[Senate Hearing 110-900]
[From the U.S. Government Publishing Office]
S. Hrg. 110-900
THE LEGAL RIGHTS OF GUANTANAMO DETAINEES: WHAT ARE THEY, SHOULD THEY BE
CHANGED, AND IS AN END IN SIGHT?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TERRORISM,
TECHNOLOGY AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
DECEMBER 11, 2007
__________
Serial No. J-110-66
__________
Printed for the use of the Committee on the Judiciary
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53-355 PDF WASHINGTON : 2009
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
------
Subcommittee on Terrorism, Technology and Homeland Security
DIANNE FEINSTEIN, California, Chairman
EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York JOHN CORNYN, Texas
RICHARD J. DURBIN, Illinois SAM BROWNBACK, Kansas
BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma
Jennifer Duck, Chief Counsel
Stephen Higgins, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 6
prepared statement........................................... 103
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois, prepared statement................................... 216
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 231
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 1
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 4
Leahy, Hon. Patrick J., A U.S. Senator from the State of Vermont,
prepared statement............................................. 244
WITNESS
Burlingame, Debra, Member of the Board of Directors, National
September 11 Memorial Foundation............................... 36
Denbeaux, Professor Mark, Professor of Law, Seton Hall Law
School:........................................................ 30
Engel, Steven, Deputy Assistant Attorney General, Office of Legal
Counsel, U.S. Department of Justice............................ 9
Hartmann, Brigadier General Thomas W., Legal Adviser to the
Convening Authority, Office of Military Commissions............ 7
Hutson, John D., Dean and President, Franklin Pierce Law Center.. 34
QUESTIONS AND ANSWERS
Responses of Mark Denbeaux to questions submitted by Senators
Feingold and Feinstein......................................... 48
Responses of Thomas W. Hartman to questions submitted by Senators
Feingold and Feinstein......................................... 56
Responses of John D. Hutson to questions submitted by Senator
Feingold....................................................... 59
SUBMISSION FOR THE RECORD
Burlingame, Debra, Member of the Board of Directors, National
September 11 Memorial Foundation:
statement.................................................... 61
Exhibits - PR Perspective: A Long Term Struggle, how a media
campaign helped turn the Guantanamo Tide................... 74
Exhibits - Lobbying Registrations............................ 77
Exhibits - Foreign Agent Registration ACD filings-Kuwait..... 95
Denbeaux, Professor Mark, Professor of Law, Seton Hall Law
School, statement:
statement.................................................... 105
The Empty Battlefield and the Thirteenth Criterion........... 112
CTC Report - An Assessment of 516 Combatant Status Review
Tribunal (CSRT) Unclassified Summaries..................... 139
A Response to the Seton Hall Study - An Assessment of 516
Combatant Status Review Tribunal (CSRT) Unclassified
Summaries.................................................. 178
The Meaning of ``Battlefield''............................... 186
Engel, Steven, Deputy Assistant Attorney General, Office of Legal
Counsel, U.S. Department of Justice, statement................. 218
Hartmann, Brigadier General Thomas W., Legal Adviser to the
Convening Authority, Office of Military Commissions, statement. 233
Hutson, John D., Dean and President, Franklin Pierce Law Center,
statement...................................................... 239
Shearman & Sterling LLP, Rohan S. Weerasinghe, New York, New
York, letter................................................... 246
THE LEGAL RIGHTS OF GUANTANAMO DETAINEES: WHAT ARE THEY, SHOULD THEY BE
CHANGED, AND IS AN END IN SIGHT?
----------
TUESDAY, DECEMBER 11, 2007
United States Senate,
Committee on the Judiciary, Subcommittee on
Terrorism, Technology and Homeland Security
Washington, D.C.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein, Chairman of the Committee, presiding.
Present: Senators Feinstein, Durbin, Cardin, Graham,
Sessions, and Kyl.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Chairman Feinstein. The meeting will come to order.
I know there are people in this room that have very strong
feelings on a number of different subjects. I would request
that you be respectful, that signs not block anyone's view, and
that there be no comments made. We would appreciate that.
This is a serious hearing and we are dealing with a very
serious subject, and so we would appreciate everybody's
cooperation. You're welcome to attend. We are delighted that
you care, but please be respectful.
And I'll begin with a brief statement, call on my ranking
member, and then we will proceed.
Thirteen hundred miles south of Washington, in Guantanamo
Bay, Cuba, the United States has built a detention facility to
hold and interrogate suspected terrorists and other enemy
combatants.
Detainees were brought to Guantanamo beginning in January
of 2002. Seven hundred and fifty-nine detainees have been held
there. About 454 have been released or have died, four from
apparent suicides. As of last week, 305 detainees remain.
Of those, we understand approximately 60 to 80 have been
cleared for release, but are still being held because of
difficulties of sending them elsewhere. Only four detainees
have been formally charged and it is reported that the Defense
Department plans to prosecute another 60 to 80 detainees.
The administration has repeatedly called those individuals
at Guantanamo ``the worst of the worst,'' and there are bad
people there. However, one of today's witnesses, Professor
Denbeaux, has issued reports that challenge this assertion.
This facility was established following a December 2001
Office of Legal Counsel memo co-written by John Yoo that
examined whether Guantanamo might be turned into a legal
hybrid, wholly under United States control, but beyond the
reach of the United States courts.
The administration lawyers' theory was that since
Guantanamo is not part of the territorial United States, the
normal legal strictures could be avoided. However, once turned
into a reality, this new facility has come under criticism,
been the subject of many court challenges, and has harmed our
nation's standing abroad.
For a period of more than 30 months, the Bush
administration continued to hold these detainees at Guantanamo,
without providing them with any additional judicial or
administrative review of their detentions.
In June 2004, in Rasul v. Bush, the Supreme Court ruled
that the reach of the U.S. courts did extend to Guantanamo and
the prisoners held there. After that ruling, the executive
branch granted the detainees some administrative review,
although this process, too, has been criticized.
All detainees were given a combatant status review tribunal
or a CSRT hearing. This was a one-time hearing to evaluate
whether they were properly classified as an enemy combatant.
Detainees were also given an annual review before an
administrative review board, but this did not examine if their
detention was lawful.
Instead, the validity of each detention was assumed and the
review process only allowed each detainee to argue that he no
longer constitutes a threat.
For the remaining limited number of detainees, they were to
be tried by military commissions. However, the procedures
initially put in place for those commissions by the
administration were eventually struck down as inadequate by the
Supreme Court in the Hamdan decision. The court ruled that the
trials at Guantanamo had to be based on statute.
This led the Congress to pass, last fall, the Military
Commissions Act. I voted against this legislation because it
allowed hearsay evidence, created a separate and lesser system
of justice, and also eliminated the right of habeas corpus for
all of Guantanamo's detainees.
The 60 to 80 detainees that the department intends to try
will be put through the military commission process, although
when those hearings will take place is unknown.
Now, it is six years after the first detainees were brought
to Guantanamo and the administration still has not yet tried a
single detainee, not in any U.S. criminal court and not by the
military commissions, and only one detainee, David Hicks, has
pled guilty.
In addition, new concerns have been raised about the legal
rights given to Guantanamo detainees, not just by outside
scholars, but by the very military officers who personally
participated in the process.
In fact, over the last few months, several military
officers have publicly raised concerns about the procedures now
in place. First, Lieutenant Colonel Stephen Abraham, who served
on the review board in the CSRT process, has said the DOD
pressured him and others on the CSRT review boards to rehear a
case and explain, ``what went wrong,'' when the CSRT issued a
decision that one of the detainees should not be classified as
an enemy combatant.
Lieutenant Colonel Abraham also complained about the
evidence being presented to the CSRT in order to determine
detainee status. He said it was often generic, outdated,
incomplete, and that no controls were in place to ensure that
evidence of innocence was being disclosed; and second, the
Defense Department's chief prosecutor, Colonel Morris Davis,
has recently resigned over his concerns about how the military
commissions process has been politicized.
Colonel Davis was previously one of the staunchest
defenders of Guantanamo. Colonel Davis has written a op-ed in
the ``New York Times'' and an article for the Yale law journal
this year arguing that he and his prosecutorial staff at DOD
could prove the critics wrong by holding full and fair trials
at Guantanamo that would live up to the standards of American
and international justice.
But on October 4 of this year, Colonel Davis resigned from
his position, after concluding that full, fair and open trials
were unlikely at Guantanamo. Colonel Davis has stated to me
yesterday that the convening authority, which is supposed to be
independent and perform certain evaluations, has been
compromised and politicized.
Colonel Davis has stated to DOD and publicly that the
prosecution process has been politicized, that the convening
authority and its legal advisor would direct the prosecutions'
pre-trial preparation, including directing the office about
what evidence to use, what charges to file, and that his
efforts to ensure that the military commissions would be open
and fair were being overridden by administration officials who
believed it was more important to get convictions before the
2008 elections.
As Colonel Davis told the Washington Post on October 20,
this is a quote, ``There was a big concern that the election of
2008 is coming up. There was a rush to get high interest cases
into court at the expense of openness.''
I invited Colonel Davis to testify at this hearing.
However, the Defense Department has ordered him not to appear.
That, indeed, is very disappointing.
We assured the administration that Colonel Davis would not
be asked about pending and open cases, but we were told simply
that Colonel Davis was active duty military and because he was
active duty military, they could issue an order that he had to
follow.
I think this is a real shame that we will not have Colonel
Davis as a witness today. I think he has an important
perspective. I wish the administration would allow him to
appear.
Unfortunately, I have to conclude that by prohibiting
Colonel Davis from testifying, the administration is trying to
stop a fair and open discussion about the legal rights of
detainees at Guantanamo.
Clearly, the concerns that have been raised by Lieutenant
Colonel Stephen Abraham and Colonel Morris Davis need to be
discussed and evaluated. I believe there also needs to be an
examination of what is happening at Guantanamo, why cases are
not being prosecuted, what needs to be done with detainees who
can't be charged and what legal rights should all detainees be
afforded.
That is the purpose of this hearing. I look forward to
hearing from the witnesses and am very pleased that my ranking
member, somebody I've worked with on this committee now for
about 12 years, is that fair to say?
Senator Kyl. Yes, 13.
Chairman Feinstein.--13 years, is here today and I turn it
over to you, Senator Kyl.
STATEMENT OF HON. JON KYL, A SENATOR FROM THE STATE OF ARIZONA
Senator Kyl. Thank you very much, Madam Chairman, and I
appreciate your interest and the questions that you posed and
hope and trust that some light will be shed on them in today's
hearing.
At least 30 detainees who have been released from the
Guantanamo Bay detention facility have since returned to waging
war against the United States and its allies. A dozen released
detainees have been killed in battle by U.S. forces, while
others have been recaptured.
Two released detainees later became regional commanders for
Taliban forces. One released Guantanamo detainee later attacked
U.S. and allied soldiers in Afghanistan, killing three Afghan
soldiers. Another has killed an Afghan judge. One led a
terrorist attack on a hotel in Pakistan and also led to a
kidnapping raid that resulted in the death of a Chinese
civilian.
This former detainee recently told Pakistani journalists
that he plans, and I'm quoting now, ``to fight America and its
allies until the very end.''
The reality is that this nation needs to be able to detain
those active members of Al Qaida and related groups whom it
captures. Releasing committed terrorists has already resulted
in the deaths of allied soldiers and innocent civilians and may
very well someday result in the deaths of U.S. servicemen. Such
a result would be unacceptable and the possibility of such
result must always be kept in mind when we consider the kinds
of rights that should be extended to these detainees.
