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37–759 PDF 2007

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

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

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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 

Cue ́llar, 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 Cue ́llar 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

Cue ́llar, 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

Page

IV

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

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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 GovVerDate 0ct 09 2002 09:45 Sep 24, 2007 Jkt 037759 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37759.TXT SJUD1 PsN: CMORC
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ernment. 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 Cue ́llar 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 proVerDate 0ct 09 2002 09:45 Sep 24, 2007 Jkt 037759 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37759.TXT SJUD1 PsN: CMORC
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vides 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 

4

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 

5

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. CUE ́LLAR. 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. 

6

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. 

7

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 voluVerDate 0ct 09 2002 09:45 Sep 24, 2007 Jkt 037759 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37759.TXT SJUD1 PsN: CMORC
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minous 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 Cue ́llar 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 

9

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 CUE ́ LLAR, PROFESSOR, STANFORD LAW SCHOOL, STANFORD, CALIFORNIA 

Mr. CUE ́LLAR. 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 favorVerDate 0ct 09 2002 09:45 Sep 24, 2007 Jkt 037759 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37759.TXT SJUD1 PsN: CMORC
10

able 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. Cue ́llar 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. 

11

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 inadVerDate 0ct 09 2002 09:45 Sep 24, 2007 Jkt 037759 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37759.TXT SJUD1 PsN: CMORC
12

equate 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 

13

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 

14

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. 

15

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 Cue ́llar, 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.’’

16

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. CUE ́LLAR. 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. CUE ́LLAR. 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. CUE ́LLAR. 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? 

17

Mr. CUE ́LLAR. 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 

18

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? 

19

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 

20

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. 

21

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. 

22

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 

23

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. 

24

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. 

25

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 

26

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 fullfledged 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 relatVerDate 0ct 09 2002 09:45 Sep 24, 2007 Jkt 037759 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37759.TXT SJUD1 PsN: CMORC
27

ing 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

50

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. § 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. § 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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37759.132
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37759.133
163


37759.134
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37759.136
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37759.137
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37759.138
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37759.139
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37759.140
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37759.141
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173

Æ


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