Senate Judiciary Committee hearing on “Restoring the Great Writ.” For testimony and member statements see here. Witnesses include Professor Orin Kerr from George Washington University and William H. Taft IV, the former chief legal advisor at the State Department and a noted dissenter from the decision made at the outset of Gitmo detentions to abandon the Geneva Conventions. From Mr. Taft’s statement:
I am pleased to appear in response to your invitation to discuss the provisions of the Military Commissions Act relating to judicial review of the detention of persons at Guantanamo Bay. I testified recently on this subject before the House Committee on Armed Services. I welcome the interest that both houses of Congress are taking in this matter. Briefly, I believe it was a mistake for Congress to take away from the detainees at Guantanamo the ability to obtain judicial review by habeas corpus of the lawfulness of their detention, and I recommend that Congress restore it.As I understand it, under present law detainees convicted by military commissions may obtain judicial review of their convictions after their criminal cases are concluded, and persons who are not charged with crimes, or have perhaps been acquitted of crimes, but detained as enemy combatants pursuant to determinations of their status by Combatant Status Review Tribunals may obtain review of those determinations. That review, however, does not accord the detainee the same opportunity to challenge his detention that he would have in a normal habeas corpus proceeding. Before the enactment of the Military Commissions Act last year, detainees were entitled under the Supreme Courtâ€™s interpretation of the relevant authorities to have the lawfulness of their detention reviewed after filing petitions for habeas corpus. The benefits of this displaced procedure were considerable, not so much for the detainees in Guantanamo â€“ none of whom was released by a court — as for establishing beyond argument the legitimacy of holding persons who continued to present a threat to the United States as long as the terrorists continue to pursue their war against us.