[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 110-167]
IMPLICATIONS OF THE SUPREME
COURT'S BOUMEDIENE DECISION FOR
DETAINEES AT GUANTANAMO BAY, CUBA:
ADMINISTRATION PERSPECTIVES
__________
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD
JULY 31, 2008
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
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HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Tenth Congress
IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina DUNCAN HUNTER, California
SOLOMON P. ORTIZ, Texas JIM SAXTON, New Jersey
GENE TAYLOR, Mississippi JOHN M. McHUGH, New York
NEIL ABERCROMBIE, Hawaii TERRY EVERETT, Alabama
SILVESTRE REYES, Texas ROSCOE G. BARTLETT, Maryland
VIC SNYDER, Arkansas HOWARD P. ``BUCK'' McKEON,
ADAM SMITH, Washington California
LORETTA SANCHEZ, California MAC THORNBERRY, Texas
MIKE McINTYRE, North Carolina WALTER B. JONES, North Carolina
ELLEN O. TAUSCHER, California ROBIN HAYES, North Carolina
ROBERT A. BRADY, Pennsylvania W. TODD AKIN, Missouri
ROBERT ANDREWS, New Jersey J. RANDY FORBES, Virginia
SUSAN A. DAVIS, California JEFF MILLER, Florida
RICK LARSEN, Washington JOE WILSON, South Carolina
JIM COOPER, Tennessee FRANK A. LoBIONDO, New Jersey
JIM MARSHALL, Georgia TOM COLE, Oklahoma
MADELEINE Z. BORDALLO, Guam ROB BISHOP, Utah
MARK E. UDALL, Colorado MICHAEL TURNER, Ohio
DAN BOREN, Oklahoma JOHN KLINE, Minnesota
BRAD ELLSWORTH, Indiana PHIL GINGREY, Georgia
NANCY BOYDA, Kansas MIKE ROGERS, Alabama
PATRICK J. MURPHY, Pennsylvania TRENT FRANKS, Arizona
HANK JOHNSON, Georgia BILL SHUSTER, Pennsylvania
CAROL SHEA-PORTER, New Hampshire THELMA DRAKE, Virginia
JOE COURTNEY, Connecticut CATHY McMORRIS RODGERS, Washington
DAVID LOEBSACK, Iowa K. MICHAEL CONAWAY, Texas
KIRSTEN E. GILLIBRAND, New York GEOFF DAVIS, Kentucky
JOE SESTAK, Pennsylvania DOUG LAMBORN, Colorado
GABRIELLE GIFFORDS, Arizona ROB WITTMAN, Virginia
NIKI TSONGAS, Massachusetts
ELIJAH E. CUMMINGS, Maryland
KENDRICK B. MEEK, Florida
KATHY CASTOR, Florida
Erin C. Conaton, Staff Director
Paul Oostburg, General Counsel
Thomas Hawley, Professional Staff Member
Caterina Dutto, Staff Assistant
C O N T E N T S
----------
CHRONOLOGICAL LIST OF HEARINGS
2008
Page
Hearing:
Thursday, July 31, 2008, Implications of the Supreme Court's
Boumediene Decision for Detainees at Guantanamo Bay, Cuba:
Administration Perspectives.................................... 1
Appendix:
Thursday, July 31, 2008.......................................... 31
----------
THURSDAY, JULY 31, 2008
IMPLICATIONS OF THE SUPREME COURT'S BOUMEDIENE DECISION FOR DETAINEES
AT GUANTANAMO BAY, CUBA: ADMINISTRATION PERSPECTIVES
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Hunter, Hon. Duncan, a Representative from California, Ranking
Member, Committee on Armed Services............................ 1
Skelton, Hon. Ike, a Representative from Missouri, Chairman,
Committee on Armed Services.................................... 1
WITNESSES
Dell'Orto, Daniel J., Acting General Counsel, Department of
Defense; Gregory G. Katsas, Assistant Attorney General, Civil
Division, Department of Justice; Col. Steven David, USA, Chief
Defense Counsel, Office of Military Commissions, Department of
Defense; and Sandra Hodgkinson, Deputy Assistant Secretary for
Detainee Affairs, Department of Defense, beginning on page..... 2
APPENDIX
Prepared Statements:
David, Col. Steven........................................... 58
Dell'Orto, Daniel J.......................................... 35
Katsas, Gregory G............................................ 44
Documents Submitted for the Record:
Supplemental Testimony of Steven David, Colonel, United
States Army Reserve, Chief Defense Counsel, Department of
Defense, Office of Military Commissions.................... 71
Witness Responses to Questions Asked During the Hearing:
[The information was not available at the time of printing.]
Questions Submitted by Members Post Hearing:
Mr. Skelton.................................................. 87
IMPLICATIONS OF THE SUPREME COURT'S BOUMEDI-
ENE DECISION FOR DETAINEES AT GUANTANAMO BAY, CUBA: ADMINISTRATION
PERSPECTIVES
----------
House of Representatives,
Committee on Armed Services,
Washington, DC, Thursday, July 31, 2008.
The committee met, pursuant to call, at 2:04 p.m., in room
2118, Rayburn House Office Building, Hon. Ike Skelton (chairman
of the committee) presiding.
OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM
MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES
The Chairman. Good afternoon. Our committee will come to
order.
This afternoon, we have the second part of our series of
hearings on the implication of the Boumediene decision from the
United States Supreme Court.
For this afternoon's panel, we have Mr. Daniel Dell'Orto,
who is the Acting General Counsel for the Department of
Defense; Gregory Katsas, who is the Assistant Attorney General
for the Civil Division of the Justice Department; Colonel Steve
David, the Chief Defense Counsel in the Office of Military
Commissions in the Department of Defense; and Sandra
Hodgkinson, who is the Deputy Assistant Secretary for Detainee
Affairs in the Department of Defense, who will not testify but
will be available for questions. Am I correct?
Ms. Hodgkinson. Yes, sir.
The Chairman. Ranking Member Duncan Hunter, remarks.
STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM
CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. Hunter. Mr. Chairman, let's get right with the program
here; and I look forward to the witnesses' statements. I am
sure we will have some good questions afterwards.
The Chairman. Thank you.
STATEMENTS OF DANIEL J. DELL'ORTO, ACTING GENERAL COUNSEL,
DEPARTMENT OF DEFENSE; GREGORY G. KATSAS, ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE; COL. STEVEN
DAVID, USA, CHIEF DEFENSE COUNSEL, OFFICE OF MILITARY
COMMISSIONS, DEPARTMENT OF DEFENSE; AND SANDRA HODGKINSON,
DEPUTY ASSISTANT SECRETARY FOR DETAINEE AFFAIRS, DEPARTMENT OF
DEFENSE
The Chairman. Mr. Dell'Orto, you are on.
STATEMENT OF DANIEL J. DELL'ORTO
Mr. Dell'Orto. Thank you, Mr. Chairman, Ranking Member
Hunter, and members of the committee for the opportunity to
testify on the implications of the Supreme Court's Boumediene
decision for detainees at Guantanamo Bay, Cuba.
The Department of Defense is working diligently to satisfy
the considerable litigation requirements stemming from the
Supreme Court's decision in Boumediene v. Bush. The
ramifications of that decision for the Department of Defense
and for our Nation are significant. The Department already has
experienced some of these ramifications, while others are
looming in the near future and still others are as yet unknown.
As significant as Boumediene is, it is only one in a recent
line of decisions that establish an unprecedented level of
judicial involvement in matters historically and, in the
Department's view, most appropriately reserved to military
professionals, including decisions on whom to detain as enemy
combatants in an ongoing armed conflict.
There are currently more than 250 petitions for the writ of
habeas corpus pending in federal district court that involve
more than 300 current or former Guantanamo detainees. Now that
the Supreme Court has ruled that these petitions may proceed,
the Department is diverting personnel and assets from other
ongoing missions to respond to them. Those diverted are not
just legal personnel and administrative assets. We also have
diverted or are in the process of diverting substantial numbers
of intelligence assets to support this litigation.
The Department's immediate challenge is that what the law
requires is currently unclear. As the Attorney General noted in
a July 21st, 2008, speech, the Supreme Court explicitly left
many questions unanswered in Boumediene. The Court said that
Guantanamo detainees have a constitutional right to pursue
habeas proceedings in federal court. The Court did not say how
these cases would proceed or what procedures and standards
would apply. Given this lack of direction, and in the absence
of legislation, the rules governing habeas proceedings for
detainees at Guantanamo will be devised on an ad hoc basis in
federal district courts.
Although we do not know what the federal district courts
will decree as the ultimate requirements for these proceedings,
we anticipate a number of potential problems.
First, these habeas proceedings could require the diversion
of significant operational, law enforcement, and security
resources, in addition to administrative, legal, and
intelligence resources. In addition to the significant
resources the Department already is devoting to this
litigation, if judges order the in-person appearance of
detainees at hearings, numerous security assets would need to
be devoted to the task.
As alarming, if federal district court judges issue
subpoenas requiring in-person testimony of those who gathered
the relevant information pertaining to a habeas petitioner,
combat troops, intelligence personnel, and other critical
military and civilian personnel may need to be pulled from the
theater of combat operations and sent to Washington, DC, to
answer questions from detainees' lawyers.
As Justice Jackson presciently noted in Johnson v.
Eisentrager in 1950, and I quote, ``It would be difficult to
devise more effective fettering of a field commander than to
allow the very enemies he is ordered to reduce to submission to
call him to account in his own civil courts and divert his
efforts and attention from the military offensive abroad to the
legal defensive at home.''
Indeed, the Supreme Court, in Boumediene, acknowledged that
the conduct of habeas proceedings for Guantanamo detainees
could raise national security issues.
Second, the rules for habeas proceedings could affect how
our soldiers, sailors, airmen, and marines fight on
battlefields around the world. It must be emphasized that
petitioners in these cases have been detained under the law of
war during an ongoing armed conflict. These are not the typical
habeas proceedings in a civilian context with which the federal
judiciary is familiar. Judges could require arrest reports,
chain of custody authentication reports, or other evidentiary
processes. Rulings that evidence must be excluded or that a
detainee must be freed because certain evidentiary processes,
relevant to a civilian but not a wartime environment, were not
followed, would, in effect, serve to regulate our troops on the
battlefield, just as judges, in effect, regulate the local
police in civilian life.
