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Chairman LEAHY. Please go ahead.

Admiral GUTER. First of all, I want to state unequivocally that for me it is not about what is least required by the law or who can be more patriotic. For me, this issue is about what is best for the long-term policy for the United States, what is best for our troops, and what is best for our citizens who travel overseas.

Moreover, what is best for our chance of preserving our values? What gives us the best chance of building the alliances that we need so that we can get the cooperation from our allies, so we can get the best intelligence that we possibly can in the struggle against terrorism? What gives us the best chance of winning the hearts and minds of the people around the world? What policy serves the rule of law and international humanitarian law? What policy makes the world safer and a better place for the long term? What standard do we want to be held to ourselves? I think Senator McCain and Senator Graham said it. It is not about them. It is about us.

Habeas corpus is the basis for a civilized legal system. It protects us against an unchecked power to hold people indefinitely. This struggle is going to have no end. We have already seen the results at Guantanamo Bay. Guantanamo shows us what can happen with an unchecked power.

The United States helped codify habeas after World War II, and now it pains me to say that we lead the charge in trying to destroy it. It is unnecessary to eliminate habeas to protect the courts. They are perfectly capable of handling habeas petitions, and they have shown that. And it is also unnecessary to eliminate habeas to win this struggle.

Our country and our institutions are stronger than that. What we need to win this war is good intelligence, the cooperation of willing allies, as many as we can possibly muster. We need a strong defense. We need a strong response when we are attacked. And we have been attacked many, many times before 9/11. We also need adherence to the rule of law. That gives us the best chance to prevent future attacks and win the struggle that we are engaged in.

Thank you.

[The prepared statement of Admiral Guter appears as a submission for the record.]

Chairman LEAHY. Thank you very much, Admiral.

The next witness is William Taft IV. He is of counsel, resident in Fried, Frank's Washington, D.C., office, where he has practiced since 1992. In 2001, Mr. Taft was appointed by President Bush to serve as legal adviser to the Department of State where he served for 4 years, and then rejoined the firm. Prior to 1992, Mr. Taft was the United States Permanent Representative to NATO. He held several positions in the Department of Defense under Presidents Reagan and George H. W. Bush, including Deputy Secretary of Defense from 1984 to 1989. Mr. Taft received his B.A. from Yale University and his J.D. from Harvard Law School, so he can join the rivalry on either side between the two schools.

STATEMENT OF WILLIAM HOWARD TAFT IV, OF COUNSEL,

FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, WASHINGTON, D.C.

Mr. TAFT. Thank you, Mr. Chairman. Briefly, I believe that it was a mistake for Congress to take away from the detainees in Guantanamo the ability to obtain judicial review by habeas corpus of the lawfulness of their detention, and I recommend that the Congress restore that right.

Under present law detainees convicted by military commissions may obtain judicial review of their convictions after their criminal cases are concluded, and persons who are not charged with crimes, or have perhaps been acquitted of crimes but detained as enemy combatants pursuant to determinations of their status by Combatant Status Review Tribunals, may obtain review of those determinations. This review, however, does not accord the detainee the same opportunity to challenge his detention that he would have in a normal habeas corpus proceeding.

Before the enactment of the Detainee Treatment Act of 2005 and the Military Commissions Act last year, detainees were entitled under the Supreme Court's interpretation of the relevant authorities to have the lawfulness of their detention reviewed after filing petitions for habeas corpus. The benefits of this now displaced procedure were considerable, not so much, I think, for the detainees in Guantanamo, none of whom was actually released by a court, as for establishing beyond argument the legitimacy of the process for holding persons who continued to present a threat to the United States as long as the terrorists continue to pursue their war against us.

It should be recalled in considering this question that the Supreme Court has on two occasions affirmed the lawfulness of detaining persons captured in the conflict with al Qaeda and the Taliban as long as they pose a threat to the United States. This is black letter law of war.

