Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, the first bill which I am introducing, and that is to permit attorneys to deduct payment of litigation costs as ordinary and necessary business expenses. In litigation, illustratively on a personal injury claim, the plaintiff frequently is without funds and can only move forward with the litigation on a contingency fee basis. In these situations, it is customary for the attorney to advance the costs of filing fees, depositions, and other costs there may be. The Internal Revenue Service has taken the position that those are loans from the attorney to the client, so the attorney cannot immediately deduct litigation payments as ordinary business expenses. If the litigation costs are treated as ordinary business expenses, the attorney would be able to deduct the expenses as they are incurred. The Ninth Circuit has held that the Internal Revenue Service is wrong. As a result, attorneys in States within the Ninth Circuit can deduct as ordinary and necessary expenses advances on litigation. This legislation would make it explicit under the Internal Revenue Code that these advanced costs could be deducted by attorneys across the country. Again, I ask that the Record contain my extemporaneous comments and the explanation as to why there is some repetition in the formal statement which I now ask unanimous consent be printed in the Record, as well as the two bills which follow these two pieces of legislation which I am introducing.

Mr. SPECTER

Mr. SPECTER. Mr. President, reserving the right to object, I would like to clarify the status of amendment No. 286, which I laid down yesterday, the habeas corpus amendment. I just discussed with the Senator from Connecticut a unanimous consent request that I would make to get recognition when we resume after King Abdullah's speech. Might I inquire of the Senator from Connecticut what the sequence would be as to a continuation of the debate on the habeas corpus amendment?

Mr. SPECTER. It is hard to say because there are a number of Senators who want to debate the issue. I am advised that there is not a willingness to give a time agreement, so it is not possible to really answer that question.

Mr. SPECTER. I would like 1 hour.

Mr. SPECTER. Mr. President, if I might be recognized at noon when we return after the Abdullah speech?

Mr. SPECTER. I ask unanimous consent that I be recognized when the Senate reconvenes at 12:00 to speak for 1 hour.

Mr. SPECTER. That is fine.

Mr. SPECTER

Mr. SPECTER. Madam President, I suggest the absence of a quorum.

