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SUBMISSIONS FOR THE RECORD

May 21, 2007

The Honorable Patrick Leahy, Chairman
The Honorable Arlen Specter, Ranking Member
Senate Committee on the Judiciary
United States Senate Washington, DC 20510

Dear Chairman Leahy and Senator Specter:

We strongly support your legislation to restore habeas corpus for detainees in US custody.

The Military Commissions Act eliminated the right to file a Writ for Habeas Corpus, for any noncitizen determined to be an enemy combatant, or even “awaiting” such a determination. That includes millions of non-US citizens who may be long-term Legal Permanent Residents, or legal visitors, students, temporary workers, or even refugees or asylees in the US.

There are millions of foreign-born legal residents in the US who are legally authorized to live and work in the US for months, years, and even indefinitely. These foreign born residents may be citizens of other countries, or even be stateless. However they are living among us with US citizens spouses and children, working in highly skilled and low skilled jobs, studying, teaching, building, discovering, inventing, caring, and investing in our communities in countless ways, and contributing positively to our valued way of life. However, this law treats these valued residents as second-class citizens. This new law provides that non-citizens can be detained, forever, without any ability to challenge their detention in federal court - or anywhere else – simply on the Government's say-so that they are awaiting determination whether they are enemy combatants.

The denial of habeas corpus to these foreign nationals, who live among us, is not in our nations best interest. We cannot hope to maintain a just society while eliminating basic legal and human rights for a considerable segment of our population, based on their immigration classification. Legal immigrants are an essential part of the fabric of our American way of life. Depriving them of the protection from arbitrary arrests and unlimited detention will not only harm immigrants, it will harm our communities and our economy. The right to habeas corpus is a vital check that our legal system provides against Government abuse. The right to file for habeas corpus ensures accountability, accuracy, and credibility.

We urge that Congress to restore habeas corpus for all people who live in the US, regardless of their immigration status, and thus show the world that our legal principals and rule of law apply to all who reside in this country and not just those who are lucky enough to be US citizens.

We hope that Congress will act quickly to pass this legislation.
Sincerely,

Carlina Tapia-Ruano
President
American Immigration Lawyers Association

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I am writing on behalf of the Association of the Bar of the City of New York to express the Association's strong support for S. 185, which you jointly introduced, entitled a bill "TO Restore habeas corpus for those detained by the United States.” The bill, among other things, would amend 28 U.S.C. § 2241 by striking out subsection (e), the provision inserted by the Detainee Treatment Act ("OTA") and the Military Commission Act ("MCA") stripping courts of habeas corpus jurisdiction with respect to aliens dclained as "enemy combatants."

I understand that the Senate Judiciary Committec will be holding bearings on this bill and the subject of restoring habeas in the coming week. I have written to you and other members of Congress twice in the last two months, emphasizing the Association's deep concerns about the denial of habeas corpus to these detainees. We hope the hearings you are holding will be the impetus for immediale and urgent action to restore habcas corpus review for these derainecs.

Many of thesc detainces have abready been detained for over five years without charges and without any meaningful process to determine the legitimnacy of their detention. The Supreme Cour, apparently based on its own institutional principles of restraint, has delayed taking up the issue of the validity of the habeas scripping provisions at least pending the exhaustion of the D.C. Circuit's revicw, pursuant to the DTA, of the deuinoes' status determinations.

THE ASSOCIATION OF THE BAR OF THE CnY OF NEW YORK

42 West 44* Strect, New York, NY 10036-6689

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That process of review only means more delay and moreover is so limited that it is likely to prove inadequarc. As we previously wged, Congress has a duty imunediately to correct this grave injustice and stain on our Naion's reputation for fairness and support for the rule of law, without waiting for action by the courts.

For your convenience, I am attaching another copy of the Association's Report concerning the restoration of habeas corpus and the March 6, 2007 letter transmitting it, and a copy of our letter dated April 3, 2007, again urging prompt Congressional action to restorc habeas Corpus, in the wake of the Supreme Court's denial of certiorari in the cases seeking review of thc habcas stripping provisions. These documents explain in greater detail why such action by Congress is immediately needed.

