Dead Letter

Really it passed away, after a prolonged illness, in April, we remember, of neglect. The preferred manner with which this clique carries out its hits.

Eulogising the "Great Writ":

Written Testimony of Jonathan Hafetz Before the U.S. Senate Committee
on the Judiciary, September 25, 2006

Dear Senator Specter, Senator Leahy, and Members of the
Committee: Thank you for the opportunity to submit this
statement in connection with today's hearing. (``Examining
Proposals to Limit Guantanamo Detainees Access to Habeas
Corpus Review''). My comments focus on the historical
foundations of habeas corpus that are relevant to the
Committee's consideration of the proposed legislation, S.
3930. As the United States Supreme Court has repeatedly made
clear, the Constitution, at a minimum, protects the writ of
habeas corpus as it existed in 1789. Eliminating habeas
corpus for prisoners held at Guantanamo Bay would be
inconsistent with centuries of tradition and would fall below
the review required by the Constitution.
I am currently Counsel at the Brennan Center for Justice at
New York University School of Law. The Brennan Center is a
nonpartisan institution dedicated to safeguarding access to
justice and the rule of law through scholarship, public
education, and legal action. One of the Brennan Center's
primary goals is to ensure accountability, transparency, and
checks and balances in the formulation and implementation of
national security policy.
During the past decade, I have focused extensively on the
history of habeas corpus. My scholarly articles and amicus
curiae briefs on habeas have been cited by the Supreme Court
and federal courts of appeals. I hold a J.D. from Yale Law
School and a Masters Degree in History from Oxford
University.
My comments are organized as follows. First, I describe the
historical roots of habeas corpus as a check against unlawful
executive detention and how those protections are guaranteed
under the Constitution and laws of the United States. Second,
I explain the writ's broad territorial scope and guarantee of
a searching examination of the factual and legal basis for a
prisoner's detention. Third, I show that habeas corpus
secures another fundamental requirement of the common law and
due process--the right to be free of detention based on
evidence gained by torture. Finally, I explain why appellate
review under the Detainee Treatment Act of 2005 of a
Combatant Status Review Tribunal determination does not
provide an adequate and effective substitute for
constitutionally mandated habeas. To the contrary, such
review would foreclose any meaningful inquiry into the
factual and legal basis for a prisoner's detention and
sanction evidence secured by torture and other coercion.


I. Habeas Corpus Provides A Check Against Unlawful Executive Detention

For centuries, the writ of habeas corpus has provided the
most fundamental safeguard against unlawful executive
detention in the Anglo-American legal system. William
Blackstone praised habeas as the ``bulwark'' of individual
liberty, while Alexander Hamilton called it among the
``greate[st] securities to liberty and republicanism.'' The
writ

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has since been described as ``the most important human
right in the Constitution.
Today habeas is typically used by convicted prisoners to
collaterally attack their criminal sentences. At its
historical core, however, the writ provides a check against
executive detention without trial, and it is in this context
that its protections have always been strongest. Above all,
habeas guarantees that no individual will be imprisoned
without the most basic requirement of due process--a
meaningful opportunity to demonstrate his innocence before a
neutral decisionmaker.
Habeas corpus was part of colonial law from the
establishment of the American colonies, and the common law
writ operated in all thirteen British colonies that rebelled
in 1776. The Framers enshrined habeas corpus in the
Suspension Clause of the Constitution, which states that
Congress ``shall not'' suspend the writ of habeas corpus
``unless when in Cases of Rebellion or Invasion the public
Safety may require it.'' The First Congress codified this
constitutional command in the Judiciary Act of 1789, making
the writ available to any individual held by the United
States who challenges the lawfulness of his detention. For
the Framers of the Constitution, restricting Congress's power
to suspend habeas corpus was never controversial: the only
debate concerned what conditions, if any, could ever justify
suspension of the Great Writ, and the Framers concluded that
Congress could exercise its suspension power only under the
most exceptional circumstances. The constitutional guarantee
of habeas corpus stands apart and perpetually independent
from the other guarantees of the Bill of Rights enacted two
years later in 1791.
Under the influence, if not the command of the Suspension
Clause, Congress has always felt itself obligated to provide
for the writ in the most ample manner. Since the Nation's
founding, the writ has been suspended on only four occasions:
during the middle of the Civil War in the United States;
during an armed rebellion in several southern States after
the Civil War; during an armed rebellion in the Philippines
in the early 1990s; and in Hawaii immediately after the
attack on Pearl Harbor. Each suspension was not only a
response to an ongoing, present emergency, but was limited in
duration to the active rebellion or invasion that
necessitated it.