Mr. SPECTER. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to debate amendment No. 286, which would reverse the provision in the Military Tribunal Act which has limited the jurisdiction of the Federal courts in habeas corpus proceedings. The essential question at issue is whether the combatant status review tribunals are adequate and effective to test the legality of a person's detention. What we are dealing with here is an examination of the issue as to whether the procedures are fundamentally fair. Congress should repeal the provisions of the Military Commissions Act which limit Federal court jurisdiction on habeas corpus. The decision by the court of appeals, I submit, will be overturned by the Supreme Court of the United States because of Circuit Court's ruling that the Rasul case dealt only with the statutory provisions on habeas corpus. The Circuit Court ignored the binding language of Rasul, which said that the habeas corpus rights were grounded in common law in effect in 1789 and were, in fact, part of the Constitution. Where habeas corpus is a right in the Constitution, and it is such a right because the Constitution expressly states that habeas corpus shall not be suspended except in cases of invasion or rebellion--and no one contends that there is either invasion or rebellion at issue-- Congress cannot legislate a derogation of that constitutional right. Any act of Congress is obviously trumped by a constitutional provision. Where you have habeas corpus in effect in 1789 and the constitutional provision prohibiting its suspension, the legislation passed in the Military Commission Act I think ultimately will be determined by the Supreme Court to be unconstitutional, pretty clearly on the face of the opinion of the Court articulated by Justice Stevens. The Congress ought to reverse the provision of the Military Commission Act which strikes or limits Federal court jurisdiction on habeas corpus because the provisions--the way the detainees are being dealt with, simply stated, is not fundamentally fair. It does not comport with due process of law, and due process is a right even without specific enumeration in the Constitution. The order establishing the Combat Status Review Tribunal provides as follows: For purposes of this order, the term ``enemy combatant'' shall mean an individual who was a part of or supported Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or who has directly supported hostilities in aid of enemy forces. The fact is that people are detained as enemy combatants without any showing of those basic requirements. The next section of the order establishing the Combatant Status Review Tribunal provides: All detainees shall be notified-- Skipping some language-- of the right to seek a writ of habeas corpus in the courts of the United States. I have not seen any reference to this provision in any of the adjudications, and I found this on the very extensive research which my staff and I have undertaken to prepare for this debate. But there you have it. The order itself setting up the Combat Status Review Tribunal says that the detainees have the right to seek a writ of habeas corpus. The Secretary of Defense has the authority to establish the rules, and he has established the rule which gives the detainee the right to seek a writ of habeas corpus. That ought to end the argument right there. Let's proceed further to see, in fact, what happens when these matters are taken before the Combat Status Review Tribunal. We have the opinion of U.S. District Judge Green in a case captioned, ``In Re: Guantanamo Detainee Cases,'' in which Judge Green writes as follows: The inherent lack of fairness of the CSRT's consideration of classified information not disclosed to the detainee is perhaps most vividly illustrated in the following unclassified colloquy which was taken from a case not presently before this judge which exemplifies the practical and severe disadvantages faced by all Guantanamo prisoners. [I read] a list of allegations forming the basis for the detention of Mustafa Ait Idir, a petitioner in Boumediene v. Bush case-- And that parenthetically is the case decided by the Court of Appeals for the third circuit. This is what Judge Green goes on to point out in her opinion in the Federal Reporter: While living in Bosnia, the detainee associated with a known al-Qaida operative. In response, the following exchange occurred: Detainee: Give me his name. Tribunal President: I do not know. Detainee: How can I respond to this? Skipping some irrelevant language, the detainee goes on to say: I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team, but I do not know if this person is Bosnian, Indian, or whatever. If you can tell me the name, then I can respond and defend myself against this accusation. Tribunal President: We are asking you the questions and we need you to respond to what is in the unclassified summary. Skipping some irrelevant materials, the detainee then goes on to say: But I was hoping you had evidence that you could give me. If I was in your place--and I apologize in advance for these words--but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that. Then, parenthetically, Judge Green's opinion notes that ``Everyone in the tribunal laughs.'' Tribunal President: Well, we had to laugh, but that is OK. A little later in the opinion-- The detainee says: What should be done is you should give me evidence regarding these accusations, because I am not able to give you any evidence. I can just tell you no, and that is it. Then Judge Green goes on to say: The laughter reflected in the transcript is understandable. And this exchange might have been truly humorous had the consequences of the detainee's enemy combatant status not been so terribly serious, and the detainee's criticism of the process had not been so piercingly accurate. Well, this case illustrates the fact that the provisions in Guantanamo on the detainee status review tribunal is a laughing stock. It hardly comports with what the Secretary of Defense said was required: that there has to be evidence that the individual supported Taliban or al-Qaida forces or committed a belligerent act. The Judiciary Committee held a hearing and one of our witnesses was a distinguished attorney, Thomas Sullivan, who made available a series of cases before the Combat Status Review Tribunal. This is one illustrative case involving a man named ``Abdul-Hadi al Siba.'' I take this from the extract of what the witness provided: The Combat Status Review Tribunal stated that al Siba was charged with being captured in crossing the border into Pakistan with having volunteered for a charity that was funded by al-Qaida. That is all that is in the summary. Again, this hardly comports with the standard by the Department of Defense itself that there is supposed to be evidence which would show the detainee was engaged in hostilities against the United States or committed belligerent acts. The provisions of the Department of Defense establishing the Combat Status Review Tribunals is fundamentally unfair under the most basic principle of Anglo-Saxon American jurisprudence. The rules are: Preponderance of evidence shall be the standard used in reaching the determination, but there shall be a rebuttable presumption in favor of the government's evidence. That is the most extraordinary standard which I have ever seen, and it is bedrock Americana that people are presumed innocent. But instead, when a detainee faces a Combat Status Review Tribunal, the presumption is that he is guilty. That hardly comports with a standard of fundamental fairness or due process. The rules promulgated by the Department of Defense call for a preponderance of evidence, so even if there is a presumption of guilt, the standards do require some evidence. But that was not present in the case cited by Judge Green, not present in the cases cited by Thomas Sullivan at our Judiciary Committee hearing. Madam President, I ask unanimous consent that the summary of other cases provided by Mr. Sullivan be included in the Record at the conclusion of my presentation.