A detention regime for terrorists whom we intend to detain
until the end of hostilities should seek to weed out mistakes,
but it must also be designed in a way that also protects our
nation's legitimate interests. Extending the civilian habeas
litigation regime to unlawful war prisoners is problematic,
among other things, because detainees will demand access to
classified evidence.
In the civilian habeas system, a detainee would have a
presumptive right of access to such evidence. The government
could seek to redact portions of the evidence or summarize it,
but in the end, it must provide the defendant with the
substance of the evidence. If it can't do so, if revealing the
substance of the evidence compromises a unique source, then the
government simply can't use the evidence.
As difficult as the problems with classified evidence have
occasionally proven in criminal trials, they would be greatly
exacerbated in proceedings involving Al Qaida detainees. Much
of the information that we obtain about Al Qaida and its
members comes from our most sensitive sources of intelligence.
For example, much information has been provided to the U.S.
by various Middle Eastern governments. These governments are
often afraid of Al Qaida or radicalized elements of their own
populations, and they don't want anybody to know that they're
helping us fight Al Qaida.
Often, these governments provide information to the U.S.
only on the condition that it not be disseminated outside of
the U.S. intelligence community. If we suddenly were required
in a detainee litigation proceeding to reveal to a detainee and
his lawyer that we had obtained particular information from one
of these governments, we would badly damage our relations with
that government and could lose access to an invaluable source
of intelligence about Al Qaida.
The same problems arise with certain technological sources
of intelligence or with regard to particular human sources and
there is no simple solution to redaction or summarization of
the evidence.
Oft times, the most important types of intelligence are sui
generis and revealing the nature of the evidence reveals its
source. These types of problems would arise again and again in
enemy combat litigation and would repeatedly present the United
States with a Hobson's choice--either damage a valuable
intelligence source that could provide information about future
Al Qaida attacks or release a committed Al Qaida member.
This is not a choice that the United States should be
forced to make.
Another question that immediately arises when contemplating
the extension of litigation rights to Al Qaida detainees is
where does it end. The United States is holding 800 detainees
at Bagram airbase in Afghanistan and tens of thousands in Iraq.
If the Guantanamo detainees can sue, why shouldn't these
detainees be allowed to sue, as well? After all, the U.S.
military's absolute control over Guantanamo is really no
greater than its control over any other U.S. military base
anywhere in the world.
If this is a matter of principle, it should have applied in
past wars. The U.S. detained over two million enemy war
prisoners during World War II, including 400,000 who were held
inside the United States. Should they have been allowed to sue
in U.S. courts? Would there have been enough lawyers in the
United States to handle the litigation?
At the very least, we should be able to agree that we
should not extend greater rights and privileges to combatants
who violate the rules of--the laws of war, including
terrorists, than we do to those who obey the laws of war.
The Guantanamo debate poses many difficult questions,
questions that remain unresolved in light of the Supreme
Court's most recent foray into the area.
I look forward to testimony from today's witnesses and hope
that, as the chairwoman said, it can shed light on some of
these important questions.
Chairman Feinstein. Thank you very much, Senator Kyl.
Senator Cardin, it's my understanding you'd like to make an
opening statement.
STATEMENT OF HON. BENJAMIN CARDIN, A SENATOR FROM THE STATE OF
MARYLAND
Senator Cardin. Thank you, Madam Chair. And I'm going to
ask that my entire written statement be made part of the
record.
Chairman Feinstein. So ordered.
Senator Cardin. And just let me summarize very quickly.
The original purpose for why detainees were transferred to
Guantanamo Bay from Afghanistan over five years ago was for us
to be able to obtain intelligence information from the
detainees that would be very important to protect the safety of
the people of our nation. That was its original purpose.
In doing this, we made major mistakes. The first was that
we did not, the administration would not allow those that were
sent to Guantanamo Bay to challenge their status. Ultimately,
the courts intervened and that was changed.
We never reached out to the international community to seek
their understanding as to what we were trying to do in
Guantanamo Bay. That was also a mistake.
It's hard to understand that after five years, that the
people at Guantanamo Bay that are being detained have
significant intelligence value as far as what we can obtain
through interrogation.
They should be brought to justice. They should be brought
to justice consistent with the values embedded in our criminal
justice system that we're so proud about.
Madam Chair, I must tell you that I wear another hat and
that is the co-chair of the Helsinki Commission and in that
capacity, I represent the Congress at international meetings,
and there has been no issue, no issue that's been brought up
more in, I guess, disappointment in the United States and the
manner in which Guantanamo Bay has been handled and the total
disregard for the international community in that respect.
I want to thank you for conducting this hearing, because as
the courts have said, the Congress has a responsibility to
determine the framework in which the detainees at Guantanamo
Bay are to be brought to our criminal justice system and I
thank you for holding this hearing and I hope that we will be
able to get some answers.
I am disappointed that we were not able to get the full
cooperation of the administration on the witnesses before our
committee. I think that's wrong, it's disappointing. And I look
forward to working with you as we try to craft a proper
response to the current situation that we find ourselves in.
Thank you.
Chairman Feinstein. Thank you very much, Senator Cardin.
Senator Sessions. Madam Chairman.
Chairman Feinstein. Yes, Senator Sessions.
Senator Sessions. Just briefly. When you say they should be
brought to justice, if that means that captured prisoners of
war have to be tried, then I don't agree. Prisoners of war are
not tried. They are detained until hostilities end.
We know that a number of those that have been improvidently
released, as Senator Kyl has noted, have attacked us again.
These are people who are dedicated to the destruction of
America. Many of them are.
I wish it were not so. I wish it were not so. I wish that
we could release these people. I wish that we could not have to
have detention of those who are waging war against the United
States and our allies, but we must do so, unfortunately, and we
cannot create that--transform military detention of prisoners
of war, even unlawful combatants who don't comply with the war,
into trials.
I think it's appropriate that the military pick and choose
what are the appropriate cases to try first. I don't see
anything wrong with that.
Thank you, Madam Chairman. I look forward to the hearing.
Chairman Feinstein. Thank you, Senator Sessions.
We'll now turn to the panel, the two witnesses.
Brigadier General Thomas W. Hartmann has served since July
of 2007 as the legal advisor to the convening authority of the
Department of Defense Office of Military Commissions. He is
responsible for providing legal advice to the convening
authority regarding referral of charges, questions that arise
during trial, and other legal matters concerning military
commissions. His duties also include supervising the convening
authority legal staff.
Steven Engel, Deputy Assistant Attorney General, Office of
Legal Counsel, Department of Justice, is the second witness.
Since February of 2007, Mr. Engel has served as a deputy
assistant attorney general in the Office of Legal Counsel,
where he has provided legal advice to the executive branch on a
variety of matters, including the detention and prosecution of
enemy combatants, treaties and congressional oversight. Mr.
Engel also serves as co-chair of the President's Task Force on
Puerto Rico's Status.
Gentlemen, we welcome you and we'll begin with General
Hartmann.
STATEMENT OF BRIGADIER GENERAL THOMAS W. HARTMANN, LEGAL
ADVISER TO THE CONVENING AUTHORITY, OFFICE OF MILITARY
COMMISSIONS
Mr. Hartmann. Good morning, Senator Feinstein.
Chairman Feinstein. General, before you proceed, I'm going
to have seven-minute rounds. So if you could confine your
testimony to that period of time, and we will do the same.
Mr. Hartmann. Okay.
Chairman Feinstein. Thank you.
Mr. Hartmann. Thank you, Senator Feinstein, Senator Kyl,
Senator Sessions, Senator Cardin.
I'll ask that my testimony just be made part of the record
and I won't read that into the record, but I thought that it
would be useful for the subcommittee to see the rights that are
described in the testimony in a reality.
And if you had been at Guantanamo Bay on the 5th and 6th of
December, during the continuation of the United States v.
Hamdan case, you would have seen the following when you walked
into the courtroom on Guantanamo Bay.
You would have seen an accused who was in a tie and a coat
and he had headphones on his head as he was listening to a live
translation of his testimony--not his testimony, but the
testimony and the statements of the court during his continued
trial. So he was hearing it in his native language.
Sitting next to him was a translator, between him and five
counsel who were at his table. He had a detailed military
defense counsel, a detailed civilian defense counsel, two
counsel from a distinguished law firm in the United States, and
a counsel who is a professor at Emory University. Five counsel
at his table.
Behind him was a U.N. observer, Mr. Scheinin, as well as
five members of the press and five nongovernmental
organizations, the ACLU, the American Bar Association, Human
Rights Watch, Human Rights First, among others.
The press were limited to five in the courtroom. There's an
overflow building that we have for the press. So there were
other press, domestic and international press in that location,
as well.
In the Khadr hearing that had occurred approximately a
month before that, there were 30 members of the press and, over
the period of times that we've handled the commissions in the
last several months, more than 100 press people have attended
these hearings.
Also present in the courtroom were military prosecutors, a
Navy officer, an Army officer, and a member of the Department
of Justice. Pivotal to that process was a uniformed officer, a
military judge, who has more than approximately 30 years of
service in the United States Navy.
The judges come from all the uniformed services. This judge
was from the Navy. He wore a black robe and he presided over
the hearing.
The accused was allowed to remain silent, because that's
his right. The accused and his counsel were allowed to cross-
examine witnesses presented by the government, because that is
his right.
The accused was allowed to call witnesses for the first
time in this hearing, because that is his right. The accused
was allowed discovery and the accused was allowed to seek
witnesses who he said were exculpatory, even to the point that
the convening authority, at 10 o'clock on the night of the
first hearing, granted immunity to that witness so that that
exculpatory evidence, whatever it was, could be given.
Those are the rights you would have seen in that courtroom.
If the accused is found guilty, he will have a right that
no one else has in the United States or in any other court, and
that is a right of automatic appeal to the Court of Military
Commission Review. That is a right that is similar to the
rights that we give to our uniformed soldiers, but no other
civilian has that right.
He will also have the right to have his findings, if he's
found guilty, and his sentence reviewed by the convening
authority, impartially, impartially, and she alone will be able
to reduce the sentence or adjust the findings downward, not
upward, downward, a right that doesn't exist anywhere on earth
except in the Uniform Code of Military Justice and in this
system.
If you had risen early in the morning that day, you would
have seen a silhouette of a military member from the Air
National Guard of Puerto Rico with a dog, walking across the
top of the building, protecting our soldiers, sailors, airmen
and the members of that tribunal from bombs.
There were approximately 60 members of the Puerto Rican
National Guard defending and protecting that proceeding. And
the place that I saw that silhouette from was what we call Tent
City or Camp Justice, which is the location of the new
expeditionary legal conference, and that complex is being built
by the Indiana Air National Guard and several other Air
National Guard units from around the country.
That complex is designed to be ready about March 1 to deal
with classified information and other things and your soldiers,
sailors and airmen are doing a magnificent job in not simply
describing the rights that are in the manual for military
commissions or in the Military Commission Act, but effectuating
them and bringing them to reality for alleged war criminals.
Thank you, ma'am.
Chairman Feinstein. You've concluded?
Mr. Hartmann. Yes, ma'am.
Chairman Feinstein. Thank you very much. Appreciate it.
Mr. Engel.
