On September 27, 2006, on the Senate Floor during Discussion and Debate over the Military Commissions Act of 2006, Senator Specter introduced three letters into the Official Record, that stridently objected to the theft of habeas corpus. One letter was from former Ambassadors, and other significant Former State Department officials. One was from former Federal Judges, and the last was from Kenneth Starr. I have reprinted the contents here.

September 25, 2006.
To United States Senators and Members of Congress.

Dear Madams/Sirs: This letter is written in the name of the former members of the diplomatic service of the United States listed below.

We urge that the Congress, as it considers the pending detainee legislation, not eliminate the jurisdiction of the courts to entertain habeas corpus petitions filed on behalf of those detainees.

There is no more central principle of democracy than that an officer of the executive branch of government may restrain no one except at sufferance of the judiciary. The one branch is vital to insure the legitimacy of the actions of the other. Habeas corpus is the "Great Writ." It is by habeas corpus that a person--any person--can insure that the legality of his or her restraint is confirmed by a court independent of the branch responsible for the restraint. Elimination of judicial review by this route would undermine the foundations of our democratic system.

We are told that the central purpose of our engagement in that "vast external realm" today is the promotion of democracy for others. All nations, we urge, should embrace the principles and practices of freedom and governance that we have embraced. But to eliminate habeas corpus in the United States as an avenue of relief for the citizens of other countries who have fallen into our hands cannot but make a mockery of this pretension in the eyes of the rest of the world. The perception of hypocrisy on our part--a sense that we demand of others a behavioral ethic we ourselves may advocate but fail to observe--is an acid which can overwhelm our diplomacy, no matter how well intended and generous. Pretensions are one thing; behavior another, and quite the more powerful message. To proclaim democratic government to the rest of the world as the supreme form of government at the very moment we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interests in the larger world.

This is the first and primary reason for rejecting the proposal. But the second is almost as important, and that is its potential for a reciprocal effect. Pragmatic considerations, in short, are in this instance at one with considerations of principle. Judicial relief from arbitrary detention should be preserved here else our personnel serving abroad will suffer the consequences. To deny habeas corpus to our detainees can be seen as prescription for how the captured members of our own military, diplomatic and NGO personnel stationed abroad may be treated.

As former officials in the diplomatic service of our nation, this consideration weighs particularly heavily for us. The United States now has a vast army of young Foreign Service officers abroad. Many are in acute and immediate danger. Over a hundred, for example, are serving in Afghanistan. Foreign service in a high-risk post is voluntary. These officers are there willingly. The Congress has every duty to insure their protection, and to avoid anything which will be taken as justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury.

We urge that the proposal to curtail the reach of the Great Writ be rejected.

Respectfully submitted,

• William D. Rogers, former Under Secretary of State;
• Ambassador J. Brian Atwood;
• Ambassador Harry Barnes;
• Ambassador Richard E. Benedick;
• Ambassador A Peter Burleigh;
• Ambassador Herman J. Cohen;
• Ambassador Edwin G. Corr;
• Ambassador John Gunther Dean;
• Ambassador Theodore L. Eliot, Jr.;
• Ambassador Chas W. Freeman, Jr.;
• Ambassador Robert S. Gelbard.
• Ambassador Lincoln Gordon;
• Ambassador William C. Harrop;
• Ambassador Ulric Haynes, Jr.;
• Ambassador Robert E. Hunter;
• Ambassador L. Craig Johnstone;
• Ambassador Robert V. Keeley;
• Ambassador Bruce P. Laingen;
• Anthony Lake, former National Security Advisor;
• Ambassador Princeton N. Lyman;
• Ambassador Donald McHenry;
• Ambassador George Moore;
• Ambassador George Moose;
• Ambassador Thomas M. T. Niles;
• Ambassador Robert Oakley;
• Ambassador Robert H. Pelletreau;
• Ambassador Pete Peterson;
• Ambassador Thomas R. Pickering;
• Ambassador Anthony Quainton;
• Helmut Sonnenfeldt, former Counselor of the Department of State;
• Ambassador Roscoe S. Suddarth;
• Ambassador Phillips Talbot;
• Ambassador William Vanden Heuvel;
• Ambassador Alexander F. Watson.

