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Bruce Fein, Constitutional Lawyer and International Consultant at Bruce Fein & Associates and
The Lichfield Group; former Associate Deputy Attorney General, Reagan Administration

Eugene R. Fidell, President, National Institute of Military Justice; Partner, Feldesman Tucker
Leifer Fidell LLP

Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress

Melvin A. Goodman, Senior Fellow, Director of the National Security Project, Center for
International Policy

Morton H. Halperin, Director of U.S. Advocacy, Open Society Policy Center; Senior Vice
President, Center for American Progress; Director of the Policy Planning Staff, Department of
State, Clinton Administration

Philip Heymann, James Barr Ames Professor of Law, Harvard Law School; Deputy Attorney
General, Clinton Administration

Robert E. Hunter, Former U.S. Ambassador to NATO, 1993-98

David Kay, Former Head of the Iraq Survey Group and Special Adviser on the Search for Iraqi
Weapons of Mass Destruction to the Director of Central Intelligence

David Keene, Chairman, American Conservative Union

Christopher S. Kelley, Visiting Assistant Professor of Political Science, Miami University (OH)

Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe Smith Professor of International
Law, Yale Law School; Assistant Secretary of State for Democracy, Human Rights and Labor,
1998-2001

David Lawrence, Jr., President, Early Childhood Initiative Foundation; former Publisher, Miami
Herald and Detroit Free Press

Thomas Mann, Senior Fellow and W. Averell Harriman Chair, Governance Studies Program,
the Brookings Institution

Joseph Margulies, Deputy Director, MacArthur Justice Center; Associate Clinical Professor,
Northwestern University School of Law

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Date: 5/21/2007

To: Leahy, Sen. Patrick @ 224-3479

Time: 5:40 PM

Page: 017

Alberto Mora, Former General Counsel, Department of the Navy

Norman Ornstein, Resident Scholar, the American Enterprise Institute

Thomas R. Pickering, Former Undersecretary of State for Political Affairs 1997-2000; United
States Ambassador and Representative to the United Nations, 1989-1992

Jack Rakove, W.R. Coe Professor of History and American Studies and Professor of Political
Science, Stanford University

Peter Raven-Hansen, Professor, Glen Earl Weston Research Professor, George Washington Law
School

L. Michael Seidman, Professor, Georgetown University Law Center

William S. Sessions, Former Director, Federal Bureau of Investigation; former Chief Judge,
United States District Court for the Western District of Texas

Jerome ). Shestack, Partner, Wolf, Block, Schorr and Solis-Cohen LLP; former President,
American Bar Association

John Shore, Founder and President, noborg LLC; former Senior Advisor for Science and
Technology to Senator Patrick Leahy

Neal Sonnett, Chair, American Bar Association Task Force on Treatment of
Enemy Combatants and Task Force on Domestic Surveillance in the Fight Against
Terrorism

Suzanne E. Spaulding, Principal, Bingham Consulting Group; former Chief Counsel for Senate and House Intelligence Committees; former Executive Director of National Terrorism Commission; former Assistant General Counsel of CIA

Geoffrey Stone, Harry Kalven, Jr. Distinguished Service Professor of Law, the University of
Chicago

Jane Stromseth, Professor, Georgetown University Law Center

William H. Taft, IV, Of Counsel, Fried, Frank, Harris, Shriver & Jacobson; former Legal

6

Date: 5/21/2007

To: Leahy, Sen. Patrick @ 224-3479

Time: 5:40 PM

Page: 018

Advisor, Department of State, George W. Bush Administration; Deputy Secretary of Defense,
Reagan Administration

John Terzano, Vice President, Veterans for America

James A. Thorber, Director and Distinguished Professor, Center for Congressional and
Presidential Studies, American University

Charles Tiefer, General Counsel (Acting), 1993-94, Solicitor and Deputy General Counsel, 198495, U.S. House of Representatives

Patricia Wald, Former Chief Judge, U.S. Court of Appeals for D.C. Circuit

Don Wallace, Jr., Professor, Georgetown University Law Center; Chairman, International Law
Institute, Washington, DC

John W. Whitehead, President, the Rutherford Institute

Lawrence B. Wilkerson, Col, USA (Ret), Visiting Pamela C. Harriman Professor of Government at the College of William and Mary; Professorial Lecturer in the University Honors Program at the George Washington University; former Chief of Staff to Secretary of State Colin Powell

Roger Wilkins, Clarence J. Robinson Professor of History and American Culture, George Mason
University; former Director of U.S. Community Relations Service, Johnson Administration

*Affiliations Listed for Identification Purposes only

7

Statement of Donald J. Guter
Rear Admiral, Judge Advocate General's Corps, U. S. Navy (Ret.)

