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Improving America's Security Act--Continued

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Location: Washington, DC


IMPROVING AMERICA'S SECURITY ACT--Continued -- (Senate - March 07, 2007)

AMENDMENT NO. 286

Mr. SPECTER. Madam President, I have sought recognition to debate amendment No. 286, which would reverse the provision in the Military Tribunal Act which has limited the jurisdiction of the Federal courts in habeas corpus proceedings.

The essential question at issue is whether the combatant status review tribunals are adequate and effective to test the legality of a person's detention.

What we are dealing with here is an examination of the issue as to whether the procedures are fundamentally fair. Congress should repeal the provisions of the Military Commissions Act which limit Federal court jurisdiction on habeas corpus.

The decision by the court of appeals, I submit, will be overturned by the Supreme Court of the United States because of Circuit Court's ruling that the Rasul case dealt only with the statutory provisions on habeas corpus.

The Circuit Court ignored the binding language of Rasul, which said that the habeas corpus rights were grounded in common law in effect in 1789 and were, in fact, part of the Constitution. Where habeas corpus is a right in the Constitution, and it is such a right because the Constitution expressly states that habeas corpus shall not be suspended except in cases of invasion or rebellion--and no one contends that there is either invasion or rebellion at issue-- Congress cannot legislate a derogation of that constitutional right. Any act of Congress is obviously trumped by a constitutional provision. Where you have habeas corpus in effect in 1789 and the constitutional provision prohibiting its suspension, the legislation passed in the Military Commission Act I think ultimately will be determined by the Supreme Court to be unconstitutional, pretty clearly on the face of the opinion of the Court articulated by Justice Stevens.

The Congress ought to reverse the provision of the Military Commission Act which strikes or limits Federal court jurisdiction on habeas corpus because the provisions--the way the detainees are being dealt with, simply stated, is not fundamentally fair. It does not comport with due process of law, and due process is a right even without specific enumeration in the Constitution.

The order establishing the Combat Status Review Tribunal provides as follows:

For purposes of this order, the term ``enemy combatant' shall mean an individual who was a part of or supported Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or who has directly supported hostilities in aid of enemy forces.

The fact is that people are detained as enemy combatants without any showing of those basic requirements.

The next section of the order establishing the Combatant Status Review Tribunal provides:

All detainees shall be notified--

Skipping some language-- of the right to seek a writ of habeas corpus in the courts of the United States.

I have not seen any reference to this provision in any of the adjudications, and I found this on the very extensive research which my staff and I have undertaken to prepare for this debate. But there you have it. The order itself setting up the Combat Status Review Tribunal says that the detainees have the right to seek a writ of habeas corpus. The Secretary of Defense has the authority to establish the rules, and he has established the rule which gives the detainee the right to seek a writ of habeas corpus. That ought to end the argument right there.

Let's proceed further to see, in fact, what happens when these matters are taken before the Combat Status Review Tribunal. We have the opinion of U.S. District Judge Green in a case captioned, ``In Re: Guantanamo Detainee Cases,' in which Judge Green writes as follows:

The inherent lack of fairness of the CSRT's consideration of classified information not disclosed to the detainee is perhaps most vividly illustrated in the following unclassified colloquy which was taken from a case not presently before this judge which exemplifies the practical and severe disadvantages faced by all Guantanamo prisoners. [I read] a list of allegations forming the basis for the detention of Mustafa Ait Idir, a petitioner in Boumediene v. Bush case--

And that parenthetically is the case decided by the Court of Appeals for the third circuit.

This is what Judge Green goes on to point out in her opinion in the Federal Reporter:

While living in Bosnia, the detainee associated with a known al-Qaida operative.

In response, the following exchange occurred:

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Skipping some irrelevant language, the detainee goes on to say:

I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team, but I do not know if this person is Bosnian, Indian, or whatever. If you can tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is in the unclassified summary.

Skipping some irrelevant materials, the detainee then goes on to say:

But I was hoping you had evidence that you could give me. If I was in your place--and I apologize in advance for these words--but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.

Then, parenthetically, Judge Green's opinion notes that ``Everyone in the tribunal laughs.'

Tribunal President: Well, we had to laugh, but that is OK.

A little later in the opinion--

The detainee says: What should be done is you should give me evidence regarding these accusations, because I am not able to give you any evidence. I can just tell you no, and that is it.

Then Judge Green goes on to say:

The laughter reflected in the transcript is understandable. And this exchange might have been truly humorous had the consequences of the detainee's enemy combatant status not been so terribly serious, and the detainee's criticism of the process had not been so piercingly accurate.

