fundamentally flawed'' and that superiors pressured the officers 
on CSRT panels to find detainees to be enemy combatants. See Carol D. 
Leonig and Josh White, ``An Ex-Member Calls Detainee Panels Unfair,'' 
Washington Post, June 23, 2007.
    The D.C. Circuit-based review process established by the 
DTA is also inferior to habeas review because it is restricted 
to considering only whether the status determination complied 
with the protocols established for CSRTs. This circumscribed 
review forecloses the kind of searching inquiry into the 
factual basis for detention that habeas allows. The judicial 
review theoretically permits the court to consider whether the 
CSRT determination comports with the Constitution, but this 
review is hollow in view of the D.C. Circuit's ruling in 
Boumediene that the detainees have no constitutional rights.\4\ 
George Washington University Law Professor Orin Kerr said in 
testimony at the Committee's hearing, ``the alternative remedy 
provided by the DTA seems poorly designed to permit an adequate 
and effective hearing on any legal rights that the detainees 
may have.'' In a written response to questions, Professor 
Cuellar added that the DTA/MCA review process prohibits both 
``review of cases where no final determination is ever made 
(because a decision is indefinitely delayed)'' and ``the type 
of case-by-case determination striking a reasonable balance 
between societal and governmental interests that is 
historically associated with habeas review.'' Simply put, a 
detention review procedure predicated on the acceptance of 
findings from an inherently flawed CSRT hearing cannot and does 
not provide the protections that independent review under 
habeas has made available for centuries.
    \4\ This ruling appears to be in tension with Rasul's pre-DTA/MCA 
holding that statutory habeas rights extended to Guantanamo Bay. It is 
hard to see a principled distinction for why U.S. statutory law would 
extend to Guantanamo Bay, while the U.S. Constitution's protections 
would not.
    Finally, the United States has a clear strategic interest 
in restoring the Great Writ. The elimination of basic legal 
rights undermines our ability to achieve justice and to win our 
struggle against terrorism. Leading former military lawyers, 
like Rear Admiral Guter, tell us that by stripping our alleged 
enemies of basic rights, we are providing a pretext for those 
who capture our troops or civilians to deny them basic rights. 
Diplomats and foreign policy specialists like William H. Taft 
IV lament that stripping the courts of habeas jurisdiction 
sacrificed an important opportunity to enhance the credibility 
of the Guantanamo detention system. In a written response 
following the hearing, Mr. Taft summed up: ``I do not believe 
that the international community accepts the legitimacy of the 
CSRT process. Habeas corpus proceedings, on the other hand, are 
widely recognized as a legitimate method of determining whether 
a person is being lawfully held in custody.'' Military and 
diplomatic experts say that, not only will restoring habeas to 
detainees not be harmful to our security and our fight against 
terrorism, but it will improve our strategic and diplomatic 
position in the world and remove a rallying point for our 
enemies. Speaking on Meet the Press earlier this month, former 
Secretary of State Gen. Colin Powell explained that 
``Guantanamo has become a major, major problem for * * * the 
way the world perceives America. And if it was up to me, I 
would close Guantanamo not tomorrow, but this afternoon.'' 
Powell explained, ``The concern was, `Well, then they'll have 
access to lawyers, then they'll have access to writs of habeas 
corpus.' So what? Let them. Isn't that what our system's all 
about?'' The significant benefits of restoring habeas corpus 
rights to American strategic and policy interests and to our 
legal system make this legislation appropriate and necessary, 
regardless of what the Supreme Court ultimately decides about 
the constitutionality of the MCA.
    The habeas rights to be restored by this legislation have a 
sound grounding in historical precedent. As the U.S. Supreme 
Court recently noted in Rasul, American courts and their 
British antecedents routinely assumed jurisdiction over habeas 
claims made by aliens, even if most of those claims were 
ultimately denied on the merits. See, e.g., R. v. Shiever, 97 
Eng. Rep. 551 (K.B. 1759); Case of Three Spanish Sailors, Eng. 
Rep. 1010 (K.B. 1779); In re Yamashita, 327 U.S. 1 (1946); Ex 
Parte Quirin, 317 U.S. 1 (1942). If habeas was available to 
enemy alien prisoners of war in the two World War II-era cases 
cited above, who had already benefited from some kind of 
judicial proceedings or military commissions, then surely 
habeas must be available to those who seek to challenge 
executive detention without having had the benefit of any 
process in accordance with the law of war. Further, the 
contention by critics of this legislation that the United 
States has never granted habeas corpus relief to an enemy alien 
is not only incorrect, see supra note 1, but it is also 
irrelevant. The fact that enemy alien habeas petitioners rarely 
find relief in U.S. courts is evidence that habeas can be 
relied upon as a necessary, but reasonable, check on executive 
power, and underscores the feasibility of continuing this 
historic practice.\5\ As in the past, non-citizen detainees 
suspected of being enemy combatants should at least have the 
right to go into an independent court to assert that they are 
being held in error--but, as in the past, a court may only 
grant habeas relief if the petitioner is able to in fact 
establish this error.
    \5\ Indeed, those Guantanamo detainees who have been released since 
9/11--discussed at length by critics of this legislation--have been 
freed by the military following its own process, not by federal judges 
on habeas review.
    Restoring habeas will not invite habeas litigation from 
abroad. The Supreme Court in Rasul relied upon Guantanamo Bay's 
standing as a de facto U.S. territory in ruling that statutory 
habeas reaches the Guantanamo detainees. Courts have found no 
jurisdiction for similar claims in recent cases of detainees 
captured, detained, and held in Iraq. Rear Admiral Guter noted 
in written responses to the Committee, ``Historically, our 
courts consistently have denied habeas to those held outside 
the sovereign territory of the United States. Rasul did not 
alter this notion.'' \6\ The specter of courts being flooded by 
international habeas petitions also makes no sense in light of 
recent history. There was no flood of habeas litigation between 
the 2004 Rasul decision validating the extension of habeas 
rights to a territory outside of the United States and the 
passage of the MCA in late-2006, which conclusively took away 
that right. See also Congressional Budget Office Cost Estimate 
(included in this Report) (``[G]iven the number of cases in the 
federal system (the United States was a defendant in 
approximately 4,600 habeas corpus cases in 2006), this increase 
[in habeas petitions following the passage of S. 185] would 
likely be insignificant'' [and] ``would have no significant 
cost over the 2008-2012 period.''). Consistent with Rasul, the 
Committee, in reporting this bill, does not intend to confer 
new habeas jurisdiction for detainees outside of the United 
States and U.S.-controlled territory. As noted above, courts 
have found no jurisdiction for similar claims from detainees 
captured, detained, and held in Iraq.\7\
    \6\ Harvard Law Professor Gerald L. Neuman confirmed in an April 
26, 2007 letter to House Armed Services Committee Chairman Ike Skelton 
that Rasul does not provide a basis for the exercise of habeas 
jurisdiction in Iraq, Afghanistan or elsewhere. Professor Neuman 
concluded, ``Taken either separately or together, the majority and 
concurring opinions in Rasul make clear that habeas corpus jurisdiction 
extended to foreign nationals held outside the sovereign territory of 
the United States because of factors specific to Guantanamo, the 
plenary and exclusive authority exercised there as a result of the 
indefinite continuation of a colonial-era lease from Cuba. Moreover, 
the focus of the Justices was on the nature of the U.S. power over an 
entire territory, not merely on power over a person or building. There 
is no other country in which the United States has been granted 
comparable authority.''
    \7\ The claim that this bill would create new statutory habeas 
rights that would have led to many thousands of petitions during World 
War II is specious. Statutory habeas emerged from the first act passed 
by the nation's first Congress (the Judiciary Act of 1789), was readily 
available during World War II, and did not prompt a burdensome surge of 
petitions. This bill would simply foster a return to the pre-DTA/MCA 
status quo--the legal system that was in place during World War II.
    Finally, the critics' assertion that habeas proceedings in 
federal court will somehow lead to the sharing of classified 
information with terrorists demeans our federal judiciary and 
ignores the procedures established by this body to insure that 
classified information is safeguarded in federal proceedings. 
All federal judges are cleared to view classified information, 
and they have significant discretion in determining what kinds 
of evidence to consider, and what witnesses, if any, to allow, 
in habeas proceedings, which lack many of the protections for 
defendants present in actual trials. Many detainee habeas 
claims could therefore be resolved with no recourse to 
classified documents at all after a determination by a judge 
that such evidence is not needed to make the baseline showing 
that the detainee is properly held. Where classified evidence 
is relevant, courts and judges are well-equipped to deal with 
such evidence without compromising national security. A 
distinguished group of former federal judges noted in a letter 
to Congress last fall that the federal courts have long 
effectively and efficiently handled habeas complaints and cases 
involving classified and top secret information, and that ``the 
habeas statute and rules provide federal judges ample tools for 
controlling and safeguarding the flow of information in 
court.'' Indeed, the United States District Court in 
Washington, D.C. entertained dozens of detainee habeas 
petitions involving classified information between 2002 and 
2005, using well- established procedures for dealing with such 
evidence, including a protective order entered into by all 
parties to the litigation. Federal judges can and will resume 
this practice of efficiently handling habeas petitions while 
safeguarding national security interests when habeas rights are 
    The Committee is mindful that the Habeas Corpus Restoration 
Act of 2007 does not remove language contained in the Detainee 
Treatment Act that sets up a review process for CSRT 
determinations in the U.S. Court of Appeals for the D.C. 
Circuit. The Committee does not view that language as somehow 
restricting the filing of habeas petitions to the U.S. Court of 
Appeals for the D.C. Circuit. It is the intent of this 
Committee that the Habeas Corpus Restoration Act restore 
jurisdiction to issue writs of habeas corpus to all courts that 
would have had such jurisdiction prior to the enactment of the 
DTA. Although the U.S. Court of Appeals for the D.C. Circuit 
retains exclusive jurisdiction over ordinary challenges to the 
final decisions of CSRTs, the federal district courts, and 
other courts with the power to issue writs of habeas corpus, 
will have the authority to consider habeas corpus challenges to 
the legitimacy of the tribunals themselves, to the underlying 
decisions, and to the basis for detention, whether or not a 
detainee has gone through a CSRT.
    Based on this country's fundamental, longstanding 
commitment to habeas review of executive detention, fidelity to 
our constitutional values, and advancement of our strategic 
interests, it is critical that the habeas-stripping language in 
the DTA and MCA be eliminated and that habeas rights for those 
detained by the U.S. Government be fully restored.

          II. History of the Bill and Committee Consideration

                               A. HEARING

    On May 22, 2007, the Judiciary Committee held a hearing on 
``Restoring Habeas Corpus: Protecting American Values and the 
Great Writ,'' which examined the public policy and 
constitutional implications of Congress's decision to eliminate 
statutory habeas rights for those the U.S. Government deems 
``enemy combatants.'' At the hearing, the former Judge Advocate 
General of the U.S. Navy, Rear Admiral Donald J. Guter, and 
William H. Taft IV, former Deputy Secretary of Defense under 
President George H.W. Bush and a former senior State Department 
advisor in the current administration, testified that removing 
the fundamental protection that habeas provides does not make 
us safer against acts of terrorism, but instead leads us away 
from American values and the image we have earned as a nation 
that promotes and lives by the rule of law. Admiral Guter 
testified that habeas corpus is not a special right; but is 
instead what we expect for our citizens and military personnel 
abroad, and what we should extend to all persons. Mr. Taft 
pointed out that civilian court review of military 
determinations greatly enhances the proceedings' legitimacy, 
and that civilian courts are well-positioned to handle--and in 
fact did handle prior to the MCA--habeas challenges by 
    Attorney David B. Rivkin, Jr., testifying against restoring 
detainees' habeas rights, maintained that the procedures 
erected by the DTA and MCA are fair because they provide 
detainees with sufficient judicial process. Two law 
professors--Orin Kerr of George Washington University and 
Mariano-Florentino Cuellar of Stanford University--countered 
this notion, arguing that, in view of recent Supreme Court 
precedent, Congress may have exceeded its constitutional 
authority by stripping away habeas rights from the detainees 
without providing a constitutionally adequate alternative. 
Professor Cuellar also pointed out that the law currently 
permits the creation of a ``massive unaccountable detention 
system'' that could be used against any one of the more than 12 
million U.S. lawful permanent residents, including millions of 
such persons of Latino origin.
    Mr. Rivkin also argued that the CSRTs provide more rights 
to detainees than what the Geneva Conventions require. But Mr. 
Taft pointed out that the Geneva Conventions--and the U.S.'s 
own regulations--require a hearing at or near the time of 
capture to determine whether the person is in fact a prisoner 
of war who can lawfully be detained. A hearing at or near the 
time and place of capture allows for greater accuracy, and 
cannot be replicated later. Mr. Taft pointed out in written 
testimony that, even if CSRTs are more elaborate than hearings 
pursuant to the Geneva Conventions, habeas corpus proceedings' 
determinations are more reliable than CSRT hearings.

