gavel.jpgThe Senate Judiciary Committee will be holding a hearing this morning, beginning at 10:00 am ET in Dirksen Room 226.  The committee website will be webcasting the hearing, according to the information available on the website.  At this point, it does not look as though C-Span will be broadcasting the hearing, but I will update if I get word otherwise.

The committee has provided a witness list for today's hearing:

Rear Admiral Donald Guter, USN (ret.)
Dean, Duquesne University School of Law
Pittsburgh, PA

William Howard Taft IV
Of Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP
Washington, DC

Mariano-Florentino Cuellar
Professor, Stanford Law School
Stanford, CA

David B. Rivkin, Jr.
Partner, Baker & Hostetler LLP
Washington, DC

Orin Kerr
Professor, George Washington University Law School
Washington, DC

I certainly hope that the webcast link on the committee website will be working, because it is an interesting mix of witnesses this morning and I'm eager to hear what several of them will be pushing on this issue.  I have said this many times before, but it bears repeating:  habeas corpus protections are the only civil right that was deemed so important by our nation's Founders that it was written into the text of the Consitution itself.  It is worth contemplating as we wait for the hearing to start this morning, that habeas was deemed so important for very good reasons, with solid historical foundations:

Here is why: if you are arrested under false or bogus charges, or without any charge whatsoever as reason for your detainment, you have a right to petition a court to ask that the charges against you be detailed and justified under the laws of this country. The state must justify its right to hold you under the law, or you must be set free — they cannot hold you without just cause.

What the Senate is asking is that we simply trust that our government is doing the right thing, and that they are only holding guilty persons in our name, and that the military tribunals who have been holding hearings on detainments will adequately address all constitutional problems when many of these detainees have had difficulties in gaining access to legal counsel, and that all of this being done in the name of the United States should be considered acceptable when we afford one standard of justice to our citizens and a completely different standard of justice to those we deem not worthy of it simply because they are non-citizens held in our legal custody.

It is time that we started living our values as a nation again. Hypocrisy is no foundation on which to build trust and bonds with other nations — and it is those very bonds, which the Bush Administration has so weakened the last few years, which tie us all together more safely with the other free nations of the world. We forget who we are at our nation's peril, and it is well past time for us to wake from this dazed stupor and stand up for the rights for which our ancestors risked their lives, and for which our nation's soldiers have risked theirs in the face of tyranny over all the years since.

We must live up to our values and the rule of law.  Now.

10:02 am ET

SEN. LEAHY is opening the hearing and discussing the need to restore habeas from its hastily passed removal in the Military Commissions Act.  Leahy talks about the MCA being passed before the election in 2006, and as a great stain on the American legal and political landscape moved forward by the same fear that led to internment of the Japanese in WWII.

Leahy now talking briefly about immigration reforms, and the attempt to tie the issue to fear and terrorists — and how the issue of habeas relates to this because a person picked up on American soil would no long have any recourse for habeas.  Discussing a case where a detainee habeas case in Virginia — where that person was picked up on American soil, in American custody, and imprisoned here in the US — wherein the DoJ argued that the detainee had no right to a habeas petition in that situation.  Castigating AG Gonzales for saying that habeas is not contained in the US Constitution — this is profoundly unAmerican and shameful. 

Top legal scholars — including conservatives — agree that this change betrays centuries of legal practice and values on which our nation and other nations of the world have been founded, betrays the human law, and undermines our strength and ability to defend justice.  This action born of fear weakens our nation's standing among the other nations of the world.

SEN. SPECTER:  Thanks Leahy for his work on this issue, in the past and currently as well.  Specter says that it is surprising that it is even necessary to change the statue in light of the Rassul case holding — which made explicit that due process and habeas were statutorily required for those held in Guantanimo.  Discussing particulars of Rasul — and the Lord Mansfield precedent cited therein.  Specter says that he doesn't think it needs to be restored, because it is already there.  Expresses disgust at the 4th Circuit flouting the Supreme Court's precedent — talking about the internal politics of the Supreme Court as potentially playing a part in the Supremes not calling the 4th Cir. on the carpet for their flouting of its authority.  Calls this an extraordinary moment in judicial procedure in this country.

