A time comes when silence is betrayal . . . We must speak with all the humility that is appropriate to our limited vision, but we must speak. For we are deeply in need of a new way beyond the darkness so close around us.
Martin Luther King, Jr.
Washington Region Religious Campaign Against Torture
WASHINGTON (Monday, Sept. 25) -- Below is the statement of Senator Patrick Leahy, (D-Vt.), from today’s Judiciary Committee hearing on the provisions included in the latest military tribunal bill to limit Guantanamo detainees’ access to habeas corpus review, a cornerstone of America’s legal and constitutional system. At the hearing, Leahy highlighted the historic consequences of such measures, and urged Congress not to rush through consideration of these sweeping and profound proposals.
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Statement of Senator Patrick Leahy,
Ranking Member, Judiciary Committee
Hearing on “Examining Proposals to Limit Guantanamo
Detainees’ Access to Habeas Corpus Review,"
September 25, 2006
I commend the Chairman for holding this hearing today on the provisions in the proposed military commissions bill that would eliminate for detainees the writ of habeas corpus, a cornerstone of our legal and constitutional system. I wish this hearing could have taken place at a time when more Senators could attend and when witnesses, Senators, and staffs could have had time to prepare. This issue carries serious consequences and deserves to be considered carefully.
For weeks now, politicians and the media have breathlessly debated the fine points and political implications of the
so-called “compromise” on proposed trial procedures for suspected terrorists. In doing so, we have ignored a
central and more sweeping issue. Important as the rules for military commissions are, they will apply to only a few
cases. The Administration has charged a total of 10 people in the nearly five years since the President declared his
intention to use military commissions, and it recently announced plans to charge 14 additional men. But for the
vast majority of the almost 500 prisoners at Guantanamo, the Administration’s position remains as stated by Secretary Donald Rumsfeld three years ago: It has no interest in trying them.
Today we are belatedly addressing the single most consequential provision of this much-discussed bill, a provision that can be found buried on page 81 of the proposed bill. This provision would perpetuate the indefinite detention of hundreds of individuals against whom the Government has brought no charges and presented no evidence, without any recourse to justice whatsoever. That is un-American, and it is contrary to American interests.
Going forward, the bill departs even more radically from our most fundamental values. It would permit the President to detain indefinitely – even for life – any alien, whether in the United States or abroad, whether a foreign resident or a lawful permanent resident, without any meaningful opportunity for the alien to challenge his detention. The
Administration would not even need to assert, much less prove, that the alien was an enemy combatant; it would
suffice that the alien was “awaiting [a] determination” on that issue. In other words, the bill would tell the
millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes, that our Government may at any minute pick them up and detain them indefinitely
without charge, and without any access to the courts or even to military tribunals, unless and until the Government
determines that they are not enemy combatants.
Detained indefinitely, and unaccountably, until proven innocent. Like Canadian citizen Maher Arar. As the Canadian Government recently concluded in a detailed and candid report, there is no evidence that Mr. Arar ever
committed a crime or posed a threat to U.S. or Canadian security. Yet, while returning home to Canada from a family vacation, he was detained, interrogated, and then shipped off to a torture cell in Syria by the Bush-Cheney
Administration While the Canadian Government has now documented that the wrong thing was done to the wrong man, the Bush-Cheney Administration has, as usual, evaded all accountability by hiding behind a purported state secrets privilege.
The Administration’s defenders would like to believe that Mr. Arar’s case is an isolated blunder, but it is not. Numerous press accounts have quoted Administration officials who believe that a significant percentage of those detained at Guantanamo have no connection to terrorism. In other words, we have been holding for several years, and intend to hold indefinitely without trial or any recourse to justice, a substantial number of innocent people who were picked up by mistake in the fog of war.
The most important purpose of habeas corpus is to correct errors like that. It is precisely to prevent such abuses
that the Constitution prohibits the suspension of the writ of habeas corpus “unless when in Cases of Rebellion or
Invasion the public Safety may require it.” I have no doubt that this bill, which would permanently eliminate the writ
of habeas for all aliens within and outside the United States whenever the Government says they might be enemy
combatants, violates that prohibition. And I have no doubt that the Supreme Court would ultimately conclude that this attempt by the Bush-Cheney Administration to abolish basic liberties and evade essential judicial review and
accountability is unconstitutional.
