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members of this committee, but every time I venture outside our borders, I now consider how we have structured our laws in the United States. In this uncertain world of terrorism, I worry not so much about my physical safety as about whether some country might try to detain me in like manner by bringing allegations that I am then not permitted to challenge in a fair hearing.
Mr. Chairman, I have read your factual "nightmare scenario" in your April 26, 2007, testimony before the Senate Armed Services Committee. This is my nightmare scenario, and I would not wish it on anyone else. At a minimum, I want my country to hold the moral high ground as a platform upon which to argue for my release. In discarding habeas corpus, we are not nibbling around the edges of our valued civil liberties; we are throwing overboard one of our core principles—the right to challenge detention for life without charge.
Let me close with the words and sentiment of the open letter to congress that I signed during the fight we waged against habeas stripping. Other nations look to us for leadership and they follow our lead. We are the bright light of the world. Every step we take that dims that bright shining light undermines our role as a world leader. As we limit the rights of human beings, even those of the enemy, we become more like the enemy. That makes us weaker and imperils our valiant troops, serving not just in Iraq and Afghanistan, but around the globe.
I, therefore, respectfully suggest that passage of the Habeas Corpus Restoration Act of 2007 will not just restore this fundamental human right, it will be a positive factor in restoring our standing in the world community, and it will honor our brave men and women in uniform who fight on our behalf for this and other basic freedoms each and every day.
REAR ADMIRAL DON GUTER, USN (RET.)
REAR ADMIRAL JOHN D. HUTSON, USN (RET.)
March 7, 2007
The Honorable Patrick Leahy, Chairman
Dear Chairman Leahy and Senator Specter:
We strongly support your legislation to restore habeas corpus for detainees in US custody. We hope that it quickly becomes law.
Known as the "Great Writ," habeas corpus is the legal proceeding that allows individuals a chance to contest the legality of their detention. It has a long pedigree in Anglo Saxon jurisprudence, dating back to 13th Century England when it established the principle that even Kings are bound by the rule of law. Our Founding Fathers enshrined the writ in the Constitution, describing it as one of the essential components of a free nation.
In discarding habeas corpus, we are jettisoning one of the core principles of our nation precisely when we should be showcasing to the world our respect for the rule of law and basic rights. These are the characteristics that make our nation great. These are the values our men and women in uniform are fighting to preserve.
Abiding by these principles is critical to defeating terrorist enemies. The U.S. Army's Counterinsurgency Manual, which outlines our strategy against non-traditional foes like al Qaeda, makes clear that victory depends on building the support of local populations where our enemies operate through the legitimate exercise of our power. The Manual states: "Respect for preexisting and impersonal legal rules can provide the key to gaining widespread and enduring societal support. ... Illegitimate actions," including "unlawful detention, torture, and punishment without trial... are self-defeating, even against insurgents who conceal themselves amid non-combatants and flout the law." Our enemies have used our detention of prisoners without trial or access to courts to undermine the legitimacy of our actions and to build support for their despicable cause.
It is certainly true that prisoners of war have never been given access to courts to challenge their detention. But the United States does have a history of providing access to courts to those who have not been granted POW status and are instead being held as unlawful combatants, as are the detainees in this conflict. See., e.g., Ex Parte Quirin, 317 U.$. I (1942) (rejecting the claim that the Court could not review the habeas claim of enemy aliens held for law of war violations).
POWs are combatants held according to internationally prescribed rules, and are released at the end of the war in which they fought. In a traditional war, it is generally easy to determine who is a combatant and governed by these special rules. But the war we are fighting today is different. Detainees held at Guantanamo Bay were captured in 14 countries around the world, including places as far away from any traditional battlefield as Thailand, Gambia, and Russia. Some were sold to the United States by bounty hunters. Our enemies blend into the civilian population, making the practice of identifying them more
difficult. For all these reasons, the possibility of making mistakes is much higher than in a traditional conflict. In such a situation, it is incumbent on our nation to ensure that there is an independent review of the decision to detain.
The denial of habeas corpus also threatens to harm our national interests by placing American civilians at risk. Imagine if an enemy of the United States arrested an American citizen - a nurse or interpreter or employee of a military contractor - because they once provided assistance to our armed forces, and held that American without charge or opportunity to challenge their detention in court. We would be outraged, and rightly so. Yet, this is the precedent we are setting by holding without charge those deemed to have aided the enemy and denying them access to a court that could review the basis of their detention.
A judicial check on the decision to detain is in the best tradition of the United States - a tradition that ensures accountability, accuracy, and credibility. Restoring habeas corpus will help ensure that we are detaining the right people and showcase to the world our respect for the rule of law and the values that distinguish America from our enemies.
We hope that Congress will act quickly to pass this legislation.
Rear Admiral Don Guter, USN (Ret.)
Rear Admiral Don Guter. USN (Ret.)
Rear Admiral John D. Hutson, JAGC, USN (Ret.)
Brigadier General David M. Brahms, USMC (Ret.)
Brigadier General James P. Cullen, USA (Ret.)
In the story of creation, in the first chapter of the first book of the Torah, God
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membership. Our views are informed both by our commitment to as strong, vibrant, and pluralistic United States and our Jewish values.
In 2006, as a part of the Military Commissions Act, Congress eliminated the ability of the federal courts to hear certain Habeas petitions. In an effort to prevent accused terrorists from challenging their detention in federal courts, Congress undermined the civil liberties of all Americans and compromised our national values. Habeas Corpus is the most fundamental of judicial proceedings. It ensures that the government cannot imprison a person without reason, This notion is central to our understanding of liberty and human dignity. Habeas provides both a judicial check on executive power and ensures justice is sought fairly.
As Americans, we are committed to the traditional elements of western and American law. Habeas Corpus is a proceeding with deep historical roots. Habeas Corpus was fixed in American law through its inclusion in the Constitution. Anicle 1, Section 9 states “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion..." We are troubled by the elimination of Habeas Corpus and question the constitutionality of these provisions.
In this time of challenges and threats to our security, it is essential that we hold firm to our values. Compromising principles reduces our moral authority worldwide. We fear that without the United States as leader in the pursuit of justice and the protection of human rights and dignity, both may be diminished. Equally as important, we fear that we may be diminished. Our commitment to upholding our values and promoting a more just world remains steadfast. We must show strength by adhering to morals and ethics and not be intimidated into neglecting our traditional values.
Once again, I thank you for you sponsorship of the Habeas Corpus Restoration
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