Opposing Extension of Habeas Corpus Rights to Alien Enemy Combatants

OPPOSING EXTENSION OF HABEAS CORPUS RIGHTS TO ALIEN ENEMY COMBATANTS -- (House of Representatives - September 26, 2007)

The SPEAKER pro tempore. Under a previous order of the House, the gentleman from California (Mr. Daniel E. Lungren) is recognized for 5 minutes.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, today in the Judiciary Committee we were supposed to mark up H.R. 2826. I was informed that the Judiciary Committee has postponed this to a time uncertain. This was also to be the day that that bill or a similar bill was to be marked up in the Armed Services Committee. That was postponed as well.

The bill, H.R. 2826, was to deal with an issue that is unprecedented and, I would say, unnecessary. And while I am pleased that there was a postponement of consideration of the bill today, I would hope that those on the other side of the aisle who control the schedule both on this floor and in committees would reconsider this bill or any similar bill because this bill is an effort to extend habeas corpus rights to alien enemy combatants. It is a dramatic departure not only from the language of the Detainee Treatment Act, which was passed by this House and the Senate and signed by the President, but from longstanding principles in our Anglo-American legal tradition. As the United States Supreme Court recognized in the Johnson v. Eisentrager case, there is ``no instance where a court in this or any other country where the writ is known issued it on behalf of an alien enemy.''

What possible reason could we give to the American people and to our troops currently involved in combat for giving al Qaeda and Taliban detainees rights that have never been given to alien enemy combatants in the history of armed conflict? Never. I underscore ``never.''

Was the Greatest Generation wrong for its failure to accord habeas rights to the more than 425,000 enemy combatants held inside the United States during World War II? We held well over a million, I believe it was over 2 million POWs around the world. But we held 425,000 of them in the United States. Imagine if we had granted them the right to habeas corpus access to our Federal courts. Not only would it have cluttered all of the Federal courts in this land, but it would have had judges making decisions on combat issues rather than the Commander in Chief and our military as we have always recognized since the founding of this Republic.

In responding to the argument that the writ extends to alien enemy combatants, Justice Jackson of the Supreme Court said, ``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.''

So I want people to understand, Mr. Speaker, that when we are to consider this in the Judiciary Committee and the Armed Services Committee, we are doing something so fundamentally drastic, so different from anything that has ever been done in the history of this Nation. We are opening the gates to the full panoply of rights under the Federal habeas corpus statute. Complex evidentiary hearings, the rules of civil procedure, rules of evidentiary custody are understandable in relation to the protection of the constitutional rights of Americans where evidence and witnesses are more accessible.

But are we willing to force our men and women in uniform to cross-examination, to depositions or to interrogatories as outlined in the Federal habeas statute? The availability of the habeas corpus remedy may serve the interest of justice with respect to U.S. prisoners; however, it is a blunt instrument. As Justice Frankfurter observed in McCleskey v. Zant, ``The writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice.'' It has no relevance here and presents the prospect of abuse. It is for that reason that from time immemorial, habeas relief has not been extended to alien enemy combatants captured outside the realm of the sovereign.

We must reject the notion that we can fight the war on terrorism with platoons of lawyers. It was stunning to learn that prior to the Detainee Treatment Act, some detainee attorneys sought the wholesale disruption of interrogations. In a telling revelation, one detainee lawyer boasted in public that ``the litigation is brutal. It's huge. We have over 100 lawyers now from big and small firms working to represent the detainees. Every time an attorney goes down there, it makes it that much harder 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?''

That is why we changed the law and to have two committees in this House now to say we should change it back is irresponsible. We should not do this.

Source