National Defense Authorization Act for Fiscal Year 2008

Floor Speech

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008 -- (Senate - September 19, 2007)

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Mr. SPECTER. I thank my distinguished colleague from Vermont.

Mr. President, the arguments advanced by the Senator from South Carolina a few moments ago are outdated. The Supreme Court of the United States has held in the Rasul case that the Guantanamo detainees have rights under the Constitution to proceed in court in habeas corpus. In my view, that decision was based on both constitutional and statutory grounds. The Court of Appeals for the District of Columbia has held that it is a matter of statutory interpretation. I believe that will be reversed by the Supreme Court in a case now pending there. But the existing law is governed by the Military Commissions Act, and the question is whether the Congress should now correct the provision in the Military Commissions Act which eliminated the right of Guantanamo detainees to challenge their detention by habeas corpus proceedings in Federal court.

The District of Columbia Circuit has held that the provisions of the Combatant Status Review Tribunal are adequate. I believe that an examination of those proceedings will show that they are palpably deficient and obviously inadequate on their face.

The constitutional right of habeas corpus is expressly recognized in the Constitution, with a provision that habeas corpus may be suspended only in time of invasion or insurrection, neither of which situation is present here. That fundamental right has been in existence since the Magna Carta in 1215. As noted earlier, the Supreme Court, in Rasul, has recently applied that constitutional right to Guantanamo Bay detainees.

Now, Congress has acted to legislate to the contrary. Of course, Congress cannot legislate away a constitutional right; that can be done only by amendment to the Constitution. That matter is now pending before the Supreme Court, and I believe on the precedents it will be held that it remains a constitutional right.

But the issue which we confront today is the statute, the Military Commissions Act passed by Congress 2 years ago which eliminates habeas corpus. The Supreme Court has held, in the case of Swain v. Pressley, that habeas corpus in the Federal courts may be eliminated by an adequate substitute. In that case, the substitute held to be adequate was a proceeding in the District of Columbia courts. The Supreme Court said: That was adequate judicial review to superintend executive detention.

But when we take a look at the provisions of the Combatant Status Review Board, as examined by the District Court in the District of Columbia, in the In re: Guantanamo cases, this is illustrative. An individual was charged with being an associate of al-Qaida individuals. When asked to identify whom he was supposed to have associated with, the tribunal could not identify the person. I discussed this case at some length yesterday, and the courtroom broke into laughter. It was a laughing matter to be detaining somebody who was allegedly associated with someone from al-Qaida when they could not even identify who the person was.

Now, there has been a very revealing declaration filed by LTC Stephen Abraham, who was a member of the Combatant Status Review Tribunal and observed the process.

This is the way Lieutenant Colonel Abraham described the process:

Those of us on the panel found the information presented to try to uphold detention to ``lack substance.'' What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or credibility of the sources.

I put this in the Record yesterday, but it shows a proceeding totally devoid of any substance. You don't have to have sufficient evidence to go to court to detain someone at Guantanamo, but there has to be some basis for the detention. An examination of what is happening with the Combatant Status Review boards shows they are entirely inadequate under the standards set down by the Supreme Court in the case of Swain v. Pressley. Therefore, the alternative established by Congress in the Military Commissions Act is totally insufficient to provide fair play.

The Supreme Court of the United States has laid it on the line. Even the Guantanamo detainees are entitled to fairness. Guantanamo has been ridiculed around the world and Guantanamo is not being closed. No alternative has been found for it. But at a minimum, those who are detained at Guantanamo ought to have some proceeding to establish some basis, however slight, for their continued detention.

When Congress established the Military Commissions Act and provided for Combatant Status Review boards, we did so with the thought that we could have an alternative to going to Federal court, which would provide a basic rudimentary element of fairness required by the Geneva Conventions and required by the Supreme Court, which brushed aside the practices from World War II, overruling the prior precedents. So now it is up to the Congress of the United States to correct that mistake which we made 2 years ago. I believe any fair reading of what happens with the Combatant Status Review boards would demonstrate that we ought to correct the 2005 legislation. This amendment ought to be adopted.

I yield the floor.

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