Mr. Speaker, it was clear from the beginning that the executive branch lacked the authority to create courts without the Congress passing laws to provide for them, so it is important and proper that Congress create courts so that terrorist…
Mr. Speaker, it was clear from the beginning that the executive branch lacked the authority to create courts without the Congress passing laws to provide for them, so it is important and proper that Congress create courts so that terrorist suspects can be swiftly tried, found guilty, and be punished. Unfortunately, this bill will not accomplish that.
Others have spoken well about the deficiencies in the definition of who may be incarcerated without charge forever, but I want to particularly object to the provisions suspending habeas corpus.
America is a proud free Nation because we are a Nation of laws, not men. Key to the rule of law is the brilliant system of checks and balances created by the Founding Fathers. This bill dumps the checks and balances by asserting that the courts cannot review the actions of the executive branch.
While poorly crafted rules are included in the bill, rules without remedies are not real rules. Not only is it unwise, it is mostly unconstitutional. And instead of allowing for swift prosecution and punishment, enactment of this bill into law will lead to years of further legal wrangling.
We all took an oath to defend and uphold the Constitution of the United States, and here is what article I, section 9 says: ``the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.''
Congress may not suspend the great writ of habeas corpus and limit the checks and balances whenever it wants to. Congress may do so only in cases of rebellion and invasion, neither of which is present today. Nine distinguished retired justices have written to bring this to our attention.
I include their letter for the Record.
To Members of Congress: The undersigned retired federal
judges write to express our deep concern about the lawfulness
of Section 6 of the proposed Military Commissions Act of 2006
(``MCA''). The MCA threatens to strip the federal courts of
jurisdiction to test the lawfulness of Executive detention at
the Guantanamo Bay Naval Station and elsewhere outside the
United States. Section 6 applies ``to all cases, without
exception, pending on or after the date of the enactment of
[the MCA] which relate to any aspect of the detention,
treatment, or trial of an alien detained outside of the
United States . . . since September 11, 2001.''
We applaud Congress for taking action establishing
procedures to try individuals for war crimes and, in
particular, Senator Warner, Senator Graham, and others for
ensuring that those procedures prohibit the use of secret
evidence and evidence gained by coercion. Revoking habeas
corpus, however, creates the perverse incentive of allowing
individuals to be detained indefinitely on that very basis by
stripping the federal courts of their historic inquiry into
the lawfulness of a prisoner's confinement.
More than two years ago, the United States Supreme Court
ruled in Rasul v. Bush, 542 U.S. 466 (2004), that detainees
at Guantanamo have the right to challenge their detention in
federal court by habeas corpus. Last December, Congress
passed the Detainee Treatment Act, eliminating jurisdiction
over future habeas petitions filed by prisoners at
Guantanamo, but expressly preserving existing jurisdiction
over pending cases. In June, the Supreme Court affirmed in
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), that the federal
courts have the power to hear those pending cases. These
cases should be heard by the federal courts for the reasons
that follow.
The habeas petitions ask whether there is a sufficient
factual and legal basis for a prisoner's detention. This
inquiry is at once simple and momentous. Simple because it is
an easy matter for judges to make this determination--federal
judges have been doing this every day, in every courtroom in
the country, since this Nation's founding. Momentous because
it safeguards the most hallowed judicial role in our
constitutional democracy--ensuring that no man is imprisoned
unlawfully. Without habeas, federal courts will lose the
power to conduct this inquiry.
We are told this legislation is important to the ineffable
demands of national security, and that permitting the courts
to play their traditional role will somehow undermine the
military's effort in fighting terrorism. But this concern is
simply misplaced. For decades, federal courts have
successfully managed both civil and criminal cases involving
classified and top secret information. Invariably, those
cases were resolved fairly and expeditiously, without
compromising the interests of this country. The habeas
statute and rules provide federal judges ample tools for
controlling and safeguarding the flow of information in
court, and we are confident that Guantanamo detainee cases
can be handled under existing procedures.
Furthermore, depriving the courts of habeas jurisdiction
will jeopardize the Judiciary's ability to ensure that
Executive detentions are not grounded on torture or other
abuse. Senator John McCain and others have rightly insisted
that the proposed military commissions established to try
terror suspects of war crimes must not be permitted to rely
on evidence secured by unlawful coercion. But stripping
district courts of habeas jurisdiction would undermine this
goal by permitting the Executive to detain without trial
based on the same coerced evidence.
Finally, eliminating habeas jurisdiction would raise
serious concerns under the Suspension Clause of the
Constitution. The writ has been suspended only four times in
our Nation's history, and never under circumstances like the
present. Congress cannot suspend the writ at wi1l, even
during wartime, but only in ``Cases of Rebellion or Invasion
[when] the public safety may require it.'' U.S. Const. art.
I, Sec. 9, cl. 2. Congress would thus be skating on thin
constitutional ice in depriving the federal courts of their
power to hear the cases of Guantanamo detainees. At a
minimum, Section 6 would guarantee that these cass would be
mired in protracted litigation for years to come. If one goal
of the provision is to bring these cases to a speedy
conclusion, we can assure you from our considerable
experience that eliminating habeas would be
counterproductive.
For two hundred years, the federal judiciary has maintained
Chief Justice Marshall's solemn admonition that ours is a
government of laws, and not of men. The proposed legislation
imperils this proud history by abandoning the Great Writ to
the siren call of military necessity. We urge you to remove
the provision stripping habeas jurisdiction from the proposed
Military Commissions Act of 2006 and to reject any
legislation that deprives the federal courts of habeas
jurisdiction over pending Guantanamo detainee cases.
Respectfully,
Judge John J. Gibbons, U.S. Court of Appeals for the Third
Circuit (1969-1987), Chief Judge of the U.S. Court of Appeals
for the Third Circuit (1987-1990).
Judge Shirley M. Hufstedler, U.S. Court of Appeals for the
Ninth Circuit (1968-1979).
Judge Nathaniel R. Jones, U.S. Court of Appeals for the
Sixth Circuit (1979-2002).
Judge Timothy K. Lewis, U.S. District Court, Western
District of Pennsylvania (1991-1992), U.S. Court of Appeals
for the Third Circuit (1992-1999).
Judge William A. Norris, U.S. Court of Appeals for the
Ninth Circuit (1980-1997).
Judge George C. Pratt, U.S. District Court, Eastern
District of New York (1976-1982), U.S. Court of Appeals for
the Second Circuit (1982-1995).
Judge H. Lee Sarokin, U.S. District Court for the District
of New Jersey (1979-1994), U.S. Court of Appeals for the
Third Circuit (1994-1996).
William S. Sessions, U.S. District Court, Western District
of Texas (1974-1980), Chief Judge of the U.S. District Court,
Western District of Texas (1980-1987).
Judge Patricia M. Wald, U.S. Court of Appeals for District
of Columbia Circuit (1979-1999), Chief Judge of the U.S.
Court of Appea]s for District of Columbia Circuit (1986-
1991).
We should be pulling together as a country to track down these terrorists and bring them to justice instead of facing this unconstitutional and divisive measure that was brought before us as part of a political agenda with an eye on the midterm elections, instead of a bill that would unify us as part of an American agenda with an eye to the continued greatness and security of our country.