Judiciary Panel Considers Provisions
Limiting Habeas Corpus In Military Tribunal Bill;
Leahy Urges Against Rubberstamping Controversial Measure
WASHINGTON (Monday, Sept. 25) -- Below is the statement of Senator
Patrick Leahy, (D-Vt.), from today’s Judiciary Committee hearing on the
provisions included in the latest military tribunal bill to limit
Guantanamo detainees’ access to habeas corpus review, a cornerstone of
America’s legal and constitutional system. At the hearing, Leahy
highlighted the historic consequences of such measures, and urged
Congress not to rush through consideration of these sweeping and
profound proposals.
“Today, we are belatedly addressing the single most consequential
provision of this much-discussed bill, a provision that can be found
buried on page 81 of the proposed bill. This provision would perpetuate
the indefinite detention of hundreds of individuals against whom the
Government has brought no charges and presented no evidence, without any
recourse to justice whatsoever. That is un-American, and it is contrary
to American interests,” Leahy said at the hearing.
Also, Leahy, the ranking Democratic member
of the panel, sent a letter to Attorney General Alberto Gonzales
inquiring about the 2002 rendition of Maher Arar, a Canadian and Syrian
citizen, from the United States to Syria. While held for 10 months in
Syria Arar was tortured. A Canadian commission recently concluded that
Arar was falsely labeled as a threat by Canadian officials and that U.S.
officials placed Mr. Arar on the terrorist watch list unnecessarily.
The text of Leahy’s letter is below. A
pdf version is
available.
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Statement of Senator
Patrick Leahy,
Ranking Member,
Judiciary Committee
Hearing on “Examining
Proposals to Limit Guantanamo Detainees’ Access to Habeas Corpus Review,
September 25, 2006
I
commend the Chairman for holding this hearing today on the provisions in
the proposed military commissions bill that would eliminate for
detainees the writ of habeas corpus, a cornerstone of our legal and
constitutional system. I wish this hearing could have taken place at a
time when more Senators could attend and when witnesses, Senators, and
staffs could have had time to prepare. This issue carries serious
consequences and deserves to be considered carefully.
For
weeks now, politicians and the media have breathlessly debated the fine
points and political implications of the so-called “compromise” on
proposed trial procedures for suspected terrorists. In doing so, we
have ignored a central and more sweeping issue. Important as the rules
for military commissions are, they will apply to only a few cases. The
Administration has charged a total of 10 people in the nearly five years
since the President declared his intention to use military commissions,
and it recently announced plans to charge 14 additional men. But for
the vast majority of the almost 500 prisoners at Guantanamo, the
Administration’s position remains as stated by Secretary Donald Rumsfeld
three years ago: It has no interest in trying them.
Today we are belatedly addressing the single most consequential
provision of this much-discussed bill, a provision that can be found
buried on page 81 of the proposed bill. This provision would perpetuate
the indefinite detention of hundreds of individuals against whom the
Government has brought no charges and presented no evidence, without any
recourse to justice whatsoever. That is un-American, and it is contrary
to American interests.
Going forward, the bill departs even more radically from our most
fundamental values. It would permit the President to detain
indefinitely – even for life – any alien, whether in the United States
or abroad, whether a foreign resident or a lawful permanent resident,
without any meaningful opportunity for the alien to challenge his
detention. The Administration would not even need to assert, much less
prove, that the alien was an enemy combatant; it would suffice that the
alien was “awaiting [a] determination” on that issue. In other words,
the bill would tell the millions of legal immigrants living in America,
participating in American families, working for American businesses, and
paying American taxes, that our Government may at any minute pick them
up and detain them indefinitely without charge, and without any access
to the courts or even to military tribunals, unless and until the
Government determines that they are
not enemy combatants.
Detained indefinitely, and unaccountably,
until proven innocent. Like Canadian citizen Maher Arar. As the
Canadian Government recently concluded in a detailed and candid report,
there is no evidence that Mr. Arar ever committed a crime or posed a
threat to U.S. or Canadian security. Yet, while returning home to
Canada from a family vacation, he was detained, interrogated, and then
shipped off to a torture cell in Syria by the Bush-Cheney
Administration While the Canadian Government has now documented that
the wrong thing was done to the wrong man, the Bush-Cheney
Administration has, as usual, evaded all accountability by hiding behind
a purported state secrets privilege.
The
Administration’s defenders would like to believe that Mr. Arar’s case is
an isolated blunder, but it is not. Numerous press accounts have quoted
Administration officials who believe that a significant percentage of
those detained at Guantanamo have no connection to terrorism. In other
words, we have been holding for several years, and intend to hold
indefinitely without trial or any recourse to justice, a substantial
number of innocent people who were picked up by mistake in the fog of
war.
