S. HRG。109-658 EXAMINING建议LIMIT关塔那摩被拘留者”获得人身保护令审查=======================================================================的司法委员会美国参议院一百一十九国会听证会之前SECOND SESSION __________ SEPTEMBER 25, 2006 __________ Serial No. J-109-113 __________ Printed for the use of the Committee on the Judiciary _____ U.S. GOVERNMENT PRINTING OFFICE 30-633 PDF WASHINGTON : 2006 _________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma Michael O'Neill, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 5 Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, prepared statement.............................. 84 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2 prepared statement........................................... 86 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 1 WITNESSES Berenson, Bradford, Esq., Partner, Sidley Austin, LLP, Washington, D.C................................................ 16 Fein, Bruce, Partner, Fein & Fein, Washington, D.C............... 10 Hutson, John D., Rear Admiral, Retired, President and Dean, Franklin Pierce Law Center, Concord, New Hampshire............. 7 Rivkin, David, Esq., Partner, Baker & Hostetler, LLP, Washington, D.C............................................................ 14 Sullivan, Thomas P., Esq., Partner, Jenner & Block, Chicago, Illinois....................................................... 9 Swift, Charles, Lieutenant Commander, U.S. Navy, Judge Advocate General's Corps, Arlington, Virginia........................... 12 SUBMISSIONS FOR THE RECORD Berenson, Bradford, Esq., Partner, Sidley Austin, LLP, Washington, D.C., statement.................................... 30 Department of Justice, brief (portion)........................... 54 Fein, Bruce, Partner, Fein & Fein, Washington, D.C., statement and attachment................................................. 58 Former members of the diplomatic service, joint letter........... 65 Hafetz, Jonathan, Brennan Center for Justice, New York University, School of Law, New York, New York, statement....... 67 Hutson, John D., Rear Admiral, Retired, President and Dean, Franklin Pierce Law Center, Concord, New Hampshire, statement.. 79 MotherJones.com, interview....................................... 89 New York Times, New York, New York, June 21, 2004, article....... 95 Rivkin, David, Esq., Partner, Baker & Hostetler, LLP, Washington, D.C., statement................................................ 107 Starr, Kenneth W., Malibu, California, letter.................... 114 Sullivan, Thomas P., Esq., Partner, Jenner & Block, Chicago, Illinois, statement............................................ 115 Swift, Charles, Lieutenant Commander, U.S. Navy, Judge Advocate General's Corps, Arlington, Virginia, statement................ 129 Washington Post, Washington, D.C., article....................... 138 Washington Times, Washington, D.C., article...................... 141 EXAMINING PROPOSALS TO LIMIT GUANTANAMO DETAINEES' ACCESS TO HABEAS CORPUS REVIEW ---------- MONDAY, SEPTEMBER 25, 2006 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, pursuant to notice, at 10:04 a.m., in room 226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Cornyn and Leahy. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman Specter. Good morning, ladies and gentlemen. The Senate Judiciary Committee will now proceed with our hearing on the issue of habeas corpus review on the pending legislation with respect to the detainees at Guantanamo. I begin by thanking my colleagues and the staff for this unusual Monday morning hearing. The Senate customarily does not begin until afternoon, but with the pendency of legislation dealing with detainees, Senator Leahy and I thought that it was important that we move ahead to examine this issue in a hearing. I thank Senator Leahy especially for rearranging his schedule to be here this morning, and I thank Senator Cornyn for being here, and the staff for being in session and on the job all during the weekend. The Judiciary Committee has had a very heavy schedule with confirmations and with the Reporter's Privilege legislation, with the Eminent Domain, and with a number of other items, especially the Electronic Surveillance bill. With the legislation now presented with the proposal to eliminate habeas corpus jurisdiction on the detainees' bill, it seemed to us especially important that we take a look at this issue. The legislation which has been proposed by the Armed Services Committee, I think, is a considerable improvement. I think it is important to retain the principles of Geneva Common Article 3, not only to retain them, but to make sure that the world understands that we are retaining them and the appearance of retaining them. I think it is useful to have the clarification on classified evidence which, as I understand it, will be pretty much on the line of a Confidential Information Protection Act, where the judge will review the information and exclude material which would disclose sources, methods, or confidential information. There is the risk that, with the exclusion of that evidence, the prosecution may not be able to proceed. But these detainees are not about to be released, even if they are on trial for war crimes. They would be detained, in any event. The contours of the bill on those items and on the issue of coerced confessions and hearsay are not really clear, at least according to the newspaper accounts. A bill was filed on Friday, but it has been described as a placeholder, with the real text yet to be disclosed. I think the difficulty in coming to grips with all of these issues makes it even more important that there be judicial review as to what is going on here, as to what the bill says, what it means, and how it is to be applied. The Constitution, Article I, Section A, gives the Congress the express responsibility to deal with people captured on land or sea. Notwithstanding that, Congress has not acted, and had not acted since 9/11. Senator Leahy introduced legislation, Senator Durbin and I introduced legislation, but it was too hot to handle and the Congress punted. It was only when the Supreme Court acted with three cases in June of 2005, and then with Hamdan last June, that there has been some action on the matter. It is inexplicable to me how someone can seek to divest the Federal courts of jurisdiction on constitutional issues. It is just inexplicable to me. If the courts are not opened to decide constitutional issues, how is constitutionality going to be tested? With habeas corpus, there is a special hurdle, a specific hurdle in the Constitution. Many do not know about it, but habeas corpus can be suspended only in time of rebellion or in time of invasion, and neither is present here. I protested when we passed the detainee bill last year excluding habeas corpus, and we are going to try to shed some light on it so that our colleagues can make an intelligent decision when this important subject comes up. I am going to yield back the last 4 seconds and call on my distinguished colleague, Senator Leahy. STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Senator Leahy. I will probably use it. I commend the Chairman for holding this hearing on the provisions in the proposed Military Commissions bill that would eliminate for detainees the Writ of Habeas Corpus, a cornerstone of our legal and constitutional system. I wish we could have had the hearing at a time when more Senators could be here and there had been more time to prepare for it, because the issue carries serious consequences. I also hope that we do not have a hearing that becomes, in Shakespeare's words, ``sound and fury, signifying nothing.'' We had a great deal of effort on the torture legislation, and we know that once it passed the White House ignored it in a signing statement. The same thing happened with the latest reiteration of the PATRIOT Act, after a great deal of effort made my Republicans and Democrats to work out some of the most complex parts. When the bill passed, the White House made it very clear that they were not going to follow the law anyway. For weeks now, politicians and media have breathlessly debated the fine points and political implications of this whole compromise on proposed trial procedures for suspected terrorists--a compromise, incidentally, nobody has yet seen-- and in doing so we have ignored a central, more sweeping issue. Important as rules for military commissions are, they are only going to apply to a few cases. The administration, with this effort in the war on terror, has charged a total of 10 people in the nearly 5 years since the President declared his intention to use military commissions. He now says, with all the pressure going on, they may charge another 14. But of course, that leaves almost 500 prisoners at Guantanamo. As Donald Rumsfeld said 3 years ago, the administration has no interest in trying them. Today we are addressing the single most consequential provision in this much-discussed bill, a provision that can be found buried on page 81 of the proposed bill. This provision would perpetuate the indefinite detention of hundreds of individuals against whom the government has brought no charges and presented no evidence, without any recourse to justice whatsoever. This is un-American. This is un-American. [Applause]. Chairman Specter. There will be no demonstrations from the people in the room. We want you to be here, we want you to listen, but that is out of order. Excuse me, Senator Leahy. Senator Leahy. No. I understand. It is contrary to American interests. As many in the military said, this hurts our interests abroad. Going forward, the bill departs even more radically from our most fundamental values. It would permit the President to detain indefinitely, even for life, any alien, whether in the United States or abroad, whether a foreign resident or lawful permanent resident, without any meaningful opportunity for the alien to challenge his detention. The administration would not even have to assert, much less prove, that the alien was an enemy combatant. It would suffice that the alien was ``awaiting determination'' on that issue. In other words, the bill would tell the millions of legal immigrants living in America, participating in American families, working for American businesses and paying American taxes, that our government may at any minute pick them up, detain them indefinitely without charge and without any access to the courts, or even to military tribunals unless and until the government determines that they are not enemy combatants. Detained indefinitely and unaccountably until proven innocent, not until proven guilty. Like the Canadian citizen Maher Arar. As the Canadian Government recently concluded, there is no evidence that Mr. Arar ever committed a crime or posed a threat to U.S. or Canadian security. But what happened? He is a Canadian citizen. While returning home to Canada from a family vacation, he had to change planes in New York. He was detained, interrogated, and then shipped off to be