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more, because they hate us for so many reasons that it is difficult for me to imagine that that is really meaningful, especially coming from people who themselves—

Senator WHITEHOUSE. I may not have made my point as clearly. Certainly there are people who hate us and the jihadists hate us. My point was more the average uninvolved person, someone who is waking up in some little village in some faraway place, going out to take care of their family and to try to work to improve their lives. My proposition is that if they aspire to what we represent, if they think that America is a wonderful country, then we can make an awful lot of mistakes if that is the prevailing view of the world and still come out all right.

If, on the other hand, they are skeptical of our good will, they do not aspire to follow our system, then even if we get an awful lot of things right, we are still in a very difficult position in the world, and how we influence that I think is more important than trying to win the hearts and minds of an active America-hating jihadi. They need to be treated rather differently, I think.

Mr. RIVKIN. You are absolutely right. Again, this is a difficult question. I was just merely trying to take off the table what I think are easy questions.

Now, on the question of people who are open-minded, who would like to emulate us, allies, et cetera, et cetera, this is a genuinely difficult question. I think it would be foolish to deny that we have gotten a huge black eye because of the totality of our legal policies in the war on terror. It is a fact.

My problem, frankly, is that there are such fundamental differences between us and many of our allies on a whole range of legal issues--I call it the "legal architecture of war.” But I just do not buy the notion that if we tweak habeas a little bit, if we tweak the CSRTs in a way that some people on the panel may like—and even I could probably live with—that it will make a meaningful difference. Not to spend too much time on it, but I think, unfortunately, the problem with most of our allies is they fundamentally are not serious about war as an incident of statecraft. They are not interested in a traditional law of war architecture. Their preference, and I think honestly felt preference, is to use the criminal justice paradigm, and anything, Senator Whitehouse, that falls short of that paradigm would be utterly objectionable to them. And while I do not have the experience of negotiating with Europeans, being somewhat of a sucker for punishment, I regularly get on BBC and various other European networks, and I can tell you from the tenor of questions, nothing—and I mean nothing-short of the fullfledged application of criminal justice paradigm would satisfy them. And even that is not sufficient because we get regularly slammed in instances where we process somebody through district court.

My point is we have to be clear about what it would take to have a meaningful difference in the way the world looks at us, and it is not, repeat not, getting back to Section 2241. And I am not even trying to suggest if it is worth it, but, look, we have disagreements with people about what constitutes permissible collateral damage. ing to the key legal sinews about war, and are we prepared to just change all of that?

My problem with the Europeans, frankly, is they have never been serious about not just being against something, but for something. If it were up to me, I would love to internationalize Guantanamo. I would love to close Guantanamo and move it to some other place where Europeans can work with us on both detaining and interrogating-providing due process to those people. But in discussions I have had with European officials and scholars, they have zero interest in that.

So all I am trying to say is it is a very difficult and very complex problem, and it does not do justice to it to suggest if we tweak the system a little bit here we are going to get some dramatic results in terms of greater appreciation for American reputation.

Senator WHITEHOUSE. Mr. Chairman, sorry. Chairman LEAHY. [Presiding.] No. If you have other questions, please feel free.

Senator WHITEHOUSE. No, thank you.

Chairman LEAHY. I do not think what we are talking about is tweaking the system. We are talking about a very, very major restoration of rights. And I think that when you talk about the Europeans, can we find some other place where we can do this, the problem is we did not really care much about what their opinion was when we got ourselves in this mess to begin with. We just went ahead and did it and told Old Europe that they could play catch-up ball if they wanted. Not the best way to get support. And, frankly, we have to start reintroducing America to the rest of the world. We have a great deal to be proud of in this country. We have done some wonderful things, and I think if we correct some mistakes, then we start the reintroducing. But you do not start the reintroducing by saying it is our way or no way. And too much of the attitude was that.

I think of the strong support we had the day after 9/11 when Le Monde, a newspaper often critical of us, the headlines read, “Today we are all Americans.” That is not the Le Monde you read today.

I thank you all for being here. If others have questions, we will followup with them. I know you have all taken a great deal of time. You have expressed your opinions very candidly. If any of you want to add further based on either the questions or the answers of anybody else, if you want to supplement the record, of course, I will keep it open for that.

We stand in recess.
[Whereupon, at 11:31 a.m., the Committee was adjourned.]