Well, this case illustrates the fact that the provisions in Guantanamo on the detainee status review tribunal is a laughing stock. It hardly comports with what the Secretary of Defense said was required: that there has to be evidence that the individual supported Taliban or al-Qaida forces or committed a belligerent act.

The Judiciary Committee held a hearing and one of our witnesses was a distinguished attorney, Thomas Sullivan, who made available a series of cases before the Combat Status Review Tribunal. This is one illustrative case involving a man named ``Abdul-Hadi al Siba.' I take this from the extract of what the witness provided:

The Combat Status Review Tribunal stated that al Siba was charged with being captured in crossing the border into Pakistan with having volunteered for a charity that was funded by al-Qaida. That is all that is in the summary.

Again, this hardly comports with the standard by the Department of Defense itself that there is supposed to be evidence which would show the detainee was engaged in hostilities against the United States or committed belligerent acts.

The provisions of the Department of Defense establishing the Combat Status Review Tribunals is fundamentally unfair under the most basic principle of Anglo-Saxon American jurisprudence. The rules are:

Preponderance of evidence shall be the standard used in reaching the determination, but there shall be a rebuttable presumption in favor of the government's evidence.

That is the most extraordinary standard which I have ever seen, and it is bedrock Americana that people are presumed innocent. But instead, when a detainee faces a Combat Status Review Tribunal, the presumption is that he is guilty. That hardly comports with a standard of fundamental fairness or due process.

The rules promulgated by the Department of Defense call for a preponderance of evidence, so even if there is a presumption of guilt, the standards do require some evidence. But that was not present in the case cited by Judge Green, not present in the cases cited by Thomas Sullivan at our Judiciary Committee hearing.

Madam President, I ask unanimous consent that the summary of other cases provided by Mr. Sullivan be included in the RECORD at the conclusion of my presentation.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See Exhibit 1.)

Mr. SPECTER. The standards which have been established, which would, under some circumstances, permit a substitute procedure for habeas corpus were articulated by the Supreme Court of the United States in the case of Swain v. Pressley. In that case, the Supreme Court said there could be a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's contention.

But the collateral remedy which was present in Swain v. Pressley is a far cry from the provisions of the Combat Status Review Tribunal.

What the Supreme Court was dealing with in the Swain case was habeas corpus before a State court as opposed to habeas corpus before a Federal court. In Swain, the Supreme Court said that the ``relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court do not have life tenure.'

So here we have a State court functioning under the rules of habeas corpus and the Supreme Court says that is an equivalent of Federal court habeas corpus because State court judges can make that determination and the only difference is that the State court judges do not have wide tenure.

In Swain, the Supreme Court went on to say:

It is a settled view that elected judges of our State courts are fully competent to decide Federal constitutional issues.

So there you have the constitutional issue decided. But the only difference is that it is a State court. Well, that has absolutely no resemblance to the combat status review tribune. It hardly qualifies as an adequate substitute.

I want to proceed now to the issues that were articulated by the Supreme Court of the United States in Rasul, where I believe it is very clear cut that there is the ignoring of the language of the Supreme Court, and a constitutional right and a right that was in effect in common law in 1789 will certainly be utilized by the Supreme Court in dealing with the circuit court opinion, which is directly inconsistent with the language of Justice Stevens. This is what Justice Stevens said in the Rasul case, speaking for the Court:

Application of the habeas corpus statute to persons detained at the base [referring to the Guantanamo base] is consistent with the historical reach of the writ of habeas corpus. At common law courts exercise habeas corpus over the claims of aliens detained within the sovereign territory of the realm, as well as the claims of persons detained in the so-called ``exempt jurisdictions' where ordinary writs did not run, and all other dominions under the sovereign's control. As Lord Mansfield wrote in 1759, even if a territory was ``no part of the realm', there was ``no doubt' as to the Court's power to issue writs of habeas corpus if a territory was under the subjection of the crown.

The Supreme Court had already held in the trilogy of cases in 2004 that the United States Government controlled Guantanamo Bay, so it was within the jurisdiction of the United States.

Justice Stevens goes on to point out that:

Later cases confirmed the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of ``the extent and nature of the jurisdiction or dominion exercised in fact by the crown.'

There again is the reference to the undeniable fact that the United States controls Guantanamo and it is under United States dominion. The court of appeals concluded that the language about the existence of the writ when the Constitution was adopted and the constitutional right of habeas corpus was not resolved by Rasul, because the specific holding in Rasul was on the statutory provisions of section 2241.

The Stevens opinion says:

We therefore hold that section 2241 confers on the district court jurisdiction to hear petitioner's habeas corpus challenges to the legality of their detention at Guantanamo naval base.

