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Hunter Opening Statement for Hearing on Implications of the Supreme Court’s Boumediene Decision
Washington D.C. – U.S. Rep. Duncan Hunter (R-CA), Ranking Republican on the Armed Services Committee, today released the following opening statement for the committee’s hearing regarding the implications of the U.S. Supreme Court’s Boumediene vs. Bush decision on America’s detention policy in the Global War on Terrorism:
“Over the last few years this Committee has spent a great deal of time focusing on our detainee policy for the Global War on Terrorism. The policy that this Committee advanced took into account that the war against terror has produced a new type of battlefield and a new type of enemy. In the last Congress, we worked hard to pass the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA), ensuring that the United States is able to detain, interrogate and try terrorists—and to do so in a manner that is consistent with the Constitution and the international laws of war.
“As the Attorney General recently remarked about the DTA and the MCA, ‘these laws give more procedural protections than the United States—or any other country, for that matter—had ever before given to wartime captives, whether those captives were lawful soldiers in foreign armies, or unlawful combatants who target civilians and hide in civilian populations.’
“This delicate, carefully balanced framework—agreed to by the large majorities in both houses of Congress—was thrown into question as a result of the recent Supreme Court decision in Boumediene. In a deeply divided opinion, a five-four majority made the unprecedented decision to afford a constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.
“While I disagree with the Court’s opinion, the decision in Boumediene is now the law of the land. The challenge before the Committee today is clarifying the implications of the Boumediene decision.
“Though some of our panelists today advance the argument that the Supreme Court decision suggests other constitutional infirmities with the Military Commissions Act that warrant Congressional action, I continue to believe that absent an explicit decision by the Court that the commissions process is unconstitutional the trials should go forward without Congressional interference. It is important to note that the majority in Boumediene addressed the process for status determinations regarding detention—the Court was silent with respect to commissions.
“Currently there are 20 commissions in the works, and the first trial has just commenced. Under the MCA, each of the accused will have the right to appeal a guilty verdict to the Court of Military Commission Review, to the Court of Appeals for the DC Circuit and then to the Supreme Court. I encourage the Committee to heed the underlying principle of Chief Justice Robert’s dissent in Boumediene: we should not rush to judgment on the constitutionality of the commissions until the process is complete and the trials have exhausted their reviews.
“As we meet today, the case against the 9/11 conspirators is moving forward. As the Congress intended, the U.S. is in the process of bringing those responsible for the attacks on the World Trade Center and Pentagon to justice. Congress should exercise discretion.
“While Boumediene did not reach the issue of military commissions directly, it did raise a host of issues related to the process required to detain an individual the military believes to be a terrorist. Moreover, the basis for which the Court determined that detainees in GTMO have a constitutional right raises questions as to whether the Court’s rationale could extend to other places where the military holds detainees, like Iraq and Afghanistan. I share Justice Scalia’s concern that absent Congressional action, the policy for handling enemy prisoners in this war will ultimately lie with the branch that knows the least about the national security concerns the subject entails. I believe these are matters best left to political branches to decide.
“So what policy matters are put into question by Boumediene that should not be left to the Court’s to decide? Attorney General Mukasey recent speech on the subject highlights six critical areas that need Congressional action:
“First, and most important, Congress should make clear that a federal court may not order the Government to bring enemy combatants into the United States. Even under the current system, we’ve released detainees that have resurfaced on the battlefield and engaged in armed conflict. I share Justice Scalia’s concern that post-Boumediene the number of the enemy returned to combat will increase.
“Second, it is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our nation gathers intelligence and what that intelligence is. Attorney General Mukasey cites a terrorism case he presided over when he sat on the federal bench where the Government was required by law to hand over to the defense a list of unindicted co-conspirators – this list found its way to Osama Bin Laden in Khartoum.
“Third, Congress should make clear that habeas proceedings should not delay the military commission trials of detainees charged with war crimes. Fortunately, one Federal Judge has already ruled on this matter deciding that the trial should go forward, but this question is still at issue. ‘The victims of September 11th should not have to wait any longer to see those who stand accused face trial.’
“Fourth, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations. Large majorities of this Congress support supplemental spending bills that pay for the war and allow for the continued fight against al Qaeda, yet there are judges who question whether there is still authorization to detain. We should put any doubt to rest.
“Fifth, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that common legal issues be decided by one judge in a coordinated fashion. It is simply absurd to have the rules of the game change from one detainee’s case to another.
“Last, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. Simply put, detainees should not have two bites at the apple. Now that they will receive habeas review there is no reason for the DC Circuit to review status determinations too.
“At stake here is whether this Congress—and this Committee in particular—will allow the slow creep of lawfare to replace warfare. Our men and women in uniform are trained in armed conflict—the battlefield is not a place for a crime scene investigative unit.
“As the Attorney General recently argued, ‘…military personnel should not be required to risk their lives to create the sort of arrest reports and chain-of-custody reports that are used, under very different circumstances, by ordinary law enforcement officers in the United States. Battlefields are not an environment where such reports can be generated without substantial risk to American lives.’
“Finally, Mr. Chairman, it is the battlefield that this Committee needs to keep in mind here. My greatest concern in light of Boumediene is its potential effect on operations in Iraq and Afghanistan. We detain thousands of detainees in Iraq and hundreds in Afghanistan. Detention is a fundamental component of warfare; it keeps combatants off the battlefield and provides actionable intelligence. We cannot hamper our warfighters by providing them with the perilous choice of releasing detainees or complying with process requirements of the criminal justice system.
“In the past I would have thought such a concern was remote, bordering on paranoia. However, as we meet today, detainees in Afghanistan have filed petitions for habeas relief in US courts. As one editorialist recently pointed out, the Supreme Court ‘reject[ed] the concept that court jurisdiction is limited to sovereign American territory’ and could extend not just to ‘captives at Gitmo but all detainees ‘abroad’.’ This is simply untenable.”
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