                         B. LEGISLATIVE HISTORY

    On September 27, 2006, Senator Specter introduced an 
amendment to the Military Commissions Act, Amendment 5087 to S. 
3930, striking the MCA's habeas provision. Senator Leahy and 
seven other senators co-sponsored the amendment. The amendment 
was briefly debated and then failed on a vote of 48-51 on 
September 28, 2006.
    On December 5, 2006, Senator Specter introduced S. 4081, 
the Habeas Corpus Restoration Act of 2006, with Senator Leahy 
as the original cosponsor. This bill, which is identical to the 
Habeas Corpus Restoration Act of 2007, went slightly further 
than Amendment 5087, reversing the habeas-stripping provision 
in the DTA as well as that in the MCA.
    On January 4, 2007, Senators Specter and Leahy introduced 
the Habeas Corpus Restoration Act of 2007. On February 28, 
2007, Senator Specter submitted a version of the bill, with 
Senator Leahy and four other co-sponsors, as Amendment 286 to 
S. 4, the Improving America's Security Act of 2007. The 
amendment was ruled non-germane by the chair.
    After the Senate Judiciary Committee's hearing on May 22, 
2007, the Habeas Corpus Restoration Act was considered by the 
Committee on June 7, 2007. The Committee voted 11-8 to report 
the bill favorably to the Senate, without amendment.

              III. Section-by-Section Summary of the Bill

Sec. 1. Short title.

    This section provides that the legislation may be cited as 
the ``Habeas Corpus Restoration Act of 2007.''

Sec. 2. Restoration of habeas corpus for those detained by the United 

    This section repeals those provisions of the DTA and the 
MCA that eliminated the jurisdiction of any court to hear or 
consider applications for a writ of habeas corpus and other 
related legal actions filed by aliens who have been determined 
to be enemy combatants or are awaiting such determination. This 
section thus restores habeas corpus rights and similar legal 
rights as they existed prior to the enactment of the DTA in 
2005. This section also allows courts to consider legal 
challenges to military commissions only as provided by the 
Uniform Code of Military Justice or by a habeas corpus 

             IV. Congressional Budget Office Cost Estimate

                                                     June 12, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 185, the Habeas 
Corpus restoration Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Daniel 
                                                   Peter R. Orszag.

S. 185--Habeas Corpus Restoration Act of 2007

    S. 185 would eliminate provisions of current law that limit 
the jurisdiction of federal courts over applications for a writ 
of habeas corpus (a judicial order requiring that a prisoner be 
brought before a court to determine whether that person's 
detention or imprisonment is lawful) or other judicial action 
filed by, or on behalf of, an alien detained by the United 
States as an enemy combatant. CBO expects that allowing those 
detainees greater access to the federal court system would have 
an insignificant effect on overall caseload. As such, CBO 
estimates that implementing S. 185 would have no significant 
cost over the next five years. Enacting this legislation would 
not affect direct spending or revenues.
    In 2006, the Congress enacted the Military Commissions Act 
of 2006 (Public Law 109-366). This act limited the right to 
habeas corpus for detainees of the U.S. military considered to 
be enemy combatants. By restoring this right, CBO expects that 
the number of habeas corpus petitions filed and heard in 
federal court would increase. However, given the number of 
cases in the federal system (the United States was a defendant 
in approximately 4,600 habeas corpus cases in 2006), this 
increase would likely be insignificant. As such, CBO estimates 
that implementing S. 185 would have no significant cost over 
the 2008-2012 period.
    S. 185 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
    The CBO staff contact for this estimate is Daniel Hoople. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S.185.

                             VI. Conclusion

    Passage of the Habeas Corpus Restoration Act of 2007, S. 
185, will restore the basic and essential right to challenge 
arbitrary detention by the Government to non-citizens, 
including the 12 million lawful permanent residents currently 
in this country, who under current law may be held forever with 
no recourse to challenge their detention in court. This 
legislation will contribute to renewed global respect for 
American values and the rule of law.

                   VII. Additional and Minority Views


A. Minority Views of Senators Kyl, Sessions, Graham, Cornyn, and Coburn

    At least 30 detainees who have been released from the 
Guantanamo Bay detention facility have since returned to waging 
war against the United States and its allies. A dozen released 
detainees have been killed in battle by U.S. forces, while 
others have been recaptured. Two released detainees later 
became regional commanders for Taliban forces. One released 
Guantanamo detainee later attacked U.S. and allied soldiers in 
Afghanistan, killing three Afghan soldiers. Another former 
detainee has killed an Afghan judge. One released detainee led 
a terrorist attack on a hotel in Pakistan, and also led a 
kidnapping raid that resulted in the death of a Chinese 
civilian. This former detainee recently told Pakistani 
journalists that he plans to ``fight America and its allies 
until the very end.''\1\
    \1\See generally news stories included in Attachment A to these 
    This bill would create an impossible situation for the 
military with regard to classified evidence, forcing our 
government to either expose highly sensitive intelligence 
sources and methods to Al Qaida or to release committed 
terrorists. It would make it impossible for the United States 
to detain large numbers of enemy war prisoners inside this 
country, as it did during World War II. It would prevent 
effective interrogation of Al Qaida detainees, denying us the 
sole means by which we have learned of a number of terrorists 
plots and terrorist networks in recent years. It ignores the 
existing system for reviewing detentions, which provides an 
adequate process for correcting mistakes while also protecting 
America's interests. And this bill has absolutely no basis in 
American law or in the long history of the writ of habeas 
corpus. All of these reasons contribute to our decision to 
oppose this legislation.
    But the principal reason why we object to S. 185 is 
because, by empowering civilian judges to override the 
military's determination that an alien should be detained as an 
enemy combatant, this legislation inevitably will allow more Al 
Qaida detainees to return to waging war against the United 
States. Federal judges, who have no specialized knowledge of 
foreign battlefields or the nature of enemy terrorist networks, 
do not know better than the military who is an enemy combatant. 
If this bill were signed into law, it is inevitable that more 
civilians would be killed by released Guantanamo detainees. And 
it is very likely that American soldiers would be killed as 
well. This is a price that our nation should not be forced to 


    In habeas litigation, not only the detainee's lawyer, but 
the detainee himself would have a presumptive right to review 
classified evidence that is used in the government's case. 
Under the Classified Information Procedures Act, which governs 
the use of classified evidence in federal court, the government 
can redact or summarize evidence, but it must always provide 
the detainee with an ``adequate substitute'' for that evidence. 
If the government could not provide an adequate substitute to a 
Guantanamo detainee, it would either have to provide the 
evidence itself to the detainee, or forego using that evidence.
    Most, if not all, of the evidence in the United States's 
possession regarding a Guantanamo detainee will be classified. 
The United States would thus repeatedly face the Hobson's 
choice of either compromising highly sensitive information by 
providing ``adequate substitutes''--the repeated use of which 
itself would allow Al Qaida to piece together sensitive 
information--or foregoing the use of what is likely to be the 
most important evidence against a detainee, and thus running 
the risk that the detainee will be released.
    Moreover, much of the government's most sensitive 
information regarding a detainee will never be provided to the 
government's trial attorneys. Under the current detention-
review system, which is very protective of classified evidence, 
U.S. intelligence agencies already balk at providing some non-
exculpatory information to military review panels. Their 
willingness to do so will not be enhanced by this bill. U.S. 
intelligence agencies--as well as the foreign governments that 
provide some of the most valuable intelligence about the Al 
Qaida network--will simply refuse to release that information 
for use in an adversary proceeding run by civilian lawyers in 
which the detainee and his counsel will have a presumptive 
right of access to that evidence. U.S. intelligence agencies 
will not be willing to compromise their intelligence-gathering 
sources and methods, and many foreign governments (particularly 
those of the Middle East) will not be willing to reveal the 
fact that they share intelligence with the United States. If 
forced to choose between exposing such information and allowing 
an Al Qaida member to go free, they will allow the terrorist to 
go free.
    Finally, we know from hard experience that providing 
classified or other sensitive information to Al Qaida members 
is a very bad idea. For example, during the 1995 federal 
prosecution in New York of the so-called blind sheikh, Omar 
Abdel Rahman, prosecutors turned over the names of 200 
unindicted coconspirators to the defense. The prosecutors were 
required to do so under the civilian criminal justice system's 
discovery rules, which require that large amounts of evidence 
be turned over to the defense. The judge warned the defense 
that the information could only be used to prepare for trial 
and not for other purposes. Nevertheless, within 10 days of 
being turned over to the defense, this information found its 
way to Sudan and into the hands of Osama bin Laden. U.S. 
District Judge Michael B. Mukasey, who presided over the case, 
explained ``[t]hat [the] list was in downtown Khartoum within 
10 days * * * [a]nd [bin Ladin] was aware within 10 days * * * 
that the government was on his trail.'' By providing classified 
evidence to the defense in that terrorism case, we had 
effectively informed al Qaida as to which of its agents we had 
    In another case in which terrorists were tried in the 
civilian criminal justice system, testimony about the use of 
cell phones tipped off terrorists as to how the government was 
monitoring terrorist networks. Again according to Judge 
Mukasey, ``there was a piece of innocuous testimony about the 
delivery of a battery for a cell phone.'' This testimony 
alerted terrorists to government surveillance, ``and as a 
result [their] communication network shut down within days and 
intelligence was lost to the government forever, intelligence 
that might have prevented who knows what.''
    This bill repeats the mistakes of the past--of treating the 
war with Al Qaida like a criminal-justice investigation. The 
bill would force the United States to choose between 
compromising information that could be used to prevent future 
terrorist attacks, and letting captured terrorists go free. 
That is not a choice that our nation should be forced to make.


    The negative consequences of this bill would not be 
confined to the present war with Al Qaida. Despite the coyness 
of its repeal of a repeal of litigation rights, the bill 
clearly is intended to confer the right to file habeas and 
prison-conditions lawsuits on enemy war prisoners held in 
Guantanamo Bay. If courts have jurisdiction over claims filed 
by enemy combatants held in Cuba, it would appear unavoidable 
that litigation rights also would attach to enemy combatants 
held in prison camps inside the United States. And if the U.S. 
military's ``jurisdiction and control'' over Guantanamo is 
enough to extend habeas jurisdiction there, it is not apparent 
what principled basis would remain for denying the same rights 
to any prisoner of war held at any U.S. military base or prison 
camp anywhere in the world.
    Consider how this bill's legal regime would have operated 
had it been in place during World War II. The United States 
detained over 2 million German and Japanese war prisoners 
during World War II--including 425,000 who were held in prison 
camps inside the United States. Do the sponsors of this bill 
really believe that the United States should have been forced, 
at the height of war against Germany and Japan, to defend 
against 425,000 habeas petitions filed by enemy war prisoners? 
Do the sponsors of this bill really believe that, while our 
armed forces were engaged in a life-or-death struggle with 
Germany and Japan, our government should have been required to 
litigate against hundreds of thousands of conditions-of-
confinement lawsuits filed by captured enemy soldiers? Should 
our government have been forced to provide each of these 
hundreds of thousands of prisoners of war with translators and 
counsel? With discovery rights? The right to compel witnesses? 
The right to adequate summaries of classified evidence?
    As absurd as these scenarios may seem--and we certainly do 
hope that they seem absurd to you--please ask yourself how such 
scenarios could be avoided if this bill were signed into law 
and the United States were once again forced to fight a major 
war. Even if the bill were construed to extend overseas only to 
Cuba and nowhere else, it would certainly apply to enemy 
combatants detained inside the United States. (Surely the 
United States could not have defeated federal courts' post-
Rasul, pre-DTA jurisdiction over Guantanamo detainees by 
transferring the detainees to the United States.)
    Why should our nation be prevented from holding enemy war 
prisoners inside the United States? In a major war in which our 
soldiers capture hundreds of thousands or even millions of 
enemy soldiers, it is likely that the United States will be the 
safest and most secure place to detain enemy P.O.W.s. Camps 
located near the scene of fighting risk being attacked and 
overrun by the enemy, and third countries willing to 
accommodate prison camps filled with hostile troops are few and 
far between. Why should our military be prevented from holding 
enemy P.O.W.s during wartime in the place where it will be 
safest to do so? Or should the United States really have been 
forced to defend against half a million habeas petitions in 
    We certainly cannot assume that the United States will 
never again be obliged to fight a major war. And in such a 
circumstance, this bill would require our government to either 
hold large numbers of enemy P.O.W.s in locations that may 
jeopardize our own soldiers' safety, or endure a habeas-
litigation tempest of biblical proportions. There is no reason 
to place our nation in such a situation.