Mr. SPECTER. The standards which have been established, which would, under some circumstances, permit a substitute procedure for habeas corpus were articulated by the Supreme Court of the United States in the case of Swain v. Pressley. In that case, the Supreme Court said there could be a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's contention. But the collateral remedy which was present in Swain v. Pressley is a far cry from the provisions of the Combat Status Review Tribunal. What the Supreme Court was dealing with in the Swain case was habeas corpus before a State court as opposed to habeas corpus before a Federal court. In Swain, the Supreme Court said that the ``relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court do not have life tenure.'' So here we have a State court functioning under the rules of habeas corpus and the Supreme Court says that is an equivalent of Federal court habeas corpus because State court judges can make that determination and the only difference is that the State court judges do not have wide tenure. In Swain, the Supreme Court went on to say: It is a settled view that elected judges of our State courts are fully competent to decide Federal constitutional issues. So there you have the constitutional issue decided. But the only difference is that it is a State court. Well, that has absolutely no resemblance to the combat status review tribune. It hardly qualifies as an adequate substitute. I want to proceed now to the issues that were articulated by the Supreme Court of the United States in Rasul, where I believe it is very clear cut that there is the ignoring of the language of the Supreme Court, and a constitutional right and a right that was in effect in common law in 1789 will certainly be utilized by the Supreme Court in dealing with the circuit court opinion, which is directly inconsistent with the language of Justice Stevens. This is what Justice Stevens said in the Rasul case, speaking for the Court: Application of the habeas corpus statute to persons detained at the base [referring to the Guantanamo base] is consistent with the historical reach of the writ of habeas corpus. At common law courts exercise habeas corpus over the claims of aliens detained within the sovereign territory of the realm, as well as the claims of persons detained in the so-called ``exempt jurisdictions'' where ordinary writs did not run, and all other dominions under the sovereign's control. As Lord Mansfield wrote in 1759, even if a territory was ``no part of the realm'', there was ``no doubt'' as to the Court's power to issue writs of habeas corpus if a territory was under the subjection of the crown. The Supreme Court had already held in the trilogy of cases in 2004 that the United States Government controlled Guantanamo Bay, so it was within the jurisdiction of the United States. Justice Stevens goes on to point out that: Later cases confirmed the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of ``the extent and nature of the jurisdiction or dominion exercised in fact by the crown.'' There again is the reference to the undeniable fact that the United States controls Guantanamo and it is under United States dominion. The court of appeals concluded that the language about the existence of the writ when the Constitution was adopted and the constitutional right of habeas corpus was not resolved by Rasul, because the specific holding in Rasul was on the statutory provisions of section 2241. The Stevens opinion says: We therefore hold that section 2241 confers on the district court jurisdiction to hear petitioner's habeas corpus challenges to the legality of their detention at Guantanamo naval base. Now, the circuit court said that, well, is a holding based upon the statute, but its limitation does not apply to a constitutional right or the reach of the writ in effect in common law in 1789. How can it be that the Supreme Court would say Guantanamo Bay is under United States jurisdiction for the statutory right but outside of the jurisdiction for the constitutional right? It stands the English language on its head. There have been a number of situations where--especially in the fifth circuit--on death penalty cases the circuit has, in effect, ignored what the Supreme Court has had to say. It has been a highly critical Supreme Court which has then come to review those decisions. I suggest that that would be the response when the Supreme Court comes to review the circuit court opinion which ignores the plain language of the Supreme Court of the United States. In dissent, Justice Scalia recognized the fact that the case of Johnson v. Eisentrager had been overruled. The court of appeals relies upon Johnson v. Eisentrager to hold that there is no jurisdiction over Guantanamo Bay. But this is what Justice Scalia, in dissent, had to say about the overruling of Johnson v. Eisentrager. He called it ``overturning of settled law.'' But the court of appeals did not view it as such. So when this case comes before the Supreme Court, I think it is patently obvious that the language of the Court will require reversal of the circuit court decision. I have been asked if I will yield for a unanimous consent request by Senator Lieberman, and I will do so.

