[Congressional Record Volume 153, Number 144 (Wednesday, September 26, 2007)]
[House]
[Pages H10935-H10936]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  OPPOSING EXTENSION OF HABEAS CORPUS RIGHTS TO ALIEN ENEMY COMBATANTS

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from California (Mr. Daniel E. Lungren) is recognized for 5 
minutes.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, today in the 
Judiciary Committee we were supposed to mark up H.R. 2826. I was 
informed that the Judiciary Committee has postponed this to a time 
uncertain. This was also to be the day that that bill or

[[Page H10936]]

a similar bill was to be marked up in the Armed Services Committee. 
That was postponed as well.
  The bill, H.R. 2826, was to deal with an issue that is unprecedented 
and, I would say, unnecessary. And while I am pleased that there was a 
postponement of consideration of the bill today, I would hope that 
those on the other side of the aisle who control the schedule both on 
this floor and in committees would reconsider this bill or any similar 
bill because this bill is an effort to extend habeas corpus rights to 
alien enemy combatants. It is a dramatic departure not only from the 
language of the Detainee Treatment Act, which was passed by this House 
and the Senate and signed by the President, but from longstanding 
principles in our Anglo-American legal tradition. As the United States 
Supreme Court recognized in the Johnson v. Eisentrager case, there is 
``no instance where a court in this or any other country where the writ 
is known issued it on behalf of an alien enemy.''
  What possible reason could we give to the American people and to our 
troops currently involved in combat for giving al Qaeda and Taliban 
detainees rights that have never been given to alien enemy combatants 
in the history of armed conflict? Never. I underscore ``never.''
  Was the Greatest Generation wrong for its failure to accord habeas 
rights to the more than 425,000 enemy combatants held inside the United 
States during World War II? We held well over a million, I believe it 
was over 2 million POWs around the world. But we held 425,000 of them 
in the United States. Imagine if we had granted them the right to 
habeas corpus access to our Federal courts. Not only would it have 
cluttered all of the Federal courts in this land, but it would have had 
judges making decisions on combat issues rather than the Commander in 
Chief and our military as we have always recognized since the founding 
of this Republic.
  In responding to the argument that the writ extends to alien enemy 
combatants, Justice Jackson of the Supreme Court said, ``No decision of 
this court supports such a view. None of the learned commentators on 
our Constitution has ever hinted at it. The practice of every modern 
government is opposed to it.''
  So I want people to understand, Mr. Speaker, that when we are to 
consider this in the Judiciary Committee and the Armed Services 
Committee, we are doing something so fundamentally drastic, so 
different from anything that has ever been done in the history of this 
Nation. We are opening the gates to the full panoply of rights under 
the Federal habeas corpus statute. Complex evidentiary hearings, the 
rules of civil procedure, rules of evidentiary custody are 
understandable in relation to the protection of the constitutional 
rights of Americans where evidence and witnesses are more accessible.
  But are we willing to force our men and women in uniform to cross-
examination, to depositions or to interrogatories as outlined in the 
Federal habeas statute? The availability of the habeas corpus remedy 
may serve the interest of justice with respect to U.S. prisoners; 
however, it is a blunt instrument. As Justice Frankfurter observed in 
McCleskey v. Zant, ``The writ has potentialities for evil as well as 
for good. Abuse of the writ may undermine the orderly administration of 
justice.'' It has no relevance here and presents the prospect of abuse. 
It is for that reason that from time immemorial, habeas relief has not 
been extended to alien enemy combatants captured outside the realm of 
the sovereign.
  We must reject the notion that we can fight the war on terrorism with 
platoons of lawyers. It was stunning to learn that prior to the 
Detainee Treatment Act, some detainee attorneys sought the wholesale 
disruption of interrogations. In a telling revelation, one detainee 
lawyer boasted in public that ``the litigation is brutal. It's huge. We 
have over 100 lawyers now from big and small firms working to represent 
the detainees. Every time an attorney goes down there, it makes it that 
much harder to do what they're doing. You can't run an interrogation 
with attorneys. What are they going to do now that we're getting court 
orders to get more lawyers down there?''
  That is why we changed the law and to have two committees in this 
House now to say we should change it back is irresponsible. We should 
not do this.

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