Mr. President, yesterday afternoon, our colleague Senator Specter criticized the decision of the U.S. Court of Appeals for the District of Columbia in the Al Odah v. U.S. case. That decision upheld…
Mr. President, yesterday afternoon, our colleague Senator Specter criticized the decision of the U.S. Court of Appeals for the District of Columbia in the Al Odah v. U.S. case. That decision upheld the recently enacted Military Commission Act's bar on lawsuits brought by enemy combatants held at Guantanamo Bay.
Senator Specter argued that the Guantanamo detainees have a constitutional right to bring these lawsuits, and he predicted that Al Odah will be overruled. He based his argument largely on the Supreme Court's 2004 decision in Rasul v. Bush. Senator Specter argued that Rasul's ruling that habeas extends to Guantanamo Bay was a constitutional ruling. Senator Specter based his argument on Rasul's discussion of the 18th century common law of habeas corpus. Senator Specter also argued that Justice Scalia's opinion in Rasul acknowledged that Rasul overruled Johnson v. Eisentrager, the landmark decision establishing that captured enemy combatants do not enjoy the privilege of litigation.
I will address each of Senator Specter's argument in turn. At the outset, however, I would like to note that last September, Senator Specter argued that a passage from the plurality opinion in the 2004 decision in Hamdi v. Rumsfeld established that all aliens held in the United States, regardless of combatant status, are constitutionally entitled to seek writs of habeas corpus. In response at that time, I argued that Hamdi did not effect such a radical result. I noted that the holding of Hamdi clearly only involved U.S. citizens; that the notion of extending habeas to aliens based on territorial distinctions was inconsistent with the logic of Hamdi; and that Senator Specter's reading of Hamdi was inconsistent with basic rules of construction that urge against reading groundbreaking new rules into obscure and ambiguous passages of opinions.
I am pleased to see that, today, Senator Specter has not renewed the argument that Hamdi extended habeas rights to noncitizen enemy soldiers. I will assume that he was persuaded by the force of the arguments that I made last September.
Today, allow me to try to persuade Senator Specter, and the rest of my colleagues, that the majority opinion in Rasul v. Bush does not require that the constitutional guarantee of habeas corpus be extended to alien enemy combatants who are being detained during wartime.
Section 7 of the Military Commissions Act, like its predecessor, the Detainee Treatment Act, is predicated on the continuing validity of Johnson v. Eisentrager's constitutional holding, on the unbroken common-law tradition of denying the privilege of litigation to captured alien enemy soldiers, and on the understanding that the holding in Rasul v. Bush was a statutory holding, not a constitutional one.
Neither Senator Specter, nor anyone else, has been able to cite a single case prior to Rasul v. Bush in which any English or American court has ever held that captured enemy soldiers who are not citizens are entitled to seek the writ of habeas corpus. Not one case can be cited that grants the writ to alien enemy soldiers. The absence of any such example over the centuries of the history of the writ of habeas corpus speaks volumes, and alone should be
conclusive of the constitutional question. Simply put, when the Constitution was adopted, the notion that the common law writ of habeas corpus could be employed by alien enemy soldiers was unheard of and it remained unheard until June of 2004, when the Supreme Court decided Rasul v. Bush.
Of course, with 5 votes, the Rasul Court could have grafted a habeas right for alien enemy combatants onto the Constitution. I believe that to do so would have been deeply irresponsible, and I believe that this is clearly not what the court did in Rasul.
In support of his interpretation of Rasul, Senator Specter argued that Justice Scalia's opinion in Rasul noted that the Rasul majority overruled Eisentrager, which had denied litigation rights to alien enemy combatants. In response, I would first note that Justice Scalia's opinion in Rasul was a dissenting opinion. As any lawyer knows, a dissenting opinion's characterization of a court's holding is hardly authoritative. An argument about what a case means that is based primarily on the dissent is inherently a weak argument.
Moreover, I do not think that Justice Scalia's dissenting opinion in Rasul is in any way inconsistent with the notion that Eisentrager's constitutional holding remains good law, and that the constitutional right of habeas corpus does not extend to alien enemy soldiers. Justice Scalia makes clear in his dissent that he is accusing the majority only of overruling Eisentrager's statutory holding, not its constitutional holding.
