Monday, September 25, 2006

Senator Specter on Legal Process for Detainees

Commentary at Bottom as late as Sept 25

I noted the occurrence of Senator Specter's speech on Thursday, here (at "UPDATE @ 16:30") and here (also at "UPDATE @ 16:30"). The Congressional Record of that speech is now available. Some excerpts, starting at page S9767 of the Senate's Congressional Record ...


... There have been extended discussions about these bills in terms of compliance with the Geneva Conventions, whether classified information may be used, whether hearsay is appropriate, whether coerced confessions can be used. But there has been relatively little attention--almost none--on the fact that both of these bills eliminate the writ of habeas corpus review.

Had this prohibition been in effect earlier, the case of Hamdan v. Rumsfeld, decided in June of this year, might not have been decided. As a matter of law, it is my legal judgment that Congress cannot act to delete the remedy of habeas corpus because the Constitution provides, as follows: Article I, section 9, clause 2:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Now, we do not have a rebellion and we do not have an invasion. Those are the two circumstances under which the writ of habeas corpus may be suspended. Since neither is present and the Constitution cannot be altered by statute, the pending legislation may be unconstitutional.

As a matter of public policy, the writ of habeas corpus is also established as a statutory base in Title 28, United States Code, section 2241. In the case of Rasul v. Bush, in 2004, the U.S. Supreme Court ruled that the detainees at Guantanamo Bay have a right to file petitions for habeas corpus so that a Federal court may review the evidence which justifies their continued detention. ...

If you take a look at the pending legislation, it is obvious that the enemy combatants who are detained have virtually no rights, very few procedures applicable to them compared to those who may be charged with serious war crimes. And it would, indeed, be anomalous to have greater procedural protection for someone charged with a war crime, where the evidence is present to justify that charge, contrasted with a detainee, where, as the practice has evolved, there is very little information, let alone the absence of evidence, very little data, to warrant detention.

Senator Specter is saying that it's good that SCOTUS had an opportunity to hear Hamdan, that is, to have the case of the prisoner brought before it. And that if the provisions of habeas corpus review are eliminated, then prisoner Hamdan might not have been able to bring his case before any but the executive's court. Some say that's would be a good thing, in the back of my mind I'm thinking "President Hillary!", exclamation point being part of her moniker, not an expression of my surprise.

He also says, and this may be a point of argument, that we are not under invasion. I happen to agree, we are not under invasion. But I am sure that some people will use the phrase "invasion" as easily as they use the term "treason" (to describe any conduct that tends to undermine the administration's efforts - for example, my piece that accuses the administration); or the term "war." Fine for casual conversation, but I think Senator Specter's speech is away from the "casual" end of the rhetoric spectrum. The country is not under invasion.

He then points out that the power of the courts to issue writs of habeas corpus are also properly limited by statute. That is, Specter's opponent in this argument can correctly say the writ is not suspended, as closing the courts might happen during internal rebellion or invasion, rather that access to the writ is subjected to a reasonable set of limitations. This argument was held over Section 1005 of the Detainee Treatment Act, which is a revision to the habeas statute 18 USC 2241) made by Graham's amendment 2524, passed on November 15, 2005 in reaction to the Supreme Court's Rasul decision. There are many links in this set of posts that track parts of Hamdan's case, in case you want to visit that argument.

And this argument is going to be held again, signals Senator Specter, as the primary objection that Senator Specter raised in his speech is the proposed further modification to 28 USC 2241 that is embodied in each of the proposed packages of legislation.

With regard to the schedule for taking up the proposed legislation, be it the administration's S.3861 - Bringing Terrorists to Justice Act of 2006 or S.3886 - Terrorist Tracking, Identification, and Prosecution Act of 2006; or Warner/McCain's S.3901 - Military Commissions Act of 2006, Senator Specter said that he and Senator Leahy have asked for the legislation to be referred to the Judiciary Committee.

Senator Leahy and I have asked for a sequential referral to the Judiciary Committee from the Armed Services Committee because our Judiciary Committee has jurisdiction over habeas corpus and other provisions of the legislation which I have cited. ...

As I have noted, the request has been made for referral to the Judiciary Committee. There are some difficult procedural steps to get that sequential referral. I am, frankly, not optimistic it will occur. The scheduling of the floor action on these bills is uncertain at this time, depending on whether an agreement is worked out. ...

