Chairman Ike Skelton
Opening Statement
"Upholding the Principle of Habeas Corpus for Detainees"
July 26, 2007
"The Committee will come to order.
"Today's hearing is about upholding the principle of habeas corpus for detainees at Guantanamo Bay, Cuba. Many across the country, and some in this hearing room, may ask why Congress should bother restoring this constitutional right to challenge arbitrary detention to the men in Guantanamo, when some of them are self-avowed terrorists.
"In 1945, an American country lawyer took to his feet in a courtroom in Germany and foreshadowed a couple of answers to this important question.
"Opening the Nuremberg trials of notorious Nazi prisoners, the country lawyer said that "[c]ivilization can afford no compromise with social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces . survive."
"Robert H. Jackson, Chief Counsel to the United States during the Nazi war trials and later a Supreme Court Justice, could not have been more correct. We must prosecute those who are terrorists with the full force of the law, but we must also make sure that the convictions stick. Certainty of convictions must go hand in hand with tough prosecutions.
"The problem that we face is that the Military Commissions Act, which the last Congress passed over my strenuous objections, suffers from numerous flaws that I have outlined on previous occasions. None of them is more severe than the stripping of habeas corpus from the detainees. In addition, earlier legislation established a questionable system of appellate review of the defective Combatant Status Review Tribunals process.
"Already, the legal weaknesses in the existing system have begun to crack. Last month, two military judges in separate opinions dismissed all charges against the only two detainees to have pending proceedings under the Military Commissions law because the legal process, under which they had been confirmed by a military panel to be enemy combatants, had not properly granted the military commissions jurisdiction over these defendants.
"Until this fundamental problem of personal jurisdiction is resolved, all military trials have stopped.
"Assuming that the Administration is able to correct this current mess, other legal challenges remain which could result in known terrorists having their future convictions reversed.
"Restoring habeas to the detainees at Guantanamo would enable federal courts to help the Administration identify and rectify the inherent problems within the military commissions framework sooner rather than later, and may even accelerate prosecutions.
"Although the applicability of the holding in the Al-Marri case is rather limited and does not apply to the Guantanamo detainees, the U.S. Court of Appeals for the Fourth Circuit recently recognized a detainee's right to habeas and ordered the Administration to consider federal civilian prosecution of the individual, among other options, after nearly six years of detention.
"As equally important as ensuring tough prosecutions is remaining true to who we are as a nation. We must match our bedrock commitment to the rule of law and human rights to the enemy's propaganda of hatred.
"Restoring habeas for detainees allows us to reaffirm our global leadership on these values. On the other hand, abandoning a principle which has been a cornerstone of Anglo-American jurisprudence for nearly 600 years arms the terrorists with another recruiting weapon and undermines our credibility in the world.
"In the course of prosecuting Nazi war criminals who had committed once-unimaginable atrocities, Robert Jackson, the country lawyer, said it best "Y "[w]e must never forget that the record on which we judge these defendants . is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well."
"Citing Johnson v. Eisentrager (1950), some may propose that Justice Jackson would not have intended his words to apply to the detainees at Guantanamo. On the contrary, I would argue that Justice Jackson himself would have been affronted by the situation at Guantanamo and would have readily distinguished his Eisentrager holding from it, as the Supreme Court did a few years ago in the Rasul decision.
"I look forward to hearing from our witnesses on these critical matters.
"I now turn to my good friend and colleague, a senior member of our committee, Mr. Saxton of New Jersey, for any opening remarks that he may wish to make."
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