The most important purpose of habeas
corpus is to correct errors like that. It is precisely to prevent such
abuses that the Constitution prohibits the suspension of the writ of
habeas corpus “unless when in Cases of Rebellion or Invasion the public
Safety may require it.” I have no doubt that this bill, which would
permanently eliminate the writ of habeas for all aliens within and
outside the United States whenever the Government says they might be
enemy combatants, violates that prohibition. And I have no doubt that
the Supreme Court would ultimately conclude that this attempt by the
Bush-Cheney Administration to abolish basic liberties and evade
essential judicial review and accountability is unconstitutional.
It would be utterly irresponsible for
Congress to neglect our oath to the Constitution and the American people
and pass this unconstitutional legislation in the hope that the Court
will ultimately rescue us from our folly. Doing so would only undermine
the War on Terror by prolonging the legal limbo into which the
Administration has dragged the entire regime of military detentions.
We
should have put military detentions on a solid legal footing and
established military tribunals four years ago. I introduced a bill in
2002 to authorize military commissions. So did Senator Specter. But
the White House and the Republican leadership ignored us, choosing
instead to roll the dice and hope that it could prevail on its radical
go-it-alone theories of presidential power.
The
Bush-Cheney Administration got a rude awakening earlier this year in the
Hamdan case. The Supreme
Court -- which happens to include seven Republican appointees in its
nine Justices -- affirmed what we had told it all along: when the
terrorists brought down the Twin Towers on 9/11, they did not bring down
the rule of law on which our system of Government is founded. They did
not supplant our republican form of Government with one in which an
unaccountable Executive can imprison people forever without trial or
judicial review.
On
its way to losing that case, the Administration wasted four years.
Actually, it did more than waste four years. Just yesterday the press
reported what the Administration has been misrepresenting to the
American people and what was apparently confirmed in a National
Intelligence Estimate: that the invasion and continuing U.S. military
presence in Iraq has created a new generation of anti-American
terrorists, that the terrorist threat against the U.S. has grown and,
according to intelligence officials, that the Iraq war has “made the
overall terrorism problem worse.” Meanwhile, having failed to try a
single detainee, and having failed to secure a conviction of a single
terrorist offense, the Administration is demanding that we pass a bill
it drafted last week before the end of this week.
The
Administration’s sudden and belated haste to move ahead makes no sense,
other than as a matter of crass electoral politics. We are taking a
first look at a bill that the Administration claims is central to the
decisive ideological battle of the 21st Century, a bill that
would suspend habeas corpus for the first time since the Civil War, and
a bill that, if enacted, will almost certainly be used by America’s
enemies as a pretext for the torture and indefinite detention without
judicial review of Americans abroad.
If
the Administration and the Republican leadership of the Senate believe
that suspending the writ is constitutional and justified, they should
grant the joint request that Chairman Specter and I made last week for a
sequential referral of the bill. Constitutional issues involving the
writ of habeas corpus are at the center of this Committee’s
jurisdiction. We can and should review this legislation thoroughly, and
if a few habeas petitions are filed in the meantime, we will not lose
the War on Terror as a result of those filings. If this Congress votes
to suspend the writ of habeas corpus first and ask questions later,
liberty and accountability will be the victims.
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(Below
is a letter Senator Leahy sent to Attorney General Gonzales regarding
the case of Canadian citizen Maher Arar)
September 22, 2006
The Honorable Alberto Gonzales
Attorney General
950 Pennsylvania Avenue, NW
Washington,
DC 20530
Dear Attorney General Gonzales:
I write to inquire again about the
rendition of Maher Arar, a Canadian and Syrian citizen, from the United
States to Syria in 2002. I have made several inquires to your
predecessor and other officials in the Bush Administration about Mr.
Arar’s case over the years, with no satisfactory response.
In 2002, Mr. Arar was stopped by
immigration officials at John F. Kennedy International Airport as he was
attempting to change planes on his flight home to Canada from vacation
in Tunisia. Press reports at the time indicated that Mr. Arar was not
provided legal counsel because he was not an American citizen. Mr. Arar
also repeatedly told U.S. officials that he feared he would be tortured
if returned to Syria. After being held for two weeks in a federal
detention center, Mr. Arar was handed over to U.S. intelligence
officials who then flew him to Jordan and transported him to Syria. He
was released in 2003 and returned to Canada, after more than 10 months
of imprisonment in Syria. Syrian officials found no evidence that he
had any connection to terrorism.
