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June 10, 2007

Honorable Patrick Leahy
Chairman, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510
(Attention Jennifer Leathers, Hearing Clerk)

Dear Senator Leahy:

Thank you for the opportunity to answer follow-up written questions from the Committee members as a result of my testimony at the United States Senate Judiciary Committee hearing regarding “Restoring Habeas Corpus: Protecting American Values and the Great Writ” on May 22, 2007. I departed for Beijing, China with the Duquesne University School of Law's summer China program on June 7th and will not return until June 235, ten days after the deadline for submission of these answers. I received your May 30th letter of request on June 5th, just before my departure and have limited resources here, but I will do my best to be responsive to all questions with the materials that I brought with me.

I begin with Senator Kyl and would ask that I be permitted to combine his first two questions as they lend themselves to one answer. The questions are:

1. You state in your testimony that “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.” Can you cite a single recorded English or American case prior to Rasul v. Bush in which a court has granted relief on a habeas corpus petition filed by an alien detained by the military as an enemy combatant?

2. Can you cite an example of a foreign nation that allows non-citizen enemy

soldiers captured during war to use that nation's domestic courts to challenge their detention?

According to information compiled and provided by Human Rights First:

English common law habeas did provide habeas for those being held as alien enemies. Common law habeas courts would consider whether an alien was, in fact, an enemy alien or prisoner of war, and allowed an alien to present evidence that he did not fall within that category. See, e.g., R v. Shiever, 97 Eng. Rep. 551 (K.B. 1759) (habeas court considering affidavit evidence and concluding that detainee was properly held as a prisoner of war); Case of Three Spanish Sailors, Eng. Rep. 1010 (K.B. 1779) (habeas court examining affidavit supporting detained aliens release, but ultimately concluding they are in fact alien enemies);

submit an affidavit to show that he was not in fact an alien enemy); R.J. Sharpe, THE LAW OF HABEAS CORPUS (2D ED 1989), AT 115-16 (describing that common law habeas courts investigate whether the detainee is “both in fact and law” an enemy alien or a prisoner of war”).

Moreover, the administration's definition of enemy combatant is so broad as to cover any non-national the president deems to be associated with the enemy. Habeas developed precisely to provide a check in such situations and to prevent the King from unilaterally labeling persons the “enemy” and throwing them in a dungeon. (Note: all emphasis in the original.)

3. Do you believe that, as part of CSRT or other military hearings to review their

detention, enemy combatants held by the U.S. military in Iraq or Afghanistan should be:

A. provided with counsel?

No. Battlefield detentions that result from a hearing that is relatively contemporaneous to capture by U.S. military forces should not require that the detainee be provided with counsel.

B. provided with the right to compel witnesses to testify?

No. Reasonably available witness should be questioned as a matter of policy.
Compulsory production of witnesses, however, should not be required.

C. provided with a right of access to the contents of classified evidence?

No.

4. Do you believe that foreign governments would stop criticizing the detention of

the individuals now held at Guantanamo Bay if the Guantanamo facility were closed and those detainees were instead held inside the United States?

Detention at Guantanamo Bay is not being criticized because of the location of the facility but because of the treatment afforded to the detainees. That said, Guantanamo Bay has become a symbol of the policies of the administration. Transfer of the detainees to a secure location in the United States would, therefore, and in my opinion, result in relief from a degree of criticism only if accompanied by policies that emphasize the long tradition of our country to provide humane treatment and fair processes to those we

Question from Senator Leahy:

Could you respond to the argument often cited by those supporting the habeas-stripping provision in the Military Commissions Act, that restoring habeas will lead to “judges on the battlefield” and force federal courts to consider habeas claims from large numbers of detainees held by the United States military throughout the world?

This concern, in my opinion, is unfounded. I feel competent to respond to the question as I believe the argument was advanced as an over-reaction to the U.S. Supreme Court ruling in Rasul v. Bush, a case in which I filed a supporting amicus brief. Historically, our courts consistently have denied habeas to those held outside the sovereign territory of the United States. Rasul did not alter this notion. Rather, it was based on the singularly unique relationship between the United States and Cuba whereby our exclusive control over Guantanamo Bay, which can only be extinguished by voluntary agreement by both parties, was seen by the Supreme Court, correctly, as the legal equivalent of sovereignty. This condition does not exist in any other country on the globe.

