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While the Court has institucional reasons for delaying review of constitutional questions,
Congress has no justification for allowing prisoners to remain confined without prompt
review of their detention pursuant to habeas corpus. Further delay only exacerbates
injustice and the severe damage already done to our Nation's reputation. The denial of
habeas review has alrcady been condemned by our closest allies in the fight against
laternational terrorism as a grave violation of the rule of law and the scandards of
civilized nations.
We, therefore, urge you to act now, without further delay, to remove the habeas stripping
provisions and restore our Nation's standing as a symbol of justice and the rule of law.

Sincerely,

Bany Kamins

Barry M. Kamins

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Statement of Mariano-Florentino Cuéllar
Associate Professor and Deane F. Johnson Faculty Scholar

Stanford Law School

before the

Senate Committee on the Judiciary

concerning

Restoring Habeas Corpus: Protecting American Values and the

Great Writ

May 22, 2007

Mr. Chairman, Senator Specter, and members of the Committee on the Judiciary:

Thank you for inviting me to address the relationship between habeas corpus, executive discretion, and national security

an issue that has occasioned much debate among legal scholars, lawyers, lawmakers, and the public in recent years. This issue has taken on particular urgency given the recent passage of the Military Commissions Act (MCA).' Section 1005(e)(1) of this Act strips American courts of jurisdiction to consider habeas corpus applications involving aliens accused of being enemy

combatants, effectively allowing any decisionmaker appointed by the President to detain an alien indefinitely by merely accusing her of being an enemy combatant. In what follows, I analyze this provision in light of history, American legal traditions, and the institutional realities affecting the performance of executive bureaucracies.

Historically, Americans have been reluctant to tamper with the writ of habeas corpus even during some of the nation's most trying hours. Despite the evolving security threats our nation has faced over the years, the writ has remained a key part of our legal system, enshrined in constitutional doctrine and congressional statute. It has been used by American citizens

as well
as aliens, by combatants

as well noncombatants, and by individuals held within the borders of the United States and beyond those borders, in territories under the control of the

as

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United States.? In rare circumstances, when Congress has explicitly suspended the writ in accordance with the Constitution, generally it has done so within carefully-prescribed limits. While neither the elected branches of government nor courts have acted perfectly during every period in history, the overarching story reflected in the history of habeas corpus is one of balance. In that story, vigorous responses to dangers confronting the nation are checked by constitutional and statutory protections against arbitrary executive detentions.

The MCA has eroded that longstanding commitment to balance. To grasp the extent of this erosion, one must appreciate that the development of a robust habeas corpus doctrine predates the American Republic. At English common law, courts exercised habeas jurisdiction not only within a state's formal territorial limits, but also over any areas where a government exercised sovereign control. Since early in our own history, American constitutional law assigned an important role to habeas corpus in vindicating due process interests. Habeas corpus was explicitly recognized in the Constitution, which prohibits any suspension of the “Privilege of the Writ of Habeas Corpus... unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, 9, cl. 2. Further developments in the doctrine have expanded habeas corpus beyond its 18th century limits. At its core, however, the writ has remained a vehicle for reviewing the legality of executive detention, and thereby, for creating an administrative and judicial mechanism vindicating critical due process interests.

The preceding history underscores why the MCA raises such serious constitutional questions. The gravest questions arise from the MCA's purported restrictions on habeas review of detentions involving aliens in the United States. Another possible problem involves provisions constraining courts' consideration of the applicability of the Geneva Conventions. Our institutional architecture makes it essential for Congress to consider these problems instead of simply leaving them to the courts, which were not designed to be the only branch concerned with constitutional principles.

Just as constitutional rights can be placed at risk by problematic statutes or arbitrary executive actions, so too can such rights be

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See Ex Parte Milligan 4 Wall. 2, 18 L. Ed. 281 (1866), Ex Parte Quirin, 317 U.S. I (1942), In re Yamashita, 327 U.S. 1 (1942), Rasul v. Bush, 542 U.S. 466 (2004).

See King v. Overton, I Sid. 287, 82 Eng. Rep. 1173 (K.B. 1168); King v. Salmon, 2
Keble 450, 84 Eng. Rep. 282 (K.B.1669)).
See INS v. St. Cyr, 533 U.S. 289, 301 (2001).

