[Senate Hearing 110-145]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-145
 
 RESTORING HABEAS CORPUS: PROTECTING AMERICAN VALUES AND THE GREAT WRIT 
=======================================================================
                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 22, 2007

                               __________

                          Serial No. J-110-37

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director

















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    17
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    22
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   150
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   161
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    24

                               WITNESSES

Cuellar, Mariano-Florentino, Professor, Stanford Law School, 
  Stanford, California...........................................     9
Guter, Donald, Rear Admiral, U.S. Navy (Ret.), Dean, Duquesne 
  University School of Law, Pittsburgh, Pennsylvania.............     5
Kerr, Orin, Professor, George Washington University Law School, 
  Washington, D.C................................................    13
Rivkin, David B., Jr., Partner, Baker & Hostetler LLP, 
  Washington, D.C................................................    11
Taft William Howard, IV, Of Counsel, Fried, Frank, Harris, 
  Shriver & Jacobson LLP, Washington, D.C........................     7

                         QUESTIONS AND ANSWERS

Responses Mariano-Florentino Cuellar to questions submitted by 
  Senators Kyl and Biden.........................................    28
Responses of Donald Guter to questions submitted by Senators Kyl, 
  Leahy and Biden................................................    36
Responses of Orin Kerr to questions submitted by Senators Kyl and 
  Biden..........................................................    40
Responses of David B. Rivkin to questions submitted by Senator 
  Kyl............................................................    43
Responses of William H. Taft IV to questions submitted by 
  Senators Kyl and Biden.........................................    49

                       SUBMISSIONS FOR THE RECORD

American Immigration Lawyers Association, Carlina Tapia-Ruano, 
  President, Washington, D.C., letter............................    51
Association of the Bar of the City of New York, Barry M. Kamins, 
  President, New York, New York, letter and attachments..........    52
Cuellar, Mariano-Florentino, Professor, Stanford Law School, 
  Stanford, California...........................................    77
Epstein, Richard A., Chicago, Illinois, letter...................    83
Evanglicals for Human Rights, David P. Gushee, Jackson, 
  Tennessee, letter and attachments..............................    85
Former United States Attorneys and former senior officials in the 
  Department of Justice, joint letter............................   113
Franklin, Sharon Bradford, Senior Counsel, Constitution Project, 
  Washington, D.C., letter and attachments.......................   121
Guter, Donald, Rear Admiral, U.S. Navy (Ret.), Dean, Duquesne 
  University School of Law, Pittsburgh, Pennsylvania, statement 
  and attachment.................................................   139
Jewish Council for Public Affairs, Hadar Susskind, Washington 
  Director, Washington, D.C., letter.............................   144
Keene, David A., Chairman, American Conservative Union and Co-
  Chair, Constitution Project's Liberty & Security Initiative, 
  Alexandria, Virginia, statement................................   146
Kerr, Orin S., Professor, George Washington University Law 
  School, Washington, D.C., statement............................   155
Retired Federal judges, joint letter.............................   164
Rivkin, David B., Jr., Partner, Baker & Hostetler LLP, 
  Washington, D.C., statement....................................   167
Taft, William Howard, IV, Of Counsel, Fried, Frank, Harris, 
  Shriver & Jacobson LLP, Washington, D.C., statement............   171


 RESTORING HABEAS CORPUS: PROTECTING AMERICAN VALUES AND THE GREAT WRIT

                              ----------                              


                         TUESDAY, MAY 22, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 10:02 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feingold, Durbin, Whitehouse, and 
Specter.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. Today the Judiciary Committee 
turns its attention to a top legislative priority that Senator 
Specter and I have set for this year: restoring the Great Writ 
of habeas corpus, and the accountability and balance it allows. 
And I thank our distinguished panel of witnesses for appearing 
here today. They illustrate the broad agreement among people of 
diverse political beliefs and backgrounds that the mistake 
committed in the Military Commissions Act of 2006 must be 
corrected.
    It seems that habeas corpus was recklessly undermined in 
last year's legislation. Senator Specter and I urged caution 
before taking that dangerous step. We did several times on the 
floor, but we fell just a few votes shy on our amendment to 
restore these protections. It is now 6 months later. The 
election is behind us, and I hope that the new Senate will 
reconsider this historic error in judgment and set the matter 
right. It is urgent that we restore our legal traditions and 
reestablish this fundamental check on the ability of the 
Government to lock someone away without meaningful judicial 
review of its action, and the time to act is now.
    I commend Senator Specter, my friend of decades who feels 
as passionately as I do about this issue, for helping us plan 
this hearing. He and I introduced the Habeas Corpus Restoration 
Act of 2007 on the very first day of this Congress.
    The Military Commissions Act, passed hastily in the weeks 
leading up to last year's election, was a profound mistake, and 
its elimination of habeas corpus rights was its worst error. 
Like the internment of Japanese-Americans during World War II, 
the elimination of habeas rights was an action driven by fear 
and it is another stain on America's reputation in the world.
    This Great Writ is the legal process that guarantees an 
opportunity to go to court and challenge the abuse of power by 
the Government. The Military Commissions Act rolled back these 
protections by eliminating that right, permanently, for any 
non-citizen labeled an enemy combatant. In fact, a detainee 
does not have to be found to be an enemy combatant; it is 
enough for the Government to say someone is ``awaiting'' 
determination of that status, that they have not had this 
determination, but they are awaiting such a determination.
    Now, the sweep of this habeas provision goes far beyond the 
few hundred detainees currently held at Guantanamo Bay. It 
includes an estimated 12 million lawful--lawful--permanent 
residents in the United States today. These are lawful 
residents of the U.S., people who work pay taxes, abide by our 
laws, and should be entitled to fair treatment. After all--you 
know, it seems almost a cliche to say it--it is the American 
way. We expect these rights in America. We tell the rest of the 
world that we stand for these rights. But under this law, this 
current law, any of these people can be detained, forever, 
without any ability to challenge their detention in court. I 
look forward to hearing from Professor Cuellar and others who 
can elaborate on this disastrous change and its potentially 
disproportionate impact on the Latino population, which 
accounts for so many of the country's hard-working legal 
immigrants.
    Since last fall, I have been talking about a nightmare 
scenario in which a hard-working legal permanent resident who 
makes an innocent donation to a charity, perhaps a Muslim 
charity, to help poor people around the world--which would be, 
of course, in the finest American tradition. So many of us have 
made contributions to help poor people. But maybe that charity 
is secretly suspected by the Government to have a tie, however 
tenuous, to terrorist groups. Based on that suspected tie, 
perhaps combined with an overzealous neighbor reporting 
suspicious behavior, having seen people of a different culture 
or color visiting, or with information secretly obtained from a 
cursory review of the person's library borrowings, the 
permanent resident could be brought in for questioning, denied 
a lawyer, confined, and even tortured. Such a person would have 
no ability to go to court to plead his or her innocence--no 
ability for years, for decades, or even forever.
    When I first spelled out this nightmare scenario, many 
people viewed it as a far-fetched hypothetical just made for 
purposes of debating. But, sadly, it was not. Last November, 
just after enactment of these provisions, this was confirmed by 
the Department of Justice in a legal brief submitted in Federal 
court in Virginia. The U.S. Government, seeking to dismiss a 
detainee's habeas case, said that the Military Commissions Act 
allows the Government to detain any non-citizen designated as 
an enemy combatant without giving that person any ability to 
challenge his detention in court. And this is not just at 
Guantanamo Bay. The Justice Department said it is true even for 
somebody arrested and imprisoned in the United States.
    Now, I was shocked when Attorney General Gonzales 
maintained at a hearing earlier this year that our Constitution 
does not provide a right to habeas corpus. Sometimes, I have 
found that the Attorney General is not necessarily the last 
word on legal thought in this country. But more damaging was 
the Senate's decision over our opposition to remove this vital 
check that our legal system provides against the Government 
arbitrarily detaining people for life without charge. That is 
wrong. It is unconstitutional. It is profoundly un-American.
    Our leading military lawyers, like Admiral Guter, tell us 
that eliminating key rights for detainees hinders the safety of 
our troops and the effectiveness of our defense. Diplomats and 
foreign policy specialists, like Mr. Taft, tell us that 
eliminating habeas rights reduces our influence in the world. 
Top legal scholars and conservatives like Kenneth Starr, 
Professor Richard Epstein, and David Keene, head of the 
American Conservative Union, agree that this change betrays 
centuries of legal tradition and practice. Professor David 
Gushee, head of Evangelicals for Human Rights, submitted a 
declaration signed by evangelical leaders nationwide, which 
refers to the elimination of habeas rights and related changes 
as ``deeply lamentable'' and ``fraught with danger to basic 
human rights.''
    The elimination of basic legal rights undermines, not 
strengthens, our ability to achieve justice. It is from 
strength that America should defend our values and our way of 
life. It is from the strength of our freedoms, our 
Constitution, and the rule of law that we can prevail. We can 
ensure our security without giving up our liberty. I will keep 
working on this issue until we restore those fundamental checks 
and balances.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman, for the 
outstanding work you are doing on this Committee and have done 
for 33 years and for your leadership role generally, but 
especially on efforts to change the statute which limits habeas 
corpus rights.
    It is surprising to me that it is necessary to change the 
statute in light of the decision by the Supreme Court of the 
United States in the Rasul case. That case made it explicit, 
although not the holding, that the Great Writ of Habeas Corpus 
apply to the detainees at Guantanamo and that they were 
entitled to due process of law and a hearing.
    The holding did limit it to the statutory right. There are 
two rights to habeas corpus: the one provided by statute and 
the one provided by the Great Writ. But the opinion of the 
Court in Rasul made it plain that the Great Writ applied to the 
Guantanamo detainees when they said, ``Application of the 
habeas corpus statute to persons detained at Guantanamo is 
consistent with the historic reach of the writ of habeas.'' And 
the Court went on to note, ``Lord Mansfield wrote in 1759 that, 
`Even if a territory was no part of the realm, there was no 
doubt as to the court's power to issue writs of habeas if the 
territory was under the subjection of the Crown.' ''
    So that there really is no doubt that the Supreme Court 
viewed the constitutional Great Writ as being applicable to 
Guantanamo. So that I would disagree with you on one small 
point, Mr. Chairman, where you say we are going to restore the 
Great Writ. The Great Writ does not need restoring because it 
is always here. It is just a question of recognizing its 
application to Guantanamo.
    It is hard for me to understand how the circuit court could 
flout the authority of the Supreme Court. And then it is 
equally beyond my comprehension how the Supreme Court could not 
say to the circuit court the most fundamental rule is that 
circuit courts have to follow the Supreme Court. But the 
Supreme Court did not do that, and there is speculation the 
Supreme Court did not do that because Justice Stevens, who 
could have provided the fourth vote for cert., and the author 
of Rasul, was concerned that Justice Kennedy would reverse 
Rasul, along with the four who had already taken a position.
    Well, if you talk about inside baseball or inside the 
Beltway or inside the Supreme Court, that is pretty hard to 
fathom. But that is at least an explanation. I would not go so 
far as to call it a rational explanation, but it is an 
explanation.
    Now, that is fairly harsh lawyer talk to accuse the circuit 
court of not following the Supreme Court and then accuse the 
Supreme Court of not insisting on its authority. But I think 
that is what we have here, and it is very, very extraordinary, 
as I see it, in the history of judicial procedure in this 
country. But Congress can alter the situation by changing the 
statute which was passed. We lost 48-51. There was a very 
limited period of time for the consideration of the issue. I 
believe if we go back to the Senate and the House now, we will 
find a different view. I would be hopeful that if the issue 
reaches the President's desk that he would sign it, but 
candidly I doubt that. But I think we ought to put all the 
pressure that we can on this issue.
    And then when you take the holding of the circuit court, 
saying that the statutory writ of habeas corpus was satisfied 
because of the alternative procedures, you only have to cite 
one case, and that is the case of In re Guantanamo Detainee 
Cases, which is cited at 355 F. Supp. 443, and the Court there 
reviews a transcript of the detention of someone held at 
Guantanamo. And the detainee is charged with associating with 
al Qaeda, and as printed in the report on page 23:
    ``Detainee: Give me his name.''
    ``Tribunal President: I do not know.''
    ``Detainee: How can I respond to this? ''
    ``Detainee: I ask the interrogators to tell me who this 
person was. Then I could tell you if I might have known this 
person, but if this person is not a terrorist.''
    The upshot was that they did not identify the name of the 
person whom the detainee was alleged to have talked to, so how 
could he defend himself? And the transcript shows, the opinion 
shows, that it produced laughter in the courtroom. It was a 
joke.
    Well, I think that is about the status of what the 
procedure provides, where you have an alternative remedy, the 
Supreme Court said in Swain v. Pressley, but that was an issue 
where you had a State court decide habeas corpus. And the 
Supreme Court was wrestling with the fact that the State court 
was as good as the Federal court. The limitation that they were 
elected did not counterbalance the adequacy of the remedy just 
because Federal judges have life tenure, so that you have here 
a proceeding which is just totally devoid of any fundamental 
fairness of the way these tribunals work.
    I hope that we can move this quickly in Committee. I know 
the Chairman will do what he can, bring it to the floor, and 
let the Congress speak to this issue, because the practices 
are, simply stated, atrocious. They are damaging to the 
reputation of the United States worldwide.
    I regret that I am not going to be able to stay long 
because we are right in the midst of immigration. We brought 
the issue to the floor, and I am managing it on the Republican 
side. But my heart is right here.
    Thank you, Mr. Chairman.
    Chairman Leahy. I have no doubt where your heart is, and if 
the Senate is going to be the conscience of the Nation, as 
occasionally we are, and all we should be, then we will move 
quickly on this and not worry about vetoes but worry about 
doing what is right.
    Gentlemen, would you please stand and raise your right 
hands? Do you solemnly swear that the testimony you will give 
in this matter will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Admiral Guter. I do.
    Mr. Taft. I do.
    Mr. Cuellar. I do.
    Mr. Rivkin. I do.
    Mr. Kerr. I do.
    Chairman Leahy. Thank you.
    The first witness will be Rear Admiral Donald Guter. The 
Admiral served in a wide variety of positions in the United 
States Navy, including serving as the Navy's 37th Judge 
Advocate General between 2000 and 2002. And after retiring from 
the Navy, he accepted the position as Dean of the Duquesne 
University School of Law, his alma mater. Prior to attending 
the law school there, he graduated from the University of 
Colorado. His personal decorations include the Defense 
Distinguished Service Medal and the Navy Commendation Medal.
    Admiral, we are delighted to have you here. Please go 
ahead, sir.