STATEMENT OF STEVEN ENGEL, DEPUTY ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Mr. Engel. Thank you, Chairwoman Feinstein, Ranking Member
Kyl, Senator Sessions, Senator Cardin. I appreciate the
opportunity to appear here today to discuss the legal rights of
the enemy combatants detained at Guantanamo Bay.
General Hartmann outlined a series of the rights that the
accused in the military commission is enjoying and will enjoy
as those prosecutions go forward.
I'd like to take this time with remarks to talk about the
legal rights with respect to detention, because these are
issues that have been developed over the course of a number of
years that represent the joint action of the executive branch
and Congress with the guidance of the Supreme Court, and, of
course, that guidance we expect will continue with the
Boumediene decision.
As the subcommittee is well aware, the United States is
currently engaged in an armed conflict with little precedent in
our history. Like past enemies, the attacks of September 11
demonstrated that Al Qaida and its allies possess both the
intention and the ability to inflict catastrophic harm on this
nation.
These terrorist enemies, however, show no respect for the
law of war. They do not wear uniforms and they seek to achieve
their goals through covert and brutal attacks on civilians
rather than by directly engaging our armed forces.
Although the law of war is based fundamentally upon
reciprocity, the unconventional nature of our enemies,
including their refusal to distinguish themselves from the
civilian population, has perhaps paradoxically resulted in our
providing the Guantanamo detainees with an ever increasing set
of rights so as to assure ourselves that those detained at
Guantanamo, in fact, pose a continuing threat.
And, again, to be clear, this is a strength of our system.
This reflects our commitment to the rule of law. But it is a
strength that must be reconciled with the need to vigorously
prosecute this armed conflict and defend our nation against
future attacks.
The Subcommittee conducts this hearing less than one week
after the Supreme Court heard oral argument in the Boumediene
case. That case, again, will no doubt shed considerable light
on the scope of the detainees' rights.
In Boumediene, the D.C. Circuit upheld Congress' authority
to restrict the availability of habeas corpus, as it had done
under both the Detainee Treatment Act and the Military
Commissions Act passed last year.
There is no doubt that the writ of habeas corpus represents
a fundamental protection under our law, but the writ is
fundamentally tailored for peacetime circumstances. The
Constitution specifically grants Congress the authority to
suspend the writ, even for American citizens, during times of
rebellion or invasion.
In the nearly 800 years of the writ's existence, no English
or American court has ever granted habeas relief to an alien
prisoner of war.
Although the Detainee Treatment Act restricted the
availability of habeas, it did not leave the detainees without
a day in court. Rather, the act provides that the detainees,
after receiving fair hearings before the Combatant Status
Review Tribunals that the Department of Defense has set up, can
further seek review of those decisions at the D.C. circuit.
These CSRT procedures, as we call them, were themselves
established to go beyond the requirements of the Geneva
Conventions, the requirements owed to lawful prisoners of war,
and, as well, to provide the Guantanamo detainees with the due
process that the Supreme Court, in Hamdi v. Rumsfeld, held
appropriate for American citizens who choose to fight for the
enemy and are subsequently detained.
The Detainee Treatment Act, though, goes even further than
those procedures and provides the D.C. Circuit with
jurisdiction to review those CSRT decisions. This is a right of
civilian judicial review that is virtually unprecedented during
wartime.
The D.C. Circuit can consider all available constitutional
and statutory arguments and it can ensure that the CSRT
followed its own procedures, including the requirement that a
preponderance of evidence supports the CSRT decision. The DTA
review process would constitute an adequate and effective
alternative to habeas corpus, even if the detainees could claim
such a right under our Constitution.
Still, the DTA procedures are more properly adapted than
habeas corpus to the circumstances surrounding military
detentions. As I noted, extending habeas to Guantanamo would be
unprecedented and, lacking precedent, it would raise a host of
serious questions as to how habeas might apply.
For example, would we be required to bring the detainees
into the United States to participate in habeas hearings? What
rules of discovery would govern such proceedings? Could the
detainees, for example, compel a United States soldier to
return from Afghanistan or Iraq in order to appear and testify
at such a hearing? And perhaps most seriously, would the
detainee have the right to review classified evidence such that
the United States might be forced to choose between disclosing
vital intelligence to the enemy or actually releasing members
of Al Qaida?
The Department of Justice, no doubt, would argue for
answers in any of these cases that would minimize their
intrusion on our war fighting effort, but we can be equally
assured that detainees' counsel would argue zealously on the
other side.
It is our hope that we will not need to answer these
questions about how to apply habeas to a wartime situation,
because the DTA procedures themselves provide a robust process
that would be a constitutionally adequate alternative to habeas
corpus, should the detainees be entitled to such rights.
In sum, the existing system reflects a careful and
appropriate compromise between the needs of military operations
and our commitment to the rights of the detainees. This system
has been worked out between the political branches, fully
consistent with existing judicial precedent, and we hope will
be upheld by the Supreme Court in its decision in Boumediene.
Thank you, Senator Feinstein, Ranking Member Kyl and
members of the subcommittee, and I look forward to answering
your questions.
Chairman Feinstein. Recognizing Senators, it will be
myself, Senators Kyl, Cardin, Sessions and Durbin.
Colonel Davis, General Hartmann, has also said that he
directed his office not to use evidence obtained from or in
connection with enhanced coercive interrogation techniques,
specifically water boarding.
What is the current status of this issue?
Mr. Hartmann. Ma'am, with regard to that, as a general
matter, a prosecutor is not authorized and should not discuss
matters of deliberation and how he's going to proceed with a
trial in public.
However, since Colonel Davis brought this matter to the
public, the issue is very clear. As a matter of policy and as a
matter of law, torture is prohibited under U.S. law. Statements
obtained by torture are prohibited from being used in these
commission proceedings.
As to other enhanced techniques and coercive techniques
that might be used in connection with gathering evidence, that
is the purpose for which the Military Commissions Act was
created. That's why we have a judge in the courtroom. That's
why the accused has the right to a defense counsel. That's why
there are prosecutors, ma'am, and discovery.
Those people will assess the facts and apply them to the
law as it exists in the United States and as it applies to the
commissions, and that's the rule of law, not for me to make a
decision about that in abstraction.
Trials, commission proceedings are 90 to 95 percent facts
and you apply the law to those facts. So to answer that in
abstract is, number one, inappropriate and anything dealing
with the discretion of a prosecutor is inappropriate to be
dealt with in public.
Chairman Feinstein. So I understand from the answer to the
question that evidence obtained from water boarding is not
being used to prepare cases.
Mr. Hartmann. No, ma'am, I didn't say that.
Chairman Feinstein. Well, will you repeat what you did say?
Mr. Hartmann. Yes, ma'am, I will say that. The evidence
that we are gathering is the evidence that we are gathering.
Whatever the methods that have been used to gather that
evidence will be evaluated in connection with the law and in
the trials.
It can't be defined in an abstract way like that, ma'am.
Chairman Feinstein. All right. So I understand it's a non-
answer to my question.
Is evidence from other enhanced coercive interrogation
techniques being used?
Mr. Hartmann. Ma'am, I can't answer that either, because
these are ongoing trials and it's completely inappropriate for
anyone associated with the preparation of cases or any kind of
prosecution to prejudge those or to discuss those in the
public.
It's very critical that those involved in a prosecution
effort have the ability to discuss those behind closed doors so
that they can give unvarnished, unbiased, bark-off-the-tree
opinions about the right answer.
Chairman Feinstein. One last question on that subject.
Do you agree that evidence obtained from water boarding is
unreliable and should not be used?
Mr. Hartmann. Ma'am, again, the issues that deal with that
are fundamentally based on reliability and probativeness of
evidence and the question that will be before the judge when
that comes up is whether the evidence is reliable and probative
and whether it's in the best interest of justice to introduce
the evidence.
That is the rule of law, ma'am. That is the rule of
evidence. That is the rule of law and the rule of evidence that
is supported by the Military Commission Act that the
legislature passed.
Chairman Feinstein. So in other words, if you believe you
can prove something from evidence derived from water boarding,
it will be used.
Mr. Hartmann. If the evidence is reliable and probative and
the judge concludes that it is in the best interest of justice
to introduce that evidence, ma'am, those are the rules we will
follow. Those are the rules we must follow.
Chairman Feinstein. How is that presented to the judge?
Mr. Hartmann. How is?
Chairman Feinstein. How is that issue presented to the
judge in the--
Mr. Hartmann. Well, the prosecution--
Chairman Feinstein. --course of the trial?
Mr. Hartmann. I'm sorry. The prosecution will raise the
issue, because the prosecution will be presenting the evidence
or the defense will file a motion to exclude the evidence, and
then the parties will deal with that motion and debate it.
Chairman Feinstein. I see. Did you, the convening authority
or anyone discuss the need to move quickly on cases because of
upcoming elections?
Mr. Hartmann. No, ma'am, I did not.
Chairman Feinstein. That was never discussed.
Mr. Hartmann. Absolutely not, ma'am.
Chairman Feinstein. Would you agree that military
commission trials should be open, if possible?
Mr. Hartmann. Yes, ma'am, absolutely. I fully support, and
so does everyone on the commission process fully support the
value of having open trials and open presentations. We have
moved mountains to try to get the press there, the
nongovernmental organizations there, and we endeavor to do
that.
However, there will be circumstances in which classified
evidence must be used to move forward on the cases and in those
limited sets of circumstances, it will be necessary to close
the trial to allow the evidence to come in.
Let me make one clarification, which often gets in the
newspaper, which is inaccurate and that refers to the word
``secret'' trials. There will be no secret trials. There is no
mechanism for a secret trial.
Every piece of evidence, every form of evidence, every type
of evidence that will go before the jury will be seen by the
accused and his counsel, subject to cross-examination, subject
to review.
There will be no evidence that is used on a finding of
guilt or innocence or a sentence that the accused does not have
the right to see, object to and challenge.
Chairman Feinstein. Thank you. I think that's helpful.
In April 2004, DOD issued a press release saying that it
was taking the general counsel out of the chain of command over
the chief prosecutor to help ensure independence of the
military commissions process.
That was an important gesture, because it took any
political aspect out of the chain of command. This was done
under Military Commission Instruction No. 6.
Then on October 3, 2007, this position was reversed and new
orders were issued, putting the chief prosecutor under the
legal advisor to the appointing authority, the deputy general
counsel and the general counsel.
So in just a few months, you took out any opportunity for
there to be civilian political influence and then, three months
later, you put that back.
Why was this change made?
Mr. Hartmann. Ma'am, the fundamental principle of law in
this country with regard to the military is civilian control
over the military. So that's no surprise and it is fundamental.
With regard to the change that you refer to as occurring on
October 4, the chief prosecutor always reported to the legal
advisor. That's no change.
The change was with regard to where I reported. I had no
reporting official at that time and one of the recommendations
of the Tate investigative group was that that be clarified. And
so the formal designation of my supervisor became one of the
deputy general counsel within the Office of the General
Counsel.
That didn't change anything, in reality, ma'am, and this is
important. The person that was the deputy general counsel
before that was the person who was also the deputy general
counsel after that. I talked to that person regularly, every
day. So did Colonel Davis. It was a very common form of
association, a very common source of getting information and an
understanding of the law and counsel.
There was no change, ma'am, before October 3 or after
October 3 and there has been no political influence on this
effort.
If there has been an effort to increase the speed of the
trials, the effort to improve the performance, an effort to
improve the execution in the trials process, it has been my
effort and no one has directed me in that regard.
Chairman Feinstein. Thank you very much. My time is up.
