[Congressional Record (Bound Edition), Volume 154 (2008), Part 13]
[Extensions of Remarks]
[Page 17925]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          BOUMEDIENE DECISION

                                 ______
                                 

                         HON. ELLEN O. TAUSCHER

                             of california

                    in the house of representatives

                        Thursday, July 31, 2008

  Mrs. TAUSCHER. Madam Speaker, I rise to state my strong concern that 
Congress should not take any steps to curtail the recent Supreme Court 
decision in Boumediene et al., v. Bush. In a 21 July speech, Attorney 
General Michael Mukasey called on Congress to create rules governing 
treatment of detainees' petitions for habeas corpus instead of simply 
following the rules developed as a result of lower court cases. 
Additionally Justice Department officials appearing this week before 
the Armed Services Committee on which I serve have called for Congress 
to step in and help curtail the form of the status review process for 
prisoners. Acting on these requests so soon after the Supreme Court's 
decision and before the Federal district courts have had a chance to 
address them is shortsighted and possibly damaging to the United States 
in the long term.
  As you know in its 5-4 decision, the Supreme Court held that 
detainees who are being held at the U.S. Naval Station in Guantanamo 
Bay, Cuba, are entitled to the habeas corpus privilege under the 
Suspension Clause of the U.S. Constitution, meaning that they can 
appeal the justification for their detention before a court. The Court 
also held that Section 7 of the Military Commissions Act of 2006 which 
limited judicial review of executive determinations of the detainees' 
enemy combatant status, did not provide an adequate and effective 
substitute for habeas corpus and therefore acted as an unconstitutional 
suspension of the writ of habeas.
  The decision itself was limited both in scope. It only applies to 
detainees held at Guantanamo and not elsewhere. The decision also does 
not prevent the administration from detaining suspected terrorists or 
interrogating them. It simply confers upon them the basic right to know 
why they have been detained.
  Letting the Federal courts process pending habeas petitions is the 
right thing to do and demonstrates to the world that we have confidence 
in our American values and the integrity of our legal process. It also 
will make sure that Guantanamo only holds prisoners who are threats to 
the United States and allows us to release those who are innocent.
  Among the matters that the courts must necessarily address is the 
credibility of the Combatant Status Review Tribunals or CSRTs. As you 
know, the CSRTs were created by the Pentagon in response to the 2004 
Hamdi decision to review the determinations of enemy combatant status 
for every detainee at Guantanamo.
  While the CSRTs were not the central concern of Boumediene, the Court 
made a number of critical observations that I hope the lower courts 
will address for the sake of our country's reputation and because of 
the strength of our values.
  The Court found that the procedural protections afforded Guantanamo 
detainees ``fall well short of the procedures and adversarial 
mechanisms that would eliminate the need for habeas corpus review.''
  The court listed additional deficiencies including constraints upon 
the detainee's ability to find and present evidence at the CSRT stage 
to challenge the government's case; the failure to provide a detainee 
with assistance of counsel; limiting the detainee's access to 
government records other than those that are unclassified, potentially 
resulting in a detainee being unaware of critical allegations relied 
upon by the government to order his detention; and the fact that the 
detainee's ability to confront a witnesses may be more theoretical than 
real given the minimal limitations on the admissibility of hearsay 
evidence.
  The court found that there was ``considerable risk of error in the 
tribunal's findings of fact.'' And that ``given that the consequence of 
error may be detention for the duration of hostilities that may last a 
generation or more, this is a risk too serious to ignore.''
  As a Member who is deeply committed to ensuring we have the best 
process to prosecute and hold accountable every terrorist and release 
innocent civilians, I have very little confidence in the CSRT process 
that is currently in place.
  As the Federal courts begin to process the habeas petitions before 
the government, I again urge my colleagues in Congress to not chill the 
process currently underway with the narrow legislative solutions the 
Bush Administration is asking for. I ask that we give our civilian 
legal system the time to address the new circumstances created by the 
Supreme Court and put in place a successful review process that the 
administration has so far failed to do.

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