tortured in a torture cell in Syria by the Bush-Cheney administration. While the Canadian Government has now documented that the wrong thing was done to the wrong man, the Bush-Cheney administration, as usual, evaded all accountability by hiding behind the purported State Secrets Privilege. The administration's defenders would like to believe the case is an isolated blunder, but it is not. Numerous press accounts have quoted administration officials who believe a significant percentage of those detained at Guantanamo have no connection to terrorism. They were just people picked up by mistake and then held because we never admit mistakes these days. The most important part of habeas corpus is to correct mistakes like that. It is precisely to prevent such abuses that the Constitution prohibits the suspension of the Writ of Habeas Corpus unless, as the Chairman pointed out, in the case of rebellion or invasion, the public safety may require it. I have no doubt this bill, which would permanently eliminate the Writ of Habeas Corpus for all aliens within and outside the United States whenever the government says they might--not that they are, but they might--be enemy combatants, violates that prohibition. I have no doubt the Supreme Court, even with seven out of nine members Republicans, would ultimately conclude this attempt by the Bush-Cheney administration to abolish basic liberties and evade essential judicial review and accountability is unconstitutional. It would be utterly irresponsible for Congress to neglect our oath to the Constitution and the American people and pass such unconstitutional legislation in the hope that maybe the court, once the congressional elections are over this year, would rescue us from our folly. That would just undermine the war on terror. It would not make us safer. In the long run, it would make us less safe. We should put these military detentions on a solid legal footing and establish military tribunals. We tried to do that 4 years ago. I introduced a bill in 2002 to do that. So did Senator Specter. But the Bush-Cheney administration, the Republican leadership ignored us, choosing instead to roll the dice and hope it could prevail on a radical go-it-alone theory of Presidential power. They got a rude awakening this year in the Hamdan case. The court affirmed what we had told them all along. When the terrorists brought down the Twin Towers on 9/11, they did not bring down the rule of law on which our system of government is founded. They did not supplant our form of government with one in which an unaccountable Executive can imprison people without trial for years. But you know what? On the way to losing that case, we wasted 4 years. We actually did more than waste 4 years. Just yesterday, the press reported what the administration has been misrepresenting to the American people. It was apparently confirmed in the national intelligence estimate. The invasion and continuing U.S. military presence in Iraq has created a new generation of anti-American terrorists, and the threat to America has grown. Meanwhile, having failed to try a single detainee, and having failed to secure a conviction of a single terrorist offense, the administration has demanded that we pass a bill it drafted last week before the end of this week. Ignore it for four or 5 years, then suddenly, oh, my God, you have got to get it done in a week. Well, if the administration and the Republican leadership of the Senate believe that suspending the Writ is constitutionally justified, they should grant the joint request that Chairman Specter and I made last week for sequential referral of this bill. Constitutional issues involving the Writ of Habeas Corpus are at the center of this committee's jurisdiction. We can, and we should, review this legislation thoroughly. If a few habeas petitions are filed in the meantime, we are not going to lose the war on terror because of those filings. But if this Congress votes to suspend the Writ of Habeas Corpus first and ask questions later, then liberty and accountability will be the victims. Mr. Chairman, I took longer. I appreciate the courtesy. I will put my full statement in the record. Chairman Specter. Without objection, your full statement will be made a part of the record. [The prepared statement of Senator Leahy appears as a submission for the record.] Chairman Specter. Senator Cornyn, would you care to make an opening statement? STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. A brief one. Thank you, Mr. Chairman. Mr. Chairman, I think in 2005, when Congress passed the Detainee Treatment Act, we believed--at least I believed--that we had provided an alternative source of judicial review rather than the Writ of Habeas Corpus. In addition to the CSRTs, the Combat Status Review Tribunals, that were implemented on July 30, 2004, the Administrative Review Boards that are provided on an annual basis and which were first implemented on September 15, 2004, along with the direct appeal after a trial on the merits by a military tribunal that the unlawful combatants detained at Guantanamo Bay were getting all the process that they were due. It is important to remember, and sometimes I think some forget, these are enemies of the United States, captured on the battlefield. These are not individuals who have been arrested for committing crimes and then who are entitled to all of the process an American citizen would in an Article III court. These are enemies of the United States on the battlefield. I would like to quote a statement by Mr. Michael Ratner, published March 21, 2005 in Mother Jones. He is with the Center for Constitutional Rights. He is involved in some of this litigation. Mr. Ratner says about the litigation that has ensued at Guantanamo Bay, he says, ``The litigation is brutal for them. It is huge. We have over 100 lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder to do what they are doing.'' No one has suggested previously, to my knowledge, that an alien enemy combatant to the United States is entitled to rights under the U.S. Constitution similar to those accorded to a defendant in a criminal lawsuit. If in fact they are, then I would like to hear from the witnesses why it is that they would say that if they are constitutionally entitled to the Writ of Habeas Corpus, why these unlawful combatants who have killed, in many cases, our own troops or innocent civilians, are entitled to the Fifth Amendment right against self-incrimination, if they are, or if they are not, why they would make the distinction that they are entitled to the constitutional provision allowing Writ of Habeas Corpus or prohibiting the suspension, but they would not be entitled to the Fifth Amendment right against self- incrimination. Or the Fourth Amendment right against unreasonable searches and seizures. Are we going to apply that to unlawful combatants of the United States? Or the Eight Amendment prohibition against cruel and unusual punishment. Are we somehow now going to allow 1983 lawsuits for civil damages for deprivation of constitutional rights and give those to unlawful combatants against the United States, people who obviously have no respect for the laws of war and who target civilians in the process? I support what we tried to do in the Detainee Treatment Act by applying the alternate remedies available to the CSRT, the Administrative Review Boards, and direct appeals following a trial on the merits. I support those provisions and I believe they should be applied to all pending applications for Writ of Habeas Corpus. That was, I believe, Congress's intent. We were not successful in convincing the Supreme Court the first time, but it is certainly within our power and I intend to support making that provision more explicit so we avoid what Mr. Ratner has described as mass confusion, by confusing the rights of unlawful combatants with those of ordinary American citizens accused of a crime. Thank you. Chairman Specter. Thank you very much, Senator Cornyn. Senator Leahy. Mr. Chairman, I would also, if I might, ask that the full statement of Senator Kennedy be included in the record at an appropriate spot. Chairman Specter. Without objection, it will be made a part of the record. [The prepared statement of Senator Kennedy appears as a submission for the record.] Senator Leahy. And in the Washington Times today there was a column by Nat Hentoff entitled, ``A Government of Law,'' and I would ask that that be included in the record in the appropriate spot. Chairman Specter. Without objection, it will be made a part of the record. We turn now to our first witness, Rear Admiral John Hutson, retired, U.S. Navy, attorney and former Judge Advocate General of the Navy. He is currently Dean and President of the Franklin Pierce Law Center in Concord, New Hampshire. He has a Bachelor's degree from Michigan State, a law degree from Minnesota, and a Master's in law from Georgetown. Thank you very much for coming in on short notice, Admiral Hutson. We look forward to your testimony. I will note, there is a 5-minute customary limitation. So to the extent that you can observer it, we would appreciate it. Admiral Hutson. I will, indeed. STATEMENT OF REAR ADMIRAL JOHN D. HUTSON, RETIRED, PRESIDENT AND DEAN, FRANKLIN PIERCE LAW CENTER, CONCORD, NEW HAMPSHIRE Admiral Hutson. Thank you very much, Mr. Chairman. I have a written statement that I would request be made part of the record. Chairman Specter. Without objection, it will be made a part of the record, as will all the written statements. Admiral Hutson. Thank you. [The prepared statement of Admiral Hutson appears as a submission for the record.] Admiral Hutson. And I will endeavor not to engage in any sound or fury. I think that the United States is at an historic crossroads right now where we can take the path of standing by our principles or take another path. Habeas corpus goes to the very heart of who we are as a Nation and to the balance of powers between the great branches of government. It alone breathes life into all the other rights. It does not give comfort to the guilty the way the Fourth Amendment sometimes does with regard to searches, or the way the Fifth Amendment may with regard to confessions. Habeas corpus is unique in that it only protects the innocent. If people are enemies of the United States, captured on the battlefield after having killed military personnel and civilians, they will find no comfort in habeas corpus. I would add, perhaps parenthetically, Mr. Chairman, that this is very complicated and very important legislation, tied together with Common Article 3 and your comments with regard to military commissions. I would urge the Senate to consider that piece of legislation independently and not wrapped together with other pieces of legislation. It needs to be considered and voted on on its own. Although I agree completely with your assessment, Mr. Chairman, with regard to the constitutionality, for me the question goes above and beyond questions of