When it comes to the issue of habeas corpus, I think both the administration's bill and the bill passed out of committee, with the endorsement of Senators Warner, McCain, and Graham eliminating habeas corpus is inappropriate. Depending on when the bill comes to the floor, there may be an opportunity for the Judiciary Committee to hold a hearing and to have an analysis of the constitutional limitation on suspending habeas corpus and the public policy interests that are involved.

I, Senators Leahy, Levin, and others will be circulating a ``Dear Colleague'' letter advising that we intend to offer an amendment if these bills come to the floor with the denial of habeas corpus in them.

If he doesn't get the referral (he figures he won't), it appears he intends to belay agreement to take a bill up until he has at least an opportunity to schedule and hold a hearing.

Given the habeas corpus issue, in combination with other substantial issues in these proposals, I seriously doubt that Congress will pass the administration's proposed bill (S.3886) or a negotiated substitute, before the reelection campaign recess. There are simply too many substantial issues:

  • Removing the right of detainees to challenge their detention. Nearly all legislators agree with revising 28 USC 2241, the statute that circumscribes the limits of the courts' power to issue writs of habeas corpus
  • Definition of acceptable interrogation practices to avoid breaching common Article 3. The administration proposal limits the interrogation techniques by referencing 18 USC 2340 and 18 USC 113 (this issue appears to be settled in the administration's favor)
  • The rules of military trial, including the use of classified information, the admissibility of evidence obtained via harsh interrogation (it's one thing to use this evidence to stop an attack, it's another to rely on [only] this type of evidence to obtain a conviction), etc.
  • Revision to FISA to "resolve" questions of constitutionality of the NSA terrorist surveillance program
Mr. DURBIN. First, I thank my colleague for coming to the floor. I heard him open his remarks while I was in my office, and I salute him. I don't think many colleagues are aware of the seriousness of the habeas corpus provision that is in the detainee bill coming out of the Armed Services Committee. I ask my colleague--and I only caught part of his remarks--are you going to ask that this bill be referred to our Senate Judiciary Committee for hearings on this question of habeas corpus?

Mr. SPECTER. Mr. President, in response to the question of the Senator from Illinois, Senator Leahy and I have signed a letter to the majority leader, Senator Frist, and the Democratic leader, Senator Reid, asking for sequential referral. ...

The Judiciary Committee has jurisdiction over the constitutional issue. In fact, as to the pending legislation, the Judiciary Committee has jurisdiction over Common Article 3, and the committee also has jurisdiction over changes to the war crimes.

We have submitted to the Armed Services Committee a sequence of war crimes which have been included in the bill. Regrettably, we didn't have enough time for committee action. Although, as the Senator from Illinois may recollect, I advised the committee of what we were doing and circulated early drafts so people could be in a position to comment. I think it is important that Congress move ahead to comply with Hamdan. Also, we ought to do it right. It requires some analysis. We can do it in a relatively short timeframe. Provided we focus on it and have hearings, it is going to require Senators to become acquainted with what is going on.

The fact is, Congress has been derelict in its duty in providing rules for military commissions, and it is our responsibility under article I, section 8. The Senator from Illinois and I filed legislation shortly after 9/11, 2001, to accomplish that, as did other Senators. [Bills were offered in 2001, 2002, 2003, 2004, 2005 and now in 2006] The Congress did not act because this issue has been too hot to handle, too complicated, too dicey. It is not to the credit of the Congress, which sat back and did nothing.

... Mr. SPECTER. Mr. President, one concluding statement. A group of attorneys who came to see me on this issue have been representing detainees. They produced summaries of proceedings before this body. It is shocking as to how little information there is in these proceedings under the CSRTs. I am trying to find out now if the information I have is not classified and present it in detail to Senators and to Members of the House so you can see how little information there is and how explanations are made and how people are detained without any basis, and on what appears to be a situation where there is no danger.

To the credit of the officials in Guantanamo, many have been released. But that is not sufficient. The detention of an individual under our laws is to be made by a court. When challenged, that requires a habeas corpus proceeding.

The Associated Press is catching on to the ramifications of the material disclosed in Senator Specter's speech. Hat tip to HowAppealing.Com for the lead.

Democrats Sit Out Detainee Debate

One result of the political maneuvering is that at least one major issue has been omitted from congressional debate. The president's proposal would allow suspects to be held indefinitely without "habeas corpus," the right to protest one's detention in court.

