Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, this is a very important discussion today, and we have an opportunity to consider whether we are willing to respect the ideals of law and human dignity in actuality…
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this is a very important discussion today, and we have an opportunity to consider whether we are willing to respect the ideals of law and human dignity in actuality rather than just in rhetoric. This legislation goes to the core of who we are as a nation.
So I begin the Judiciary Committee's discussion of this matter on two points simply. The first is the point on habeas corpus. Because, you see, we have determined that detainees will not have the ability to challenge the conditions of their detention in court unless and until the administration decides to try them before a military commission. Those who are not tried will have no recourse to any independent court at any time.
So because people have been encouraging each other to read the bill, I want to turn to page 93, line 12, where the habeas corpus matters are included. Here is what it says: ``No court shall hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant.''
There is where 62 law professors from dozens of universities tell us that what we are doing is changing the hallowed writ of habeas corpus so that it will not apply by law. We are by law changing a constitutional provision.
The other important part of our discussion on the Judiciary Committee, and, by the way, I hope that the ranking member of the Armed Services Committee can serve on the Judiciary Committee, because he has made some excellent legal arguments today, the other point that I would bring to your attention is that the President will now, under these provisions in the bill, be allowed to interpret the Geneva Conventions, especially common article 3, the way that he wants and to exclude it from other review by the courts. By eliminating the judicial review of executive acts as significant as detention and domestic surveillance, this cannot be squared with the principles of transparency and the rule of law on which our constitutional democracy rests.
Congress would gravely disserve our global reputation as a law- abiding country by enacting bills that seek to combat terrorism by stripping judicial review. I refer my colleagues to page 83, section 6, relating to treaty obligations. Here it is. This is the bill:
``(3) Interpretation by the President. As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.
``The President shall issue interpretations that will be published in the Federal Register.''
So what we have done now is give to the President, and I think it is about time somewhere in the proceedings that this be made public knowledge, give the President exclusive power to interpret the common article 3 of the Geneva Conventions and that it would be unreviewable.
It is upon these two points that I would urge that the Members of the House of Representatives on this day go on record as refusing to accede to these onerous provisions of a bill that would change the course of America's relationship, historic relationship, with international treaties.
Written Testimony of Jonathan Hafetz Before the U.S. Senate Committee
on the Judiciary, September 25, 2006
Dear Senator Specter, Senator Leahy, and Members of the
Committee: Thank you for the opportunity to submit this
statement in connection with today's hearing. (``Examining
Proposals to Limit Guantanamo Detainees Access to Habeas
Corpus Review''). My comments focus on the historical
foundations of habeas corpus that are relevant to the
Committee's consideration of the proposed legislation, S.
3930. As the United States Supreme Court has repeatedly made
clear, the Constitution, at a minimum, protects the writ of
habeas corpus as it existed in 1789. Eliminating habeas
corpus for prisoners held at Guantanamo Bay would be
inconsistent with centuries of tradition and would fall below
the review required by the Constitution.
I am currently Counsel at the Brennan Center for Justice at
New York University School of Law. The Brennan Center is a
nonpartisan institution dedicated to safeguarding access to
justice and the rule of law through scholarship, public
education, and legal action. One of the Brennan Center's
primary goals is to ensure accountability, transparency, and
checks and balances in the formulation and implementation of
national security policy.
During the past decade, I have focused extensively on the
history of habeas corpus. My scholarly articles and amicus
curiae briefs on habeas have been cited by the Supreme Court
and federal courts of appeals. I hold a J.D. from Yale Law
School and a Masters Degree in History from Oxford
University.
My comments are organized as follows. First, I describe the
historical roots of habeas corpus as a check against unlawful
executive detention and how those protections are guaranteed
under the Constitution and laws of the United States. Second,
I explain the writ's broad territorial scope and guarantee of
a searching examination of the factual and legal basis for a
prisoner's detention. Third, I show that habeas corpus
secures another fundamental requirement of the common law and
due process--the right to be free of detention based on
evidence gained by torture. Finally, I explain why appellate
review under the Detainee Treatment Act of 2005 of a
Combatant Status Review Tribunal determination does not
provide an adequate and effective substitute for
constitutionally mandated habeas. To the contrary, such
review would foreclose any meaningful inquiry into the
factual and legal basis for a prisoner's detention and
sanction evidence secured by torture and other coercion.
