Mr. Rivkin is a partner at Baker & Hostetler, LLP. He is a Visiting Fellow at the Nixon Center, contributing editor of the National Review magazine, a member of the United Nations Subcommission on the Promotion and Protection of Human Rights. He served under President Reagan and the current President Bush in the White House Counsel's Office, Office of the Vice President, Departments of Justice and Energy, graduated from Georgetown University School of Foreign Service. He also holds a master's degree in Soviet affairs from Georgetown and a J.D. from Columbia University Law School.

Go ahead, Mr. Rivkin.

STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, BAKER & HOSTETLER LLP, WASHINGTON, D.C.

Mr. RIVKIN. Chairman Leahy, members of the Committee, I appreciate the opportunity to be here.

Fundamentally, I believe that the Military Commissions Act as well as the Detainee Treatment Act comport with the United States Constitution, actually exceed the applicable norms of international law, and are well in line with American constitutional traditions and history.

The procedures accorded under the MCA and DTA are streamlined, yet essentially fair. They furnish detainees with access to the judicial process that is sufficient to enable them to mount a meaningful challenge to their confinement. In fact, I would submit to you that they give the detainees far more due process than they ever had under any other "competent tribunals" convened under the Geneva Conventions in the past or in any past military commissions of the United States.

As we all know, under the current system, the United States Court of Appeals for the District of Columbia Circuit is the exclusive venue for handling any legal challenges by detainees. Those requirements in those statutes also limit the Court to exercising jurisdiction until after a CSRT or military commission has exercised a final decision and limit judicial review essentially to two questions: whether the CSRT or military commission operated consistent with the rules and standards adopted by it, and also whether or not the CSRT or military commission reached a decision that is "consistent with the Constitution and laws of the United States." In my view, this scope of judicial review is not only sufficient for non-citizens held abroad, but is constitutionally sufficient for United States citizens themselves. In fact, despite all the criticism we have heard, the fact that the review does not commence at the district court level and does not follow in all particulars the existing Federal statutory habeas procedures codified at 28 U.S.C. Section 2241, does not amount to suspension of habeas corpus, and, indeed, is constitutionally unexceptional, I would submit to you that this proposition is well established by the existing Supreme Court precedents.

For example, in the 1977 Supreme Court case of Swain v. Pressley that Senator Specter references in his opening statement, the Supreme Court stated that "the substitution [for a traditional

equate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus."

Also, contrary to assertions by many critics that the current system is deficient because it does not allow for judicial review of factual issues, I believe that the D.C. Circuit and the Supreme Court are not limited to reviewing merely the legality of CSRT or military commission procedures. This is because under the teaching of Ex Parte Milligan, it is unconstitutional to bring civilians before military commissions or to hold them as enemy combatants if civilian Article III courts are open and functioning. Accordingly, a detainee should be able to claim that he is not, in fact, an enemy combatant, and the relevant factual record of the CSRT or the military commission would be judicially reviewable. Indeed, I would submit that this is the very same nature of review given to Nazi saboteurs— of whom at least one was a U.S. citizen-in Ex Parte Quirin, in 1942, where the Supreme Court rejected their contention that they were civilians, not subject to military jurisdiction. And we all know that the Supreme Court on a number of recent occasions referred to Quirin as good law.

Now, I briefly want to mention that the procedures used by CSRTS and military commissions, while criticized by many people, in my view are supported by the realities that exist in the military justice system. In fact, throughout history, it has always been difficult to distinguish between irregular combatants and civilians. That is part of the reason why al Qaeda and Taliban members do not make themselves known. And, true to form, nearly all detainees claim to be shepherds, students, pilgrims, or relief workers, collude among themselves to support this position, and casually name persons thousands of miles away who can "verify" that they are not enemy combatants.

Accordingly, in my view, the only appropriate point of reference for assessing the sufficiency of procedures used by the CSRT and military commissions is to look at their historical and international counterparts, which are tribunals organized under Article 5 of Geneva Convention III to identify enemy combatants, and the military commissions used by the United States in, and in the aftermath of, World War II. I think we can say it is undisputed that the CSRTS and military commissions offer far more process to the Guantanamo detainees than either Article 5 Tribunals or World War II-style military commissions.

