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Date: 5/21/2007

To: Leahy, Sen. Patrick @ 224-3479

Time: 5:40 PM

Page: 011


Constitution Project



Statement of the Constitution Project's

Liberty and Security Initiative &
Coalition to Defend Checks and Balances

March 4, 2007

The Constitution Project 1025 Vermont Avenue, NW

Third Floor
Washington, DC 20005

202-580-6920 (phone)

202-580-6929 (fax)

info@constitutionproject.org www.constitutionproject.org

Date: 5/21/2007

To: Leahy, Sen. Patrick @ 224-3479

Time: 5:40 PM

Page: 012



We, the undersigned members of the Constitution Project's Liberty and Security Committee and the Project's Coalition to Defend Checks and Balances, are deeply troubled by

the recent legislation eliminating habeas corpus for certain non-citizens detained by the United

States. We recommend that Congress vote to restore federal court jurisdiction to hear these

habeas corpus petitions.

Habeas corpus has for centuries served as the preeminent safeguard of individual liberty and the separation of powers by providing meaningful judicial review of executive action. In 2004, the United States Supreme Court upheld the right of Guantanamo detainees to file habeas

corpus petitions to challenge the lawfulness of their indefinite detentions.

Nevertheless, in October 2006, Congress enacted the Military Commissions Act (“MCA”)

eliminating habeas corpus for certain aliens held by the United States as “enemy combatants." While we recognize the need to detain foreign terrorists to protect national security, we do not believe repealing federal court jurisdiction over habeas corpus serves that goal. On the contrary, habeas corpus is crucial to ensure that the government's detention power is exercised wisely, lawfully, and consistently with American values.

The protections of habeas corpus have always been most critical in cases of executive detention without charge. In these circumstances, habeas corpus proceedings afford prisoners a meaningful opportunity to be heard before a neutral decisionmaker.

The unconventional nature of the current “war on terrorism” makes habeas corpus more,

not less, important. Unlike in traditional conflicts, there is no clearly defined enemy, no

identifiable battlefield, and no foreseeable end. The administration claims the power to imprison

individuals without charge indefinitely, potentially forever. For that reason, it is essential that there be a meaningful process to prevent the United States from detaining people without legal

* The Constitution Project sincerely thanks Jonathan Hafetz, Litigation Director, Liberty & National Security Project, Brennan Center for Justice at NYU School of Law, for sharing his expertise on this subject and for his guidance in drafting this statement.


Date: 5/21/2007

To: Leahy, Sen. Patrick @ 224-3479

Time: 5:40 PM

Page: 013

authority or mistakenly depriving innocent people of their liberty. Habeas corpus provides that


Habeas corpus is particularly important because of the way in which many detainees at

Guantanamo came into U.S. custody. Most detainees were captured far from an active
battlefield; many were sold for bounty by Afghani warlords to the Northern Alliance before being
handed over to American forces. And, unlike in previous conflicts, the U.S. military did not

provide a prompt hearing to determine a detainee's status, as the Geneva Conventions and U.S.

army regulations require. As the Supreme Court has made clear, in the absence of such process habeas corpus is necessary to ensure that legal and factual errors are corrected and detention

decisions are viewed as legitimate.

We recognize that the Military Commissions Act and the Detainee Treatment Act of 2005

provide detainees at Guantanamo with hearings before a Combatant Status Review Tribunal
(“CSRT"), and that the CSRT decisions may be reviewed by the United States Court of Appeals
for the D.C. Circuit. But we believe that this review scheme cannot replace habeas corpus for two

principal reasons.

First, the CSRT process lacks the basic hallmarks of due process. Among other problems,

it relies on secret evidence, denies detainees the chance to present evidence in their favor, and

prohibits the assistance of counsel. In addition, the process permits the tribunal to rely on

evidence obtained by coercion. Second, the D.C. Circuit's review is limited to what will

inevitably be an inherently flawed record created by the CSRT. Unlike a U.S. district court judge hearing a habeas corpus petition, the D.C. Circuit cannot consider evidence or make its own findings of fact, and, therefore, it cannot rectify the CSRT's inherent procedural flaws.

The result does not provide these prisoners the process which they are due. The government has detained prisoners for more than five years without a meaningful opportunity to be heard, and has failed to create an adequate substitute for habeas corpus.

Restoring habeas corpus is also important to protecting Americans overseas. The United


Date: 5/21/2007

Time: 5:40 PM

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To: Leahy, Sen. Patrick @ 224-3479

States cannot expect other nations to afford our citizens the basic guarantees provided by habeas corpus unless we provide those guarantees to others.

If the United States is going to establish a system of indefinite detention without charge, it must at least ensure there is a meaningful process to determine it is holding the right people. When no such process has been provided, as in the case of Guantanamo detainees, habeas corpus supplies the critical fail-safe procedure to ensure that the executive has complied with the

Constitution and laws of the United States. We also believe that in our constitutional system of

checks and balances, it is unwise for the legislative branch to limit an established and traditional

avenue of judicial review.

America's detention policy has undermined its reputation in the international community and weakened sopport for the fight against terrorism, particularly in the Arab world. Restoring habeas corpus would help repair the damage and demonstrate America's commitment to a tough, but rights-respecting counter-terrorism policy. Therefore, we urge Congress to restore the habeas corpus rights that were eliminated by the Military Commissions Act.


Date: 5/21/2007

To: Leahy, Sen. Patrick @ 224-3479

Time: 5:40 PM

Page: 015

Members of the Constitution Project's

Liberty and Security Committee &

Coalition to Defend Checks and Balances
Endorsing the Statement on Restoring Habeas Corpus Rights

Eliminated by the Military Commissions Act*

Floyd Abrams, Partner, Cahill Gordon & Reindel LLP

Azizah al-Hibri, Professor, The T.C. Williams School of Law, University of Richmond;
President, Karamah: Muslim Women Lawyers for Human Rights

Bob Barr, Former Member of Congress (R-GA); CEO, Liberty Strategies, LLC; the 21st Century
Liberties Chair for Freedom and Privacy at the American Conservative Union; Chairman of
Patriots to Restore Checks and Balances; Practicing Attorney; Consultant on Privacy Matters for
the ACLU

David Birenbaum, Of Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP; Senior Scholar,
Woodrow Wilson International Center for Scholars; former US Ambassador to the UN for UN
Management and Reform, 1994-96

Christopher Bryant, Professor of Law, University of Cincinnati; former Assistant to the Senate
Legal Counsel, 1997-99

David Cole, Professor, Georgetown University Law Center

Phillip J. Cooper, Professor, Mark O. Hatfield School of Government, Portland State University

John J. Cartin, Jr., Bingham McCutchen LLP; former President, American Bar Association

John W. Dean, Former Counsel to President Richard Nixon

Mickey Edwards, Lecturer at the Woodrow Wilson School of Public and International Affairs,
Princeton University; former Member of Congress (R-OK) and Chairman of the House
Republican Policy Committee

Richard Epstein, James Parker Hall Distinguished Service Professor of Law, The University of
Chicago; Peter and Kirsten Bedford Senior Fellow, The Hoover Institution

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