Mariano-Florentino Cuéllar
Professor and Deane F. Johnson Faculty Scholar

Stanford Law School




History amply demonstrates the relevance of habeas corpus in regulating the detention of aliens labeled as enemy combatants in the American and British legal systems. On a number of occasions, American courts have properly exercised jurisdiction over habeas corpus petitions filed by aliens detained by the military as enemy combatants. Examples include Ex parte Quirin, 317 U.S. 1 (1942), and In re Yamashita, 327 U.S. 1 (1946). British decisions evince a similar pattern, where common law habeas courts allowed alleged enemy aliens or prisoners of war to present evidence that they did not fall within a category of persons lawfully subject to detention. See, e.g., R. v. Shiever, 97 Eng. Rep. 441 (K.B. 1759)(affidavit evidence considered by habeas court, which concluded that alien detainee was properly confined as a prisoner of war); Case of Three Spanish Sailors, 96 Eng. Rep. 1010 (K.B. 1779)(habeas court evaluating affidavit evidence supporting the release of detained aliens, but ultimately concluding that they were appropriately confined). Courts have also exercised jurisdiction over the habeas corpus petitions of aliens designated as enemy combatants but detained by civil authorities, and in some cases have granted relief to the petitioners. See Lockington's Case, Bright. (N.P.) 269 (Pa. 1813-14)(habeas petition from a British resident of Philadelphia held as an enemy combatant); Gerald L. Neuman and Charles F. Hobson, John Marshall and the Enemy Alien, 9 Green Bag 2d 39 (discussing the unreported case of United States v. Thomas Williams, in which CH ustice Marshall, riding circuit, granted relief to an alien enemy combatant irregularly detained).

Although courts have not deemed it necessary to grant relief in any of the previously-cited cases involving detention by military authorities, they have repeatedly reached the merits of the aliens' habeas corpus petitions, thereby providing detainees with an opportunity to challenge their detention before an external adjudicator. When courts are in a position to provide meaningful review, the availability of such review in principle can yield a constructive impact on the bureaucracies involved even if very few cases (or no cases) actually result in relief being granted. Moreover, American and British courts' willingness to defer to executive determinations even as they exercise habeas corpus jurisdiction in enemy combatant cases demonstrates the feasibility of continuing this historical pattern.



Israel has an established tradition of providing non-citizen belligerents judicial review in domestic courts. In addition, some British cases also suggest that alleged enemy combatants captured during war could obtain access to domestic courts to challenge their detention. See, e.g., R. v. Shiever, 97 Eng. Rep. 551 (K.B. 1759).

The Israeli experience provides an instructive example of how a nation can administer a military detention system under the review of domestic courts. Under Israel's Basic Law, any law restricting personal freedom must “comply with the ethical values of the State of Israel... and not exceed necessity." See Basic Law: Human Dignity and Freedom, 1992, S.H. 1391, art. 8, in Israel's Written Constitution (3d ed. 1999). Current Israeli law allows the Minister of Defense to issue an order of detention whenever he “has reasonable cause to believe that reasons of state security or public security require that a particular person be detained.” The authorities can then detain a person for a maximum of 48 hours before the detention order must be submitted to a domestic court judge for review. The judge then reviews whether alternative means (other than the special detention provisions invoked by the Defense Secretary) are available to meet the state's security needs, and whether there is a reasonable basis for military detention. If the detention order is upheld, a judge must review it again every three months. The Israeli scheme also guarantees various procedural protections for detainees, including access to counsel at regular intervals, the right to know the reasons for detention, and to be present in court for all legal proceedings (unless a judge makes an exception to this last provision on the basis of state security).

Military authorities operating in the West Bank and Gaza have more flexibility, but even in this context, they remain subject to judicial oversight from domestic courts. While various orders have made it possible for authorities to hold individuals for a period of days before seeking judicial approval, military personnel must eventually account for their decision to detain an individual before a court. During the last fifteen years, moreover, the Israeli Supreme court has progressively moved to dismantle certain doctrinal barriers to judicial review that could occasionally pose a problem for detainees, such as standing and justiciability. See generally Stephen J. Schulhofer, Checks and Balances in Wartime: American, British, and Israeli Experiences, 102 Mich. L. Rev. 1906, 1931 (2004). As Schulohfer notes:

[T]here is no doubt that from the perspective of the Israelis themselves, the country faces a grave security situation, , with every-present danger to its military forces and civilian population centers, a potentially never-ending threat that challenges its capacity to survive as an independent nation. Nevertheless, Israeli courts have put in place a strong, increasingly robust system of judicial checks. Accountability in national security cases extends not only to law-enforcement actions within Israel proper but also to detentions that result from military operations targeting “unlawful combatants” in territories not judicially part of Israel itself. Military and executive officials seem to accept the court decisions imposing these safeguards. And through more than twenty years of experience,

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