I. Habeas Corpus Provides A Check Against Unlawful Executive Detention
For centuries, the writ of habeas corpus has provided the
most fundamental safeguard against unlawful executive
detention in the Anglo-American legal system. William
Blackstone praised habeas as the ``bulwark'' of individual
liberty, while Alexander Hamilton called it among the
``greate[st] securities to liberty and republicanism.'' The
writ
has since been described as ``the most important human
right in the Constitution.
Today habeas is typically used by convicted prisoners to
collaterally attack their criminal sentences. At its
historical core, however, the writ provides a check against
executive detention without trial, and it is in this context
that its protections have always been strongest. Above all,
habeas guarantees that no individual will be imprisoned
without the most basic requirement of due process--a
meaningful opportunity to demonstrate his innocence before a
neutral decisionmaker.
Habeas corpus was part of colonial law from the
establishment of the American colonies, and the common law
writ operated in all thirteen British colonies that rebelled
in 1776. The Framers enshrined habeas corpus in the
Suspension Clause of the Constitution, which states that
Congress ``shall not'' suspend the writ of habeas corpus
``unless when in Cases of Rebellion or Invasion the public
Safety may require it.'' The First Congress codified this
constitutional command in the Judiciary Act of 1789, making
the writ available to any individual held by the United
States who challenges the lawfulness of his detention. For
the Framers of the Constitution, restricting Congress's power
to suspend habeas corpus was never controversial: the only
debate concerned what conditions, if any, could ever justify
suspension of the Great Writ, and the Framers concluded that
Congress could exercise its suspension power only under the
most exceptional circumstances. The constitutional guarantee
of habeas corpus stands apart and perpetually independent
from the other guarantees of the Bill of Rights enacted two
years later in 1791.
Under the influence, if not the command of the Suspension
Clause, Congress has always felt itself obligated to provide
for the writ in the most ample manner. Since the Nation's
founding, the writ has been suspended on only four occasions:
during the middle of the Civil War in the United States;
during an armed rebellion in several southern States after
the Civil War; during an armed rebellion in the Philippines
in the early 1990s; and in Hawaii immediately after the
attack on Pearl Harbor. Each suspension was not only a
response to an ongoing, present emergency, but was limited in
duration to the active rebellion or invasion that
necessitated it.
II. Habeas Corpus Extends To Any Territory Within The Government's Exclusive Jurisdiction And Control And Guarantees A Searching Inquiry
Into The Factual And Legal Basis For A Prisoner's Detention
As the Supreme Court has recognized, the writ of habeas
corpus has an `` `extraordinary territorial ambit.' '' Habeas
has always reached any territory over which the government
exercised sufficient power and control to compel obedience to
the writ's command. As Lord Mansfield wrote in 1759, ``even
if a territory was `no part of the realm [of England],' there
was `no doubt' as to the court's power to issue writs of
habeas corpus if the territory was `under the subjection of
the Crown.' '' At common law, therefore, habeas was
available not only in territories beyond the borders of
England, such as the mainland American colonies and West
Indies, but also in territory over which England exercised
exclusive control and jurisdiction but lacked sovereignty.
The right to habeas corpus has always extended to aliens as
well as citizens. The writ has been available in time of
peace as well as in time of war. Even alleged enemy aliens
have had access to habeas to demonstrate their innocence,
including by submitting evidence to a court. Indeed, in one
case Chief Justice Marshall, on circuit, required an enemy
alien to be produced in court and ordered his release. As the
Supreme Court observed in Rasul v. Bush, detainees at
Guantanamo have the right to habeas review because they are
imprisoned in territory over which the United States has
complete jurisdiction and control and because, unlike the
World War II-era prisoners in Johnson v. Eisentrager, they
have never been convicted of any crime and maintain their
innocence.