constitutionality to questions of wisdom. Is this wise? Is this the right thing for the United States to do? I believe that the United States is too strong, is too great a country to do this out of fear of 450 people that are detained behind barbed wire in Guantanamo. This is not an action that we should take unless we absolutely have to take this action. We have only done it four times in our history. Since we do not have to do it, we should not do it. I would point out to you, sir, that we had the opportunity in the wake of 9/11, in the first PATRIOT Act that was sent over by the White House in the weeks following, to suspend habeas corpus and this body declined to do that at this time. Now more than five years later is not the time to do that. We have created a mess in Guantanamo. Suspending habeas corpus is not the way to clear up the mess or to cover it up. We debated Common Article 3 military commissions to a fare thee well, and they are important issues. They deal with how we treat detainees once we have captured them. Habeas corpus deals with the more fundamental question of whether they should be detained at all in the first place. Recall, too, that it is our troops who are more forward deployed than all other troops in all other countries. This is not the last war we are going to fight. It is not the next-to-last war this great country will fight. Plato said that ``only the dead have seen their last war''. We need to keep our powder dry. We need to set a standard that we can require demand, cajole, jawbone other countries to try to meet. I am not so naive to believe that Al Qaeda is going to afford habeas corpus or the equivalent of habeas corpus to our troops, but that is not the test. The test cannot be ``what would Al Qaeda do?'' The test has to be, ``what is the right thing to do?'' We are engaged in an asymmetric war right now. In an asymmetric war, the important thing to do is to try to match your strengthen against the enemy's weakness. The strength of the United States is not our military might, it is not our economy or our natural resources. The strength of the United States is who we are. It is what we stand for. It is the regard in which we are held by other countries. The enemy's only weapon is terror. That is all they have. They know that they cannot beat us militarily. They just want to upset us, to bring us down to their level. We cannot let them do that. We have to resist that temptation at all costs, in every way. That is the crossroads that I mentioned initially. We have an opportunity to resist that temptation, the temptation to be less than we are. I do not say this glibly or to be cute, but I believe that this body has the opportunity to achieve a military victory, to protect our troops in the future, to protect this country. Military doctrine says you have to keep the high ground. This is an opportunity for the United States to maintain the high ground. Thank you, Mr. Chairman. Chairman Specter. Thank you very much, Admiral Hutson. Our next witness is Thomas Sullivan. He served in the Army during the Korean War in Tagdow, Korea. He is a graduate of Loyola University School of Law, and served as U.S. Attorney for the Northern District of Illinois from 1977 to 1981. He has been very heavily engaged in representation of detainees in Guantanamo. Mr. Sullivan, with others from his law firm, came to see me last Wednesday and provided quite a volume of information, transcripts, and summaries of proceedings in Guantanamo, which demonstrated that detainees were being held there for absolutely no reason. Thank you for your public service work, Mr. Sullivan. We look forward to your testimony. STATEMENT OF THOMAS P. SULLIVAN, PARTNER, JENNER & BLOCK, CHICAGO, ILLINOIS Mr. Sullivan. Thank you very much, Senator. My partners and I represent 10 of the Saudi Arabian prisoners at Guantanamo who have been held there from four and a half to 5 years; 3 of them have been sent back to Saudi Arabia without explanation or apology. None of them received fair hearings. Senator Cornyn, I would like to address a few remarks you made. You said these are enemies of the United States captured on the battlefield. None of the 10 we represent were captured on the battlefield or are enemies of the United States. You said no one suggested that the enemy combatants were entitled to habeas corpus. The Supreme Court of the United States, in the Rasul case 2 years ago, held specifically that they were entitled to habeas corpus to challenge the reason for their detention. You said they have an review following a trial on the merits. None of them got a trial on the merits. You read my material that compares the rights of the CSRTs against the proposed military commissions and tell me whether that comports with your ideas as a former Justice of the Supreme Court of Texas for due process of law. The question is whether they are enemy combatants. When they started out in these hearings, these CSRTs, they were presumed guilty. There had already been a finding they were enemy combatants. The determination had been made. No witness or evidence was presented by the government. They would call in and they would say, all right, Mr. Cornyn, here is the charge against you. What have you got to say about it? That was it. That was all that they did. Then they put in some classified evidence. I have been down to the secure facility. It is a joke. It is a sham. I read the classified evidence. I am not free to disclose it, but I can tell you, it is a sham. There was no lawyer given to the defendants. They did not speak English, most of them. There were young men who had no training in law. There were no rules of evidence applicable. I put all this in my material. You can read it. I cite the exact provisions of the statute and the CSRT rules. No cross examination was permitted or was allowed. There was not any objection to physical evidence, because there was not any produced. Now, do you call that due process, your Honor? Do you? The judges acted as the prosecutors and the judges. Classified evidence was not disclosed to them. There could have been evidence from torture. I do not think any of the 10 we represent were tortured, but there was no prohibition against evidence obtained by torture. There was no practical ability to call witnesses or to subpoena physical evidence. What you have referred to as a review by the Court of Appeals for the District of Columbia is so limited--I mean, you were a Supreme Court judge. You know what review is. It says they can review whether the CSRT determination was consistent with the standards and procedures specified by the Secretary of Defense for CSRTs. That is all. Did they follow their own rules? Well, their own rules do not comport with our concepts of due process or, I would venture to say, with your concepts of due process. I ask you, please, sir, if you do not do anything else, would you read the material that is on pages 3 through 7 of my submission? That is all I ask. If, at the end of reading that, you think that that comports with your notions of due process, then God bless you, go ahead and vote for this bill. But I doubt you will reach that conclusion. On of my clients, Mr. al Siba'i, whose material I have submitted--and I have given four examples of CSRT hearings, you can read them--was a policeman in Riyad since getting out of high school. He helped our forces when they invaded on the Kuwait invasion. He had four children at home. He did not see his daughter from the time she was one to the time she was five and a half years old. I do not know if you have daughters; I do. I think that is cruel and unusual. He was kept in the Guantanamo Bay prison for four and one- half years for no good reason, and never had an opportunity to present his side of the case. Now, Justice Cornyn, that is not due process and that should not be approved. This is an historic moment in our time. To suspend the Writ of Habeas Corpus without hearings, rushing it through just before elections where people are afraid to vote against this bill because somebody on the other side is going to hold up a TV commercial and criticize them for it, it is phony. I beg you to read that material and then tell me whether you think that is due process. Thank you very much. [Applause]. [The prepared statement of Mr. Sullivan appears as a submission for the record.] Chairman Specter. The rules of the Senate do not permit demonstrations in the hearing room. We are dealing with very serious matters, very, very serious matters, and we ought to have silence and give the witnesses the opportunity to testify and the Senators an opportunity to consider what they are saying without any demonstrations from the audience. Our next witness is Mr. Bruce Fein, partner in the consulting group of Fein & Fein. He worked for the SEC during the Reagan administration and worked directly with the Office of Legal Policy. He has a Bachelor's degree from the University of California. STATEMENT OF BRUCE FEIN, PARTNER, FEIN & FEIN, WASHINGTON, DC Mr. Fein. Thank you, Mr. Chairman, Senator Leahy, and Senator Cornyn. I oppose suspending or crippling the Writ of Habeas Corpus for alleged enemy combatants. Not a crumb of evidence has been adduced suggesting that the Writ would risk freeing terrorists to return to fight against the United States. On the other hand, volumes of evidence, including that presented by Mr. Sullivan, demonstrate a non-trivial risk that suspending the Writ risks illegal lifetime detentions. No civilized nation has an interest in detaining any person, citizen or alien, in violation of law. If the law is deficient it should be changed, but due process should not be crucified on a cross of political expediency. The history of liberty is the history of procedural protections. English kings were notorious for disappearing subjects into dungeons; French kings sent them to the Bastille. The Great Writ of Habeas Corpus answered that abuse by enabling detainees to challenge the factual and legal foundations for their detentions before impartial judges. The Writ enjoys a hallowed history. It was initially mentioned in the Magna Carta of 1215. It was enshrined in the United States's Constitution by the Founding Fathers. It is not dependent on any Act of Congress. Now, habeas corpus is not a ``get out of jail free'' card. The petitioner is saddled with the burden of demonstrating a factual or legal deficiency in the Executive's justification for detention, and the burden is formidable. State and Federal prisoners filed thousands of habeas petitions annually in Federal courts, but only a tiny percentage result in release, typically in cases of actual innocence proven by DNA testing or otherwise. Federal judges are not dupes, nor are they guileless. They readily see through concocted tales. For example, an enemy combatant claimed that he was on the battlefield to deliver first aid, or he was a tourist guide. Judges are as much repulsed by terrorists as our legislators or executive officials. To