The Framers considered this principle so important that the writ of habeas corpus is the only common law writ enshrined in the Constitution. Article I, Section 9, Clause 2, specifically states, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." 9/11 was a tragic day for our country, but we did not set aside the Constitution or the rule of law after those vicious attacks. We did not decide as a nation to stoop to the level of the terrorists. In fact, we have always been united in our belief that an essential part of winning the war on terrorism and protecting the nation is safeguarding the values that Americans stand for, both at home and around the globe. Instead of standing by these principles, however, the Administration used 9/11 to justify abandoning this and other basic American values. It claimed that persons labeled enemy combatants in the war in Afghanistan were not subject to the basic human rights protections of the Geneva Conventions, which Alberto Gonzales described as "quaint." In the Bybee Torture Memorandum, the Administration took the outrageous position that torture was limited to conduct that caused pain equivalent to, "organ failure, impairment of bodily function, or even death." When the President grudgingly signed the Detainee Treatment Act prohibiting cruel, inhumane and degrading treatment of detainees, he issued a signing statement indicating he would ignore the law whenever he saw fit. The Administration also established detention facilities outside the U.S. to avoid the reach of U.S. courts and basic legal protections. It planned to hold these combatants indefinitely and try them in Executive-run military commissions. These commissions have severely limited the rights of alleged enemy combatants. Accused individuals have no access to the evidence which the government claims it possesses and no ability to mount a meaningful defense. The tribunals are a sham and an insult to the rule of law. Following the Supreme Court's repudiation of the Administration's effort to evade the jurisdiction of U.S. courts in Hamdi v. Rumsfeld, the Administration convinced Congress to add language to the Detainee Treatment Act which attempted to strip the Supreme Court of jurisdiction over habeas corpus petitions by detainees at Guantanamo Bay. The Administration's lawlessness failed again. The Supreme Court in Hamdan v. Rumsfeld held that the Court retained jurisdiction and that the military commissions did not satisfy the Geneva Conventions. Justice Stevens reminded the Administration that "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law." Sadly, the Administration and Congress responded by reauthorizing military tribunals and stripping courts of jurisdiction to hear habeas petitions from enemy combatants. Today, our government continues to subject detainees held as enemy combatants at Guantanamo Bay and elsewhere to unfair Combatant Status Review Tribunals and military commissions. As a result, hundreds have no access to Article 3 courts. The Administration asserts the right to hold them indefinitely. The result has been disastrous, both at home and abroad. As a first step, we should restore access to the writ of habeas corpus, one of our most fundamental guarantees. I thank the Chairman for convening this important hearing to start us down the road to restoration of Statement of Orin S. Kerr Professor of Law, George Washington University Law School Mr. Chairman and members of the Committee, my name is Orin Kerr, and I am a professor of law at George Washington University Law School. I am honored to have been invited to testify today about habeas corpus jurisdiction over the claims of alien detainees held at Guantanamo Bay. I will make two points. First, it appears likely that the Supreme Court would hold that the writ of habeas corpus must be available to the detainees as a matter of constitutional law. Second, if this is true, then the Constitution requires a judicial forum that provides the detainees with an effective opportunity to test the legality of their detention. It is uncertain but unlikely that the judicial review presently available to the detainees is adequate to satisfy this standard. Taking these two points together, there is a significant possibility that the absence of habeas corpus jurisdiction over the detainee claims at Guantanamo Bay violates the Suspension Clause of the Constitution. 1. The Writ of Habeas Corpus and Guantanamo Bay My first point, that the Supreme Court would likely hold that the writ must be available to the detainees, is based on the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466 (2004). In Rasul, the Supreme Court held that the then-existing version of 28 U.S.C. § 2241 provided a statutory basis for extending habeas jurisdiction to the claims of alien detainees held at Guantanamo Bay. Importantly, the Court's holding in Rasul was statutory rather than constitutional. Specifically, the Court held that § 2241 provided federal jurisdiction over the detainees' claims because their custodians were "within the[] respective jurisdictions" of federal district courts. At the same time, the opinions filed in the case contain language suggesting that a majority of the Court considers Guantanamo Bay to be part of United States territory for purposes of the writ of habeas corpus. If so, the writ of habeas corpus must extend to the detainees at Guantanamo Bay absent a valid suspension of the writ. Three passages in the Rasul opinions suggest this result. The first appears in the majority opinion by Justice Stevens - which was joined by Justices O'Connor, Souter, Ginsburg, and Breyer in a section discussing whether a presumption exists against extraterritorial application of the habeas statutes. According to the Court's opinion, the |