Text of Letter From Specter to Miers
By The Associated Press
October 26, 2005, 5:23 PM EDT
Text of an Oct. 24 letter from Senate Judiciary Committee Chairman
Arlen Specter, R-Pa., to Supreme Court nominee Harriet Miers:
In advance of the Judiciary Committee hearings on the nomination of
Chief Justice Roberts, I wrote to him by letters dated Aug. 8 and Aug.
23, 2005, to identify some of the issues I intended to ask. In our
meeting on Oct. 17, I gave you copies of those letters since I intend
to discuss those topics in your hearing and also suggested that you
would have, in effect, a "roadmap" as to subjects of inquiry by other
senators and myself from the questions posed to Chief Justice Roberts.
I believe it is appropriate and useful to add to the list of
prospective issues the subject of executive authority, especially in
light of your close relationship with the president and the key
positions you have held in the White House.
On June 15, 2005, the Judiciary Committee held a hearing on the
Guantanamo Bay detention process and considered in some detail the
three decisions the Supreme Court of the United States handed down
June 24, 2004 captioned: Rasul v. Bush, 124 S. Ct. 2686 (2004); Hamdi
v. Rumsfeld , 542 U.S. 507 (2004) and Rumsfeld v. Padilla, 542 U.S.
The vast majority of detainees in Guantanamo labeled "enemy
combatants" are purportedly kept in custody solely for the purpose of
detainment and not for punishment. The administration asserts that
they are detained at the facility to prevent them from returning to
the battlefield and to provide the government an opportunity to
interrogate them to gather intelligence.
1. Are there any limitations as to how long detainees may be held for
the purposes identified by the government?
In Rasul v. Bush, by a 6-3 majority, the court held that United States
courts do have jurisdiction under the habeas corpus statute to
consider challenges to the legality of foreign nationals captured
abroad and incarcerated in Guantanamo Bay.
2. What jurisprudential considerations are involved on the
constitutional authority of the president to detain aliens outside
United States borders contrasted with the constitutional authority of
federal courts to grant habeas corpus?
3. How would you evaluate the jurisprudential factors involved in the
dissent by Chief Justice Rehnquist, Justice Scalia and Justice Thomas
that U.S. courts do not have jurisdiction outside the sovereign
borders and territory of the United States compared to Justice
Stevens' majority opinion that habeas jurisdiction extends to aliens
held in territory where the United States exercises plenary and
exclusive jurisdiction even though the United States does not have
"ultimate sovereignty" over the base?
In Hamdi v. Rumsfeld, the court concluded that a United States citizen
can be held as an enemy combatant but that due process requires him to
be given a "meaningful opportunity" to contest his decision and to
"receive notice of the factual basis for his classification and a fair
opportunity to rebut the government factual assertions before a
4. What are the jurisprudential considerations for a "meaningful
opportunity" with respect to the evidence to (a) support
classification of being an enemy combatant, (b) confront witnesses,
(c) enjoy the right to counsel and (d) obtain access to classified
information to contest the classification?
On Oct. 16, 2002, Congress authorized the president to use his force
in Iraq. On March 19, 2003, the president exercised that authority.
During the course of Senate debate on that resolution, I raised the
issue as to whether there was an unconstitutional delegation by
Congress to the president of the core constitutional authority to
declare war. I cited authority to the effect that the framers never
intended that a state of war could arise except as a result of
contemporaneous decision of Congress on the basis of known facts.
Obviously the Iraqi situation was subject to substantial change
between October 2002 and April 2003.
5. How would you evaluate the jurisprudential factors on the
constitutionality of Congress' delegation of its core authority to
declare and initiate a war where circumstances may change from the
time of the delegation until the time of utilization of that authority?
There has been considerable debate as to the exclusive authority of
Congress to involve the United States in war contrasted with many
instances where the president has involved the United States in
military action under his constitutional authority as commander in chief.
6. Was the Korean conflict a war which should have, as a matter of
constitutional law, required a declaration of war by Congress?
7. Was the Vietnam conflict a war which should have, as a matter of
constitutional law, required a declaration of war by Congress?
Article II, section 2 of the Constitution states that the president
"shall have power, by and with the advice and consent of the Senate,
to make treaties, provided two-thirds of the senators present concur."
There is a corollary procedure for executive agreements which require
approval by the Congress. These procedures are labeled as
"Congressional-Executive agreements" and are international agreements
that Congress has authorized the president to negotiate and conclude,
or international agreements that Congress approves after the president
concludes them. In addition, it has become a commonplace practice for
the president to execute agreements with foreign powers which are not
viewed as requiring congressional approval under either the Senate's
authority to ratify a treaty or the more formalized
Congressional-Executive agreement procedure.
8. What jurisprudential factors are involved in the determination of
when Senate ratification is required for a treaty, the formalized
agreements calling for congressional approval and the less formal
executive agreements which do not fall under either of the
9. Without inquiring in any way concerning the advice you have given
the president because of the doctrine of executive privilege, what
standard would you apply, if confirmed, in recusing yourself on any
subject where you have advised the president?
10. What assurances can you give the Senate and the American people
that you will be independent, if confirmed, and not give President
Bush any special deference on any matter involving him which might
come before the court?
If you would like to discuss any of these or other issues before the
hearing, I would be pleased to do so.