    Giving the Al Qaida detainees at Guantanamo habeas-
litigation rights also means giving them the power to compel 
witnesses. In the context of enemy-combatant detention, the 
most relevant witnesses typically will be the soldiers who 
captured the detainees. In other words, our own soldiers or 
those of our allies could be recalled from the battlefield (or 
from civilian life) to be cross-examined by the very enemy 
combatants whom they captured. Stuart Taylor described in a 
recent column the questions that the grant of such procedural 
rights would raise:

          Should a Marine sergeant be pulled out of combat in 
        Afghanistan and flown around the world to testify at a 
        detention hearing about when, where, how, and why he 
        had captured the detainee? What if the Northern 
        Alliance or some other ally made the capture? And 
        should the military be ordered to deliver high-level 
        Qaeda prisoners to be cross-examined by other detainees 
        and their lawyers?

    As the Supreme Court observed in Johnson v. Eisentrager, 
``[i]t would be difficult to devise more effective fettering of 
a field commander than to allow the very enemies he is ordered 
to reduce to submission to call him to account in his own civil 
courts and divert his efforts and attention from the military 
offensive abroad to the legal defensive at home.'' It would 
also be difficult to conceive of a process that would be more 
insulting to our own soldiers. Our troops should not be subject 
to subpoena by Al Qaida.


    Keeping captured terrorists out of the court system is also 
critical to conducting effective interrogation. And it is 
interrogation of captured terrorists that has proved to be the 
most important source of intelligence in the war with Al Qaida.
    Under the former Rasul-based system, shortly after Al Qaida 
and Taliban detainees arrived at Guantanamo Bay, they were told 
that they had the right to challenge their detention in federal 
court and that they had the right to a lawyer. Detainees 
routinely exercised both rights. Lawyers inevitably told their 
clients not to talk to the military. And mere notice of the 
availability of court proceedings gave detainees hope that they 
could win release by fighting their detention rather than by 
cooperating with their captors.
    Navy Vice-Admiral Lowell Jacoby addressed the effect of 
court proceedings on interrogation in a declaration attached to 
the United States's brief in the Padilla litigation in the 
Southern District of New York. Vice-Admiral Jacoby at the time 
was the Director of the Defense Intelligence Agency. He noted 
in the Declaration that:

          DIA's approach to interrogation is largely dependent 
        upon creating an atmosphere of dependency and trust 
        between the subject and the interrogator. Developing 
        the kind of relationship of trust and dependency 
        necessary for effective interrogations is a process 
        that can take a significant amount of time. There are 
        numerous examples of situations where interrogators 
        have been unable to obtain valuable intelligence from a 
        subject until months, or, even years, after the 
        interrogation process began.
          Anything that threatens the perceived dependency and 
        trust between the subject and interrogator directly 
        threatens the value of interrogation as an intelligence 
        gathering tool. Even seemingly minor interruptions can 
        have profound psychological impacts on the delicate 
        subject-interrogator relationship. Any insertion of 
        counsel into the subject-interrogator relationship, for 
        example--even if only for a limited duration or for a 
        specific purpose--can undo months of work and may 
        permanently shut down the interrogation process.

Specifically with regard to Jose Padilla, Vice Admiral Jacoby 
also noted in his Declaration that:

          Providing [Padilla] access to counsel now would 
        create expectations by Padilla that his ultimate 
        release may be obtained through an adversarial civil 
        litigation process. This would break--probably 
        irreparably--the sense of dependency and trust that the 
        interrogators are attempting to create.

    On September 6 of last year, when the President announced 
the transfer of 14 high-value terrorism detainees to 
Guantanamo, he also described information that the United 
States had obtained by interrogating these detainees.\2\ Abu 
Zubaydah was captured by U.S. forces several months after the 
September 11 attacks. Under interrogation, he revealed that 
Khalid Sheikh Mohammed was the principal organizer of the 
September 11 attacks. Zubaydah also described a terrorist 
attack that Al Qaida operatives were planning to launch inside 
this country--an attack of which the United States had no 
previous knowledge. Zubaydah described the operatives involved 
in this attack and where they were located. This information 
allowed the United States to capture these operatives--one 
while he was traveling to the United States. Zubaydah also 
revealed the identity of another September 11 plotter, Ramzi 
bin al Shibh, and provided information that led to his capture. 
U.S. forces then interrogated bin al Shibh. Information that 
both he and Zubaydah provided helped lead to the capture of 
Khalid Sheikh Mohammed.
    \2\ An extended excerpt of the President's remarks is included in 
Attachment B to these views.
    Under interrogation, Khalid Sheikh Mohammed provided 
information that helped stop another planned terrorist attack 
on the United States. K.S.M. also provided information that led 
to the capture of a terrorist named Zubair. And K.S.M.'s 
interrogation also led to the identification and capture of an 
entire 17-member Jemaah Islamiya terrorist cell in Southeast 
    Information obtained from interrogation of terrorists 
detained by the United States also helped to stop a planned 
truck-bomb attack on U.S. troops in Djibouti. Interrogation 
helped stop a planned car-bomb attack on the U.S. embassy in 
Pakistan. And it helped stop a plot to hijack passengers planes 
and crash them into Heathrow airport in London. The President 
stated in his September 6 remarks that ``[i]nformation from 
terrorists in CIA custody has played a role in the capture or 
questioning of nearly every senior al Qaida member or associate 
detained by the U.S. and its allies.'' He concluded by noting 
that Al Qaida members subjected to interrogation by U.S. 

        have painted a picture of al Qaeda's structure and 
        financing, and communications and logistics. They 
        identified al Qaeda's travel routes and safe havens, 
        and explained how al Qaeda's senior leadership 
        communicates with its operatives in places like Iraq. 
        They provided information that * * * has allowed us to 
        make sense of documents and computer records that we 
        have seized in terrorist raids. They've identified 
        voices in recordings of intercepted calls, and helped 
        us understand the meaning of potentially critical 
        terrorist communications.
          [Were it not for information obtained through 
        interrogation], our intelligence community believes 
        that al Qaeda and its allies would have succeeded in 
        launching another attack against the American homeland. 
        By giving us information about terrorist plans we could 
        not get anywhere else, this [interrogation] program has 
        saved innocent lives.

    If this bill is enacted, and Al Qaida terrorists are given 
the right to challenge their detention in federal court, we 
will never obtain some of the information that we otherwise 
would have obtained through interrogation. Once a terrorist 
meets with a lawyer and is told that he will be allowed to 
continue his war against the United States through our courts, 
he will not develop the relationship of trust and dependency 
upon his interrogator that makes ordinary interrogation 
techniques effective. Under this bill's legal regime, it is 
inevitable that invaluable information would be lost. It is 
inevitable that senior Al Qaida operatives would not be 
captured, it is inevitable that Al Qaida networks and cells 
would not be broken up, and it is inevitable that some planned 
terrorist attacks would not be prevented. These consequences 
alone are reason to reject this bill.


    The United States already provides Guantanamo detainees 
with procedures that are more than adequate to review their 
detentions and correct any mistakes. The U.S. military reviews 
a detainee's status in the theater where he is captured, it 
reviews his case again at Guantanamo in a hearing before a 
three-officer Combatant Status Review Tribunal (CSRT), and it 
conducts another hearing every year thereafter to consider new 
evidence and whether the detainee still poses a threat. And in 
the 2005 Detainee Treatment Act, Congress authorized the D.C. 
Circuit and Supreme Court to decide whether a detainee's CSRT 
hearing was properly conducted and whether the military's 
procedures are constitutional. Such access to domestic courts 
is not provided to enemy combatants by any other nation and has 
no precedent in our own history.
    The procedures that the United States affords to the Al 
Qaida detainees at Guantanamo also exceed the rights than 
Article V of the Geneva Conventions guarantees to lawful enemy 
war prisoners. Consider several features of the CSRT and DTA 
system that exceed Geneva Convention protections:
     In a CSRT, a commissioned officer is appointed to 
serve as a personal representative ``to assist the detainee in 
reviewing all relevant unclassified information, in preparing 
and presenting information, and in questioning witnesses.'' 
This personal representative must search for exculpatory 
evidence that may ``suggest that the detainee should not be 
designated as an enemy combatant.'' Article V of the Geneva 
Conventions does not provide a lawful enemy combatant with any 
such representative or assistant.
     In the CSRT system, a detainee is entitled to 
receive a pre-hearing summary of evidence that will be used 
against him. Article V of the Geneva Conventions does not 
provide a war prisoner with any summary of the evidence against 
     A CSRT is subject to several levels of review. It 
is subject to review by a judge advocate officer, who acts as 
the Legal Advisor to the tribunal process. The Legal Advisor 
reviews each CSRT decision for legal sufficiency. Each 
detention is also reviewed every year by an Administrative 
Review Board (ARB), which asks whether the detainee continues 
to pose a threat to the United States. The U.S. military has 
also recently adopted procedures pursuant to which it will 
reconvene a CSRT for a prisoner if the military discovers 
substantial new evidence that the detainee is not an enemy 
combatant. And finally, each detainee also has the right to 
appeal the decision of the CSRT to the U.S. Court of Appeals 
for the District of Columbia, which is charged with evaluating 
whether the tribunal complied with the law and whether those 
rules and procedures are constitutional. Finally, the detainee 
may seek additional review by filing a writ of certiorari to 
the U.S. Supreme Court. By contrast, the Geneva Conventions 
provide for no review at all of the decisions of an Article V 
tribunal--there is no review by a legal representative, no 
administrative review, no review even if new evidence is 
uncovered, and absolutely no judicial review whatsoever. None 
of these rights is provided to lawful enemy war prisoners under 
the Geneva Conventions. But all of them are provided by the 
United States to the detainees held at Guantanamo.
    Some critics of the Guantanamo detentions have argued that 
CSRTs are inferior to Geneva Convention Article V hearings. The 
argument that is made is that Article V hearings are conducted 
in the immediate time and place of the capture, and that 
therefore the detainee is supposedly able to present fresh 
evidence. This mischaracterization of Article V hearings was 
rebutted by Mr. David Rivkin at this committee's May 14 hearing 
on detainees. Mr. Rivkin noted that Article V hearings 
typically do not take place until days or weeks after the 
capture. He also noted that Article V hearings do not provide 
the detainee with anyone who is assigned to assist him, and 
they do not require that all information in the government's 
possession pertaining to the detainee be assembled and 
summarized for the detainee.
    Mr. Rivkin further elaborated on the differences between 
Article V hearings and CSRTs in his answer to a written 
question that Senator Kyl submitted to him following the 
hearing.\3\ He stated:
    \3\ Mr. Rivkin's full answers to Senator Kyl's questions are 
included as Attachment C to these views. These answers include a chart 
that usefully captures all of the differences between CSRTs and Article 
V hearings.

          Article V of the Third Geneva Convention of 12 August 
        1949 Relative to the Treatment of Prisoners of War 
        reads as follows:
          ``The present Convention shall apply to the persons 
        referred to in Article 4 from the time they fall into 
        the power of the enemy and until their final release 
        and repatriation.
          ``Should any doubt arise as to whether persons, 
        having committed a belligerent act and having fallen 
        into the hands of the enemy, belong to any of the 
        categories enumerated in Article 4, such persons shall 
        enjoy the protection of the present Convention until 
        such time as their status has been determined by a 
        competent tribunal.''
          The treaty offers no definition of a ``competent 
        tribunal,'' nor does it provide for the assistance of 
        counsel or any other due process rights in particular. 
        According to the International Committee of the Red 
        Cross's 1960 commentary on this provision, it was 
        ``based on the view that decisions which might have the 
        gravest consequences should not be left to a single 
        person, who might often be of subordinate rank.''
          It is my understanding that this provision has been 
        variously interpreted by the states parties. However, 
        the United States has outlined its Article V procedures 
        as part of Army Regulation 190-8 (Oct. 1, 1997) (``AR 
        190-8''). Under section 1-6 of that provision 
        ``Tribunals,'' detainees are not entitled to the 
        assistance of counsel, or any other type of advisor, 
        the Government is not required to assemble and present 
        all of the information it may have on a particular 
        individual, and no particular timeframe is established 
        for the hearing.