Mr. SPECTER. Mr. President, the failure of the Court of Appeals for the District of Columbia to recognize the settled principles was the subject of an analysis by the distinguished constitutional scholar Adam Liptak in the New York Times yesterday. It is worth notice. The analysis said that: what the Supreme Court says goes. Usually. But in a defiant decision 2 weeks ago, a Federal Court of Appeals in Washington conceded that it was ignoring parts of the 2004 Supreme Court decision on the rights of a man held at Guantanamo Bay, Cuba. That can make the Supreme Court testy and it may help the detainees. The analysis goes on to paraphrase the powerful dissent of Judge Judith Rogers, who said her colleagues were thumbing their noses at the Supreme Court. Liptak notes that: [Rogers stated that her colleagues] ``were ignoring the Supreme Court's well-considered and binding dictum'' concerning the historical roots and geographical scope of the prisoner's basic rights and she cited the case from her own court that said that such statements ``generally must be treated as authoritative.'' The analysis goes on to say that: almost 3 years ago, the Supreme Court ruled in Rasul that the detainees possessed an ancient and fundamental right, the right to challenge the justice of their confinement in court by filing petitions for writs of habeas corpus. In a crucial aside, in Rasul, Justice John Paul Stevens, writing for the majority, said this right was not just a result of a law passed by Congress but was grounded in the Constitution. ``Application of the habeas statute to persons detained in the base,'' he wrote, ``is consistent with the historical reach of habeas corpus.'' Well, that lays it out in a pretty conclusive way that when the Court rules on a statute but says that the same right is embodied in the Constitution, Congress cannot pass a law which trumps the constitutional provision, as articulated by the Supreme Court of the United States. The Liptak analysis goes on to note this: If that is a right, a new law pushed by the Bush administration's Military Commissions Act could not have cut off detainees' rights to habeas corpus. In a footnote, the appeals court basically acknowledges that. But it ruled that the Supreme Court's historical analysis was wrong and that Justice Stevens' dictum could be ignored. In the analysis commenting on the Johnson v. Eisentrager case, Liptak noted as follows: All of the points which were relied upon by the circuit court, as Justice Stevens wrote in Rasul, counted in favor of the Guantanamo detainees. ``They were not nationals of countries at war with the United States''-- Which was the case in Eisentrager-- They have not been engaged in plotted acts of aggression against the United States. They have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing, and for more than 2 years they have been in prison in territory over which the United States exercises exclusive jurisdiction and control. Well, this is a fairly brief analysis in the time which I have. But the essence of it boils down to this: The Supreme Court--Justice Stevens speaking for a majority--has ruled that the Federal habeas corpus statute covers Guantanamo, that the rights were violated, and that the statute carries out the constitutional law and the scope of the writ in 1789, when the Constitution was adopted. And the Court of Appeals for the Third Circuit, in order to uphold the act, says the holding by Justice Stevens was only to a statute--and it is true Congress can change the statute--but ignores the plain language of Justice Stevens speaking for a majority of the Court that it is a constitutional right. That cannot be changed by an act of Congress, and the Supreme Court will tell the court of appeals that when they get the case. Aside from the issue of constitutionality, which will be decided by the Court, as to the procedures that are in effect in these combat status review tribunals, they do not measure up to the requirements of fundamental fairness. They do not honor what the Department of Defense laid down as the basic rule that detainees are entitled to ``the right to seek a writ of habeas corpus in the courts of the United States.'' That ought to be the end of it because the Secretary of Defense was given the responsibility to decide what the rules were, and he said one of the rules is that these detainees can go to court. That is what an act of Congress has taken away, and that is what ought to be reversed. Then if we take a look at what has to happen in these proceedings before the Combat Status Review Tribunal, the term ``enemy combatant,'' which would qualify for detention, means an individual who was part of or supporting the Taliban or al-Qaida forces or has committed a belligerent act or has directly supported hostilities in aid of enemy forces. The individual in the court of appeals case cited by Judge Green, which I read at length, was only supposed to have talked to somebody from al-Qaida, and they couldn't even produce the identity of the individual, which hardly measures up to the Department of Defense's standard. It is just absolutely ludicrous. Then for the Department of Defense provisions to say that there is a presumption of guilt just turns American justice on its head. Even with a presumption of guilt, the requirements are that there be evidence, and there is none in the case cited by Judge Green and by Mr. Sullivan. This is just the beginning of the argument. We will have other Senators come to oppose. Let me advise my colleagues that there will be a portion of the debate conducted in Room S-407, which is the room where we can discuss classified information, because Senator Leahy and I have been reviewing the rendition in the Arar case, and we have found that there was a determination that Arar had a status--which I cannot discuss in this Chamber but can discuss only in S-407--which would warrant sending him to Syria. Arar was a Canadian citizen who came to the United States and was detained for questioning at an airport in New York City when he wanted simply to transit and go to Canada. He was questioned by the FBI. It has been well noted that the FBI does not agree with the other interrogation practices which have been undertaken by the Government. After that questioning, which was reportedly extensive, Arar was then sent to Syria. He came back and has filed suit alleging that he was tortured and subjected to brutal treatment. The Canadian officials have considered the issue at length and have published a three-volume set. It is a good visual for people to see, if anybody is watching on C-SPAN2. This is volume 1 of the report relating to Maher Arar, this is volume 2 on the report relating to Maher Arar, and this is the analysis and recommendation. After undertaking this kind of an analysis, the Canadian Government apologized to Arar and paid him about $10 million, but the U.S. Government continues to say that it was justified in sending Arar to Syria, where he was beaten. These matters relating to rendition, I submit, are directly relevant to our consideration of whether the Federal courts need to be involved in determining the legality of Guantanamo detainees because this Government, in the war on terrorism--and there is no doubt about the importance of our war on terrorism and the necessity for effective law enforcement. I led the Judiciary Committee to the reauthorization of the PATRIOT Act, which gives law enforcement extensive authority. But there are laws against torture. There are international covenants against torture. The submission of rendition is something that is going to have to come under some judicial supervision. I am considering now legislation which would require Federal authorities to go to court to establish probable cause and a basis for rendition before any American citizen or before anyone ought to be sent to a foreign country. We have the allegations of the plaintiff in a case decided last week by the Fourth Circuit who was sent to Egypt and alleged that he was tortured there. The Fourth Circuit has held that the case cannot be pursued because of a state secrets doctrine. That is a matter which is going to be reviewed on oversight by the Judiciary Committee. We have 25 CIA agents under indictment now in Italy, and we have 13 CIA agents now under indictment in Germany. The international response is that the United States is undertaking a rendition in a way which is unsatisfactory to basic standards of decency and fairness. The Judiciary Committee has held hearings on Guantanamo. I visited Guantanamo. Not to have those detainees have the right of habeas corpus and Federal court review is totally at variance with the very basic tenets of Anglo-Saxon and American jurisprudence. I cannot say anything more about Arar, but it can be discussed in S- 407, which is the room we go to when we have matters to discuss which are classified. I believe it is a very compelling case that there needs to be judicial intervention or needs to be a lot more oversight than there has been on these matters. I might say, it is like pulling teeth to get the Department of Justice to make any information available. It takes a long time to have access to the classified material, and then the material is insufficient to come to a conclusion. In the Arar case, we have a request pending and don't know what the result will be. But we do know Canada made an exhaustive analysis of Arar and what he had done, and I think I can say this: The materials in the classified documents relate to information substantially obtained from Canadian authorities, and Canada has made the inquiry and has apologized and paid some $10 million. I yield the floor. Exhibit 1 Summaries of CSRT Examples Cited by Tom Sullivan at September 25, 2006 SJC Hearing Abdul-Hadi Al Siba'a Al Siba'a is 34 year old Saudi Arabian who was taken into custody in Pakistan in December 2001. He had no weapon or ammunition when he was captured. The Combatant Status Review Tribunal stated that Al Siba'a was charged with being captured in crossing the border into Pakistan and with having volunteered for a charity that was funded by Al-Qaida. Al Siba'i repeatedly contended that he is a police officer in the Riyadh police department who was on a leave of absence in August 2001 to assist in building schools and a mosque in Afghanistan. He has presented his passport and his airline ticket. He has offered to have the Riyadh Police Department verify his employment and the nature of his leave of absence. Those requests were refused by the tribunal ``because an employer has no knowledge of what their employees do when they are on leave.'' After five years of detention, the government released Al Sibai'i from Guantanamo Bay, and he returned to his home in Saudi Arabia. Unnamed Detainee One detainee, who is not named in the declassified documents from the CSRT, is a Muslim man from Germany. This detainee is charged with having a close association with an individual who later engaged in a suicide bombing. The detainee had no memory of any association with a person who was a suicide bomber. In order to understand the nature of the charges against him, the detainee asked what evidence the tribunal had to show that he was involved with a suicide bomber. The tribunal responded that they could not answer that question and that ``anything remaining concerning [the suicide bomber who the detainee was allegedly associated with] is in the classified session.'' While the detainee continued to be cooperative and answer the questions posed to him by the CSRT, the Tribunal never provided him with an explanation of the questions that it asked regarding his associations with other individuals and organizations. ``Mustafa'' Arrested in Sarajevo, Bosnia, but originally of Algerian descent. Accused of being a member of the Islamic Armed Group, which was plotting to bomb the American Embassy in Sarajevo. Asked about his relationship to Abu Zubayda, whom he denied knowing. Mustafa was arrested and searched by ``international police from the United Nations.'' Was told that if the Bosnians no longer wanted him in their country, he would be welcome to return to Algeria. Asked his interrogator at GTMO, ``why, and if there were any accusations or evidence against me. The interrogator said to me that they would find something, meaning I could not be released from Cuba without them finding some accusation against me. I could not have been held in Cuba in prison for three years, then all of a sudden be found innocent and released.'' Abdur Sayed Rahman Born in Pishin, Pakistan. Charged with being a member of the Taliban, which he denied. Although there were two exhibits read into evidence against him, he was unable to view the evidence. Additionally, the detainee denied having been at the place of his capture in Pakistan at the alleged time of his capture. The government could not verify with him the time of his capture.