As you know, earlier this week a Canadian
commission charged with investigating Mr. Arar’s deportation to Syria,
concluded that Canadian intelligence agents falsely labeled Mr. Arar as
a threat and that U.S. officials placed Mr. Arar on the terrorist
“watchlist” unnecessarily. The commission found in its report that
while he was detained in Syria for more than 10 months, Mr. Arar was
“interrogated, tortured and held in degrading and inhumane conditions”
to such a degree that he falsely confessed to attending a terrorist
training camp in Afghanistan.
Furthermore, public reports indicate that
the United States “refused to cooperate with the commission” and denied
requests for documents and testimony surrounding the case.
The Department of Justice has declined to
answer my prior inquiries about Mr. Arar’s case other than to say that
the matter was the subject of ongoing litigation, and the Department
could not comment.
However, in light of the report from
Canada’s Arar Commission, you recently publicly commented on this
matter. During a press conference earlier this week, when asked if the
Department of Justice owes Mr. Arar an apology, you responded:
We
were not responsible for [Mr. Arar’s] removal to Syria, I’m not aware
that he was tortured, and I haven’t read the Commission report. Mr.
Arar was deported under our immigration laws. He was initially detained
because his name appeared on terrorist lists, and he was deported
according to our laws.
A clarification was quickly issued
Wednesday by the Justice Department, saying that you “’had [your]
timeline mixed up,’” and that you “forgot that at the time of Mr. Arar’s
deportation, such matters were still handled by the Immigration and
Naturalization Service,” not the Department of Homeland Security where
deportation matters are currently held, according to news reports.
You also said in your press conference
that Mr. Arar’s transfer to Syria was a deportation, not a rendition:
And
even if it was a rendition, we understand as a government what our
obligations are with respect to anyone who is rendered by this
government to another country, and that is that we seek to satisfy
ourselves that they will not be tortured. … And if in fact he had been
rendered to Syria, we would have sought those same kind of assurances,
as we do in every case.
Since you have spoken publicly about this
matter, I trust that you will now be able to provide a complete
explanation for the United States government’s actions in relation to
Mr. Arar. I request that you please provide detailed answers to the
following questions:
1.
If, in fact, Mr. Arar was deported, as you
have asserted, why was it necessary to deport him, since he had a
Canadian passport and was on his way back to Canada?
2.
You said that this was a deportation, not
a rendition. If so, given that Mr. Arar, a Canadian citizen, resides in
Canada and was traveling home to Canada when he was detained at the
airport, why did United States officials choose not to turn him over to
Canadian authorities or deport him to Canada? Why was Mr. Arar deported
instead to Syria, which makes less sense, is more logistically
difficult, and costs more?
3.
Was Mr. Arar denied access to an attorney
while in United States custody, as he has alleged? Was he given access
to Canadian consular officials while in United States custody?
4.
The Canadian commission examining this
case found that the Canadian intelligence labeling Mr. Arar a threat was
faulty and that he was unnecessarily placed on our government’s
terrorist watchlist. On what intelligence and what authority was Mr.
Arar originally held? Has the Justice Department reviewed the
intelligence that provided the basis for holding him? What was the
result of any such review?
5.
Under U.S. law, non-citizens who express
concerns about torture if removed are entitled to an evaluation of their
claim before being removed. Under the specific regulations that were
likely applied to Mr. Arar’s removal, there is an explicit prohibition
against returning someone to a country where there are substantial
grounds for believing he would be subjected to torture. Did Mr. Arar
tell United States officials, as he has claimed, that he would be
tortured if taken to Syria? Was that claim evaluated? What were the
results of any such evaluation? What process was used, if any, to
determine the likelihood that Mr. Arar would be subject to torture if
removed to Syria?
6.
Were any assurances in fact given by Syria
that it would not torture Mr. Arar? If so, what were they?
7.
Canada’s Arar Commission concluded that he
was tortured in Syria and held in degrading and inhumane conditions.
Has the United States attempted to determine whether these conclusions
are correct?
8.
Why did the United States government
apparently choose not to cooperate with Canada’s investigation?
9.
If the commission’s conclusions are
correct, then any assurances given by Syria that it would not torture
Mr. Arar were dishonest, and Syria’s conduct was consistent with its
past record of engaging in torture. What steps has the United States
government taken to ensure that others who are the subject of rendition,
or deportation, will not be tortured, regardless of any assurances given
by governments with a history of torturing prisoners?
10.
Please provide a full explanation of the
United States government’s conduct in connection with the arrest,
detainment, rendition, and/or deportation of Mr. Arar, along with any
investigation the government has conducted about the case and any
cooperation the United States government has provided, or declined to
provide, to foreign governments investigating the case.
Thank you for your prompt answers to these
questions.
Sincerely,
_______________________
PATRICK J. LEAHY
United States Senator
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