Id. intensified, there has been no major effort to flout these safeguards openly or to overturn them by legislation. When comparing American procedures to those of other nations or time-periods, policymakers should bear in mind that some features of the current conflict make external checks more important than before. The present conflict is less bounded in terms of time and place than other conflicts. Cf. Rasul v. Bush, 542 U.S. 466, 485 (2004)(“What is presently at stake is... whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing"). Far from diminishing the importance of review, such conditions arguably make it more important. Because the theater of war is less bound by conventional limits, many of the traditional, contemporary factual correlates tending to indicate that someone is a combatant subject to detention may not arise. In order to strike a balance between providing flexibility for vigorous executive action in a nontraditional conflict and placing limits on authorities not bound by time and place, enemy combatant designations in our present circumstances are likely to reap pronounced benefits from meaningful external review. 3. SHOULD HABEAS LITIGATION RIGHTS BE EXTENDED TO ALIEN ENEMY COMBATANTS HELD IN IRAQ OR AFGHANISTAN? The availability of habeas review for individuals held in long-term detention in a jurisdiction controlled exclusively by the United States is especially critical. See Rasul v. Bush, 542 U.S. 466, 481-482 (2004); id. at 487-488 (Kennedy, J., concurring)(“The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status.”). External review in such circumstances vindicates the role of the rule of law in jurisdictions controlled by the United States, the considerable interests of detained individuals, and the importance of providing some means of generating feedback allowing executive bureaucracies to better focus their scarce resources on the most deserving targets. The challenges raised by any potential extension of habeas corpus jurisdiction to detainees in Iraq and Afghanistan are unquestionably more complex. Nonetheless, some scholars have argued that highly deferential review could play a laudable role even in such instances, particularly in the case of long-term detainees with no alternative means of challenging the factual or legal basis of their detention. See generally David A. Martin, Offshore Detainees and the Role of Courts After Rasul v. Bush: The Underappreciated Virtues of Deferential Review, 25 B.C. Third World L.J. 125 (2005). 4. AS PART OF CSRTS OR OTHER MILITARY HEARINGS TO REVIEW THEIR DETENTION, ENEMY COMBATANTS HELD BY THE U.S. THE RIGHT TO COMPEL WITNESSES TO TESTIFY, AND WITH A RIGHT There should be sufficient procedural protections to vindicate the interests of the individuals involved without unduly burdening the government's capacity to conduct vital natural security operations in an effective manner. In most cases, I believe this means that it is critical to provide meaningful access to counsel, and provision of key evidence that is implicated in the charges against detained individuals. Nonetheless, the precise details of what would be appropriate depends to some extent on the context. The type of habeas review that courts could provide should be sensitive to those contextual circumstances. 5. WAS JOHNSON V. EISENTRAGER CORRECTLY DECIED? Johnson v. Eisentrager, 339 U.S. 763 (1950), addressed the specific issue of whether German nationals, confined in custody of the United States Army in Germany following conviction by a military commission for conduct undertaken in the course of a traditional armed conflict, had the right to test the legality of their detention through the writ of habeas corpus. The Eisentrager majority achieved a reasonable resolution of the issue before the Court at the time. Its analysis turned in large measure on the existence of a traditional armed conflict between the United States and the aliens' nation of citizenship. The Court noted that the "security and protection enjoyed [by an alien] while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us," Eisentrager, 339 U.S. at 771. When the alien's country is at war with the United States, our government can safely assume that the "alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy." Id. at 772. In applying this analysis, the Court underscored "the vitality of a [United States] citizen's claims upon his government for protection,” Id. at 769, while also recognizing that some aliens merit important constitutional guarantees, such as due process under the Fourteenth Amendment. Id., at 771. In Rasul v. United States, 542 U.S. 466 (2004), the Supreme Court raised questions about the scope of the holding in Eisentrager. While the Rasul Court technically limited its holding to statutory habeas corpus rights - which may be limited by Congress - the Supreme Court nonetheless concluded that Guantanmo Bay, Cuba, was a territory within the jurisdiction and exclusive control of the United States. As a result, the holding in Eisentrager may no longer be a reliable indicator with respect to the availability of constitutional habeas corpus protections for Guantanamo detainees. An important touchstone of the Court's analysis in Rasul was the distinction of the Guantanamo petitioners that were the subject of that case compared to those in Eisentrager: Petitioners in [Rasul] differ from the Eisentrager detainees in important respects: that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. Rasul, 542 U.S. at 476. In short, the Court assigned considerable weight in Rasul to distinctions in the extent to which the United States exercised territorial control over the relevant jurisdiction, while also recognizing some important distinctions in the type of conflict in which petitioners were allegedly involved. By finding that a range of contextual factors could influence whether statutory habeas rights existed for aliens held beyond the territory of the United States, the Court implied that questions about the availability of external review were not suitable for resolution on purely on the basis of whether the alien being detained by the military was held in custody within U.S. territory or beyond its borders. Rasul is not the only recent instance where a member of the Court siding with the majority on the judgment considered the alternatives to expansive readings of Eisentrager. In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), Justice Kennedy provided the fifth vote in a five to four decision and filed a concurring opinion. This opinion suggests that some model of intermediate protection may apply to aliens where United States action overseas entails fundamental or prolonged intrusions on liberty or bodily integrity. Verdugo-Urquidez, 494 U.S. at 278. The arguments raised in these opinions suggest that, while Eisentrager remains an important holding with respect to the specific issues raised there, its present and future scope is likely to be limited to particular circumstances closely analogous, and the consequences of its application must be carefully considered. 