01 March 2007
Dear Ms. Count-Wayt:
Thank you for contacting my office regarding the treatment of prisoners detained by the United States in connection with the global war on terrorism. I appreciate hearing from you.
The United States has no higher priority than the war against terrorism. In the course of this struggle, we must make every effort to detain those who engage in acts of terrorism and to obtain information from detainees that will enable us to prevent future attacks. At the same time, it is imperative we wage the war in a way that upholds the values the United States has always advanced, making clear by our actions and our example that we stand for freedom and fairness.
In the June 2006 Supreme Court decision, Hamdan v. Rumsfeld , the Court held that military commissions used in prosecuting enemy combatants at Guantanamo Bay must be authorized by Congress and must obey the legal obligations of the Geneva Conventions' Common Article III and the Uniform Code of Military Justice. The decision explicitly urged Congress to legislate a solution by properly establishing military commissions to try alien unlawful enemy combatants.
Following the Hamdan decision, members of the Senate Armed Services Committee worked with President Bush to craft legislation to establish military tribunals. I generally supported the legislation drafted by these Senators and the administration; however, I had serious reservations about a provision in the bill which eliminated detainees' right to habeas corpus. Habeas corpus is the right of those in custody to challenge their detainment in court. During my tenure as Chairman of the Senate Judiciary Committee in the 109th Congress, I held a hearing on September 25, 2006, to specifically address habeas corpus for Guantanamo detainees. During the Senate's consideration of the legislation, I offered an amendment which would have guaranteed habeas corpus for detainees. Unfortunately, the amendment failed on a narrow 48-51 vote.
On September 28, 2006 the Senate passed the Military Commissions Act by a vote of 65-34. Although my amendment was rejected, I voted in favor of the bill because I believe, without this legislation, the ability of our government to effectively fight the global war on terrorism would be hindered. I believe this legislation is severable, meaning the legislation was composed in a fashion where a court could rule on the constitutionality of individual provisions without rendering the entire legislation unconstitutional. Therefore, I am confident the courts will address the legislation's constitutionality by ruling on the provision limiting habeas corpus.
Although I believe courts will ultimately strike down the habeas corpus provisions of the Military Commissions Act as unconstitutional, as a cautionary measure, I have introduced S.185, the Habeas Corpus Restoration Act. This legislation would ensure detainees have the ability to challenge their detention in federal courts. While the 109th Congress did not yield sufficient time to consider this legislation, I look to move forward on this legislation in the early days of the 110th Congress.
I supported the Military Commissions Act because, aside from the problematic habeas corpus language, the bill enacts good policy. It amplifies Congress's previous legislation prohibiting torture. Additionally, the bill provides that military commissions must be established in accordance with the Uniform Code of Military Justice and Common Article III of the Geneva Conventions. Finally, it establishes specific guidelines for the use of hearsay evidence and coerced testimony and the handling of classified information.
As a member of the United States Senate, I have a consistent record of voting to ensure we adhere to the same values we fight to protect. On October 5, 2005, I voted in favor of an amendment introduced by Senator John McCain to the Fiscal Year 2006 Department of Defense Appropriations Act prohibiting "cruel, inhuman, or degrading treatment" of detainees. This amendment passed on a 90-9 vote in the Senate and was signed into law by President Bush on December 30, 2005. During consideration of the Fiscal Year 2005 Defense Authorization Act, I supported an amendment offered by Senator Leahy that stated it is policy of the United States to treat prisoners in its control humanely. Furthermore, I cosponsored an amendment offered by Senator Durbin reaffirming prisoners of war and enemy combatants must not be tortured or treated inhumanely. In light of the abuses at Abu Ghraib prison in Iraq , I cosponsored the Senate resolution that condemned the abuse of Iraqi prisoners at Abu Ghraib and called for a full and complete investigation to ensure justice is served.
On June 25, 2003, I wrote to National Security Advisor Condoleezza Rice expressing my concern over the mistreatment of enemy combatants in the custody of the United States . Our reputation has been significantly marred by the abuse of some detainees. The images and stories appearing in both the American, and perhaps more significantly, the Arab and international media have the potential to damage America 's standing as the unquestioned champion of human rights and the rule of law.
I believe the United States should make it clear that all interrogations of enemy combatants are conducted in a manner consistent with our obligations under the "Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment." This treaty, ratified by the United States , provides the most widely accepted definition of torture and other forms of unlawful mistreatment.
Thank you again for contacting me. The concerns of my constituents are of great importance to me, and I rely on you and other Pennsylvanians to inform me of your views. Should you have any further questions, please do not hesitate to contact my office or visit my website at http://specter.senate.gov .