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whether the individual is in fact an enemy combatant. The MCA specifically exempts from its coverage those individuals who are considered to be “awful” combatants. The problem with this provision is that the framework set up by the MCA insulates from meaningful review the very determination of whether an individual is in fact a lawful combatant.

Taken together, 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. The history of these lawful permanent resident communities has been marked by significant contributions to American life as well as concerted efforts for legal and social inclusion.'3 The MCA cuts against such inclusion. It may seem unlikely that the MCA would be used against 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. Recently, for example, the Inspector General of the Justice Department reported that the FBI was using National Security Letters under the Patriot Act for purposes that did not involve terrorism.


Although the preceding observations augur in favor of restoring habeas protections, it is worth acknowledging some of the objections that have been raised to such a move. Some observers question whether habeas corpus should have much application outside the context of traditional domestic criminal law. In fact, habeas corpus has not been confined to traditional criminal proceedings at all. Enemy combatants have sought habeas relief just as individuals convicted in domestic criminal proceedings have. Nor is it the case that jurisdiction over habeas review is confined strictly to a nation's territory. As the Supreme Court explained in Rasul, both British and American precedents establish that habeas jurisdiction can extend to areas within a nation's sovereign control but beyond its borders. Giving the present system an opportunity to demonstrate its effectiveness without restoring habeas is also difficult to justify, as habeas review has proven to be critical in revealing the flaws of detention systems in the past. Finally, there is





Section 948a (2).
See Graham v. Richardson, 403 U.S. 365 (1971).

Ex Parte Milligan, 4 Wall. at 2, Ex Parte Quirin, 317 at 1.



little basis for concerns that restoration of habeas would open the floodgates to challenges from individuals held by the U.S. abroad. While the Court in Rasul established that even detainees in Guantanamo merit access to the writ, the holding turned primarily on the unusual degree of United States authority over Guantanamo, where our nation indefinitely exercises complete control and jurisdiction by the express terms of its agreement with Cuba. The holding is therefore unlikely to be extended to areas where the United States is not exercising authority and control similar to what our nation wields in Guantanamo.

Even if the preceding objections to restoring habeas corpus are not persuasive, it is important to acknowledge the security challenges we Americans face at this point in our history. The solution to the risks of arbitrary executive coercion made possible by the MCA is not to dismiss the threat posed by those who would harm America or its residents. It is instead to pass the Habeas Restoration Act, and more generally, to be mindful of the need for balance in this crucial area of law. Such balance can be better assured if Congress carefully weighs the risks that laws will be used in unintended ways – far removed from their original justification - and if Congress considers the value of continuing a long tradition of legislative respect for the role of habeas review as an external check on the bureaucratic power to coerce and detain. History shows a nearly unbroken pattern of Congressional respect for the great writ. Now is the time to restore that legacy.

Thank you very much. I would be pleased to answer any of your questions.

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I am writing this short letter to you to express my strong support for S. 185, which socks in a sensible fashion to undo much of the scrious damage to our constitutional structurc that has been wrought by the Military Commissions Act of 2006, insofar as it removed all of the traditional protections that the writ of Habeas Corpus lung supplied to individuals, citizens and aliens alike, who seek to challenge the legality of their detentions before an independent federal judge. The current provisions of the MCA read like a Kafkaesque novel in which the word of an anonymous government official is sufficient to allow the detention of any and all aliens foimd either in the United States or abroad. The key provision of the MCA that accomplishes this result currently reads "No court, justice, or judge shall have jurisdiction to hcar or consider an application for a writ of habeas corpus filed by or on behalf of an alion detained by the United States who has been dctcrmined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

As written, this provision draws no distinction among various kinds of aliens. Those who are lawfully in the United States, even as permanent alions, are treatod the sunie as enemy combatants found in uniform abroad. The current provisions of the MCA are deliberately saceless. No person in authority must answer by name for the acts of deteation for which they are responsible, for MCA allows the “United States" AS a national abstraction to make this decision for which no government official from the President on down must stand accountable. Nor does the MCA state whether a mere anonymous say-so counts as a determination of coinbatant status, or whothor someone, let alonc who, has to review the evidence before the writ of habeas corpus is lost. Nor need the government run the charade at all: it can make sure that detainccs are kept “awaiting" a determination, say, forever.