Third, habeas proceedings could be used as a vehicle for
detainees charged with war crimes to attempt to halt or delay
their military commission trials. The Supreme Court ruling in
Boumediene was focused on challenges to the lawfulness of
detention, not on military commission procedures as provided in
the Military Commissions Act.
Further, the Court looked favorably on the adversarial
proceedings of prior military commissions. Although a federal
district court judge recently rejected the effort of one
detainee to block his military commission trial, another
detainee already has filed a court challenge to stop his
military commission from moving forward, and others almost
certainly will follow. As the Attorney General explained,
Americans charged with crimes in our courts must wait until
after their trials and appeals are finished before they can
seek habeas relief. So should alien enemy combatants.
Finally, the Supreme Court, while providing access for
detainees to the federal district courts for habeas
proceedings, let stand the alternative route to the Court of
Appeals for the District of Columbia Circuit Court under the
Detainee Treatment Act. Detainees now have two separate and
redundant legal channels through which they can challenge the
legality of their detention, one under the Detainee Treatment
Act and the other under the Constitution. This dual-track
challenge to detention only serves to strain the resources of
the Department further, providing detainees greater
opportunities to challenge their detention than those that are
available to U.S. citizens imprisoned in the United States.
These are but a few of the concerns we have about
Guantanamo detainee habeas proceedings and their consequences
for the Department. We recognize that there are opposing
considerations and that writing the rules governing these
habeas proceedings will require a difficult balancing of
interests. The Department acknowledges and respects the
judgment and expertise of the federal courts. Nevertheless,
Congress is best suited to conduct this balancing and to write
the rules for habeas proceedings for detainees at Guantanamo
Bay.
The federal district courts do not have the institutional
competency that Congress has to address these questions
effectively and efficiently, appropriately taking into account
national security concerns and the potential impact on ongoing
military operations. Further, judges might impose conflicting
rules, putting the Department in an untenable position at least
until those differences can be resolved in higher courts after
considerable delay and uncertainty while the war on terror
continues. Although the D.C. District Court is attempting to
coordinate the cases to some degree, many substantive issues
likely will be determined by multiple judges in individual
cases.
Finally, unlike Congress, federal judges cannot consider
and refine the entire statutory framework of Guantanamo
detainee legal process. By providing rules for habeas
proceedings, Congress can ensure that habeas proceedings do not
delay trials by military commission and justice for the victims
of the September 11th, 2001, attacks. Congress can ensure that
the government does not waste resources litigating and
relitigating the very same issues in the more than 250 pending
habeas petitions and in the more than 190 cases in the United
States Court of Appeals for the District of Columbia Circuit
under the Detainee Treatment Act. Legislation, not litigation,
is the best vehicle for writing these rules.
The Department of Defense fully supports the six specific
principles that the Attorney General suggested should guide the
legislation of rules for habeas proceedings for detainees at
Guantanamo Bay, Cuba, as he articulated in his recent speech.
First, Congress should make clear that federal courts may
not order the government to bring, admit, or release those
detained at Guantanamo Bay into the United States.
Second, Congress should ensure our national security
secrets are protected and that terrorists do not use these
proceedings as a means to discover what we know about them and
how we acquired that information.
Third, Congress should make clear that habeas proceedings
should not delay the military commission trials of detainees
charged with war crimes.
Fourth, Congress should explicitly reaffirm that the United
States remains engaged in an armed conflict with al Qaeda, the
Taliban, and associated organizations and that the United
States may detain as enemy combatants those who have engaged in
hostilities or purposefully supported al Qaeda, the Taliban,
and associated organizations.
Fifth, Congress should establish sensible procedures
adapted to the realities of national security. To eliminate
duplicative efforts and inconsistent rulings, one district
court should have exclusive jurisdiction over these habeas
cases, and common legal issues should be decided by one judge
in a coordinated fashion. Military service members should not
be required by subpoenas to leave the front lines to testify as
witnesses in habeas hearings. Affidavits prepared after
battlefield activities have ceased should suffice. Military
members should not be required to create such documents as the
arrest reports and chain of custody logs that civilian law
enforcement entities use.
Sixth, Congress should make clear that the detainees cannot
pursue other forms of litigation to challenge their detention.
Congress should eliminate statutory judicial review under the
Detainee Treatment Act. Congress should reaffirm its previous
decision to eliminate other burdensome litigation not required
by the Constitution, such as challenges to conditions of
confinement or transfers out of U.S. custody.
Along these lines, the Department of Defense requests that
legislation expressly confirm that the habeas jurisdiction of
the federal courts does not extend beyond the holding of
Boumediene. We believe this proposition is reflected in the
current law following Boumediene, which extended constitutional
habeas jurisdiction based on the unique circumstances
prevailing at Guantanamo Bay.
It goes without saying, however, that all of the
difficulties that we face with respect to the Guantanamo habeas
petitions would pale in comparison to the difficulties we would
encounter were federal court jurisdiction extended to those
detained in or near a zone of active hostilities, such as in
Iraq and Afghanistan. The burden of litigating the petitions of
some 270 detainees at Guantanamo is considerable, but the
prospect of litigating the petitions of multiple hundreds of
alien detainees in Afghanistan and tens of thousands of alien
detainees in Iraq would simply be crippling. The Constitution
of the United States hardly contemplates such a result.
In conclusion, although the topic of today's hearing is the
implications of the Supreme Court's Boumediene decision for
detainees at Guantanamo Bay, Cuba, I have begun by discussing
the implications of Boumediene for the Department of Defense.
In my current position as Acting General Counsel of the
Department of Defense, as in my previous career as a judge
advocate and Army line officer for more than 27 years, my
foremost duty has always been to our troops, to ensure that
they can lawfully do what is necessary to fight and win our
Nation's wars and to defend our Nation from attacks, whether
those attacks come from adversary nations or from nonstate
actors such as al Qaeda.
We must remain mindful that the enemy we face today and
have faced since the early 1990's uses 21st century technology
to perpetrate brutal, indiscriminate attacks on civilians. As
the Congress considers legislation in response to Boumediene
and weighs the many important interests at stake, I
respectfully trust that you will carefully consider this as
well.
Thank you very much.
[The prepared statement of Mr. Dell'Orto can be found in
the Appendix on page 35.]
The Chairman. Mr. Katsas, Assistant Attorney General.
STATEMENT OF GREGORY G. KATSAS
Mr. Katsas. Thank you, Mr. Chairman.
The Chairman. Get as close to that as you can, would you,
please?
Mr. Katsas. Can you hear me?
Mr. Chairman, Congressman Hunter, members of the committee,
you have my full written statement, so let me just give you a
brief summary here.
I appear before you today as the Assistant Attorney General
for the Civil Division, which is responsible for handling the
hundreds of habeas corpus and Detainee Treatment Act cases
brought by aliens detained as enemy combatants at Guantanamo
Bay, Cuba. In the wake of the Supreme Court's Boumediene
decision, the parties to those cases and the lower courts face
unprecedented challenges.
Boumediene makes clear that its extension of habeas corpus
to review wartime status determinations of aliens captured and
held outside the United States is unprecedented. In this
context, there are no controlling federal rules or statutes.
There are few relevant federal precedents. There is no past
experience. And while Boumediene itself recognized that habeas
proceedings in this context must take account of practical
considerations and wartime exigencies, the Court gave little
guidance about how to proceed with the enormously difficult and
sensitive task of ensuring fairness to detainees, while at the
same time not unduly impeding the prosecution of an ongoing
armed conflict.
Recently, the Attorney General invited Congress to
establish some guidelines for the efficient, fair, and safe
adjudication of these difficult habeas cases. Let me briefly
give you a litigator's perspective on the urgency of his six
specific proposals.
First, judges should be prohibited from ordering the
release of detainees into the United States. In one case, we
already have a pending motion for release not only into the
United States but into greater Washington, DC, and even before
habeas proceedings have run their course. Congress should act
quickly to prevent judges from releasing potentially dangerous
individuals into our midst.
Second, habeas procedures should ensure adequate protection
for classified information. The military must never be put to
an impossible choice, as our opponents have urged, between
revealing classified information to al Qaeda or releasing
dangerous al Qaeda operatives.
Third, habeas proceedings should not interfere with war
crimes prosecutions before military commissions. In Boumediene,
the Supreme Court cited adversarial military commission
procedures with approval. Yet in the habeas litigation, Ramzi
Bin Al Shib, who prosecutors believe was a principal
facilitator of the September 11 attacks, has moved to stop his
war crimes trial through habeas. Congress should act to ensure
that the trials move forward, so that terrorists can be brought
to justice.
Fourth, Congress should reaffirm the President's detention
authority in the ongoing armed conflict with al Qaeda. We think
that authority is obvious, but in the recent Al-Marri case,
four of nine judges on the Fourth Circuit would have held that
the military lacks any authority to detain any member of al
Qaeda--not Khalid Sheikh Mohammed; not Mohammed Atta, if we had
managed to catch him in time; not even Osama bin Laden.
Congress should definitively correct that dangerous
misunderstanding of military authority.
Fifth, Congress should establish sensible procedures to
govern the adjudication of the pending habeas cases. The
question of what procedures are appropriate remains entirely
unsettled. The judges have asked for briefing on basic
procedural framework issues, such as burdens of proof, extent
of discovery, and the need for evidentiary hearings. In no
other context that I know of are fundamental rules like that so
basically unsettled. To facilitate the prompt and uniform
handling of these cases, Congress should adopt a streamlined
but fair framework along the lines that the Supreme Court
approved for habeas proceedings involving citizens held as
enemy combatants.
Sixth, and finally, Congress should eliminate the now
unnecessary judicial review proceedings in the Detainee
Treatment Act, which were intended as a substitute, not as an
addition to habeas. Now that habeas review is once again
available, there is no sense in requiring the government, the
detainees, or the courts to engage in the duplicative
adjudication of about 190 Detainee Treatment Act petitions on
top of about 250 pending habeas petitions.