Mr. SPECTER. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER. Mr. President, I have a couple supplemental comments I would like to make. The requirement established by the Department of Defense that a detainee shall be notified ``of their right to seek a writ of habeas corpus in the courts of the United States'' was given to all the detainees. So they have had it and relied upon it. I suggest that while not legally the same, that any change in that policy is really in the nature of ex post facto, which is changing a rule and establishing criminal liability after the fact, which is prohibited by the Constitution. It isn't quite that, but it has the same flavor, and it is the nature, also, of a bill of attainder, which is legislation that establishes guilt as opposed to a judicial proceeding. What we have had here, in effect, is legislation which has changed what the Department of Defense said the rights of the individuals would be. I wish to cite, in addition, a quotation from Justice O'Connor in the Hamdi v. Rumsfeld case, talking about combat status review boards, in which she said: Any process in which the executive's factual assertions go wholly unchallenged or simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. Justice O'Connor restates in shorthand the traditional presumption of innocence which is turned on its head by the DOD regulations and says as a matter of Supreme Court ruling that without any opportunity to defend, those presumed conclusions can't stand. We saw the case of Judge Green, we saw the case cited by the witness before the Judiciary Committee, all of which shows the basic unfairness of what is going on in Guantanamo. The only way to correct it is through the traditional habeas corpus rights in Federal court. I yield the floor.