Prior to the enactment of the Military Commissions Act, consistent with this principle, no court had ordered the release of any of the detainees, nor would they do so as long as they posed a threat in the ongoing conflict. Currently, this determination is made by the military with only very limited judicial review of the proceedings of the Combatant Status Review Tribunal. Having the determination made by a court following established habeas procedures would greatly enhance its credibility and be consistent with our legal tradition.

Beyond that, providing habeas corpus review of the limited number of cases at Guantanamo will impose only a very modest burden on the courts. Fewer than 400 people are currently detained at Guantanamo, and I understand that a substantial portion of these may soon return to their own countries. By comparison, the courts handle thousands of habeas petitions each year. Moreover, these Guantanamo cases are comparatively straightforward. Many detainees freely state that they would try to harm the United States if they were released. Others are known to be members of al Qaeda, have been captured while attacking our troops, or are otherwise known to pose a threat to us. Judicial review of such cases minous trial and appellate records involved in many habeas corpus cases.

In the event, however, that a court were to be presented with a case that raised serious questions about the lawfulness of detention, surely those questions should indeed be carefully considered, and no institution is better equipped by experience to do that than a court.

In proposing that we return to the system that was in place previously, I want to stress that I do not believe that this issue should be treated as a constitutional one, but simply as a matter of policy. Whether the Congress has the power to bar habeas review to aliens detained in Guantanamo is a question that could be resolved by the courts. My guess is that it probably does. But Congress should not want to bar the habeas review the Supreme Court found the aliens in Guantanamo were entitled to under our statutes. It should want instead to have the judiciary endorse the detentions of the terrorists who threaten us.

For the very reason that the law of war allows us to detain persons without charging them with criminal conduct for extended periods, it is also more important to be sure that the process for determining who those people are is beyond reproach. Unlike wars between national armies where it is easy to tell who the enemy is, identifying those terrorists we are entitled to detain because they have declared war on us is more difficult. We should take advantage of the court's expertise in performing this task.

One final point. The Supreme Court's decisions of last summer in Hamdan and in Rasul earlier involve detainees in Guantanamo and found that because of the special status of that installation, the habeas process was available to detainees there. The Court did not consider, much less determine, whether it was available in foreign lands or on the battlefield. Speaking again as a matter of policy, I think it would be entirely impractical to extend it to battlefield captures or persons who are held in foreign countries in the context of an armed conflict. In the unlikely event that the Supreme Court were to decide that it did so extend, I would certainly support a statute amending the statutory provisions on which the Court relied for its conclusion.

Mr. Chairman, thank you for the opportunity to appear before you. I have a full statement which I would like to have included in the record.

[The prepared statement of Mr. Taft appears as a submission for the record.)

Chairman LEAHY. Thank you, and your statement will be placed in the record and, of course, also as to the questions that will be asked, if afterward when you get the transcript you want to add material, naturally we will hold it open for that purpose. This is too important an issue to give short shrift to. And I have a letter from Professor Richard Epstein of Chicago that was sent to Senator Specter, and Senator Specter asked that it be included in the record, and it will be.

Now, our next witness is Professor Cuéllar who has served as Associate Professor and Deane Johnson Faculty Scholar at Stanford Law School since July of 2001. Prior to joining Stanford's faculty, Under Secretary for Enforcement. He clerked for Chief Judge Mary Schroeder at the U.S. Court of Appeals for the Ninth Circuit. He received his undergraduate degree from Harvard University in 1993, his J.D. from Yale Law School, and a Ph.D. in political science from Stanford.

Professor, go ahead, please.
STATEMENT OF MARIANO-FLORENTINO CUÉLLAR,

CUÉLLAR, PROFESSOR, STANFORD LAW SCHOOL, STANFORD, CALIFORNIA

Mr. CUÉLLAR. Thank you, Mr. Chairman and members of the Committee, for this invitation to talk about such an important issue.