See generally Larry KRAMER, THE PEOPLE THEMSELVES: POPULAR

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appropriately safeguarded through statutory mechanisms that ensure a proper balance between the need for vigorous executive action and accountability. The intimate connection between constitutional protection and external checks on executive authority helps explain the resilience of statutory habeas provisions. The writ of habeas corpus 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 the U.S. but within its functional jurisdiction. In short, the statutory history of habeas corpus gives effect to both constitutional protections as well as a broader concern with the need for accountability.

In contrast, the MCA's habeas-stripping provisions reflect little attention to balancing the interests of the state with those of accused individuals, and even less attention to the multiple ways in which those provisions can erode accountability, and public perceptions of legitimacy at home and abroad. By eviscerating external checks on the detention of aliens accused of being enemy combatants, the MCA engenders perceptions abroad that the U.S. 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, recognition of the connection between balanced legal procedures and favorable public perceptions lies at the heart of our nation's military doctrine.

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The problems with the MCA's habeas-stripping are compounded by the characteristics of bureaucratic organizations. Executive bureaucracies routinely benefit from external review when they are making complicated 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

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See Zadvydas v. Davis, 533 U.S. 678 (2001), INS v. St. Cyr, 533 U.S. 289 (2001), Ex Parte Milligan, 4 Wall. at 2, Ex Parte Quirin, 317 at 1, In re Yamashita, 327 U.S. at 1, Rasul v. Bush, 542 U.S. at 466. While enemy combatants have been given leave to apply for habeas relief and general prisoners of war have not, the latter benefit from the protections of the law of war, which entitle them to a status determination soon after capture in the field.

See Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. Rev. 61 (1988).

See U.S. Army's Counterinsurgency Manual, quoted in Letter from Rear Admiral Don Guter, USN (Ret.) et al. to the Honorable Patrick Leahy, Chairman, Senate Committee on

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Challenger, biased regulatory rules, and mistaken detentions. Even when decisionmakers possess laudable motivations, the pressures and constraints that organizations face can distort the work of executive agencies. Instances of outright malfeasance and bad faith may be rare in detentions. Nonetheless, the absence of external review makes it easier for some decisionmakers to promote appealing impressions of their effectiveness by subtly downplaying errors when they do occur, and for still others to simply fail to correct mistakes that cannot be reliably discovered without an external check." Yet neither the MCA nor the Defense Department's implementing regulations have established a credible system auditing detainee decisions to manage the risks created as a result of restrained external review. Moreover, the justification for eviscerating habeas review is unpersuasive. Specifically, there is no compelling reason to believe that habeas review would overburden the detention system. History has instead shown such review to encompass a measure of flexibility, with courts adjusting its stringency to account for practical circumstances.

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 MCA was justified primarily on the basis of facilitating our government's efforts to detain individuals captured on foreign battlefields or actively undertaking terrorist operations, the literal terms of Section 1005 actually confer exceedingly vast powers to detain a far different pool of people. Section 1005(e)(1) 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." While provisions for punishing such offenses already exist under federal criminal law, some of the potential problems with open-ended, indirect offenses in that context are mitigated by the presence of external review and more demanding evidence standards. The MCA lacks both. Moreover, the MCA permits detentions of alleged enemy combatants to continue indefinitely because no limit is placed on detentions before there is a determination of

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See generally SCOTT SAGAN, THE LIMITS OF SAFETY: ORGANIZATIONS, ACCIDENTS, AND NUCLEAR WEAPONS (1993); CHARLES PERROW, NORMAL ACCIDENTS: LIVING WITH HIGHRISK TECHNOLOGIES (1984); DIANE VAUGHAN, THE CHALLENGER LAUNCH DECISION: RISKY TECHNOLOGY, CULTURE, AND DEVIANCE AT NASA (1996); STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993); OFFICE OF THE INSPECTOR GENERAL, U.S. DEP'T OF JUSTICE, THE SEPTEMBER 11 DETAINEES: A REVIEW OF THE TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE INVESTIGATION OF THE SEPTEMBER 11 ATTACKS (2003).

See Mariano-Florentino Cuéllar, Auditing Executive Discretion, 82 NOTRE DAME L. Rev.227 (2006).

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