Thank you very much.
[The prepared statement of Mr. Katsas can be found in the
Appendix on page 44.]
The Chairman. Colonel David.
STATEMENT OF COL. STEVEN DAVID
Colonel David. Thank you, Chairman Skelton, members of the
House Armed Services Committee.
The Chairman. Please get a little closer.
Colonel David. Is this a little better?
The Chairman. Turn it on.
Colonel David. Thank you again, Chairman Skelton----
The Chairman. There you go.
Colonel David [continuing]. Members of the House Armed
Services Committee.
My name is Colonel Steve David, and I am grateful for the
invitation and honor to testify before this committee. I have
prepared and submitted my testimony, so what I intend to do is
summarize that testimony and then give you all more time to ask
questions.
My testimony is given in my capacity as a private citizen
who is currently serving as the Chief Defense Counsel in the
Department of Defense Office of Military Commissions. My
testimony does not represent the opinions of the Department of
Defense, the Army, my subordinates, or any other entity.
I have been asked to testify today about the implications
of the Supreme Court's decision in the Boumediene case and how
they are likely to affect the detainees at Guantanamo Bay.
I have served as the Chief Defense Counsel in the Office of
Military Commissions since August of 2007. I have, in that
time, seen the number of cases expand from 2 to 21. I have
served the United States Army for over 26 years in a myriad of
assignments, both on active duty and as a member of the Reserve
Component Services.
While I am currently serving as Chief Defense Counsel, I am
on leave from my civilian profession as an elected trial court
judge in the state of Indiana. I have served over 13 years as a
trial judge in Indiana. I consider myself a public servant. I
have also served as a military judge, both in the Army Reserves
and on active duty in the United States Army.
I am proud to be an elected officeholder, and I am proud to
wear the uniform of the United States military. In my office in
Boone County, Indiana, I proudly display with great reverence
the flag of honor with the names of the 9/11 victims.
I do not see my role as Chief Defense Counsel or my
obligations as an officer of the United States military or as a
judge any way inconsistent with these obligations. I think they
are entirely consistent.
Because of the unique vantage point I have, I will
generally confine what I have to say to what Boumediene means
for the military commissions.
To put it briefly, the most important thing that Boumediene
held is something that I always thought was obvious. Like
Thomas Paine in Common Sense, in America, the law is king. For,
as in absolute governments, the king is the law, so in free
countries, the law ought to be the king, and there ought to be
no other.
Boumediene held that in America, there are no law-free
zones. This is an issue only because of the choice in 2002 to
move enemy combatants from Afghanistan and terrorism suspects
captured around the world to the U.S. military base at
Guantanamo Bay. Even though the government treats the base as
if it were U.S. soil for every other purpose, it has taken the
position that it is foreign soil when it comes to the
constitutional rights of the people we hold there. Boumediene
puts that convenient theory to rest.
In particular, Boumediene makes it clear that federal
courts will ultimately have habeas review over the military
commissions process, and the commission defendants have
constitutional rights. The gist of the Court's holding is that,
unless enforcing a right would be impractical, it should be
honored. If the suspension clause applies in Guantanamo, then
so must the ex post facto clause and other fundamental due
process rights, like the prohibition on the use of coerced
statements and the right to confront one's accusers.
There is nothing impractical about ensuring that the
commissions live up to basic American standards of justice. The
constitutional protections promised by Boumediene are
particularly important at a time when the highly politicized
atmosphere surrounding the commission trials has begun to
compromise their fairness.
The legal adviser to the convening authority has been
disqualified from one case already for overstepping the role to
such an extent that it amounted to unlawful command influence.
Much of this appeared motivated by a desire to accelerate as
many of the cases as possible before the Presidential election.
If this process cannot survive a Presidential election, I
submit to you it cannot survive, and does not deserve to
survive, which brings me to the question of whether, after
Boumediene, these commissions should survive.
To reiterate my opening point, Boumediene reaffirmed what
should be a surprise to no American, that where our government
is sovereign, the Constitution is sovereign. This fact will
lead to the ultimate striking down of the most constitutionally
suspect of the military commission's procedures now in place.
The only question that remains is how long it will take, how
many convictions must be reversed, and whether it will be the
product of the rulings of the military judges presiding over
the commissions or the federal courts on appellate or habeas
review.
Since it is now simply a question of when, the only
remaining one is why we started down this road in the first
place. The ultimate tragedy is the United States federal courts
and military courts martial are more than capable of trying
terrorists under traditional principles of American justice. As
one of my favorite country music singers, Toby Keith, explains
in one of his songs, ``There ain't no right way to do the wrong
thing.'' It would have been better had we done the right thing
from the beginning, but it is not too late to change direction
and do it now. I advocate that we utilize the federal criminal
court system, with the safeguards in place, or the military
justice system under the Uniform Code of Military Justice.
Thank you for the opportunity to address your group. Again,
I have submitted my testimony in written format and would be
happy to answer any questions.
The Chairman. Thank you very much.
[The prepared statement of Colonel David can be found in
the Appendix on page 58.]
The Chairman. We have a series of six votes--one 15-minute
vote, and the others are 5 minutes. So it will probably be
about a 40-minute break. And I hope that doesn't disturb your
afternoon too much. But I think we might be wise just to go
ahead--this is a good place to break--and come back as soon as
we can. We will resume the questioning.
We thank you again for being with us. We look forward to
the questions shortly. We will take a recess.
[Recess.]
The Chairman. Our hearing will come to order.
We apologize to the witnesses, and we thank you for your
patience. We had a series of votes, plus one unexpected one
that took a considerable amount of time. So we will proceed,
and the gentleman from New York is with us. We will be able to
forge right ahead.
Let me ask, Mr. Dell'Orto, yesterday, Colonel Davis
testified, and in his testimony he testified to the undue
political influence that permeates the military commission
process. Much of Colonel Davis' complaint deals with the overly
intrusive supervision of the prosecution by the current legal
adviser to the convening authority, an issue which Judge Allred
in the Hamdan military commission case recently addressed.
In the May 9, 2008, order Judge Allred, a captain in the
United States Navy, found that the actions of the current legal
adviser, General Thomas Hartman, reflected too close an
involvement in the prosecution of commission cases and
suggested an improper influence on the chief prosecutor's
discretion. As a result, Judge Allred ordered the
disqualification of the legal adviser from further
participation in the Hamdan case. I understand that the legal
adviser has been removed from the Hamdan case. My first
question is: Is that true?
Mr. Dell'Orto. Mr. Chairman, consistent with the judge's
order in that case, there is a legal adviser who has been
appointed to continue the----
The Chairman. He has been removed?
Mr. Dell'Orto. There is a different one who has been
appointed; yes, sir.
The Chairman. Fine. Thank you. And someone has been named
in his place?
Mr. Dell'Orto. Yes, sir, for that particular case.
The Chairman. Okay. What is being done to eliminate undue
command influence in all these military commission cases, Mr.
Dell'Orto?
Mr. Dell'Orto. Mr. Chairman, I take issue with Colonel
Davis' remarks in that regard; and I would cite to the
committee the report that has been posted on our Web site, the
one that was done at the then General Counsel Jim Haynes'
direction by Brigadier General Tate from the United States
Army; Brigadier General Hardy from the United States Air Force;
then Captain, now retired, Admiral Tronberger, who looked into
the allegations of Colonel Davis and came up with findings and
recommendations that addressed those issues. And my reading of
that report does not concur with, I think, Colonel Davis's
assessment of the situation that prompted him to resign from
his position.
The Chairman. Mr. Katsas, yesterday, Steve Oleskey
suggested in his testimony--I am sure I am quoting it right--
that we should let this issue regarding the commissions play
out in the courts before we attempt to legislate on the issue.
Mr. Katyal didn't quite go that far, but he thought it ought to
play out for a short while, if I remember his testimony
correctly.
Do you have an opinion on that? Should we forge ahead, or
should we wait until the courts have the opportunity to work
more cases? Or where do you recommend we go?
Mr. Katsas. I am sorry, Mr. Chairman, is your question
about the habeas proceedings or----
The Chairman. Yes, yes. Excuse me, yes.
Mr. Katsas. Okay. My strong recommendation to the committee
would be to legislate standards, a procedural framework to
govern the conduct of what are 250 unprecedented cases. We
don't know such fundamental questions as: What are the relevant
burdens of proof? What is the nature of our discovery
obligations? How is classified information to be protected? Is
there an entitlement to live hearings?
So, you have a tremendous potential for disparate rulings
as district courts try to work through these issues. You have
the possibility of disagreement in the district courts, which
will produce large numbers of reversals on appeal, which will
slow down the process, not facilitate it. In terms of Justice
Department resources, you would force us to relitigate the same
set of issues at least 3 times, potentially 15 times, or dozens
of times, depending upon the extent of consolidation; and you
would risk the courts not striking the optimal balance between
the interests of fairness to individual detainees and
legitimate military needs in prosecuting this war.
And, finally, I should just note that there is a 200-year
tradition of congressional involvement in shaping the scope of
habeas corpus. Statutory direction goes all the way back to the
first Judiciary Act. It would not be novel or unusual for
Congress to set down standards and guidance, as it always has
with respect to habeas, as the Supreme Court invited in
Boumediene, and, indeed, as Chief Judge Lamberth of the
district court has invited in a press release welcoming
guidance from this Congress.
The Chairman. Thank you.
How many detainees are there currently at Guantanamo?
Ms. Hodgkinson. There are approximately 265.
The Chairman. Two hundred and sixty-five?
Ms. Hodgkinson. Yes, sir.
The Chairman. How many of that 265 have been formally
charged?
Ms. Hodgkinson. Twenty-one.
The Chairman. Twenty-one?
Ms. Hodgkinson. Yes, sir.
The Chairman. When were those 21 detainees charged?
Mr. Dell'Orto. Mr. Chairman, they have been charged over a
period of time, beginning in, I believe, February of 2007
through the present. First charges after the--
Well, let me step back. We did have a number who had been
charged prior to the Supreme Court decision in Hamdan in 2006.
There were about, I'd say, somewhere on the order of 5 to 10,
although my memory may be off there.