Thus, Congress needs to move now to make crystal clear that this must be upheld.  Specter says that he, candidly, doubts that the President would sign a bill restoring habeas if it landed on his desk, but that Congress must bring this pressure to bear regardless.

Discussing the In Re: Guantanimo Detainee cases, wherein the court reviews the transcript of a hearing for "associating with al qaeda" as a charge.  The detainee had no idea who the person was with whom he was accused of associating, so the detainee had no recourse to defend himself — Specter says that this testimony on this point produced laughter in the courtroom, that it was a joke.  (CHS notes:  Appalling does not even get me started on this…)  You have a proceeding which is devoid of any measure of fundamental fairness, which is contrary to the rule of law and the fundamental considerations of fairness and justice.

SEN. LEAHY:  Witnesses are now sworn in for testimony.

Rear Admiral Donald Guter, USN (ret.):  For me, it is not about what is least required by the law or who can be more patriotic.  This is about what is best for the long-term policy of the US and what is best for our troops and for those who travel overseas from this nation, what is best in gaining the best intelligence, in winning the hearts and minds of people around the world, what policy serves us best in international and humanitarian law.  What standard do we want to be held to in the world — it is not about them, it is about us.  Habeas is the basis for a civilized legal system — it protects us from an unchecked power to hold us indefinitely.  Guantanimo shows us what can happen with an unchecked power.

The US helped to codify habeas in international law after WWII.  And now, it pains me to say, we are leading the charge to destroy it.  It is unnecessary to dismantle habeas to win this war against terror.  We need cooperation with willing allies — we need a strong defense when we are attacked.  But we also need adherence to the rule of law — that gives us the best defense to win the struggle in which we are engaged.

William Howard Taft IV:  It was a mistake for Congress to take away from detainees the right of habeas corpus, and I recommend that Congress restore that right.  The Supreme Court has twice affirmed that detainees may be held in the fight with al qaeda so long as they posed a threat to the security of the US — this is black letter law, but the review only by military tribunals undermines the credibility of the proceedings which make these determinations.  The Guantanimo cases are often fairly straightforward, and judicial review of those such cases should be relatively uncomplicated.  In the event that the court should be presented with a complex case questioning the lawfulness of detention, surely this sort of case should be reviewed.  Says that this should not be a Constitutional question, but a policy one.  The Bush Administration should want the judiciary to endorse the system set up to ascertain whether or not detainees should be held — the system should be beyond reproach.  We should take advantage of the court's expertise in performing this task. 

SEN. LEAHY also adding a letter from Prof. Richard Epstein which was sent to Sen. Specter to the record.

Mariano-Florentino Cuellar:  Our national security today raises many important questions — and this is no exception.  When Congress has in the past suspended any habeas rights, it has done so under very limited circumstances for limited periods of time.  That the MCA would so broadly suspend habeas with no time restriction whatsoever raises grave Constitutional questions.  Congress must address this question, rather than simply leaing it to the courts, because Congress has a concommitent reqponsibility to ensure compliance with and uphold the principles of the Constitution and the rule of law.  The MCA engenders perceptions abroad that the American detainee policy is unlawful, which further erodes support for our actions with nations abroad.  The MCA in its present form has the ability to impact the lives of lawful residents of the US — it allows for the detention of any alien in the US, based on any unfounded or open-ended accusation with no recourse to test such detention via a habeas requirement.  The solution is not to dismiss the threat of harm posed by those who would threaten our safety, but it is to restore the right so that we uphold the principles on which our nation was founded.

David B. Rivkin, Jr.:  Fundamentally, I believe that the MCA procedures are streamlined and essentially fair, and allow for the mounting of a meaningful challenge to any detention to be questioned.  Discusses the Swain v. Pressley decision — and that a substitution of an alternate procedure does not constitute suspension of habeas.  DC Cir. and Supreme Court can make these determinations, and have.  Says that this is the same level of review given to Nazi sabateurs (re: Quirin).  Says that we should look at Art. V Geneva Convention tribunals from WWII offered fewer protections than the Guantanimo detainees are given under the current system.  Doesn't understand why it is a disservice to our legal system why not offering rights that we have under our laws for military detainees is inconsistent with our values. 

