updated 10/26/2005 6:35:17 PM ET 2005-10-26T22:35:17

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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