Justice Scalia begins at page 493 of his dissent by quoting the following passage from Eisentrager: ``Nothing in the text of the Constitution extends such a right''--a right of habeas corpus for war prisoners held overseas--``nor does anything in our statutes.'' It is Justice Scalia who italicized the absence of a statutory right when quoting this passage. He then went on to note:
Eisentrager's directly-on-point statutory holding makes it
exceedingly difficult for the Court to reach the result it
desires today. To do so neatly and cleanly, it must either
argue that our decision in Braden overruled Eisentrager, or
admit that it is overruling Eisentrager.
In this passage, Justice Scalia does accuse the Rasul majority of overruling Eisentrager, but he also makes clear that he only accuses it of overruling Eisentrager's statutory holding, not its constitutional holding.
But the argument that Rasul v. Bush's holding was only statutory, and did not extend constitutional rights to enemy combatants, is supported by more than just Justice Scalia's dissent. The majority opinion itself repeatedly and clearly indicates that the holding in that case is only statutory, not based on the Constitution. For example, on page 475 of the opinion, for example, the majority clearly states that ``[t]he question now before us is whether the habeas statute confers a right to judicial review'' of the detention of the detainees at Guantanamo Bay. Thus the court was careful to make clear that it was the habeas statute that it was interpreting, not the Constitution.
On the next page, when distinguishing Eisentrager, the Rasul majority opinion states that ``Eisentgrager made quite clear that [its analysis was] relevant only to the question of the prisoner's constitutional entitlement to habeas corpus. The court had far less to say on the question of the petitioner's statutory right to habeas corpus.''
Finally, at page 478, when explaining how it would distinguish the holding in Eisentrager, the majority stated: ``Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to ``fundamentals,'' persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.''
This statement could not be clearer that Rasul only addressed the petitioners' statutory right to habeas, not any constitutional right. The court stated that statutory changes--or rather, changes in the interpretation of statutes--made it unnecessary to reach any constitutional questions in Rasul.
Senator Specter's other main argument for his interpretation of Rasul is that the majority opinion's discussion of 18th century common law is a constitutionally binding interpretation of the scope of the writ. My response is that may be so, but it is not relevant to the constitutionality of the Military Commissions Act. The discussion in Rasul that Senator Specter cites is about how far the writ applies overseas. It is not about whether the writ applies to alien enemy soldiers.
Rasul's discussion of the common law of habeas corpus appears in Part IV of the majority decision--after the court had already decided that the statutory right extended to the detainees at Guantanamo. This part of Rasul is devoted to responding to the argument that the presumption against extraterritorial application of legislation requires that the habeas statute be construed to not extend to Guantanamo Bay. Justice Stevens stated that ``[w]hatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within `the territorial jurisdiction' of the United States.'' Justice Stevens then asserted that at common law the writ applied to aliens held overseas, and he went on to describe common law cases that he characterized as extending the writ to aliens held at places outside of the ``sovereign territory of the realm.''
Whatever the merits of Justice Stevens's historical analysis, it is used in Rasul only to rebut the presumption against extraterritoriality. It is used to argue that the writ presumptively does extend overseas. But this part of Rasul does not address the central question raised by the Military Commissions Act: whether alien enemy soldiers, wherever they are held, are constitutionally entitled to seek the writ of habeas corpus. Regardless of whether the writ applies to other aliens held at U.S. facilities overseas, the writ does not--it has never been extended--to alien enemy combatants detained during wartime, whether those soldiers are held inside or outside of the United States.
None of the common law decisions that Justice Stevens discusses in part IV of his opinion granted habeas relief to an alien enemy war prisoner. That is because, as I noted earlier, in the history of habeas corpus, prior to Rasul, alien enemy war prisoners have never been found to be entitled to the writ. Rasul's historical analysis can be cited for the proposition that the writ extends extraterritorially, even to aliens. But its discussion does not address the question that we are concerned with here today: whether the writ extends to alien enemy soldiers.