Orin Kerr:  An important question is how to characterize Guantanimo — is it inside or outside the US?  This has important ramifications on whether or not the Constitutional habeas provision is applicable or not.  Any remedy which is fashioned must be an alternative collateral remedy which essentially gives them the same rights as they would have under the writ of habeas corpus.  We don't know, frankly, the full extent of the rights that the detainees currently have under the system in place now.  Substantial questions as to how the DC Cir. is going to have to interpret Supreme Court decisions as filtered through the current pending cases.  hen we approach questions in the War on Terror as a balance between security versus liberty — the security implications for restoration of the writ of habeas are actually quite modest.  It is not clear that it makes a substantive difference, what is different is the speed to which teh courts can get to the merits or lack thereof of the detainees claims.  We are talking about a jurisdictional claim that would allow courts to get to the merits of any claim more quicly than they currently can do so.

SEN. LEAHY QUESTIONS:  Asking about the intersection of military and civilian control of detainees.  Kerr responds that the goal initially in Guantanimo was to deny them judicial review of any kind at the beginning — that we have had to engage in reverse engineering since then to get them any legal process whatsoever.  Kerr does not agree with Rivkin, and says that the detainee/CSRT provisions allow for a "black hole" for the detainee wherein there is never any particular finding as to why that person is truly being held.  Leahy says that kerr has argued that the US should take the higher moral and legal ground on this, not just because it is the right thing to do, but because it is the procedure by which we would wish our own citizens would be treated if detained abroad.

Leahy says that this is somewhat like Kafka.  Asks about the detention of lawful permanent residents being detained.  Cuellar says yes, indeed, that this does allow for that — at no point is there provision for the 12 million lawful perm. residents to be provided the protections one thinks about as Constitutional protections, even if picked up here on US soil and held in a US detention facility on US soil.  They can be held "awaiting a determination" for an indefinite period of time.  Leahy makes the point that someone who might unknowingly contribute to a charity that has hidden ties to some group that has potential ties to terrorism, they could be held indefinitely where there is no real connection other than a charity donation with no ill intent.  Now discussing that the Latino community has substantial concerns.

SEN. DURBIN QUESTIONS:  Thanking Leahy and Specter for their work on this, and how important this legislation is.  Issue of torture has done mroe damage to the reputation of the US than anything in modern history, said Arthur Schlesinger, Jr. — Durbin says that he is afraid that he is right.  Durbing thanking the JAG corps attorneys — reminded us that they are conscious of the need for security, but that our conduct in our treatment of prisoners of this nation must be consistent with our principles and the rule of law.   Talking about Guantanimo, conditions there — Durbin says that a number of the prisoners who had been held there for years had been released with no charges being filed against them, that a number of the prisoners had been turned over to our custody after others had been paid a bounty to deliver them.  Asks Taft about being counsel to Sec. Powell at State, and where Powell spoke out about the changes that the Administration was proposing.  Can you give us any insight into the debate in the Administration between Powell and Gonzales?

Taft says that a great deal of the debate has already been published — various memoranda have been made public and put in a book for reading.  Quite simply, the issue was whether the US would continue to follow the policy of applying the Geneva Conventions to the detainees.  Geneva requires — and we were following those rules of engagement in October after we first went into Afghanistan — that you treat them as prisoners of war, on a timely basis, with a tribunal that is timely because the battlefield is an extremely confusing area and you want to get the evidence and witnesses while their memories of the particular detainee are still fresh.  It is usually not that hard to determine whether a person who has just been captured is or is not lawfully detained.  After February, this was changed due to Bush Administration policy decisions.  (CHS notes:  which pretty much gives lie to the "we never did this for detainee" bullshit talking point, doesn't it?  Our first response was to follow our prior precedent of following Geneva Convention procedures, and the Bush Administraiton came up with a justification to walk away from everything we had worked so hard to establish as an international standard in the wake of WWII.)