  STATEMENT OF REAR ADMIRAL DONALD GUTER, UNITED STATES NAVY 
 (RET.), DEAN, DUQUESNE UNIVERSITY SCHOOL OF LAW, PITTSBURGH, 
                          PENNSYLVANIA

    Admiral Guter. Well, thank you very much, Chairman Leahy, 
members of the Committee. I appreciate very much the invitation 
to come and speak in support of the Habeas Restoration Act of 
2007. I am glad you mentioned a few of those items from my 
biography, only because the debate in this country has become 
such that anytime someone supports an item like restoration of 
habeas, it seems like the political debate gets a little bit 
ugly.
    I was in the Pentagon on 9/11. I lost one of my lawyers on 
the airplane that came back and hit the Pentagon that day, and 
I have lost friends since then. So I am no stranger to the 
struggle that we face, but I am also no stranger to the debate.
    As early as 2003, I started speaking out on this subject, 
and you have my written statement for the record, so I would 
like to just come to some other points in my oral testimony.
    Chairman Leahy. Please go ahead.
    Admiral Guter. First of all, I want to state unequivocally 
that for me it is not about what is least required by the law 
or who can be more patriotic. For me, this issue is about what 
is best for the long-term policy for the United States, what is 
best for our troops, and what is best for our citizens who 
travel overseas.
    Moreover, what is best for our chance of preserving our 
values? What gives us the best chance of building the alliances 
that we need so that we can get the cooperation from our 
allies, so we can get the best intelligence that we possibly 
can in the struggle against terrorism? What gives us the best 
chance of winning the hearts and minds of the people around the 
world? What policy serves the rule of law and international 
humanitarian law? What policy makes the world safer and a 
better place for the long term? What standard do we want to be 
held to ourselves? I think Senator McCain and Senator Graham 
said it. It is not about them. It is about us.
    Habeas corpus is the basis for a civilized legal system. It 
protects us against an unchecked power to hold people 
indefinitely. This struggle is going to have no end. We have 
already seen the results at Guantanamo Bay. Guantanamo shows us 
what can happen with an unchecked power.
    The United States helped codify habeas after World War II, 
and now it pains me to say that we lead the charge in trying to 
destroy it. It is unnecessary to eliminate habeas to protect 
the courts. They are perfectly capable of handling habeas 
petitions, and they have shown that. And it is also unnecessary 
to eliminate habeas to win this struggle.
    Our country and our institutions are stronger than that. 
What we need to win this war is good intelligence, the 
cooperation of willing allies, as many as we can possibly 
muster. We need a strong defense. We need a strong response 
when we are attacked. And we have been attacked many, many 
times before 9/11. We also need adherence to the rule of law. 
That gives us the best chance to prevent future attacks and win 
the struggle that we are engaged in.
    Thank you.
    [The prepared statement of Admiral Guter appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Admiral.
    The next witness is William Taft IV. He is of counsel, 
resident in Fried, Frank's Washington, D.C., office, where he 
has practiced since 1992. In 2001, Mr. Taft was appointed by 
President Bush to serve as legal adviser to the Department of 
State where he served for 4 years, and then rejoined the firm. 
Prior to 1992, Mr. Taft was the United States Permanent 
Representative to NATO. He held several positions in the 
Department of Defense under Presidents Reagan and George H. W. 
Bush, including Deputy Secretary of Defense from 1984 to 1989. 
Mr. Taft received his B.A. from Yale University and his J.D. 
from Harvard Law School, so he can join the rivalry on either 
side between the two schools.
    Mr. Taft, the floor is yours.

STATEMENT OF WILLIAM HOWARD TAFT IV, OF COUNSEL, FRIED, FRANK, 
        HARRIS, SHRIVER & JACOBSON LLP, WASHINGTON, D.C.