Our national security today raises many complicated questions, but I humbly submit that this is not one of them. Americans have been reluctant to tamper with the writ of habeas corpus even in the Nation's darkest hours. In rare circumstances when Congress has explicitly suspended the writ in accordance with the Constitution, it has done so with limited scope and for limited durations. In fact, the overarching story reflected in the history of habeas corpus is one of balance where vigorous responses to dangers confronting the Nation are checked by constitutional and statutory protections against arbitrary executive detentions. The Military Commissions Act has eroded that longstanding commitment to balance and thereby raises in my view grave constitutional questions.

Questions are raised, for example, by the MCA's purported restrictions on habeas review of detentions involving aliens in the United States, including legal permanent residents who are here, as well as provisions constraining courts' consideration of the applicability of the Geneva Conventions to individual detainee cases. I think our institutional architecture makes it essential for Congress to consider these problems instead of simply leaving them to the courts, which were never designed to be the only branch concerned with constitutional principles.

Next, I think it is important to consider that the habeas statute is not unlike 42 U.S.C. Section 1983 or the Administrative Procedure Act in that it helps vindicate constitutional interests. The intimate connection between constitutional protection and external checks on executive authority, in fact, helps explain the resilience of the habeas corpus statutory protections over many generations. The writ has acted as a check on Executive power in a surprising array of historical circumstances, involving citizens as well as aliens, enemy combatants on U.S. territory, and enemy combatants outside U.S. territory but within its functional jurisdiction. I believe the MCA represents a break from these norms. By eviscerating external checks on the detention of aliens accused of being enemy combatants, the MCA engenders perceptions abroad that the United States detainee process is unfair, further eroding American legitimacy.

Our history underscores the foreign policy benefit of securing equal protection and fair procedures. For example, cold war policymakers pressed aggressively to expand domestic civil rights protections in order to bolster America's global standing. Indeed, recogni

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able public perceptions lies at the heart of our Nation's military doctrine.

The problems with the MCA's habeas-stripping are compounded by the characteristics of bureaucratic organizations making complicated decisions. Executive bureaucracies routinely benefit from external review when they are making such decisions. Conversely, the absence of some external check on bureaucratic performance permits, and even encourages, a variety of pathologies. In the past, such pathologies have given rise to nuclear safety violations, the destruction of the Space Shuttle Challenger, biased regulatory rules, and mistaken detentions. Even when decisionmakers possess laudable motivations, the pressures and the constraints on organizations when performing a difficult, high-profile mission can distort the work of even the best meaning executive agencies.

Finally, the MCA in its present form even has the potential to impact the status of many ordinary lawful permanent residents in the United States. While the MCĂ was justified primarily on the basis of facilitating our Government's efforts to detain individuals captured on foreign battlefields or actively and directly involved in terrorist operations, the reality is that the habeas-stripping provision the Military Commissions Act actually confers exceedingly vast powers to detain a far different pool of people. That section permits the indefinite detention of any alien accused of being an enemy combatant. Such accusations can include open-ended, indirect offenses, including material support of terrorism and conspiracy.

Taken together, I would submit that these features may permit the creation of a massive unaccountable detention system that could be used against any one of the millions of U.S. lawful permanent residents who have left their homelands in Latin America, Asia, Africa, and Europe to become legal members of American society. I do not believe this is what was intended. In fact, it may seem unlikely that the MCA would be used against such numerous individuals in these communities with little or no connection to terrorism. But just as the history of law in America shows a strong commitment to habeas corpus, so too does that history demonstrate how laws are often used in a manner different from what was once contemplated.

The solution is not to dismiss the threat posed by those who would harm America or its residents. It is instead to pass a fixto pass the Habeas Restoration Act-and more generally to be mindful of the need for balance in this crucial area of law. History shows a strong pattern of congressional respect for the Great Writ. Now is the time to restore that legacy.

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Thank you.

[The prepared statement of Mr. Cuéllar appears as a submission for the record.]

[Applause.)

Chairman LEAHY. As I said before, we will have order in the hearing. Expressions, honorable expressions, either for or against the testimony is inappropriate for the hearing. Obviously, it is propriate for people to express whatever opinions they want outside

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