    At the September 25, 2006, hearing before the Judiciary 
Committee on the Military Commissions Act, committee witness 
Brad Berenson testified that ``[n]o nation on the face of the 
earth in any previous conflict has given people they have 
captured anything like [the procedures provided by CSRTs and 
the DTA], and none does so today.'' Similarly, committee 
witness David Rivkin testified at the same hearing that ``[t]he 
level of due process that these detainees are getting [under 
CSRTs and the DTA] far exceeds the level of due process 
accorded to any combatants, captured combatants, lawful or 
unlawful, in any war in human history.'' Mr. Rivkin added: ``We 
are giving [alien enemy combatants] a lot more * * * then they 
are legally entitled to under either international [law] or the 
law in the U.S. Constitution.''
    The first round of CSRTs that were conducted for the 
detainees at Guantanamo Bay required 6 months to complete. Over 
200 Defense Department employees worked to track down all 
available evidence about the detainees from military files and 
from U.S. intelligence agencies, and to compile a record for 
the tribunals to review. All exculpatory evidence in the 
possession of any element of the United States Government was 
included in that record. The tribunals themselves were 
conducted by experienced military officers. And the Defense 
Department conducts an additional hearing every year to 
reevaluate whether the detainee still poses a danger and should 
be held.
    Those critics of the Guantanamo detentions who casually 
condemn the CSRT and DTA system--often the same critics who 
hold up the Geneva Conventions as their personal gold 
standard--are ignorant of the nature of the CSRTs, of the 
Geneva Conventions, and of the actual practices of other 
nations. The CSRTs exceed the standards of the Geneva 
Conventions and they exceed the process provided by any other 
nation to captured war prisoners. The CSRTs provide a thorough 
review of each detainee's case that is more than adequate to 
identify a mistaken detention. The fact that the CSRTs do so 
without compromising classified evidence or preventing 
effective interrogation of Al Qaida may carry no weight in 
their favor with Guantanamo's foreign critics, but it should 
carry heavy weight with those institutions charged with 
protecting the interests of the American people.


    The United States Constitution does not require that the 
writ of habeas corpus be extended to alien enemy combatants. 
The writ of habeas corpus can trace its origins back to the 
Magna Carta of the 13th Century, and, in the nearly 800 years 
of the writ's existence, no English or American court has ever 
granted habeas relief to alien enemy soldiers captured during 
    Indeed, over half a century ago, the U.S. Supreme Court in 
Johnson v. Eisentrager rejected the notion that the 
Constitution extends habeas rights to enemy war prisoners. As 
the Court held, ``No decision of this Court supports such a 
view. None of the learned commentators on our Constitution has 
ever hinted at it. The practice of every modern government is 
opposed to it.''
    This bill, S. 185, is titled the ``Habeas Corpus 
Restoration Act.'' It purports to ``restore'' habeas rights to 
the enemy combatants held at Guantanamo. Yet prior to the Rasul 
decision in June 2004, no court had ever held that alien enemy 
soldiers are entitled to seek the writ of habeas corpus. There 
is no habeas right to ``restore'' to alien enemy combatants.
    In written questions to following last month's hearing, 
Senator Kyl asked witnesses who testified in favor of this bill 
if they could cite any case prior to Rasul v. Bush in which any 
common law court, going back over the entire 800-year history 
of the writ of habeas corpus, had ever granted relief to an 
alien enemy combatant on a habeas corpus petition. No one was 
able to cite a single case that even colorably supports the 
proposition that enemy war prisoners are entitled to seek the 
writ of habeas corpus.
    The majority, as well as Professor Mariano-Florentino 
Cuellar, cite Ex parte Quirin, 317 U.S. 1 (1942), and 
Application of Yamashita, 327 U.S. 1 (1946), as precedent for 
extending habeas rights to enemy combatants. Each of these 
cases only allowed war prisoners to challenge their trial by 
military commission. It did not allow them to use habeas or any 
other writ to challenge their detention. Quirin involved a 
habeas petition filed on behalf of six German saboteurs who 
were captured after arriving on the U.S. East Coast by 
submarine. The Supreme Court entertained a challenge to the 
saboteurs' trial by military commission. The court upheld the 
convictions and death sentences and the petitioners were all 
executed. Although Quirin did allow alien enemy combatants to 
file habeas petitions, these petitions only challenged military 
commissions, not detention. Yamashita is the same. In that 
case, the Supreme Court entertained a habeas application by a 
Japanese General who had been convicted of war crimes by a 
military commission and sentenced to death. The Supreme Court 
found that the President had the power to convene such 
commissions, and petitioner was executed. Again, the case did 
not involve a challenge to detention.
    The majority, Professor Cuellar, and Admiral Donald Guter 
all cite as precedent for extending habeas to enemy combatants 
the 18th and early 19th century cases of Rex v. Shiever, 97 
Eng. Rep. 551 (K.B. 1759); The Case of Three Spanish Sailors, 
Eng. Rep. 1010 (K.B. 1779); and Lockington v. Smith, 15 F. Cas. 
758 (No. 8,448) (CCD Pa. 1817). The notion that these cases 
establish such a precedent is adequately analyzed and dismissed 
in the D.C. Circuit's opinion in Boumediene v. Bush, 476 F.3d 
981, 988-89 (D.C. Cir. 2007), and the U.S. District Court's 
opinion in Hamdan v. Rumsfeld, 464 F.Supp.2d 9, 16-17 & nn.10-
11 (D.D.C. 2006). Anyone seeking an authoritative analysis of 
these three cases should consult those two opinions. The most 
compelling and thorough analysis of these cases, however, 
appears in the Criminal Justice Legal Foundation's district 
court amicus brief in the Hamdan case. The following passages, 
with most citations omitted, are taken from pages 20-24 of that 

    A number of early cases have been cited for the proposition 
that the common law writ extended to aliens, but on closer 
examination each of these cases either extends habeas relief to 
a person who is ``part of the population,'' denies relief 
without distinguishing the merits from the jurisdiction, or 
supports the argument that aliens captured as enemies by the 
military and otherwise unconnected with the country are not 
eligible for habeas relief.

           *       *       *       *       *       *       *

    Petitioner cites Lockington v. Smith as an example of early 
American courts hearing ``enemy aliens' habeas petitions,'' but 
this is neither a habeas case nor a case of an enemy captured 
in hostilities. Lockington was a British merchant living and 
doing business in the United States when the War of 1812 was 
declared. In obedience to a presidential order, he reported 
himself and was confined until he agreed to parole terms, after 
unsuccessfully seeking habeas relief. The case cited is a suit 
for damages, decided well after the end of the war. In any 
event, Lockington was not a battlefield captive, but a ``part 
of the population'' as that term was later used in The Japanese 
Immigrant Case.

           *       *       *       *       *       *       *

    The Case of the Three Spanish Sailors is a case of the 
second type. The three sailors were undisputedly captured as 
enemy aliens and prisoners of war in the first instance, but 
they claimed they had ceased to be such by their voluntary 
service on an English merchant vessel. The holding was that on 
their own showing, they were enemy aliens and prisoners of war 
and as such the courts ``can give them no redress.'' The court 
went on to say that if their allegations were true ``it is 
probable they may find some relief from the Board of 
    Even in the modern era, the line between jurisdiction and 
merits is sometimes obscure. See Steel Co. v. Citizens for 
Better Environment, 523 U. S. 83, 112-113 (1998) (Stevens, J., 
concurring in the judgment). It may be clear that a party is 
not entitled to relief without being clear whether the reason 
is jurisdictional or substantive. To conclude on the basis of 
this sketchy report that the court actually grappled with and 
decided a subtle distinction is quite a stretch. The court 
simply decided on the pleadings that the petitioners could get 
no relief from the judiciary and had to ask the executive.
    King v. Schiever, 97 Eng. Rep. 551 (K. B. 1759) is arguably 
a case of the second type in one report, but it appears to be a 
case of the third type in another. Schiever was a Swedish 
subject who claimed he had been forced into service on a French 
privateer before that ship was captured by the English and he 
was made a prisoner of war. The report of this case simply 
states that, ``the Court thought this man, upon his own 
showing, clearly a prisoner of war, and lawfully detained as 
such. Therefore they Denied the motion.'' Id., at 552 (footnote 
omitted). This summary description is consistent with the Three 
Spanish Sailors' case. Another report of the same case, 
Schiever's Case, 96 Eng. Rep. 1249 (K. B. 1759) gives a more 
extended report of the holding.
    ``He is the King's prisoner of war, and we have nothing to 
do in that case, nor can we grant an habeas corpus to remove 
prisoners of war. His being a native of the nation not at war 
does not alter the case, for by that rule many French prisoners 
might be set at liberty, as they have regiments of many other 
kingdoms in their service, as Germans, Italians, &c.
    ``But, if the case be as this man represents it, he will be 
discharged upon application to a Secretary of State.'' Id., at 
    In other words, the court did not adjudicate whether his 
detention as a prisoner of war was proper and expressed an 
opinion that it was not if his allegations were true, yet the 
court washed its hands of the case anyway. This case 
illustrates that while some aliens could seek habeas corpus in 
English courts, an alien captured during hostilities and held 
as a prisoner of war could not. Even where he alleged he was 
being wrongfully held and should not have been a prisoner of 
war, his remedy was with the executive branch and not with the 
    An English commentator cites Three Spanish Sailors and 
Schiever as examples of the common assertion that ``a prisoner 
of war has no standing to apply for a writ of habeas corpus.'' 
R. Sharpe, The Law of Habeas Corpus 112 (1976). Sharpe goes on 
to criticize this assertion and maintain that it is a question 
of substance and not standing, but he cites only modern 
authority for that proposition. See id., at 113. Whether Sharpe 
is correct about modern English law is irrelevant to the 
present case. The question is whether the adjudication of 
rights of aliens captured in hostilities and held as prisoners 
by the military was within the ``Privilege of the Writ of 
Habeas Corpus'' as it was understood in 1789. In the cases from 
that era, every such applicant was turned away without judicial 
relief, even when they may have been wrongfully held.

    The question has now been extensively litigated at all 
levels of the federal courts over the last several years. Yet 
proponents of extending habeas litigation rights to alien enemy 
war prisoners are unable to identify one case out of 800 years 
of common law history in which an enemy soldier was ever 
allowed to use habeas to challenge his detention. This absence 
speaks volumes and should be conclusive of the constitutional 
question of whether habeas rights extend to enemy war 


    During the debate on the Military Commissions Act, Senator 
Specter quoted a passage from Justice O'Connor's plurality 
opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), that he 
believes establishes that alien combatants are entitled to 
habeas rights if they are held within the United States. That 
statement, towards the beginning of section III.A of the 
court's opinion, is a part of a statement of general principles 
noting that ``[a]ll agree'' that, absent suspension, habeas 
corpus remains available to every ``individual'' within the 
United States. Senator Specter reads this statement, unadorned 
by any qualification as to whether the individual in question 
is a U.S. citizen, an illegal immigrant, or an alien enemy 
combatant, to stand for the proposition that even the latter 
has a constitutional right to habeas corpus when held within 
the United States.
    We would suggest that this single, ambiguous statement 
cannot be construed to bear that much weight, for three 
    1. Elsewhere in its opinion, the Hamdi plurality repeatedly 
makes clear that the only issue it is actually considering is 
whether a U.S. citizen has habeas and due process rights as an 
enemy combatant. The plurality's emphasis on citizenship is 
repeatedly made clear throughout Justice O'Connor's opinion. 
For example:
      On page 509, in its first sentence, the plurality 
opinion says: ``we are called upon to consider the legality of 
the detention of a United States citizen on United States soil 
as an `enemy combatant' and to address the process that is 
constitutionally owed to one who seeks to challenge his 
detention as such.''
      On page 516, the plurality again notes: ``The 
threshold question before us is whether the Executive has the 
authority to detain citizens who qualify as `enemy 
      On page 524, the plurality once again emphasizes: 
``there remains the question of what process is 
constitutionally due to a citizen who disputes his enemy-
combatant status.''
      On page 531: ``We reaffirm today the fundamental 
nature of a citizen's right to be free from involuntary 
confinement by his own government without due process of law.''
      On page 532: ``neither the process proposed by 
the Government nor the process apparently envisioned by the 
District Court below strikes the proper constitutional balance 
when a United States citizen is detained in the United States 
as an enemy combatant.''
      On page 533: ``We therefore hold that a citizen-
detainee seeking to challenge his classification as an enemy 
combatant must receive notice of the factual basis for his 
classification, and a fair opportunity to rebut the 
Government's factual assertion before a neutral 
      On page 535: military needs ``are not so weighty 
as to trump a citizen's core rights to challenge meaningfully 
the Government's case and to be heard by an impartial 
      And on page 536-37: ``it would turn our system of 
checks and balances on its head to suggest that a citizen could 
not make his way to court with a challenge to the factual basis 
for his detention by his government.''
(Emphasis added in all quotations.) Whatever loose language may 
have been used in the plurality's statement of general 
principles at the outset of its analysis, it is apparent that 
the only issue that the plurality actually studied and intended 
to address is the constitutional rights of the U.S. citizen.
    2. Another aspect of the case that augurs against 
interpreting the Hamdi plurality opinion to extend 
constitutional habeas rights to alien enemy combatants whenever 
they are held inside the United States is that, elsewhere in 
its opinion, the plurality is quite critical of a 
geographically based approach to enemy combatants' rights. At 
page 524, the plurality responds to a passage in Justice 
Scalia's dissent that it reads as arguing that the government's 
ability to hold someone as an enemy combatant turns on whether 
they are held inside or outside of the United States. The 
plurality opinion states that making the ability to hold 
someone as an enemy combatant turn on whether they are held in 
or out of the United States:

creates a perverse incentive. Military authorities faced with 
the stark choice of submitting to the full-blown criminal 
process or releasing a suspected enemy combatant captured on 
the battlefield will simply keep citizen-detainees abroad. 
Indeed, the Government transferred Hamdi from Guantanamo Bay to 
the United States naval brig only after it learned that he 
might be an American citizen. It is not at all clear why that 
should make a determinative constitutional difference.