    Mr. Taft. Thank you, Mr. Chairman. Briefly, I believe that 
it was a mistake for Congress to take away from the detainees 
in Guantanamo the ability to obtain judicial review by habeas 
corpus of the lawfulness of their detention, and I recommend 
that the Congress restore that right.
    Under present law detainees convicted by military 
commissions may obtain judicial review of their convictions 
after their criminal cases are concluded, and persons who are 
not charged with crimes, or have perhaps been acquitted of 
crimes but detained as enemy combatants pursuant to 
determinations of their status by Combatant Status Review 
Tribunals, may obtain review of those determinations. This 
review, however, does not accord the detainee the same 
opportunity to challenge his detention that he would have in a 
normal habeas corpus proceeding.
    Before the enactment of the Detainee Treatment Act of 2005 
and the Military Commissions Act last year, detainees were 
entitled under the Supreme Court's interpretation of the 
relevant authorities to have the lawfulness of their detention 
reviewed after filing petitions for habeas corpus. The benefits 
of this now displaced procedure were considerable, not so much, 
I think, for the detainees in Guantanamo, none of whom was 
actually released by a court, as for establishing beyond 
argument the legitimacy of the process for holding persons who 
continued to present a threat to the United States as long as 
the terrorists continue to pursue their war against us.
    It should be recalled in considering this question that the 
Supreme Court has on two occasions affirmed the lawfulness of 
detaining persons captured in the conflict with al Qaeda and 
the Taliban as long as they pose a threat to the United States. 
This is black letter law of war.
    Prior to the enactment of the Military Commissions Act, 
consistent with this principle, no court had ordered the 
release of any of the detainees, nor would they do so as long 
as they posed a threat in the ongoing conflict. Currently, this 
determination is made by the military with only very limited 
judicial review of the proceedings of the Combatant Status 
Review Tribunal. Having the determination made by a court 
following established habeas procedures would greatly enhance 
its credibility and be consistent with our legal tradition.
    Beyond that, providing habeas corpus review of the limited 
number of cases at Guantanamo will impose only a very modest 
burden on the courts. Fewer than 400 people are currently 
detained at Guantanamo, and I understand that a substantial 
portion of these may soon return to their own countries. By 
comparison, the courts handle thousands of habeas petitions 
each year. Moreover, these Guantanamo cases are comparatively 
straightforward. Many detainees freely state that they would 
try to harm the United States if they were released. Others are 
known to be members of al Qaeda, have been captured while 
attacking our troops, or are otherwise known to pose a threat 
to us. Judicial review of such cases should be relatively 
uncomplicated when compared with the voluminous trial and 
appellate records involved in many habeas corpus cases.
    In the event, however, that a court were to be presented 
with a case that raised serious questions about the lawfulness 
of detention, surely those questions should indeed be carefully 
considered, and no institution is better equipped by experience 
to do that than a court.
    In proposing that we return to the system that was in place 
previously, I want to stress that I do not believe that this 
issue should be treated as a constitutional one, but simply as 
a matter of policy. Whether the Congress has the power to bar 
habeas review to aliens detained in Guantanamo is a question 
that could be resolved by the courts. My guess is that it 
probably does. But Congress should not want to bar the habeas 
review the Supreme Court found the aliens in Guantanamo were 
entitled to under our statutes. It should want instead to have 
the judiciary endorse the detentions of the terrorists who 
threaten us.
    For the very reason that the law of war allows us to detain 
persons without charging them with criminal conduct for 
extended periods, it is also more important to be sure that the 
process for determining who those people are is beyond 
reproach. Unlike wars between national armies where it is easy 
to tell who the enemy is, identifying those terrorists we are 
entitled to detain because they have declared war on us is more 
difficult. We should take advantage of the court's expertise in 
performing this task.
    One final point. The Supreme Court's decisions of last 
summer in Hamdan and in Rasul earlier involve detainees in 
Guantanamo and found that because of the special status of that 
installation, the habeas process was available to detainees 
there. The Court did not consider, much less determine, whether 
it was available in foreign lands or on the battlefield. 
Speaking again as a matter of policy, I think it would be 
entirely impractical to extend it to battlefield captures or 
persons who are held in foreign countries in the context of an 
armed conflict. In the unlikely event that the Supreme Court 
were to decide that it did so extend, I would certainly support 
a statute amending the statutory provisions on which the Court 
relied for its conclusion.
    Mr. Chairman, thank you for the opportunity to appear 
before you. I have a full statement which I would like to have 
included in the record.
    [The prepared statement of Mr. Taft appears as a submission 
for the record.]
    Chairman Leahy. Thank you, and your statement will be 
placed in the record and, of course, also as to the questions 
that will be asked, if afterward when you get the transcript 
you want to add material, naturally we will hold it open for 
that purpose. This is too important an issue to give short 
shrift to. And I have a letter from Professor Richard Epstein 
of Chicago that was sent to Senator Specter, and Senator 
Specter asked that it be included in the record, and it will 
be.
    Now, our next witness is Professor Cuellar who has served 
as Associate Professor and Deane Johnson Faculty Scholar at 
Stanford Law School since July of 2001. Prior to joining 
Stanford's faculty, he served as senior adviser to the U.S. 
Treasury Department's Under Secretary for Enforcement. He 
clerked for Chief Judge Mary Schroeder at the U.S. Court of 
Appeals for the Ninth Circuit. He received his undergraduate 
degree from Harvard University in 1993, his J.D. from Yale Law 
School, and a Ph.D. in political science from Stanford.
    Professor, go ahead, please.

 STATEMENT OF MARIANO-FLORENTINO CUELLAR, PROFESSOR, STANFORD 
                LAW SCHOOL, STANFORD, CALIFORNIA

    Mr. Cuellar. Thank you, Mr. Chairman and members of the 
Committee, for this invitation to talk about such an important 
issue.
    Our national security today raises many complicated 
questions, but I humbly submit that this is not one of them. 
Americans have been reluctant to tamper with the writ of habeas 
corpus even in the Nation's darkest hours. In rare 
circumstances when Congress has explicitly suspended the writ 
in accordance with the Constitution, it has done so with 
limited scope and for limited durations. In fact, the 
overarching story reflected in the history of habeas corpus is 
one of balance where vigorous responses to dangers confronting 
the Nation are checked by constitutional and statutory 
protections against arbitrary executive detentions. The 
Military Commissions Act has eroded that longstanding 
commitment to balance and thereby raises in my view grave 
constitutional questions.
    Questions are raised, for example, by the MCA's purported 
restrictions on habeas review of detentions involving aliens in 
the United States, including legal permanent residents who are 
here, as well as provisions constraining courts' consideration 
of the applicability of the Geneva Conventions to individual 
detainee cases. I think our institutional architecture makes it 
essential for Congress to consider these problems instead of 
simply leaving them to the courts, which were never designed to 
be the only branch concerned with constitutional principles.
    Next, I think it is important to consider that the habeas 
statute is not unlike 42 U.S.C. Section 1983 or the 
Administrative Procedure Act in that it helps vindicate 
constitutional interests. The intimate connection between 
constitutional protection and external checks on executive 
authority, in fact, helps explain the resilience of the habeas 
corpus statutory protections over many generations. The writ 
has acted as a check on Executive power in a surprising array 
of historical circumstances, involving citizens as well as 
aliens, enemy combatants on U.S. territory, and enemy 
combatants outside U.S. territory but within its functional 
jurisdiction. I believe the MCA represents a break from these 
norms. By eviscerating external checks on the detention of 
aliens accused of being enemy combatants, the MCA engenders 
perceptions abroad that the United States detainee process is 
unfair, further eroding American legitimacy.
    Our history underscores the foreign policy benefit of 
securing equal protection and fair procedures. For example, 
cold war policymakers pressed aggressively to expand domestic 
civil rights protections in order to bolster America's global 
standing. Indeed, recognition of the connection between 
balanced legal procedures and favorable public perceptions lies 
at the heart of our Nation's military doctrine.
    The problems with the MCA's habeas-stripping are compounded 
by the characteristics of bureaucratic organizations making 
complicated decisions. Executive bureaucracies routinely 
benefit from external review when they are making such 
decisions. Conversely, the absence of some external check on 
bureaucratic performance permits, and even encourages, a 
variety of pathologies. In the past, such pathologies have 
given rise to nuclear safety violations, the destruction of the 
Space Shuttle Challenger, biased regulatory rules, and mistaken 
detentions. Even when decisionmakers possess laudable 
motivations, the pressures and the constraints on organizations 
when performing a difficult, high-profile mission can distort 
the work of even the best meaning executive agencies.
    Finally, the MCA in its present form even has the potential 
to impact the status of many ordinary lawful permanent 
residents in the United States. While the MCA was justified 
primarily on the basis of facilitating our Government's efforts 
to detain individuals captured on foreign battlefields or 
actively and directly involved in terrorist operations, the 
reality is that the habeas-stripping provision the Military 
Commissions Act actually confers exceedingly vast powers to 
detain a far different pool of people. That section permits the 
indefinite detention of any alien accused of being an enemy 
combatant. Such accusations can include open-ended, indirect 
offenses, including material support of terrorism and 
conspiracy.
    Taken together, I would submit that these features may 
permit the creation of a massive unaccountable detention system 
that could be used against any one of the millions of U.S. 
lawful permanent residents who have left their homelands in 
Latin America, Asia, Africa, and Europe to become legal members 
of American society. I do not believe this is what was 
intended. In fact, it may seem unlikely that the MCA would be 
used against such numerous individuals in these communities 
with little or no connection to terrorism. But just as the 
history of law in America shows a strong commitment to habeas 
corpus, so too does that history demonstrate how laws are often 
used in a manner different from what was once contemplated.
    The solution is not to dismiss the threat posed by those 
who would harm America or its residents. It is instead to pass 
a fix--to pass the Habeas Restoration Act--and more generally 
to be mindful of the need for balance in this crucial area of 
law. History shows a strong pattern of congressional respect 
for the Great Writ. Now is the time to restore that legacy.
    Thank you.
    [The prepared statement of Mr. Cuellar appears as a 
submission for the record.]
    [Applause.]
    Chairman Leahy. As I said before, we will have order in the 
hearing. Expressions, honorable expressions, either for or 
against the testimony is inappropriate for the hearing. 
Obviously, it is appropriate for people to express whatever 
opinions they want outside the hearings.
    Mr. Rivkin is a partner at Baker & Hostetler, LLP. He is a 
Visiting Fellow at the Nixon Center, contributing editor of the 
National Review magazine, a member of the United Nations 
Subcommission on the Promotion and Protection of Human Rights. 
He served under President Reagan and the current President Bush 
in the White House Counsel's Office, Office of the Vice 
President, Departments of Justice and Energy, graduated from 
Georgetown University School of Foreign Service. He also holds 
a master's degree in Soviet affairs from Georgetown and a J.D. 
from Columbia University Law School.
    Go ahead, Mr. Rivkin.

 STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, BAKER & HOSTETLER 
                     LLP, WASHINGTON, D.C.

    Mr. Rivkin. Chairman Leahy, members of the Committee, I 
appreciate the opportunity to be here.
    Fundamentally, I believe that the Military Commissions Act 
as well as the Detainee Treatment Act comport with the United 
States Constitution, actually exceed the applicable norms of 
international law, and are well in line with American 
constitutional traditions and history.
    The procedures accorded under the MCA and DTA are 
streamlined, yet essentially fair. They furnish detainees with 
access to the judicial process that is sufficient to enable 
them to mount a meaningful challenge to their confinement. In 
fact, I would submit to you that they give the detainees far 
more due process than they ever had under any other ``competent 
tribunals'' convened under the Geneva Conventions in the past 
or in any past military commissions of the United States.
    As we all know, under the current system, the United States 
Court of Appeals for the District of Columbia Circuit is the 
exclusive venue for handling any legal challenges by detainees. 
Those requirements in those statutes also limit the Court to 
exercising jurisdiction until after a CSRT or military 
commission has exercised a final decision and limit judicial 
review essentially to two questions: whether the CSRT or 
military commission operated consistent with the rules and 
standards adopted by it, and also whether or not the CSRT or 
military commission reached a decision that is ``consistent 
with the Constitution and laws of the United States.''
    In my view, this scope of judicial review is not only 
sufficient for non-citizens held abroad, but is 
constitutionally sufficient for United States citizens 
themselves. In fact, despite all the criticism we have heard, 
the fact that the review does not commence at the district 
court level and does not follow in all particulars the existing 
Federal statutory habeas procedures codified at 28 U.S.C. 
Section 2241, does not amount to suspension of habeas corpus, 
and, indeed, is constitutionally unexceptional, I would submit 
to you that this proposition is well established by the 
existing Supreme Court precedents.
    For example, in the 1977 Supreme Court case of Swain v. 
Pressley that Senator Specter references in his opening 
statement, the Supreme Court stated that ``the substitution 
[for a traditional habeas procedure] 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.''
    Also, contrary to assertions by many critics that the 
current system is deficient because it does not allow for 
judicial review of factual issues, I believe that the D.C. 
Circuit and the Supreme Court are not limited to reviewing 
merely the legality of CSRT or military commission procedures. 
This is because under the teaching of Ex Parte Milligan, it is 
unconstitutional to bring civilians before military commissions 
or to hold them as enemy combatants if civilian Article III 
courts are open and functioning. Accordingly, a detainee should 
be able to claim that he is not, in fact, an enemy combatant, 
and the relevant factual record of the CSRT or the military 
commission would be judicially reviewable. Indeed, I would 
submit that this is the very same nature of review given to 
Nazi saboteurs--of whom at least one was a U.S. citizen--in Ex 
Parte Quirin, in 1942, where the Supreme Court rejected their 
contention that they were civilians, not subject to military 
jurisdiction. And we all know that the Supreme Court on a 
number of recent occasions referred to Quirin as good law.
    Now, I briefly want to mention that the procedures used by 
CSRTs and military commissions, while criticized by many 
people, in my view are supported by the realities that exist in 
the military justice system. In fact, throughout history, it 
has always been difficult to distinguish between irregular 
combatants and civilians. That is part of the reason why al 
Qaeda and Taliban members do not make themselves known. And, 
true to form, nearly all detainees claim to be shepherds, 
students, pilgrims, or relief workers, collude among themselves 
to support this position, and casually name persons thousands 
of miles away who can ``verify'' that they are not enemy 
combatants.
    Accordingly, in my view, the only appropriate point of 
reference for assessing the sufficiency of procedures used by 
the CSRT and military commissions is to look at their 
historical and international counterparts, which are tribunals 
organized under Article 5 of Geneva Convention III to identify 
enemy combatants, and the military commissions used by the 
United States in, and in the aftermath of, World War II. I 
think we can say it is undisputed that the CSRTs and military 
commissions offer far more process to the Guantanamo detainees 
than either Article 5 Tribunals or World War II-style military 
commissions.
    To be sure, I would readily stipulate that if you compare 
CSRTs and military commissions to civilian courts, they 
undoubtedly feature more austere procedures. However, as 
already mentioned, these bodies are meant to address a 
different context, a different type of procedure that is 
distinct from the realities of the criminal justice system. And 
I do not quite understand why it is a disservice to our legal 
traditions and to the rule of law to, in effect, say that 
anything that does not feature the same standards as exist in 
the criminal justice system is inconsistent with our values.
    The last thing I would say is the fact that the Department 
of Defense also holds on an annual basis Administrative Review 
Boards, which focus primarily on the question of whether 
detainees held in U.S. custody pose continued danger and 
whether viable alternatives exist to their continued detention, 
further underscores the extent to which the United States has 
opted to provide captured enemy combatants with additional 
rights that go above and beyond those required under 
international law and the Constitution. The practice, by the 
way, is historically unprecedented since the notion of enabling 
captured enemy combatants to be released on parole fell out of 
practice by the 19th century.
    Thank you.
    [The prepared statement of Mr. Rivkin appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Our next witness, Orin Kerr, is a professor of law at 
George Washington University, where he teaches courses relating 
to criminal law and procedure. Prior to joining the George 
Washington University faculty, he was a trial attorney in the 
Criminal Division of the United States Department of Justice. 
He is a graduate of Princeton University, Stanford University, 
Harvard Law School, and a former law clerk to Justice Anthony 
Kennedy of the U.S. Supreme Court.
    Professor Kerr, thank you for coming. Please go ahead, sir.

STATEMENT OF ORIN KERR, PROFESSOR, GEORGE WASHINGTON UNIVERSITY 
                  LAW SCHOOL, WASHINGTON, D.C.