Under the president's plan and agreed to by McCain and other GOP senators, only detainees selected by the Pentagon for prosecution are granted legal counsel and a day in court.

"If this legislation passes, people like Khaled Sheik Mohammed will get a full trial, while hundreds of detainees who are not charged with any crime will be denied even a hearing to test whether there is any basis to hold them," said Joshua Colangelo-Bryan, a human rights lawyer.

"This is truly a bizarre result considering that ... the military does not even accuse a majority of the detainees of any involvement in violence," Colangelo-Bryan said.

Sen. Carl Levin of Michigan, top Democrat on the Senate Armed Services Committee, said he wants to amend the habeas corpus provision but his office declined to provide details. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, asked leadership Wednesday to allow his panel to review it.

UPDATE @ Sept 21

The Senate Committee on the Judiciary has scheduled a hearing on "Examining Proposals to Limit Guantanamo Detainees' Access to Habeas Corpus Review" for Monday, September 25, 2006 at 10:30 a.m. in Room 226 of the Senate Dirksen Office Building.

UPDATE @ Sept 24

Senator Specter on CNN Late Edition (scroll down - it's there)

KING [the host]: ... Does the deal, as it now stands, give terror suspects a fair trial?

SPECTER: Most of it is a big improvement. I think Senator McCain, Senator Warner and Senator Graham did a good job in preserving the Geneva Convention -- indispensable that those standards be maintained.

They did a good job, too, on having classified information made available to the defendant on a reasonable basis.

But there's one part that I vigorously disagree with, and that is taking away the jurisdiction of the federal courts on what we call habeas corpus, which is the great writ that goes all the way back to 1215.

And tomorrow, the Judiciary Committee, at 9:30, is going to have hearings on that point.

KING: What's wrong with it, Senator?

SPECTER: Well, what is wrong with it is that the federal courts have been the only instrumentality to deal with the problem. Congress has a constitutional responsibility to deal with it, and Congress punts it. It was too hot to handle.

And in June of 2005, the Supreme Court came down with three opinions; last June, another opinion. And the federal courts just have to be open.

This legislation is very complicated. As a matter of fact, so far, there have been many conflicting reports about what the legislation does.

And the courts have traditionally been open to make sure that individual rights are protected. And that is fundamental.

And the Constitution says when you can suspend the writ of habeas corpus, in time of rebellion or invasion. And we don't have either. So that has to be changed, in my opinion.

Totally different subject, and this caught me off guard -- you can tell I haven't been doing my reading on details of proposals to modify the FISA statute ...

SPECTER: ... We've also added considerable resources to the NSA, and we are now going to be able to have individualized warrants for calls originating in the United States. And we're also opening up the foreign intelligence surveillance appellate court to make it public with a mandate that the case goes to the Supreme Court of the United States.

"Talk amongst yourselves."

UPDATE @ Sept 25


The Senate Committee on the Judiciary has scheduled a hearing on "Examining Proposals to Limit Guantanamo Detainees' Access to Habeas Corpus Review" for Monday, September 25, 2006 at 10:30 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.

As of 10:04 AM, the hearing isn't on C-SPAN, C-SPAN2, C-SPAN3, or C-SPAN Radio.

10:21 AM - Found it ..., just in time for the first witness. I should read the bold print at the Judiciary Committee announcement.

Sounds as though most witnesses have written statements, which will be part of the record. Rear Admiral John D. Hutson, Ret. agrees with Senator Specter's general take, and goes a bit farther. Most of the witnesses will, the list seems to be cherry-picked. I'm more interested in comments from Senators other than Specter, e.g., Senator Cornyn, and in any back-and-forth.

Thomas P. Sullivan rebuts opening comments of Cornyn (I missed Cornyn's comments), primarily by saying the question is whether or not the detainees are in fact enemy combatants. They were not "taken from the battlefield," contrary to common belief. He asks Cornyn to read pages 3 through 7 in his written submission, and if that comports with "due process," then he (Cornyn) should by all means vote for the bill. His oral remarks deviate completely from his written material.

The audience issues applause at the conclusion of Sullivan's remarks, and Senator Specter admonishes the gathering.

Bruce Fein speaking at 10:35 -- I disregard his testimony out of hand, based on my opinion of him based on a review of his testimony relating to immigration. He might be right on this issue, but his testimony carries no weight with me.

