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A. Provided with counsel, B. Provided with the right to compel witnesses to testify, or C. Provided with a right of access to the contents of classified evidence?

I am not a policy expert in such matters, so I must stress that my own views are tentative and subject to change. As a matter of policy, however, I tend to think the answer to such questions depends on how long the individuals have been or may be detained. If detention is relatively brief, on the order of weeks or months, I do not believe any such rights should be afforded to such detainees. On the other hand, if the detention is long-term, such as years, decades, or even life, then some of these rights may become appropriate. In such a setting, I think it is appropriate that the detainee should receive a hearing on whether he is an enemy combatant in which he is appointed a representative to argue on his behalf. While I do not think the detainee should have a personal right to compel witnesses or access classified evidence, I think it may be possible to allow the detainee's representative to have such rights in some circumstances.

3. Do you believe that Johnson v. Eisentrager, 339 U.S. 763 (1950), was correctly decided?

I believe the result in Eisentrager was correct. The Court's opinion is terribly confusing, however. I greatly admire the work of Justice Robert H. Jackson, the author of the Eisentrager majority opinion, but this particular opinion is remarkably opaque. Given that, it is difficult to assess the merits of the individual arguments the opinion contains.

WRITTEN QUESTIONS FROM SENATOR BIDEN, MAY 22 2007 HEARING

RESPONSES OF ORIN KERR

1. Please describe the ways in which review at the trial level would help to make adequate and effective the review of a detainee's legal rights.

Review at the trial level would facilitate the collection of evidence, the creation of a record, and the finding of any facts that need to be found. Habeas proceedings normally begin at the trial court. Because the test for adequacy and effectiveness is relative to the usual habeas writ, the trial court is the natural starting point to ensure that proceedings are adequate and affective. At the appellate level, the analogous step would be to appoint a special master pursuant to the Federal Rules of Appellate Procedure. However, lodging jurisdiction in the trial court avoids the need for this step and provides an established set of procedural rules to be followed.

2. You testified about your concern that the Detainee Treatment Act and Military Commissions Act did not allow for an “adequate and effective” alternative means of judicial review. In light of that concern, would you consider the following procedural

1) Amending 28 U.S.C. 2241 to grant habeas corpus rights to alien detainees rather than merely striking from the MCA and DTA the provisions that deny those rights.

Any restoration of the habeas writ would avoid the need to determine if alternate procedures are “adequate and effective.”

2) Allowing alien detainees to invoke habeas rights either after their CSRT status determinations or after having been detained for 60 days without such a determination.

I believe that such a legal rule would be held to be “adequate and effective” by the courts.

3) Expanding the scope of judicial review beyond the constitutionality of CSRT procedures and the Tribunal's adherence to those procedures.

Assuming that a detainee is entitled to habeas corpus rights as a matter of constitutional law, expanding the scope of judicial review beyond the constitutionality of CSRT procedures and the Tribunal's adherence to those procedures would be a helpful step to ensure that the alternative collateral remedy satisfies the constitutional requirement.

ANSWERS FROM DAVID B. RIVKIN, JR. TO QUESTIONS POSED BY SENATOR JON KYL

Question

1. 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?

Answer:

It is, of course, impossible to predict with any certainty what foreign states may do in any given circumstance. However, my own belief is that most of the critics of the current American policy of detaining enemy combatants captured in the war on terror at the Guantanamo base would not stop their attacks if the detainees were transferred to facilities in the United States. For many, if not most, of the critics Guantanamo is only part of their objection to U.S. policy. They believe that the United States is not, and should not claim to be, engaged in a legally cognizable armed conflict with al Qaeda, and that it should use its criminal justice system to meet the threat posed by trans-national terror. This was, of course, largely the status quo before the September 11 attacks.

Therefore, unless the United States were prepared to limit or eliminate its military response to al Qaeda and other jihadi groups, it can expect that foreign criticism will continue even if the Guantanamo detention facilities are closed.

Question:

2. During questioning by Senator Durbin, you stated that unlike CSRT hearings, Article V hearings do not provide the detainee with anyone who is assigned to assist him, Article V hearings do not require that all information in the government's possession pertaining to the detainee be assembled, and Article V hearings do not determine whether the detainee is “innocent" and should be released, but only whether the detainee should be held as an unlawful or lawful combatant. You also noted that Article V hearings offer the detainee no opportunity to present witnesses, and that such hearings typically do not take place until days or weeks after the capture. Please elaborate on these remarks. Is this summary of your testimony accurate? Is there any way in which Article V hearings provide procedural or other rights to a detainee that are superior to those afforded in a CSRT hearing?

Answer:

Article V of the Third Geneva Convention of 12 August 1949 Relative to the Treatment of
Prisoners of War reads as follows:

The present Convention shall apply to the persons referred to in
Article 4 from the time they fall into the power of the enemy and
until their final release and repatriation.