Indeed, at one point in its discussion, the Rasul opinion does tend to confirm that the common-law habeas right does not extend to enemy soldiers. In its exploration of the scope ``historical core'' of the common-law writ, Rasul quotes a passage from the Supreme Court's prior decision in Shaughnessy v. United States, which noted that executive imprisonment has long been considered oppressive and lawless, and that no man should be detained except under ``the law of the land.'' As Rasul notes, this commentary on the historical scope of the writ came from Justice Jackson.
Just 3 years before he wrote the passage in Shaugnessy that is quoted in Rasul, here is something else that Justice Jackson said about the scope of the writ. Here is what Justice Jackson said in Johnson v. Eisentrager about the notion that the writ extends to alien enemy war prisoners: ``No decision of this Court supports such a view. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it.''
So there you have it, from the same source that the Rasul majority quotes to establish the historical scope of the writ. The writ upholds and enforces the law of the land, but the law of the land does not extend litigation privileges to aliens with whom we are at war.
Let me also cite another, more recent source in support of my argument. Yesterday, Senator Specter quoted an editorial from the New York Times that, unsurprisingly, was hostile to the Military Commissions Act and the Administration. In response to Senator Specter's liberal columnist, allow me cite my own liberal columnist Benjamin Wittes. Mr. Wittes writes op-eds for the Washington Post, is a scholar
at the Brookings Institution, and generally has unimpeachable liberal credentials. I doubt that he and I agree on very many things. Yet this is what he had to say, in a recent column in The New Republic, about the D.C. Circuit's decision in Al Odah upholding the Military Commissions Act:
The [Al Odah] court held both that Congress--not the
executive branch--stripped the courts of jurisdiction to hear
lawsuits from detainees at Guantanamo, and that it had the
constitutional power to do so. As a legal matter, the
decision is correct. And, if and when the Supreme Court
reverses it, as it may do, the decision won't be any less
correct. The reversal will signify only that a majority of
justices no longer wishes to honor the precedents that still
bind the lower courts.
As the case heads towards the Supremes, you'll no doubt
hear a lot about suspension of the Great Writ of habeas
corpus--the ancient device by which courts evaluate the
legality of detentions. And you'll also hear a lot about
Guantanamo as a legal ``black hole.'' It's all a lot of rot,
really, albeit rot a majority of the justices might well
adopt.
Until the advent of the war on terrorism, nobody seriously
believed that the federal courts would entertain challenges
by aliens who had never set foot in this country to overseas
military detentions--or, at least, nobody thought so who had
read the Supreme Court's emphatic pronouncement on the
subject. ``We are cited to no instance where a court, in this
or any other country where the writ is known, has issued it
on behalf of an alien enemy who, at no relevant time and in
no stage of his captivity, has been within its territorial
jurisdiction,'' the Court wrote in 1950. ``Nothing in the
text of the Constitution extends such a right, nor does
anything in our statutes.''
A final passage from Mr. Wittes Commentary reads as follows:
Notwithstanding the passionate dissent in the D.C. Circuit
case, the notion that [the Military Commissions Act] somehow
suspends the writ--a step the Constitution forbids except in
cases of rebellion or invasion--is not credible. As a legal
matter, it merely restores a status quo that had been
relatively uncontroversial for the five decades preceding the
September 11 attacks--that federal courts don't supervise the
overseas detentions of prisoners of war or unlawful
combatants. The demand that they do so now is not one the
Constitution makes.
I would also like to address a point that Senator Sununu made on the floor yesterday. Senator Sununu argued that, because detention of the Guantanamo prisoners may be indefinite, these prisoners should be given a right to challenge their detention.
In response, I would like to simply describe the protections that the CSRT process provides to Guantanamo detainees and discuss why it would be highly problematic to substitute that process with habeas review.
In the CSRT system, a detainee is provided with a personal representative who is assigned to help him prepare his case before the tribunal. CSRT hearings also include a hearing officer who is required to search government files for ``evidence to suggest that the detainee should not be designated as an enemy combatant.'' Prior to the actual hearing, the CSRT officers must provide the detainee with a summary of the evidence to be used against him. CSRTs are then subject to administrative review, and the detainee has an appeal of right to the U.S. Court of Appeals for the District of Columbia, which is charged with evaluating whether the tribunal complied with the CSRT rules, and whether those rules and procedures are constitutional.
