Testimony of, Lt. Commander Charles Swift, Office of Chief Defense Counsel, Office of Military Commissions, Department of Defense, September 25, 2006
September 25, 2006
Thank you, Chairman Specter and Members of the Judiciary Committee, for inviting me to speak to you today. My testimony is given in my capacity as Mr. Hamdan’s military defense counsel and does not represent the opinions of either the Department of the Navy or the Department of Defense. I thank the Chairman and Committee for pausing to carefully consider the issue of denying habeas rights to an accused designated for trial by Military Commission in Guantanamo Bay.
On June 15, 2005, I first testified before this Committee regarding my decision to file a next friend habeas petition on behalf of Mr. Hamdan. I told the Committee that when the Chief Prosecutor for commissions requested assignment of counsel to Mr. Hamdan, he specified that access to Mr. Hamdan was contingent upon negotiating a guilty plea on Mr. Hamdan’s behalf. I told this Committee then and I continue to believe today that the only way I could ethically represent Mr. Hamdan under those conditions was to present Hamdan with a second option of filing a habeas petition instead of pleading guilty. After the Appointing Authority refused to charge Mr. Hamdan and chose instead to keep him in the judicial limbo of “pre-trial isolation” that threatened Hamdan’s sanity, I filed just such a petition.
During oral argument before the D.C. Court of Appeals, Assistant Attorney General Peter Kiesler told the Court that I “had acted consistently with the highest traditions of the legal profession and his military service. He has done his duty.” Apparently Mr. Kiesler did not check with his client before making this statement because the legislation introduced by the President following the Hamdan decision attempts to see to it that no one else, myself included will have a similar chance to do his duty by challenging the commissions. If successful, Section 6 of the Military Commissions Act (MCA) permits the government to do exactly what I was able to prevent- coerce a guilty plea in an unlawful forum.
I again believe, for reasons I detail below that any Commissions under the MCA is unlawful and will ultimately be struck down by the courts. Whether I am right or not, a challenge to the legislation should happen immediately. Imagine if the courts had abstained in the Hamdan case as the government urged. Fifteen to twenty detainees would have been tried, with presumably some of them convicted, before the Supreme Court ultimately declared the process unlawful. All of the trials would be a nullity. The families of the victims of 9/11 would be forced to undergo a second round of trials – to the extent the Constitution would even sanction such double jeopardy. Justice delayed for years more.
Instead of permitting immediate challenge to spare the country such a fate, Section 6 of the MCA would sanction one of the most sweeping jurisdiction stripping measures in our history and raise grave constitutional questions. Rather than simplifying the procedures for judicial review of military commissions, the MCA would actually introduce several new complex legal issues that the Supreme Court avoided deciding in Hamdan v. Rumsfeld. See 126 S. Ct. 2749, 2764, 2769 n.15 (2006). The MCA is inconsistent with prior interpretations of the Constitution, including the Suspension Clause, the Exceptions Clause, the Equal Protection Clause, and the prohibition on Bills of Attainder. To strip jurisdiction at the same time as an entirely newfangled military commission is created is an extremely dangerous and unwise act. It is a profound and dangerous threat to both judicial independence and core rule-of-law values.
The MCA Does Not Constitutionally Suspend the Right To Petition For Habeas Corpus.
The MCA Violates Equal Protection Guarantees.
If the MCA precludes individuals from pursuing their pending claims for relief, it is only because that individual is an alien (rather than a citizen) in United States custody yet being detained outside the United States (rather than in a brig in Norfolk, Virginia or any other place), since September 11, 2001. Legislation that deprives individuals of access to the protections of the Great Writ based on such an arbitrary collage of distinctions—and at the exclusive discretion of the Executive—violates the Fifth Amendment.
The Fifth Amendment protects aliens within U.S. territory as well as U.S. citizens. See, e.g., Wong Wing v. United States, 163 U.S. 228 (1896); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (all “aliens within the jurisdiction of the United States” are protected) (emphasis added); Galvan v. Press, 347 U.S. 522, 530 (1954). As the Supreme Court noted, “the United States exercises ‘complete jurisdiction and control’ over the Guantanamo Bay Naval Base.” Rasul, 542 U.S. at 480. Accordingly, detainees held in U.S. custody there are protected by the Fifth Amendment.
Legislation that enacts substantial discriminatory barriers to the exercise of fundamental rights is subject to strict scrutiny. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988). Access to courts is such a fundamental right. See Tennessee v. Lane, 541 U.S. 509, 522-23 (2004); Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963). The right of access to habeas is particularly fundamental, and is indeed so important to our constitutional tradition that it is singled out for constitutional protection. U.S. Const. art. I, § 9, cl. 2.