Now, the circuit court said that, well, is a holding based upon the statute, but its limitation does not apply to a constitutional right or the reach of the writ in effect in common law in 1789. How can it be that the Supreme Court would say Guantanamo Bay is under United States jurisdiction for the statutory right but outside of the jurisdiction for the constitutional right? It stands the English language on its head.

There have been a number of situations where--especially in the fifth circuit--on death penalty cases the circuit has, in effect, ignored what the Supreme Court has had to say. It has been a highly critical Supreme Court which has then come to review those decisions. I suggest that that would be the response when the Supreme Court comes to review the circuit court opinion which ignores the plain language of the Supreme Court of the United States.

In dissent, Justice Scalia recognized the fact that the case of Johnson v. Eisentrager had been overruled. The court of appeals relies upon Johnson v. Eisentrager to hold that there is no jurisdiction over Guantanamo Bay. But this is what Justice Scalia, in dissent, had to say about the overruling of Johnson v. Eisentrager. He called it ``overturning of settled law.'

But the court of appeals did not view it as such. So when this case comes before the Supreme Court, I think it is patently obvious that the language of the Court will require reversal of the circuit court decision.

I have been asked if I will yield for a unanimous consent request by Senator Lieberman, and I will do so.

Mr. LIEBERMAN. Mr. President, I ask unanimous consent that when the time allocated to the Senator from Pennsylvania expires at 1, the Senator from Minnesota be recognized for 10 minutes and, after that, the Senator from Delaware be recognized for whatever amount of time he needs until 1:30, when Senators Collins and McCaskill have 15 minutes equally divided.

The PRESIDING OFFICER (Mr. Menendez). Is there objection?

Without objection, it is so ordered.

Mr. SPECTER. Mr. President, the failure of the Court of Appeals for the District of Columbia to recognize the settled principles was the subject of an analysis by the distinguished constitutional scholar Adam Liptak in the New York Times yesterday. It is worth notice. The analysis said that:

what the Supreme Court says goes. Usually. But in a defiant decision 2 weeks ago, a Federal Court of Appeals in Washington conceded that it was ignoring parts of the 2004 Supreme Court decision on the rights of a man held at Guantanamo Bay, Cuba. That can make the Supreme Court testy and it may help the detainees.

The analysis goes on to paraphrase the powerful dissent of Judge Judith Rogers, who said her colleagues were thumbing their noses at the Supreme Court. Liptak notes that:

[Rogers stated that her colleagues] ``were ignoring the Supreme Court's well-considered and binding dictum' concerning the historical roots and geographical scope of the prisoner's basic rights and she cited the case from her own court that said that such statements ``generally must be treated as authoritative.'

The analysis goes on to say that:

almost 3 years ago, the Supreme Court ruled in Rasul that the detainees possessed an ancient and fundamental right, the right to challenge the justice of their confinement in court by filing petitions for writs of habeas corpus.

In a crucial aside, in Rasul, Justice John Paul Stevens, writing for the majority, said this right was not just a result of a law passed by Congress but was grounded in the Constitution. ``Application of the habeas statute to persons detained in the base,' he wrote, ``is consistent with the historical reach of habeas corpus.'

Well, that lays it out in a pretty conclusive way that when the Court rules on a statute but says that the same right is embodied in the Constitution, Congress cannot pass a law which trumps the constitutional provision, as articulated by the Supreme Court of the United States.

The Liptak analysis goes on to note this:

If that is a right, a new law pushed by the Bush administration's Military Commissions Act could not have cut off detainees' rights to habeas corpus. In a footnote, the appeals court basically acknowledges that. But it ruled that the Supreme Court's historical analysis was wrong and that Justice Stevens' dictum could be ignored.

In the analysis commenting on the Johnson v. Eisentrager case, Liptak noted as follows:

All of the points which were relied upon by the circuit court, as Justice Stevens wrote in Rasul, counted in favor of the Guantanamo detainees. ``They were not nationals of countries at war with the United States'--

Which was the case in Eisentrager--

They have not been engaged in plotted acts of aggression against the United States. They have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing, and for more than 2 years they have been in prison in territory over which the United States exercises exclusive jurisdiction and control.

Well, this is a fairly brief analysis in the time which I have. But the essence of it boils down to this: The Supreme Court--Justice Stevens speaking for a majority--has ruled that the Federal habeas corpus statute covers Guantanamo, that the rights were violated, and that the statute carries out the constitutional law and the scope of the writ in 1789, when the Constitution was adopted. And the Court of Appeals for the Third Circuit, in order to uphold the act, says the holding by Justice Stevens was only to a statute--and it is true Congress can change the statute--but ignores the plain language of Justice Stevens speaking for a majority of the Court that it is a constitutional right.