It would be utterly irresponsible for Congress to neglect our oath to the Constitution and the American people and
pass this unconstitutional legislation in the hope that the Court will ultimately rescue us from our folly. Doing so
would only undermine the War on Terror by prolonging the legal limbo into which the Administration has dragged the
entire regime of military detentions.
We should have put military detentions on a solid legal footing and established military tribunals four years ago.
I introduced a bill in 2002 to authorize military commissions. So did Senator Specter. But the White House
and the Republican leadership ignored us, choosing instead to roll the dice and hope that it could prevail on its
radical go-it-alone theories of presidential power.
The Bush-Cheney Administration got a rude awakening earlier this year in the Hamdan case. The Supreme Court -- which happens to include seven Republican appointees in its nine Justices -- affirmed what we had told it all along: when the terrorists brought down the Twin Towers on 9/11, they did not bring down the rule of law on which our system of Government is founded. They did not supplant our republican form of Government with one in which an unaccountable Executive can imprison people forever without trial or judicial review.
On its way to losing that case, the Administration wasted four years. Actually, it did more than waste four years.
Just yesterday the press reported what the Administration has been misrepresenting to the American people and what was apparently confirmed in a National Intelligence Estimate: that the invasion and continuing U.S. military presence in Iraq has created a new generation of anti-American terrorists, that the terrorist threat against the U.S. has grown and, according to intelligence officials, that the Iraq war has “made the overall terrorism problem worse.”
Meanwhile, having failed to try a single detainee, and having failed to secure a conviction of a single terrorist
offense, the Administration is demanding that we pass a bill it drafted last week before the end of this week.
The Administration’s sudden and belated haste to move ahead makes no sense, other than as a matter of crass electoral politics. We are taking a first look at a bill that the Administration claims is central to the decisive ideological battle of the 21st Century, a bill that would suspend habeas corpus for the first time since the Civil War, and a bill that, if enacted, will almost certainly be used by America’s enemies as a pretext for the torture and indefinite detention without judicial review of Americans abroad.
If the Administration and the Republican leadership of the Senate believe that suspending the writ is constitutional
and justified, they should grant the joint request that Chairman Specter and I made last week for a sequential
referral of the bill. Constitutional issues involving the writ of habeas corpus are at the center of this Committee’s
jurisdiction. We can and should review this legislation thoroughly, and if a few habeas petitions are filed in the
meantime, we will not lose the War on Terror as a result of those filings. If this Congress votes to suspend the writ
of habeas corpus first and ask questions later, liberty and accountability will be the victims.
# # # # #
(Below is a letter Senator Leahy sent to Attorney General
Gonzales regarding the case of Canadian citizen Maher Arar)
September 22, 2006
The Honorable Alberto Gonzales
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Gonzales:
I write to inquire again about the rendition of Maher Arar,
a Canadian and Syrian citizen, from the United States to
Syria in 2002. I have made several inquires to your
predecessor and other officials in the Bush Administration
about Mr. Arar’s case over the years, with no satisfactory
In 2002, Mr. Arar was stopped by immigration officials at
John F. Kennedy International Airport as he was attempting
to change planes on his flight home to Canada from vacation
in Tunisia. Press reports at the time indicated that Mr.
Arar was not provided legal counsel because he was not an
American citizen. Mr. Arar also repeatedly told U.S.
officials that he feared he would be tortured if returned to
Syria. After being held for two weeks in a federal
detention center, Mr. Arar was handed over to U.S.
intelligence officials who then flew him to Jordan and
transported him to Syria. He was released in 2003 and
returned to Canada, after more than 10 months of
imprisonment in Syria. Syrian officials found no evidence
that he had any connection to terrorism.
As you know, earlier this week a Canadian commission charged
with investigating Mr. Arar’s deportation to Syria,
concluded that Canadian intelligence agents falsely labeled
Mr. Arar as a threat and that U.S. officials placed Mr. Arar
on the terrorist “watchlist” unnecessarily. The commission
found in its report that while he was detained in Syria for
more than 10 months, Mr. Arar was “interrogated, tortured
and held in degrading and inhumane conditions” to such a
degree that he falsely confessed to attending a terrorist
training camp in Afghanistan.