In the aftermath of the Supreme Court decision in Hamdan,
we and the Congress and the Administration put together the
Military Commissions Act. The President signed it, and then we
started the charging process over again for some of those
detainees. So, some of the 21 who are now charged have been
recharged post the Military Commissions Act.
The Chairman. Will all of the 265--is that correct? Will
all the 265 be charged with one charge or another?
Mr. Dell'Orto. We don't expect that to be the case, Mr.
Chairman. The Chief Prosecutor and the prosecutors who work for
him will make those decisions, as to which of the detainees
will be charged. The convening authority will make a
determination about which of those cases will be referred to
trial unfettered by any outside influence. Those are decisions
that they will make.
We have heard estimates from the Office of the Chief
Prosecutor that somewhere in the order of 60 to 80 detainees
could be charged. But, again, it is their determination as to
which they will charge and what charges will be preferred, and
we will have to see how that plays out over the coming year.
But I would expect that, since that number has not changed very
much, that probably, on the outside, 80, maybe slightly more,
could be charged or are anticipated being charged.
The Chairman. So, you will have either around 200 or
slightly fewer that you do not anticipate being charged. Is
that correct?
Mr. Dell'Orto. I think, if I were to do the math, I think
that is about right, Mr. Chairman.
The Chairman. And what will you do with them?
Mr. Dell'Orto. Well, we have a number of them who have
already been cleared for either transfer to their----
The Chairman. How many would that be?
Mr. Dell'Orto. That number is about--I think Ms. Hodgkinson
has that number.
The Chairman. How many is that?
Ms. Hodgkinson. Yes, sir, there is approximately 60
individuals at Guantanamo Bay who have already been approved
for transfer or release either back to their home country or,
in the instances where their home country does not want them or
they can't be sent there out of humane treatment concerns or
security concerns, then we are seeking a third country.
The Chairman. So, 60 or so will be released one way or the
other. Is that correct?
Ms. Hodgkinson. Our goal is to transfer or release about 60
of them; yes, sir.
The Chairman. Then you still have----
Ms. Hodgkinson. But we do continue, sir, to have
administrative----
The Chairman [continuing]. 140, 150 that will still be
there. Do you anticipate charging them with anything?
Ms. Hodgkinson. Well, I would note that we continue to have
the annual administrative review boards, which have been very
successful in approving individuals for transfer or release. To
date, more than 500 people have gone home under this process
and through our diplomatic negotiations. So, those processes
will continue at the rate that we have been doing so.
Over the past year, we sent more than a hundred people home
under these very procedures, this careful process and these
deliberate negotiations with other countries; and we intend to
continue to do that for the remaining population that does not
at this time intend to be prosecuted.
The Chairman. So, you will have approximately 140,
thereabouts, that will not be charged and are there
permanently. Is that correct?
Mr. Dell'Orto. That number, give or take a few, will be a
difficult number to come to a resolution through either the
military commission process or the release process, although,
as Ms. Hodgkinson indicates, we will continue to try to find
ways to either transfer them--likely they would have to be
transfers, because my understanding is the threat level for
those is so high that they could not be outright released. But
you are right. That is a core number, thereabouts, that will be
neither charged nor--at least not in the short term--
transferred or released.
The Chairman. Kind of like the man aboard a ship that
couldn't get off the ship because he didn't have a country. Is
that basically it? They are stuck there?
Mr. Dell'Orto. Until the end of hostilities.
Again, our basis for holding all of these folks from the
outset has been that they are enemy combatants during an armed
conflict, much as we have faced in other prior wars. Obviously,
this one has gone on longer----
The Chairman. Are they considered prisoners of war?
Mr. Dell'Orto. They are not technically--they are not
treated as prisoners of war under the Third Geneva Convention.
They are considered unlawful enemy combatants who are detained
under the laws of war.
The Chairman. Mr. Hunter.
Mr. Hunter. Thank you, Mr. Chairman. And I know I join with
you in apologizing to our witnesses for this bad timing and
this long delay here, and I apologize for getting back a little
late here.
Let me just ask you a few preliminary questions about
Guantanamo, because I think, to the public, Guantanamo is a
place that has been excoriated in the press as a place that
people think mistreatment occurs. So my first question is, in
your estimation--and I would ask this of all the panelists--are
the prisoners, detainees being treated well at Guantanamo? And
do you have any objections, or do you see any problems with
their treatment?
I just go left to right here. Yes, ma'am.
Ms. Hodgkinson. Yes, I will begin by saying, sir, that we
believe that the detainees are being very well treated at
Guantanamo Bay. We have taken extensive measures and efforts to
ensure that they have the highest standards of care that we can
provide, both through medical care and treatment, which has a
higher patient-to-doctor ratio than any other facility that we
are aware of. We try to ensure that they have regular exercise,
and all detainees have recreation opportunities, including
sports. They have cultural activities. They have activities
that comport with their religious beliefs. And it is our full
belief that they have the highest standards of care that we can
provide.
Mr. Hunter. Okay. Anybody disagree with that, that they are
well treated?
Mr. Dell'Orto. No, sir. And I have been down there a number
of visits.
Mr. Hunter. So they are well treated. So there is no----
Colonel David. May I comment, sir?
Mr. Hunter. Yes, go right ahead. Speak up. Bring that
microphone close to you when you are talking. Everybody seems
to be real worried about that.
Colonel David. I have been in the camps. This is Colonel
David. I have been in the camps. I have met with different
detainees. As a Legal Support Office (LSO) commander, I sent my
attorneys to work for Joint Task Force (JTF) Gitmo Staff Judge
Advocate's (SJ) office. In fact, several years ago I served as
the interim SJ for a short period of time with Joint Task Force
Guantanamo.
I can say that, with very few exceptions, the men and women
who are members of the guard force are members of the medical
staff, have provided excellent treatment to the detainees.
However, there have been circumstances, there have been
occasions when detainees have been mistreated. That has
happened.
It has not happened regularly, and I am not talking about
the issue of whether or not--certain types of interrogation
methods or torture or not. I am talking about mistreatment.
That has happened. But it has happened on occasion, not
regularly.
The vast majority of the people down there are doing
tremendous jobs under very difficult circumstances. But I just
wanted to clarify the record, from my perspective, that it is
not a 100 percent true statement in my opinion that they are
treated well and have been treated well all the time.
Mr. Hunter. Well, I asked--the question was: Are they being
treated well now? What is your opinion? Do you see
deficiencies?
Colonel David. I think there have been occasions, not
recently, that they have not been treated as we would like them
to be treated, I believe.
Mr. Hunter. Okay. How long ago?
Colonel David. I think the most recent incident that I am
aware of is probably within the last 60 days, sir.
Mr. Hunter. Okay. What happened?
Colonel David. I am not sure how much I can talk about that
in this forum.
Mr. Hunter. Well, you got us there. You tell us you saw
something bad, but you can't tell us what it was.
Colonel David. No, sir, I did not see anything bad. It is
information provided to me which suggests that that incident
occurred, and we brought it to the attention of----
Mr. Hunter. Okay. So, if an incident occurs--we assume
people aren't perfect, and you are not going to have a prison
without having some incident at some point--is disciplinary
action taken?
Colonel David. Sometimes that is a little hard to ascertain
exactly what happens as an end result. We don't get a full
briefing or after action as to exactly what happened. Sometimes
that information is a little incomplete.
Mr. Hunter. How about finding out for us and letting us
know?
Colonel David. Certainly.
[The information referred to was not available at the time
of printing.]
Mr. Hunter. You are a little vague on it. So, find out the
specific facts----
Colonel David. I am a little vague because I don't have the
specifics; yes, sir.
Mr. Hunter. Well, bring it in and tell it to us.
Now, let me ask you a question about that. My understanding
is there has never been a murder at Guantanamo. Is that right?
A murder.
Colonel David. That is correct.
Mr. Hunter. Okay. Is there any other prison in the world,
major prison, where there has never been a murder besides
Guantanamo?
Colonel David. If you are asking me, sir, I would assume
there is not, although I don't know.
Mr. Hunter. Any of you other folks know of any other prison
in the world where there has never been a murder except
Guantanamo, major prison? I don't think there is one. I think
it has got--in terms of having a capital crime committed in the
prison, I think it is the only one in the world where there has
never been a murder.
I have heard lots of my colleagues criticize Guantanamo;
and I have looked at the records of murders, assaults, and
other problems in their particular districts in their state and
local prisons; and Guantanamo's record looks pretty sterling
compared to it. But I wanted to bring this out, because I think
this is the framework under which we are undertaking this
hearing, is that somehow Guantanamo has a stigma.
Is there a practice that we undertake right now that any of
you think is--because I was there, and I saw them. I saw us. We
read the Koran to them over the loudspeaker system I think--
what--five times a day? We provide a taxpayer-paid-for Koran,
prayer beads, rugs. I looked at their medical records. They had
averaged about a five-pound per person weight gain over the
year. Is there any particular procedure that we undertake that
you think is an oppressive procedure that we should change, an
official procedure? Anybody have a suggestion?
Mr. Dell'Orto. I have none, Mr. Chairman--or Congressman.
Mr. Hunter. Then here is my question for you. Outside of
geography, that is, the fact that Guantanamo is located where
it is, and it is considered to be an extension of American
authority because of the geography, is there a good reason to
close Guantanamo? Assuming that we are continuing to have this
war against terrorists and that we incarcerate people like
Khalid Sheik Mohammed, who does say that he planned the attack
that killed thousands of men, women, and children, and we have
to put him somewhere, and nobody wants him in their
congressional district, is there a reason, a compelling reason,
for us to close Guantanamo?
Ms. Hodgkinson. Well, the Secretary and the President have
consistently stated that we are trying to move toward the day
when we can close the facility and are trying to take those
efforts that we can to do so, in light of some of the
international criticism and other concerns that have been
raised over the detention facility.
Mr. Hunter. We know what they have said, but my question to
you is: Is there a compelling reason outside of the geography--
because the Court has now attached certain rights to people who
are incarcerated in Guantanamo--and most important of which,
obviously, is the right to habeas--is there a compelling
reason, outside of the geography, to close Guantanamo? If we
have good people, as everybody concurs we have, incarcerating
these folks--we have good care, good treatment, good food, good
health care--is there a compelling reason to close Guantanamo?