Should any doubt arise as to whether persons, having committed
a belligerent act and having fallen into the hands of the enemy,
belong to any of the categories enumerated in Article 4, such

such time as their status has been determined by a competent
tribunal.

The treaty offers no definition of a "competent tribunal,” nor does it provide for the assistance of counsel or any other due process rights in particular. According to the International Committee of the Red Cross's 1960 commentary on this provision, it was "based on the view that decisions which might have the gravest consequences should not be left to a single person, who might often be of subordinate rank."

It is my understanding that this provision has been variously interpreted by the states parties. However, the United States has outlined its Article V procedures as part of Army Regulation 190-8 (Oct. 1, 1997) (“AR 190-8"). Under section 1-6 of that provision "Tribunals”, detainees are not entitled to the assistance of counsel, or any other type of advisor, the Government is not required to assemble and present all of the information it may have on a particular individual, and no particular timeframe is established for the hearing.

In addition, although Article V itself does not require that detainees be permitted to call or question witnesses, or that they may be freed upon conclusion of a hearing, the United States under AR 190-8 has chosen to permit detainees to call witnesses if such are reasonably available (or to submit written statements if they are not), and to question witnesses called by the Tribunal. In addition, under the U.S. rule, one of the possible board determinations is that the individual is an “innocent civilian who should be immediately returned to his home or released." To this extent, my statements before the committee must be corrected.

With respect to the overall comparison between the due process provided by an Article V tribunal and a CSRT, I offer the following materials drawn from a working document prepared by the Defense Department which, I believe, very well illustrates the differences between Article V hearings and CSRTS. I believe this also shows that the CSRT process is at least as protective (and often more so) of the individual detainee's interest than are Article V hearings:

CSRT process at Guantanamo

Article 5 of the Third Geneva Convention requires a tribunal to determine whether a belligerent, or combatant, is entitled to prisoner of war (POW) status under the Convention only if there is doubt as to whether the combatant is entitled to such status. The President has determined that those combatants who are a part of al-Qaeda, the Taliban or their affiliates and supporters, or who support such forces do not meet the Geneva Convention's criteria for POW status. Because there is no doubt under international law about whether al-Qaida, the Taliban, their affiliates and supporters, are entitled to POW status (they are not) there is no need or requirement to convene tribunals under Article 5 of the Third Geneva Convention in order to review individually whether each enemy combatant detained at Guantanamo is entitled to POW status.

In evaluating the entitlements of a U.S. citizen designated as an enemy combatant, a plurality of the U.S. Supreme Court in Hamdi held that the Due Process Clause of the U.S. Constitution requires "notice of the factual basis for [the citizen-detainee's) classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." A plurality of the Court further observed: “There remains the possibility that the (due process] standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal," and proffered as a benchmark for comparison the procedures found in Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, October 1. 1997. In a conflict in which the Third Geneva Convention applies, U.S. forces use the procedures found in AR 190-8 to conduct Article 5 tribunals when such tribunals are required.

As a result of Supreme Court decisions in June 2004 (Rasul, Hamdi), the U.S. Government on July 7, 2004, established the Combatant Status Review Tribunal (CSRT) process at Guantanamo Bay Naval Base, Cuba. The CSRT process supplements Don's already existing screening procedures and provides an opportunity for detainees to contest their designation as enemy combatants, and thereby the basis for their detention. Consistent with the Supreme Court guidance applicable to situations involving U.S. citizens, the tribunals draw upon procedures found in AR 190-8.

The below chart compares the CSRT procedures with the procedures found in AR 190

8:

Characteristic Applicability of proceeding

Frequency of review

Army Regulation 190-8

CSRT
Person who has committed a

All detainees at GTMO.
belligerent act and is in the custody
of the U.S. Armed Forces.

The President has previously
determined that al Qaeda and Taliban
detainees are not entitled to POW

status.
No provision for more than one One-time.
review.

Can be reconvened to reevaluate a
detainee's status in light of new

information. Advised of rights at the beginning of Advised of rights in advance of and at the hearing.

beginning of the hearing.

Notice provided to detainee

The detainee is provided with an unclassified summary of the evidence in advance of the hearing.

Tribunal
composition

The Tribunal is composed of 3
commissioned officers including at
least one field grade officer.

The Tribunal is composed of 3 neutral
commissioned officers not involved in
the capture or detention of the
detainee. All are field grade officers,
and the senior member is an 0-6
(Colonel/Navy Captain).

Recorder: Non-voting officer,
preferably a member of the Judge
Advocate General's Corps (JAG).
The Recorder prepares the record
of the Tribunal and forwards it to the

Recorder: Non-voting officer serving
in the grade of 0-3 (Captain/Navy
Lieutenant) or above. The Recorder
prepares the record of the Tribunal
and forwards it for a legal review.

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