No justification for the distinctions drawn by the MCA is apparent. While alienage may be a relevant basis for determining membership in a political community, or for allocating scarce entitlements, it is not a permissible basis for determining access to an Article III court in an effort to protect an alien’s personal liberty. See In re Griffiths, 413 U.S. 717 (1973); Plyler v. Doe, 457 U.S. 202 (1982). Furthermore, “where there is in fact discrimination against individual interests, the constitutional guarantee of equal protection of the laws is not inapplicable simply because the discrimination is based upon some group characteristic such as geographic location.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 92 (1973) (Marshall, J., dissenting). The discrimination here is surely more corrosive than, for example, conditioning access to habeas on a filing fee. Smith v. Bennett, 365 U.S. 708 (1961). It offends the very essence of equal justice under law. It is targeted at a population who cannot vote, and concerns not government benefits, but the touchstone issue of who can come into court to protect his liberty.
The MCA Violates the Exceptions Clause.
Congress’ power to make “Exceptions” to the Supreme Court’s appellate jurisdiction is limited. U.S. CONST., art. III, § 2, cl. 2. Indeed, every time the Supreme Court has upheld a congressional limitation under the Exceptions Clause, it has gone out of its way to confirm that an alternative avenue of contemporaneous appellate review was available. See Felker v. Turpin, 518 U.S. 651, 661-62 (1996); id. at 667 (Souter, J., concurring) (“[I]f it should later turn out that statutory avenues other than certiorari for reviewing [a lower court’s denial of habeas] were closed, the question whether the statute exceeded Congress’s Exceptions Clause power would be open”); Ex parte Yerger, 75 U.S. 85, 105-06 (1869); Ex parte McCardle, 74 U.S. 506, 515 (1869). Yet in many cases, the MCA provides absolutely no right to judicial review, much less a right to contemporaneous appellate review in a timely and meaningful manner. See infra at 6-7. In addition, the MCA significantly restricts the scope of legal challenges that petitioner may ultimately bring to any final decision of a military commission or a combatant status review tribunal. See MCA § 6(a); Detainee Treatment Act of 2005, §1005(e)(2), (3).
The MCA Constitutes a Bill of Attainder.
Finally, the MCA would likely run afoul of the Bill of Attainder Clause. U.S. Const., art. I, sec. 9, cl. 9. A law is an unlawful attainder if (1) it applies to easily ascertainable members of a group, and (2) inflicts punishment. United States v. Lovett, 328 U.S. 303, 315 (1946). The MCA satisfies both prongs. The MCA’s plain language applies only to “alien[s] detained outside the United States…since September 11, 2001.” § 6(b). The MCA undoubtedly constitutes punishment. The extended detention and the denial of a right to challenge treatment or unfair trials, is at least as punitive as the denial of the right to engage in a particular profession. See Ex Parte Garland, 4 Wall. 333 (1867) (denial of right to practice law is an attainder).
In general, it will be difficult, if not impossible, to use the new MCA against Khalid Sheik Muhammad or any of the other individuals currently detained. This legislation is punitive, and ex post facto, and likely to run afoul of both of those prohibitions. KSM was a political stunt, and you all should not fall for it. Particularly since people like KSM evidently have lots of inculpatory evidence against them already.
Instead of unconstitutionally attempting to suspend the writ Section 6 of the MCA should provide for a three-judge district court to immediately hear a challenge to this scheme via an anti-abstention provision modeled on the McCain-Feingold Campaign Finance Act. Particularly in the wake of the last section of the bill, which suggests that even its authors believe there may be constitutional flaws in the legislation, it is imperative for all concerned to know whether the system is legal before convictions are set and evidence is presented. To that end I propose that the MCA be amended as by inserting the following provision into the Act, after the severability clause:
Sec. 11. EXPEDITED REVIEW.
THREE-JUDGE DISTRICT COURT HEARING.—Notwithstanding any other provision of law, any civil action challenging the legality of any provision of, or any amendment made by, this Act, shall be heard by a three-judge panel in the United States District Court for the District of Columbia convened pursuant to the provisions of section 2284 of title 28, United States Code. For purposes of the expedited review provided by this section, the exclusive venue for such an action shall be the United States District Court for the District of Columbia
APPELLATE REVIEW.—Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of three judges in an action under subsection (a) shall be reviewable as a matter of right by direct appeal to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 calendar days after such order or judgment is entered; and the jurisdictional statement shall be filed within 30 calendar days after such order or judgment is entered.
EXPEDITED CONSIDERATION.—It shall be the duty of the District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a).
Section 6 of the proposed Act should be modified. This provision would remove jurisdiction from all U.S. courts to hear habeas petitions (or any other actions, except as provided by the DTA) of aliens detained outside the United States who are currently in U.S. custody or who have been properly detained as an enemy combatants. .
The following provision would also have to be modified from the proposed Chapter 47A:
§ 950i. Finality of proceedings, findings, and sentences …
(b) PROVISIONS OF CHAPTER SOLE BASIS FOR REVIEW OF MILITARY COMMISSION PROCEDURES AND ACTIONS.—Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of enactment of this chapter, relating to the prosecution, trial, or judgment of military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.