That cannot be changed by an act of Congress, and the Supreme Court will tell the court of appeals that when they get the case. Aside from the issue of constitutionality, which will be decided by the Court, as to the procedures that are in effect in these combat status review tribunals, they do not measure up to the requirements of fundamental fairness. They do not honor what the Department of Defense laid down as the basic rule that detainees are entitled to ``the right to seek a writ of habeas corpus in the courts of the United States.'

That ought to be the end of it because the Secretary of Defense was given the responsibility to decide what the rules were, and he said one of the rules is that these detainees can go to court. That is what an act of Congress has taken away, and that is what ought to be reversed.

Then if we take a look at what has to happen in these proceedings before the Combat Status Review Tribunal, the term ``enemy combatant,' which would qualify for detention, means an individual who was part of or supporting the Taliban or al-Qaida forces or has committed a belligerent act or has directly supported hostilities in aid of enemy forces.

The individual in the court of appeals case cited by Judge Green, which I read at length, was only supposed to have talked to somebody from al-Qaida, and they couldn't even produce the identity of the individual, which hardly measures up to the Department of Defense's standard. It is just absolutely ludicrous. Then for the Department of Defense provisions to say that there is a presumption of guilt just turns American justice on its head. Even with a presumption of guilt, the requirements are that there be evidence, and there is none in the case cited by Judge Green and by Mr. Sullivan.

This is just the beginning of the argument. We will have other Senators come to oppose.

Let me advise my colleagues that there will be a portion of the debate conducted in Room S-407, which is the room where we can discuss classified information, because Senator Leahy and I have been reviewing the rendition in the Arar case, and we have found that there was a determination that Arar had a status--which I cannot discuss in this Chamber but can discuss only in S-407--which would warrant sending him to Syria. Arar was a Canadian citizen who came to the United States and was detained for questioning at an airport in New York City when he wanted simply to transit and go to Canada. He was questioned by the FBI.

It has been well noted that the FBI does not agree with the other interrogation practices which have been undertaken by the Government.

After that questioning, which was reportedly extensive, Arar was then sent to Syria. He came back and has filed suit alleging that he was tortured and subjected to brutal treatment.

The Canadian officials have considered the issue at length and have published a three-volume set. It is a good visual for people to see, if anybody is watching on C-SPAN2.

This is volume 1 of the report relating to Maher Arar, this is volume 2 on the report relating to Maher Arar, and this is the analysis and recommendation. After undertaking this kind of an analysis, the Canadian Government apologized to Arar and paid him about $10 million, but the U.S. Government continues to say that it was justified in sending Arar to Syria, where he was beaten.

These matters relating to rendition, I submit, are directly relevant to our consideration of whether the Federal courts need to be involved in determining the legality of Guantanamo detainees because this Government, in the war on terrorism--and there is no doubt about the importance of our war on terrorism and the necessity for effective law enforcement. I led the Judiciary Committee to the reauthorization of the PATRIOT Act, which gives law enforcement extensive authority. But there are laws against torture. There are international covenants against torture. The submission of rendition is something that is going to have to come under some judicial supervision.

I am considering now legislation which would require Federal authorities to go to court to establish probable cause and a basis for rendition before any American citizen or before anyone ought to be sent to a foreign country.

We have the allegations of the plaintiff in a case decided last week by the Fourth Circuit who was sent to Egypt and alleged that he was tortured there. The Fourth Circuit has held that the case cannot be pursued because of a state secrets doctrine. That is a matter which is going to be reviewed on oversight by the Judiciary Committee.

We have 25 CIA agents under indictment now in Italy, and we have 13 CIA agents now under indictment in Germany. The international response is that the United States is undertaking a rendition in a way which is unsatisfactory to basic standards of decency and fairness.

The Judiciary Committee has held hearings on Guantanamo. I visited Guantanamo. Not to have those detainees have the right of habeas corpus and Federal court review is totally at variance with the very basic tenets of Anglo-Saxon and American jurisprudence.

I cannot say anything more about Arar, but it can be discussed in S-407, which is the room we go to when we have matters to discuss which are classified. I believe it is a very compelling case that there needs to be judicial intervention or needs to be a lot more oversight than there has been on these matters.

I might say, it is like pulling teeth to get the Department of Justice to make any information available. It takes a long time to have access to the classified material, and then the material is insufficient to come to a conclusion. In the Arar case, we have a request pending and don't know what the result will be. But we do know Canada made an exhaustive analysis of Arar and what he had done, and I think I can say this: The materials in the classified documents relate to information substantially obtained from Canadian authorities, and Canada has made the inquiry and has apologized and paid some $10 million.

I yield the floor.

BREAK IN TRANSCRIPT

Mr. SPECTER. Mr. President, I have a couple supplemental comments I would like to make.

