Jon Kyl: “first of all, I appreciate both the courtesy of the Senator from Pennsylvania and his important legal analysis and would…”

“first of all, I appreciate both the courtesy of the Senator from Pennsylvania and his important legal analysis and would answer the question in this way. I think that most observers believe that the Rasul decision is not a decision on the Constitution but on the statute; that it interprets rights based upon the statute, which Congress can change; that it is not a holding that provides a constitutional right to alien enemy combatants to litigate via habeas corpus. Secondly, the Great Writ that has been quoted by the Senator from Pennsylvania has always been understood in decisions of the court to be defined as it existed at the time of the Constitution. That is why there is always a great interest in looking back to decisions in the common law of England prior to the adoption of our Constitution, the Bill of Rights. I think, as I said in my statement, that there has never been a case that suggests that at the time the language about habeas corpus was put into our Constitution any court, in either the United States or England, at the time, had ever held that the writ applied to alien enemy combatants. So it has never been held that the writ applies to aliens. It has been held that it applies to U.S. citizens, and it has certainly never been held that it applies to alien enemy combatants.”