preserve the Great Writ for enemy combatants is not to exult form over substance. There are three good reasons why there may be errors in detaining persons as enemy combatants. First, ethnic, tribal, political, or religious adversaries may supply the United States with false information. Further, terrorists routinely operate amidst civilian populations. That loathsome tactic creates a non-trivial risk that American soldiers, in heat of battle, may mistake an innocent civilian for an Al Qaeda member or supporter. Finally, the Executive may exaggerate incriminating evidence and ignore the exculpatory for political effect. The greater the number of enemy combatants detained, the greater the public appearance that the fight against international terrorism is succeeding. In politics, optics is everything. That seems to be the explanation for the misidentification of Canadian Maher Arar, as Senator Leahy mentioned, as a terrorist, his deportation by the United States to Syria, and his subsequent torture. Jose Padilla similarly was initially detained by President Bush as an enemy combatant, but that designation has now been dropped in favor of a criminal prosecution for allegedly providing material support to a listed terrorist organization. But if Padilla is convicted by a Federal court, habeas corpus will be available to challenge the legality of his verdict or sentence. Why should it have been different if Padilla remained identified as an illegal combatant? President Bush and Members of Congress might contend, nevertheless, that a vote against enemy combatants by crippling habeas corpus would be popular. Few voters care about mistreatment or misapprehension of aliens who subscribe to Islam. A corresponding sentiment carried the day when President Franklin Roosevelt and a Democratic Congress voted to intern 120,000 Japanese-Americans in World War II to appease racial bigotry. Congress later apologized in the 1988 Civil Liberties Act and made monetary amends. Does this Congress wish to aide the French Bourbon royalty, who forgot nothing and learned nothing by cynically suspending the Great Writ for political advantage in November? The rule of law is at its zenith when it refuses to bend even for the most reviled. I would like to address a few ending comments to Senator Cornyn. The Writ of Habeas Corpus does not establish any constitutional right to the Fifth Amendment, the Fourth Amendment, or otherwise. It simply permits a detainee an opportunity to make arguments to be ultimately decided by an impartial judge as to whether various rights ought to be acknowledged. That is what suspending the Great Writ is about, denying that opportunity to have a fair adjudication of those claimed rights in Federal courts. I also would suggest that, as previous commentators have indicated, this Committee and the Senate ought to take up separately bills addressing electronic surveillance, military tribunals, and the Writ of Habeas Corpus. They all present distinct issues, and the best reflection of Congressional sentiment is when all the issues are voted on separately as opposed to requiring Senators to compromise their views on some of those questions because they support others. Thank you, Mr. Chairman. Chairman Specter. Thank you very much, Mr Fein. [The prepared statement of Mr. Fein appears as a submission for the record.] Chairman Specter. We turn now to Lt. Commander Charles Swift, in the Navy's Judge Advocate General's Corps. He represented Salem Hamdan in the celebrated case of Hamdan v. Rumsfeld. He is a graduate of the Naval Academy and the Seattle University School of Law. We welcome you back, Commander Swift. The floor is yours. STATEMENT OF LIEUTENANT COMMANDER CHARLES SWIFT, U.S. NAVY, JUDGE ADVOCATE GENERAL'S CORPS, ARLINGTON, VIRGINIA Commander Swift. Thank you, Mr. Chairman and members of the Judiciary Committee for inviting me to speak to you today. My testimony is given in my capacity as Mr. Hamdan's military defense counsel, and it does not represent the opinions of either the Department of the Navy or the Department of Defense. I want to thank the Chairman and the Committee for pausing to carefully consider the issue of denying habeas rights to an accused designated for trial by military commissions in Guantanamo Bay. I first testified before this body on June 15, 2005. During that testimony I told this Committee that when the chief prosecutor for commissions requested assignment of counsel to Mr. Hamdan, he specified that access to Mr. Hamdan was contingent upon him negotiating a guilty plea. I told this Committee then, and I continue to believe today, that the only way that I could have ethically represented Mr. Hamdan under those conditions was to present him with a second option, and that was to file a habeas petition if he chose not to plead guilty. For you see, Mr. Hamdan had been placed in a judicial limbo of pre-trial isolation until he was willing to plead guilty. This literally creates someone outside the CSRTs, outside the review process, outside of everywhere, outside of the commissions, until they want to plead guilty, unless they have habeas. During oral argument before the DC Court of Appeals, Assistant Attorney General Peter Kiesler told the court that I had ``acted consistently with the highest traditions of the legal profession and my military service.'' I had done my duty. Apparently Mr. Kiesler did not check with his client before making these statements because the legislation introduced by the President following the Hamdan decision attempts to see to it that no one else will be able to do what I did. If successful, Section 6 of the Military Commissions Act will suspend habeas. I again believe, for reasons I have detailed in my written testimony, that any commission under the MCA is unlawful and will ultimately be struck down by the courts. But whether I am right or not, a challenge to the legislation should happen actually immediately. Imagine if the courts had abstained in the Hamdan cases. The government urged that 15 or 20 detainees would have been tried, with presumably some of them convicted, before the Supreme Court ultimately declared the whole process unlawful. All the trials would be a nullity. The families and victims of 9/11 would be forced to undergo a second round of trials to the extent that the Constitution would even sanction such double jeopardy, and justice delayed for even more years. Now, let me dispel a few myths that have been flying around on what habeas might do. A) it will give KSM and others more rights than other detainees. What rights detainees should have, in general, is an open question; this is a new war. But what is not open, is that habeas rights have existed in conjunction with military commissions for more than 150 years. That is not open. Suspending it goes back to the dark days of Makar Adell. Habeas will delay proceedings. Chief Prosecutor Colonel Davis stated recently that, with regards to 14 high-profile detainees, that the prosecution was actually now really starting from scratch. He said, ``We have got attorneys that are looking at the cases, but obviously those are complex cases and it is early in the process. We have got a long way to go.'' Well, from my experience in the Hamdan case, on a simple case for a low-profile detainee, a long way to go meant a year and a half. So the truth of the matter is, Khalik Shayd Mohammed is not coming to trial for years. In the meantime, if we suspend habeas we will not even know if the trial is valid, so five, 7 years from now it can get overturned. What is the better way to do it? The better way is to submit this, like McCain-Feingold was, for immediate judicial review. Let us not get this wrong a second time. But if it is wrong, let us make corrections immediately, with no more delay, and get the trial process right. All I have ever sought for Mr. Hamdan is a fair trial. This is not it. We are going to have to challenge it again. But sooner or later we will get it right. Let us get it right sooner. Thank you. Chairman Specter. Thank you very much, Commander Swift. [The prepared statement of Lt. Commander Swift appears as a submission for the record.] Chairman Specter. Our next witness is Mr. David Rivkin, partner in the Washington law firm of Baker & Hostetler. He is an expert on constitutional law. He served in the Department of Justice and the White House in the Reagan and the first President Bush administrations. He is a graduate of Georgetown University and has a J.D. from Columbia Law School. Thank you very much for being with us, Mr. Rivkin. The floor is yours. STATEMENT OF DAVID RIVKIN, PARTNER, BAKER & HOSTETLER, LLP, WASHINGTON, DC Mr. Rivkin. Mr. Chairman, Ranking Member Leahy, Senator Cornyn, it is my pleasure to be with you and share with you, briefly, some observations about this important legislation, the Military Commissions Act of 2006. I believe it builds upon, and works well, with the judiciary review procedures set forward in the Detainee Treatment Act, and together they provide a set of judicial review strictures that are streamlined, yet fair, and provide detainees with sufficient due process opportunities. As such, I believe those provisions comport with our Constitution and do not amount to suspension of habeas corpus and will withstand judicial review. I would briefly remind everybody of the pre-MCA DTA-driven set of judicial review strictures. The DTA makes the DC Circuit the exclusive venue for handling any legal challenges by the detainees in two instances. One, is the appeal as to the validity of a final decision of a Combatant Status Review Tribunal that the alien was properly classified as an enemy combatant, and review of a final decision by a military commission. In both instances, the scope of review is precisely defined and limited to essentially two questions. CSRT and military commissions operated in a way that was consistent with the standards and procedures adopted by these bodies and limited to the extent of the Constitution and laws of the United States are applicable. The use of such standards and procedures by CSRT or a military commission to reach its decision are consistent with the Constitution and laws of the United States. Now, there has been some debate as to the meaning of this language, whether or not it only deals with questions of law or whether any factual issues are reachable. In my view, there is at least a possibility that one key factual issue would be amenable to review because, under the teaching of Ex Parte Milligan, bringing civilians before military commissions is unconstitutional. While Article III courts are open and functioning, an enemy civilian who has been subjected to military commission proceedings is, arguably, in a situation where the application of those procedures to him is inconsistent with the Constitution. That, by the way, is exactly the way the court proceeded in the seminal case of Quirin by rejecting the petitioners' contention that they were civilians, not subject