Indeed, “no case has ever countenanced an effort to strip both [the Supreme Court] and the lower federal courts of original and appellate jurisdiction to pass on the constitutionality of Executive action in derogation of personal liberty. To do so would place the very structure of the Constitution at risk by attacking an ‘essential function’ of the Supreme Court and the Article III judiciary. See Henry M. Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1364-65 (1953).” Amicus Br. of Norman Dorsen et al., Hamdan v. Rumsfeld, No. 05-184, at 20. This brief was signed, incidentally, by David Shapiro, a Harvard Law School professor who served as Principal Deputy Solicitor General to Ken Starr in the first Bush Administration.
The four suspensions occurred (1) during the Civil War, as authorized in 1863; (2) in 1871, to confront widespread resistance to Reconstruction by armed groups such as the Klu Klux Klan; (3) in 1902, during a rebellion against United States authority in the Philippines; and (4) in December 1941, immediately following the attack on Pearl Harbor (but only for Hawaii). See Amicus Br. of Natl. Security Ctr., Hamdan v. Rumsfeld, No. 05-184, at 26-30(discussing four instances of suspension).
The Court reached this conclusion even though Congress had authorized a broader suspension. See Act of Mar. 3, 1863, 12 Stat. 755 (authorizing the President to “suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof”).
The MCA states that “the term ‘United States’, when used in a geographic sense, has the meaning given that term in section 1005(g) of the Detainee Treatment Act of 2005.” § 6(a). That provision of the Detainee Treatment Act states that “the term ‘United States’, when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.”
Nor can all the territory “outside the United States” be deemed in Rebellion, subject to Invasion, or a threat to public Safety.
It makes no constitutional difference whether an individual petitioning for habeas corpus is a non-citizen accused of being an enemy of the United States. Aliens have been able to file habeas petitions to challenge detention at least since the 17th century. See St. Cyr, 533 U.S. at 305-06 (from founding, habeas “jurisdiction was regularly invoked on behalf of noncitizens”); id. at 301-02 (collecting cases). Both the Habeas Corpus Act of 1641, 16 Car. 1, and the Habeas Corpus Act of 1679, 31 Car. 2, granted “any person” the right to file a petition. See generally Amicus Br. of Legal Historians, Rasul v. Bush, No. 03-334 (original conception of habeas permitted challenges by enemy aliens).
Moreover, the Great Writ has long been available to challenge the military’s treatment of alleged enemies. See Rasul, 542 U.S at 474-75. For example, English courts heard habeas claims from alleged foreign enemy combatants challenging their status in the Eighteenth Century. See, e.g., Three Spanish Sailors’ Case, 96 Eng. Rep. 775, 776 (C.P. 1779) (Spanish sailors challenging detention as alleged prisoners of war); Rex v. Schiever, 97 Eng. Rep. 51 (K.B. 1759) (Swedish sailor captured aboard enemy ship); Commonwealth Lawyers Br. 6-8 & n.9 (collecting cases). Similarly, U.S. courts have heard enemy aliens’ habeas petitions from the War of 1812, Lockington v. Smith, 15 F. Cas. 758 (C.C.D. Pa. 1817), through the Second World War, Quirin, 317 U.S. at 1. The writ has traditionally been available to challenge the jurisdiction of a committing tribunal, including a military commission. E.g., Quirin, 317 U.S. at 19; Milligan, 71 U.S. at 118; Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 475 (1963) (“The classical function of the writ of habeas corpus was to assure the liberty of subjects against detention by the executive or the military.”); St. Cyr, 533 U.S. at 302 n.19 (“impressment into the British Navy”).
The reason the Eisentrager petitioners lacked a constitutional right to habeas was because of the lack of any nexus with U.S. territory. Each (a) [was] an enemy alien; (b) [had] never been or resided in the United States; (c) was captured outside of our territory and there held in military custody…; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and [was] at all times imprisoned outside the United States. Id. at 777 (emphasis added). It was based on this lack of connection to territory within U.S. control that the Court distinguished Quirin and Yamashita. Id. at 779-80. The Court explained that a nexus with a territory under U.S. control, like the Philippines then or Guantanamo now, was sufficient to invoke the right to habeas. Id. at 780.
Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (declaring that the right to habeas corpus is “shaped to guarantee the most fundamental of all rights”); Coolidge v. New Hampshire, 403 U.S. 443, 454 n.4 (1971) (listing the right to the writ of habeas corpus among rights that are “to be regarded as of the very essence of constitutional liberty”) (citation omitted). Foley v. Connelie, 435 U.S. 291 (1978). Matthews v. Diaz, 426 U.S. 67 (1976).
Nor may Congress may use its power under the Exceptions Clause “to withhold appellate jurisdiction . . . as a means to an end.” United States v. Klein, 80 U.S. 128, 145 (1872).
The Supreme Court did indicate that the statutory language conferring “exclusive jurisdiction” upon the Court of Appeals for the D.C. Circuit to review CSRT and military commissions determinations would not deprive the Supreme Court of jurisdiction over an appeal of a decision under the Act.