Senator Kyl.
Senator Kyl. Thank you, Senator Feinstein.
First, General Hartmann, are you aware of any war crimes
tribunal ever, any U.N. tribunal, the Nuremberg tribunals, or
any other past or present U.S. or international war crimes
tribunal that has ever provided as much due process to alleged
war criminals as has the current U.S. Military Commission Act
trials?
Mr. Hartmann. Senator, the rights that are provided under
the Military Commissions Act and the Manual for Military
Commissions are absolutely unprecedented in their generosity
and benevolence to the accused.
Senator Kyl. Mr. Engel, I understand that Professor
Denbeaux, one of the witnesses on the second panel at today's
hearing, will release a study today that discounts or downplays
the evidence that some Guantanamo detainees whom we've released
have again taken up arms against the United States. You might
have heard me detail a whole series of cases in which that has
occurred.
What unclassified information can you provide about
released detainees who have returned to waging war against the
United States?
Mr. Engel. Sure. Thank you, Senator.
I haven't had the chance, obviously, to closely review the
study of Professor Denbeaux, which I understand relies upon
only the materials that have been publicly released and not the
extensive classified information that the Department of Defense
has.
I understand, in terms of publicly, the Department of
Defense has said that upwards of 30 detainees who have been
released from Guantanamo Bay have returned to various theaters
in order to continue to wage jihad, often against American
forces or our allies in Afghanistan or Pakistan.
Among these individuals, the individual the department
disclosed, a man named Mullah Shahzada, who assumed control of
Taliban operations in southern Afghanistan after he was
released. Another was Abdullah Mehsud, who became a militant
leader in southern Waziristan.
Taliban regional commander, another individual who was
reported by Al Jazeera, he appeared and asserted that he was
the deputy defense minister of the Taliban and he discussed
defensive positions of the mujahideen and claimed that he had
recently been involved in the downing of an airplane.
DOD has specifically discussed upwards of seven detainees
and they've sorted asserted that there are 30 others that are
out there and this just shows that we have to be very careful
with respect to the individuals detained at Guantanamo Bay.
Contrary to popular myth, the ticket to Cuba is not a one-
way ticket. We have released over half of the folks who have
ever been there and the United States continues, where
possible, consistent with our national security, consistent
with our obligations to ensure that detainees who are released
will be humanely treated in the country to which they are
returned.
We have continually been releasing detainees throughout the
process and no process is perfect and these folks are evidence
that sometimes we make mistakes and these mistakes can be
costly.
Senator Kyl. Just in round numbers, the number of people
who have been released who were originally taken, held for a
period and then released, what is that number, approximately?
Mr. Engel. Well, with respect to Guantanamo, the United
States has detained upwards of 10,000 detainees in Iraq and
Afghanistan over time. About 755, I believe the chairwoman
quoted 759, have been brought to Guantanamo and something like
455 or so have been released. We currently have about 305
there.
Senator Kyl. General Hartmann, back to the question I asked
you originally. Let's go down some of the specific kinds of
rights.
Did the Nuremberg tribunals apply a presumption of
innocence to the Nazi war criminals who were tried before those
tribunals?
Mr. Hartmann. No such presumption existed, Senator.
Senator Kyl. Did those tribunals limit the types of
evidence, like hearsay evidence or evidence obtained in
coercive circumstances, that it could consider when it found a
particular piece of evidence to be probative and otherwise
inclined to consider it?
Mr. Hartmann. There were no rules of evidence and virtually
any evidence was freely admitted.
Senator Kyl. Did those tribunals allow any judicial review
whatsoever of their verdicts?
Mr. Hartmann. No, sir. And that was painfully apparent to
those who were found guilty and received the death penalty.
They were hung within hours and days of the completion of the
sentence announcement.
Senator Kyl. Mr. Engel, let me ask you what effect the
initial Rasul decision had on interrogation of Al Qaida
detainees held at Guantanamo? This, of course, permitted a
statutory habeas type of litigation.
Mr. Engel. Sure. Well, I mean, I think we have often quoted
statements of Michael Ratner from the Center for Constitutional
Rights, who is an attorney for the detainees, who boasted that
interrogation and any kind of effective interrogation is
impossible once the detainee has regular access to a lawyer.
Any expert on interrogation will tell you that one of the
keys to successful interrogation is a rapport between the
interrogator and the subject. Any good attorney who is able to
come in and represent a client is going to come in and shut
that down as soon as possible.
So, again, the access to attorneys, which, of course, there
is access to attorneys in many of the existing processes, but
they do come at real costs to the effectiveness of our
interrogations.
Senator Kyl. If habeas rights were extended to Guantanamo
detainees, would they be allowed to subpoena U.S. soldiers and
potentially recall them from the battlefield so that they could
be cross-examined by the detainee's lawyers?
Mr. Engel. Well, I think that would be a very serious
question. As I mentioned in my opening statement, extending the
peacetime notions of habeas corpus to military prisoners is
unprecedented and there would be serious concerns that the
detainee, asserting a right to compulsory process, would be
able to require a soldier to come back from the battlefield.
We, of course, in the Department of Justice, would argue
that that should not be required, but I'm sure there would be a
vigorous debate over it.
Senator Kyl. That, of course, is one of the things Justice
Jackson warned about in the decision, at least up to now, that
had been the primary U.S. decision in the matter.
Incidentally, I understand you clerked for Justice Kennedy.
I'm tempted to ask you what you think he might do in the
Boumediene case, but I'll refrain from doing that.
Mr. Engel. I appreciate that.
Senator Kyl. I don't think that would be prudent.
Let me just ask one final question here. If litigation
rights were extended to these detainees and they were given a
right of--well, would they be given potentially access to
classified materials?
What kind of problems would that create or would the
request by their lawyers to gain access to that classified
evidence create?
Mr. Engel. I think that's a big question and a big issue
and really one of the biggest issues and the greatest
difficulties that we have faced with respect to detaining
individuals, with respect to the CSRT process, the DTA review
process, the potential for habeas, and the military commissions
process is how do we deal with the wealth of classified
information that we have and we rely on and must protect in
order to wage a war and, at the same time, provide some kind of
adversarial process at times in which the detainees have the
opportunity to confront the evidence against them.
And the CSRT process, with the DTA review, has developed
what we think is a workable and a fair system, one grounded in
familiar law of war principles.
As to alternatives as to something like traditional habeas,
again, we would argue vociferously for limits on detainees'
access to classified information. But CIPA rules require
alternatives if you're not going to give individuals the actual
evidence and it's not always easy to come by those
alternatives.
So we would be very concerned over precisely that issue.
Senator Kyl. I want to thank both of you for being here
today and apologize in advance. I have a meeting at 11. I'm
going to have to leave about five minutes before that and I
wish I could be here for the remainder of your comments.
Thank you, Madam Chair.
Mr. Engel. Thank you, Senator.
Chairman Feinstein. Thank you, Senator Kyl.
Senator Cardin.
Senator Cardin. Thank you, Madam Chair.
General Hartmann, let me first make it very clear about the
service of our people down at Guantanamo Bay. I've been to
Guantanamo Bay and the men and women who are serving our nation
there are serving with great distinction and protecting our
country and in the methods that they are using in carrying out
their responsibilities, and I have nothing but praise for the
men and women who serve our nation.
My concern is that why we never sought the advice of the
international community in the manner in which detainees were
treated and decided to go to Guantanamo Bay.
This is unprecedented. It's the unlawful combatant
circumstances. And, yet, we chose to do this on our own,
without really working with the international community and but
for the courts, there would have been no opportunity for those
who were determined to go to Guantanamo Bay to have any type of
a transparent process to decide whether they were appropriate
to be at Guantanamo Bay or not.
I want to just, first, in regards to Senator Kyl's point,
those who have been charged at Guantanamo Bay, are any of them
charged with war crimes?
Mr. Hartmann. They are charged with war crimes as defined
in the Military Commissions Act.
Senator Cardin. But not charged with international--
Nuremberg, those were created under the auspices of the
international community.
Is there any effort here to use the international
community's definitions? My understanding is that David Hicks
pled guilty to material support, that Mohammed Jawad is charged
with attempted murder.
Am I wrong on those assumptions?
Mr. Hartmann. You are correct in those.
Senator Cardin. Thank you.
And, Mr. Engel, your point about wartime powers of the
president and wartime powers generally that we have, my concern
with that as relates to habeas corpus, and I disagree with your
analysis on the habeas corpus burdens, I think that these
individuals are basically criminals and that criminals have the
right to habeas corpus.
But under the president's definitions of wartime powers,
we're going to be at war during all of our lifetime. The war
against terror is unlikely to have a definitive end.
I think that's just a dangerous interpretation of powers to
say that we're going to deny those who are now entering our
criminal justice system the ability at early stages, at this
point, it's already very late, to have basic rights and I
disagree with you on that.
I want to get back, though, to Chairman Feinstein's point
on how cases are prepared.
General Hartmann, you raised a point in regards to how
evidence will be determined. You point out, and rightly so,
that evidence that is obtained by illegal means cannot be used
in the trial, should be excluded, and you have acknowledged
that torture is illegal under U.S. law.
My question to you is what process, if any, do you have in
the development of a case to take a look at the methods that
were being used to obtain evidence, to make an independent
judgment, as a prosecutor, as to whether that evidence has been
obtained lawfully or not?
Any competent state's attorney preparing a case will take a
look at the evidence and see whether it is permissible to be
used or not. What process have you developed within the
military commissions to evaluate the legality of the
information that's been obtained?
Mr. Hartmann. Senator, that's an important question and
it's a question that every prosecutor must ask himself or
herself and it's a process through which they must go.
I am not going to describe that process to you in public.
It's a process and it's a matter of judicial and prosecutorial
discretion. They must have the privacy. They must have the
behind-the-doors ability to evaluate the evidence and to look
at it in an unvarnished way.
But for me to tell you in public, on the record, the
process that they use would be completely inappropriate.
Senator Cardin. Are you telling--
Mr. Hartmann. But I assure you there is a process.
Senator Cardin. And are you telling us that that process
will exclude certain information because of the concerns about
it being challenged?
Mr. Hartmann. No, sir, I'm not telling you that. I am
telling you that there is a process and that the obligation of
the prosecution is to take the evidence through that process
and to try to determine if they think it will be admissible or
not and the reasons for which they think any particular piece
of evidence will be admissible.
And if they intend to proceed with that, that issue will
then be resolved in public in front of the court, in front of
the judge, the defense counsel, the accused, and the
prosecutor.
Senator Cardin. And explain to me why the process that you
use cannot be discussed in a public forum.
Mr. Hartmann. Because there's no particular-- there's no
defined one-step, two-step-three process that anyone uses,
Senator. There's a process that you use. You take the evidence
that you've got, which is unique in every single case, and you
evaluate that against the law and the rules of evidence.
So to say that you follow a specific process would be
completely inaccurate, in the first place.
Any prosecutor, even if you're not a prosecutor, if you're
a trial lawyer, you understand that the focus of your attention
has to be on the facts, not on generalities, not on even the
broad outlines of the rules, but the facts and then you figure
out how to admit that evidence--
Senator Cardin. You've acknowledged--
Mr. Hartmann.--or the challenges that you will face in
trying to admit that evidence.
Senator Cardin. You've acknowledged, and properly so, that
information obtained or facts--information obtained through
coercion will not be--should not be used and is unreliable.