To Members of Congress: The undersigned retired federal judges write to express our deep concern about the lawfulness of Section 6 of the proposed Military Commissions Act of 2006 ("MCA"). The MCA threatens to strip the federal courts of jurisdiction to test the lawfulness of Executive detention at the Guantanamo Bay Naval Station and elsewhere outside the United States. Section 6 applies "to all cases, without exception, pending on or after the date of the enactment of [the MCA] which relate to any aspect of the detention, treatment, or trial of an alien detained outside of the United States . . . since September 11, 2001."

We applaud Congress for taking action establishing procedures to try individuals for war crimes and, in particular, Senator Warner, Senator Graham, and others for ensuring that those procedures prohibit the use of secret evidence and evidence gained by coercion. Revoking habeas corpus, however, creates the perverse incentive of allowing individuals to be detained indefinitely on that very basis by stripping the federal courts of their historic inquiry into the lawfulness of a prisoner's confinement.

More than two years ago, the United States Supreme Court ruled in Rasul v. Bush, 542 U.S. 466 (2004), that detainees at Guantanamo have the right to challenge their detention in federal court by habeas corpus. Last December, Congress passed the Detainee Treatment Act, eliminating jurisdiction over future habeas petitions filed by prisoners at Guantanamo, but expressly preserving existing jurisdiction over pending cases. In June, the Supreme Court affirmed in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), that the federal courts have the power to hear those pending cases. These cases should be heard by the federal courts for the reasons that follow.

The habeas petitions ask whether there is a sufficient factual and legal basis for a prisoner's detention. This inquiry is at once simple and momentous. Simple because it is an easy matter for judges to make this determination--federal judges have been doing this every day, in every courtroom in the country, since this Nation's founding. Momentous because it safeguards the most hallowed judicial role in our constitutional democracy--ensuring that no man is imprisoned unlawfully. Without habeas, federal courts will lose the power to conduct this inquiry.

We are told this legislation is important to the ineffable demands of national security, and that permitting the courts to play their traditional role will somehow undermine the military's effort in fighting terrorism. But this concern is simply misplaced. For decades, federal courts have successfully managed both civil and criminal cases involving classified and top secret information. Invariably, those cases were resolved fairly and expeditiously, without compromising the interests of this country. The habeas statute and rules provide federal judges ample tools for controlling and safeguarding the flow of information in court, and we are confident that Guantanamo detainee cases can be handled under existing procedures.

Furthermore, depriving the courts of habeas jurisdiction will jeopardize the Judiciary's ability to ensure that Executive detentions are not grounded on torture or other abuse. Senator John McCain and others have rightly insisted that the proposed military commissions established to try terror suspects of war crimes must not be permitted to rely on evidence secured by unlawful coercion. But stripping district courts of habeas jurisdiction would undermine this goal by permitting the Executive to detain without trial based on the same coerced evidence.

Finally, eliminating habeas jurisdiction would raise serious concerns under the Suspension Clause of the Constitution. The writ has been suspended only four times in our Nation's history, and never under circumstances like the present. Congress cannot suspend the writ at will, even during wartime, but only in "Cases of Rebellion or Invasion [when] the public Safety may require it." U.S. Const. art. I, Sec. 9, cl. 2. Congress would thus be skating on thin constitutional ice in depriving the federal courts of their power to hear the cases of Guantanamo detainees. At a minimum, Section 6 would guarantee that these cases would be mired in protracted litigation for years to come. If one goal of the provision is to bring these cases to a speedy conclusion, we can assure you from our considerable experience that eliminating habeas would be counterproductive.