Questions from Senator Biden:

1. In your testimony, you asked how we can win the ideological side of this war with

policies that are in opposition to our own ideologies. In light of that concern, would you consider the following procedural safeguards to be prudent improvements? Please elaborate as you see fit.

1) Amending 28 U.S.C § 2241 to grant habeas corpus rights to alien

detainees rather than merely striking from the Military Commissions Act and Detainee Treatment Act the provisions that deny those rights;

I would favor such an amendment because it would bring needed clarity to an area of the law that now has become ambiguous. I would, however, draft the amendment so that it would not enlarge the territorial jurisdiction of United States courts.

2) Allowing alien detainees to invoke habeas rights either after their CSRT

status determination or after having been detained for 60 days without such a determination;

Again, assuming accepted limits on territorial jurisdiction (to include Guantanamo Bay), habeas rights are necessary to avoid the “legal black hole” that our policies have created. In my opinion, and as stated in my testimony on May 22nd, the CSRT process is fundamentally flawed. A detainee can be processed and then never charged, enabling the government to hold him indefinitely. Habeas is the accepted means by which a civilized

3) Expanding the scope of judicial review beyond the constitutionality of

CSRT procedures and the Tribunal's adherence to those procedures.

Yes. Because of the administrations proclivity to keep reinventing the CSRTs without producing a fundamentally fair and acceptable process, the preferred (and perhaps only effective) corrective measure would be to expand the scope of judicial review to all aspects of the procedures and findings of the CSRT.

Again, thank you, Mr. Chairman, and all members of the Committee for this opportunity to respond to your questions. You have my best wishes as you consider the competing concerns of the protection of the rule of law and the security of our nation.

Sincerely,

/s/

Donald J. Guter
Rear Admiral, USN (ret.)
Dean
Duquesne University School of Law

WRITTEN QUESTIONS FROM SENATOR KYL, MAY 22 2007 HEARING

RESPONSES OF ORIN KERR

IA. Assuming that the Constitution's text, structure, and history afford an appropriate basis for interpreting that document, [d]o you believe that the Constitution actually does require habeas-litigation rights be extended aliens detained by the military as enemy combatants at the U.S. Naval Base in Guantanamo Bay, Cuba?

I think the Constitution's text, structure, and history do not resolve this particular question. The text and structure shed no light on the scope of the writ, as compared to when it can be suspended. Further, as far as I know we have no guidance as to what the Framers intended as to the scope of habeas corpus. If the question is whether extending habeas corpus would be consistent with the historical scope of the writ, I tend to find Justice Scalia's historical view expressed in his dissent in Rasul v. Bush to be more persuasive than the historical view offered by Justice Stevens in his majority opinion. However, I am not an expert in the historical scope of habeas corpus, so I would need to do more research to offer a more definitive apswer.

IB. Assuming that the Constitution's text, structure, and history afford an appropriate basis for interpreting that document, ... [d]o you believe that the Constitution requires that habeas-litigation rights be extended to aliens detained by the military as enemy combatants in Iraq or Afghanistan?

I think the Constitution's text, structure, and history do not resolve this particular question. However, I believe that extending habeas corpus to aliens detained in Iraq or Afghanistan would be inconsistent with the bistorical scope of the writ as applied at common law. The strongest case for habeas jurisdiction at Guantanamo Bay rests on the notion that Guantanamo Bay is a U.S. territory for habeas purposes. However, Iraq and Afghanistan clearly are not part of any U.S. territory. Therefore the Constitution does not provide alien detainees held in Iraq or Afghanistan with a right to habeas corpus.

IC. Can you cite a single recorded English or American case prior to Rasul y. Bush which a court has granted relief on a habeas corpus petition filed by an alien detained by the military as an enemy combatant? Please feel free to cite any case decided during the last 800 years.

No, I cannot.

2. Do you believe that, as part of CSRT or other military hearings to review their detention, enemy combatants held by the U.S. military in Iraq or Afghanistan should be:

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