10:46 - Lieutenant Commander Charles Swift has concluded his testimony.

10:51 - Rivkin's oral delivery was hard to follow. He supports the proposed legislation.

10:52 - Mr. Bradford Berenson begins his testimony. He says the habeas decision in the proposed bill is basically a policy choice, and not a Constitutional issue. I agree, Congress is not deciding to "suspend habeas corpus" in the constitutional sense, which I take as imposing a "global" suspension. He points to the Supreme Court's Eisentrager and Rasul decisions. Whatever is going on in DTA Sec.1005 is not a "suspension."

10:58 - Senator Specter is challenging Berenson's "this isn't a constitutional issue" on the basis of whether of not an invasion is going on, today.

Specter asks Rivkin how he squares his previous opinion of the DTA (against) with his testimony today? Rivkin says he was answering two different questions, the first where all judicial review was stripped. [I hope there is a transcript of the entire hearing at some point, my note taking skills are not very good - prone to error, etc.]

Decent back and forth. Berenson starts "if I was captured bearing arms ...", which is the very testimonial evidence that is missing. The "bearing arms" circumstance is absent from some (a significant fraction) of the detainees.

11:07 Senator Leahy starts his turn at the witnesses. Cites what is probably an anomalous case, the Canadian who was deported to Syria (name escapes my mind).

11:15 - Senator Cornyn says the testimony of anybody who would compare Gitmo with Auschwitz is suspect. He asks Berenson to confirm that the scope of appellate review in the proposed revision to the DTA (the pending legislation) comports with the Constitution. I think this is a different question from having initial access to a habeas writ. He goes on to ask about the legal workload caused by existing habeas cases. Berenson says it is huge. He goes on to say that giving rights to detainees is similar to giving rights to people who have suffered collateral damage in a war zone. Huh? They aren't detained! And the ones who are detained form the battlefield, who are captured directly by US military, are clearly POW-like. No issue with those, I don't think, and a heavy workload can be caused by making tons of unlawful arrests.

11:24 - Senator Cornyn revisits the DTA of 2005, and says that the new language here is intended to clarify what was passed in November/December last year. Senator Specter back to ask questions. Only three Senators in the hearing?

11:30 - Senator Cornyn adds material to the record that shows mistaken releases, where the released people returned to the battlefield against the US; and other material that justifies status quo.

11:34 - Sullivan says again that this is legislation of momentous import, and he predicts that in the future, a decision to suspend habeas for all the Gitmo detainees will eventually result in an apology similar to what was delivered in the wake of internment of Japanese aliens in WWII, because a number of them are in fact innocent. In any event, he says, the matter deserves more discussion than it will get if it is passed this week.

Senator Specter admonishes the members of the audience who are advocating his position in a disrespectful fashion, and says he will ignore them.

11:37 - hearing concluded.

Testimony of Rear Admiral John Hutson, Ret.
Testimony of Thomas P. Sullivan
Testimony of Bruce Fein
Testimony of Lieutenant Commander Charles Swift
Testimony of David Rivkin
Testimony of Bradford Berenson

Statement of Senator Leahy

Senator Cornyn followed up with a speech from the floor of the Senate. His speech was about 20 minutes long and concluded at about 17:10.

Senator Specter's apparent insistence on visiting the habeas issue is getting more and more ink. His restatement on a Sunday shout show resulted in some press, and reporters following the hearing this morning are adding to the volume.

Jurist: Judiciary Committee leaders put brakes on military commissions bill ... The proposed Military Commissions Act of 2006, however, deprives the courts of habeas jurisdiction over detained alien enemy combatants, giving judicial recourse only to those actually charged by military commissions. "If the courts are not open to decide constitutional issues," Specter said today, "how is constitutionality going to be tested?"

The summary in Jurist cites a New York Times article, Senate Panel Debates Bill on Treatment of Detainees, and separately, the AP report Detainee Legislation Deal Draws Protests states that "[Former diplomats, lawyers and a GOP committee chairman] oppose a provision that would strip federal courts of jurisdiction over cases in which detainees have not been charged with war crimes."

The AP story says that the White House doesn't see the difference of opinion as a deal breaker, but it isn't clear if that is because they are willing to negotiate on the issue, or if they believe that so few Senators will object to the habeas revisions, therefore posing no threat to passage of the bill. As always, the statutory language and votes will "tell the story" of which side prevailed.