II. Habeas Corpus Extends To Any Territory Within The Government's
Exclusive Jurisdiction And Control And Guarantees A Searching Inquiry
Into The Factual And Legal Basis For A Prisoner's Detention

As the Supreme Court has recognized, the writ of habeas
corpus has an `` `extraordinary territorial ambit.' '' Habeas
has always reached any territory over which the government
exercised sufficient power and control to compel obedience to
the writ's command. As Lord Mansfield wrote in 1759, ``even
if a territory was `no part of the realm [of England],' there
was `no doubt' as to the court's power to issue writs of
habeas corpus if the territory was `under the subjection of
the Crown.' '' At common law, therefore, habeas was
available not only in territories beyond the borders of
England, such as the mainland American colonies and West
Indies, but also in territory over which England exercised
exclusive control and jurisdiction but lacked sovereignty.
The right to habeas corpus has always extended to aliens as
well as citizens. The writ has been available in time of
peace as well as in time of war. Even alleged enemy aliens
have had access to habeas to demonstrate their innocence,
including by submitting evidence to a court. Indeed, in one
case Chief Justice Marshall, on circuit, required an enemy
alien to be produced in court and ordered his release. As the
Supreme Court observed in Rasul v. Bush, detainees at
Guantanamo have the right to habeas review because they are
imprisoned in territory over which the United States has
complete jurisdiction and control and because, unlike the
World War II-era prisoners in Johnson v. Eisentrager, they
have never been convicted of any crime and maintain their
innocence.
Common law courts did not simply accept the government's
factual response to a prisoner's habeas petition; instead,
they routinely probed that response and examined additional
evidence submitted by both sides to ensure the factual and
legal sufficiency of a person's confinement. The writ's
guarantee of a searching judicial inquiry crystallized in
response to the Crown's efforts to detain individuals
indefinitely without due process. In 1592, English judges
protested that when they ordered the release of individuals
unlawfully imprisoned by the Crown, executive officials
transported them to ``secret [prisons]'' to place them beyond
judicial review. As a result, the judges issued a resolution
affirming their power to release prisoners if a response to
the writ was not made.
The Crown, nevertheless, continued to avoid a judicial
examination into a prisoner's detention by providing a
general response (or return) that did not specify the cause
of commitment. This issue came to a head in the seminal
Darnel's Case. There, the Attorney General asserted that it
was the king's prerogative to detain suspected enemies of
State by his ``special command,'' without a judicial inquiry
into the factual and legal basis for their detention. He
emphasized the Crown's overriding interest in national
security and insisted that judges defer to the king's
judgment.
When the court upheld the Crown by finding its response
sufficient, it sparked a constitutional crisis that led to
the establishment of habeas corpus as the pre-eminent
safeguard of common law due process and personal liberty.
This was entrenched through the enactment of the Petition of
Right or 1628, the Habeas Corpus Act of 1641, and the
Habeas Corpus Act of 1679. By the late 1600s habeas corpus
had become--and would remain--``the great and efficacious
writ, in all manner of illegal confinement'' and the most
``effective remedy for executive detention.''
At common law, courts consistently engaged in searching
review on habeas corpus to probe the factual and legal basis
for a prisoners commitment, including by conducting hearings
and taking evidence. In the United States, courts have
exercised the same searching review of executive detention.
Indeed, in one its first habeas cases, the Supreme Court
affirmed the writ's historic function at common law; to
determine whether there was an adequate factual and legal
basis for the commitment,'' fully examining and considering
the evidence and finding it insufficient to justify the
prisoners' detention on allegations of treason.
Habeas also has always guaranteed review of the lawfulness
of a newfangled tribunal established to try individuals
before that trial takes place. This review has been exercised
in time of war and in time of peace, and over all categories
of alleged offenders. To deny that review would jeopardize a
longstanding protection of habeas.
By contrast, habeas review has always been more limited in
post-conviction cases--which today make up the bread and
butter of a federal court's habeas docket. But that is
precisely because the prisoner had already been convicted at
a trial that provided fundamental due process, including the
opportunity to see the government's evidence and to confront
and cross-examine its witnesses, a right that Justice Scalia
has said is ``founded on natural justice,'' Absent that
process, a federal judge with jurisdiction over a habeas
corpus petition has the power to examine the factual and
legal basis for the prisoner's detention in the first
instance, including the power to take evidence and conduct a
hearing, where appropriate. At issue in the Guantanamo habeas
cases is executive detention without any judicial process--
precisely the situation that lies at the Great Writ's core
and that mandates a searching examination of the government's
allegations.