6. IS IT ILLEGAL FOR THE UNITED STATES TO USE DRONE AIRCRAFT FOR TARGETED KILLINGS OF SUSPECTED AL QAEDA LEADERS IN AREAS OUTSIDE OF IRAQ AND AFGHANISTAN? In my view, this question is substantially beyond the scope of the hearing, and I have not had recent occasion to think about it closely. Nonetheless, the following sources and arguments are among the ones that should be included in any analysis of the question posed. Executive Order 12,333 explicitly states that "[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." See Exec. Order No. 12,333, 3 C.F.R. 300, 213 (1982). However, some instances involving the targeted application of force to individuals do not constitute assassination under international humanitarian law. The law of war establishes that targeting command and control structures in the course of an armed conflict may be permissible. See, e.g., Norman G. Printer, Jr., The Use of Force Against Non-State Actors Under International Law: An Analysis of the U.S. Predator Strike in Yemen, 8 UCLA J. Int'l & Foreign Aff. 331 (2003). The legality of such applications of force depends on the extent of compliance with requirements involving both the jus ad bellum and jus in bello doctrines constituting the law of war. The relevant requirements associated with these doctrines encompass matters such as whether the targeted individuals are parties to an armed conflict, necessity, discrimination, and proportionality. Policymakers facing such questions must make intricate, fact-specific contextual judgments in order to determine the scope of permissible action. QUESTIONS FROM SENATOR BIDEN 1. IS IT NOT SO (BASED ON YOUR TESTIMONY) THAT GRANTING The Court has long held that Congress must speak clearly before it concludes that habeas review is unavailable. This presumption is implicit in seminal cases governing the habeas rights of aliens. See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001). The presumption that Congress must speak clearly if habeas rights are to be deemed restricted in any way encompasses cases involving citizens as well as aliens, and civilians as well as alleged enemy combatants. Accordingly, statutory changes that strike the habeas stripping provisions of the Military Commissions Act and the Detainee Treatment Act can be expected to have an important legal effect by restoring the status quo ante, where the habeas statute was widely understood to give courts jurisdiction over duly filed habeas petitions unless this was clearly contrary to an express congressional effort to limit the habeas statute itself. Although further changing the habeas statute itself to explicitly include alien detainees could further clarify the matter, such a move could also raise questions about the presumptive scope of the habeas statute to situations not explicitly mentioned in that statute. 2. IN LIGHT OF THE CONCERN ABOUT PERCEPTIONS ABROAD, Both of these changes would be an improvement. Permitting habeas corpus review to occur after CSRT determinations or after detention for 60 days would resolve basic problems currently affecting the detention and determination system. The basic architecture of international humanitarian law contemplated a situation where status determinations affecting combatants (or alleged combatants) would occur soon after capture. The administrative mechanisms our government uses to handle status determinations should be designed to facilitate decisionmakers' efforts to navigate potentially complex factual and legal questions. Even in traditional battlefield settings, some of these questions are difficult to resolve within days of an individual's detention as a putative enemy combatant. The challenges associated with combating terrorism where some belligerents may be particularly eager to blend in with civilian populations despite the prohibitions on such conduct in international humanitarian law - may pose additional difficulties for speedy determinations. For all these reasons, the determination system should permit individuals who bear at least some indications of being enemy combatants to be detained for a short period of time without a more substantial determination. At the same time, it is critical to place sensible limits – such as 60 days -- on that period of detention without any review. After this period, it is quite likely that some of the evidence and information that would be valuable in making determinations could degrade substantially, and the additional security value of postponing determinations is likely to be marginal. Moreover, courts providing habeas review of determinations could adjust the precise contours of their scope of review to take account of the continuing challenges faced by responsible government officials exercising reasonable authority to detain combatants. It is also critical to permit judicial review of determinations beyond the constitutionality of CSRT procedures and the Tribunal's adherence to those procedures. The truncated review currently allowed under the MCA seems to permit some detainees to challenge the overall constitutionality of status determination procedures and overall compliance with those procedures. What this scheme does not permit is review of cases where no final determination is ever made (because a decision is indefinitely delayed), oversight of confinement conditions, or the type of case-by-case determination striking a reasonable balance between societal and governmental interests that is historically associated with review of habeas petitions. Part of the problem is with the determination procedures themselves, which establish a presumption that the government's evidence is genuine and accurate, and deny basic protections to detainees. At the margin, judgments some cases may be distorted quite profoundly by these rules, while others may not. See David Martin, Judicial Review and the MCA: On Striking the Right Balance, 101 Am. Journal of Int'l Law (2007)(forthcoming). Across-the-board constitutional determinations, by their nature, cannot reasonably be expected to take account of how factual ambiguities, legal uncertainties, and bureaucratic judgments operate in individual cases. |