The Supreme Court has addressed the habeas corpus issue in Guantanamo detainee cases, acknowledging that they do have a statutory right to judicial review. Since 2004, the administration has passed the Detainee Treatment Act and the Military Commissions Act to try to address the rulings from the Supreme Court, and Congress is now considering legislation as well.
Katsas said, "Extending habeas corpus to aliens abroad is both unnecessary and profoundly unwise. Over 50 years ago, the Supreme Court … held that aliens outside the sovereign territory of the U.S. have no constitutional rights."
"The Military Commissions Act is the most generous set of procedural rights ever afforded in the history of warfare to individuals against whom we are fighting," Brad Berenson, former associate White House counsel told the committee.
Jonathan Hafetz, a lawyer who represents the sole enemy combatant being held at the U.S. Navy Brig in Charleston, S.C., said, "Habeas guarantees individuals seized and detained by the government the right to question the legal and factual basis for their detention. It has traditionally been available to citizens, noncitizens, slaves, alleged spies and alleged enemies alike."
Katsas said that litigation over detainee rights has already placed burdens on the U.S. court system.
"The litigation imposed substantial burdens on the operation of a military base abroad in time of war … preventing military commission trials from even beginning, and it impeded interrogations critical to preventing further attacks," he said.
"These burdens would be even greater if habeas were made available to alien enemy combatants in larger conflicts."