[Senate Hearing 109-658]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 109-658
 
  EXAMINING PROPOSALS TO LIMIT GUANTANAMO DETAINEES' ACCESS TO HABEAS 
                             CORPUS REVIEW
=======================================================================


                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 25, 2006

                               __________

                          Serial No. J-109-113

                               __________

         Printed for the use of the Committee on the Judiciary




                                 _____

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                       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.
    [Whereupon, at 11:39 a.m. the hearing was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]
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