    Mr. Kerr. Thank you, Mr. Chairman. It is a pleasure and 
honor to be here. I would like to discuss some of the 
constitutional questions surrounding habeas corpus jurisdiction 
at Guantanamo Bay, and then I would like to put some of those 
questions in a broader context.
    The first important constitutional question here is how to 
characterize Guantanamo Bay. And, in particular, is it part of 
the United States or is it outside the United States? If it is 
part of the United States, then the habeas writ presumably does 
extend to Guantanamo Bay. If it is outside the United States, 
it probably does not. And this is an issue which--it is an 
unusual situation in which we basically know where eight of the 
nine current Supreme Court Justices come down on this question, 
putting together the opinions in Rasul v. Bush and Hamdan v. 
Rumsfeld, and, in particular, right now are split, if we want 
to line up all the Justices and count them, is 5-3 in favor of 
saying that Guantanamo Bay is part of the United States, is 
within the territorial jurisdiction of the United States, in 
particular, that opinion being held, as best we can tell, by 
Stevens, Souter, Ginsburg, Breyer, and Justice Kennedy. And the 
language here I think is fairly clear. Granted, the Court has 
not made this holding, but there are clear indications in the 
Rasul opinion that this is where the Court is going, In 
particular, the Rasul majority where the Court states that 
people detained at Guantanamo Bay are ``detained within the 
territorial jurisdiction'' of the United States. It is 
consistent with the historical scope of the writ of habeas 
corpus to extend the writ to the detainees. Further Justice 
Kennedy's concurrence, which states that the Guantanamo Bay 
Naval Base is in every practical respect a U.S. territory and 
that the implied protection of the habeas writ extends to it.
    This is fairly clear language, although the Rasul case was 
statutory, not constitutional; nonetheless, I think largely 
addressing the constitutional question even though the case, 
formally speaking, statutory.
    If it is true that that view of five Justices prevails, 
what that means is that the writ of habeas corpus has to extend 
to Guantanamo Bay either as a formal matter or as a functional 
matter. Either Congress has to extend the writ to Guantanamo 
Bay, or there has to be some sort of adequate and effective 
alternative collateral remedy.
    The key point, I think, to the adequate and effective test 
under Swain v. Pressley, is that that means essentially the 
substantial equivalent of the actual habeas writ. So the 
question becomes whether the detainees, through the alternative 
collateral remedies, would have some way of challenging their 
detention, which essentially gives them the set of rights to 
challenge their detention they would have in a formal habeas 
proceeding.
    We do not at this point know with great certainty as to 
whether the existing remedies could satisfy that test, in part 
because we do not know what substantive rights the detainees 
have, and in part because we do not know exactly what 
procedures the D.C. Circuit is going to follow. So at least 
right now we have a state of considerable uncertainty as to how 
that test would be satisfied. But the key point is that, either 
way, we end up getting to the same result. Either the writ has 
to extend directly to the detainees at Guantanamo Bay, or else 
the D.C. Circuit has to construe the Detainee Treatment Act, 
however persuasively, or unpersuasively, in order to 
essentially provide those same rights through the language of 
the DTA instead of through the habeas writ.
    So either way, assuming that the views of those five 
Justices prevail, the writ must extend to Guantanamo Bay either 
formally or essentially through an alternative means, which 
just does the same thing through another way.
    Finally, in terms of the security implications of restoring 
the writ to Guantanamo Bay as a formal matter, I think when we 
approach questions of the war on terror involving such a 
balance between security and liberty, we naturally look to the 
security implications. What would it mean from a security 
standpoint to restore the writ? And I think the key point is 
that the security implications of doing so are actually quite 
modest.
    First, assuming the views of those five Justices prevail, 
the writ has to be there whether Congress acts formally or not, 
as Senator Specter had indicated. Assuming Congress does 
restore the writ, it is not clear that it actually makes a 
substantive difference in terms of the rights that are 
established. What would probably make the biggest difference is 
the speed with which the courts could get to the merits, if 
any, of the detainees claims. It does not mean that detainees 
are going to be freed from Guantanamo Bay, certainly in a way 
that would threaten the security of the United States. All we 
are talking about here is the jurisdictional question which 
would allow the courts to get to the merits of these issues 
more quickly than they otherwise would.
    Thank you.
    [The prepared statement of Mr. Kerr appears as a submission 
for the record.]
    Chairman Leahy. Thank you very much.
    Let me ask a few questions. I see Senator Durbin here, and 
I will yield to him for questions, or Senator Feingold, if he 
is still here.
    Proponents of this habeas-stripping provision, you have 
touched on this in your testimony, but they argue that we 
should eliminate habeas because it would help the military. 
They say that habeas review would hand military decisions about 
who was the enemy over to our Federal civilian courts. It would 
subject the military to all kinds of distractions and lawsuits.
    Now, you spent most of your career in the military as part 
of the military legal system. Do you believe that allowing 
habeas review for detainees is harmful to the military and its 
mission?
    Admiral Guter. Mr. Chairman, I do not. First of all, the 
decision is still going to be made--the initial decision of 
whether to take someone into custody is still going to be made 
by the military on the battlefield. So all we are talking about 
is removing them from the battlefield immediately and then 
where do we take them and what do we do with them after that. 
So I do not think so.
    Second of all, I think it goes further to your question. To 
respond with a little bit of respectful disagreement to Mr. 
Rivkin, I was there at the beginning, and the goal of putting 
people in Guantanamo Bay was clearly to deny them any judicial 
review whatsoever.
    Since that time, we have been engaged in a type of reverse 
engineering to try to put processes and procedures in place 
that satisfy what we have already done to these folks in 
Guantanamo and other places so that we might be able to extract 
whatever evidence or whatever intelligence we can from them. 
But we have engaged in reverse engineering to do that.
    The CSRTs in my judgment do not provide for a fair hearing, 
and I do not think the question is whether we are providing 
more or less protection than what we have in the past. It is 
whether or not they are fair. They have already--we have seen 
the kind of evidence that they allow. We have seen that they 
are inaccurate. We have seen that they are inconsistent. And I 
think worse than that, they still provide the potential for a 
black hole. You can run somebody through a CSRT and then never 
charge them, and without habeas, their case is never to be 
heard.
    Chairman Leahy. The sort of thing we criticize when other 
countries have done it. In fact, you say in your statement that 
you would hope that if you were ever detained abroad, that the 
United States would be able to argue for your release, but 
argue from the highest moral and legal grounds.
    Do you think by that eliminating this habeas protection, we 
hurt our own credibility when we argue for the release of 
detainees abroad?
    Admiral Guter. I do not think there is any question, and it 
is not just this issue. It is many others.
    Chairman Leahy. Thank you. Professor Cuellar, the Military 
Commissions Act eliminated the right to petition a court for 
habeas corpus for any alien--and those are words that I am 
quoting now from the statute--``any alien detained by the 
United States,'' and it goes on to say ``who has been 
determined to be an enemy combatant or''--and this is the part 
that in my mind is somewhat like Kafka--``awaiting such 
determination.''
    Does this provision on its face appear to empower--whether 
the Government does this or not, does it appear to empower the 
Government to detain any one of the 12 million lawful permanent 
residents of the United States who currently work and pay taxes 
here indefinitely with no ability for those permanent residents 
to challenge their detention in Federal court?
    Mr. Cuellar. Mr. Chairman, I believe the short answer is 
yes. Just bare statutory text permits officials of the 
executive branch to make a judgment that someone should be 
accused, and the plain statutory text again provides no time 
limit, no indication that there has to be a review process, no 
indication that at any point there actually has to be a 
determination. And--
    Chairman Leahy. The 12 million, I mean, that is not an 
insignificant number of people. That is 20 times the population 
of my State.
    Mr. Cuellar. I have always thought of Vermont as being a 
very big State, so, yes, indeed, it is a very large number. And 
I think it raises quite profound constitutional questions that 
are perhaps not the ones that people normally think of when 
they think about the Military Commissions Act because they 
think about the rather more recent developments in cases like 
Rasul, where the question really is: What happens to people who 
are outside the United States?
    Chairman Leahy. But for a non-citizen awaiting such 
determination, that is the part that I find chilling, 
``awaiting such determination.'' That means simply on the 
Executive's say-so that they are awaiting determination, they 
could be held. They do not have access to the courts if this 
law is upheld. Is that correct?
    Mr. Cuellar. That is correct, Senator. And if I could just 
add one thing, in American Trucking, which is a very 
different--it is a Supreme Court case about a very different 
context. Justice Scalia made an interesting point that I think 
has relevance here. He was dealing with a situation where the 
Environmental Protection Agency was making the argument that 
they could cure a potential unconstitutional delegation problem 
by having narrowing regulations that took broader steps to 
authority and made them narrower. And Justice Scalia there 
pointed out that at any point the EPA could simply choose to 
change its regulations and we would have the unconstitutional 
delegation problem again.
    So this is a different kind of problem, but the same 
objection might apply if the response from the executive branch 
were, well, that is the statutory text, but we have rules here 
that suggest that we would not actually use this degree of 
discretion the way that would be most troubling.
    Chairman Leahy. I use the example of somebody who 
contributes to a charity and they could be held pending 
determination, which could be a very long time. I know I have 
used my time. Let me ask just one last question because we have 
immigration on the floor, which has brought a number of 
Senators. Unlike you, I can see the monitor for the floor out 
of the corner of my eye, and there have been a number of 
Senators from this Committee who have been over there. But is 
this a matter of concern to the Latino community in this 
country?
    Mr. Cuellar. I believe it has to be, Mr. Chairman, because 
if you look at the history of legal immigrants in America, 
there are historical cycles of inclusion and rejection. And 
these are legal immigrants who pay billions of dollars in taxes 
and contribute to meeting particularly labor demands that we 
have and whose children grow up to take important positions in 
American society.
    But if you look at these historical cycles, you find that 
at certain darker periods in our history, even people who are 
legally here are excluded, and sometimes under color of law. 
The Great Depression comes to mind. So, because of that, I 
think it is very important for people who are members of the 
Latino community and people who are not to be vigilant and 
understand that laws can be used in ways other than the way 
they were intended to be used.
    Chairman Leahy. I understand. I know some of the 
discrimination my Italian grandparents faced when they first 
came to this country, and they were here legally.
    Senator Durbin?

