Key Points 1) They claim the president has constitutional authority to use military tribunals as constituted. [ Dubious on the merits, but immaterial in any case: Geneva and ICCPR have clear precedence. -cbg ] 2) They claim that these prisoners are not entitled to the same rights as US citizens. [ False: by statute and treaty, basic human and legal rights are universal under US law, Geneva, and ICCPR. -cbg ] 3) Quirin 4) Yamashita & Eisentrager >>> 1 <<< MR. WOLFOWITZ: Mr. Chairman, I'm going to ask the general counsel to address the issue of authority. But I believe that it's worth emphasizing very, very strongly here that we are proceeding very deliberately. It is nearly a month now since the president issued that order. And as I believe everyone has observed, we have not yet -- he has not yet chosen to designate anyone for trial by those commissions. We are still working on the procedures. We are listening very carefully to a very wide range of views, some very distinguished outsiders. And I won't try to mention everyone, but to give you a sense of -- SEN. LEVIN: I wonder, though, whether you could just address the question, because we're limited in time. MR. WOLFOWITZ: Okay. SEN. LEVIN: Do you agree with the attorney general that -- MR. WOLFOWITZ: I believe we have the authority. SEN. LEVIN: Pardon? I'm sorry, you do or do not. MR. WOLFOWITZ: I believe we do. ### 1 ### >>> 2 <<< SEN. REED: Again, I don't want to keep emphasizing this, but it's a fundamental right, habeas corpus. It's a right which the court recognizes is available to someone tried by a military tribunal within the United States, but simply a decision administratively not to try the person in the United States could render that right to habeas corpus moot. So, it seems to me that this is an issue that you have to devote yourself to very seriously in terms of some procedures to review cases. MR. HAYNES: We are being very serious. But I point out that we are talking about non-U.S. -- in your hypothetical - - non-U.S. citizens outside the United States. The Constitution does not give those individuals anywhere near the rights that U.S. citizens have. [ But both the Geneva Convention and the ICCPR do gaurantee them such rights, and the United States is bound to honor both of those conventions. ] ### 2 ### >>> 3 <<< SEN. JEFFREY SESSIONS (R-AL): I would just like to -- maybe, Mr. Haynes, run through a few of the questions that I think get down to the nitty gritty. And you may not be prepared to answer them, but maybe you can give us some of the difficulties and tensions in answering these questions. We've talked about habeas corpus. That is the right of a person who -- to bring himself before a court to find out if they've been charged with a crime and what it is, fundamentally, and that's the great writ. But, the Quirin case, as I understood it, said fundamentally that there would be a right to bring them forward to make sure that the trial was appropriately tried in the military commission. Is that basically what the court decided in Quirin? MR. HAYNES: Yes sir. That's why they -- that's why they heard it, and they made the determination that it was appropriate. SEN. SESSIONS: So, otherwise, if it was properly tried in the military tribunal, the Supreme Court approved the complete handling of that case in the executive branch, is that right? MR. HAYNES: Yes sir, that's right. SEN. SESSIONS: And I would just point out that Americans are so committed to civil liberties that we have some difficulties understanding there are other ways of doing justice. You do have an appellate process here. This order requires that a transcript of the case be made, the whole trial, is that correct? MR. HAYNES: That's correct. SEN. SESSIONS: And that an appeal be given to the secretary -- the president -- or, if he designates, the secretary of defense to review that record to make sure justice was done, is that correct? MR. HAYNES: That is correct. SEN. SESSIONS: And the secretary of defense could assign JAG officers and other officers as they choose to study and review every aspect of that if he so chose? MR. HAYNES: Yes sir. The form of that remains to be seen, but that's correct. SEN. SESSIONS: However he chose to do that. And it would just strike me that we're operating under the War Powers provision here, which is an executive branch function. And I would suggest that history should be the guide, and if it is the guide, Mr. Haynes, then any reviews and appeals would be within the executive branch, is that correct? MR. HAYNES: That's correct, although, as we said earlier, there's no intent to preclude an accused from seeking a habeas corpus writ. ### 3 ###