To be sure, I would readily stipulate that if you compare CSRTs and military commissions to civilian courts, they undoubtedly feature more austere procedures. However, as already mentioned, these bodies are meant to address a different context, a different type of procedure that is distinct from the realities of the criminal justice system. And I do not quite understand why it is a disservice to our legal traditions and to the rule of law to, in effect, say that anything that does not feature the same standards as exist in the criminal justice system is inconsistent with our values.

The last thing I would say is the fact that the Department of Defense also holds on an annual basis Administrative Review Boards, which focus primarily on the question of whether detainees held in U.S. custody pose continued danger and whether viable alter

extent to which the United States has opted to provide captured enemy combatants with additional rights that go above and beyond those required under international law and the Constitution. The practice, by the way, is historically unprecedented since the notion of enabling captured enemy combatants to be released on parole fell out of practice by the 19th century.

Thank you.

[The prepared statement of Mr. Rivkin appears as a submission for the record.]

Chairman LEAHY. Thank you very much.

Our next witness, Orin Kerr, is a professor of law at George Washington University, where he teaches courses relating to criminal law and procedure. Prior to joining the George Washington University faculty, he was a trial attorney in the Criminal Division of the United States Department of Justice. He is a graduate of Princeton University, Stanford University, Harvard Law School, and a former law clerk to Justice Anthony Kennedy of the U.S. Supreme Court.

Professor Kerr, thank you for coming. Please go ahead, sir.

STATEMENT OF ORIN KERR, PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, D.C. Mr. KERR. Thank you, Mr. Chairman. It is a pleasure and honor to be here. I would like to discuss some of the constitutional questions surrounding habeas corpus jurisdiction at Guantanamo Bay, and then I would like to put some of those questions in a broader

context.

The first important constitutional question here is how to characterize Guantanamo Bay. And, in particular, is it part of the United States or is it outside the United States? If it is part of the United States, then the habeas writ presumably does extend to Guantanamo Bay. If it is outside the United States, it probably does not. And this is an issue which-it is an unusual situation in which we basically know where eight of the nine current Supreme Court Justices come down on this question, putting together the opinions in Rasul v. Bush and Hamdan v. Rumsfeld, and, in particular, right now are split, if we want to line up all the Justices and count them, is 5-3 in favor of saying that Guantanamo Bay is part of the United States, is within the territorial jurisdiction of the United States, in particular, that opinion being held, as best we can tell, by Stevens, Souter, Ginsburg, Breyer, and Justice Kennedy. And the language here I think is fairly clear. Granted, the Court has not made this holding, but there are clear indications in the Rasul opinion that this is where the Court is going, In particular, the Rasul majority where the Court states that people detained at Guantanamo Bay are "detained within the territorial jurisdiction" of the United States. It is consistent with the historical scope of the writ of habeas corpus to extend the writ to the detainees. Further Justice Kennedy's concurrence, which states that the Guantanamo Bay Naval Base is in every practical respect a U.S. territory and that the implied protection of the habeas writ extends to it.

This is fairly clear language, although the Rasul case was statu

constitutional question even though the case, formally speaking, statutory.

If it is true that that view of five Justices prevails, what that means is that the writ of habeas corpus has to extend to Guantanamo Bay either as a formal matter or as a functional matter. Either Congress has to extend the writ to Guantanamo Bay, or there has to be some sort of adequate and effective alternative collateral remedy.

The key point, I think, to the adequate and effective test under Swain v. Pressley, is that that means essentially the substantial equivalent of the actual habeas writ. So the question becomes whether the detainees, through the alternative collateral remedies, would have some way of challenging their detention, which essentially gives them the set of rights to challenge their detention they would have in a formal habeas proceeding.

