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TUESDAY, MAY 22, 2007


Washington, D.C. The Committee met, Pursuant to notice, at 10:02 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding.

Present: Senators Leahy, Feingold, Durbin, Whitehouse, and Specter. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S.

SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. Good morning. Today the Judiciary Committee turns its attention to a top legislative priority that Senator Specter and I have set for this year: restoring the Great Writ of habeas corpus, and the accountability and balance it allows. And I thank our distinguished panel of witnesses for appearing here today. They illustrate the broad agreement among people of diverse political beliefs and backgrounds that the mistake committed in the Military Commissions Act of 2006 must be corrected.

It seems that habeas corpus was recklessly undermined in last year's legislation. Senator Specter and I urged caution before taking that dangerous step. We did several times on the floor, but we feli just a few votes shy on our amendment to restore these protections. It is now 6 months later. The election is behind us, and I hope that the new Senate will reconsider this historic error in judgment and set the matter right. It is urgent that we restore our legal traditions and reestablish this fundamental check on the ability of the Government to lock someone away without meaningful judicial review of its action, and the time to act is now.

I commend Senator Specter, my friend of decades who feels as passionately as I do about this issue, for helping us plan this hearing. He and I introduced the Habeas Corpus Restoration Act of 2007 on the very first day of this Congress.

The Military Commissions Act, passed hastily in the weeks leading up to last year's election, was a profound mistake, and its elimination of habeas corpus rights was its worst error. Like the internment of Japanese-Americans during World War II, the elimination of habeas rights was an action driven by fear and it is another stain on America's reputation in the world.

This Great Writ is the legal process that guarantees an opportunity to go to court and challenge the abuse of power by the Government. The Military Commissions Act rolled back these protections by eliminating that right, permanently, for any non-citizen labeled an enemy combatant. In fact, a detainee does not have to be found to be an enemy combatant; it is enough for the Government to say someone is “awaiting” determination of that status, that they have not had this determination, but they are awaiting such a determination.

Now, the sweep of this habeas provision goes far beyond the few hundred detainees currently held at Guantanamo Bay. It includes an estimated 12 million lawful—lawful-permanent residents in the United States today. These are lawful residents of the U.S., people who work pay taxes, abide by our laws, and should be entitled to fair treatment. After all—you know, it seems almost a cliche to say it—it is the American way. We expect these rights in America. We tell the rest of the world that we stand for these rights. But under this law, this current law, any of these people can be detained, forever, without any ability to challenge their detention in court. I look forward to hearing from Professor Cuéllar and others who can elaborate on this disastrous change and its potentially disproportionate impact on the Latino population, which accounts for so many of the country's hard-working legal immigrants.

Since last fall, I have been talking about a nightmare scenario in which a hard-working legal permanent resident who makes an innocent donation to a charity, perhaps a Muslim charity, to help poor people around the world—which would be, of course, in the finest American tradition. So many of us have made contributions to help poor people. But maybe that charity is secretly suspected by the Government to have a tie, however tenuous, to terrorist groups. Based on that suspected tie, perhaps combined with an overzealous neighbor reporting suspicious behavior, having seen people of a different culture or color visiting, or with information secretly obtained from a cursory review of the person's library borrowings, the permanent resident could be brought in for questioning, denied a lawyer, confined, and even tortured. Such a person would have no ability to go to court to plead his or her innocence-no ability for years, for decades, or even forever.

When I first spelled out this nightmare scenario, many people viewed it as a far-fetched hypothetical just made for purposes of debating. But, sadly, it was not. Last November, just after enactment of these provisions, this was confirmed by the Department of Justice in a legal brief submitted in Federal court in Virginia. The U.S. Government, seeking to dismiss a detainee's habeas case, said that the Military Commissions Act allows the Government to detain any non-citizen designated as an enemy combatant without giving that person any ability to challenge his detention in court. And this is not just at Guantanamo Bay. The Justice Department said it is true even for somebody arrested and imprisoned in the United States.

Now, I was shocked when Attorney General Gonzales maintained at a hearing earlier this year that our Constitution does not provide a right to habeas corpus. Sometimes, I have found that the Attorney General is not necessarily the last word on legal thought in this country. But more damaging was the Senate's decision over vides against the Government arbitrarily detaining people for life without charge. That is wrong. It is unconstitutional. It is profoundly un-American.

Our leading military lawyers, like Admiral Guter, tell us that eliminating key rights for detainees hinders the safety of our troops and the effectiveness of our defense. Diplomats and foreign policy specialists, like Mr. Taft, tell us that eliminating habeas rights reduces our influence in the world. Top legal scholars and conservatives like Kenneth Starr, Professor Richard Epstein, and David Keene, head of the American Conservative Union, agree that this change betrays centuries of legal tradition and practice. Professor David Gushee, head of Evangelicals for Human Rights, submitted a declaration signed by evangelical leaders nationwide, which refers to the elimination of habeas rights and related changes as “deeply lamentable” and “fraught with danger to basic human rights.

The elimination of basic legal rights undermines, not strengthens, our ability to achieve justice. It is from strength that America should defend our values and our way of life. It is from the strength of our freedoms, our Constitution, and the rule of law that we can prevail. We can ensure our security without giving up our liberty. I will keep working on this issue until we restore those fundamental checks and balances.

[The prepared statement of Senator Leahy appears as a submission for the record.)

Senator Specter.


THE STATE OF PENNSYLVANIA Senator SPECTER. Thank you, Mr. Chairman, for the outstanding work you are doing on this Committee and have done for 33 years and for your leadership role generally, but especially on efforts to change the statute which limits habeas corpus rights.