Durbin now questioning Rivkin how taking away habeas protection can possibly be consistent with our national values on fundamental fairness, living up to treaty obligations and upholding the rule of law.  Rivkin is now parsing the direct language of the Geneva Conventions in support of his position stated earlier.  Durbin lets Rivkin have it for the CSRT being considered full due process — and Rivkin responds that it is a matter of comparing baselines and that the typical battlefield hearing has even fewer protections than the CSRT proceedings, and thus in his mind the CSRTs are better.

SEN. FEINGOLD QUESTIONS:  The current situation is untenable.  Detainees in Guantanimo have been held for years without being charged with any crime — the government should not have the power to hold people indefinitely without some lawful charge being filed.  References letter from a number of retired federal judges to Congress saying just that.  Asks Taft about the effect of our detention policy on our relationships overseas — and asks Ret. Adm. Guter about the effects of this on our military.  Taft says that there have been very difficult negotiations on our detention of allied nationals (Australia, Britain, Sweden, Denmark, etc.).  More broadly, if the US were to put back in place what was there, to have courts determine legitimacy of detention — that would be a very welcome step toward the rest of the world.  Most of the detentions would likely continue — but a court order, a determination made by an impartial forum after a full investigation, would put a stop to the question that we are holding people with an inadequate basis of doing so.  Guter says that this has had some rogue states use our own actions as justification for ignoring the rule of law and to mistreat their own prisoners.  (CHS:  Shameful — and ought to be so for everyone.  Jeebus, we are so much better than this.)  Feingold asks if the federal courts will be flooded with petitions — Kerr says that it depends on how you interpret the Rassul case, but that he doubts that it would, and that restoring the writ to just Guantanimo would take care of that concern altogether.

11:17 am ET

SEN. WHITEHOUSE QUESTIONS:  Wants to follow up on points that Feingold was making.  Discussion of the American image in the world — talks about his growing up as a foreign service kid, and how important that the image of the US and upholding our values and what the aspirations of others in the world are and how we figure into them.  And the damage done by not living up to the values upon which we were founded.  Taft says that by raising the standard by which we treat our prisoners, we have the ability to raise the standard around the world for other nation's treatment of prisoners — including possibly treatment of our military servicepeople or intelligence officers or diplomatic personnel or even citizens travelling in other nations.  Rivkin does not find this to be valuable, because he does not believe that the "jihadis" will treat us badly whenever they get their hands on us and have mistreated their citizenry regardless.  There are such fundamental differences between US and allies on the "fundamental architecture of war" and that he thinks the allies are not serious about war as statecraft — their preference is to use the criminal justice paradigm (talking about this in terms of what he has learned from discussing these issues on BBC talk shows and other such interaction with European scholars on this). 

SEN. LEAHY COMMENTS:  Talking about Bush Administration not caring about what our allies wanted when we got into this mess to begin with — and that telling "Old Europe" how things would be done without caring about its impact on their support for us was short-sighted.  THrowing away that world support after the attack on 9/11 for a "our way or no way" set of policies was wrong. 

Hearing is recessed.  Record will be kept open for additional questions and/or responses. 

11:31 am ET.

UPDATE:  Prof. Kerr had an update at Volkh that I wanted to note for the record — and this is why I prefer livebogging from C-Span where I can immediately see the face of the person talking rather than trying to guess from a livestream voice.  SIGH  Anyway, I'll let the correction speak for itself:

"Over at Firedoglake, Christy Hardin Smith summarizes today's Senate Judiciary Committee hearing on habeas corpus. (One correction, though: Senator Leahy's questions after my testimony were asked to and answered by either Guter or Taft — I don't remember which — rather than me.) The written testimony of each of the various witnesses is now available here."

If I can catch a replay of the testimony somewhere, I'll try to ascertain which of the two it was.  I don't think that it was Taft — but then again, I was already wrong once on this, so hopefully I can find out if and when a transcript becomes available.