For two hundred years, the federal judiciary has maintained Chief Justice Marshall's solemn admonition that ours is a government of laws, and not of men. The proposed legislation imperils this proud history by abandoning the Great Writ to the siren call of military necessity. We urge you to remove the provision stripping habeas jurisdiction from the proposed Military Commissions Act of 2006 and to reject any legislation that deprives the federal courts of habeas jurisdiction over pending Guantanamo detainee cases.

Respectfully,

• Judge John J. Gibbons, U.S. Court of Appeals for the Third Circuit (1969-1987), Chief Judge of the U.S. Court of Appeals for the Third Circuit (1987-1990).
• Judge Shirley M. Hufstedler, U.S. Court of Appeals for the Ninth Circuit (1968-1979).
• Judge Nathaniel R. Jones, U.S. Court of Appeals for the Sixth Circuit (1979-2002).
• Judge Timothy K. Lewis, U.S. District Court, Western District of Pennsylvania (1991-1992), U.S. Court of Appeals for the Third Circuit (1992-1999).
• Judge William A. Norris, U.S. Court of Appeals for the Ninth Circuit (1980-1997).
• Judge George C. Pratt, U.S. District Court, Eastern District of New York (1976-1982), U.S. Court of Appeals for the Second Circuit (1982-1995).
• Judge H. Lee Sarokin, U.S. District Court for the District of New Jersey (1979-1994), U.S. Court of Appeals for the Third Circuit (1994-1996).
• William S. Sessions, U.S. District Court, Western District of Texas (1974- 1980), Chief Judge of the U.S. District Court, Western District of Texas (1980-1987).
• Judge Patricia M. Wald, U.S. Court of Appeals for District of Columbia Circuit (1979-1999), Chief Judge of the U.S. Court of Appeals for District of Columbia Circuit (1986-1991).

Malibu, CA,
September 24, 2006.
Hon. Arlen Specter,
Chairman, Senate Committee on the Judiciary,
Washington, DC.

Dear Chairman Specter:
I write to express my concerns about the limitations on the writ of habeas corpus contained in the compromise military commissions bill, The Military Commissions Act of 2006 (S. 3930). Although S. 3930 contains many laudable improvements to military commission procedure, section 6 of the bill effectively bars detainees at the U.S. Naval Base at Guantanamo Bay, Cuba from applying for habeas corpus review of their executive detention. I am concerned that limitation may go too far in limiting habeas corpus relief, especially in light of the apparent conflict between the holdings of Rasul v. Bush, 124 S. Ct. 2684 (2004), and Johnson v. Eisentrager, 339 U.S. 763 (1950).

Although the Rasul Court limited its holding to statutory habeas rights, which may be limited by the Congress, the Supreme Court nevertheless viewed Guantanamo Bay, Cuba as a territory within the control and jurisdiction of the United States. Accordingly, the Eisentrager case may no longer be relied upon with confidence to rule out constitutional habeas protections for Guantanamo detainees. One of the Eisentrager factors that limited constitutional habeas rights for aliens in military custody was whether the detainee was held outside of the United States. Based on the finding of the Rasul case that Guantanamo Bay falls within U.S. territorial jurisdiction, Guantanamo detainees likely have a different constitutional status than the alien detainees in Eisentrager, who were held in Landsberg, Germany.

Article 1, section 9, clause 2 of the United States Constitution provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The United States is neither in a state of rebellion nor invasion. Consequently, it would problematic for Congress to modify the constitutionally protected writ of habeas corpus under current events.

I encourage the Senate Judiciary Committee to study the constitutional implications of S. 3930 on the habeas corpus rights of detainees in United States territory. Although no one wants the War on Terror to be litigated in the courts, Congress should act cautiously to strike a balance between the need to detain enemy combatants during the present conflict and the need to honor the historic privilege of the writ of habeas corpus. I thank you for holding a hearing on this topic and hope that it helps to strike that balance.

Sincerely,
Kenneth W. Starr.