to military jurisdiction. To be sure, Milligan dealt with an American soil- based commission dealing with American citizens. It is not entirely clear whether, even in the aftermath of Rasul, an enemy alien detained in Guantanamo or elsewhere outside the United States is deemed to have the same substantive constitutional provisions implicated by Milligan, as distinct from being merely eligible under Section 2241 for an access to Federal court in the context of habeas proceedings. Now, I want to emphasize that I do not take limitations on judicial review available to detained unlawful enemy combatants lightly. Indeed, I believe that any restrictions on judicial review that entirely eliminate the access to Article III courts could implicate the Suspension Clause, and is unnecessary under present circumstances. I feel sufficiently strongly about this matter that I spoke publicly against an earlier version of a DTA that which seemed to eliminate all judicial review opportunities. That, of course, is not what ended up being done with the DTA and I believe the judicial review options featured in the DTA and the Military Commissions Act are fully consistent with the constitutional requirements as articulated by the Supreme Court in cases like Milligan, Quirin, Yamashita, and the Ninth Circuit case in Ratrido. Now, the MCA, of course, also has language in Section 6, which has been mentioned a little bit earlier, that reaffirms the proposition that outside of the DTA-provided judicial review system, ``[n]o court, justice or judge shall have jurisdiction to hear or consider an application for a Writ of Habeas Corpus...'' But again, given the existence of perfectly valid opportunities to have meaningful Article III review, to me, suggests that these provisions amount to a suspension, is just not tenable. Now, a couple of observations. I think it is an understandable response to the Hamdan court decision that DTA jurisdiction's defining provisions were not sufficiently clear on the retroactive application. The MCA comes out with pretty tight language on retroactivity. Again, I cannot imagine that any court would find that language to be insufficient to ensure retroactive application. I do not believe that retroactive application in this case presents any additional constitutional problems. The MCA also, partially in response to the Hamdan decision and partially in response to statements by some critics, contains language that ``[n]o a person may invoke the Geneva Conventions, or any protocols thereto, in any habeas'' actions. I am not greatly troubled by this language, as I believe that even given the Hamdan court teaching, Common Article 3 was brought only in a very narrow, limited context, namely the operations of military commissions, therefore, this language really does not change the status quo. My bottom line view is that both the Detainee Treatment Act and the Military Commissions Act combined featured a very balanced and fair approach to judicial review, eliminating repetitive challenges, banning forum shopping, and yet they provide the necessary essentials of judicial review for unlawful enemy combatants, going both to the issue of their status and their prosecution. As such, the MCA is fully consistent with our international and legal obligations and the Constitution. Thank you, Mr. Chairman. Chairman Specter. Thank you very much, Mr. Rivkin. [The prepared statement of Mr. Rivkin appears as a submission for the record.] Chairman Specter. Our final witness is Mr. Bradford Berenson, partner at Sidley Austin, Washington, DC. He served as Associate White House Counsel during the last term of President Bush. He is a graduate of Harvard Law School and Yale University. Thank you very much for being with us today, Mr. Berenson. We look forward to your testimony. STATEMENT OF BRADFORD BERENSON, PARTNER, SIDLEY AUSTIN, LLP, WASHINGTON, DC Mr. Berenson. Thank you, Mr. Chairman, Mr. Ranking Member, Senator Cornyn. I appreciate the opportunity to address you this morning. I am actually here, notwithstanding my service in the Bush White House as an advocate of congressional power. I have one basic submission I would like to make to the Committee this morning, and that is that in deciding what form of judicial review to extend to alien enemy combatants our military is holding abroad, the Congress is not seriously constrained in any way by the Suspension Clause. That is to say, this is a policy choice. There are arguments that can be made on either side of it, but the constitutional issues are, in my view, a red herring. I would like to do something different than most of the previous panelists and really talk to you a bit about the law. There are three basic reasons why the Suspension Clause does not constrain the Congress in deciding what to do vis-a-vis these detainees. The first has to do with the scope of the Writ itself. Obviously there can be no suspension if the Writ does not cover these particular detainees. There are at least two reasons for thinking that it does not. First, the original understanding of the Suspension Clause is that it did not grant a right to habeas corpus to those in Federal custody. It was merely a restraint on the power of the Congress to prohibit the State courts from issuing habeas writs. A proposal was considered at the Constitutional Convention to grant a Federal right to habeas corpus and it was voted down. This was the compromise. Professor Irwin Chemerinsky, in his treatise, articulates exactly this view of the Suspension Clause. Now, there is reason in some of the modern cases to question whether our current Supreme Court would follow that original understanding, but the issue simply has not been decided. Even if the modern Supreme Court did not follow that view, there is a Supreme Court decision directly on point which says unequivocally that alien enemy combatants held in military custody abroad have no Constitutional right to habeas corpus. That is the decision in Johnson v. Eisentrager. With all respect to Mr. Sullivan, who I know is working hard to represent the interests of his clients, Rasul did not cast one iota of doubt on the holding in Eisentrager. Rasul was strictly a statutory decision and it recognized the separate constitutional holding in Eisentrager and did not disturb it or question it in any fashion. As Justice Jackson observed in Eisentrager, furnishing habeas corpus rights to enemy combatants, held abroad would ``hamper the war effort and bring aid and comfort to the enemy. Habeas corpus proceedings would diminish the prestige of our commanders, not only with enemies, but with wavering neutrals. It would be difficult to devise a more effective fettering of a field commander than to allow the very detainees he has ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attentions from the military offensive abroad to the legal defensive at home, nor is it unlikely that the result of such enemy litigiousness would be a conflict between the judiciary and military opinion, highly comforting to enemies of the United States.'' That was Justice Jackson in Eisentrager. Even if the Writ actually did cover alien enemies held abroad, what the Congress has done in the Detainee Treatment Act, which would extend retroactively through the legislation currently under consideration, does not amount to a suspension of the Writ. The Supreme Court again has clearly recognized in Swain v. Presley, ``The substitution of a collateral remedy, which is neither inadequate nor ineffective, to test the legality of a person's detention does not constitute a suspension of the Writ of Habeas Corpus.'' That is exactly what the Congress has done in the Detainee Treatment Act. It has provided a collateral remedy that is neither inadequate, nor ineffective. Again, with due respect to Mr. Sullivan, he did not give you the full standard of review. The standard of review is not simply whether the CSRTs followed their own procedures; another portion of that same section of the Act clearly states that the DC Circuit, and ultimately the Supreme Court, are empowered to review whether those procedures comport with the Constitution and laws of the United States. That is exactly the office of habeas corpus. Finally, the last reason why the Congress need not worry that what it is doing here is in derogation of its constitutional obligations is that the Suspension Clause permits the Congress to suspend the Writ of Habeas Corpus in certain circumstances, ``when in cases of rebellion or invasion the public safety may require it.'' Even if everything else I have said were wrong, this is still a situation where the requirements of the Suspension Clause would probably be met. There was a physical invasion of this country on 9/11. Our financial center was attacked. The nerve center of the U.S. military was attacked. That was done by alien enemy combatants on our soil. I would suggest that, if the Congress wished to exercise its powers under the Suspension Clause, it could do so here. Thank you very much. Chairman Specter. Thank you, Mr. Berenson. [The prepared statement of Mr. Berenson appears as a submission for the record.] Chairman Specter. You talk about an invasion on 9/11. Is that invasion still going on? Mr. Berenson. Well, Senator, not having been in the government for several years now, I cannot tell you for sure. I know that it is an important object of all of our Homeland Security efforts to try to find and disrupt any cells. Chairman Specter. You do not have to be in the government. It is just a simple question: is the invasion still going on? Mr. Berenson. If there are Al Qaeda cells still operating in the United States and planning further attacks, then I believe it is, yes. Chairman Specter. All right. Well, that is a big ``if''. But let us come back to this red herring. It does not look so red to me, as I read the plain language of the Constitution: ``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.'' It looks to me, on its face, without the need for argument or discussion, that it is pretty flat. This is a good time to introduce the letter from Ken Starr. We had asked Mr. Starr to be here today and his scheduled did not permit it. We asked him to submit a letter. We have the text of the letter, although it has not been signed. Without objection, it will be made a part of the record. But he deals directly with Johnson v. Eisentrager, which you have cited, and notes the conflict, or as he calls it, the ``apparent conflict'' there. But when you cite the case, you comment about aliens held abroad. The Supreme Court concluded in Rasul that the detention at Guantanamo was not abroad, but since it was under subject and control of the U.S. Government, that it was subject to habeas corpus rights, which I think are very plain under Rasul and under the flat language of the Constitution. Mr. Rivkin, you have commented in your testimony that you had originally spoken out against the Detainee Treatment Act. Your Law Review article in ``Commentary,'' ``Don't