We had a hearing yesterday in College Park on the Helsinki
Commission on torture and it was interesting as to one subject
that came up, and that is the reliability of information that's
obtained through torture or similar procedures and that during
the times of witchcraft, we had confessions that people were
witches.
So the reliability of this information is very questionable
and I think we would all feel more comfortable if you would be
more forthcoming in telling us the process, not talking about a
specific technique that may or may not have been used, but a
process, so that we have a little more confidence that our
government is, in fact, evaluating, as they prepare for
criminal trials, the quality of the information that they have
obtained.
Mr. Hartmann. Senator, the key to your answer will be found
in the well of the courtroom. That's where--
Senator Cardin. I disagree with that. I disagree. I think
there's an obligation on the government in preparing a case to
make sure it's done properly.
Mr. Hartmann. It will be done properly, Senator, and that's
where you--you will learn about that in the well of the
courtroom. The prosecutor's obligation, his fundamental
obligation is to ensure justice in the military commissions
process and in the Uniform Code of Military Justice process.
That is his fundamental obligation or her fundamental
obligation. So it's their duty to take the evidence, to assess
the evidence, to determine its admissibility, to determine the
risks of non-admissibility, to determine the law that applies
to the admissibility of that evidence, and then they make a
decision whether they're going to try to use it in the case.
And once they try to use it in the case, in the American
system, the defense counsel, a right that this Congress gave to
these accused, will challenge that evidence and the military
judge who will be present and who has experience will be able
to challenge it and will be able to evaluate it, and the press
that we bring down to these hearings will be able to see that
and report that to the world, and the nongovernmental
organizations that we allow to sit in the courtroom will see
that and bring that to the attention of the world.
You will be very proud, Senator, of what your uniformed
service members are doing. They are following the rule of law.
They are following the rule of law.
I am not going to presume on them what that is. They know
the law. They know the evidence. These rules of evidence are
quite similar to the things that they follow in the military
court-martial process, which is renowned by some of our
greatest trial advocates as an outstanding system.
Those are the same people who take an oath to protect the
Constitution, the same oath they are using in the desert--
Senator Cardin. I don't challenge anything you've said
about the dedication of the people who are doing their job.
I just come back to a point that I expect those who
prosecute the criminal cases will also try to help us improve
the system. That's been done at the local levels, at the
federal levels, and I would feel more confident if I knew that
there was some evaluation being done by those who are preparing
the case as to the methods that were used to obtain
information.
Mr. Hartmann. It is being done, Senator.
Chairman Feinstein. Thank you very much, Senator Cardin.
Senator Sessions is next. Senator, you're up.
Senator Sessions. Thank you, Madam Chairman. And I thank
the panelists.
This concern--I remember reading in the paper, I think,
about the selection process of what cases to try first. As a
former United States attorney and attorney general of Alabama,
I think good prosecutors always try to pick the cases they
feel, in a series of cases, that have the greatest appeal,
maybe the strongest evidence, and, to me, that's just good
prosecutorial strategy.
Apparently, Colonel Davis objected to that.
Explain to me what that disagreement is all about, General
Hartmann.
Mr. Hartmann. Senator, the focus, my focus has been to move
the process with intensity and with focus and with prepared
counsel and my concentration has been to ask the counsel and
encourage the counsel to identify those cases which have the
most material evidence, the most important evidence, the most
significant evidence among the roughly 80 to 90 or so cases
they intend to try to bring those forward rapidly, as rapidly
as possible, in light of their evaluation of the evidence.
So I agree with exactly what you said, Senator, that we
needed to focus on the most material cases and bring those
forward as rapidly as possible.
Senator Sessions. I think it's almost prosecutorially
incompetent not to think in those terms. It's important that
you do so.
Well, let me ask you this. We had this long list of people
that have been released. I would suggest that if those had been
released had killed a United States Senator instead of an
American military person, we'd have a lot different attitude
about it.
But my question to you, General Hartmann, why are these
people being released?
We have some of them, you say, Mr. Engel, that they were Al
Qaida leaders and this sort of thing. What kind of process
allows us to take persons who it appears are dedicated to their
cause to the point that some will blow themselves up to kill
men, women and children, why do we release these persons, that
could result in the death of American servicemen?
Mr. Engel. Well, Senator, I think it's a very good
question. I think what it shows is that no process is perfect
and these are individuals who were detained initially and
managed to convince the United States, over a period of weeks,
months, even, in some cases, maybe years, that they were
innocent or they were minor players and that all they were
looking to do was to go back home and be with their families
and return to whatever agricultural or otherwise activity that
they do.
And, frankly, they tricked us and any process in which we
are releasing individuals is a process with risk, and we
understand this risk, but it is a risk that we are committed
to, because we're not looking simply to being an indefinite
jailer of all the individuals at Guantanamo.
We are trying to work hard to make sure that the
individuals who can be released without a threat to our
national security, in fact, are released and that what these
cases reflect, though, is that no release is going to be a
risk-free proposition, even if we believe that these
individuals are no longer a threat.
Senator Sessions. Well, I just thought if you captured
somebody in the course of a military conflict, they were
detained, because any good soldier, while they're being
detained, know their rights and that sort of thing.
But when they get out of jail, they go back and join the
forces that they used to be a part of. I mean, that's what
every--people who escaped from prison went back to their
American units and fought against the enemy and continued to do
so.
So that's why you hold them until the war is over. And,
frankly, I think this committee and this Congress needs to
focus a little bit more on trying to protect our soldiers,
protect our homeland, make sure that murders, killers who are
dedicated to the destruction of America are detained rather
than trying to see how many we can release.
And I suspect some of those are released because there is a
feeling that Congress is on your necks and you had to
demonstrate that you were going to release a lot of prisoners
so you would get less criticism at a hearing like this, and now
we've got people dead as a result of it.
General Hartmann, with regard to the trials that you've
referred to, just if you can clarify for the American people
and me, because I tend to get confused about it, are you trying
to people to ascertain--are these trials to ascertain whether
they should be continued to be held in custody or are these
trials to ascertain whether they deserve punishment for
committing acts unlawfully under the rules of war?
Mr. Hartmann. It's the latter, Senator. We are focusing
these trials on violations of the law of war and based upon a
finding of guilty, they would be sentenced to confinement.
The other people are detainees, as Mr. Engel has described.
These are people who are going to be tried under the Military
Commission Act for violations of the law of war and they will
be sentenced upon a finding of guilt.
Senator Sessions. Well, I remember what happened in
Oklahoma City after those people were tried for bombing
American citizens. At least one of them was executed.
Is it possible some of these who've murdered innocent men
and women and children and American personnel could be
executed?
Mr. Hartmann. It's an option that's available under the
Military Commission Act and, again, Senator, I won't prejudge
any case or any charging.
Senator Sessions. Well, I would just hope that if that kind
of punishment is good enough for an American who kills
Americans, that it ought to be good enough for a terrorist who
kills Americans.
Mr. Engel, is there any judicial decision in the 800-year
history of Anglo-American jurisprudence in which habeas corpus
relief has been extended to someone who's been declared a
prisoner of war?
Mr. Engel. I'm not aware of one.
Senator Sessions. I'm not either.
Mr. Engel. And the Supreme Court, in considering, this last
week, I think it became clear in oral argument, no one at that
court was able to find one that was directly on point, as
you've said, Senator.
Senator Sessions. I think it has grave implications for our
ability to be successful as a nation in the defense of this
republic if we capture people on the battlefield and then start
treating them as American citizens who are being tried for a
drug crime. It just does not make sense to me.
Now, how do we get to the point that prisoners of war are
now being entitled to personal attorneys? This is a step that's
unusual in the history of war, it seems to me.
General, my time is up, so if you'll briefly respond to how
we got to this point. Is this consistent with the history of
the way we treated prisoners of war in the past?
Because as you noted, Mr. Engel, when an attorney talks
with a client, the first thing they tell them is to quit
talking.
Mr. Engel. That's right. With respect to detention issues,
the use of lawyers is virtually unprecedented in the annals of
war and conflict. With respect to prosecution, I think in order
to have prosecutions, there have been, of course, defense
lawyers in those cases, but we grant an unprecedented degree of
process here, including review by the federal court of appeals
in the D.C. Circuit.
Mr. Hartmann. I can't add anything to that, Your Honor
[sic], but as I said, Mr. Hamdan had five defense counsel at
his table last week.
Senator Sessions. Well, it's a dangerous group of prisoners
that you're dealing with. I visited, in Alabama, a German
prisoner of war camp in Pickens County. The people were given a
great deal of freedom. They still have many items that they
have there and it was a different kind of prisoner than we have
today.
Thank you.
Chairman Feinstein. Thank you, Senator Sessions.
Senator Durbin.
Senator Durbin. Thank you, Madam Chair.
Mr. Engel, many of us were troubled to learn that CIA
officials destroyed videotapes of detainees being subject to
the so-called interrogation techniques.
These techniques reportedly included forms of torture like
water boarding. According to some media reports, the Justice
Department attorneys advised the CIA not to destroy these
videos.
Was the Department of Justice aware of the existence of
these tapes prior to their destruction?
Mr. Engel. Well, let me tell you what I can say. The
Department of Justice, as you know, has initiated a preliminary
inquiry, which is being run by Ken Wainstein of the National
Security Division in conjunction with the CIA's inspector
general's office, and I also know that General Hayden is going
to be testifying this afternoon.
I am not aware of my office being involved in providing
legal advice on the subject. But I've seen the press reports
which suggest that some of these issues may have been discussed
years ago and I think Mr. Wainstein's investigation or the
preliminary inquiry will bring a lot of these facts to light.
Senator Durbin. Specific question. Was the Department of
Justice aware of the existence of these tapes before they were
destroyed?
Mr. Engel. Sitting here, I don't have an answer for that,
Senator.
Senator Durbin. Did the Department of Justice advise the
CIA not to destroy these tapes?
Mr. Engel. Again, likewise, I've seen what's in the press
reports, but sitting here, I don't have an answer, though--
Senator Durbin. When General Hayden said the destruction
was in line with the law, do you have any indication or
knowledge of the law as it was given to him or the standards
that he was asked to follow in destroying these tapes?
Mr. Engel. Again, sitting here, I'm not aware.
Senator Durbin. General Hartmann, you said that the
military commissions are transparent, provide a window through
which the world can view military justice in action.
You also claim military commission defendants have the
right to review and respond to all evidence.
In the pending case of Omar Khadr, defense lawyers have
been ordered not to tell the defendant or anyone else who the
witnesses are against him.
How can you call a system that relies on secret evidence
transparent?
Mr. Hartmann. We don't rely on secret evidence, Senator.
Every piece of evidence that will go to the finder of fact, to
the jury, will be reviewed by the accused and his counsel.
Senator Durbin. You're a graduate of law school and you
know that confronting your accuser is part of our system of
justice. In this situation, Mr. Khadr is not even given the
identity of the witnesses who are testifying against him.
Mr. Hartmann. There may be some limited cases in which that
applies, Senator. However, the order to which you are referring
says, below it, ``except as provided below.''
In that order, it specifically says that 21 days before
trial, the prosecution has the burden of explaining why that
part of the order that you're focused on is to continue and if
the prosecution does not do that, then all the witnesses are
made available to the counsel and to the accused.
Senator Durbin. The presumption is just the opposite, as I
understand it. The presumption is that the prosecution, the
government, can withhold the identity of the witness.
Mr. Hartmann. No. I would say the presumption is just the
opposite, that unless the prosecution makes an affirmative
effort, these witnesses will be disclosed to the accused.