The requirement established by the Department of Defense that a detainee shall be notified ``of their right to seek a writ of habeas corpus in the courts of the United States' was given to all the detainees. So they have had it and relied upon it. I suggest that while not legally the same, that any change in that policy is really in the nature of ex post facto, which is changing a rule and establishing criminal liability after the fact, which is prohibited by the Constitution. It isn't quite that, but it has the same flavor, and it is the nature, also, of a bill of attainder, which is legislation that establishes guilt as opposed to a judicial proceeding. What we have had here, in effect, is legislation which has changed what the Department of Defense said the rights of the individuals would be.

I wish to cite, in addition, a quotation from Justice O'Connor in the Hamdi v. Rumsfeld case, talking about combat status review boards, in which she said:

Any process in which the executive's factual assertions go wholly unchallenged or simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.

Justice O'Connor restates in shorthand the traditional presumption of innocence which is turned on its head by the DOD regulations and says as a matter of Supreme Court ruling that without any opportunity to defend, those presumed conclusions can't stand.

We saw the case of Judge Green, we saw the case cited by the witness before the Judiciary Committee, all of which shows the basic unfairness of what is going on in Guantanamo. The only way to correct it is through the traditional habeas corpus rights in Federal court.

I yield the floor.

BREAK IN TRANSCRIPT

Mr. SPECTER. Mr. President, I ask my colleague from South Carolina if he would be willing to respond to a few questions.

Mr. GRAHAM. I would be honored to respond to my friend from Pennsylvania.

Mr. SPECTER. I will begin with the subject matter brought up by the Senator from Connecticut about the status of aliens. I would note that in the Rasul case, the Supreme Court, Justice Stevens speaking for a majority, answered this categorically:

Aliens held at the base, like American citizens, are entitled to invoke the Federal courts' section 2241 authority--

Which is the habeas corpus statute.

So the court has dealt with that conclusively in Rasul much the same way that Justice O'Connor did speaking for plurality in an earlier case.

Addressing the question to the Senator from South Carolina, earlier today I noted the order establishing Combat Status Review Tribunals, and it provided that:

All detainees shall be notified--

Leaving out some irrelevant material--

of the right to seek a writ of habeas corpus in the courts of the United States.

Is the Senator familiar with that provision?

Mr. GRAHAM. No, sir, I am not.

Mr. SPECTER. Well, I hadn't been until a few days ago. But this is the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated July 7, 2004, to the Secretary of the Navy.

The Senator from South Carolina made the argument that the judges were not appropriate to make determinations of reviewing the orders or the conclusions of the Combat Status Review Tribunal. How would the Senator from South Carolina account for the acquiescence by the--

Mr. GRAHAM. I have been told that the order the Senator is talking about was implemented in the Rasul decision, and it would be a correct statement of Mr. Wolfowitz to make.

Rasul said that habeas rights attached to Guantanamo Bay detainees until Congress says otherwise, and that is the difference we have. I read Rasul to say, since Congress hasn't spoken under 2241, Guantanamo Bay is within U.S. jurisdiction and the statute would apply to anybody held at Guantanamo Bay. It is not an overseas location. Until Congress speaks, under 2241 you will have the right.

Congress has spoken. We spoke last year. We took 2241 and changed it. We excluded noncitizens and any prisoners from the habeas rights under 2241 and, quite honestly, that issue has gone to the D.C. Circuit Court of Appeals, and we won last week.

Mr. SPECTER. Well, the question about the Department of Defense agreeing to allow habeas corpus rights was not taken up by the Circuit Court for the District of Columbia and the Detainee Treatment Act. Congress gave the Department of Defense the right to establish the rules, and that is one of the rules. Wait a minute. The question hasn't come yet.

Mr. GRAHAM. OK.

Mr. SPECTER. Is it fair to change the rules in the middle of the process after the Department of Defense has stated that they think it is appropriate for a Federal court--they specifically talk about courts of the United States--to make a determination under habeas corpus to see if the definition which they set for enemy combatants has been followed. They have specified that there has to be evidence. To the definition of what or who is an enemy combatant:

An individual who was part of or supporting the Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Now, the Department of Defense who promulgated this order concluded that it was within the purview of the Federal courts, and that is really a judicial function to determine whether the definition for enemy combatant has been achieved, isn't it?

Mr. GRAHAM. If I may respond, I think it is not remotely fair to say that the Department of Defense has conceded that habeas corpus rights should be given to detainees at Guantanamo Bay. Once Rasul was decided and the Government lost, that it was outside the jurisdiction of the United States, the Rasul case said: Until Congress acts, you will have a habeas right. The administration has come to me and other Members of this body since that decision and has been begging us to address 2241. The Supreme Court, in three separate decisions, has said Congress needs to get involved. The administration's theory was, there is no room for Congress in the courts.