Cross the Habeas Corpus Line'' with Mr. Leo Casey, speaks in very emphatic terms about the importance of habeas corpus. How can you square that with the very limited opportunities for judicial review and judicial challenge in the pending legislation? Mr. Rivkin. Thank you very much, Mr. Chairman. I would put things in context. This op-ed in the L.A. Times was, as I mentioned in my prepared statement, was done in response to an earlier version of DTA and it was very much in flux. In fact, I was provided that language by one of Senator Kennedy's staffers. My reading of it was that it vitiated all judicial review. I do not necessarily depart entirely from Mr. Berenson's remarks about the different modalities and unsettled legal question as to whether it applies in these circumstances. My feeling, however, was that it was essential both to help ensure public support for this process and endow it with greater legitimacy to ensure that detainees have some meaningful access to Article III courts. In my opinion, respectfully, Mr. Chairman, the Detainee Treatment Act and the Military Commissions Act very much does that. The reason for it is quite simple. Habeas, at least in its core form, is not meant to be a mini retrial. It is not meant to be delving deeply into the factual issues involved in the preceding trials. Chairman Specter. I am going to have to interrupt you, Mr. Rivkin, because the time is very limited, five minutes to a round. I find it hard to square that with the flat prohibition in the pending legislation to take away habeas. Do you want to comment, Mr. Rivkin? Go ahead. Mr. Rivkin. If I can just make a point. This prohibition has to be looked at in the context with other provisions in the legislation that provide for meaningful opportunity for review. With all due respect, if you look at the Supreme Court teachings in Quirin, the type of issues, the way the court approached the Quirin detainees--who, after all, were sentenced to death; this was not just an appeal from a detention--was exactly that, which is to say, were the procedures that you got in their totality appropriate? Were they given status as enemy combatants? Chairman Specter. You have had your reply. You have got to leave me 10 seconds. Mr. Sullivan, the examples you give of ``no good reason'' are going to be put in the record. You commented that three of the people you represented were released. It has been suggested that once Writs of Habeas Corpus are filed, petitions are filed, that then the government, for the first time, takes a look at the case. There have been reports that detainees have been released just on the filing. Could you comment on that? And let the record show, the red light went on in the middle of my last question. Mr. Sullivan. Senator, there have been a number of detainees released after what is called the Administrative Review Board reviews, which come up annually. But they are no better than the original CSRTs because the detainee still cannot bring in any evidence. He is still not presented with any evidence on the other side. It is purely in the whim of the people that are running this operation. I would, if I may, like to pose a question to Messrs. Berenson and Rivkin. If they were brought before a tribunal in Syria, say, they were captured and they said, all right, Rivkin, all right, Berenson, what is your answer to this question? You were picked up on such and such a date, and you had connections with such and such an organization. They say, I did not have any connection with that organization, that is not true. Four and a half years later, they are still sitting in jail. Would they sit here today and say that was due process of law? Because that is precisely--precisely--what has happened to a majority of the 500 men that are sitting down in Guantanamo Bay. I have been at that prison three times. It is grim. It is a concentration camp. It is not just a nice, homey prison. These people are sitting in little cells. They are cages about twice the size of this table with a toilet, a wash basin, and a place to sleep. Wire mesh on the sides that, if you keep looking at it, destroys your distance vision. No exercise. Very little communication with their families. Berenson and Rivkin, what do you say about that, if that happened to you? Chairman Specter. Well, it is unusual for one witness to propound questions to another, but Mr. Sullivan has made a point. I think, aside from his propounding the question, Mr. Rivkin and Mr. Berenson are entitled to a response, if they care to do so. Mr. Berenson? Mr. Berenson. Thank you, Mr. Chairman. I will try to be brief. I think Mr. Sullivan's comments reflect total confusion between the military and the civilian criminal justice systems, and it is a confusion that pervades these debates. If I took up arms against Syria and fought against Syria in some battlefield, and I were apprehended as part of that war and I received the procedures that our military is affording to the detainees here, I would not have a legal complaint. I might not be happy about my situation--the situation of people captured during war is not a pretty one--but I would not have had any legal rights violated. These CSRT procedures go way beyond anything that the military ordinarily affords under Article 5 of the Geneva Conventions. All throughout Rasul we were hearing from the detainees' advocates that all they wanted was an Article 5 proceeding. After Rasul said that there had to be a proceeding, the CSRTs gave them that and more. Now they are claiming that what they really need is essentially the process afforded to criminal suspects. Chairman Specter. Mr. Rivkin? Mr. Rivkin. Yes. If I could just add to that. I agree with Brad. The essential thing to keep in mind, is that this is not a penal process. I understand that people are being detained, but this is a challenge to an administrative determination as to one's status. Just to give you, very briefly, evidence as to what other countries, signatories to the Geneva Conventions, have done. Article 5, by the way, sort of basically codifies customary law. I am talking about very few countries who have done anything here, Canadians, Brits. Typically, an Article 5 proceeding is several people sitting in a tent in a desert and may not even see the detainee, just looking at the file. By contrast, the CSRT procedures are positively fulsome. I will be the last person to claim that they rise to the level of due process you get in criminal proceedings, but they are nothing like that. It is not a penal process at all. Chairman Specter. Senator Leahy? Thank you, Mr Rivkin. Thank you, Mr. Berenson. Thank you, Mr. Sullivan. Senator Leahy. Well, thank you, Mr. Chairman. I think Mr. Rivkin and Mr. Berenson, with all due respect, your answers beg the question. Mr. Sullivan asked the question if they were there, not making the presupposition that they were enemy combatants, that they were just captured. As we know, in Guantanamo there are a whole lot of people held there by mistake who are not enemy combatants. We have acknowledged this when, sometimes by accident, it is discovered. Others have been held for years and had absolutely nothing to do with the attack on the United States. It is like the Canadian citizen arrested here in the United States and sent to Syria to be tortured, and after the torture and after he was sent back, we say, whoops, sorry about that, a little mistake there. I think that is what Mr. Sullivan was referring to, if you were caught in that situation, how might you feel? Let me ask this question, briefly, of Mr. Fein and Mr. Sullivan. Operative word: briefly. The proposed legislation strips courts of jurisdiction over cases that were filed years ago. Is that a problem? Mr. Fein. Well, there is a problem of attempting to manipulate the jurisdiction of the court to get particular results, so that if you are trying to retroactively upset a procedural protection, that is problematic. I would especially want to underscore this, Senator, about the comments about habeas corpus if it was fully effective, there was no attempt to curtail it. Neither Mr. Rivkin nor Mr. Berenson has uttered one syllable suggesting if we had our customary habeas corpus rights, that a single terrorist would be released. Senator Leahy. Mr. Sullivan, is there a problem, in your view, that it would strip the courts of jurisdiction over cases that were filed years ago? Mr. Sullivan. Absolutely. Absolutely. If they are going to strip, they have to put in a procedure that is roughly the same. This procedure that I have outlined here, and I have asked Senator Cornyn to look at it--and I have been practicing law for over 50 years and I have never been a Supreme Court justice, but I know due process when I see it. I know fair proceedings when I see it, and this ain't it. Senator Leahy. Well, let me ask this question, Mr. Fein. Proponents of this bill have argued that the Combatant Status Review Tribunals, CSRTs, are a sufficient substitute for habeas corpus to satisfy any constitutional requirement. But the proposed legislation cuts off habeas rights even for detainees who have not had the minimal review afforded by the CSRT process. Apparently under the bill, if an alien is awaiting a determination, that is enough. Well, you have people being held indefinitely. What is the impact if you eliminate habeas? Mr. Fein. Well, I think the fact is that the statute would enable the executive branch to simply decline to hold CSRT proceedings. There is nothing in the bill that would require, with reasonable speed, any Combatant Status Review Tribunal proceeding to be held. Until that happens, the statute cuts off any access to any Court of Appeals to review the legality of the detention, so it gives the executive branch, if it wishes, to hold the detainees indefinitely without any access to Federal courts. Senator Leahy. So if you had a President or a Secretary of Defense in the room and if they decided a detainee is an enemy combatant, that is it? Mr. Fein. Yes. Senator Leahy. Judge, jury. Mr. Fein. Right. They would say, we do not want to hold a Combatant Status Review Tribunal, it is so clear they are enemy combatants. If they do not hold that tribunal hearing, there is no access to Federal courts under the statute. Senator Leahy. Admiral Hutson, putting aside for the moment--and I cannot imagine myself saying this--the importance of habeas to fairness and justice and our fundamental values, are there advantages to our national security and our foreign policy in allowing habeas review for Guantanamo detainees? Admiral Hutson. Absolutely there are. As I said in my comments, that is what gives us strength. That is what makes us the United States. Without those kinds of protections, we are just another banana republic if we let these things go. The problem, Senator, is the emperor has no clothes. We all know what we are talking about here. We are talking about 450 people that we do not know what to do with. That is what this is all