Senator Durbin. And has that happened?
Mr. Hartmann. We haven't gotten to 21 days before trial,
sir.
Senator Durbin. I see. Well, let me ask you this. In the
six years that Guantanamo has been in operation for this
purpose, how many convictions have taken place of the 775
people who have been detained there?
Mr. Hartmann. One.
Senator Durbin. Would you repeat that for the record?
Mr. Hartmann. One.
Senator Durbin. And was that not a plea bargain?
Mr. Hartmann. It was a pretrial agreement, yes, sir.
Senator Durbin. And it involved a sentence of what
duration?
Mr. Hartmann. I believe it was a sentence of seven years,
with everything above nine months deferred.
Senator Durbin. So it ended up nine months detention,
correct?
Mr. Hartmann. That may be the case, sir.
Senator Durbin. And this gentleman, Mr. Hicks, I believe,
was a low level operative.
Mr. Hartmann. I wouldn't categorize it, sir.
Senator Durbin. Isn't it interesting that in six years,
with 775 detainees who have been characterized here as war
criminals, blood thirsty killers, that only one conviction has
taken place? How do you explain that?
Mr. Hartmann. I cannot explain it. There are reasons with
regard to various legal delays. However, I am as disappointed
in that as you are and I am, with the various members of the
Office of Military Commission, trying to move the process much
more rapidly, Senator.
Senator Durbin. Somewhere in your heart of hearts, in those
dark moments at night when you reflect on what you do, have you
thought perhaps we're doing this the wrong way? Maybe we don't
have the people who are most threatening to the United States?
Isn't the fact that we've released 470 of these detainees
an indication that maybe we got it wrong in over half the cases
in bringing them to Guantanamo?
Mr. Hartmann. In my heart of hearts, Senator, I'm convinced
we've got the right process with the military commissions. It
is literally unprecedented the rights that we are making
available to people we call alleged terrorists, unprecedented.
Senator Durbin. Well, let me talk to you about some of
those rights. Four hundred and seventy of these people were
arrested, transported, detained and interrogated for months and
years and then released because we couldn't charge them with
one single crime or one thing that they had done wrong. Is that
not correct?
Mr. Hartmann. I don't know, Senator. My focus is on the 80
to 90 people we intend to try to war crimes trials in the
military commissions process.
Senator Durbin. Well, that's a good focus. But I still
wonder what happened to 470 people who took a little tour
through Guantanamo for years and now go home to explain to the
rest of the world what American justice is all about.
Isn't that part of your concern, as well?
Mr. Hartmann. The entire process is part of my concern, but
my almost entire focus is on the trials and moving them, which
was the beginning of your comment, Senator, that we have only
tried one person.
I want to change that record.
Senator Durbin. So Senator Kyl talked about having to call
in American soldiers as witnesses, take them off the
battleground, he said. So just how many of the people, those
775, that have been detained at Guantanamo were, in fact,
picked up off the battlefield?
Mr. Hartmann. Senator, that's outside of my area. That's
in--
Senator Durbin. Well, I'll tell you what Professor Denbeaux
tells us. He tells us, according to his report, when President
Bush says these people from Guantanamo have been picked up off
the battlefield, the Defense Department has accused only 21
detainees of having ever been on the battlefield, 21 out of
775.
He'll testify, as well, the Department of Defense has
alleged that only one, only one detained in Guantanamo was
captured on a battlefield.
Do you have any evidence otherwise?
Mr. Engel. Senator, I think it's important for the United
States to be able to detain members of Al Qaida, members of the
Taliban, whether we get them on a literal battlefield outside
of Tora Bora or whether we get them in a city thereafter.
Senator Durbin. I don't argue with that premise. I think
your premise is correct. But this notion that somehow we're
going to devastate our military by calling our soldiers off the
battlefield to show up at these commissions to testify on
behalf of the government is, frankly, not supported by the
clear evidence here that these are not battlefield combatants
that are under arrest.
Mr. Engel. Again, and I would defer to General Hartmann, I
mean, if we look only at the hearing last week in the Khadr
case, we did have military officers appearing and testifying
about the circumstances under which Mr. Khadr was apprehended.
Senator Durbin. Is there anything wrong with that?
Mr. Engel. There's nothing wrong with that and the military
commissions--
Senator Durbin. Isn't that part of a system of justice?
Mr. Engel. Well, but we're talking here about two different
things. We're talking about the military commissions process
and when we prosecute people, we do believe, if feasible, that
we should be able to get the witnesses into the court, which
will not always be feasible.
If we're talking about the detention of hundreds of enemy
combatants and if we're asking federal habeas corpus in the
United States or to conduct these hearings, these are quite
significant burdens that raise serious questions.
Senator Durbin. My last question.
Mr. Hartmann. Senator, of course, just to add to that, we
did bring people off the battlefield last week to testify and
to allow the accused to witness them in the courtroom, to
confront them and to cross-examine them.
Senator Durbin. Senator Kyl suggests that that's an
unreasonable burden on our government. Do you believe it is?
Mr. Hartmann. We were happy to do it, Your Honor [sic].
Senator Durbin. I'm glad you were.
General Hartmann, former Secretary of State Colin Powell
has stated, ``We have shaken the belief the world had in
America's justice system by keeping a place like Guantanamo
open and creating things like military commissions. We don't
need it and it's causing us far more damage than any good we
get for it.''
That was his statement, quote, from General Colin Powell.
What is your opinion with regard to that statement?
Mr. Hartmann. With regard to that statement, I would say
that the military commissions are an honor to the American
justice system. You should be very proud of what was written in
the Military Commission Act, what is the Manual for Military
Commissions, what is in the regulation, and about those people
I described at the beginning of my testimony, Senator, those
people who enforce the right, five defense counsel at the table
of Hamdan.
Senator Durbin. I would just say to you--
Mr. Hartmann. He was given access to counsel. He was
given--
Senator Durbin. General Hartmann.
Mr. Hartmann [continuing]. The right to cross-examine.
Senator Durbin. Please.
Mr. Hartmann. Those are the basic rights that are made--
Senator Durbin. Every time--
Mr. Hartmann [continuing]. Available through the American
justice system.
Senator Durbin [continuing]. We question Guantanamo and its
use, you and others say we are somehow questioning the
integrity of the men and women in uniform. That is not a fact.
None of us have and none of us will.
They are good and brave soldiers and they are doing their
duty for their country.
But the policymakers have to be held accountable for a
situation in Guantanamo which has become an embarrassment for
the United States around the world, as General Powell stated
very, very clearly.
Mr. Hartmann. Senator--
Senator Durbin. I respect him, as well, as a man who served
his country.
Mr. Hartmann. Yes, sir. The rights that are available are
written down. The rights that are available are written down.
They are rules of evidence that virtually mirror the military
rules of evidence.
The people that are enforcing those rights, the judge, the
prosecutor, the defense counsel, are the same people who take
the oath of office on other things. They are--
Senator Durbin. But one of the most--
Mr. Hartmann [continuing]. Very similar.
Senator Durbin [continuing]. Fundamental right under
justice, of habeas corpus, to know why you're being detained,
to know what you're charged with and to confront your accusers,
you can't argue to me that that is being protected.
Mr. Hartmann. What I will argue to you--
Chairman Feinstein. Senator, you are doing a Schumer. You
are 2.5 minutes over your time.
Mr. Hartmann. I will say in response to that, Senator--I
keep calling you Your Honor--the process in the courtroom is
extraordinarily fair. The appellate process is unprecedented.
Chairman Feinstein. Senator Graham, welcome.
Senator Graham. Thank you, General. I would agree that
we're finally getting this right, but I hope you don't ignore
the fact that we had to pull teeth to get here.
One reason we hadn't prosecuted anybody is because we had
some pretty really weird theories that the courts kept knocking
down and now we're back to a more traditional way of doing
business, and I want to applaud the fact that we do have
dedicated men and women who are serving their country well as
prosecutors, defense attorneys and military jurors.
But I'm not going to sit here and just ignore 3.5 years of
trying to sell things that nobody would buy. Well, now we've
about got it right and I'm willing to make it better, if we
can.
Bottom line for me is that the big distinction between us
and anyone else in the world, Mr. Engel, is that we consider
the people we're fighting enemy combatants, not common
criminals. Is that correct?
Mr. Engel. I think that's right.
Senator Graham. I don't think there's another jurisdiction
in the world that takes Al Qaida suspects and tries them under
the theories of laws on conflict.
We do. The reason we do is because of September 11, 2001.
This country has to reconcile itself as to how we want to
proceed.
Did the people who attacked us--were they a group of common
criminals, afforded due process of law under domestic criminal
law? If that's the case, nothing we do at Guantanamo Bay can
move forward, you're right, Senator Durbin.
That is not my theory. My theory is that we've been in an
undeclared state of war without uniformed combatants who wish
to kill us all if they could. And when we capture one of them,
we have the obligation of a great nation to follow the law of
armed conflict, which is very robust, has a rich history, which
I have played a small role in. Insignificant as it may be, I am
proud of it.
And we've tried to bastardize that and we've tried to
change it and we've tried to cut corners and we've paid a
price.
Now, as I understand military law, that once you capture
somebody and their status is to be determined, that's a
military decision, not a federal judge's decision under the
Geneva Convention. Is that correct, General Hartmann? Either
one of you.
Mr. Engel. I think that's exactly right, Senator.
Senator Graham. Under Article 5 of the Geneva Convention,
it requires, if there's a question of status, whether or not
you're an unlawful enemy combatant, a traditional prisoner of
war or an innocent civilian, a competent tribunal will be
impaneled to make that decision.
Is that not what the Geneva Convention says?
Mr. Engel. That's exactly right.
Senator Graham: Now, based on that, we have taken
Regulation 190-1, I believe it is, the Army regulation.
Mr. Engel. Dash-8.
Senator Graham. Dash-8, and we've enhanced it. Now, the
question for people like me is should you provide military
lawyers at the combat status review tribunals, something I
wanted to do three years ago.
I wish I had done it now, because the reason I wish I had
done is, even though it's unprecedented, in traditional wars,
we assumed the war would be over when the powers met and
declared an end to it.
Do either one of you believe there will be a surrender
ceremony in your lifetime regarding the war on terror?
Mr. Hartmann. I'm unable to answer that.
Senator Graham. I will answer it for you. No. Never in my
lifetime will some politician declare this war over and let
everybody at Guantanamo Bay go. That's not going to happen.
So what we need, I think, gentlemen, is an understanding
we're at war, but it's a different kind of war. And to Senator
Sessions' comments, how did we let these people go?
Well, what we have at Guantanamo Bay is an initial
decision-making process by the military, ``You're an enemy
combatant, unlawful enemy combatant.'' And every year, Senator,
we look at the case anew.
We look for three things. Is there any new evidence to
change your status? Do you still have intelligence value that
would be useful to the war? And, third, are you a threat?
And a board of officers meets every year and you can have
new input from the detainee's point of view along those three
lines, and we have let over 400 people go using that annual
review board process.
Unfortunately, you're right, Senator Sessions, 30 have gone
back to the fight. We are at war.
Senator Sessions. Thirty have been caught.
Senator Graham. Thirty have been caught. And who knows what
the others are doing.
But having said that, Senator Sessions, I think it is
incumbent upon us to have a hybrid process, because if we
don't, the initial decision is a de facto life sentence and I
am proud of this process and when it comes to your side,
General Hartmann, if there is an allegation that the evidence
in question is tainted because it's a result of torture, it is
my understanding the military judge must exclude any evidence
that violates the torture statute. Is that correct?