Ms. Hodgkinson. The Department of Defense would certainly
not be in a position to provide better treatment in another
location than the treatment that it provides at Guantanamo Bay.
Colonel David. Just for the record, sir--I don't mean to
interrupt you, but I do believe it would be appropriate to
close Guantanamo Bay. I don't want to not say that. I don't
want to interrupt you.
Mr. Hunter. That's why I am asking the questions, so you
can get your two cents worth in. Why do you think we should
close it?
Colonel David. I think, first and foremost, because it is a
blight on our legal integrity. And the fact that a detainee at
Guantanamo Bay is being fed appropriately, that is wonderful.
That is who we are. We are Americans. We are going to take care
of people.
But the fact that they do not have the right to counsel
until they are charged, the fact that only recently the Supreme
Court extended some constitutional rights to the detainees at
Guantanamo Bay--I think one can begin to build--and certainly
build a case bit by bit by bit--things that have occurred that
justifies that, if we are going to charge someone with a crime
that faces a life sentence or death or long time in prison, we
can do better than detaining them at Guantanamo Bay, if for no
other reason than to make them more accessible to the court
system, more accessible to the men and women that need to
defend them.
I think the issue may be where we put and how we house the
individuals that we never intend to charge and, politically, we
may never intend to release. But my function as Chief Defense
Counsel is to defend zealously those people that have been
charged, and I don't believe Guantanamo Bay is an appropriate
place for them to be, and I don't believe that is the best
place. And I believe we can do better, sir.
Mr. Hunter. Okay. So my question to you is--you said they
are not being maltreated at Guantanamo Bay, but your complaint
is you think the system is mistreating them. We are not
treating them. We are not giving them all the rights that you
feel they should be given. But that is not something that is
driven by geography or where you put them. You could apply the
full rights of the Constitution to people at Guantanamo Bay if
the country decides to do that, right? In the proceedings for
people--that isn't something that is derived from the location.
That is something that is derived from our justice system. Is
that not true?
Colonel David. It is certainly true from the standpoint of
geography. But, again, it is difficult, if not impossible, to
apply our laws at this time to the facility, to the operation
of the facility, to the due process for those individuals.
Mr. Hunter. Okay. That is something that is hard to
understand here. Why can't you apply the law and any mechanism
that is passed by Congress, signed by the President, with
respect to either the Detainee Treatment Act or this military
justice system or the so-called Terrorist Tribunal Act that we
have now put into law? That is not specific to a particular
piece of geography. What is the problem here, Colonel? I mean,
are you saying that defense counsel don't have a place to stay
when they come to Guantanamo, that they don't have access to
counsel?
Colonel David. That has been problematic in the past. I
mean, unfortunately, I wasn't consulted in the operation. I am
not in charge of that.
Mr. Hunter. Let me ask the other folks. Do you see a
problem with defense counsel being allowed access to Guantanamo
or having enough quarters or transportation or----
Mr. Dell'Orto. We have made extraordinary efforts since the
charging of these individuals in 2007 to provide support for
all participants in the trial process at Guantanamo. We have
built a brand new courtroom. We have built--put together
temporary quarters for all participants, so that we can provide
everyone their opportunity.
Mr. Hunter. Okay. So, let me do this. Colonel, why don't
you get us a defense counsel to contact the committee who says
that he tried to travel to Guantanamo or he traveled to
Guantanamo and could not find adequate quarters, was not
allowed to have a place from which he could operate to defend
his particular client. You get us that information. If that is
your claim----
Colonel David. My claim is not as it relates to
accommodations. We have accommodations. My claim is as it
relates to getting to and from. My claim as it relates to most
recently is taking down my new counsel for an orientation--
expected orientation--of Guantanamo Bay, since they have the
appropriate security clearances, and I wanted them to have an
opportunity, as the prosecution, to have a briefing, have an
orientation, unclassified briefing; only to have that planned
and the day before cancelled, because, I was told, it was not
appropriate for defense counsel to have that kind of
orientation.
But I will certainly get you details, sir.
Mr. Hunter. Okay. But they have a place to stay.
Colonel David. Absolutely.
Mr. Hunter. But you didn't get an orientation you wanted to
get.
Colonel David. They do have a place to stay, yes, sir.
Mr. Hunter. Okay. Mr. Dell'Orto, you got a comment on this
orientation?
Mr. Dell'Orto. Sir, I am aware of that particular request.
I do know that the response that went back to Colonel David
was, if you put it in writing and provide adequate
justification, so that a decision can be made based on more
than just an assertion that it was going to be an orientation,
that that request would be considered.
Mr. Hunter. You know, we put this law together, and the
reason I am taking some time--and I appreciate the chairman's
patience--this is a very serious matter and has a lot of depth.
We put forth and examined tribunals that have been held in the
past, from Nuremberg, Rwanda--and the House and Senate worked
on this, Democrats and Republican counsel and non-counsel, and
the Members. And we put together a group of rights that we
afford the detainees under the Military Commissions Act: the
right to counsel, the presumption of innocence, proof beyond a
reasonable doubt, the opportunity to obtain witnesses and other
evidence, the right to discovery, exculpatory evidence provided
to defense counsel. Statements obtained through torture are
excluded. Classified evidence must be declassified, redacted,
or summarized to the maximum extent possible.
And we had a lot of problems working this, Democrats and
Republicans, Senate and the House, because you had the problem
of having classified information that the accused had a right
to confront, and yet you couldn't give classified information
out. We finally worked through it to have it, to the maximum
extent, redacted and summarized, so that you could have a fair
trial, and yet you could protect classified information.
Statements allegedly obtained through coercion are only
admissible if the military judge rules that the statement is
reliable and probative. A certified judge will preside over all
proceedings of the individual commissions. The U.S. Government
must provide defense counsel, including counsel with the
necessary clearances to review classified information on the
accused terrorist's behalf. That means you don't keep
information away on the basis that he doesn't have counsel. And
in capital cases, the military commissions, 12 panelists, must
unanimously agree on the verdict, and the President has the
final review.
Panel votes are secret ballots, which ensures that
panelists are allowed to vote their conscience. We did that
because we didn't want to have a subordinate officer feeling
that he had to follow his superior's vote in a particular vote
against a detainee. So we provided for a secret ballot. Right
to appeal to a new court of military commissions review and the
court of appeals for the District of Columbia and the right
against double jeopardy.
Now, I read those to counsel for some of the defendants
yesterday, and I asked them if there were any additional rights
that they would give to the defendants, any specific rights
that they think that we missed. Not one of them came up with
one. They talked around it. They talked about they thought they
had the basic rights to be afforded full constitutional rights
as U.S. citizens, but nobody came up with, ``one they thought
you missed one here.''
Colonel, beyond those are rights, are there additional
rights that you think that the defendants should have?
Colonel David. I think it would be helpful if the right to
counsel arose prior to three or four or five or six years later
being charged and prior to interrogations of any kind, however
coercive, or whether they cross into torture.
I also think it would be helpful if some of those rights
were played out under the commission's process more openly and
transparently than they have on occasion--for example, the
right to discovery of evidence, when that discovery is provided
to you, either in trial or on the eve of trial--hundreds and
hundreds and hundreds of pages--it is difficult to, quite
frankly, utilize that right effectively and have that right
mean anything without causing prejudice to the accused.
Off the top of my head, I can't think of any other rights,
so I probably would be in the same boat as the men and women
yesterday. I, certainly, if I have an opportunity and could
supplement my testimony, I will do that.
Mr. Hunter. Certainly.
Colonel David. My only point on those rights, sir, is that
there is a difference in theory and in practice, and I am
concerned that what looks good at 30,000 feet, when you are on
the ground has been tremendously problematic.
Mr. Hunter. Thank you, Colonel. Let me tell you, courts
across the land make mistakes all the time. Lots of plaintiff's
lawyers, including myself, have complained that we didn't get
timely discovery. And you have a right--when you have
discovery, you have a right to timely discovery. Statements
obtained by torture are excluded under the law. So, we pass a
law, and if it is not followed, of course, that is a reversible
error in a case, and you get a reversal. So, carrying out the
law is an important thing. If you have any particular incidents
of not getting timely discovery, I would like you to get those
to the committee. And if you have any further, on reflection,
any further ideas on how to make this system more fair and a
better forum, please get those to us I think we'd appreciate
that.
Thank you, Mr. Chairman, for letting me take some time. The
last thing is this: If you have been given the right to habeas,
and I have never had a habeas case, but that is basically you
are being held unlawfully; the heart of that case, for
practical purposes, if you have been picked up on a
battlefield, I would think in a practical way, it is going to
be, whether you are a combatant or farmer in the field, you had
an AK-47, because you were one of the livestock protectors in a
town, and you got picked up on a sweep. You shouldn't be there.
The problem is the details of that are going to be long
since--the principles in that military sweep are going to be
long since dissipated from the scene, and this is not like a
crime scene, where you have a lot of people attend the scene of
a crime, and you have lots of expert capability focusing. A lot
of these folks are picked up in battlefield operations which
are very transitory, very quick, and the idea--if you are the
court trying to figure out what you review in the habeas, what
do you think?
I would ask maybe Mr. Dell'Orto to answer this, do you see
problems with the court being able to figure out what the scope
of their review is going to be? You get a guy that was picked
up in an Afghan village four years ago, what are you going to
be able to do to ascertain the merit of his habeas appeal?
Mr. Dell'Orto. It will be a difficult process. It will be a
question of I would assume the detainee presenting, at some
point, his view of why he should not be held, countered by the
government's information, which will be largely from
battlefield reports--reports filed by those who captured him,
who brought him into their custody, matching up intelligence
reports that would come from a variety of sources, many of
which are going to be very sensitive and highly classified.
They will be the means by which we obtain that information.
They will be the sources and methods. In many instances, it
will be information coming from foreign governments that want
that information protected. And so, while--in the system that
we have now, under the Combatant Status Review Tribunal (CSRT)
process that we have now, many of those things will be
considered by military officers who have some knowledge of what
this is all about and, certainly, can assess the intelligence
value of the information that has been brought forward.