Common law courts did not simply accept the government's
factual response to a prisoner's habeas petition; instead,
they routinely probed that response and examined additional
evidence submitted by both sides to ensure the factual and
legal sufficiency of a person's confinement. The writ's
guarantee of a searching judicial inquiry crystallized in
response to the Crown's efforts to detain individuals
indefinitely without due process. In 1592, English judges
protested that when they ordered the release of individuals
unlawfully imprisoned by the Crown, executive officials
transported them to ``secret [prisons]'' to place them beyond
judicial review. As a result, the judges issued a resolution
affirming their power to release prisoners if a response to
the writ was not made.
The Crown, nevertheless, continued to avoid a judicial
examination into a prisoner's detention by providing a
general response (or return) that did not specify the cause
of commitment. This issue came to a head in the seminal
Darnel's Case. There, the Attorney General asserted that it
was the king's prerogative to detain suspected enemies of
State by his ``special command,'' without a judicial inquiry
into the factual and legal basis for their detention. He
emphasized the Crown's overriding interest in national
security and insisted that judges defer to the king's
judgment.
When the court upheld the Crown by finding its response
sufficient, it sparked a constitutional crisis that led to
the establishment of habeas corpus as the pre-eminent
safeguard of common law due process and personal liberty.
This was entrenched through the enactment of the Petition of
Right or 1628, the Habeas Corpus Act of 1641, and the
Habeas Corpus Act of 1679. By the late 1600s habeas corpus
had become--and would remain--``the great and efficacious
writ, in all manner of illegal confinement'' and the most
``effective remedy for executive detention.''
At common law, courts consistently engaged in searching
review on habeas corpus to probe the factual and legal basis
for a prisoners commitment, including by conducting hearings
and taking evidence. In the United States, courts have
exercised the same searching review of executive detention.
Indeed, in one its first habeas cases, the Supreme Court
affirmed the writ's historic function at common law; to
determine whether there was an adequate factual and legal
basis for the commitment,'' fully examining and considering
the evidence and finding it insufficient to justify the
prisoners' detention on allegations of treason.
Habeas also has always guaranteed review of the lawfulness
of a newfangled tribunal established to try individuals
before that trial takes place. This review has been exercised
in time of war and in time of peace, and over all categories
of alleged offenders. To deny that review would jeopardize a
longstanding protection of habeas.
By contrast, habeas review has always been more limited in
post-conviction cases--which today make up the bread and
butter of a federal court's habeas docket. But that is
precisely because the prisoner had already been convicted at
a trial that provided fundamental due process, including the
opportunity to see the government's evidence and to confront
and cross-examine its witnesses, a right that Justice Scalia
has said is ``founded on natural justice,'' Absent that
process, a federal judge with jurisdiction over a habeas
corpus petition has the power to examine the factual and
legal basis for the prisoner's detention in the first
instance, including the power to take evidence and conduct a
hearing, where appropriate. At issue in the Guantanamo habeas
cases is executive detention without any judicial process--
precisely the situation that lies at the Great Writ's core
and that mandates a searching examination of the government's
allegations.
III. Habeas Corpus Serves As An Essential Check On The Use of Evidence
Gained By Torture.
Habeas corpus also vindicates another core guarantee of the
common law--the categorical prohibition on the use of
evidence obtained by torture. During the sixteenth century,
crown officials occasionally issued warrants authorizing the
torture of prisoners. Pain was inflicted by a variety of
ingenious devices, including thumbscrew, pincers, and the
infamous rack. The use of torture dec1ined after an
investigation showed that a suspected traitor had been
``tortured upon the rack'' based upon false allegations.
Shortly thereafter the king asked the common law judges
whether another alleged traitor ``might not be racked'' to
make him identify accomplices, and ``whether there were
any law against it.'' The judges' answer was unanimous:
the prisoner could not be tortured because ``no such
punishment is known or allowed by our law.''