All of the procedures described here, incidentally, are above and beyond what lawful prisoners of war are entitled to under the Geneva Conventions in an Article 5 hearing. Those hearings do not assign anyone to help a detainee, they do not require the government to search its files for exculpatory evidence, they do not require that a summary of the incriminating evidence be provided to the detainee, and they are not subject to any judicial review whatsoever.
Indeed, the CSRTs not only provide more process than is required under the Geneva Conventions; the CSRTs require more process than the Supreme Court has suggested is required for the United States to detain even a U.S. citizen as an enemy combatant. In the governing plurality opinion in the 2004 Hamdi decision, the Supreme Court suggested that even a U.S. citizen could be detained as a war prisoner if his detention were reviewed by a ``properly constituted military tribunal.'' The Supreme Court expressly cited as an example of such a tribunal the Article 5 hearings that are conducted under the Geneva Conventions in cases where there is doubt about a detainee's status. The CSRTs are modeled on and closely track these Geneva Convention Article 5 hearings. And, as I just described, in several respects the CSRT process provides even greater protections than an Article 5 hearing provides.
The Military Commissions Act, of course, does not apply at all to United States citizens. Out of deference to the force of the legal argument made by Justice Scalia in Hamdi v. Rumsfeld, both the DTA and the MCA were drafted to only bar aliens from seeking habeas relief, not United States citizens. And, again, the CSRT hearings that alien enemy combatants do receive provide even more process than the Hamdi plurality suggested is owed to an American citizen.
Nevertheless, the detainees and their lawyers are unsatisfied with the CSRT process. They want to give Al Qaeda detainees the right to see classified evidence related to their detention, and they want to allow the detainee to call his own witnesses.
In a recent column in the National Journal, Stuart Taylor, Jr. cites a strong example of why it would be a very bad idea to share classified information with suspected Al Qaeda detainees. Mr Taylor writes:
Consider the list of almost 200 un-indicted co-
conspirators, including the then-obscure Osama bin Laden,
that prosecutors in the 1995 trial of 11 subsequently
convicted Islamist terrorists were legally required to send
to defense counsel. ``That list was in downtown Khartoum
within 10 days,'' U.S. District Judge Michael B. Mukasey of
Manhattan, who tried the case, recalled in a recent panel
discussion. ``And he [bin Laden] was aware within 10 days * *
* that the government was on his trail.''
Mr. Taylor goes on to cite another example where the release of sensitive information to a suspected terrorist in the course of legal proceedings endangered national security:
In another judge's case, [Judge] Mukasey recalled, ``there
was a piece of innocuous testimony about the delivery of a
battery for a cell phone;'' this tipped off terrorists to
government surveillance' and as a result [their]
communication network shut down within days and intelligence
was lost to the government forever, intelligence that might
have prevented who knows what.
Mr. President, it is incidents like this that we must keep in mind when presented with demands that suspected al-Qaida or Taliban members be allowed to pursue habeas litigation. In civilian litigation, a criminal defendant has a presumptive right to see classified evidence used against him. Under CIPA, the Government must summarize or redact the evidence, but the summary or redaction must still provide an adequate substitute for the raw evidence. If the substitute is not deemed adequate, the Government must either show the evidence to the detainee or it cannot use the evidence.
In the context of Guantanamo, where detention hearings rely heavily, if not exclusively, on classified evidence, applying these habeas litigation rules would mean that we would have to either share classified information with al-Qaida detainees or we would have to let them go. Neither of these is an acceptable option. Even the fiercest critics of Guantanamo must accept that the bulk of the detainees held there are connected to al-Qaida or other terrorist groups. We cannot simply seal off these detainees from all contact with the world and assume that we will hold them forever. We must assume that some will be released and that they will be allowed some communication with those outside Guantanamo and, under these circumstances, we simply cannot hand over classified evidence to Guantanamo detainees.