Mr. SPECTER. Mr. President, I ask my colleague from South Carolina if he would be willing to respond to a few questions.

Mr. SPECTER. I will begin with the subject matter brought up by the Senator from Connecticut about the status of aliens. I would note that in the Rasul case, the Supreme Court, Justice Stevens speaking for a majority, answered this categorically: Aliens held at the base, like American citizens, are entitled to invoke the Federal courts' section 2241 authority-- Which is the habeas corpus statute. So the court has dealt with that conclusively in Rasul much the same way that Justice O'Connor did speaking for plurality in an earlier case. Addressing the question to the Senator from South Carolina, earlier today I noted the order establishing Combat Status Review Tribunals, and it provided that: All detainees shall be notified-- Leaving out some irrelevant material-- of the right to seek a writ of habeas corpus in the courts of the United States. Is the Senator familiar with that provision?

Mr. SPECTER. Well, I hadn't been until a few days ago. But this is the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated July 7, 2004, to the Secretary of the Navy. The Senator from South Carolina made the argument that the judges were not appropriate to make determinations of reviewing the orders or the conclusions of the Combat Status Review Tribunal. How would the Senator from South Carolina account for the acquiescence by the--

Mr. SPECTER. Well, the question about the Department of Defense agreeing to allow habeas corpus rights was not taken up by the Circuit Court for the District of Columbia and the Detainee Treatment Act. Congress gave the Department of Defense the right to establish the rules, and that is one of the rules. Wait a minute. The question hasn't come yet.