III. Habeas Corpus Serves As An Essential Check On The Use of Evidence
Gained By Torture.

Habeas corpus also vindicates another core guarantee of the
common law--the categorical prohibition on the use of
evidence obtained by torture. During the sixteenth century,
crown officials occasionally issued warrants authorizing the
torture of prisoners. Pain was inflicted by a variety of
ingenious devices, including thumbscrew, pincers, and the
infamous rack. The use of torture dec1ined after an
investigation showed that a suspected traitor had been
``tortured upon the rack'' based upon false allegations.
Shortly thereafter the king asked the common law judges
whether another alleged traitor ``might not be racked'' to
make him identify accomplices, and ``whether there were
any law against it.'' The judges' answer was unanimous:
the prisoner could not be tortured because ``no such
punishment is known or allowed by our law.''
The Framers of the Constitution also abhorred torture,
which they viewed as a mechanism of royal despotism. As the
Supreme Court has repeatedly held, reliance on evidence
obtained by torture is forbidden not merely because it is
inherently unreliable but also because such ``interrogation
techniques [are] offensive to a civilized system of
justice.'' Without the availability of habeas corpus to
provide a searching inquiry into the basis for a prisoner's
detention, and to determine whether, in fact, evidence
justifying that detention has been obtained by torture or
other coercive methods, this fundamental common law
protection would be jeopardized.


IV. The Proposed Legislation Would Violate the Suspension Clause

The proposed legislation would markedly depart from
historical precedent and the Constitution's command that the
writ be made available. This legislation, moreover, would
sweep under the jurisdictional bar only non-citizens, raising
serious questions under the Constitution's guarantee of equal
protection as well.
The Committee may ask whether review by the District of
Columbia Circuit established under the Detainee Treatment Act
of 2005 (``DTA'') obviates any problem under the
Constitution. It does not. Such review falls far short of the
minimum review guaranteed under the Suspension Clause because
it would deny prisoners any meaningful inquiry into the
factual and legal basis for their detention and would
sanction the use of evidence secured by torture and other
coercion. Since others have explained the flaws of this
review scheme in greater detail, I describe them below only
briefly.
The Guantanamo detainees are all held pursuant to a finding
by the Combatant Status Review Tribunal (``CSRT'') that they
are ``enemy combatants.'' The CSRT was established by the
President only nine days after the Supreme Court's ruling in
Rasul that Guantanamo detainees have the right to challenge
their executive detention in federal district court by habeas
corpus. The order creating the CSRT pre-judged the detainees,
declaring that they had already been

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found to be enemy combatants based on multiple levels of
internal review. Rather than affording the detainees a
meaningful opportunity to prove their innocence, the CSRT
denied them fundamental rights, including the right to
counsel; the right to see the evidence against them; and the
right to a neutral decisionmaker. Moreover, as the government
itself acknowledges, the CSRT permits the use of evidence
gained by torture. In short, as District Judge Joyce Hens
Green found, the CSRT denies the core protections of
elementary due process that habeas provides: a searching
factual inquiry to determine whether a prisoner's
detention is unlawfu1, including whether it is based on
evidence secured by torture.
Review of CSRT determinations under the DTA would not
provide detainees with any opportunity to challenge the
factual and legal basis for their detention. The DTA, on its
face, limits review to whether the CSRT followed its own
procedures. No detainee, as the government argues, can ever
present evidence to a federal court even if that evidence
shows he is innocent or that he was tortured. In short, DTA
review of a CSRT finding would deny prisoners precisely the
meaningful factual inquiry provided by habeas corpus and
secured under the Suspension Clause.


V. Conclusion

Habeas corpus has aptly been described as ``the water of
life to revive from the death of imprisonment.'' For
centuries, the Great Writ has prevented the Executive from
imprisoning individuals based upon mere suspicion and without
a meaningful examination of its allegations. Habeas corpus
demands that individuals have a fair opportunity to
demonstrate their innocence before a neutral decisionmaker.
Eliminating habeas at Guantanamo would flout this long
tradition and would gut the core protections guaranteed under
the Suspension Clause.
Thank you for the opportunity to provide this statement. My
colleagues and I are happy to provide the Committee with any
further information.
Jonathan Hafetz,
New York, NY, September 25, 2006