This conscious disregard of traditional practice in the United States counts as an affront to the rudimentary principles of fair play that has commended itself to cvery court

05/17/2007 16.01 FAX

773 702 0730

Law School Faculty


thal does not model itself on the old English Star Chamber. It is, morcover, impossible to
justify this limitation on ordinary protections on the grounds that the MCA, as now
constituted offers a modem substitute of equal worih for the traditional writ of habeas
corpus in the form of a hearing, maybe, before the newly refurbished Combat Status
Review Tribunals. There may be no magic in the Latin words habeas corpus. But if the
name does not matter, the protections do: do people held against their will have a chance
to challenge the legality of their confinement in a regular proceeding before a neutral
official? In my view, they do. The huge doubl over the legality of many individual
incarcerations make it evident that some hearing should be allowed to determinc the
legalily of the confincmcnt. Whether peoplc are held in the United States or abroad
should not make any difference to the overall analysis, for the Due Process Clause of the
Fifth Amendment to the Constitution contains no explicit territorial limitation on the
protections of due process, which are consciously extended, by use of the word "person"
to citizen and alicn alike. Similarly 'the privilege of the writ of habeas corpus" extends
to all persoas, not just citizens, and il 100 camot be suspended "unless when in cascs of
Rebcllion or invasion the public safety may require il" I realize that therc are some
judicial decisions that scek to narrow the scope of the writ of Habeas Corpus, but none go
so far as the MCA, which in my judgment is unconstitutional in its present form, and
never should have been enacted into law in the first place.

In this lighi, it is most wolcomc that S. 185 works to repeal 28 U.S.C 6 2241(e) and to replace 10 U.S.C. $ 950j(b), with the new provision sel out in S. 185. As I read the provision, it removes the most disgraceful portions of the MCA by repcaling the provisions of the current law that bar any court from hearing applications for habeas corpus filed by aliens whom the United States has determined should be detained as enemy combatants, or who are awaiting such determinations. This is an important return coward normal procedures that predated the MCA. At this point I express no opinion whether the remaining bar on judicial review of military procedures that is preserved in the new section (b) is adequate for all occasions, for that discussion can wait for another day. The first order of business is to pass this bill, and I urge the Senatc to do so as quickly as possible.

Sincerely yours,

Thaul aspita

Richard A. Epstein

Dr. David P. Gushee
Evangelicals for Human Rights

156 Claiborne Drive
Jackson, TN 38305

May 18, 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,

I write to express my support for your legislation to restore habeas corpus for detainees in US custody. My comments come to you both as an individual and on behalf of a large group of evangelical Christian leaders. And my concerns relate not just to the habeas issue but to the broader treatment of detainees in the war on terror.

Let me start by introducing you to a major declaration on detainee-related issues that I have been involved in developing and circulating over the last year.

"An Evangelical Declaration Against Torture: Protecting Human Rights in an Age of Terror" is a lengthy theological/ethical analysis of a variety of issues raised by the conduct of the war on terror. (The statement is attached with this letter, along with a partial signatory list. I commend the entire statement for your consideration.) It was drafted by a team of scholars, under my leadership, representing a new organization called Evangelicals for Human Rights. I am pleased to report that in March 2007, the declaration was approved by the board of directors of the National Association of Evangelicals (NAE), an organization representing 60 denominations, 45,000 churches, and 30 million evangelical Christians. Together with the distinguished list of signatories from beyond the NAE, the declaration can be said to represent a very wide and significant swath of evangelical Christians in America.

The heart of the document is an affirmation of our shared Christian belief in the sanctity of every human life, and therefore our commitment to respect the human rights of every person. The signatories agree that our nation does face determined adversaries who do not operate according to civilized norms. But we believe that we must not allow the behavior of others to determine our own behavior. We write (section 1.6);

The question we now face is how we protect our society (and other societies) from further terrorist acts within a framework of moral and legal norms. As American Christians, we are above all motivated by a desire that our nation's actions would be consistent with foundational Christian moral norms. We believe that a scrupulous commitment to human rights, among which is the right not to be tortured, is one of these Christian moral convictions.

Towards the end of our declaration we broaden our horizon of concern to include human rights issues other than torture that are raised by the conduct of the war on terror and the laws that

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