The Framers of the Constitution also abhorred torture,
which they viewed as a mechanism of royal despotism. As the
Supreme Court has repeatedly held, reliance on evidence
obtained by torture is forbidden not merely because it is
inherently unreliable but also because such ``interrogation
techniques [are] offensive to a civilized system of
justice.'' Without the availability of habeas corpus to
provide a searching inquiry into the basis for a prisoner's
detention, and to determine whether, in fact, evidence
justifying that detention has been obtained by torture or
other coercive methods, this fundamental common law
protection would be jeopardized.
IV. The Proposed Legislation Would Violate the Suspension Clause
The proposed legislation would markedly depart from
historical precedent and the Constitution's command that the
writ be made available. This legislation, moreover, would
sweep under the jurisdictional bar only non-citizens, raising
serious questions under the Constitution's guarantee of equal
protection as well.
The Committee may ask whether review by the District of
Columbia Circuit established under the Detainee Treatment Act
of 2005 (``DTA'') obviates any problem under the
Constitution. It does not. Such review falls far short of the
minimum review guaranteed under the Suspension Clause because
it would deny prisoners any meaningful inquiry into the
factual and legal basis for their detention and would
sanction the use of evidence secured by torture and other
coercion. Since others have explained the flaws of this
review scheme in greater detail, I describe them below only
briefly.
The Guantanamo detainees are all held pursuant to a finding
by the Combatant Status Review Tribunal (``CSRT'') that they
are ``enemy combatants.'' The CSRT was established by the
President only nine days after the Supreme Court's ruling in
Rasul that Guantanamo detainees have the right to challenge
their executive detention in federal district court by habeas
corpus. The order creating the CSRT pre-judged the detainees,
declaring that they had already been
found to be enemy combatants based on multiple levels of
internal review. Rather than affording the detainees a
meaningful opportunity to prove their innocence, the CSRT
denied them fundamental rights, including the right to
counsel; the right to see the evidence against them; and the
right to a neutral decisionmaker. Moreover, as the government
itself acknowledges, the CSRT permits the use of evidence
gained by torture. In short, as District Judge Joyce Hens
Green found, the CSRT denies the core protections of
elementary due process that habeas provides: a searching
factual inquiry to determine whether a prisoner's
detention is unlawfu1, including whether it is based on
evidence secured by torture.
Review of CSRT determinations under the DTA would not
provide detainees with any opportunity to challenge the
factual and legal basis for their detention. The DTA, on its
face, limits review to whether the CSRT followed its own
procedures. No detainee, as the government argues, can ever
present evidence to a federal court even if that evidence
shows he is innocent or that he was tortured. In short, DTA
review of a CSRT finding would deny prisoners precisely the
meaningful factual inquiry provided by habeas corpus and
secured under the Suspension Clause.
V. Conclusion
Habeas corpus has aptly been described as ``the water of
life to revive from the death of imprisonment.'' For
centuries, the Great Writ has prevented the Executive from
imprisoning individuals based upon mere suspicion and without
a meaningful examination of its allegations. Habeas corpus
demands that individuals have a fair opportunity to
demonstrate their innocence before a neutral decisionmaker.
Eliminating habeas at Guantanamo would flout this long
tradition and would gut the core protections guaranteed under
the Suspension Clause.
Thank you for the opportunity to provide this statement. My
colleagues and I are happy to provide the Committee with any
further information.
Jonathan Hafetz,
New York, NY, September 25, 2006
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, before yielding to the gentlewoman from California, I would just like to respond to the comments that I have heard.
Never before has a President of the United States had the exclusive power to interpret the Geneva Conventions and publish what he has interpreted in the Record. And never before has a President had the power to eliminate judicial review of executive acts as significant as detention and domestic surveillance. And that can't be squared with the principles of transparency and the rule of law.