Mr. Hartmann. Any statement obtained through torture is
inadmissible.
Senator Graham. And as to an allegation of coercion, which
is our enemy is trained to allege, Al Qaida operatives are
trained into the American legal system. They know exactly what
to say.
It's my understanding, at Guantanamo Bay, the military
judge will have a hearing regarding the allegation of coercion
and will decide whether or not the evidence is reliable and
should go to the finder of fact. Is that correct?
Mr. Hartmann. Reliable, probative, and in the best interest
of justice.
Senator Graham. And that judicial decision by that judge
can be appealed to civilian courts.
Mr. Hartmann. That's correct. It can be appealed to the
civilian courts after going through the military process.
Senator Graham. It is my understanding that every detainee
at Guantanamo Bay, Senator Durbin, will have their day in
federal court, that every decision by the military will be
reviewed by the D.C. Circuit Court of Appeals and that is
ongoing right now.
The difference I have with you, my friend, is I don't want
to turn over to the federal judges in this country the ability
to determine the enemy force in the first instance, because
they're not trained to do so.
That is a military decision. But I do not mind any judge in
any appellate court in this land looking over the shoulder of
these gentlemen here to make sure they did it right.
I think that is the sweet spot for this country.
Now, when it comes to whether or not there's political
influence on these trials, Senator Feinstein, I want to get to
the bottom of this. Now, I know Mo Davis and I know you. I've
been an Air Force JAG for 25 years. I respect you both and I
want to find out the best I can what's going on down there.
But I would like to just tell my good friend, Senator
Durbin, if we close Guantanamo Bay, and maybe we should, where
do we send them and what do we do with them? And the only thing
I ask of my colleagues is that as we try to correct the process
and improve it, and I think there's ways that we can go forward
to make it better, please don't lose sight that the people that
we're dealing with, the truly guilty, are warriors, not
domestic common criminals.
And those who have been caught up in this net of trying to
find out who the enemy is, some of them are probably either on
the fringes or just in the wrong place at the wrong time, and
that's been the nature of war as long as man has been engaged
in war.
What I'm looking for is not the outlier case where they
went back to killing Americans, because if you do that, nobody
ever gets released, or the idea that they're all victims and
just at the wrong place at the wrong time. All we can hope to
find as a nation is a process that will be flawed, but still
adheres to our values, and I think we're very close to that
process being correct in terms of us being at war.
Now, one of the issues facing this country is water
boarding. General Hartmann, do you believe water boarding
violates the Geneva Convention?
Mr. Hartmann. I was asked that earlier, Senator, and with
regard to this entire issue, we start with the following
premise: torture is illegal in the United States.
Senator Graham. We have a downed airman in Iran. We get a
report that the Iranian government is involved in the exercise
of water boarding that downed airman on the theory they want to
know when the next military operation may occur.
What would be the response of--what should be the response
of the uniformed legal community regarding the activity of the
Iranian government?
Mr. Hartmann. I'm not equipped to answer that question,
Senator.
Senator Graham. You are.
Mr. Hartmann. I will tell you the answer to the question
that you asked in the beginning, Senator, and that is--
Senator Graham. You mean you're not equipped to give a
legal opinion as to whether or not Iranian military water
boarding, secret security agents water boarding downed airmen
is a violation of the Geneva Convention.
Mr. Hartmann. I am not prepared to answer that question,
Senator. I am prepared--
Senator Graham. Thank you. I have no further questions.
Chairman Feinstein. Thank you very much, Senator. That
completes this round.
I'd like to just quickly make a brief comment. I think
Senator Sessions and Senator Graham have pointed out some
interesting things, which indicate a real dichotomy in this
situation that all of us have to deal with.
The first is the undeclared state of war, which is this
situation. Senator Sessions pointed out that there is no
requirement to try detainees during the course of hostilities
of a declared war, that is true.
The president himself has said this could go on for a
generation and if you look at the history of terrorism in the
world, it is likely to go on. Ergo, what happens to people who
are not charged, who remain in custody, for what period of
time?
I'm going to ask, and will send you in writing, both of
you, a question and that question will be: what is the
government's plan to deal with the indefinite detention,
without charge, of detainees for what may be decades?
And I think we have to come to grips with that question. I
think there has to be an answer and if we need to legislate, we
should.
With respect to Guantanamo and its closure, we've just done
an inventory of super max beds and if there are 305 detainees
currently, then we can add up those super max beds and come to
326 available beds today in the United States between maximum
security, military brigs, and maximum security federal prisons.
So I think we have to come to grips with both of those and
whether Guantanamo, left the way it is over the next half-
decade, decade, really redounds to the credibility of this
nation or whether it destroys that credibility.
And, here, we have different opinions. There are those that
believe it does and there are those of us that believe it does
not. And I think that's a real question.
So we will put this in writing to both of you and we will
follow up so we will not forget. So please answer the
questions.
Thank you very much. We appreciate that.
Mr. Engel. Thank you.
Chairman Feinstein. And now the second panel, Professor
Mark Denbeaux. Professor Denbeaux serves as professor of law at
Seton Hall Law School in New York, New Jersey. Through a law
school project, he has reviewed and categorized most publicly
released DOD data. Prior to teaching, he was the senior
attorney in charge of litigation for the New York City legal
services program.
The second witness will be retired United States Navy Rear
Admiral John Hutson. Admiral Hutson currently serves as the
president and dean of Franklin Pierce Law Center in Concord,
New Hampshire. From 1997 to 2000, he served as the Navy's judge
advocate general. As a judge advocate general, he provided over
the JAG corps and advised the secretary of Navy, the commandant
of the Marines, and the senior leadership of the Navy in all
legal matters related to military justice.
And our final witness of the morning is Debra Burlingame.
She is a member of the board of directors of the National 9/11
Memorial Foundation and she is the sister of Charles ``Chic''
Burlingame, III, the pilot of the hijacked American Airlines
Flight 77, which crashed into the Pentagon on September 11.
I have had the privilege of meeting with Debra Burlingame
and her family and it's very good to see you again. So I
welcome you.
And we will begin with Professor Denbeaux.
STATEMENT OF PROFESSOR MARK DENBEAUX, PROFESSOR OF LAW, SETON
HALL LAW SCHOOL
Mr. Denbeaux. Thank you very much. I appreciate the
opportunity to come here. I'm here, in large part, because of a
fortuitous circumstance involving my son, Joshua--
Chairman Feinstein. Could you pull the mike closer to you?
Mr. Denbeaux. --who asked me about four years ago what I
thought of Guantanamo and I said, ``Not much.'' And then he
said, ``Do you think they have the right people there?'' And I
said, ``Probably.'' And then he said, ``What do you think
grandpa would think?''
And my father was a combat chaplain with General Patton.
And he said, ``Would grandpa believe that the 3rd Army could've
figured out who were the good German civilians from the bad
ones?'' And I said, ``My father didn't think the 3rd Army would
have a clue about doing that.''
And then I said something, I said, ``But he wouldn't cared,
because he didn't believe there were any good German
civilians.'' And my son said, ``Isn't that the point,'' and
that got me interested in looking into why people are detained
in Guantanamo and who's there.
And while I believe process is crucially important, I
believe truth is equally important and I think misinformation
is very pernicious in this particular debate.
What I did in trying to resolve who was there and what it
was was to become involved with a small group of incredibly
diverse Seton Hall law students, some of whom have served tours
of duty in Afghanistan and Iraq. Others have come from all
parts of the country.
And we started looking at the Department of Defense data,
and our position has been very simple. What the Department of
Defense says we take as true and our investigation was to see
what the Department of Defense said, and we've really come up
with a fairly stark picture that I think most people have
accepted, in at least some parts.
I mean, the Department of Defense data, for instance,
concedes that it only charges 45 percent of those people in
Guantanamo with ever having committed any hostile act against
U.S. or coalition forces.
Their statement is that eight percent of the people in
Guantanamo are fighters for Al Qaida or the Taliban. But
they've also made some other points and one of the other points
they've made is that these people were captured on the
battlefield, and, in fact, many senior government officials
have said they were captured on the battlefield shooting at
American forces.
Well, my students were stunned, when we looked at the data,
to find out that the entire array of Defense Department data
identified 21 detainees as having ever been on a battlefield.
And my students were even more shocked to discover that only 24
of those detained in Guantanamo, at least as of the summer of
2004, were captured by U.S. forces.
And they were even more surprised to find out that only one
of the detainees in Guantanamo was captured by U.S. forces on a
battlefield, and I'd like to point out that that person is
Khadr and he's being prosecuted under the military commission.
So my understanding is that every single person captured on
a battlefield shooting at Americans has had a hearing or will
have a hearing in front of the military commission.
My understanding is that the best thing that could happen
to most Guantanamo people is to have a military commission and
lose. After all, Mr. Hicks, who was supposed to be one of the
worst of the worst, and supposedly, if Senator Sessions is
right, they had the best case they had against him because they
tried him first, that man was given effectively a nine-month
sentence, sent home to Australia, and will basically be there
with his family on New Year's.
If he had won his hearing before the military commission,
he would have been held as an enemy detainee and returned to
Guantanamo indefinitely. The people in Guantanamo who are not
even accused of any war crimes, who aren't being identified as
people for whom a military commission are appropriate, are much
worse off than Mr. Hicks.
But I want to add a few other points that my students
raised. My students pointed out that if American's didn't
capture these people, who did? And the answer is that the
Americans captured 24 people and of the 517 files available to
review, all the rest were turned over by either third parties,
Pakistani authorities, Afghan authorities, tribal chiefs,
warlords, and all of our evidence for these people begins with
the information provided from those sources in exchange for
bounties.
Now, one of the things that I wanted to show this panel,
because I think it goes to the entire weight and truth, is the
release in which they simply drop this bounty out and it says
``get wealth and power beyond your dreams, help the anti-
Taliban forces, and rid Afghanistan of murderers and
terrorists,'' and nobody objects to that.
But if you look at the bottom, it says, ``You can receive
millions of dollars for''--
Chairman Feinstein. Would you hold that up for a minute,
please?
Mr. Denbeaux. Yes.
Chairman Feinstein. Thank you. Thank you.
Mr. Denbeaux. ``This is enough money to take care of your
family, your village, pay for the rest of your life, pay for
livestock and doctors, school books and housing for all your
people.''
To the best of our knowledge, only four percent of the
people who are in Guantanamo could have not been turned over
for bounties. I'm not saying everybody was. We can't tell.
DOD's data doesn't say.
But bounties were paid that were enough to take care of
people's whole villages for the rest of their life for people
who are detained in Guantanamo.
Now, that deals with the first proposition, and I am very
distressed by the fact that so many people keep claiming they
were captured on the battlefield shooting at American people.
It's simply not true, according to what the Department of
Defense alleges for each one of these people.
But there's another even more pernicious piece of
information that is coming out now and it has penetrated the
halls of Congress, as I've heard here today, and that is the
claim that detainees, after release, have returned to the
battlefield.
I have a couple points I would like to make about that.
First of all, if true, that would have a terribly important
effect on the CSRT process, because it would be very hard to
release people if you knew that was to happen. Judges are
tempted by that fear and everyone else.