Furthermore, public reports indicate that the United States
“refused to cooperate with the commission” and denied
requests for documents and testimony surrounding the case.
The Department of Justice has declined to answer my prior
inquiries about Mr. Arar’s case other than to say that the
matter was the subject of ongoing litigation, and the
Department could not comment.
However, in light of the report from Canada’s Arar
Commission, you recently publicly commented on this matter.
During a press conference earlier this week, when asked if
the Department of Justice owes Mr. Arar an apology, you
We were not responsible for [Mr. Arar’s] removal to
Syria, I’m not aware that he was tortured, and I
haven’t read the Commission report. Mr. Arar was
deported under our immigration laws. He was initially
detained because his name appeared on terrorist lists,
and he was deported according to our laws.
A clarification was quickly issued Wednesday by the Justice
Department, saying that you “’had [your] timeline mixed
up,’” and that you “forgot that at the time of Mr. Arar’s
deportation, such matters were still handled by the
Immigration and Naturalization Service,” not the Department
of Homeland Security where deportation matters are currently
held, according to news reports.
You also said in your press conference that Mr. Arar’s
transfer to Syria was a deportation, not a rendition:
And even if it was a rendition, we understand as a
government what our obligations are with respect to
anyone who is rendered by this government to another
country, and that is that we seek to satisfy ourselves
that they will not be tortured. … And if in fact he
had been rendered to Syria, we would have sought those
same kind of assurances, as we do in every case.
Since you have spoken publicly about this matter, I trust
that you will now be able to provide a complete explanation
for the United States government’s actions in relation to
Mr. Arar. I request that you please provide detailed
answers to the following questions:
1. If, in fact, Mr. Arar was deported, as you
have asserted, why was it necessary to deport him,
since he had a Canadian passport and was on his way
back to Canada?
2. You said that this was a deportation, not a
rendition. If so, given that Mr. Arar, a Canadian
citizen, resides in Canada and was traveling home to
Canada when he was detained at the airport, why did
United States officials choose not to turn him over to
Canadian authorities or deport him to Canada? Why was
Mr. Arar deported instead to Syria, which makes less
sense, is more logistically difficult, and costs more?
3. Was Mr. Arar denied access to an attorney
while in United States custody, as he has alleged?
Was he given access to Canadian consular officials
while in United States custody?
4. The Canadian commission examining this case
found that the Canadian intelligence labeling Mr. Arar
a threat was faulty and that he was unnecessarily
placed on our government’s terrorist watchlist. On
what intelligence and what authority was Mr. Arar
originally held? Has the Justice Department reviewed
the intelligence that provided the basis for holding
him? What was the result of any such review?
5. Under U.S. law, non-citizens who express
concerns about torture if removed are entitled to an
evaluation of their claim before being removed. Under
the specific regulations that were likely applied to
Mr. Arar’s removal, there is an explicit prohibition
against returning someone to a country where there are
substantial grounds for believing he would be
subjected to torture. Did Mr. Arar tell United States
officials, as he has claimed, that he would be
tortured if taken to Syria? Was that claim evaluated?
What were the results of any such evaluation? What
process was used, if any, to determine the likelihood
that Mr. Arar would be subject to torture if removed
6. Were any assurances in fact given by Syria
that it would not torture Mr. Arar? If so, what were
7. Canada’s Arar Commission concluded that he was
tortured in Syria and held in degrading and inhumane
conditions. Has the United States attempted to
determine whether these conclusions are correct?
8. Why did the United States government
apparently choose not to cooperate with Canada’s
9. If the commission’s conclusions are correct,
then any assurances given by Syria that it would not
torture Mr. Arar were dishonest, and Syria’s conduct
was consistent with its past record of engaging in
torture. What steps has the United States government
taken to ensure that others who are the subject of
rendition, or deportation, will not be tortured,
regardless of any assurances given by governments with
a history of torturing prisoners?
10. Please provide a full explanation of the United
States government’s conduct in connection with the
arrest, detainment, rendition, and/or deportation of
Mr. Arar, along with any investigation the government
has conducted about the case and any cooperation the
United States government has provided, or declined to
provide, to foreign governments investigating the
Thank you for your prompt answers to these questions.