Judges may not be as able to pour through that and make the
assessments that they need to make on that sort of information.
And then, if we start getting into what the detainee needs to
be provided to allow him to rebut that information, it will be
a very, very difficult process of trying to take that
classified information and develop an unclassified summary that
the detainee can be shown that will satisfy the judge that the
detainee has had enough information to permit him to respond.
It will be very, very difficult, and it is one of the
difficulties associated with this type of warfare.
Mr. Hunter. Thank you. I know that the chairman is an
expert in this area and has tried a lot of cases and has
questions in this area too. It looks to me that the practical
aspect of laying out a template for what the scope of the
review is going to be and whether our guys are going to be able
to, the judge is going to be able to really accomplish a
meaningful habeas review, is I think questionable; but, thank
you.
Thank you, Mr. Chairman, for giving me some time on this.
The Chairman. You bet.
Mr. Spratt.
Mr. Spratt. Thank you, Mr. Chairman.
I believe Boumediene makes it clear that the detainees at
Guantanamo have the right to petition for habeas corpus. Do you
believe that the decision also allows them the full panoply of
rights that would come to an ordinary defendant seeking habeas
corpus? Or is there some diminished status, some diminished bag
of rights, collection of rights that they have? Is that part
and parcel of the Attorney General's request of us to write the
law that we may have the right to diminish the associated
rights that they have?
Mr. Katsas. No. What Boumediene says is that the detainees
have a right to petition for habeas corpus. The Attorney
General----
Mr. Spratt. Let me ask you: can Congress take
constitutional rights away? If this is a constitutional right,
the right to habeas corpus, can we diminish it?
Mr. Katsas. You can't eliminate the right to habeas corpus.
You can certainly pass statutes that define the procedures to
be used, the standards of proof. You have done that with
respect to habeas corpus.
Mr. Spratt. Does the Department take the position that
Congress has the authority to strip courts, federal courts, of
the right to review habeas corpus petitions?
Mr. Katsas. The Supreme Court has struck down a strip. What
we are now proposing is legal standards to govern the exercise
of the detainee's habeas corpus rights. And I should add that
the Attorney General's specific proposals are consistent with
all of the rights recognized in Boumediene and all of the
rights previously recognized by the Supreme Court in Hamdi.
Mr. Spratt. Let's take coercive testimony, evidence
obtained through coercive means. Is that admissible on the same
basis that it would be admitted or excluded in non-detainee
cases, in ordinary criminal cases?
Mr. Katsas. Evidence improperly seized, obtained, would be
excluded.
Mr. Spratt. What about the right to confront those who have
made accusations against you?
Mr. Katsas. Confrontation rights of the sixth amendment
would not apply because enemy combatant proceedings are not
criminal proceedings, and the sixth amendment, even for
citizens in this country, applies only to criminal
prosecutions.
Mr. Spratt. So, there is no right, then, to have witnesses
who have made charges, accusations, against you personally,
confront you face to face in open court?
Mr. Katsas. If that means the only way to support a
detention is for service members to be summoned back from the
battlefield to give eyewitness testimony, as opposed to a
hearsay affidavit, we think the answer is and should be ``no,''
as the Supreme Court recognized in the Hamdi case when it
specifically said that use of hearsay in these circumstances
would be permissible.
Mr. Spratt. What about exculpatory evidence as a matter of
fairness? Should the defendant have access to it, including
detainees here, or is their right to exculpatory evidence
somehow less than the right of an ordinary criminal defendant?
Mr. Katsas. The essence of the habeas proceedings that the
Supreme Court has mandated is that the detainee be able to put
on whatever evidence he wishes. We don't think that that
entails the right to compel the government to search through
all of its records worldwide for any evidence that might exist
anywhere due to classification concerns, burdens on the
military, and the lack of any precedent for applying that kind
of criminal standard in these very different enemy combatant
proceedings.
Mr. Spratt. So, what we are saying is that although the
court has ruled that the detainees have a right to habeas
corpus, once they exercise that right and try to show that they
are not guilty of anything that would justify their being
further held, their procedural rights are less than the
procedural rights of an ordinary criminal defendant in the
federal courts?
Mr. Katsas. Absolutely Mr. Spratt. The Supreme Court in
Boumediene said explicitly that the extent of procedural
protections in habeas corpus proceedings need not track the
extent of protections in criminal prosecutions in domestic
Article three courts. They were quite explicit on that point.
Mr. Spratt. Boumediene holds that?
Mr. Katsas. Boumediene does not definitively answer the
question of how much procedure the detainees are entitled to,
but it does say that the procedure need not match the amount of
procedure for a domestic criminal trial.
Mr. Spratt. Colonel David, how do you read the decision?
Colonel David. Excuse me, I believe the decision is clear
that neither citizenship nor sovereignty status is dispositive.
Instead, the Court quoted whether a constitutional provision
has extraterritorial effect depends on the particular
circumstances and practical necessities and the possible
alternatives. I think they were not satisfied with the
alternatives. They made it clear that habeas will extend, and I
think there is certainly a precedent there that other
constitutional rights will apply to the detainees charged
before the commissions in Guantanamo Bay.
As I stated earlier, and if necessary, those will be
litigated one by one. But I certainly believe it is a broader
right reading.
Mr. Spratt. Mr. Katsas, the Attorney General sent us a
letter on July 21 with six key points that he would like to see
in legislation that the Congress writes. The first is that the
law should prohibit federal courts from ordering the government
to bring enemy combatants into the United States. What is the
purpose of that?
Mr. Katsas. The purpose of that is safeguarding the
security of this country. It seems unwise to allow potentially
dangerous people into the country to roam free in our midst.
Mr. Spratt. They would be in the custody of the military,
would they not?
Mr. Katsas. They may or may not be in custody. I would
think that other things being equal, custody at a secure
foreign military base on a remote island is safer than custody
in New York City or Washington, D.C.
Mr. Spratt. Thank you very much.
The Chairman. Mr. McHugh from New York.
Mr. McHugh. Thank you, Mr. Chairman.
Gentlemen, I want to pursue Mr. Spratt's last point a
little bit. I would preface it by saying that I think the very
interesting discussion between Mr. Katsas and Colonel David as
to what this court decision conveys with respect to
constitutional rights and what the provision of habeas means
here, given the absence of guidance by the court, which is also
at the crux of all four of the dissenters in this case, show
the peril in which this case has left us, because we truly
don't know what this ruling means in terms of conveyed rights.
Colonel, I respect your opinion, and you may well be right that
there is a clear indication that these combatants being held
are entitled, under our Constitution, to additional rights; and
while I would say to Mr. Katsas I would probably agree with
your analysis and your arguments as to what you believe, I
suspect before Boumediene came down, you believed there was no
right to habeas either, so we don't know.
Let's talk about the 60, roughly, individuals at Guantanamo
who we expect, at some point, will have no status there. They
have been processed and ready for release, but they have
nowhere to go, either because, for our purposes we would not
release them to certain countries or, for other reasons, other
countries would not take them. Is there not at least a question
of uncertainty, at some point, in a process of habeas, a judge
will be looking at this as a result of the Boumediene decision
and will say, ``You must release these people into the United
States''? Is that not a possibility?
Mr. Katsas. Absolutely. It is a possibility. We have one
pending motion in which a detainee has requested precisely
that.
Mr. McHugh. Would that now take us back to Attorney General
Mukasey's first point that he is concerned about that
possibility? Those people could--and I assume in that
circumstance would not be under custody--they would be free to
roam; true?
Mr. Katsas. The request is for release into the country.
Mr. McHugh. Colonel, would you disagree with that analysis,
that potential?
Colonel David. I think, certainly, the potential is there.
Mr. McHugh. Thank you. Colonel, I tried to follow very
carefully the discussion with the ranking member with respect
to the facility at Guantanamo. And quite frankly, I tended to
agree with the ranking member that the concerns you have
weren't necessarily embedded into a facility per se. They were
largely procedural, although I recognize there is a geography
issue in transport and such that you have. But I made an
assumption as to what I believe your position was, and I don't
think making an assumption on your position on my part is fair,
so I want to ask you.
My assumption is, listening to what you said, you would
believe that the only fair location in which to operate this
kind of system and have this kind of facility would be in the
continental United States (CONUS), in the United States. Am I
making a correct assumption?
Colonel David. Yes, sir. With respect to those detainees
being charged, my opinion would be that they could be
transferred to and tried within the federal criminal justice
system or under the Uniform Code of Military Justice (UCMJ) or
even under some quasi-special court.
Mr. McHugh. Here in the United States?
Colonel David. Yes, sir.
Mr. McHugh. Thank you. I am glad we got that on the record.
I didn't feel it was fair to assume that.
The other assumption, but I want to give you a chance to
more clearly define--I also heard you say, but before that--I
was assuming your belief is that Hamdi suggests very clearly
that the detainees at Guantanamo have a wider range and, as you
just said, will be argued and ultimately held that they have a
wider range of constitutional rights than just this narrowly
defined habeas; true?
Colonel David. Yes, sir. I think that issue is obviously
not answered.
Mr. McHugh. I am asking your belief?
Colonel David. Yes, I do believe it.
Mr. McHugh. Thank you.
Mr. Dell'Orto, you said in the beginning in your
statement--you read it here--that the dual-track process
provided under this ruling, as well as that provided under the
Detainee Act, provides to those detainees more appellate rights
than a United States citizen?
Mr. Dell'Orto. Yes, sir.
Mr. McHugh. I want to be clear for the record. I would
argue it also affords more rights of appeal than are afforded
to the people who are guarding them, the men and women who wear
the uniform of this country. Would you agree with that?
Mr. Dell'Orto. Yes, sir. And if I could append a point on
your previous question, in point of fact, if you take Colonel
David's argument to its logical conclusion, he would be arguing
that by virtue of this decision, a detainee at Guantanamo has
more rights under the Constitution than our service men and
women have under the Uniform Code of Military Justice, because
there are certain constitutional rights that are constrained
under the Uniform Code of Military Justice.
Mr. McHugh. In fairness to the Colonel, I didn't hear him
say all constitutional rights are conveyed. But I appreciate
your comment.