about. We can pretend that it is a bunch of other things and we can cite Milligan and Quirin and Eisentrager. For 5 years now, lawyers have been driving this train in the wrong direction. Senator Leahy. But is this not a case--and Commander Swift may want to answer this, too--we have a lot of people down there that even the administration says, well, yes, we may have some that are totally innocent. They were picked up not in uniform, picked up well off the battlefield. If you do not have habeas, how are you ever going to have an innocent person get a chance to be let out? Admiral Hutson. That is the whole point. That is absolutely right, Senator. That is the whole point of habeas. There was a study done by Seton Hall Law School using DoD data, using DoD information that said that 5 percent of the people in Guantanamo were picked up by U.S. troops. The others were picked up and turned over by the Northern Alliance and Pakistan. To say that these are all killers, they are the worst of the worst, they are all terrorists, is just deceiving ourselves. More importantly, the point is, we cannot reverse engineer their guilt and create a system to ensure that result. The question is, are they terrorists? Are they killers? Are they the worst of the worst? If they are, they will be sent back to Guantanamo. If they are not, we will have done justice. Senator Leahy. And I would pose, also, the question to Commander Swift. Commander Swift. Sir, I would like to address in this also the difficulty of equivalent review even in the commissions because it is not. One of the first things, and it was cited by the Supreme Court, not fixed. Two things were lacking. One, was CAFF, which this Committee tried to put back in, but we put in a specially selected court which does not meet it. Two, is that you only get an appeal into the system if you get 10 years. Get less than 10 years, you have no automatic right to appeal. You have an automatic right to habeas, but you do not have an automatic right to appeal in this system. So, in fact it is not equivalent because Mr. Hamdan could be convicted and sentenced to 9 years, 11 months, and 355 days, with no right to appeal. Senator Leahy. Mr. Chairman, I was struck by the answers of everybody here, but the answer of Admiral Hutson, who talked of the people, only a few of whom were picked up on the battlefield, and a number were turned over to American troops. Considering the areas where these people are being turned over, the tribal rivalries and the fights, boy, what an easy way to settle a score with somebody because you did not like the fact they had part of your land, or something like that. Turn them over and say, hey, I got you an enemy combatant, and they are gone forever. Chairman Specter. Senator Cornyn? Senator Cornyn. Thank you, Mr. Chairman. Mr. Chairman, I know you have been to Guantanamo Bay, and I have. I am sorry, I do not recall about Senator Leahy. I have also been to Auschwitz. Anyone that would compare Guantanamo Bay to Auschwitz, all I can say, has a very active fantasy life. I think it certainly bears on the credibility of the witness, anyone who would make that comparison. Mr. Berenson, let me direct this to you because I think you were the one to point this out. When Mr. Sullivan read the scope of review of the Combatant Status Review Tribunal and the Administrative Review Board under the Detainee Treatment Act, he left out an important element to that scope of review. Is it not true that the Detainee Treatment Act says, to the extent the Constitution and the laws of the United States are applicable, whether the use of such standards and procedures to make the determination consistent with the Constitution and laws of the United States. In other words, would that scope of review for the Court of Appeals, under the Detainee Treatment Act, purport to address the concerns that have been expressed today about an inadequate scope of review? Mr. Berenson. Yes, Senator, you are exactly correct. That language appears in the pending legislation. It governs the scope of review, both of appeals from military commissions and from the determinations of the CSRTs regarding the detentions, and it precisely tracks the historic office of habeas corpus, which is to review the legality of detention, not to provide a retrial on the merits. Indeed, that standard probably will embrace almost every claim that has already been made on behalf of the detainees, including claims about sufficiency of the evidence. Under Jackson v. Virginia in our own court system, legal review of State sentences does incorporate a minimal sufficiency of the evidence review. This is really unprecedented access to our domestic court system for alien enemies that are being held abroad in the course of a conflict. No nation on the face of the earth in any previous conflict has given people they have captured anything like this, and none does so today. Senator Cornyn. Mr. Berenson, you touched on this as well. If we were to afford all of the panoply of rights available to an American citizen in a criminal prosecution to these enemy combatants in a time of war, what would that do in terms of diverting the attention of our troops on the battlefield from the war effort, fighting and winning the war, to criminal investigations, subpoenaing witnesses from the battlefield to come testify at judicial hearings and the like? Mr. Berenson. Senator, I think both the Department of Justice and the Department of Defense would tell you that the existing litigation, which embraces hundreds of cases, has seriously impeded the operations at Guantanamo, has exhausted resources of the Department of Justice that could better be used elsewhere, and has proven to be a significant distraction, as well as providing a potent propaganda platform for our adversaries. So, those practical concerns are quite serious and they do not even begin to exhaust the problems that would arise if we go down the road of extending constitutional protections, such as those arguably contained in the Suspension Clause, to alien enemies against whom we are fighting. If the due process clause applies to those people, why does every victim of collateral damage in a theater of combat whose property is destroyed, who is wounded, whose life is taken, who loses a family member in error not have a constitutional claim against our government? If you really spin out the consequences, they are just too unbelievable to seriously contemplate. Senator Cornyn. Mr. Rivkin, there has been a claim that these detainees would have no meaningful access to U.S. courts under the provisions of the Detainee Treatment Act, under the provisions of the Combatant Status Review Tribunal, the scope of review afforded in a Court of Appeals, as well as the Administrative Review Board which annually reviews the status of these detainees, and any direct appeal that would be permitted after a full trial on the merits before a military commission. Does that indicate to you that these detainees would be provided no meaningful access to our courts? Mr. Rivkin. Not at all, Senator Cornyn. Let me mention, again, a couple of points here. The level of due process that these detainees are getting far exceeds the level of due process accorded to any combatants, captured combatants, lawful or unlawful, in any war in human history. We had millions of captured enemy combatants throughout the course of American history, going back to the Civil War and World Wars I and II, and I do not remember anybody suggesting that they are entitled to a level of due process that is typically accorded to criminal defendants. As to how much due process they would get in a judicial review, much has been made of the argument that, unlike in the military commission context, in the CSRT the defendant may not be able to see classified evidence against him, but the DC Circuit will. The DC Circuit will see all the evidence upon which the CSRT has reached its conclusion. Much has been made out of the fact that he would not have access to a lawyer. That is true, but it is not meant to be a judicial process. It is meant to be user-friendly, often battlefield-based, back to my point about three officers sitting in a tent in the desert for 15 minutes. We are provided an enormously enhanced level of due process, both within the military system and beyond. But I would submit to you, if what you really want is the same level of due process that is accorded to criminal defendants, U.S. citizens, in Article III courts, this is not, arguably, the same level. But they are not entitled to it. We are giving them a lot more, Senator, than they are legally entitled to, under either international or the law in the U.S. Constitution. Chairman Specter. Senator Cornyn, you are a little over time, but if you want to take a few extra minutes you may. I want to maintain as much balance as we can. Senator Cornyn. I appreciate it. Let me followup on that, Mr. Rivkin. You mentioned about our obligations under the Geneva Conventions of the laws of war. Are the Combatant Status Review Tribunals and the Administrative Review Board mechanisms not precisely what is required, and perhaps more than is required, under the Geneva Conventions and laws of war? Mr. Rivkin. Indeed, it is far more than is required. You do have a gateway provision in Article 5 of Geneva Convention 3 that talks about, in case of doubt. In this case, everybody gets it. It is not a question of doubt. Second of all, the only requirement is that their status be reviewed by a competent tribunal. Again, there are very few countries that are signatories to the Geneva Conventions. Only Canada and the U.K. have resorted to those types of procedures. Very austere, very streamlined. The detainee often is not there and there is no involvement by lawyers. The whole system would break down, Senator, if it got turned into a mini trial. So, this is way in excess of what we are required to do under Geneva Article 5, and Article 5 really codifies customary international law here. Senator Cornyn. Mr. Chairman, the last thing I would just add is, under the provisions of the Detainee Treatment Act which Congress passed last year under the ``Judicial Review of Detention of Enemy Combatants,'' Section E, it says, ``Except as provided in Section 1405 of the Detainee Treatment Act of 2005, no court, justice or judge shall have jurisdiction to hear or consider an application for Writ of Habeas Corpus filed on or behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.'' To me, it is abundantly clear that all Congress is going to do in this legislation, is to actually give effect to the very same provisions that we passed in the Detainee Treatment Act in late 2005, although with perhaps greater clarity so that Congress's intent may be achieved. Thank you very much. Chairman Specter. Thank you, Senator Cornyn. Just a couple of very brief questions, to followup before concluding. Admiral Hutson, our military troops, particularly in a court martial, do not have