I would refer all of my colleagues to 62 professors of law, not lawyers, professors of law, who have explained why section 83 and section 6 are very problematic and are going to lead us right back into the court, because for 5 long years after the 9/11 tragedy, not a single detainee has been brought to justice because this administration insists on unilaterally pursuing secret, unconstitutional strategies that cannot pass judicial muster.
I yield 2 minutes to the gentlewoman from California (Ms. Zoe Lofgren), member of the Judiciary Committee.
Mr. Speaker, I now yield 2\1/2\ minutes to the gentleman from Virginia, a member of the Judiciary Committee, Mr. Scott.
Mr. Speaker, I am proud to yield to the gentleman from California (Mr. Schiff), who has worked diligently on this issue, 2 minutes.
Mr. Speaker, I am pleased to yield to the gentleman from New York (Mr. Nadler), a distinguished member of the Committee on the Judiciary, 2 minutes.
Mr. Speaker, I yield to the gentleman from Maryland (Mr. Van Hollen), an excellent member of the Committee on the Judiciary, 2 minutes.
Mr. Speaker, I include for the Record a letter dated September 27 from the American Civil Liberties Union and 41 other organizations.
September 27, 2006.
Dear Representative: We are writing to strongly encourage
you to reject the ``compromise'' Military Commissions Act of
2006 and to vote no on final passage of the bill. More than
anything else, the bill compromises America's commitment to
fairness and the rule of law.
For the last five years the United States has repeatedly
operated in a manner that betrays our Nation's commitment to
law. The U.S. has held prisoners in secret prisons without
any due process or even access to the Red Cross and has
placed other prisoners in Guantanamo Bay in a transparent
effort to avoid judicial oversight and the application of
U.S. treaty obligations. The Federal government has operated
under legal theories which dozens of former senior officers
have warned endanger U.S. personnel in the field and has
produced legal interpretations of the meaning of ``torture''
and ``cruel, inhuman and degrading'' treatment which had to
be abandoned when revealed to the public. Interrogation
practices were approved by the Department of Defense which
former Bush Administration appointee and General Counsel of
the Navy Alberto Mora described as ``clearly abusive, and . .
. clearly contrary to everything we were ever taught about
American values.'' According to media reports the CIA has
used a variety of interrogation techniques which the United
States has previously prosecuted as war crimes and routinely
denounces as torture when they are used by other governments.
Instead of finally coming to grips with this situation and
creating a framework for detaining, interrogating and
prosecuting alleged terrorists which comports with the best
traditions of American justice, the proposed legislation will
mostly perpetuate the current problems. Worse, it would seek
to eliminate any accountability for violations of the law in
the past and prevent future judicial oversight. While we
appreciate the efforts various members of Congress have made
to address these problems, the ``compromise'' falls far short
of an acceptable outcome.
The serious problems with this legislation are many and
this letter will not attempt to catalogue them all. Indeed,
because the legislation has only just been made available,
many of the serious flaws in this long, complex bill are only
now coming to light. For instance, the bill contains a new,
very expansive definition of enemy combatant. This definition
violates traditional understandings of the laws of war and
runs directly counter to President Bush's pledge to develop a
common understanding of such issues with U.S. allies. Because
the proposed definition of combatant is so broad, the
language may also have potential consequences for U.S.
civilians. For instance, it may mean that adversaries of the
United States will use the definition to define civilian
employees and contractors providing support to U.S. combat
forces, such as providing food, to be ``combatants'' and
therefore legitimate subjects for attack. Yet, there has been
no opportunity to consider and debate the implications of
this definition, or other parts of the bill such as the
definitions of rape and sexual abuse.
We strongly oppose the provisions in the bill that strip
individuals who are detained by the United States of the
ability to challenge the factual and legal basis of their
detention. Habeas corpus is necessary to avoid wrongful
deprivations of liberty and to ensure that executive
detentions are not grounded in torture or other abuse.