UPDATE @ Sep 26

This report hints that the habeas provision will comport with the administration's version, because Senator Specter lacks the horsepower to derail the provision.

Detainee Measure to Have Fewer Restrictions
By R. Jeffrey Smith - Washington Post Staff Writer
Tuesday, September 26, 2006; Page A01

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) yesterday assailed the provision as an unconstitutional suspension of habeas corpus, which he said was allowable only "in time of rebellion or in time of invasion. And neither is present here." ...

Congressional sources said Specter is unlikely to derail the compromise legislation over those objections.

The primary subject of the above quoted article is not the habeas issue, however. The story is mostly about revising the definition of who is a proper subject of military trial. The definition in the statute proposed in the Senate on Friday appears in Section 103 of S.3929. The article asserts that the definition will be broadened from " alien unlawful enemy combatants engaged in hostilities," to "[anybody who] has engaged in hostilities or who has purposefully and materially supported hostilities against the United States." The article misconstrues the breadth of the personal jurisdiction of these military tribunals to include non-aliens.

House Report 109-664, issued on September 15, reissued as amended on the 25th (I don't know the details of report amendment) has the following in the comments:


The committee notes that the most significant definition here is that of `unlawful enemy combatants,' which identifies those alien enemy combatants subject to prosecution by military commissions. This definition, which is similar to the definition employed in the context of Combatant Status Review Tribunals, is broader in that it includes not only al Qaeda members, but also those who are part of or associated with any force or organization (including an international terrorist organization) engaged in hostilities against the United States in violation of the laws of war. The committee does not believe that the United States must be engaged in armed conflict to try an alien unlawful enemy combatant engaged in hostilities against the United States. At the same time, the definition would expressly exclude those who abide by the laws of war, such as members of legitimate armed forces, as well as non-combatants under the Geneva Conventions. ...


This section would authorize use of military commissions created under this chapter to only those individuals who are alien unlawful enemy combatants.

And this in the statutory text ...

Sec. 948a. Definitions

      In this chapter:

            (1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful 
enemy combatant' means an individual determined by or under the 
authority of the President or the Secretary of Defense--

                  (i) to be part of or affiliated with a force or 
organization (including al Qaeda, the Taliban, any international 
terrorist organization, or associated forces) that is engaged in 
hostilities against the United States or its co-belligerents in 
violation of the law of war;

                  (ii) to have committed a hostile act in aid of 
such a force or organization so engaged; or

                  (iii) to have supported hostilities in aid of 
such a force or organization so engaged.

            (B) Such term includes any individual determined by a 
Combatant Status Review Tribunal before the date of the enactment 
of the Military Commissions Act of 2006 to have been properly 
detained as an enemy combatant.

            (C) Such term does not include any alien determined 
by the President or the Secretary of Defense (whether on an 
individualized or collective basis), or by any competent tribunal 
established under their authority, to be--

                  (i) a lawful enemy combatant (including a 
prisoner of war); or

                  (ii) a protected person whose trial by a 
military commission under this chapter would be inconsistent with 
Articles 64 through 76 of the Geneva Convention Relative to the 
Protection of Civilian Persons in Time of War of August 12, 1949.

            (D) For purposes of subparagraph (C)(ii), the term 
`protected person' refers to the category of persons described in 
Article 4 of the Geneva Convention Relative to the Protection of 
Civilian Persons in Time of War of August 12, 1949.

Sec. 948c. Persons subject to military commissions

      Any alien unlawful enemy combatant is subject to trial by 
military commission under this chapter.
As I watch this debate unfold, I am struck at the similarity between this debate, and the debate over the nomination of Harriett Miers to sit on the Supreme Court. On one side, if you trust -this- president, then the proposed legislation is good, there is no need to look farther.

If one dares to probe or question the effect of the proposed legislation, then one is suspected of being being deranged, harboring paranoia over -this- president, or being "soft on terror," or prospectively blamed for future terrorism, "your fault when we get hit again," or met with a different form of diversion that is not on the substance of the proposed legislation.

You want to be safe, don't you? Then stay in your house and stay away from the bathtub. I sense the same sort of disconnect going on with the debate over military tribunals. And that observation is not directed just at the administration - the opponents of the administration's proposals are also engaging in misdirection, oversimplification, and other forms of obfuscation.


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