Mr. Chairman, just one more question.
Thank you, sir.
I would say to Mr. Katsas: I think your analysis of the
conveyance of the right to confront--and by the way, for the
record I dropped out of law school after 10 days, so jump in
here and correct me at any time--but from my limited knowledge,
that the right of confrontation under the sixth amendment is
normally considered a civil finding and would not be applied
here, you would argue. You and I would agree in that argument.
But would I be wrong to be concerned that, thereto, there could
be a court determination in the future, as they fill in these
considerable blanks left by this decision, that that right of
confrontation should be extended to detainees? Does that
concern you?
Mr. Katsas. In the habeas proceedings or in the
prosecutions?
Mr. McHugh. Either.
Mr. Katsas. In the prosecutions, that is an open question,
but the Military Commissions Act already provides confrontation
rights by statute.
Mr. McHugh. If it were provided under a sixth amendment
right, a right that we would argue is not yet extended but
could be as the blanks were filled in, it is my understanding
that a true confrontation under the traditional aspects would
be held here in the United States in federal court over on
Constitution Avenue. Is that true?
Mr. Katsas. If the proceedings were conducted here----
Mr. McHugh. Is that not standard procedure in a sixth
amendment confrontation before federal court?
Mr. Katsas. The habeas proceedings would be conducted here.
If confrontation rights were extended, then the detainees would
be here in Washington, D.C. at Third and Constitution,
Northwest.
Mr. McHugh. Mr. Chairman, in closing, I would say, look,
Colonel David is doing a great job in representing the
interests of his clients, and I feel certain he comes committed
to his passion, and he probably has points that need to be
carefully considered, but I refer in closing to the Attorney
General's comments. And without saying he is all right or all
wrong, I think these are points that we have to carefully
consider. In my opinion, there are far too many blanks here in
far too many important ways, as is embedded in much of the
dissent opinions, for those who have read it--that it is
incumbent upon us to step in and be heard and fill in some of
those blanks that I think cry out for definition.
That is why this hearing is important and why I,
personally, deeply appreciate all four of you being here. Thank
you all for your service and patience, too.
The Chairman. Thank you very much. Mr. Murphy.
Mr. Murphy. Thank you, and I agree with Mr. McHugh on his
past statement.
Mr. Dell'Orto, I know you are an Army officer for 27 years,
and I appreciate the whole panel for being here. I do want to
mention that you actually get more rights as a soldier, as you
know, when it comes to criminal law, whether it is fifth
amendment rights because you have the article 31(b) rights as
compared to Miranda, and you get sixth amendment right to
counsel in the military, as compared to in the civilian world,
where you have to be indigent to get a right to counsel free of
charge. You get free attorneys in the military.
I know you don't give first amendment freedom of speech
rights and others. I know you are a Notre Dame grad. I went to
King's College, another Holy Cross school, but you went on to
Pepperdine and St. John's and Georgetown, and I don't want to
match wits with you or with the board. I was just a lowly
constitutional law professor for West Point before I got this
gig.
Going to my question, Mr. Katsas, pursuant to the authority
granted under the Authorization for the Use of Military Force
(AUMF), do you believe that an old lady in Switzerland who
sends a check to an orphanage in Afghanistan can be taken into
custody as an enemy combatant if, unbeknownst to her, some of
her donation is passed to al Qaeda terrorists?
Mr. Katsas. I don't. And I should add that Judge Green,
whom you were quoting, went on to say that she believed that
that hypothetical does not describe any Guantanamo detainee.
Mr. Murphy. Then, you disagree with the statement of Deputy
Associate Attorney General Brian Boyle, who, in federal
district court in 2004, responded to that very question just
asked you by saying that the grandmother could be held because
``someone's intention is clearly not a factor that would
disable detention.''
So, I am puzzled. What is the government's formal position
to the outer limit on who can be detained under the AUMF?
Mr. Katsas. Under the AUMF, nations, organizations, or
persons who committed the September 11 attacks or harbored
those who did are proper objects of military force, including
detention. In general, what that means at a minimum is that al
Qaeda fighters and Taliban fighters can be detained, because al
Qaeda is the organization that committed the attacks, and the
Taliban is the armed force of the Nation that harbored al
Qaeda.
I fully agree with you to the extent your line of
questioning suggests that there will be difficult questions at
the outer bounds of who counts as al Qaeda. What happens to
someone who is not actually fighting but writing checks? Is
someone who occasionally writes a check different from someone
who looks more like an Army paymaster?
The existence of those hard questions at the outer margins,
I don't think changes the fundamental point that Taliban and al
Qaeda fighters are subject to detention, and our fundamental
concern is with the core principle, because, as I said in my
opening remarks, we had four out of nine judges on the fourth
circuit conclude that no member of al Qaeda could be detained,
not even Osama bin Laden.
Mr. Murphy. Which is a minority?
Mr. Katsas. A bare minority. Four out of nine.
Mr. Murphy. Colonel David, do you believe that the AUMF
applies to individuals who have no direct connection to al
Qaeda or the Taliban and have not engaged in belligerent acts
toward the United States?
Colonel David. With that general proposition, I would hope
so.
Mr. Murphy. Thank you.
In response to the Boumediene decision, Attorney General
Mukasey called on Congress to pass legislation that basically
codifies the Administration's broad and, in my opinion,
constitutionally suspect definition of who the government can
detain as an enemy combatant pursuant to the AUMF. We are
trying to find a balance here. Obviously, we are looking at the
spectrum. One the one hand are the Miranda rights on the
battlefield, which no one on this committee and 99 percent of
us in America don't agree that when you are fighting enemy
combatants, they don't get constitutional rights on the
battlefield, and we don't give them Miranda warnings, or
article 31(b) warnings, as we call them in military justice.
But on the other hand--I think most Americans say this--and
we have hundreds of folks who have been detained in Guantanamo
Bay for over six years now, and what is going on with them, and
that is why we had this decision--grant them a habeas corpus.
With all due respect to the Attorney General's proposal, I
don't think it is serious or realistic, and he knows full well
that this Congress will not approve legislation granting the
government power that broad, nor, in my opinion, should it.
As Judge Wilkinson of the Fourth Circuit Court said, who I
think you would agree is a conservative judge--he said of the
al Marri case, ``To turn every crime that might tenuously be
linked to terrorism into a military matter would breach this
country's most fundamental values.''
I think the American people, Mr. Chairman, are tired of
blatant partisanship from this Administration, which has been
displayed too many times when it comes to national security
issues over the past seven years. We are trying to find a
proper balance. So, could the panel please give this committee
a realistic idea of how future bipartisan legislation would
define who exactly the government can detain, while not
breaching our country's most fundamental values? I would ask
the panel to please answer that question.
Mr. Katsas. The Administration agrees with the quote from
Judge Wilkinson that you just read. The Attorney General, I am
pretty confident, would not disagree with it. I think a good
start would be confirming the power of the military to detain
members of al Qaeda, the Taliban and associated forces.
Mr. Murphy. I would agree with you. I think we can all
agree that if it is an al Qaeda member or a Taliban member or
anyone who harbors al Qaeda or Taliban, we want to be able to
go after them. No one in this room is disagreeing with you.
What we are arguing, though, is how do you find out if they
are Taliban or al Qaeda? And how tenuous of a connection does
it have to be?
Mr. Katsas. On the question of how tenuous the connection
has to be, no doubt there are hard questions on the outer
bounds of that. And if you were to try to specify a more
precise definition of who is sufficiently related to al Qaeda
to be subject to detention, we would be happy to work with you
on that.
Mr. Murphy. With all due respect, you are a member of the
Administration. We are asking for your professional opinion
here as we are trying to craft very important legislation that
is dealing with the very important issue dealing with national
security. We are asking for your professional opinion. Give us
a realistic idea of how--in the future, what kind of bipartisan
legislation do we need? How do we move forward from here?
Mr. Katsas. Sorry. I think I just gave it to you. My
professional opinion is that it would be both constitutional
and prudent to confirm the military's authority to detain al
Qaeda, Taliban, and associated forces. And to come back to your
other question about how do we determine who falls within that
circle, the Supreme Court has spoken. The answer is through
habeas corpus proceedings; and now the task, I hope, for the
political branches working together, is to spell out the
details of how those proceedings should be implemented.
Mr. Murphy. Part of the issue, and we had a very important
hearing yesterday--and I think it was Neal Katyal who said only
half of a single trial was completed after seven years of the
existence of Guantanamo Bay. You know, there is an argument
whether or not we should have a national security court. There
are a lot of issues we are trying to wrap arms around. I would
ask the other members of the panel if they would like to
answer.
And I know Sandra Hodgkinson. We served at the same time in
Iraq together. I know you were on the civilian side. I was
south of you. Unfortunately, I didn't get a chance to live in
the green zone, although that was not nice duty; don't get me
wrong. I used to bring my legal team there to swim in the pool,
because we didn't have showers at the time we worked. We were a
bunch of paratroopers, and we didn't smell too well. I know you
have the experience, as well, being a JAG attorney. And if you
have a comment on my question, I would appreciate to hear it.
Ms. Hodgkinson. One thing that I think is important to
note, and I know we are talking a lot about Boumediene and
Guantanamo, but we have captured as you know well over 100,000
people since the beginning of this particular war. And a very
small number, through battlefield screening, ever ended up at
Guantanamo Bay. So, while we agree it can be difficult to
define who fits within these narrow definitions, the hope is
that after different levels of hearings, whether they are
battlefield or combatant status tribunal or an administrative
review board, gets us to a degree of more confidence that at
least we are holding the people who pose a real threat to us;
because I want to assure everybody here in the room that we
have no desire to hold anybody who doesn't fit in that category
or pose a threat to the United States.
As we move forward, I think there have been a lot of issues
addressed in the Attorney General's testimony and, also,
discussed here about practical ways to ensure that these habeas
proceedings can proceed as quickly and efficiently as possible,
to have those very determinations made, so that we can move
forward and the decisions can be made by the courts. In the
meantime, I can assure you that we are going to do everything
we can to continue to transfer out those detainees that can be
transferred from Guantanamo Bay and to continue to try to
shrink the population as we look at the other alternatives that
are out there.
