Calendar No. 220
110th Congress Report
SENATE
1st Session 110-90
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HABEAS CORPUS RESTORATION ACT OF 2007
_______
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
ADDITIONAL AND MINORITY VIEWS
[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.
CONTENTS
Page
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
invasion.
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\
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\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).
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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
terrorists.
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.
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\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.
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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.''
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\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.
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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
restored.
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
detainees.
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
States.
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
proceeding.
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
Hopple.
Sincerely,
Peter R. Orszag.
Enclosure.
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
governments.
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
views.
---------------------------------------------------------------------------
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
bear.
SHARING CLASSIFIED EVIDENCE WITH AL QAIDA
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
uncovered.
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.
500,000 HABEAS LAWSUITS DURING WORLD WAR II?
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
1944?
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.
AL QAIDA SUBPOENAS FOR AMERICAN SOLDIERS
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.
CUTTING OFF INTELLIGENCE ABOUT TERRORIST ATTACKS AND AL QAIDA NETWORKS
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
Asia.
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.
forces:
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 CURRENT SYSTEM STRIKES THE RIGHT BALANCE
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
him.
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.
THIS BILL HAS NO BASIS IN LAW OR HISTORY
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
wartime.
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
brief:
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
Admiralty.''
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
1249.
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
judiciary.
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
prisoners.
HAMDI
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
reasons:
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
combatants.'''
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
decisionmaker.''
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
adjudicator.''
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
agree.''
RASUL
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
litigation.
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
holding.
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
realm.''
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
statutes.''
* * * * * * *
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
makes.
CONCLUSION
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
said.
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
officials.
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
else.
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
Bay.''
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
abductions.
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
agreements.
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
said.
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
International.
ATTACHMENT B
President George W. Bush
SEPTEMBER 6, 2006
* * * * * * *
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
necessary.
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
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.
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
status.
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
status.
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
information.
Notice provided to detainee. Advised of rights at Advised of rights in
the beginning of advance of and at
the hearing. beginning of the
hearing.
The detainee is
provided with an
unclassified
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
Captain).
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
command.
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
authority.
Person to provide Personal
assistance to the Representative:
detainee: None.. Each detainee has
the assistance of a
personal
representative
(PR). The PR meets
with the detainee
to explain the CSRT
process and assists
the detainee in
reviewing relevant
unclassified
information,
preparing and
presenting
information, and
questioning
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
permitted.
Telephonic or
videoconference
testimony is also
permitted.
The commanders of The President of the
military witnesses Tribunal determines
determine whether whether witnesses
they are reasonably are relevant and
available. reasonably
available.
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
rebuttable
presumption that
the government
evidence submitted
by the recorder is
genuine and
accurate.
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
subsequent
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
designation.
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
statement.
Access to evidence by None................ The detainee may
detainee. review unclassified
information
relating to the
basis for his or
her detention. The
detainee also has
the opportunity to
present reasonably
available
information
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
statements,
preferably sworn.
The detainee's
Personal
Representative (PR)
shall have the
opportunity to
review the
government
information
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
government
information with
the detainee.
The President of the
Tribunal is the
decision authority
on the relevance
and reasonable
availability of
evidence.
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
reasonably
available
information in
preparation for the
CSRT.
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
conducted
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
Guantanamo.
------------------------------------------------------------------------
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
terrorists.
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,
etc.''
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
experts.
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
temperature?
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
determination.
[(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.