    It is doubtful that this same plurality--one that sees 
``perverse'' effects in rules that would encourage the 
government to hold enemy combatants outside of the United 
States in order to avoid burdensome litigation--also intended 
to rule that full constitutional habeas rights attach to alien 
enemy combatants as soon as they enter U.S. airspace.
    3. Finally, Senator Specter's argument that the ambiguous 
reference to ``individuals'' on page 525 of Hamdi extends 
habeas rights to foreign enemy combatants held inside U.S. 
territory is inconsistent with the common sense interpretive 
rule that one does not ``hide elephants in mouseholes.'' 
Whitman v. American Trucking Association, 531 U.S. 457, 468 
(2001). Although this rule of construction typically is applied 
by the court to our enactments, we see no reason why its logic 
would not operate when applied in reverse, by members of this 
body to the court's opinions.
    For the Hamdi court to have extended constitutional habeas 
rights to alien enemy soldiers held inside the United States 
would have been a major decision of enormous consequence to our 
nation's warmaking ability. As the Hamdi plurality itself 
noted, ``detention to prevent a combatant's return to the 
battlefield is a fundamental incident of waging war.'' Such an 
extension, had Justice O'Connor intended it, certainly would 
not be an action on which she would have believed that ``all 


    Earlier this year, Senator Specter criticized the U.S. 
Court of Appeals for the District of Columbia Circuit's 
decision in Boumediene v. Bush. That decision upheld the 
recently enacted Military Commission Act's bar on lawsuits 
brought by enemy combatants held at Guantanamo Bay. Senator 
Specter argued that the Guantanamo detainees have a 
constitutional right to bring these lawsuits, and he predicted 
that Boumediene will be overruled. He based his argument 
largely on the Supreme Court's 2004 decision in Rasul v. Bush. 
Senator Specter argued that Rasul's ruling that habeas extends 
to Guantanamo Bay was a constitutional ruling. He based his 
argument on Rasul's discussion of the 18th century common law 
of habeas corpus. Senator Specter also argued that Justice 
Scalia's opinion in Rasul acknowledged that Rasul overruled 
Johnson v. Eisentrager, the landmark decision establishing that 
captured enemy combatants do not enjoy the privilege of 
    Of course, with 5 votes, the Rasul Court could have grafted 
a habeas right for alien enemy combatants onto the 
Constitution. We believe that to do so would have been deeply 
irresponsible, and we believe that this is clearly not what the 
court did in Rasul.
    In support of his interpretation of Rasul, Senator Specter 
argued that Justice Scalia's opinion in Rasul noted that the 
Rasul majority overruled Eisentrager, which had denied 
litigation rights to alien enemy combatants. In response, we 
would first note that Justice Scalia's opinion in Rasul was a 
dissenting opinion. As any lawyer knows, a dissenting opinion's 
characterization of a court's holding is hardly authoritative. 
An argument about what a case means that is based primarily on 
the dissent is inherently a weak argument.
    Moreover, we do not think that Justice Scalia's dissenting 
opinion in Rasul is in any way inconsistent with the notion 
that Eisentrager's constitutional holding remains good law, and 
that the constitutional right of habeas corpus does not extend 
to alien enemy soldiers. Justice Scalia makes clear in his 
dissent that he is accusing the majority only of overruling 
Eisentrager's statutory holding, not its constitutional 
    Justice Scalia begins, at page 493 of his dissent, by 
quoting the following passage from Eisentrager: ``Nothing in 
the text of the Constitution extends such a right''--a right of 
habeas corpus for war prisoners held overseas--``nor does 
anything in our statutes.'' It is Justice Scalia who italicized 
the absence of a statutory right when quoting this passage. He 
then went on to note:

    Eisentrager's directly-on-point statutory holding makes it 
exceedingly difficult for the Court to reach the result it 
desires today. To do so neatly and cleanly, it must either 
argue that our decision in Braden overruled Eisentrager, or 
admit that it is overruling Eisentrager.''
    In this passage, Justice Scalia does accuse the Rasul 
majority of overruling Eisentrager, but he also makes clear 
that he only accuses it of overruling Eisentrager's statutory 
holding, not its constitutional holding.
    But the argument that Rasul v. Bush's holding was only 
statutory, and did not extend constitutional rights to enemy 
combatants, is supported by more than just Justice Scalia's 
dissent. The majority opinion itself repeatedly and clearly 
indicates that the holding in that case is only statutory, not 
based on the Constitution. At page 475 of the opinion, for 
example, the majority clearly states that ``[t]he question now 
before us is whether the habeas statute confers a right to 
judicial review'' of the detention of the detainees at 
Guantanamo Bay. (Emphasis added.) Thus the court was careful to 
make clear that it was the habeas statute that it was 
interpreting, not the Constitution.
    On the next page, when distinguishing Eisentrager, the 
Rasul majority opinion states that ``Eisentgrager made quite 
clear that [its analysis was] relevant only to the question of 
the prisoner's constitutional entitlement to habeas corpus. The 
court had far less to say on the question of the petitioner's 
statutory right to habeas corpus.'' This italicized emphasis is 
in Justice Stevens's opinion.
    Finally, at page 478, when explaining how it would 
distinguish the holding in Eisentrager, the majority stated: 
``Because subsequent decisions of this Court have filled the 
statutory gap that had occasioned Eisentrager's resort to 
``fundamentals,'' persons detained outside the territorial 
jurisdiction of any federal district court no longer need rely 
on the Constitution as the source of their right to federal 
habeas review.''
    This statement could not be clearer that Rasul only 
addressed the petitioners' statutory right to habeas, not any 
constitutional right. The court stated that statutory changes--
or rather, changes in the interpretation of statutes--made it 
unnecessary to reach any constitutional questions in Rasul.
    Senator Specter's other main argument for his 
interpretation of Rasul is that the majority opinion's 
discussion of 18th century common law is a constitutionally 
binding interpretation of the scope of the writ. Our response 
is that this may be so, but it is not relevant to the 
constitutionality of the Military Commissions Act. The 
discussion in Rasul that Senator Specter cites is about how far 
the writ applies overseas. It is not about whether the writ 
ever applies to alien enemy soldiers.
    Rasul's discussion of the common law of habeas corpus 
appears in Part IV of the majority decision--after the court 
had already decided that the statutory right extended to the 
detainees at Guantanamo. This part of Rasul is devoted to 
responding to the argument that the presumption against 
extraterritorial application of legislation requires that the 
habeas statute be construed not to extend to Guantanamo Bay. 
Justice Stevens stated that ``[w]hatever traction the 
presumption against extraterritoriality might have in other 
contexts, it certainly has no application to the operation of 
the habeas statute with respect to persons detained within `the 
territorial jurisdiction' of the United States.'' Justice 
Stevens then asserted that at common law the writ applied to 
aliens held overseas, and he went on to describe common law 
cases that he characterized as extending the writ to aliens 
held at places outside of the ``sovereign territory of the 
    Whatever the merits of Justice Stevens's historical 
analysis, it is used in Rasul only to rebut the presumption 
against extraterritoriality. It is used to argue that the writ 
presumptively does extend overseas. But this part of Rasul does 
not address the central question raised by the Military 
Commissions Act: whether alien enemy soldiers, wherever they 
are held, are constitutionally entitled to seek the writ of 
habeas corpus. Regardless of whether the writ applies to other 
aliens held at U.S. facilities overseas, the writ does not--it 
has never been extended--to alien enemy combatants detained 
during wartime, whether those soldiers are held inside or 
outside of the United States.
    None of the common law decisions that Justice Stevens 
discusses in Part IV of his opinion granted habeas relief to an 
alien enemy war prisoner. That is because, as we noted earlier, 
in the history of habeas corpus, prior to Rasul, alien enemy 
war prisoners have never been found to be entitled to the writ. 
Rasul's historical analysis can be cited for the proposition 
that the writ extends extraterritorially, even to aliens. But 
its discussion does not address the question that we are 
concerned with here today: whether the writ extends to alien 
enemy soldiers.
    Indeed, at one point in its discussion, the Rasul opinion 
does tend to confirm that the common-law habeas right does not 
extend to enemy soldiers. In its exploration of the scope 
``historical core'' of the common-law writ, Rasul quotes a 
passage from the Supreme Court's prior decision in Shaughnessy 
v. United States, which noted that executive imprisonment has 
long been considered oppressive and lawless, and that no man 
should be detained except under ``the law of the land.'' As 
Rasul notes, this commentary on the historical scope of the 
writ came from Justice Jackson.
    Just three years before he wrote the passage in Shaugnessy 
that is quoted in Rasul, here is something else that Justice 
Jackson said about the scope of the writ. Here is what he said 
in Johnson v. Eisentrager about the notion that the writ 
extends to alien enemy war prisoners: ``No decision of this 
Court supports such a view. None of the learned commentators on 
our Constitution has ever hinted at it. The practice of every 
modern government is opposed to it.''
    Again, this passage is from the same source that the Rasul 
majority quotes to establish the historical scope of the writ. 
The writ upholds and enforces the law of the land, but the law 
of the land does not extend litigation privileges to aliens 
with whom we are at war.
    Allow us to cite another, more recent source in support of 
our argument: Mr. Benjamin Wittes. Mr. Wittes writes op-eds for 
the Washington Post, is a scholar at the Brookings Institution, 
and generally has unimpeachable liberal credentials. Yet this 
is what he had to say, in a recent column in The New Republic, 
about the D.C. Circuit's decision in Boumediene upholding the 
Military Commissions Act:

    The [Boumediene] court held both that Congress--not the 
executive branch--stripped the courts of jurisdiction to hear 
lawsuits from detainees at Guantanamo, and that it had the 
constitutional power to do so. As a legal matter, the decision 
is correct. And, if and when the Supreme Court reverses it, as 
it may do, the decision won't be any less correct. The reversal 
will signify only that a majority of justices no longer wishes 
to honor the precedents that still bind the lower courts.
    As the case heads towards the Supremes, you'll no doubt 
hear a lot about suspension of the Great Writ of habeas 
corpus--the ancient device by which courts evaluate the 
legality of detentions. And you'll also hear a lot about 
Guantanamo as a legal ``black hole.'' It's all a lot of rot, 
really, albeit rot a majority of the justices might well adopt.