Sincerely,

Bany Kamina

Barry M. Kamins

CC:

Senate Judiciary Committee
Senalor Hillary Clinton
New York City Congressional Delegation

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Dear Senalor Leahy, Senator Spector, Represcntative Conyers and Representative Smith:
The Association of the Bay of the City of New York ("ithe Association) submits the
allached Report urging Congress to amend the Military Comunissions Act of 2006
(“MCA") by eliminating resulctions it imposes on habeas corpus jurisdiction and
restoring the federal habeas corpus statute as it read prior to the enactment of the
Deraince Treatment Act (“DTA").' The Report also asks that Congress amend the MCA
by eliminaling provisions that interfere with the judiciary's role in interpreting and
enforcing the Geneva Conventions.
The new Congress has commenced its work with the declared interest in promoting
respect for the rule of law as an integral part of our national security agenda. We applaud
this new emphasis. The enclosed Repor addresses the issues that the Association
believes require Congress' most immediate attention. We recognize a number of other
imponant issues raised by the MCA and Administration practices also deserve attention
in the effort to restore our Nation's reputation as a model for justice and the rule of law.
Accordingly, in the next months the Association also will be submitting the results of its
study and analysis of several of those issues.

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Founded in 1870, the Association is an independent non-govemmental organization with a membership of more ihan 22.000 lawyers, judges, law professors and government officials, principally from New York City but also from throughout the United Slates and from SO other countries.

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Restoring Habeas Corpus and the Judiciary's Role

In Enforcing the Geneva Conventions
As Thomas Jefferson emphasized in his first Inaugural Address, "freedom of the person
under the protection of habeas corpus" is one of the six "essential principles of our
Government." The enclosed Report reflects our deep concerns about the provisions of the
MCA, and predecessor provisions in the DTA, that purport to eliminatc babcas corpus
jurisdiction for aliers detainees labeled "enemy combatants." The MCA amends the federal
habeas corpus statute lo bar non-citizens from petitioning the counts for habeas corpus to
challenge the lawfulness of their detentions if they were determined by the United States to
have been properly detained as enemy combatants or are awaiting such determination". The
Government has attempted to give these provisions the broadest application, for example
maintaining that an alien lawfully residing in the United States may be arrested in his home in
the United States and held indefinitely without any opportunity to judicially challenge his
detention merely because the President labels him an "enemy combatant." Most recently, the
D.C. Circuit Cour of Appeals read the MCA to deprive Guantánamo detainecs of any right to
petition for habeas corpus, thus nullifying the rights previously established by the Supreme
Coun in Rasul."
The act of stripping detainees of the Great Writ is at odds with the most fundamental Anglo-
American traditions of justice and has been viewed around the world as a departure from our
commitment to equal Justice under law for all. The enclosed Report, therefore, urges
Congress to restore habeas corpus jurisdiction as it existed prior to the MCA and DTA and as
il was interprered in Rasul.
The Report also addresses MCA provisions that undermine the judiciary's role in enforcing
and interpreting the Geneva Conventions. As the Report explains, these provisions
cffectively render the Conventions unenforceable except as a matter of Presidential grace.
Senators Warner, McCain and Graham expressed concern thal the White House's initial
formulation of the MCA would undermine America's cominitment 10 the Geneva
Conventions and related law. Fidelity to the values and the lener of the Geneva Conventions
seans fidelity 10 our own values concerning the humane treatment of prisoners, forged in the
crucibles of our Revolution and Civil War. These provisions cast doubt on our commitment
to these values. Morcover, we embrace the Founders' view that it is the special province of
the courts to interpret and enforce our trealy obligations. Accordingly, our Report urges
Congress to strike all provisions of the MCA which purport to restrict reliance upon the
Geneva Conventions as a source of law and guidance for the courts.
We note that proposed legislation put forward by Senators Dodd, Leahy, Feingold and
Menendez entitled the "Restoring the Constrution Act of 2007" would achieve many of the
objectives we support in our Report

Other Concerns
The Report transmited today does not reflect the full scope of our engagement with issues in
this arca. We will be addressing several further concerns in greater detail in the near future:
Procedures for Military Commissions. The MCA would allow the use in trials before
military commissions of testimony obtained by coercion, as well as hearsay offered by the
prosecution unless an accused can show that the hearsay is unreliable. This is an almost
impossiblc burden because the accused is denied access to information about the sources and
mcthods by which the hearsay was obrained and will have no way to challenge ir. Congress

Boumcdiene v. Bush, No. 5062, Al-Odah v. Bush, No. 5064 (D.C. Cir. February 20, 2007)
Rasul v.
ush,

U.S. 466 (2004)

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