Gavel Grab

Senate Judiciary Committee Meets on Detainees

Senator Leahy (left) is the chairman of the Senate Judiciary Committee.

With all eyes beginning to focus on the next presidency, supporters and opponents of detainee rights squared off in a vigorous debate Wednesday before the Senate Judiciary Committee. Senator Patrick Leahy (D-VT) chaired the meeting in the Dirksen Senate Office Building, with appearances and questions by Senators Kyl, Cardin, Whitehouse, and Feingold.

The witness list consisted of Colonel Will Gunn (Ret.), former chief defense counsel for Guantanamo detainees, Kate Martin, director of the Center for National Security Studies, and David Rivkin, a partner at Baker & Hollister, LLP. You can find their full written hearing testimony by clicking on the following links: Gunn; Martin; and Rivkin.

This late in the legislative session, it is unlikely that the detainee issue will see much action on the Senate floor, but it remains a key question for the next president. Topics discussed included several involving the federal courts–specifically, the ability of federal courts to effectively try detainees and the granting of habeas rights to detainees under the recent Boumediene v. Bush decision.

One of the hearing’s sharpest exchanges involved the effect of the Guantanamo controversies on America’s credibility and reputation.

When Rivkin asserted that it did not matter what European politicians thought of the United States, Senator Whitehouse shot back that it was not European politicians that concerned him, but giving tools to Islamic extremist groups to recruit civilians to their cause.

In addition, when Rivkin pointed out that 35 detainees who had been released had returned to the battlefield and actively engaged American soldiers, Senator Whitehouse pointed out that those detainees had been released by executive order of the President. He added that if due process had been allowed to run its course, it’s possible that evidence might have been discovered that would have led to further detainment.

In his opening statement, Senator Leahy said the Guantanamo situation has caused significant harm to American interests. “The president has determined that [the detainees] are all enemy combatants,” Leahy said. “We cannot defeat terrorism by abandoning our basic American principles and values.” Senator Feingold agreed with Leahy, adding. “Liberty and security are reconciled within the framework of the law.”

Though Colonel Gunn offered a keen military perspective, the primary witnesses were Rivkin and Martin. While Rivkin does not agree with President Bush on every Guantanamo decision, he is a strong proponent of the overarching legal work of the administration. Rivkin called the Boumediene ruling one of the most deplorable decisions in Supreme Court history and pointed to a failure of civilian courts to abide by their Constitutional role as the reason for delays in trying detainees.

Martin, on the other hand, vigorously defended the Boumediene decision and called attention to several instances of detainees’ rights being trampled, including the denial of access to due process. Of particular interest was her strong belief that federal civilian courts have the capability and the adaptability to detain and incapacitate terrorists. Doing so, she said, will restore credibility to the United States in the eyes of the rest of the world.

With regard to premature release, Ms. Miller also pointed out that it is extremely unlikely that federal judges would allow the release of a detainee after habeas trials if real evidence against him or her exists. She also stated her belief that Guantanamo was created to exist beyond the rules of law.

Mr. Rivkin disagreed, asserting that it was chosen to hold detainees for geographic purposes in order to keep potential terrorists off American soil. When Senator Whitehouse pointed out that no prisoner has ever escaped a federal prison in the United States, Mr. Rivkin said that escape was not the real threat, but an increased danger of terrorist attacks on that particular facility.

To learn more about civil liberties, the fight against terrorism and the role of fair and impartial courts, see Justice at Stake’s report, “Courting Danger: How the War on Terror Has Sapped the Power of Our Courts to Protect Our Constitutional Liberties (Second Edition).”

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  1. Gavel Grab » This Week in Review July 18th, 2008 4:08 pm

    […] Senate Committee Meets on Detainees. JAS Staff Member Jason Barrett gives a first-hand account from the hearing on an important civil liberties debate. […]

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