We do not at this point know with great certainty as to whether the existing remedies could satisfy that test, in part because we do not know what substantive rights the detainees have, and in part because we do not know exactly what procedures the D.C. Circuit is going to follow. So at least right now we have a state of considerable uncertainty as to how that test would be satisfied. But the key point is that, either way, we end up getting to the same result. Either the writ has to extend directly to the detainees at Guantanamo Bay, or else the D.C. Circuit has to construe the Detainee Treatment Act, however persuasively, or unpersuasively, in order to essentially provide those same rights through the language of the DTA instead of through the habeas writ.

So either way, assuming that the views of those five Justices prevail, the writ must extend to Guantanamo Bay either formally or essentially through an alternative means, which just does the same thing through another way.

Finally, in terms of the security implications of restoring the writ to Guantanamo Bay as a formal matter, I think when we approach questions of the war on terror involving such a balance between security and liberty, we naturally look to the security implications. What would it mean from a security standpoint to restore the writ? And I think the key point is that the security implications of doing so are actually quite modest.

First, assuming the views of those five Justices prevail, the writ has to be there whether Congress acts formally or not, as Senator Specter had indicated. Assuming Congress does restore the writ, it is not clear that it actually makes a substantive difference in terms of the rights that are established. What would probably make the biggest difference is the speed with which the courts could get to the merits, if any, of the detainees claims. It does not mean that detainees are going to be freed from Guantanamo Bay, certainly in a way that would threaten the security of the United States. All we are talking about here is the jurisdictional question which would allow the courts to get to the merits of these issues more quickly than they otherwise would.

Thank you.

[The prepared statement of Mr. Kerr appears as a submission for the record.]

Let me ask a few questions. I see Senator Durbin here, and I will yield to him for questions, or Senator Feingold, if he is still here. Proponents of this habeas-stripping provision, you have touched on this in your testimony, but they argue that we should eliminate habeas because it would help the military. They say that habeas review would hand military decisions about who was the enemy over to our Federal civilian courts. It would subject the military to all kinds of distractions and lawsuits.

Now, you spent most of your career in the military as part of the military legal system. Do you believe that allowing habeas review for detainees is harmful to the military and its mission?

Admiral GUTER. Mr. Chairman, I do not. First of all, the decision is still going to be made the initial decision of whether to take someone into custody is still going to be made by the military on the battlefield. So all we are talking about is removing them from the battlefield immediately and then where do we take them and what do we do with them after that. So I do not think so.

Second of all, I think it goes further to your question. To respond with a little bit of respectful disagreement to Mr. Rivkin, I was there at the beginning, and the goal of putting people in Guantanamo Bay was clearly to deny them any judicial review whatso

ever.

Since that time, we have been engaged in a type of reverse engineering to try to put processes and procedures in place that satisfy what we have already done to these folks in Guantanamo and other places so that we might be able to extract whatever evidence or whatever intelligence we can from them. But we have engaged in reverse engineering to do that.

The CSRTS in my judgment do not provide for a fair hearing, and I do not think the question is whether we are providing more or less protection than what we have in the past. It is whether or not they are fair. They have already-we have seen the kind of evidence that they allow. We have seen that they are inaccurate. We have seen that they are inconsistent. And I think worse than that, they still provide the potential for a black hole. You can run somebody through a CSRT and then never charge them, and without habeas, their case is never to be heard.

Chairman LEAHY. The sort of thing we criticize when other countries have done it. In fact, you say in your statement that you would hope that if you were ever detained abroad, that the United States would be able to argue for your release, but argue from the highest moral and legal grounds.

Do you think by that eliminating this habeas protection, we hurt our own credibility when we argue for the release of detainees abroad?

Admiral GUTER. I do not think there is any question, and it is not just this issue. It is many others.

Chairman LEAHY. Thank you. Professor Cuéllar, the Military Commissions Act eliminated the right to petition a court for habeas corpus for any alien-and those are words that I am quoting now from the statute "any alien detained by the United States," and it goes on to say "who has been determined to be an enemy combatant or"-and this is the part that in my mind is somewhat like