           *       *       *       *       *       *       *

    Until the advent of the war on terrorism, nobody seriously 
believed that the federal courts would entertain challenges by 
aliens who had never set foot in this country to overseas 
military detentions--or, at least, nobody thought so who had 
read the Supreme Court's emphatic pronouncement on the subject. 
``We are cited to no instance where a court, in this or any 
other country where the writ is known, has issued it on behalf 
of an alien enemy who, at no relevant time and in no stage of 
his captivity, has been within its territorial jurisdiction,'' 
the Court wrote in 1950. ``Nothing in the text of the 
Constitution extends such a right, nor does anything in our 

           *       *       *       *       *       *       *

    Notwithstanding the passionate dissent in the D.C. Circuit 
case, the notion that [the Military Commissions Act] somehow 
suspends the writ--a step the Constitution forbids except in 
cases of rebellion or invasion--is not credible. As a legal 
matter, it merely restores a status quo that had been 
relatively uncontroversial for the five decades preceding the 
September 11 attacks--that federal courts don't supervise the 
overseas detentions of prisoners of war or unlawful combatants. 
The demand that they do so now is not one the Constitution 


    It would be highly impractical and dangerous to American 
interests to extend habeas rights to enemy war prisoners. It is 
also unnecessary in light of the process and rights already 
afforded to the Guantanamo detainees by the Military 
Commissions Acts, the Detainee Treatment Act, Combat Status 
Review Tribunals, and in D.C. Circuit Court and Supreme Court 
review. CSRT hearings and limited DTA review strike the right 
balance between the need for process and the exigencies of 
fighting a war with Al Qaida. The process that currently exists 
ensures that the persons being held are enemy combatants who 
pose a threat to the United States; it is consistent with the 
realities of warfare, and it does not undermine the war against 
Al Qaida.
    We would ask those who support this bill to consider some 
of the questions that we have posed here. Why are we 
``restoring'' a habeas right to detainees captured in the war 
with Al Qaida when habeas has never been extended to captured 
enemy soldiers in the entire 800 year history of the writ? Why 
are we giving Al Qaida and Taliban detainees a litigation right 
that has never been extended by any nation to any enemy 
combatant in the history of armed conflict? Should the 425,000 
enemy combatants held inside this country during World War II 
have been allowed to sue us in our courts? Do we really want to 
make it impossible for our government to hold captured enemy 
soldiers in prison camps inside this country if we are once 
again forced to fight a major war? And finally, isn't 30 
released Guantanamo detainees who have returned to waging war 
against us enough? Is this bill worth allowing even one 
civilian or American soldier to be killed by a former detainee?

    We think that the answers to all of these questions are 
obvious, and we are disappointed to see this committee evade 
the reality of the situation.

                                   Jon Kyl.
                                   Jeff Sessions.
                                   Lindsey Graham.
                                   John Cornyn.
                                   Tom Coburn.

                              ATTACHMENT A

                        [From CNN, May 14, 2007]

          U.S. Divulges New Details on Released Gitmo Inmates

    Washington (Reuters).--The Pentagon on Monday released the 
names of six former Guantanamo detainees who U.S. officials say 
re-emerged as Islamist fighters in Afghanistan after their 
release from the U.S. military prison in Cuba.
    The Defense Department said three of those released from 
the prison for suspected militants resurfaced as senior 
Islamist fighters in Afghanistan while a fourth was later 
identified as having been a Taliban deputy defense minister.
    The six were among 30 former detainees who the Pentagon 
said have rejoined the fight against U.S. and coalition forces 
since their release from Guantanamo. All told, about 390 
detainees have been released or transferred from the prison.
    ``While we have long maintained that we would like to close 
Guantanamo, there are a number of highly dangerous men who if 
released would pose a grave danger to the public,'' explained 
Pentagon spokesman, Navy Cmdr. J.D. Gordon.
    Pentagon officials said the detainees lied about their past 
by claiming to be farmers, truck drivers, cooks, small-scale 
merchants or low-level combatants--assertions that were 
sometimes backed up by fellow inmates.
    The disclosure comes as the Pentagon prepares a major 
analysis of classified detainee records that could be used to 
rebut critics who have called for the prison's closure by 
saying many of the 775 detainees who have been held at 
Guantanamo are innocent.
    Defense officials said the large-scale analysis has been 
under way for several months and could result in the release of 
new unclassified information on detainees by early summer.
    The Guantanamo prison now has about 385 inmates. Records on 
517 current and former detainees show that 95 percent have been 
members of or associated with al Qaeda or the Taliban and that 
73 percent participated in hostilities against U.S. or 
coalition forces, defense officials said.
    The analysis is a response to a series of highly critical 
reports by Seton Hall University law professor Mark Denbeaux, 
which determined only a small number of Guantanamo detainees 
had fought against U.S. forces.
    Among the six detainees identified on Monday was Mohamed 
Yusif Yaqub, who the Pentagon said assumed control of Taliban 
operations in southern Afghanistan after his release from 
Guantanamo, and died fighting U.S. forces on May 7, 2004.
    Abdullah Mahsud was released only to become a militant 
leader within the Mahsud tribe in southern Waziristan with ties 
to the Taliban and al Qaeda. He directed the October 2004 
kidnapping of two Chinese engineers in Pakistan, the Pentagon 
    Maulavi Abdul Ghaffar became the Taliban's regional 
commander in Uruzgan and Helmand provinces after his release 
and was killed in a raid by Afghan security forces on September 
25, 2004, the Pentagon said.
    Abdul Rahman Noor was released in July 2003 and was later 
identified as the man described in an October 7, 2001, 
interview with Al Jazeera television network as the ``deputy 
defense minister of the Taliban,'' the Pentagon said.

               [From the Washington Post, Oct. 22, 2004]

                 Released Detainees Rejoining the Fight

                            (By John Mintz)

    At least 10 detainees released from the Guantanamo Bay 
prison after U.S. officials concluded they posed little threat 
have been recaptured or killed fighting U.S. or coalition 
forces in Pakistan and Afghanistan, according to Pentagon 
    One of the repatriated prisoners is still at large after 
taking leadership of a militant faction in Pakistan and 
aligning himself with al Qaeda, Pakistani officials said. In 
telephone calls to Pakistani reporters, he has bragged that he 
tricked his U.S. interrogators into believing he was someone 
    Another returned captive is an Afghan teenager who had 
spent two years at a special compound for young detainees at 
the military prison in Cuba, where he learned English, played 
sports and watched videos, informed sources said. U.S. 
officials believed they had persuaded him to abandon his life 
with the Taliban, but recently the young man, now 18, was 
recaptured with other Taliban fighters near Kandahar, 
Afghanistan, according to the sources, who asked for anonymity 
because they were discussing sensitive military information.
    The cases demonstrate the difficulty Washington faces in 
deciding when alleged al Qaeda and Taliban detainees should be 
freed, amid pressure from foreign governments and human rights 
groups that have denounced U.S. officials for detaining the 
Guantanamo Bay captives for years without due-process rights, 
military officials said.
    ``Reports that former detainees have rejoined al Qaeda and 
the Taliban are evidence that these individuals are fanatical 
and particularly deceptive,'' said a Pentagon spokesman, Navy 
Lt. Cmdr. Flex Plexico. ``From the beginning, we have 
recognized that there are inherent risks in determining when an 
individual detainee no longer had to be held at Guantanamo 
    The latest case emerged two weeks ago when two Chinese 
engineers working on a dam project in Pakistan's lawless 
Waziristan region were kidnapped. The commander of a tribal 
militant group, Abdullah Mehsud, 29, told reporters by 
satellite phone that his followers were responsible for the 
    Mehsud said he spent two years at Guantanamo Bay after 
being captured in 2002 in Afghanistan fighting alongside the 
Taliban. At the time he was carrying a false Afghan identity 
card, and while in custody he maintained the fiction that he 
was an innocent Afghan tribesman, he said. U.S. officials never 
realized he was a Pakistani with deep ties to militants in both 
countries, he added.
    ``I managed to keep my Pakistani identity hidden all these 
years,'' he told Gulf News in a recent interview. Since his 
return to Pakistan in March, Pakistani newspapers have written 
lengthy accounts of Mehsud's hair and looks, and the powerful 
appeal to militants of his fiery denunciations of the United 
States. ``We would fight America and its allies,'' he said in 
one interview, ``until the very end.''
    Last week Pakistani commandos freed one of the abducted 
Chinese engineers in a raid on a mud-walled compound in which 
five militants and the other hostage were killed.
    The 10 or more returning militants are but a fraction of 
the 202 Guantanamo Bay detainees who have been returned to 
their homelands. Of that group, 146 were freed outright, and 56 
were transferred to the custody of their home governments. Many 
of those men have since been freed.
    Mark Jacobson, a former special assistant for detainee 
policy in the Defense Department who now teaches at Ohio State 
University, estimated that as many as 25 former detainees have 
taken up arms again. ``You can't trust them when they say 
they're not terrorists,'' he said.
    A U.S. defense official who helps oversee the prisoners 
added: ``We could have said we'll accept no risks and refused 
to release anyone. But we've regarded that option as not 
humane, and not practical, and one that makes the U.S. 
government appear unreasonable.''
    Another former Guantanamo Bay prisoner was killed in 
southern Afghanistan last month after a shootout with Afghan 
forces. Maulvi Ghafar was a senior Taliban commander when he 
was captured in late 2001. No information has emerged about 
what he told interrogators in Guantanamo Bay, but in several 
cases U.S. officials have released detainees they knew to have 
served with the Taliban if they swore off violence in written 
    Returned to Afghanistan in February, Ghafar resumed his 
post as a top Taliban commander, and his forces ambushed and 
killed a U.N. engineer and three Afghan soldiers, Afghan 
officials said, according to news accounts.
    A third released Taliban commander died in an ambush this 
summer. Mullah Shahzada, who apparently convinced U.S. 
officials that he had sworn off violence, rejoined the Taliban 
as soon as he was freed in mid-2003, sources with knowledge of 
his situation said.
    The Afghan teenager who was recaptured recently had been 
kidnapped and possibly abused by the Taliban before he was 
apprehended the first time in 2001. After almost three years 
living with other young detainees in a seaside house at 
Guantanamo Bay, he was returned in January of this year to his 
country, where he was to be monitored by Afghan officials and 
private contractors. But the program failed and he fell back in 
with the Taliban, one source said.
    ``Someone dropped the ball in Afghanistan,'' the source 
    One former detainee who has not yet been able to take up 
arms is Slimane Hadj Abderrahmane, a Dane who also signed a 
promise to renounce violence. But in recent months he has told 
Danish media that he considers the written oath ``toilet 
paper,'' stated his plans to join the war in Chechnya and said 
Denmark's prime minister is a valid target for terrorists.
    Human rights activists said the cases of unrepentant 
militants do not undercut their assertions that the United 
States is violating the rights of Guantanamo Bay inmates.
    ``This doesn't alter the injustice, or support the 
administration's argument that setting aside their rights is 
justified,'' said Alistair Hodgett, a spokesman for Amnesty 
                              ATTACHMENT B