Dean, Duquesne University School of Law

Senate Committee on the Judiciary

Hearing on
Restoring Habeas Corpus: Protecting American Values and the Great Writ

May 22, 2007

Chairman Leahy and members of the Senate Judiciary Committee, thank you for the opportunity to speak in support of the Habeas Corpus Restoration Act of 2007 (S. 185). Passage of this bill is necessary to repeal provisions of the Military Commissions Act of 2006 that removed this fundamental protection from those detained in the “war on terror.” By taking this action we will, as the title of this hearing suggests, protect American values--for habeas corpus is not a special right, it is what we expect for our citizens and military personnel abroad and it is what we should extend to all human beings.

In July 2003, one year after retiring from active duty and having served the final two years of my three decades in service as the Judge Advocate General of the Navy, I had the honor of speaking to about 300 attorneys and guests at the retirement ceremony for our senior military judge at the Washington Navy Yard. In my remarks, I warned of the erosion of civil liberties in the name of security, and I specifically mentioned habeas corpus as a fundamental right that had been suspended temporarily during the War Between the States and during World War II. As we know, each of those wars ended after four years and the equilibrium between security and civil liberties was restored. One key difference in today's struggle is that there is no foreseeable end to terrorism. (We seem to have chosen 9-11 as the beginning of this struggle, but we all know the long history of terrorist attacks on our country and our interests, at home and abroad.)

In 2003, our senior intelligence analysts were already saying that this "war" would be endless. I do not believe anyone could argue otherwise today. Despite my remarks that day, I was confident that congress and the judiciary would temper the predictable erosion of civil liberties that is always fueled by fear. I was proud of my own senator from Pennsylvania, Senator Specter, Senator Levin, and you, Mr. Chairman, when you tried to remove the habeas stripping provision from last year's Military Commissions Act. That effort barely failed; this bill says that it is never too late to do the right thing. The stripping of habeas was an historic and monumental misstep that continues to take us down a path that leads us away from our values and the image we have earned as a nation Just a few weeks ago, on May 4, the Director of the CIA, General Michael V. Hayden, USAF, came to Duquesne University to deliver the commencement address to the undergraduates. I admire this Pittsburgh native and alumnus, but in my opinion his mixed message illustrates the challenge we face as we seek to achieve a security-civil liberties balance. He described his confirmation hearing using a football metaphor. He said that we could not win the war by playing a foot inside the line, that we had to walk right up to the line, and that sometimes we had to get chalk on our boots. Then he said the following (as quoted from the next morning's Pittsburgh Post-Gazette):

"The defining national security challenge of your generation is terrorism-particularly that committed by al-Qaida, its associates, and those inspired by it. Speaking as the director of an agency whose officers are on the front lines of this war, I can tell you that it won't be won strictly by killing and capturing terrorists. Operations like that are necessary, and we will continue to do them aggressively, effectively, and within the law.” But defeating terrorism, he said, means "winning the ideological side of this war, the war of ideas. We must defeat the worldview responsible for producing terrorists who hate America and the principles that we and our partners uphold.”

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I want to pose a question at this point. How can we “win the ideological side of this war, the war of ideas” with the policies we have adopted since 9-11, policies that are in opposition to our own ideologies, political ideas, and values? Even former Secretary of Defense Rumsfeld questioned whether our tactics and policies are creating more terrorists than we are killing and capturing. And worst of all, the recent study of the mental health of our own Soldiers and Marines indicates that we are eroding their ethics and values. How can we win a war on terror when we are losing the hearts and minds of our own fighting men and women?

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The Combatant Status Review Tribunals (CSRTs) and the limited review accorded to
them are fundamentally flawed processes. They allow secret and hearsay evidence;
evidence acquired through "enhanced interrogation techniques"; lawyers are not
permitted to assist the accused; and review is then limited to whether the government has
followed its own flawed procedures. Yet these procedures provide the basis for indefinite
incarceration. If that is not enough to condemn this entire construct, we have the most
recent reports that, after a unanimous finding that a detainee is not an enemy combatant,
hearings are repeated again and again until a detainee is classified, to the satisfaction of
Pentagon reviewers, as an enemy combatant. Is it really too much to ask, as the Supreme
Court opined in June 2004, that detainees are entitled to a “fair opportunity to rebut the
government's factual assertions before a neutral decision maker [?]”

When I and other retired military officers took up the cause of preserving habeas corpus, our primary focus was on the detainees at Guantanamo Bay. The Military Commissions Act, however, goes much farther, reaching the 12 million lawful permanent residents in the United States as well as visitors to our country. As a military officer, and today, I enjoy traveling abroad. Next month my wife and I are going to China as part of the Duquesne University School of Law summer program in Beijing. I do not know about

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