It is surprising to me that it is necessary to change the statute in light of the decision by the Supreme Court of the United States in the Rasul case. That case made it explicit, although not the holding, that the Great Writ of Habeas Corpus apply to the detainees at Guantanamo and that they were entitled to due process of law and a hearing:

The holding did limit it to the statutory right. There are two rights to habeas corpus: the one provided by statute and the one provided by the Great Writ. But the opinion of the Court in Rasul made it plain that the Great Writ applied to the Guantanamo detainees when they said, “Application of the habeas corpus statute to persons detained at Guantanamo is consistent with the historic reach of the writ of habeas.” And the Court went on to note, “Lord Mansfield wrote in 1759 that, 'Even if a territory was no part of the realm, there was no doubt as to the court's power to issue writs of habeas if the territory was under the subjection of the Crown.'

So that there really is no doubt that the Supreme Court viewed the constitutional Great Writ as being applicable to Guantanamo. So that I would disagree with you on one small point, Mr. ChairGreat Writ does not need restoring because it is always here. It is just a question of recognizing its application to Guantanamo.

It is hard for me to understand how the circuit court could flout the authority of the Supreme Court. And then it is equally beyond my comprehension how the Supreme Court could not say to the circuit court the most fundamental rule is that circuit courts have to follow the Supreme Court. But the Supreme Court did not do that, and there is speculation the Supreme Court did not do that because Justice Stevens, who could have provided the fourth vote for cert., and the author of Rasul, was concerned that Justice Kennedy would reverse Rasul, along with the four who had already taken a position.

Well, if you talk about inside baseball or inside the Beltway or inside the Supreme Court, that is pretty hard to fathom. But that is at least an explanation. I would not go so far as to call it a rational explanation, but it is an explanation.

Now, that is fairly harsh lawyer talk to accuse the circuit court of not following the Supreme Court and then accuse the Supreme Court of not insisting on its authority. But I think that is what we have here, and it is very, very extraordinary, as I see it, in the history of judicial procedure in this country. But Congress can alter the situation by changing the statute which was passed. We lost 48–51. There was a very limited period of time for the consideration of the issue. I believe if we go back to the Senate and the House now, we will find a different view. I would be hopeful that if the issue reaches the President's desk that he would sign it, but candidly I doubt that. But I think we ought to put all the pressure that we can on this issue.

And then when you take the holding of the circuit court, saying that the statutory writ of habeas corpus was satisfied because of the alternative procedures, you only have to cite one case, and that is the case of In re Guantanamo Detainee Cases, which is cited at 355 F. Supp. 443, and the Court there reviews a transcript of the detention of someone held at Guantanamo. And the detainee is charged with associating with al Qaeda, and as printed in the report on page 23:

"Detainee: Give me his name.”
"Tribunal President: I do not know."
"Detainee: How can I respond to this?”

"Detainee: I ask the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but if this person is not a terrorist."

The upshot was that they did not identify the name of the person whom the detainee was alleged to have talked to, so how could he defend himself? And the transcript shows, the opinion shows, that it produced laughter in the courtroom. It was a joke.

Well, I think that is about the status of what the procedure provides, where you have an alternative remedy, the Supreme Court said in Swain v. Pressley, but that was an issue where you had a State court decide habeas corpus. And the Supreme Court was wrestling with the fact that the State court was as good as the Federal court. The limitation that they were elected did not counterbalance the adequacy of the remedy just because Federal judges

totally devoid of any fundamental fairness of the way these tribunals work.

I hope that we can move this quickly in Committee. I know the Chairman will do what he can, bring it to the floor, and let the Congress speak to this issue, because the practices are, simply stated, atrocious. They are damaging to the reputation of the United States worldwide.

I regret that I am not going to be able to stay long because we are right in the midst of immigration. We brought the issue to the floor, and I am managing it on the Republican side. But my heart is right here.

Thank you, Mr. Chairman.

Chairman LEAHY. I have no doubt where your heart is, and if the Senate is going to be the conscience of the Nation, as occasionally we are, and all we should be, then we will move quickly on this and not worry about vetoes but worry about doing what is right.

Gentlemen, would you please stand and raise your right hands? Do you solemnly swear that the testimony you will give in this matter will be the truth, the whole truth, and nothing but the truth, so help you God?

Admiral GUTER. I do.
Mr. TAFT. I do.
Mr. CUÉLLAR. I do.
Mr. RIVKIN. I do.
Mr. KERR. I do.
Chairman LEAHY. Thank you.

The first witness will be Rear Admiral Donald Guter. The Admiral served in a wide variety of positions in the United States Navy, including serving as the Navy's 37th Judge Advocate General between 2000 and 2002. And after retiring from the Navy, he accepted the position as Dean of the Duquesne University School of Law, his alma mater. Prior to attending the law school there, he graduated from the University of Colorado. His personal decorations include the Defense Distinguished Service Medal and the Navy Commendation Medal.

Admiral, we are delighted to have you here. Please go ahead, sir. STATEMENT OF REAR ADMIRAL DONALD GUTER, UNITED STATES NAVY (RET.), DEAN, DUQUESNE


Admiral GUTER. Well, thank you very much, Chairman Leahy, members of the Committee. I appreciate very much the invitation to come and speak in support of the Habeas Restoration Act of 2007. I am glad you mentioned a few of those items from my biography, only because the debate in this country has become such that anytime someone supports an item like restoration of habeas, it seems like the political debate gets a little bit ugly.

I was in the Pentagon on 9/11. I lost one of my lawyers on the airplane that came back and hit the Pentagon that day, and I have lost friends since then. So I am no stranger to the struggle that we face, but I am also no stranger to the debate.

As early as 2003, I started speaking out on this subject, and you have my written statement for the record, so I would like to just

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