As happened during the embassy bombers' trials, we must assume that classified evidence provided to the detainees will go straight back to the rest of al-Qaida.
I should also emphasize that denying an al-Qaida detainee access to classified information does not mean that such evidence will not be subject to any adversary review in the CSRT and DTA process. In the pending Bismullah case, the Government has proposed a procedural order under which a detainee counsel who has obtained a security clearance would be able to review the classified evidence in the CSRT hearing. If this proposed order is adopted, as I assume it will be in some form, the detainee's lawyer, though not the detainee himself, will have access
to the classified information used in the CSRT.
So when you hear evidence or arguments that the DTA review is unfair or that it is inadequate, keep in mind the actual stakes at issue. The detainee's cleared lawyer will get access to the classified information, but the detainee will not.
Under these circumstances, should the Congress force the military to provide classified information to both the lawyer and the suspected terrorist?
Another complaint about CSRTs is that the Guantanamo detainees are not allowed to call their own witnesses at the hearings. Just who would those witnesses be the detainees would call? Whose testimony would be most relevant to the detainee's enemy combatant status? The only answer to this question would be the soldier who originally captured the detainee.
Here is Mr. Stuart Taylor's commentary on the proposal that Guantanamo detainees be allowed to compel witnesses at their CSRT hearings:
Should a Marine sergeant be pulled out of combat and flown
around the world to testify at a detention hearing about
when, where, how, and why he had captured the particular
detainee? What if the Northern Alliance or some other ally
made the capture? And should the military be ordered to
deliver high-level al Qaeda prisoners to be cross-examined by
other detainees and their lawyers?
I would suggest that simply to ask this question is to answer it.
Here is more that Mr. Taylor had to say about such proposals:
Many libertarians and human rights activists, on the other
hand, would settle for nothing less than the full panoply of
protections afforded to ordinary criminal defendants. They
should be careful what they wish for. As McCarthy points out:
Enemy combatants are often in a position to be killed or
captured. Capturing them is the more merciful option, and
making it more difficult or costly would almost certainly
effect an increase in the number killed.
The CSRT hearings and the DTA review strike the right balance. They give detainees enough process to ensure that the persons held are enemy combatants and that they pose no threat to the United States. But this system does not provide a process that would undermine the war with al- Qaida or that is inconsistent with the realities of war.
Mr. President, I will stipulate to that.
Mr. President, first of all, I appreciate both the courtesy of the Senator from Pennsylvania and his important legal analysis and would answer the question in this way.
I think that most observers believe that the Rasul decision is not a decision on the Constitution but on the statute; that it interprets rights based upon the statute, which Congress can change; that it is not a holding that provides a constitutional right to alien enemy combatants to litigate via habeas corpus.
Secondly, the Great Writ that has been quoted by the Senator from Pennsylvania has always been understood in decisions of the court to be defined as it existed at the time of the Constitution. That is why there is always a great interest in looking back to decisions in the common law of England prior to the adoption of our Constitution, the Bill of Rights.
I think, as I said in my statement, that there has never been a case that suggests that at the time the language about habeas corpus was put into our Constitution any court, in either the United States or England, at the time, had ever held that the writ applied to alien enemy combatants. So it has never been held that the writ applies to aliens. It has been held that it applies to U.S. citizens, and it has certainly never been held that it applies to alien enemy combatants.
Mr. President, I would say to my colleague that nothing in the grant of the writ in the Constitution, as far as I know, would deny the right of Congress to expand it to include others. Certainly, one could not take away from the writ as it was understood when it was put into the Constitution. For example, we could not deny to U.S. citizens the writ of habeas corpus because of the constitutional provision, but it would not speak to the question of whether Congress could extend the authority of the writ to aliens.
The case here, however, is that the decision in question was based on a statute which Congress had adopted, and it does not go to the question of whether the writ itself ever applied to aliens. In fact, it never applied to alien enemy combatants.
Mr. President, I would have to go back and read it very closely, but my recollection is that the court found the statute rather uninformative and rather unclear, and that was part of the basis for the court reading it in a way that went beyond what I thought it provided. Nonetheless, one can understand that when the court views a statute that doesn't provide clear limitations, its inclination may well be to lean forward in its interpretation.