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Mr. Chairman, thank you very much for this 
hearing and your leadership on this issue, and I thank the 
panel.
    I want to just say a word on behalf of Senator Leahy and 
Senator Specter. This is important legislation, and it is long 
overdue. What we have heard in testimony today I think is 
evidence of the fact that the reputation of the United States 
of America is on the line.
    Arthur Schlesinger, Jr., a leading historian, who recently 
passed away, said that the issue of torture has done more 
damage to the reputation of the United States than anything in 
modern history. I am afraid he is right. I think when we look 
at this issue of habeas corpus, it is another sad and troubling 
chapter that has been written by this administration since 9/
11.
    I want to salute Admiral Guter for coming here today and 
particularly for the Judge Advocates General. I cannot recall 
another time in history when this group has played such an 
important role in our national debate. Time and again, men and 
women who have agreed to serve in our military have taken on 
this responsibility and spoken out and reminded us that they, 
too, are very conscious of our need to be safe as a Nation, but 
also to make sure that our conduct in the treatment of our own 
military and prisoners is consistent with our constitutional 
principles. And I thank you for this. You have really been a 
beacon in terms of the statements that you have made and the 
positions that you have taken.
    One can only speculate as to how long it is going to take 
the United States to restore its reputation in the world after 
these last 6 years. It will take some time. And I think that 
the beginning of that restoration will be the passage of the 
legislation which Senator Leahy and Senator Specter will bring 
before us. This seems so fundamental to me. About a year ago, I 
had a chance to visit Guantanamo. How many members of the panel 
have ever been to Guantanamo? Well, half of you, or three of 
five of you have been there. It was my first time. It is a 
Godforsaken place in the middle of the Caribbean, hotter than 
the hinges of hell, where we are holding over 400 prisoners. 
They told me when I went down there that some of the prisoners 
that had been held for up to 4 years had been released with no 
charges after they determined that there was really no reason 
to hold them.
    We know that many of the men who came to this facility were 
brought there as a result of their captors being paid bounties, 
so they came in at least under questionable circumstances, and 
after years, literally years of incarceration--and you have 
seen pictures of that incarceration--some of them were released 
without charges to go home--to go home and tell the story of 
what it was like to be a prisoner of the United States of 
America.
    I think what we are discussing here is so fundamental in 
terms of basic justice that it really has to be done and done 
quickly, to start to restore our reputation.
    Mr. Taft, you were in an unusual position as counsel at the 
State Department to Secretary Powell, who spoke out--
    Mr. Taft. That is right, Senator.
    Senator Durbin. Spoke out, I thought in a very clear way, 
about the suggestions of the White House to deviate from the 
standards of the Geneva Conventions. This was a moment in time 
when Alberto Gonzales was Counsel to the President and was 
suggesting some changes in conformance with the Geneva 
Conventions that we had followed for half a century in the 
United States.
    Can you give us any insight into that debate within the 
administration between Secretary Powell and White House Counsel 
Gonzales on this issue?
    Mr. Taft. Well, Senator, I think that a great deal of what 
went on in that debate has actually been published. The various 
memoranda that went back and forth between Secretary Powell, 
myself, the Department of Justice, and the Counsel to the 
President--now Attorney General Gonzales--they have all been 
actually put in a book, and whether I could add to that with my 
memory now of what is 6 years old, it would be a risky 
business.
    Quite simply I would say that the issue that we had there 
was whether the United States would continue to follow the 
policy of applying the Geneva Conventions to the people that we 
were capturing in the conflict in Afghanistan, whether they--
    Senator Durbin. Can you zero in on the Geneva Conventions 
and their applicability to the detention question, rather than 
the torture question? Torture has been a big issue, but can you 
zero in on what the Geneva Conventions require?
    Mr. Taft. The Geneva Conventions, had we followed them--and 
we were following them. I think it is an important point to 
make. Starting in October, when we went into Afghanistan, we 
were following the Geneva Conventions under the rules of 
engagement that were issued. When you capture a person there, 
you give them an Article 5 Tribunal. You treat them as--
    Senator Durbin. Tell me what that means, Article 5 
Tribunal.
    Mr. Taft. Oh, sorry. What that means is that you do a 
determination as to whether they are a prisoner of war or a 
civilian, basically. And we--
    Senator Durbin. On a timely basis--
    Mr. Taft.--would treat them as prisoners of war regardless 
of whether they were entitled to that.
    Senator Durbin. On a timely basis. Is that correct?
    Mr. Taft. Oh, yes. You do it right there.
    Senator Durbin. And the reason for the timely tribunal, can 
you tell us for the record?
    Mr. Taft. Well, it is because a battlefield is an extremely 
confused area, particularly in an urban environment, which we 
were involved in. And you do it because the evidence is fresh; 
the people who were involved in taking the person into custody 
are right there.
    Senator Durbin. You have a greater possibility of bringing 
together evidence and witnesses to find out whether this person 
is truly an enemy combatant or a threat. Is that why the Geneva 
Convention Article 5 Tribunal is written as it is?
    Mr. Taft. That is correct. I do not want to suggest that 
this is an elaborate procedure. You can conduct a large number 
of these in a very short period of time, and we did that in the 
Iraq conflict, for example. It is usually not that hard to 
figure out whether a person who has just been captured that day 
or the day before, what he is.
    Senator Durbin. And what proportion of the people now held 
in detention at Guantanamo do you believe have had these 
Article 5 Tribunals?
    Mr. Taft. I think formally the Article 5 Tribunals, maybe 
some of them had them, if they were captured before February. I 
do not know specifically. But after that, they would not have 
had them.
    Senator Durbin. I doubt that there were many.
    Mr. Rivkin, you were the only one on the panel to defend 
this, and I want to give you your chance. But having understood 
what Article 5 Tribunals require and why and the fact that very 
few of the detainees in Guantanamo ever had an Article 5 
Tribunal under the Geneva Convention, we are now saying that we 
will take as an alternative the CSRTs, these other tribunals, 
which these tribunals, these trials take place much later, and 
under circumstances which I think you would have to concede 
would prejudice the detainee because they cannot have access to 
classified information, they may not have representation of 
counsel, they may not have access to evidence. We have an 
administration that wanted to deny access of counsel at one 
point, frequent access of counsel to these same detainees.
    So when you reach a conclusion that you feel the current 
system is consistent with Geneva Conventions, how do you 
reconcile the difference between a timely Article 5 Tribunal 
where evidence and witnesses are available with these 
tribunals, which may take place years later with virtually no 
evidence and/or witnesses available for the detainee to call?
    Mr. Rivkin. Senator Durbin, I understand that question. Let 
me say a couple of things here--and, again, we are talking 
about a different issue. Let us agree the judicial review 
procedures we are talking about--
    Senator Durbin. Well, I think this is the starting point.
    Mr. Rivkin. Well, no, I understand. But I just wanted to--
    Senator Durbin. Because, understand, this law that was 
passed removes the right of the trial court to ask the factual 
questions. It goes straight to the circuit court appellate 
level. The fact finders, you have to assume the facts found by 
the CSRTs as your starting point. And if you have a process 
that is so removed from the reality of evidence and witnesses, 
how can it possibly be a just process. So I will let you 
respond. Sorry to interrupt.
    Mr. Rivkin. No, no. You set a high burden and I will try to 
oblige.
    First of all, contrary to a suggestion by my good colleague 
and friend, Mr. Taft, the word ``timely'' does not appear in 
Article 5. Point No. 1.
    Point No. 2, I have actually looked carefully, as best as I 
can given the existing record, at the actual state practice 
under the Geneva Conventions. It turns out there are very few 
state parties that actually hold Article 5 Tribunals. Let us 
keep in mind that an Article 5 Tribunal, Senator Durbin, is not 
something that you do invariably at the front end in every 
capture. The predicate--I do not have it in front of me, but I 
am pretty sure I remember the language. The predicate is ``in 
case of doubt.'' So you do Article 5 hearings in case of doubt.
    To the extent they do have few parties under Geneva who 
have actually held Article 5 Tribunals, you are absolutely 
right, they typically take place pretty close to capture--not 
instantaneously, but sometimes several days or several weeks 
thereafter. Let me submit to you, though, they are enormous 
austere. They are so austere that they make the CSRT process--
that you correctly point out is quite austere compared with our 
civilian trials--look like a king's ransom by comparison.
    For example, the typical Article 5 Tribunals would involve 
several officers sitting in a tent somewhere in the desert and 
sort of eyeballing the defendant. Not only is the person not 
represented by counsel, not represented by any representative, 
like in the case of CSRT, there are no witnesses. There may be 
a linguistic problem. In many senses, an Article 5 Tribunal is 
a kind of a common-sense eyeballing the person: ``Do I believe 
him or not? ''
    So the reason, by the way, we have not had Article 5 
Tribunals being administered in a fashion that is timely is 
because of the unique circumstances of capture. Let me say 
this: If you actually capture somebody on a battlefield and a 
person is out of uniform and claims that he is an innocent 
shepherd and he just happened to be wandering through, and you 
have people who captured him, you may hold an Article 5 
Tribunal there and then. But if the person actually is brought 
to you by somebody else and by the time he gets to your hands, 
it was several weeks later, the notion that you may not give 
him that original austere Article 5 hearing is not unusual.
    So what you gain on the CSRT side, while there is a delay, 
is a great deal more due process than anybody has ever received 
in an Article 5. And that--
    Senator Durbin. You think the CSRTs are a due process 
tribunal?
    Mr. Rivkin. I would say to you that CSRTs provide you a lot 
more due process than a typical Article 5 hearing. Again, you 
have people spending maybe 5 or 10 minutes with a detainee, 
three officers sitting in a tent in the desert; there is no 
effort to assemble information.
    Senator Durbin. The Chair has been very kind in allowing me 
to go beyond my time here, but I just want to say that I would 
struggle with the concept of due process, when I cannot even 
view the evidence against me, when I cannot even conceivably 
call a witness in my own defense, because this tribunal is 
taking place years after I was detained and thousands of miles 
from where the witnesses could be found.
    Mr. Rivkin. But, Senator, with respect--
    Senator Durbin. That is the--no, I am going to finish, and 
then you may say what you like. But that is not consistent with 
any concept of due process, being able to confront the 
witnesses and being able to produce evidence in your own 
defense.
    And I might also add to you that the CSRTs fall short of 
the Article 5 Tribunals in one very important respect: CSRTs 
are not empowered to conclude that a detainee is a POW--the 
precise question that the Article 5 Tribunals must answer. They 
cannot do this because the President has already stated 
categorically none of these detainees are POWs. So they cannot 
even have the same starting point here. And then to add insult 
to constitutional injury here, we remove habeas corpus from 
this whole concept and this whole proceeding, except in the 
most remote circumstances where a circuit court is looking at a 
CSRT finding.
    So I struggle with your conclusion that the CSRTs, as 
currently written, are a better deal for a detainee than an 
Article 5 Tribunal or that they are consistent with the 
constitutional concepts of due process of habeas corpus. I do 
not agree with that. I was one of 34 to vote against it. And I 
am glad that Senator Leahy and others are pushing this forward.
    I welcome any of your comments.
    Mr. Rivkin. Very briefly, my only point, Senator Durbin, 
was that in a typical Article 5 Tribunal, you do not have an 
opportunity to call witnesses; you do not have an opportunity 
to call anybody to assist you. You cannot marshall any 
evidence. Everything in life is a question of comparing two 
different baselines. CSRTs are undoubtedly very deficient 
compared to most civilian trials we are used to, but compared 
with these very austere Article 5 proceedings, you do have a 
considerably greater degree of due process.
    Now, very briefly, you mentioned one excellent point. The 
typical question in an Article 5 hearing is not--I repeat, 
not--are you a civilian? Everybody captured is presumed to be 
at least a POW. So in a typical Article 5 Tribunal, your choice 
is between being held to be an unlawful combatant, in which 
case you have fewer rights, or being a POW. In either instance, 
you get held for the duration of hostilities. In a CSRT, you 
are actually being asked a better question: whether or not you 
are a civilian. If you are a civilian, you get released. And, 
in fact, I have looked at the statistics that get published. On 
28 occasions, CSRTs found individuals to be civilians; those 
individuals were released.
    I do not understand the argument that it is better for you 
to be in a situation of choosing between being a POW and being 
an unlawful enemy combatant when the conclusion is in either 
case you get held for the duration of hostilities, versus the 
other outcome, you are a civilian or an unlawful combatant--
    Senator Durbin. Please excuse us.
    Chairman Leahy. We will have order. We will have order in 
the hearing. The witnesses are entitled to be heard. The 
Senator from Illinois has asked a very valid question, and I--
are you satisfied with the answer?
    Senator Durbin. I am just going to conclude by saying these 
Article 5 Tribunals can also find innocence, which the CSRTs 
cannot. They can decide whether you are an enemy combatant or 
you are not, period. And they are at least--we have tried 
through Army regulations to have these timely tribunals so 
evidence and witnesses are available. It is the American way, 
or at least it was until this administration.
    Thank you, Mr. Chairman.
    Chairman Leahy. I would say to the Senator from Illinois 
that he need not apologize for the extra time he took. We are 
taking probably more time in this hearing than was allowed for 
the debate on this issue when we made what is, in the 
Chairman's view, a colossal mistake in trying to reverse habeas 
corpus to the extent we did.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman, for holding this 
critically important hearing. The current situation is 
untenable. Detainees at Guantanamo who have been held for years 
but have not been tried or even charged with any war crime 
should have a meaningful opportunity to challenge their 
detention in court. This is the core purpose of habeas corpus, 
that the Government should not have the power to detain people 
indefinitely and arbitrarily.
    As a group of retired judges wrote to Congress last year, 
habeas corpus ``safeguards the most hallowed judicial role in 
our constitutional democracy--ensuring that no man is 
imprisoned unlawfully.'' I believe that the Congress' 
elimination of that safeguard last year in the Military 
Commissions Act was a grave error. We must fix that mistake. It 
is that simple.
    To be true to our Nation's proud traditions and principles, 
we must restore the writ of habeas corpus, and we must make it 
clear that we do not permit our Government to pick people up 
off the street, even in U.S. cities, and detain them 
indefinitely without court review. That has never been and must 
never be what America is about.
    Thanks to all the witnesses. Mr. Taft, let me ask you, I am 
a member of the Foreign Relations Committee, and in that regard 
I am concerned about the effect of our detention policies on 
our relationships and credibility overseas. And I would also 
ask Admiral Guter to respond to this. Have Guantanamo Bay, the 
Military Commissions Act, and the denial of habeas corpus 
harmed those relationships and the United States' ability to 
accomplish other objectives worldwide? We will start with Mr. 
Taft.
    Mr. Taft. I would say, Senator Feingold, that there have 
been difficulties about our detention practices in Guantanamo 
Bay, even with our very close allies. With the United Kingdom 
and with Australia, for example, there were very difficult 
negotiations over the terms on which we were holding their 
nationals, as well as with other states whose nationals we were 
holding, particularly our European allies. I think Sweden, 
Denmark, and some other states that had nationals there engaged 
in extremely difficult negotiations that we had to go through 
with them.
    More broadly, I do feel that if the United States were to 
extend the--or put back in place what was there, the right to 
have the lawfulness of the detention determined in a court 
pursuant to habeas corpus proceedings, that would be a very 
welcome step in the rest of the world, and it would, I think--
and as I said in my testimony, the main thing for me would be 
that the detentions that continue--and most of them will 
because most of the people, as far as I can tell, actually 
should be being detained. They would then be being detained 
pursuant to a court order, an impartial determination, or a 
determination by an impartial forum, and after full 
investigation, and that would really, I think, put a stop to 
the idea that we are detaining people with very inadequate 
examination of the basis for holding them.
    Senator Feingold. Thank you, sir.
    Admiral Guter?
    Admiral Guter. Well, I agree with Mr. Taft, and I am not 
sure that I could add too much to it, except to say that it is 
also had the unfortunate effect of having some states that do 
not have the robust respect for democracy and the rule of law 
that we have cite our policies and procedures, and specifically 
Guantanamo, to justify their own actions.
    Senator Feingold. Thank you.
    Some have argued that the D.C. Circuit's review of 
decisions by the Combatant Status Review Tribunals provides 
adequate court review of those who have not been charged with 
any crime, making habeas corpus unnecessary and redundant. And 
I think Senator Durbin was addressing this. I would ask 
Professor Kerr, how do you respond to that assertion?
    Mr. Kerr. Thank you, Senator Feingold. I think it is really 
-the honest answer is that it is too early to tell because we 
do not quite know what the D.C. Circuit is going to do in terms 
of the procedure it is going to use to review the CSRT 
decisions.
    The D.C. Circuit held argument in a case, Bismullah and 
Parhat, just last week in which it was beginning to ponder 
these questions, in particular trying to consider the question 
of what is the record that the D.C. Circuit should use to 
review what the CSRT has done. So without knowing that, it is a 
little premature to answer the question. However, the 
indications are that what the Detainee Treatment Act has done 
are probably not sufficient, for the reason that the Detainee 
Treatment Act does not appear to contemplate the full, sort of 
complete hearing that the habeas writ would allow.
    It is possible that the D.C. Circuit will say, in effect, 
we are going to interpret this law in a way that creates this 
full set of hearings, in which case it really does not matter 
whether the statute is restored or not, because there is the 
same set of rights just at the appellate stage rather than 
district court stage. But at least based on the text of the 
Detainee Treatment Act, that seems unlikely, and it seems that 
the current law would not provide for this adequate and 
effective hearing.
    Senator Feingold. And, Professor Kerr, how do you respond 
to those who argue that if we restore habeas corpus, detainees 
in the United States' custody in Afghanistan or Iraq are going 
to flood the Federal courts with habeas petitions? Is that 
really a concern?
    Mr. Kerr. Whether it is a concern in part depends on how 
you construe the Rasul case. It is unclear under the Rasul case 
whether that case provides a statutory writ to a detainee held 
anywhere or whether it only applies to Guantanamo Bay. Justice 
Scalia's dissent suggests that it applies worldwide. On the 
other hand, there is language in the majority opinion that 
suggests it is really just about Guantanamo Bay. Either way, 
certainly it would be possible to restore the writ just so it 
would be available to Guantanamo Bay. And that is where, 
really, the rationale of Rasul is, I think, at its strongest, 
this notion of Guantanamo Bay being within the territorial 
jurisdiction of the U.S., and, therefore, that there is no 
reason the writ would have to extend beyond Guantanamo Bay.
    Senator Feingold. Thank you.
    Senator Whitehouse?
    Senator Whitehouse. Thank you, Mr. Chairman.
    [Laughter.]
    Senator Feingold. By default only, and now you are the 
Chairman.

 STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Whitehouse. [Presiding.] I would like to just 
followup a little bit on some of the points that Senator 
Feingold was making, in the general category of the example we 
set around the world, which I see as having three potential 
dimensions:
    One is kind of specific reciprocity--``If you are going to 
treat people this way, so can we''--and what it does to our 
ability to argue for better treatment for Americans and others 
who are held without habeas corpus and without other basic 
democratic and civil liberties rights.
    The second is a sort of more general, for want of a better 
word, dumbing down of the basic principles of combat, of civil 
rights, of treatment of detainees around the world, and the 
extent to which our leadership either increases or decreases, I 
guess you might say, the general water level in the world on 
that, raising it or lowering it, and what effect you think this 
has had.
    And the third is the more general force of our image in the 
world, and I come at this with a little bit of a bias. I was a 
Foreign Service kid growing up and traveled quite a lot and got 
a pretty good indoctrination into how important America's image 
in the world is. And it strikes me that when a father or mother 
in some hamlet or village steps out into the morning, the 
biggest force we have at our disposal as America is what their 
aspirations are and how we figure into them. And if in hamlets 
and villages and little dirty high-risk apartment buildings and 
tough neighborhoods around the world those families step out 
into that day and their vision for their children is to have 
them live in a country like America and to have American rights 
and privileges be the type of thing that they aspire to, that 
is a pretty good world for us to live in.
    If, on the other hand, they step out into the world and 
they question whether we really offer anything valuable and 
they are looking elsewhere for their aspirations--to Islamic 
fundamentalism, for instance, but there are many, many 
alternatives--I think something very grievous has been done to 
our capacity and to our force as a Nation.
    I would be interested in your thoughts on those three 
specific levels. Do you think it is sensible to think about it 
in those three ways--the specific reciprocity, the sort of 
general water level of rights, and then the sense of value 
that--I should not say the ``sense of value''--the real value 
that we get as Americans when the sense of our country is a 
favorable one throughout the world?
    Mr. Taft. Senator, let me maybe just try. I can easily 
address the first two points--the reciprocity point and the 
general degradation of protections around the world, but 
perhaps other panelists will have other things to say on it.
    The reason I want to respond is that, in fact, those two 
points were points that we made in the discussion in early 
2002, Secretary Powell and myself, in urging that we adhere to 
the Geneva Conventions and treat the people we were taking into 
custody, in fact, as prisoners of war, give them all of those 
privileges, which we thought would be the best way to proceed. 
And the reasons for that were exactly the same ones that led us 
in the Vietnam conflict to adopt that policy vis-a-vis the Viet 
Cong. Even though they were not entitled to POW status, we gave 
it to them. And the reasons were the treatment of our troops 
when they fall into enemy hands and the reciprocity point that 
you made and also the fact that by raising the standard of 
treatment above what perhaps was legally required, you do raise 
the standard all around the world, and it certainly will help 
not just your own troops if they fall into enemy hands, but 
other countries' troops and other combatants who otherwise 
might be dreadfully abused if taken.
    So both of those points were certainly part of the 
arguments that we were making in proposing to stick with the 
Geneva Conventions at that time and accord POW status to 
everybody.
    Senator Whitehouse. Thank you.
    Mr. Rivkin. Let me try to shed some additional light. You 
are asking good questions. This is a good way of structuring 
the discussion about what is a very complex issue and 
frequently gets simplistic answers. Let me try to slice it this 
way.
    There are some difficult questions here and there are some 
easy ones. The easy one to me is the notion that we somehow are 
going to encourage people, particularly authoritarian and 
dictatorial regimes, to actually treat their prisoners more 
harshly, to torture their prisoners, to detain people without 
any justification. I think, frankly, it is an easy point to 
rebut because these people have been torturing and mistreating 
their citizens for a hell of a long time, in many instances 
long before the United States even was created as an 
independent country. They do not need to be taught by us. Any 
claims to the contrary by them, which typically come from the 
most dictatorial regimes, are a mere justificiation.
    I also, frankly, do not buy the argument that the 
revelations or debates about the finer points of habeas corpus 
play a significant, incremental, delta role in encouraging the 
jihadists to hate us more, because they hate us for so many 
reasons that it is difficult for me to imagine that that is 
really meaningful, especially coming from people who 
themselves--
    Senator Whitehouse. I may not have made my point as 
clearly. Certainly there are people who hate us and the 
jihadists hate us. My point was more the average uninvolved 
person, someone who is waking up in some little village in some 
faraway place, going out to take care of their family and to 
try to work to improve their lives. My proposition is that if 
they aspire to what we represent, if they think that America is 
a wonderful country, then we can make an awful lot of mistakes 
if that is the prevailing view of the world and still come out 
all right.
    If, on the other hand, they are skeptical of our good will, 
they do not aspire to follow our system, then even if we get an 
awful lot of things right, we are still in a very difficult 
position in the world, and how we influence that I think is 
more important than trying to win the hearts and minds of an 
active America-hating jihadi. They need to be treated rather 
differently, I think.
    Mr. Rivkin. You are absolutely right. Again, this is a 
difficult question. I was just merely trying to take off the 
table what I think are easy questions.
    Now, on the question of people who are open-minded, who 
would like to emulate us, allies, et cetera, et cetera, this is 
a genuinely difficult question. I think it would be foolish to 
deny that we have gotten a huge black eye because of the 
totality of our legal policies in the war on terror. It is a 
fact.
    My problem, frankly, is that there are such fundamental 
differences between us and many of our allies on a whole range 
of legal issues--I call it the ``legal architecture of war.'' 
But I just do not buy the notion that if we tweak habeas a 
little bit, if we tweak the CSRTs in a way that some people on 
the panel may like--and even I could probably live with--that 
it will make a meaningful difference. Not to spend too much 
time on it, but I think, unfortunately, the problem with most 
of our allies is they fundamentally are not serious about war 
as an incident of statecraft. They are not interested in a 
traditional law of war architecture. Their preference, and I 
think honestly felt preference, is to use the criminal justice 
paradigm, and anything, Senator Whitehouse, that falls short of 
that paradigm would be utterly objectionable to them. And while 
I do not have the experience of negotiating with Europeans, 
being somewhat of a sucker for punishment, I regularly get on 
BBC and various other European networks, and I can tell you 
from the tenor of questions, nothing--and I mean nothing--short 
of the full-fledged application of criminal justice paradigm 
would satisfy them. And even that is not sufficient because we 
get regularly slammed in instances where we process somebody 
through district court.
    My point is we have to be clear about what it would take to 
have a meaningful difference in the way the world looks at us, 
and it is not, repeat not, getting back to Section 2241. And I 
am not even trying to suggest if it is worth it, but, look, we 
have disagreements with people about what constitutes 
permissible collateral damage. We have disagreements with 
people about many other issues relating to the key legal sinews 
about war, and are we prepared to just change all of that?
    My problem with the Europeans, frankly, is they have never 
been serious about not just being against something, but for 
something. If it were up to me, I would love to 
internationalize Guantanamo. I would love to close Guantanamo 
and move it to some other place where Europeans can work with 
us on both detaining and interrogating--providing due process 
to those people. But in discussions I have had with European 
officials and scholars, they have zero interest in that.
    So all I am trying to say is it is a very difficult and 
very complex problem, and it does not do justice to it to 
suggest if we tweak the system a little bit here we are going 
to get some dramatic results in terms of greater appreciation 
for American reputation.
    Senator Whitehouse. Mr. Chairman, sorry.
    Chairman Leahy. [Presiding.] No. If you have other 
questions, please feel free.
    Senator Whitehouse. No, thank you.
    Chairman Leahy. I do not think what we are talking about is 
tweaking the system. We are talking about a very, very major 
restoration of rights. And I think that when you talk about the 
Europeans, can we find some other place where we can do this, 
the problem is we did not really care much about what their 
opinion was when we got ourselves in this mess to begin with. 
We just went ahead and did it and told Old Europe that they 
could play catch-up ball if they wanted. Not the best way to 
get support. And, frankly, we have to start reintroducing 
America to the rest of the world. We have a great deal to be 
proud of in this country. We have done some wonderful things, 
and I think if we correct some mistakes, then we start the 
reintroducing. But you do not start the reintroducing by saying 
it is our way or no way. And too much of the attitude was that.
    I think of the strong support we had the day after 9/11 
when Le Monde, a newspaper often critical of us, the headlines 
read, ``Today we are all Americans.'' That is not the Le Monde 
you read today.
    I thank you all for being here. If others have questions, 
we will followup with them. I know you have all taken a great 
deal of time. You have expressed your opinions very candidly. 
If any of you want to add further based on either the questions 
or the answers of anybody else, if you want to supplement the 
record, of course, I will keep it open for that.
    We stand in recess.
    [Whereupon, at 11:31 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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 Responses of William H. Taft IV to questions submitted by Senator Kyl