Mr. Murphy. Anyone else?
Mr. Dell'Orto. Congressman, in terms of the definition, I
would suggest that you might want to look first at section
948(a) of the Military Commissions Act, which, obviously, was
passed by Congress in 2006 and signed by the President shortly
thereafter. From the standpoint of jurisdictions of the
military commissions, that gives you a definition which is very
similar to what was adopted very early on for the purposes of
the combatant status review tribunal process. And so those
definitions are out there, and we think that they are operable
definitions, and we think that they have served us well to date
in the war on terror.
Mr. Murphy. Colonel David.
Colonel David. My concern right now is what happens to
those individuals that are charged. I think we all agree, or at
least I hope we agree, that when all is said and done, whether
you are a prosecutor or defense counsel, the discussion centers
on, gosh, the evidence I could have called or the witness I
could have called or something I could have done differently
and whether someone is found guilty or not guilty and what the
sentence is--the discussion is about that and not, for years to
come, about the process or the flaws in the process or the
problems with the process.
I think that is a goal we all share. The problem is how we
get there, and the concerns we are trying to bring forth, in
the litigation and in any form we can, is that the process, the
commission's process, has flaws.
I am concerned. I don't want anyone murdered in prison, but
I don't want someone dying there of old age because they have
been held there for an extended time without due process. I
think we are better than that. I don't envy your challenge.
Mr. Murphy. Along those lines, Colonel, yesterday we had
testimony from Colonel Morris Davis from the Air Force, and he
quoted the prosecutor from the World War II saboteur case. In
2001, right after the 9/11 attacks--and his name is Mr.
Cutler--he said, after 2001, that we know more about the United
States on how we prosecute al Qaeda members, and that will say
just as much about us as it will say about al Qaeda.
Colonel David. Sir, I am just a small town Indiana boy, but
I wouldn't want to drive a 1940's vintage automobile, and I
wouldn't want to be operated on in a 1940's vintage hospital.
So, I think, as painful as it may be for us as a country, in
the long run, giving the detainees 21st century legal rights is
the right thing to do, so we can stand up in front of the
world. We did it right, and we have no excuses, and we are not
subject to ridicule and criticism, and our legal integrity is
maintained, and we have defended the rule of law. I think that
is what we are about.
Mr. Murphy. I yield back to the chairman. For those folks
home watching, the chairman is a former county prosecutor in
Missouri and a military historian, and I just want those people
home in America to realize that we are not asking to give any
type of Miranda rights on the battlefield. If it is al Qaeda or
Taliban, we want to prosecute them to the fullest extent, and
that is an appropriate judgment if that is the case. But at the
same time, if there are people who are locked up in Guantanamo
Bay that were there for wrong reasons, whether they were turned
over because they got a bounty or whatever reason, now that
they have the rights under habeas corpus, which I think we
should have passed as a Congress--we didn't get there, even
though we have legislation and it hasn't come up for a vote;
but we are getting after it now, and it is something that I am
very proud of.
I yield back to the chairman.
The Chairman. I thank the gentleman.
Mr. Hunter. Mr. Chairman, if I may.
The Chairman. Mr. Hunter.
Mr. Hunter. Thank you, Mr. Chairman.
Once again, Colonel, you talked about 21st century rights.
The right to have counsel is a 21st century right. The right to
be convicted beyond a reasonable doubt is a 21st century right.
These 15 rights that I enumerated which so far nobody has
been able to expand upon, including you, are 21st century
rights. And of course, we expect the system to carry those
rights out. Now, if you see people not carrying those rights
out, we expect to know about that. But I don't want to let this
hearing conclude with the idea that somehow we are summarily
convicting people without affording them their rights. We are
not doing that.
And I also know that we have given a free pass to people
who were incarcerated in Guantanamo Bay, and they have gone
back, picked up arms; and they have tried to kill Americans on
battlefields. That is people who come from Mr. Murphy's town
and people who come from my town in San Diego, and the people
who come from the chairman's towns, and we have an obligation
to the people who fight on the battlefield to make sure that
the guys that they have given blood, sweat, and tears to bring
those people in when they capture them--and the idea of us
having a system where tie goes to the runner, and we jettison
those people back to the battlefield to make ourselves feel
good, instead of warehousing them for the duration of the war,
is a disservice to them.
I appreciate the panel being here, but I also appreciate
the fact that we did put a bill together. I think it is a good
bill. I notice that the Colonel, who was with us yesterday,
said that he thought that the Military Commissions Act (MCA) is
a good basis for the prosecution of people who are accused of
terrorism against the United States. I want to see these
prosecutions continue. I think we all do. I think everybody
here does. I want to thank the panel for being with us.
Last, I think it is a real mistake for us to close
Guantanamo because the rest of the world doesn't like it. The
rest of the world goes behind closed doors after Americans go
out to the far reaches of the world and risk our lives trying
to bring these guys to justice. And they breathe a sigh of
relief after the Americans do it. Then they can hold press
conferences and say that we didn't give Khalid Sheikh Mohammed
all of the rights that he was entitled to while our guys were
out there risking their lives to bring him in.
I think we have done a pretty darn good job of this so far,
and I think it is a mistake for our political figures,
including those in my party, to say that they are going to
close Guantanamo to somehow do away with this image that has
falsely built up around this system of justice.
Thank you, Mr. Chairman, thanks for having the hearing
today.
The Chairman. Back to the legislative issue.
There is a law on the books called the Classified
Information Procedures Act. The Attorney General mentioned in
his speech before the American Enterprise Institute that there
should be legislation in relation to habeas corpus proceedings
that are related to the status of detainees, that the
Classified Information Procedures Act is inadequate. I am
asking Mr. Katsas: Upon what basis does the Attorney General
make that assertion?
Mr. Katsas. The Classified Information Procedures Act
governs criminal trials, outside the wartime context, in
domestic Article 3 courts. The question before you today is
appropriate procedures for wartime status determinations in a
non-criminal context for aliens captured and held outside the
country.
The fundamental problem with applying the Classified
Information Procedures Act in this very different context is
that, ultimately, the Classified Information Procedures Act, in
many cases, puts the government to the Hobson's choice of
either revealing classified information or letting somebody go
in any case where a judge finds that there is no adequate
substitute for classified information. That might be an
appropriate burden to impose on the government in the context
of criminal prosecution. We don't think it is an appropriate
burden in the context of fighting a war.
The Chairman. Has the Classified Information Procedures Act
been used in any of the trials thus far? Regarding terrorism,
of course.
Mr. Katsas. In the habeas hearings or the prosecutions?
The Chairman. No, in the actual prosecution.
Mr. Dell'Orto. We have the version of the Classified
Information Procedures Act that is different for military
commissions that was passed by Congress in the Military
Commissions Act.
I don't believe we have actually had to employ those
procedures yet in the trial that is underway at Guantanamo at
this moment. I could be wrong on that, because I don't follow
the day-to-day happenings in that particular court. So, I could
be wrong on that, Mr. Chairman, but I don't believe we have had
to employ those procedures yet.
Mr. Katsas. And I should add it has not yet been used in
the habeas proceedings involving detention challenges, although
detainee counsel have asked for something like it.
The Chairman. Despite that, if your Department has
recommendations along this line, we would appreciate additional
information on it for us, because it could pose a problem in
the future.
Mr. Katsas. We would be happy to do that.
The Chairman. Colonel David, you might be interested in
knowing that country lawyers do think alike, and you have some
country lawyers up here listening to your testimony today.
Gentlemen, thank you for your patience and your testimony.
It has been very, very helpful. I know it has been a long day
for you, but this is a most important subject for us to be
considering, and we will obviously be looking at your testimony
in the days ahead. Thank you so much.
The hearing is adjourned.
[Whereupon, at 5:35 p.m., the committee was adjourned.]
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DOCUMENTS SUBMITTED FOR THE RECORD
July 31, 2008
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QUESTIONS SUBMITTED BY MEMBERS POST HEARING
July 31, 2008
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QUESTIONS SUBMITTED BY MR. SKELTON
The Chairman. There is a law on the books called the Classified
Information Procedures Act. The attorney general mentioned in his
speech before the American Enterprise Institute that there should be
legislation in relation to habeas corpus proceedings that are related
to the status of detainees, that the Classified Information Procedures
Act is inadequate. Upon what basis does the attorney general make that
assertion?
Mr. Katsas. When classified materials may be relevant to criminal
proceedings, the Classified Information Procedures Act (``CIPA''), 18
U.S.C. app. III Sec. Sec. 1-16, Pub. L. 96-456, provides procedures
designed to protect the rights of the criminal defendant while
minimizing the associated harm to national security. The habeas
litigation currently ongoing in the wake of Boumediene, like all habeas
litigation, is civil in nature, and therefore CIPA has no application
to it. CIPA reflects a fundamental policy choice that individuals
subject to criminal prosecution should be entitled, in some
circumstances, to access classified information for their defense. That
conclusion is inapplicable to aliens captured and held outside the
United States as wartime enemy combatants.
Wartime status determinations, whether performed by the military or
by habeas courts, are fundamentally different from criminal
prosecutions. The purpose of detaining enemy combatants for the
duration of hostilities is not to punish, but to prevent those
combatants from returning to the battle to fight against American
soldiers and interests. In that context, the Government should not be
put to the Hobson's choice of either releasing Taliban or al Qaeda
combatants during the ongoing conflict, on the one hand, or sharing
with those combatants classified national security information about
our intelligence sources, methods, or operations, on the other.
Finally, to the extent that the question relates to military
commission prosecutions of enemy combatants, those prosecutions are
being undertaken by the Office of Military Commissions in the
Department of Defense. Although the Department of Defense is best able
to respond to questions regarding the military commission process,
generally, I would like to note an important point. As iterated
earlier, the Attorney General's comments that are the subject of the
question above related not to criminal trials, but to civil habeas
corpus proceedings--proceedings in which CIPA does not apply.
Similarly, CIPA does not apply in military commission prosecutions
either; however, the Military Commissions Act of 2006 provides
similar--but more extensive--protections for classified information in
the commission process.