BREAK IN TRANSCRIPT

Mr. SPECTER. Well, if I may respond, when the Supreme Court said Congress should act, they were saying that Congress should legislate on how a military commission should be tried. But moving to your argument about the issue of constitutional right, how could it be that if the Constitution says that the right of habeas corpus can be suspended only in the event of invasion or insurrection? How can it be argued that there is no constitutional right?

That is the argument that the Attorney General made in the Judiciary Committee hearing. Where the Constitution explicitly says the constitutional right of habeas corpus can be suspended only in invasion or insurrection, and no one says that either of those factors is present here, isn't that a flat-out statement that there is a constitutional right?

Mr. GRAHAM. All I can tell my colleague is that issue went up to the D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly as you can say it that there is no constitutional right for a noncitizen enemy prisoner classified as such by our military during hostilities to come into our Federal courts. Just like Justice Jackson said in 1950, that would be a disaster. I just can't believe any Federal court is going to say that Sheikh Mohammed, the mastermind of 9/11, who is an al-Qaida member, gets more rights than the Nazis. I just don't believe they are going to do that. If I am wrong, I will come to the floor of the Senate and say I am wrong. But I think I am right. The D.C. Circuit Court of Appeals agrees with me, and I believe we are going to win at the Supreme Court, if we can let these judges look at something without changing it every 30 days.

Let's give this a shot and see what happens. We will know soon. I apologize, but I have to go.

Mr. SPECTER. Wait just a minute. Make your answers a little more responsive and brief, and I won't keep you too long. I will keep you just a few more minutes.

The Court of Appeals for the District of Columbia said that the Supreme Court, speaking explicitly through Justice Stevens, only dealt with a holding on the statute.

They classified it as dictum when they said there was a constitutional right. Let me move on quickly to a couple of other points.

As to the adequacy of proceedings in the combat status review tribunals, you have the case involving In re: Guantanamo, which I cited this morning, where Judge Green dealt with the precise case in the District of Columbia Circuit Court, the Boumediene case, which had a procedure where the detainee was charged with talking to somebody who was from al-Qaida, and he asked who it was and they could not identify the person. There was laughter in the courtroom, and Judge Green said it is understandable that there was laughter in the courtroom because nothing had been established.

I ask a very simple, direct question, and maybe you can even answer it yes or no. Was that a fair proceeding?

Mr. GRAHAM. I can tell you that the Court will soon tell us. If I can give you what I think is the right answer, the combat status review tribunal, as to whether they provided adequate due process is on appeal now to the Supreme Court. The Supreme Court will soon tell us not just about war crimes legislation but about the CSRT provisions and whether they are constitutional.

I argue we are going to win on that one because 190-1 of the Army manual was the model that set up the combat status review tribunal. What right does a person have under the Geneva Conventions, in a time of war, when it comes to the question of status? Article 5 says competent tribunals--and all over the world that competent tribunal is not a Federal judge or the equivalent in another country, it is a military tribunal. If the Court rules the combat status review tribunal doesn't afford due process, I will sit down with you and others to make it comply to the Court's decision. I have no desire to take somebody from any part of the world and put them at Guantanamo Bay if they should not be there. That doesn't make America better or stronger. I do believe, contrary to the laughter in the courtroom, that the people best able to determine whether an enemy prisoner is a threat to our country or, in fact, an enemy prisoner is not some circuit judge or district court judge anywhere in America who was never trained in this, but military officers who are trained in making those decisions. They are the ones I trust. They have done it in every other war; they should do it in this war. I am willing to have their work product looked at by the Federal courts, and that is going on right now. We will soon know the answer to that question. Are CSRTs constitutional? If not, we will fix them.

I hate to leave. I have enjoyed this debate.

Mr. SPECTER. I have one more thing. I take your last extended statement to be a ``no,' am I right?

Mr. GRAHAM. I believe they will be constitutional. If you think there has been a miscarriage of justice in any case, that will go to court. If you think something happened in the CSRT that is laughable, then the Federal court is going to get to look at every case. I can assure you and every other American that every decision made by the military on Guantanamo Bay will work its way to the Federal court, and our judges will look at the record and the process, and they will tell us in individual cases and as a group whether this works. Give them a chance to do it.

With that, I have to leave.

Mr. SPECTER. One last question. I still take that to be a ``no.' It was not a complex question. Do you think it is fair where the Department of Defense sets the rules, contrary to your assertion, that they think Federal judges can decide whether the evidence establishes the standard for an enemy combatant, do you think it is as fair under American justice to have a presumption of guilt?