    1. You state in you testimony that ``identifying those 
terrorists we are entitled to detain because they have declared 
war on us is * * * difficult. We should take advantage of the 
court's expertise in performing this task.''

A. Do you believe that the federal judiciary has greater 
    expertise than does the military in determining whether an 
    individual is an enemy combatant?

B. Do you believe that the federal judiciary has a better 
    understanding than does the military of the nature of the 
    Taliban and the Al Qaeda terrorist network and other groups 
    fighting U.S. soldiers in Afghanistan and Iraq?

    2. During questioning by Senator Durbin, Mr. Rivkin stated 
that CSRT hearings give a detainee a great deal more due 
process than does the typical Geneva Convention article V 
hearing. Mr. Rivkin stated that unlike CSRT hearings, Article V 
hearings do not provide the detainee with anyone who is 
assigned to assist him, Article V hearings do not require that 
all information in the government's possession pertaining to 
the detainee be assembled, and Article V hearings do not 
determine whether the detainee is ``innocent'' and should be 
released, but only whether the detainee should be held as an 
unlawful or lawful combatant. Mr. Rivkin also noted that 
Article V hearings offer the detainee no opportunity to present 
witnesses, and that such hearings typically do not take place 
until days or weeks after the capture. Do you have any reason 
to disagree with Mr. Rivkin's characterization of the nature of 
Article V. hearings?

    3. Do you believe that habeas-litigation rights should be 
extended to alien enemy combatants who are captured and held in 
Iraq or Afghanistan?

    4. Do you believe that, as part of CSRT or other military 
hearings to review their detention, enemy combatants held by 
the U.S. military in Iraq or Afghanistan should be:

A. provided with counsel?

B. provided with the right to compel witnesses to testify?

C. provided with a right to access to the contents of 
    classified evidence?

    5. Do you believe that Johnson  v. Eisentrager, 339 U.S. 
763 (1950), was correctly decided?

    Answer 1.A. Yes. The military's determinations have been 
made hastily and, upon review, it has developed that they were 
incorrect in dozens of cases--between five and ten percent of 
the time for persons held in Guantanamo.

    Answer 1.B. No. The military has a better understanding of 
the nature of our enemies in Afghanistan and Iraq than federal 
judges do.

    Answer 2. Mr. Rivkin correctly described the nature of an 
Article V hearing. CSRT hearings are more elaborate and their 
determinations more reliable than Article V hearings. Habeas 
corpus proceedings are more elaborate and their determinations 
more reliable than CSRT hearings.

    Answer 3. No. As I stated in my testimony, if the courts 
were to interpret our statutes to extend habeas corpus 
jurisdiction to aliens in Iraq or Afghanistan, I would support 
legislation to amend the statutory provisions on which the 
courts relied for the conclusion.

    Answer 4. A, B, and C. I would not extend these rights to 
person being held in Iraq or Afghanistan under U.S. law. Our 
forces in Iraq and Afghanistan should comply with Iraq and 
Afghan law in detaining persons in those countries.

    Answer 5. Yes, I believe Eisentrager was correctly decided.

               Response to a question from Senator Biden


    1. In your testimony, you were rightly concerned with the 
importance of demonstrating to the international community the 
legitimacy of the CSRT determinations. In light of that 
concern, would you consider the following procedural safeguards 
to be prudent improvements? Please elaborate as you see fit.

1) Amending 28 U.S.C. Sec. 2241 to grant habeas corpus rights 
    to alien detainees, rather than merely striking from the 
    Military Commissions Act and Detainee Treatment Act the 
    provisions that deny those rights;

2) Allowing alien detainees to invoke habeas rights either 
    after their CSRT status determinations or after having been 
    detained for 60 days without such a determination;

3) Expanding the scope of judicial review the beyond 
    constitutionality of CSRT procedures and the Tribunal's 
    adherence to those procedures.

    Answer I do not believe that the international community 
accepts the legitimacy of the CSRT process. Habeas corpus 
proceedings, on the other hand, are widely recognized as a 
legitimate method of determining whether a person is being 
lawfully held in custody. Amending 28 U.S.C. Sec. 2241 to grant 
habeas corpus rights to alien detainees in Guantanamo or 
striking the provisions of the MCA that eliminated those rights 
would both be effective. I do not believe relating the ability 
of alien detainees in Guantanamo to bring habeas corpus 
petitions to the CSRT process would be desirable.

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