We are deeply concerned that many provisions in the bill
will cast serious doubt on the fairness of the military
commission proceedings and undermine the credibility of the
convictions as a result. For instance, we are deeply
concerned about the provisions that permit the use of
evidence obtained through coercion. Provisions in the bill
which purport to permit a defendant to see all of the
evidence against him also appear to contain serious flaws.
We believe that any good faith interpretation of the
definitions of ``cruel, inhuman and degrading'' treatment in
the bill would prohibit abusive interrogation techniques such
as waterboarding, hypothermia, prolonged sleep deprivation,
stress positions, assaults, threats and other similar
techniques because they clearly cause serious mental and
physical suffering. However, given the history of the last
few years we also believe that the Congress must take
additional steps to remove any chance that the provisions of
the bill could be exploited to justify using these and
similar techniques in the future.
Again, this letter is not an attempt to catalogue all of
the flaws in the legislation. There is no reason why this
legislation needs to be rushed to passage. In particular,
there is no substantive reason why this legislation should be
packaged together with legislation unrelated to military
commissions or interrogation in an effort to rush the bill
through the Congress. Trials of the alleged ``high value''
detainees are reportedly years away from beginning. We urge
the Congress to take more time to consider the implications
of this legislation for the safety of American personnel, for
U.S. efforts to build strong alliances in the effort to
defeat terrorists and for the traditional U.S. commitment to
the rule of law. Unless these serious problems are corrected,
we urge you to vote no.
Sincerely,
Physicians for Human Rights.
Center for National Security Studies.
Amnesty International USA.
Human Rights Watch.
Human Rights First.
American Civil Liberties Union.
Open Society Policy Center.
Center for American Progress Action Fund.
The Episcopal Church.
Jewish Council for Public Affairs.
National Religious Campaign Against Torture.
Presbyterian Church (USA), Washington Office.
Friends Committee on Nat'l Legislation.
Maine Council of Churches.
Pennsylvania Council of Churches.
Wisconsin Council of Churches.
Brennan Center for Justice at NYU Law School.
Center for Constitutional Rights.
Robert F. Kennedy Memorial Center for Human Rights.
The Bill of Rights Defense Committee.
Unitarian Universalist Service Committee.
Leadership Conference of Women Religious.
Center for Human Rights and Global Justice, NYU School of
Law.
The Shalom Center.
Washington Region Religious Campaign Against Torture.
The Center for Justice and Accountability.
Center of Concern.
Justice, Peace & Integrity of Creation Missionary Oblates.
Rabbis for Human Rights--North America.
Humanist Chaplaincy at Harvard University.
No2Torture.
Maryland Christians for Justice and Peace.
American Library Association.
Churches Center for Theology and Public Policy.
Disciples Justice Action Network (Disciples of Christ).
Equal Partners in Faith.
Christians for Justice Action (United Church of Christ).
Reclaiming the Prophetic Voice.
Baptist Peace Fellowship of North America.
Pax Christi USA: National Catholic Peace Movement.
Fellowship of Reconciliation.
Maryknoll Office for Global Concerns.
Mr. Speaker, I turn now to the gentleman from Massachusetts (Mr. Frank), a former member of the committee, 1 minute.
Mr. Speaker, I yield myself the balance of my time.
The last reason for the many that have been brought forward as to why this legislation is dangerous and unwise is that it endangers our troops because it has the effect of lowering the standards set forth in the Geneva Conventions. By allowing the President to unilaterally interpret the Geneva Conventions and then exempting his interpretations from any scrutiny, we are creating a massive loophole to this time- honored treaty and endangering our own troops.
As the head of Army intelligence, Lieutenant General Kimmons warned us, no good intelligence is going to come from abusive practices. I think history tells us that. And if you don't believe him, just ask Maher Arar, an innocent Canadian national, who was sent by our Nation, I am sorry to report, to Syria where he was tortured.
This legislation decimates separation of powers by retroactively cutting off habeas corpus. Let us not approve this legislation in the House of Representatives this evening.
Mr. Speaker, I yield back the balance of my time.