Mr. GRAHAM. No. This is an administrative hearing. The enemy combatant status determination is not a criminal decision. It is, in an armed conflict, an administrative decision where the procedure is set up. I will get you the regulation and we will introduce it, but it is article 5 on steroids. It has presumptions, rebuttable presumptions, and you have an annual review board on what should be determined to be a enemy combatant. You have a new hearing every year on whether new evidence came in, whether you are still a threat to the country, and whether you have intelligence value. Two hundred people have been released at Guantanamo Bay because they have gone through the process and the military determined they are no longer a threat. Twelve of the two hundred have gone back to killing Americans.

There is no perfect system. We are trying to be fair. God knows we want to be fair, but I tell you what, in close calls between letting someone go who the military thinks is a member of al-Qaida and killing other Americans and innocent people, I am going to make sure they stay in jail and let the judges determine if we have done it fairly. I will not sit on the sidelines and open the gates to people who have been caught in the process of aiding the enemy or becoming the enemy just because we are trying to create new rules for this war that we have never had in any other war because some people don't like Bush. Bush made a lot of mistakes, but this war is going to go on long after Bush is gone.

If you let these people out of jail, at least 12 of them are going to come back and kill you.

With that, I must leave. We will continue the debate.

Mr. SPECTER. Let me say, in conclusion, that bombast and oratory and repetition cannot undercut a few very basic facts. One is that the Department of Defense established a rule to give Guantanamo detainees the right of habeas corpus. They set out a standard as to what would constitute being an enemy combatant. These are rules, when they call for evidence, that judges are equipped to decide. When there is a rebuttable presumption of guilt, undercutting the basic principle of America, the

presumption of innocence, that is basically unfair.

When you talk about the decision by the Court of Appeals for the District of Columbia, where they limited the Supreme Court opinion to a narrow holding on the statute, although the court then went on to say there was a constitutional right, that will not pass muster when it comes back to the Supreme Court. It is fallacious to the utmost to argue that there is no constitutional right to habeas corpus, when the Constitution explicitly says the right of habeas corpus may be suspended only in time of invasion or rebellion. It simply cannot be contended rationally that there is no constitutional right to habeas corpus.

I am as concerned as the Senator from South Carolina about protecting America. I led the fight to reauthorize the PATRIOT Act. But the question is, is there some reason to hold the detainees? In the case that went to the District of Columbia Circuit Court of Appeals, you had the District Court looking at the information--it wasn't evidence--which was that the detainee had a conversation with an al-Qaida member, but they could not identify him. The proceeding was a laughingstock. That is the detainee in the District of Columbia Circuit Court case which is going to the Supreme Court.

I don't think this Congress ought to wait or punt to the Supreme Court. We passed a statute which takes away Federal court jurisdiction to make the simple determination: Is there a reason to hold them? We ought not to let that stand.

I ask unanimous consent that a letter dated today, received by Senator Leahy and myself, be printed in the Record. It sets forth eloquently the reasons why habeas corpus for detainees should be reinstated by the Congress. It is signed by RADM Don Guter, who was the Navy's Judge Advocate General; RADM John Hutson, the Navy's Judge Advocate General at an earlier period; BG David Brahms, who was the Marine Corps senior legal adviser from 1983 until 1988; and BG James Cullen, who was the chief judge of the U.S. Army Court of Criminal Appeals.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

March 7, 2007
Hon. PATRICK LEAHY, Chairman,
Hon. ARLEN SPECTER, Ranking Member,
Senate Committee on the Judiciary, United States Senate Washington, DC.

DEAR CHAIRMAN LEAHY AND SENATOR SPECTER: We strongly support your legislation to restore habeas corpus for detainees in US custody. We hope that it quickly becomes law.

Known as the ``Great Writ,' habeas corpus is the legal proceeding that allows individuals a chance to contest the legality of their detention. It has a long pedigree in Anglo Saxon jurisprudence, dating back to 13th Century England when it established the principle that even Kings are bound by the rule of law. Our Founding Fathers enshrined the writ in the Constitution, describing it as one of the essential components of a free nation.

In discarding habeas corpus, we are jettisoning one of the core principles of our nation precisely when we should be showcasing to the world our respect for the rule of law and basic rights. These are the characteristics that make our nation great. These are the values our men and women in uniform are fighting to preserve.

Abiding by these principles is critical to defeating terrorist enemies. The U.S. Army's Counterinsurgency Manual, which outlines our strategy against non-traditional foes like al Qaeda, makes clear that victory depends on building the support of local populations where our enemies operate through the legitimate exercise of our power. The Manual states: ``Respect for preexisting and impersonal legal rules can provide the key to gaining widespread and enduring societal support. ..... Illegitimate actions,' including ``unlawful detention, torture, and punishment without trial ..... are self-defeating, even against insurgents who conceal themselves amid non-combatants and flout the law.' Our enemies have used our detention of prisoners without trial or access to courts to undermine the legitimacy of our actions and to build support for their despicable cause.