Mr. President, the answer is no, I was not. I regret I didn't hear the argument of the Senator yesterday.
Mr. President, let me just try to respond very briefly to the question of the Senator. Again, I regret I didn't hear the full argument that was made yesterday.
I am happy to yield.
Mr. President, I will respond very briefly by saying, first of all, I fully associate myself--
--with the comments of my colleague from South Carolina yesterday.
To the first point, if I could just make a brief comment, after the Rasul decision, after the Rasul case was decided--
No coaching.
After the Rasul case was decided, I am sure, Senator Specter, you would agree it was important for the Department of Justice to advise people of the rights that were provided as a result of that decision. That is my understanding of what they did. They had a policy of saying: The Court has made this decision. They found a statutory right of habeas corpus, and you have the right to do the following things under that statute. But that would not be a pronouncement of law by the Department of Defense. Certainly it hasn't been relied upon, to my knowledge, by any court in deciding what the scope of the writ is. So, as to your first point, I hardly think it is good evidence of the constitutional application of the writ to detainees that after the Rasul decision, the Department of Justice properly advised people as to their statutory rights based upon that decision.
As to the second question--just one quick quotation. This was provided to me, at my request, by Senator Graham. In the Hamdi case, in the O'Connor opinion, she specifically answers the question you posed, Senator Specter, on page 27 of the opinion, where she says:
Likewise, the Constitution would not be offended by a
presumption in favor of the Government's evidence so long as
that presumption remained a rebuttable one and a fair
opportunity for rebuttal were provided.
Mr. President, I answer my friend and colleague from Pennsylvania that I disagree with a lot of jury verdicts and with a lot of court opinions. But once a matter is concluded, as officers of the court, we are supposed to respect the decision of the court. I do. I don't know the facts of every case that has been litigated, but they have done so under a procedure that has been upheld as constitutional. Just as I was willing to stipulate that Justice Scalia probably has a better handle on Supreme Court interpretation than either--well, I didn't stipulate that he has a better interpretation than Senator Specter, but I acknowledged in my case that he would--I think you have to say that if a court of appeals has made such a decision, then it is a bit presumptuous for us, with great confidence, to say that they necessarily were wrong.
So I am not going to second guess a decision like that. I would rather simply point to the most recent decision which upheld the procedures in the Al-Odah case--that case will be decided by the U.S. Supreme Court. My colleague and I have a different view, I suspect, as to how that case will come out. We will just have to wait and see. If it turns out that I am correct, that the court of appeals' decision is correct, then this debate which we have had here probably won't matter. But I do believe that until that decision is made, it would be unwise for us to again change the law, thus throwing into even greater confusion what has up to now been a pretty confused state of affairs.
Mr. President, this is going to sound too much like the mutual admiration society, but before Senator Specter said what he said, I rose because I wanted, in return, to pay him a compliment.
As chairman of the Judiciary Committee prior to the last election, he performed admirable service to the Senate. I think it is not well known that that kind of a job requires a lot of different skills to be employed to deal with a lot of cantankerous Senators who have their own ideas about how things should be done. Senator Specter always conducted that committee in a way which allowed us to get business done, and respected the rights of Senators. Far too often, debate, or what passes for debate in this Chamber, is speeches given by Senators on different points of view, like ships passing in the night with no joining of the issues, and no serious discussion of complex legal issues, when that should be required.
Certainly the Presiding Officer would be well qualified to judge what I am saying. But I always appreciated the opportunity, even when we were in disagreement, to discuss and to debate with the Senator from Pennsylvania, because he is a serious scholar who takes these matters seriously. He may not always come up with legal theory with which I agree, but it is always interesting to debate him. At the end of
the day, I would like to think this kind of debate does add to a record that the Court or other observers might actually find informative and helpful in their decisions.
Again, while we disagree with each other on this matter, I think it is apparent that we do so respectfully and with regard for each other's opinions.
I want to say there is no greater expert in our body on military law than the Senator from South Carolina. I have always appreciated his wise advice and counsel on these matters as well.
