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  • greg
    http://www.newsday.com/news/politics/wire/sns-ap-specter-miers-letter,0,5775729.story?coll=sns-ap-politics-headlines Text of Letter From Specter to Miers By
    Message 1 of 1 , Oct 26, 2005

      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.
      426 (2004).

      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
      neutral decision-maker."

      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
      aforementioned standards?

      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.
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