It is certainly true that prisoners of war have never been given access to courts to challenge their detention. But the United States does have a history of providing access to courts to those who have not been granted POW status and are instead being held as unlawful combatants, as are the detainees in this conflict. See., e.g., Ex Parte Quirin, 317 U.S. 1 (1942) (rejecting the claim that the Court could not review the habeas claim of enemy aliens held for law of war violations).

POWs are combatants held according to internationally prescribed rules, and are released at the end of the war in which they fought. In a traditional war, it is generally easy to determine who is a combatant and governed by these special rules. But the war we are fighting today is different. Detainees held at Guantanamo Bay were captured in 14 countries around the world, including places as far away from any traditional battlefield as Thailand, Gambia, and Russia. Some were sold to the United States by bounty hunters. Our enemies blend into the civilian population, making the practice of identifying them more difficult. For all these reasons, the possibility of making mistakes is much higher than in a traditional conflict. In such a situation, it is incumbent on our nation to ensure that there is an independent review of the decision to detain.

The denial of habeas corpus also threatens to harm our national interests by placing American civilians at risk. Imagine if an enemy of the United States arrested an American citizen--a nurse or interpreter or employee of a military contractor--because they once provided assistance to our armed forces, and held that American without charge or opportunity to challenge their detention in court. We would be outraged, and rightly so. Yet, this is the precedent we are setting by holding without charge those deemed to have aided the enemy and denying them access to a court that could review the basis of their detention.

A judicial check on the decision to detain is in the best tradition of the United States--a tradition that ensures accountability, accuracy, and credibility. Restoring habeas corpus will help ensure that we are detaining the right people and showcase to the world our respect for the rule of law and the values that distinguish America from our enemies.

We hope that Congress will act quickly to pass this legislation.

Sincerely,

Rear Admiral Don Guter, USN (Ret.)
Rear Admiral John D. Hutson, USN (Ret.)
Brigadier General David M. Brahms, USMC (Ret.)
Brigadier General James P. Cullen, USA (Ret.).

Mr. SPECTER. I yield the floor.

BREAK IN TRANSCRIPT

Mr. SPECTER. Madam President, while the Senator from New Hampshire is still on the floor, I thank him and commend him for his statement directly to the issues. He has articulated them very well. It is a different circumstance and what we are looking at is the issue of indefinite detention and some process where there has to be some reason given for the detention. It doesn't haven't to comply with the technical Rules of Evidence, although the Department of Defense regulation calls for evidence, and evidence is a work of art comprehending competency of items to establish a fact. But without moving into the full range of evidence for some reason to hold them--and I agree with the Senator from New Hampshire that we are not looking for a remedy to test living conditions or to test food or test a wide variety of items that may be comprehended in other habeas corpus situations, but just detention--that is all--just detention.

I am agreeable to modifying the amendment to specifying just detention. The Senator from New Hampshire raises a valid point that there may be other Senators--he estimates as many as 10--who are inclined to support an amendment which directed itself only at detention.

There is the right of modification. I am going to talk to more of my colleagues to see if that would produce a significantly different result.

I thank the Senator from New Hampshire.

BREAK IN TRANSCRIPT

Mr. SPECTER. Madam President, while the Senator from Illinois is still on the Senate floor, I want to thank him for those eloquent remarks going right to the core of the issue, the importance of protecting America from terrorists and at the same time a balance in protecting Americans' constitutional rights.

When he refers to Tom Sullivan, the very distinguished Chicago attorney, I might note that Mr. Sullivan testified at a Judiciary Committee hearing and brought forth a number of examples, which I put into the RECORD earlier today, where it is recited in some detail people who were detained at Guantanamo for very long periods of time. One specifically commented about crossed the border, was supposed to have been associated with someone from al-Qaida, no reason for keeping him was given, no evidence to that effect, but was kept for 5 years and then released.

Let me express a concern I have, which I discussed earlier with the Senator from Illinois, and that is I am concerned that this amendment will not receive a vote. Last year, the Senate voted on a 51-to-48 vote, to include language in the Military Commissions Act that limited Federal court habeas jurisdiction. I have suggested that there be a cloture petition filed on this bill, if we are going to vote on cloture later this week on the underlying bill, and that would be a case where we might vote on cloture on this amendment. I would structure it in that fashion only as a way to get a vote so that people will have to take a position, and I simply wanted to make reference to that.

Madam President, I yield the floor.

http://thomas.loc.gov/

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