                        President George W. Bush


           *       *       *       *       *       *       *

    Within months of September the 11th, 2001, we captured a 
man known as Abu Zubaydah. We believe that Zubaydah was a 
senior terrorist leader and a trusted associate of Osama bin 
Laden. Our intelligence community believes he had run a 
terrorist camp in Afghanistan where some of the 9/11 hijackers 
trained, and that he helped smuggle al Qaeda leaders out of 
Afghanistan after coalition forces arrived to liberate that 
country. Zubaydah was severely wounded during the firefight 
that brought him into custody--and he survived only because of 
the medical care arranged by the CIA.
    After he recovered, Zubaydah was defiant and evasive. He 
declared his hatred of America. During questioning, he at first 
disclosed what he thought was nominal information--and then 
stopped all cooperation. Well, in fact, the ``nominal'' 
information he gave us turned out to be quite important. For 
example, Zubaydah disclosed Khalid Sheikh Mohammed--or KSM--was 
the mastermind behind the 9/11 attacks, and used the alias 
``Muktar.'' This was a vital piece of the puzzle that helped 
our intelligence community pursue KSM. Abu Zubaydah also 
provided information that helped stop a terrorist attack being 
planned for inside the United States--an attack about which we 
had no previous information. Zubaydah told us that al Qaeda 
operatives were planning to launch an attack in the U.S., and 
provided physical descriptions of the operatives and 
information on their general location. Based on the information 
he provided, the operatives were detained--one while traveling 
to the United States.
    We knew that Zubaydah had more information that could save 
innocent lives, but he stopped talking. As his questioning 
proceeded, it became clear that he had received training on how 
to resist interrogation. And so the CIA used an alternative set 
of procedures. These procedures were designed to be safe, to 
comply with our laws, our Constitution, and our treaty 
obligations. The Department of Justice reviewed the authorized 
methods extensively and determined them to be lawful. I cannot 
describe the specific methods used--I think you understand 
why--if I did, it would help the terrorists learn how to resist 
questioning, and to keep information from us that we need to 
prevent new attacks on our country. But I can say the 
procedures were tough, and they were safe, and lawful, and 
    Zubaydah was questioned using these procedures, and soon he 
began to provide information on key al Qaeda operatives, 
including information that helped us find and capture more of 
those responsible for the attacks on September the 11th. For 
example, Zubaydah identified one of KSM's accomplices in the 9/
11 attacks--a terrorist named Ramzi bin al Shibh. The 
information Zubaydah provided helped lead to the capture of bin 
al Shibh. And together these two terrorists provided 
information that helped in the planning and execution of the 
operation that captured Khalid Sheikh Mohammed.
    Once in our custody, KSM was questioned by the CIA using 
these procedures, and he soon provided information that helped 
us stop another planned attack on the United States. During 
questioning, KSM told us about another al Qaeda operative he 
knew was in CIA custody--a terrorist named Majid Khan. KSM 
revealed that Khan had been told to deliver $50,000 to 
individuals working for a suspected terrorist leader named 
Hambali, the leader of al Qaeda's Southeast Asian affiliate 
known as ``J-I''. CIA officers confronted Khan with this 
information. Khan confirmed that the money had been delivered 
to an operative named Zubair, and provided both a physical 
description and contact number for this operative.
    Based on that information, Zubair was captured in June of 
2003, and he soon provided information that helped lead to the 
capture of Hambali. After Hambali's arrest, KSM was questioned 
again. He identified Hambali's brother as the leader of a ``J-
I'' cell, and Hambali's conduit for communications with al 
Qaeda. Hambali's brother was soon captured in Pakistan, and, in 
turn, led us to a cell of 17 Southeast Asian ``J-I'' 
operatives. When confronted with the news that his terror cell 
had been broken up, Hambali admitted that the operatives were 
being groomed at KSM's request for attacks inside the United 
States--probably [sic] using airplanes.
    During questioning, KSM also provided many details of other 
plots to kill innocent Americans. For example, he described the 
design of planned attacks on buildings inside the United 
States, and how operatives were directed to carry them out. He 
told us the operatives had been instructed to ensure that the 
explosives went off at a point that was high enough to prevent 
the people trapped above from escaping out the windows.
    KSM also provided vital information on al Qaeda's efforts 
to obtain biological weapons. During questioning, KSM admitted 
that he had met three individuals involved in al Qaeda's 
efforts to produce anthrax, a deadly biological agent--and he 
identified one of the individuals as a terrorist named Yazid. 
KSM apparently believed we already had this information, 
because Yazid had been captured and taken into foreign custody 
before KSM's arrest. In fact, we did not know about Yazid's 
role in al Qaeda's anthrax program. Information from Yazid then 
helped lead to the capture of his two principal assistants in 
the anthrax program. Without the information provided by KSM 
and Yazid, we might not have uncovered this al Qaeda biological 
weapons program, or stopped this al Qaeda cell from developing 
anthrax for attacks against the United States.
    These are some of the plots that have been stopped because 
of the information of this vital program. Terrorists held in 
CIA custody have also provided information that helped stop a 
planned strike on U.S. Marines at Camp Lemonier in Djibouti--
they were going to use an explosive laden water tanker. They 
helped stop a planned attack on the U.S. consulate in Karachi 
using car bombs and motorcycle bombs, and they helped stop a 
plot to hijack passenger planes and fly them into Heathrow or 
the Canary Wharf in London.
    We're getting vital information necessary to do our jobs, 
and that's to protect the American people and our allies.
    Information from the terrorists in this program has helped 
us to identify individuals that al Qaeda deemed suitable for 
Western operations, many of whom we had never heard about 
before. They include terrorists who were set to case targets 
inside the United States, including financial buildings in 
major cities on the East Coast. Information from terrorists in 
CIA custody has played a role in the capture or questioning of 
nearly every senior al Qaeda member or associate detained by 
the U.S. and its allies since this program began. By providing 
everything from initial leads to photo identifications, to 
precise locations of where terrorists were hiding, this program 
has helped us to take potential mass murderers off the streets 
before they were able to kill.
    This program has also played a critical role in helping us 
understand the enemy we face in this war. Terrorists in this 
program have painted a picture of al Qaeda's structure and 
financing, and communications and logistics. They identified al 
Qaeda's travel routes and safe havens, and explained how al 
Qaeda's senior leadership communicates with its operatives in 
places like Iraq. They provided information that allows us--
that has allowed us to make sense of documents and computer 
records that we have seized in terrorist raids. They've 
identified voices in recordings of intercepted calls, and 
helped us understand the meaning of potentially critical 
terrorist communications.
    The information we get from these detainees is corroborated 
by intelligence, and we've received--that we've received from 
other sources--and together this intelligence has helped us 
connect the dots and stop attacks before they occur. 
Information from the terrorists questioned in this program 
helped unravel plots and terrorist cells in Europe and in other 
places. It's helped our allies protect their people from deadly 
enemies. This program has been, and remains, one of the most 
vital tools in our war against the terrorists. It is invaluable 
to America and to our allies. Were it not for this program, our 
intelligence community believes that al Qaeda and its allies 
would have succeeded in launching another attack against the 
American homeland. By giving us information about terrorist 
plans we could not get anywhere else, this program has saved 
innocent lives.
                              ATTACHMENT C

      David Rivkin--Answers to Questions Posed by Senator Jon Kyl

    Question 1. Do you believe that foreign governments would 
stop criticizing the detention of the individuals now held at 
Guantanamo Bay if the Guantanamo facility were closed and those 
detainees were instead held inside the United States?
    Answer. It is, of course, impossible to predict with any 
certainty what foreign states may do in any given circumstance. 
However, my own belief is that most of the critics of the 
current American policy of detaining enemy combatants captured 
in the war on terror at the Guantanamo base would not stop 
their attacks if the detainees were transferred to facilities 
in the United States. For many, if not most, of the critics 
Guantanamo is only part of their objection to U.S. policy. They 
believe that the United States is not, and should not claim to 
be, engaged in a legally cognizable armed conflict with al 
Qaeda, and that it should use its criminal justice system to 
meet the threat posed by trans-national terror. This was, of 
course, largely the status quo before the September 11 attacks.
    Therefore, unless the United States were prepared to limit 
or eliminate its military response to al Qaeda and other jihadi 
groups, it can expect that foreign criticism will continue even 
if the Guantanamo detention facilities are closed.
    Question 2. During questioning by Senator Durbin, you 
stated that unlike CSRT hearings, Article V hearings do not 
provide the detainee with anyone who is assigned to assist him, 
Article V hearings do not require that all information in the 
government's possession pertaining to the detainee be 
assembled, and Article V hearings do not determine whether the 
detainee is ``innocent'' and should be released, but only 
whether the detainee should be held as an unlawful or lawful 
combatant. You also noted that Article V hearings offer the 
detainee no opportunity to present witnesses, and that such 
hearings typically do not take place until days or weeks after 
the capture. Please elaborate on these remarks. Is this summary 
of your testimony accurate? Is there any way in which Article V 
hearings provide procedural or other rights to a detainee that 
are superior to those afforded in a CSRT hearing?
    Answer. Article V of the Third Geneva Convention of 12 
August 1949 Relative to the Treatment of Prisoners of War reads 
as follows:

          The present Convention shall apply to the persons 
        referred to in Article 4 from the time they fall into 
        the power of the enemy and until their final release 
        and repatriation.
          Should any doubt arise as to whether persons, having 
        committed a belligerent act and having fallen into the 
        hands of the enemy, belong to any of the categories 
        enumerated in Article 4, such persons shall enjoy the 
        protection of the present Convention until such time as 
        their status has been determined by a competent 

    The treaty offers no definition of a ``competent 
tribunal,'' nor does it provide for the assistance of counsel 
or any other due process rights in particular. According to the 
International Committee of the Red Cross's 1960 commentary on 
this provision, it was ``based on the view that decisions which 
might have the gravest consequences should not be left to a 
single person, who might often be of subordinate rank.''
    It is my understanding that this provision has been 
variously interpreted by the states parties. However, the 
United States has outlined its Article V procedures as part of 
Army Regulation 190-8 (Oct. 1, 1997) (``AR 190-8''). Under 
section 1-6 of that provision ``Tribunals'', detainees are not 
entitled to the assistance of counsel, or any other type of 
advisor, the Government is not required to assemble and present 
all of the information it may have on a particular individual, 
and no particular timeframe is established for the hearing.
    In addition, although Article V itself does not require 
that detainees be permitted to call or question witnesses, or 
that they may be freed upon conclusion of a hearing, the United 
States under AR 190-8 has chosen to permit detainees to call 
witnesses if such are reasonably available (or to submit 
written statements if they are not), and to question witnesses 
called by the Tribunal. In addition, under the U.S. rule, one 
of the possible board determinations is that the individual is 
an ``innocent civilian who should be immediately returned to 
his home or released.'' To this extent, my statements before 
the committee must be corrected.
    With respect to the overall comparison between the due 
process provided by an Article V tribunal and a CSRT, I offer 
the following materials drawn from a working document prepared 
by the Defense Department which, I believe, very well 
illustrates the differences between Article V hearings and 
CSRTS. I believe this also shows that the CSRT process is at 
least as protective (and often more so) of the individual 
detainee's interest than are Article V hearings:

                       CSRT PROCESS AT GUANTANAMO

    Article 5 of the Third Geneva Convention requires a 
tribunal to determine whether a belligerent, or combatant, is 
entitled to prisoner of war (POW) status under the Convention 
only if there is doubt as to whether the combatant is entitled 
to such status. The President has determined that those 
combatants who are a part of al-Qaeda, the Taliban or their 
affiliates and supporters, or who support such forces do not 
meet the Geneva Convention's criteria for POW status. Because 
there is no doubt under international law about whether al-
Qaida, the Taliban, their affiliates and supporters, are 
entitled to POW status (they are not) there is no need or 
requirement to convene tribunals under Article 5 of the Third 
Geneva Convention in order to review individually whether each 
enemy combatant detained at Guantanamo is entitled to POW 
    In evaluating the entitlements of a U.S. citizen designated 
as an enemy combatant, a plurality of the U.S. Supreme Court in 
Hamdi held that the Due Process Clause of the U.S. Constitution 
requires ``notice of the factual basis for [the citizen-
detainee's] classification, and a fair opportunity to rebut the 
Government's factual assertions before a neutral 
decisionmaker.'' A plurality of the Court further observed: 
``There remains the possibility that the [due process] 
standards we have articulated could be met by an appropriately 
authorized and properly constituted military tribunal,'' and 
proffered as a benchmark for comparison the procedures found in 
Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained 
Personnel, Civilian Internees and Other Detainees, October 1, 
1997. In a conflict in which the Third Geneva Convention 
applies, U.S. forces use the procedures found in AR 190-8 to 
conduct Article 5 tribunals when such tribunals are required.
    As a result of Supreme Court decisions in June 2004 (Rasul, 
Hamdi), the U.S. Government on July 7, 2004, established the 
Combatant Status Review Tribunal (CSRT) process at Guantanamo 
Bay Naval Base, Cuba. The CSRT process supplements DoD's 
already existing screening procedures and provides an 
opportunity for detainees to contest their designation as enemy 
combatants, and thereby the basis for their detention. 
Consistent with the Supreme Court guidance applicable to 
situations involving U.S. citizens, the tribunals draw upon 
procedures found in AR 190-8.
    The below chart compares the CSRT procedures with the 
procedures found in AR 190-8:

                              Army Regulation 190-
       Characteristic                   8                   CSRT
Applicability of proceeding.  Person who has        All detainees at
                               committed a           GTMO.
                               belligerent act and  The President has
                               is in the custody     previously
                               of the U.S. Armed     determined that al
                               Forces.               Qaeda and Taliban
                                                     detainees are not
                                                     entitled to POW
Frequency of review.........  No provision for      One-time.
                               more than one        Can be reconvened to
                               review.               re-evaluate a
                                                     detainee's status
                                                     in light of new
Notice provided to detainee.  Advised of rights at  Advised of rights in
                               the beginning of      advance of and at
                               the hearing.          beginning of the
                                                    The detainee is
                                                     provided with an
                                                     summary of the
                                                     evidence in advance
                                                     of the hearing.
Tribunal composition........  The Tribunal is       The Tribunal is
                               composed of 3         composed of 3
                               commissioned          neutral
                               officers including    commissioned
                               at least one field    officers not
                               grade officer.        involved in the
                                                     capture or
                                                     detention of the
                                                     detainee. All are
                                                     field grade
                                                     officers, and the
                                                     senior member is an
                                                     0-6 (Colonel/Navy
                              Recorder: Non-voting  Recorder: Non-voting
                               officer, preferably   officer serving in
                               a member of the       the grade of 0-3
                               Judge Advocate        (Captain/Navy
                               General's Corps       Lieutenant) or
                               (JAG). The Recorder   above. The Recorder
                               prepares the record   prepares the record
                               of the Tribunal and   of the Tribunal and
                               forwards it to the    forwards it for a
                               first Staff Judge     legal review.
                               Advocate (SJA) in
                               the internment
                               facility's chain of
                              Legal adviser: None   Legal Adviser: A JAG
                               for the Tribunal.     is available to
                               The record of every   advise the Tribunal
                               Tribunal proceeding   on legal and
                               resulting in the      procedural matters.
                               denial of POW         The record of every
                               status is reviewed    Tribunal is
                               for legal             reviewed for legal
                               sufficiency when      sufficiency by a
                               the record is         JAG.
                               received at the
                               office of the SJA
                               for the convening
                              Person to provide     Personal
                               assistance to the     Representative:
                               detainee: None..      Each detainee has
                                                     the assistance of a
                                                     (PR). The PR meets
                                                     with the detainee
                                                     to explain the CSRT
                                                     process and assists
                                                     the detainee in
                                                     reviewing relevant
                                                     preparing and
                                                     information, and
                                                     witnesses at the
                                                     CSRT. The personal
                                                     representative is
                                                     an officer serving
                                                     in the grade of 0-4
                                                     or above.
Participation by military     None................  None.
 judges.                      However, preference   However, one of the
                               is to have a JAG      voting officers
                               serve as the non-     must be a JAG.
                               voting recorder.
Attendance by detainee......  The detainee is       Same as under AR 190-
                               allowed to attend     8.
                               all open sessions,
                               which includes all
                               proceedings except
                               those involving
                               deliberation and
                               voting by members,
                               and testimony or
                               other matters that
                               would compromise
                               national security
                               if held in the open.
Witnesses...................  Detainee may call     Detainee may call
                               witnesses if they     witnesses if they
                               are reasonably        are relevant and
                               available and can     reasonably
                               question the          available, and can
                               witnesses called by   question the
                               the Tribunal. If      witnesses called by
                               requested witnesses   the Tribunal. If
                               are not reasonably    requested witnesses
                               available, written    are not reasonably
                               statements are        available, written
                               permitted.            statements are
                                                     Telephonic or
                                                     testimony is also
                              The commanders of     The President of the
                               military witnesses    Tribunal determines
                               determine whether     whether witnesses
                               they are reasonably   are relevant and
                               available.            reasonably
Detainee testimony..........  Detainee may testify  Same.
                               or otherwise
                               address the
                               Tribunal, but
                               cannot be compelled
                               to testify.
Standard of proof...........  Preponderance of      Preponderance of
                               evidence.             evidence.
                              Majority vote.......  Majority vote
                                                    There is a
                                                     presumption that
                                                     the government
                                                     evidence submitted
                                                     by the recorder is
                                                     genuine and
Presumption of status.......  A person shall enjoy  Protected (POW)
                               the protection of     status not
                               the Third Geneva      applicable. As to
                               Convention until      enemy combatant
                               such time as his or   status, prior to
                               her status has been   the CSRT,
                               determined by a       presumably any
                               competent tribunal.   battlefield and
                                                     determinations of
                                                     each Guantanamo
                                                     detainee who was
                                                     initially detained
                                                     by DoD have found
                                                     the detainee to be
                                                     an enemy combatant.
                                                    The CSRT process is
                                                     a fact-based
                                                     proceeding to
                                                     determine whether
                                                     each detainee is
                                                     still properly
                                                     classified as an
                                                     enemy combatant,
                                                     and to permit each
                                                     detainee the
                                                     opportunity to
                                                     contest such
Type of evidence considered.  Testimonial and       Testimonial and
   Is coercion evaluated?      written evidence is   written evidence is
                               permitted..           permitted.
                              AR 190-8 contains no  The Detainee
                               requirement to        Treatment Act (DTA)
                               evaluate whether      requires the CSRT
                               statements were the   to assess whether
                               result of coercion.   any statement being
                                                     considered by the
                                                     CSRT was obtained
                                                     as a result of
                                                     coercion and the
                                                     probative value, if
                                                     any, of such
Access to evidence by         None................  The detainee may
 detainee.                                           review unclassified
                                                     relating to the
                                                     basis for his or
                                                     her detention. The
                                                     detainee also has
                                                     the opportunity to
                                                     present reasonably
                                                     relevant to why the
                                                     detainee should not
                                                     be classified as an
                                                     enemy combatant.
                                                    Evidence on the
                                                     detainee's behalf
                                                     may be presented in
                                                     documentary form
                                                     and through written
                                                     preferably sworn.
                                                    The detainee's
                                                     Representative (PR)
                                                     shall have the
                                                     opportunity to
                                                     review the
                                                     relevant to the
                                                     detainee and to
                                                     consult with the
                                                     detainee concerning
                                                     his or her status
                                                     as an enemy
                                                     combatant and any
                                                     challenge thereto--
                                                     the PR may only
                                                     share unclassified
                                                     portions of the
                                                     information with
                                                     the detainee.
                                                    The President of the
                                                     Tribunal is the
                                                     decision authority
                                                     on the relevance
                                                     and reasonable
                                                     availability of
Assistance provided to        Interpreter provided  Interpreter provided
 detainee.                     if necessary.         if necessary.
                                                    A Personal
                                                     Representative (PR)
                                                     is provided to
                                                     every detainee. The
                                                     PR meets with the
                                                     detainee to explain
                                                     the CSRT process,
                                                     assist the detainee
                                                     in participating in
                                                     the process, and
                                                     assist the detainee
                                                     in collecting
                                                     relevant and
                                                     information in
                                                     preparation for the
Further review of decision    None................  Under the Detainee
 outside of the Department                           Treatment Act and
 of Defense.                                         the Military
                                                     Commissions Act,
                                                     the Court of
                                                     Appeals for the
                                                     District of
                                                     Columbia has the
                                                     authority to
                                                     determine if the
                                                     detainee's CSRT was
                                                     consistent with the
                                                     standards and
                                                     procedures for
                                                     CSRTs. The Court of
                                                     Appeals also has
                                                     the authority to
                                                     determine whether
                                                     those standards and
                                                     procedures are
                                                     consistent with the
                                                     Constitution and
                                                     laws of the United
                                                     States, to the
                                                     extent they are
                                                     applicable at

       B. Additional Views of Senators Graham, Sessions, and Kyl

    The Habeas Corpus Restoration Act of 2007, S.185, seeks to 
affirmatively provide, for the first time ever, habeas corpus 
rights to alien terrorists. While the Supreme Court has 
previously held that existing statutes had expanded enough over 
the years to provide habeas corpus access to alien terrorists, 
this would be the first time that a statute was developed with 
the sole goal of extending habeas corpus rights to alien 
    Throughout our history, habeas corpus protections have 
provided an essential tool for the citizens to protect 
themselves from the government. However, the Supreme Court has 
also observed that ``[t]he writ has potentialities for evil as 
well as for good. Abuse of the writ may undermine the orderly 
administration of justice and therefore weaken the forces of 
authority that are essential for civilization.'' McCleskey v. 
Zant, 499 U.S. 467, 496 (U.S. 1991)(quoting Brown v. Allen, 344 
U.S. 443, 512 (1952) (opinion of Frankfurter, J.)).
    That is exactly the case here.
    And those who support this bill should not just take 
Justice Frankfurter's word for it. We also have the benefit of 
experience and stated intentions to guide us. Regarding 
experience, here are some examples of habeas claims detainees 
have pursued in the past:
    1. A Canadian detainee who threw a grenade that killed an 
Army medic in firefight and who comes from family with 
longstanding al-Qaeda ties sought a preliminary injunction 
forbidding interrogation of him.
    2. A number of Kuwaiti detainees sought court orders 
requiring that they be provided dictionaries in contravention 
of GTMO's force protection policy and that their counsel be 
given high-speed internet access at their lodging on the base 
and be allowed to use classified DoD telecommunications 
facilities, all on the theory that otherwise their ``right to 
counsel'' is unduly burdened.
    3. An Egyptian detainee whose Combatant Status Review 
Tribunal found that he was no longer an enemy combatant, and 
who was therefore due to be released by the United States, 
filed a motion to block his repatriation to Egypt.
    4. A high level al-Qaeda detainee complained about base 
security procedures, the speed of mail delivery, and medical 
treatment; seeking an order that he be transferred to the 
``least onerous conditions'' at GTMO and asking the court to 
order that GTMO allow him to keep any books and reading 
materials sent to him and to ``report to the Court'' on ``his 
opportunities for exercise, communication, recreation, worship, 
    5. A detainee accused the military's health professionals 
of ``gross and intentional medical malpractice'' in alleged 
violation of the 4th, 5th, 8th, and 14th Amendments, 42 USC 
1981, and unspecified international agreements.
    6. Another detainne filed an ``emergency'' motion seeking a 
court order requiring GTMO to set aside its normal security 
policies and show detainees DVDs that are purported to be 
family videos.
    7. One detainee filed a request that, as a condition of a 
stay of litigation pending related appeals, the Court involve 
itself in his medical situation and second-guess the provision 
of medical care and other conditions of confinement by medical 
    8. A Kuwaiti detainee was unsatisfied with the Koran he was 
provided by military officials, and sought a court order that 
detainees be allowed to keep various other supplementary 
religious materials, such as a ``tafsir'' or 4-volume Koran 
with commentary, in their cells.
    While proponents of this legislation like to talk of high-
minded principle, these examples show that the terrorist 
detainees view habeas corpus somewhat differently. They view it 
as just another tool in their war against us. And it is not 
surprising that they would, given that their lawyers tell them 
they should. Indeed, one of their lawyers has stated:

         ``The litigation is brutal for [the United States]. 
        It's huge. We have over one hundred lawyers now from 
        big and small firms working to represent these 
        detainees. Every time an attorney goes down there, it 
        makes it that much harder [for the U.S. military] to do 
        what they're doing. You can't run an interrogation * * 
        * with attorneys. What are they going to do now that 
        we're getting court orders to get more lawyers down 
        there?'' (Onnesha Roychoudhuri, The Torn Fabric of the 
        Law: An Interview with Michael Ratner, Mother Jones 
        Magazine, March 21, 2005.)

Extending habeas protections to those such as Khalid Sheikh 
Mohammed is not only foolhardy, it is dangerous. As we have 
learned in the past, information given to alien terrorists 
during court battles inevitably enhances the terrorists' 
intelligence-gathering capabilities.
    In the end, this issue comes down to where the nation 
should place its trust. Should the nation trust its military to 
protect it while serving as a shining example of American 
values? Or is the military incapable of doing so, and therefore 
in need of being told how to conduct the war by federal courts? 
Do we need al-Qaeda being able to subpoena and depose our 
soldiers? Questioning whether our soldiers delivered their mail 
promptly? Or did not supply them with meals at the proper 
    Do we trust al-Qaeda members like Khalid Shiekh Mohammed 
not to abuse the privilege this bill would extend to them?

                                   Lindsey Graham.
                                   Jeff Sessions.
                                   Jon Kyl.

       VIII. Changes in Existing Law Made by the Bill as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 185, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                          28 U.S.C. Sec. 2241

Sec. 2241. Power to grant writ

           *       *       *       *       *       *       *

    [(e)(1) 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 
    [(2) Except as provided in paragraphs (2) and (3) of 
section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S. 
C. 801 note), no court, justice, or judge shall have 
jurisdiction to hear or consider any other action against the 
United States or its agents relating to any aspect of the 
detention, transfer, treatment, trial, or conditions of 
confinement of an alien who is or was detained by the United 
States and has been determined by the United States to have 
been properly detained as an enemy combatant or is awaiting 
such determination.]

                          10 U.S.C. Sec. 950j

Sec. 950j. Finality or proceedings, findings, and sentences

           *       *       *       *       *       *       *

    (b) [Provisions of chapter sole basis for review of 
military Commission procedures and actions.--Except as 
otherwise provided in this chapter and notwithstanding any 
other provision of law (including section 2241 of title 28 or 
any other habeas corpus provision), 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.]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.