Mr. SPECTER. Is it fair to change the rules in the middle of the process after the Department of Defense has stated that they think it is appropriate for a Federal court--they specifically talk about courts of the United States--to make a determination under habeas corpus to see if the definition which they set for enemy combatants has been followed. They have specified that there has to be evidence. To the definition of what or who is an enemy combatant: An individual who was part of or supporting the Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. Now, the Department of Defense who promulgated this order concluded that it was within the purview of the Federal courts, and that is really a judicial function to determine whether the definition for enemy combatant has been achieved, isn't it?

Mr. SPECTER. Well, if I may respond, when the Supreme Court said Congress should act, they were saying that Congress should legislate on how a military commission should be tried. But moving to your argument about the issue of constitutional right, how could it be that if the Constitution says that the right of habeas corpus can be suspended only in the event of invasion or insurrection? How can it be argued that there is no constitutional right? That is the argument that the Attorney General made in the Judiciary Committee hearing. Where the Constitution explicitly says the constitutional right of habeas corpus can be suspended only in invasion or insurrection, and no one says that either of those factors is present here, isn't that a flat-out statement that there is a constitutional right?

Mr. SPECTER. Wait just a minute. Make your answers a little more responsive and brief, and I won't keep you too long. I will keep you just a few more minutes. The Court of Appeals for the District of Columbia said that the Supreme Court, speaking explicitly through Justice Stevens, only dealt with a holding on the statute. They classified it as dictum when they said there was a constitutional right. Let me move on quickly to a couple of other points. As to the adequacy of proceedings in the combat status review tribunals, you have the case involving In re: Guantanamo, which I cited this morning, where Judge Green dealt with the precise case in the District of Columbia Circuit Court, the Boumediene case, which had a procedure where the detainee was charged with talking to somebody who was from al-Qaida, and he asked who it was and they could not identify the person. There was laughter in the courtroom, and Judge Green said it is understandable that there was laughter in the courtroom because nothing had been established. I ask a very simple, direct question, and maybe you can even answer it yes or no. Was that a fair proceeding?

Mr. SPECTER. I have one more thing. I take your last extended statement to be a ``no,'' am I right?

Mr. SPECTER. One last question. I still take that to be a ``no.'' It was not a complex question. Do you think it is fair where the Department of Defense sets the rules, contrary to your assertion, that they think Federal judges can decide whether the evidence establishes the standard for an enemy combatant, do you think it is as fair under American justice to have a presumption of guilt?

Mr. SPECTER. Let me say, in conclusion, that bombast and oratory and repetition cannot undercut a few very basic facts. One is that the Department of Defense established a rule to give Guantanamo detainees the right of habeas corpus. They set out a standard as to what would constitute being an enemy combatant. These are rules, when they call for evidence, that judges are equipped to decide. When there is a rebuttable presumption of guilt, undercutting the basic principle of America, the presumption of innocence, that is basically unfair. When you talk about the decision by the Court of Appeals for the District of Columbia, where they limited the Supreme Court opinion to a narrow holding on the statute, although the court then went on to say there was a constitutional right, that will not pass muster when it comes back to the Supreme Court. It is fallacious to the utmost to argue that there is no constitutional right to habeas corpus, when the Constitution explicitly says the right of habeas corpus may be suspended only in time of invasion or rebellion. It simply cannot be contended rationally that there is no constitutional right to habeas corpus. I am as concerned as the Senator from South Carolina about protecting America. I led the fight to reauthorize the PATRIOT Act. But the question is, is there some reason to hold the detainees? In the case that went to the District of Columbia Circuit Court of Appeals, you had the District Court looking at the information--it wasn't evidence-- which was that the detainee had a conversation with an al-Qaida member, but they could not identify him. The proceeding was a laughingstock. That is the detainee in the District of Columbia Circuit Court case which is going to the Supreme Court. I don't think this Congress ought to wait or punt to the Supreme Court. We passed a statute which takes away Federal court jurisdiction to make the simple determination: Is there a reason to hold them? We ought not to let that stand. I ask unanimous consent that a letter dated today, received by Senator Leahy and myself, be printed in the Record. It sets forth eloquently the reasons why habeas corpus for detainees should be reinstated by the Congress. It is signed by RADM Don Guter, who was the Navy's Judge Advocate General; RADM John Hutson, the Navy's Judge Advocate General at an earlier period; BG David Brahms, who was the Marine Corps senior legal adviser from 1983 until 1988; and BG James Cullen, who was the chief judge of the U.S. Army Court of Criminal Appeals.