rights to habeas corpus. The issue has been raised from time to time, why should there be habeas corpus rights here where there is no such right under a military tribunal? Admiral Hutson. I am not sure I agree with the premise that they do not have habeas corpus rights in the first place. Chairman Specter. Is habeas corpus applicable for people convicted in courts martial? Admiral Hutson. Yes. Chairman Specter. All right. That is the answer. Very briefly, Mr. Berenson. When you look at the opinion in Hamdi, ``Absent suspension, the Writ of Habeas Corpus remains available to every individual detained in the United States.'' The reference is made to abstention. Does that not really signify a Supreme Court ruling that the clause in the Constitution that habeas corpus cannot be suspended, except on rebellion or invasion, applicable here? Mr. Berenson. I think that there are sentences in Hamdi, in Rasul, and in some other decisions that appear to assume that there is a constitutional core in the Suspension Clause that Congress does not have the automatic right to eliminate. But as I say, the question has never really been adjudicated. The larger significance of Hamdi, I think, is Justice O'Connor's admonition that even a U.S. citizen who is detained is only entitled to notice and a meaningful opportunity to contest the factual basis for detention before a neutral decisionmaker, and she, for the court, specifically says that ``the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.'' Then the court specifically says that ``an appropriately authorized and properly constituted military tribunal'', which a CSRT certainly is, would be adequate, even in the case of a U.S. citizen, to satisfy the minimal due process rights recognized in Hamdi. Chairman Specter. Commander Swift, it is especially offensive where you were told that the representation of Hamdan was contingent upon his being willing to plead guilty. Was anything ever done to bring to book the people who made that condition? Commander Swift. To my knowledge, no, sir. The chief prosecutor, shortly thereafter, left. I do not know the specifics on why. The reason I think that it ultimately did not play out and cause any problem, was I had habeas corpus. It was the fix, and it fixed it. I would say that the entire country should be grateful that it did. We do not have the problems and specters of illegal trials. We won, as a country, a great deal in Hamdan, and the only reason we were able to win it was habeas corpus. It vindicated the United States's rule of law rather than slow or bring is down. To take it away, as was done in Makar Adell is to give up our strength, as Admiral Hutson pointed out, as a nation of laws. We cannot be beat as long as we are a nation of laws. Chairman Specter. Senator Leahy, anything further? Senator Leahy. Just a couple of things. One, I would like to put in the record a New York Times article dated back in 2004 that cites administration officials as suggesting that many of the people held in Guantanamo may well be innocent. Chairman Specter. Without objection, it will be made a part of the record. Senator Leahy. And just to followup a little bit on what Commander Swift was talking about. In this hearing we are talking about habeas-stripping provisions. But suppose there was evidence obtained as a result of torture. Does this legislation guarantee that that evidence can be excluded? Commander Swift. To me? No, sir, it does not. It does not guarantee it at the CSRT level and it does not guarantee it at the commission level. At the commission level, in torture--and I find torture to be a difficult word because I do not know what it means, and everybody who read the statute does not know what it means. Coercion. I know what that means. Coercion can be brought in. By the way, the chief presiding officer down in the commissions did not know whether sticking a red-hot poker in somebody's eye would actually be torture, so I do not think I am alone in this. But it allows that evidence in by coercion. The more scary part is, the way this has been done, both in the CSRTs and in the commissions, is how do you know? The burden is put on the accused, whether he is at the CSRT or at the commissions, to prove that the evidence was obtained by torture or by coercion. Given that, and given the fact that the government does not have to turn anything over, here is the statement; we are not going to tell you how we got it. That possibility certainly exists. Chairman Specter. Senator Cornyn, anything further? Senator Leahy. Just one thing if I might, Mr. Chairman. Chairman Specter. Oh. Excuse me, Senator Leahy. Senator Leahy. Admiral Hutson, I wanted to make sure. I did not want to leave it dangling. I said, because this is not World War II where you have armies marching against each other in uniforms and it is easy to determine who the combatant is. When so many were not captured on the battleground but were just turned over by various factions, many of whom may not have been friendly to each other, did I give an appropriate description of that, that you may well have people in there where scores are being settled, not so much that they were combatants? Admiral Hutson. Absolutely. The only thing that I would add, is that there was frequently a bounty of $5,000 or $25,000 associated with it, depending on whether the person was alleged to be Taliban or Al Qaeda, which is a king's ransom. Senator Leahy. This is in an area where the per capita income is about $100 or $200 a year? Admiral Hutson. Indeed, sir. Mr. Sullivan. Senator Leahy, I have been down there and have met these men, several of them. When I described previously that they do not appear any more dangerous--and I have seen a lot of dangerous men. I have represented a lot of them, I have prosecuted a lot of them--than my younger grandchild, who is 12. My 14-year- old objected to that on the ground of a negative pregnant. [Laughter.] Senator Leahy. I have four grandchildren. I understand, Mr. Sullivan. Thank you, Mr. Chairman. Chairman Specter. Anything further, Senator Cornyn? Senator Cornyn. Mr. Chairman, just a few housekeeping measures. First of all, I would like to ask to be made part of the record a Washington Post article dated October 24, 2004 entitled, ``Released Detainees Rejoining the Fight.'' Chairman Specter. Without objection, it will be made a part of the record. Senator Cornyn. And I would also like to offer pages 12 through 14 of the U.S. February 17, 2006 supplemental brief in the Al Oudot case, which makes the following points. I will summarize. According to the Justice Department, the detainees have urged habeas corpus to dictate conditions on Guantanamo Naval Base, ranging from the speed of Internet access afforded to their lawyers to the extent of mail delivered to the detainees. More than 200 cases have been filed on behalf of 600 purported detainees. This number exceeds the number of detainees actually held at Guantanamo, which is closer to 500. Also, according to the Justice Department, the Department of Defense has been forced to reconfigure its operations at Guantanamo Naval Base to accommodate hundreds of visits by private habeas counsel. This habeas litigation has consumed enormous resources and disrupted the day-to-day operation of Guantanamo Naval Base. Finally, the United States notes that this litigation has had a serious negative impact on the war against Al Qaeda, according to the United States's brief. Perhaps most disturbing, the habeas litigation has imperiled crucial military operations during a time of war. In some instances, habeas counsel have violated protective orders and jeopardized the security of the base by giving detainees information likely to cause unrest. Moreover, habeas counsel have frustrated interrogation, critical to preventing further terrorist attacks on the United States. [Interruption by protester]. Chairman Specter. Proceed, Senator Cornyn. Senator Cornyn. Finally, I would like to offer for part of the record pages 32 through 35 of the Department of Justice brief in the Al Oudot case, which points out that the CSRT procedures used to adjudicate enemy combatant status are based on, and closely track, the procedures used to adjudicate prisoner of war status under Article 5 of the Geneva Convention and sets out the variety of rights available. [Interruption by protester]. Senator Cornyn. I will be satisfied with the hard copy itself being made a part of the record. Chairman Specter. Without objection. Mr. Sullivan, you said something very poignant just before we started the hearing about the importance of this week, and we will conclude with your statement on that, if you care to make it. Mr. Sullivan. Senators, it is my opinion as a long-time loyal American that this is a momentous moment in our history, this week, to think that the Congress, on the eve of elections without any hearings--this is the first hearing, and three people are here--and any serious consideration being given to momentous, momentous legislation, is just beyond my capacity to accept. I believe that if this bill is passed with these habeas- stripping provisions in it, then after I am dead and the members of this Senate hearing are dead, an apology will be made, just as we did for the incarceration of the Japanese citizens in the Second World War. It is shameful and it is momentous. I have listened to Senator Cornyn. I respect him very much. I think that there is a serious overstatement of what has occurred and what will occur at these hearings. They are in no way comporting with any kind of due process. And to talk about battlefields, these men have been kept there in cages for 5 years. There is not any emergency here. Indeed, Senator Specter, it is our opinion that if these habeas corpus petitions were permitted to go ahead on the sole issue of the validity of detention, most of the men, the great majority, would be put on planes and sent back home, for the simple reason that there is no evidentiary basis for keeping them there. Chairman Specter. Well, thank you very much, gentlemen, for coming in today. Thank you, Senator Leahy and Senator Cornyn. We will note the presence of people in this room who have been disrespectful and rude, and have made every effort to goad the Chair into ousting them. I have restrained from doing that because it would cause more attention than simply by ignoring them. But you are rude. You are disrespectful. This hearing has been held very much to promote the interests that you are articulating. For you to come here and to stand up, and you had your photo op, then you turned around and you had your photo op, then you turned around again and had your photo op and tried very hard to be ousted when you spoke up disrespectfully to Senator Cornyn. Do not consider that your conduct is a precedent for what we will do in these hearings. As the Chairman, I will do what I can to minimize your intrusion, and that is by ignoring you. 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