But a couple of crucial facts. One is the Department of
Defense, after being pushed from a variety of sources, produced
a report and the report doesn't say what Senator Sessions says
it did. The report says up to 30 people have returned to the
fight and to get to that, they can't identify 15 of them and of
the remaining 15, three of them are called the Tipton Three and
the evidence they returned to the fight was that they made a
documentary in England called ``The Road to Guantanamo'' after
they were released.
Five of them are listed as Uighurs. Now, the Uighurs are
the Chinese nationalists who, in fact, left China, partly
because of religious oppression, and we've released them and
they're being held in Albania in a refugee camp. The other
seven that they've identified as having been released from
Guantanamo and returned to the fight, two of them were never in
Guantanamo, which is distressing.
And in addition, the remaining five, two of them apparently
are still alive. They may have returned to the battlefield, but
they're still alive, and that leaves three. And the Defense
Department has said the number is 30. Senator Sessions has said
the number is 30. They keep repeating it.
And it's a very upsetting thing to learn that our own
government, from the Department of Defense, is characterizing
the released detainees in that fashion.
If I could, I'd like to show one other chart. This chart--
and, by the way, Senator--Joshua, can you lift it higher? This
chart is in our report, which I hope will be included with my
testimony today.
Chairman Feinstein. It is included.
Mr. Denbeaux. Okay. Thank you. This chart actually shows
two things. The blue line is the line of statements made by
Department of Defense officials about the number of detainees
killed or captured on the battlefield. The red line is the
number of detainees killed or captured on the battlefield that
the Department of Defense data, as of July 2007, identify.
And if you'll notice, as late as April of this year, the
deputy general counsel to the Defense Department came before
the Armed Services Committee and stated that up to 30 people
have been killed or captured on the battlefield.
That statement is simply refuted by everything that DOD's
data says. It's simply not true and it's a very upsetting
thing.
Now, I know my time is up, but if I could just briefly
comment on the effect of this on the CSRT process.
Senator Kyl. (OFF-MIKE)
Chairman Feinstein. When you were chairman, you did it your
way. In the meantime, the answer is, yes, you may.
Mr. Denbeaux. The CSRT process is a process that is
administered by the military, not under the military judges,
not under the Code of Military Justice.
What we have in the CSRT process are the senior government
officials saying these are the worst of the worst, they were
captured on the battlefield shooting at American people.
I think when you look at the record that these people had
to review, the record that they had to review made clear that
it wasn't true. But when senior officials tell you that
everyone there was captured on the battlefield shooting at
American troops and that's false, there's a message there. And
when they say the same thing about their return to the
battlefield, I think the same message is there.
I would love to stop that myth about return to the
battlefield. It's a very dangerous and damaging point.
Thank you.
Chairman Feinstein. Thank you, Professor Denbeaux.
Admiral Hutson.
STATEMENT OF JOHN D. HUTSON, DEAN AND PRESIDENT, FRANKLIN
PIERCE LAW CENTER
Mr. Hutson. Thank you, Madam Chair. Thank you for holding
this hearing. I have a written statement that I, too, would
like to have made part of the record.
Chairman Feinstein. So ordered.
Mr. Hutson. I feel like I should sede some of my time to
Professor Denbeaux and I will try to be brief to get us back on
track.
When I think about what I was going to say here, a phrase I
think I learned from my dad was that you could accomplish
something if the future of the free world depended on it. We
could rake all the leaves in the front yard today if the future
of the free world depended on it.
That was sort of the thought that came to my mind when I
was thinking about closing Guantanamo Bay. The president has
called for it, the secretary of defense has called for it. Lots
of people have called for that to happen and we just can't seem
to do it, but we could do it if the future of the free world
depended on it.
And then it occurred to me that, indeed, it does depend on
it in a very large way. How the United States, the leader of
the free world for generations, conducts its business, even its
war fighting business, determines the future of the free world
in a very real way.
And I think that Guantanamo has become an iconic example of
misadventure and it is absolutely incumbent upon the United
States to close it.
I have a hard time believing that the generation that won
World War II, the so-called greatest generation, couldn't close
Guantanamo and figure out what to do with 305 people if the
future of the free world depended on it.
There are lots of things and, Senator, you demonstrated the
ease of doing it with the beds in maximum security. We can
close Guantanamo and for us to pretend that we can't is just
pretending.
The question isn't so much closing Guantanamo and whether
or not we can do it. The question becomes what to do with those
people who are in Guantanamo.
I was an early and ardent supporter for a long time, too
long, in retrospect, of military commissions. I was attracted
to them from a historical point of view. I thought that having
military people involved was a good idea. I thought that the
security aspect of it was a good idea.
But as has been pointed out on other occasions here today,
we've tried exactly one person who pled guilty and is now back
in Australia, somewhat ironically, perhaps, a former kangaroo
skinner from Australia, not the worst of the worst, not
Himmler, not Gering. The comparisons to Nuremberg, I think, are
inapt.
We need to make a change and I think that time has long
since passed. As recently as yesterday, in Manhattan, the
United States court of appeals was dealing with terrorists
quite well, no big problems.
We have the greatest judicial system on the face of the
earth in the U.S. district courts and rather than using it and
showcasing what the United States can do. We're hiding under
the leaky bushel of the military commissions, which, in all
these years, has tried one person.
We ought to demonstrate to the world what the United States
stands for, what kind of justice we can afford. These people,
the worst of the worst, if they are, we need to prosecute them.
We need to get convictions. We need to incarcerate them, if
they should be incarcerated, if there's evidence against them,
execute the worst of the worst.
I am not for mollycoddling terrorists, very much to the
contrary. I prefer to prosecute them. But we simply seem to be
incapable of doing it.
I think that General Hartmann's phrase was telling when he
said that they have been guided--using the guidance of the
Supreme Court, I think is an interesting turn of a phrase, the
Supreme Court keeps knocking down what we do and so we are, in
some ways, responding to the guidance of the Supreme Court.
General Hartmann seemed like a nice guy, but I thought his
testimony is a perfect example of the problems we've got. He
was the personification of the issues with the military
commissions.
You cannot listen to his testimony and come away with a
comfortable feeling about what the United States is doing with
the military commissions, that Hamdan wears a tie and the Navy
judge has a black robe. It's all very interesting, but the
reality of it is that it just ain't working and we need to do
something that starts to work and that starts with closing
Guantanamo and getting these cases either into U.S. district
court or into the military court-martial system, which is
another fine alternative.
The court-martials could do this. There is no doubt in my
Navy mind that Senator Graham and I couldn't sit down and, by
the close of business this afternoon, have a system that--the
United States court-martial system, the Uniform Code of
Military Justice, the Manual for Courts-Martial, couldn't adapt
and adopt and start prosecuting people successfully.
And by successfully, I mean prosecuting them in such a way
that we can be proud of. But we simply can't reverse engineer
the process. We can't start with a conviction and then reverse
engineer it to ensure that we have a conviction.
We have to be willing to have an acquittal. If we're not
willing to have an acquittal, if we are so intent on having a
conviction, the system isn't going to work. It's not going to
stand up to scrutiny.
It's only a human right if it applies to all human beings.
It's only a rule of law if it applies all the time.
I look forward to your questions. Thank you very much.
Chairman Feinstein. Thank you very much, Admiral.
Ms. Debra Burlingame.
STATEMENT OF DEBRA BURLINGAME, MEMBER OF THE BOARD OF
DIRECTORS, NATIONAL SEPTEMBER 11 MEMORIAL FOUNDATION
Ms. Burlingame. Thank you for the opportunity to be here
today, Chairman Feinstein. It's a pleasure to be here and to be
able to thank you personally for all you did for my family six
years ago.
As we sit here today, there are 192,000 men and women in
uniform in some of the most dangerous places in the world. They
are still taking fire. They are still taking casualties. They
are still risking their lives to collect the vital intelligence
that we need to stop the very evil and bad people in this world
from doing what they want to do, very similar to what they did
six years ago.
They are determined not just to kill Americans and to kill
U.S. military and our allies, they really do want to destroy
this country and if you don't believe that, just roll back,
dial back the video and watch what happened in lower Manhattan,
where you had an estimated $2 trillion of damage which that
attack is estimiated to have cost, and that isn't even touching
on the lives lost in 102 minutes.
I would like to say, before I get into the heart of my
testimony, that kangaroo skinners can be very dangerous when
they are toting RPGs launchers on their shoulders. We have
pictures of David Hicks as a jihadi, a deadly guy.
I, frankly, don't understand why it is hard to understand
that these so-called lowly foot soldiers can be quite lethal. I
think in the summer of 2000, if you had been, Mr. Hutson, in Al
Farouq training camp and you had encountered 19 men who, up
unto that point, had committed no crimes, you might have
described one as an engineering student, another would be a
rather hapless young man from Saudi Arabia who dreamed of
flying airplanes, who was having a hard time getting a pilot's
license and who might have claimed to be doing charity work in
Afghanistan.
If you had rounded those guys up, they would have seemed
utterly harmless, even less threatening than our kangaroo
skinner, David Hicks. But look at what those men did. Look at
what they did. When they were in that camp, they weren't firing
at Americans. They weren't firing at anybody. But they were
slaughtering camel and sheep with short knives in preparation
for storming the cockpits of four airplanes.
Now, I would like to say to you, Senator Durbin, again,
before I take away my own time, the battlefields are everywhere
and I think to dismiss that is to totally misapprehend the kind
of danger we face.
The battlefields are in schools in Beslan. They're in
nightclubs in Bali. They're on commuter trains in Madrid. They
are in condos in Riyadh. They are in hotel wedding receptions
in Amman. And they are in the sky at 35,000 feet.
So I think that to be stuck on the old paradigm of war and
even the old paradigm of jurisprudence for dealing with this
incredibly difficult enemy I think is very, very dangerous.
And I would like to say to you, Senator Sessions, I, too,
would like to get to the bottom of why some of these people
have been let go.
And now I will get to my testimony and tell you what I
think is going on here.
Senator Cardin wanted to know or made an observation that
so many mistakes have been made and how did we get down this
road. In point of fact, the Center for Constitutional Rights
filed their first case on behalf of the detainees in February
of 2002. The camp was only one month old. People knew very
little about it.
Abu Ghraib wouldn't happen for another two years. There
were no allegations of abuse, torture, inhumane treatment. CCR
was determined from the very beginning, when none of the so-
called Guantanamo Bay bar wanted anything to do with these
cases, they were determined to get these guys full habeas
corpus rights or get them released.
But there was one law firm that joined with the Center for
Constitutional Rights. There was one law firm, it was Sherman
and Sterling, and they joined that lawsuit at the behest of
their oil industry client, the government of Kuwait. They were
paid a handsome fee and they have been paid handsome fees for
the entire duration of their representation not only as
attorneys, but as lobbyists.
Now, they deny that they were lobbying for the government
of Kuwait, but in point of fact, and I have all the records
here and, Chairman Feinstein, I would like all of the financial
records of the lobbying fees paid to these attorneys to be made
part of the record.
These are reportings under the protocol of the Foreign
Agents Reporting Act (FARA). This is the FARA reporting
document filed by Sherman and Sterling, as well as their filing
under the LDA, Lobbying Disclosure Act.
They have earned, from the government of Kuwait, over $1
million just in lobbying fees alone on behalf of 12 Kuwaiti
detainees.
Chairman Feinstein. We will add that to the record.
Ms. Burlingame. Yes. They are not alone. Arnold and Porter,
I've traced, as of June of 2006, reported $792,000 in lobbying
fees under the Foreign Agents Act and the Lobbying Disclosure
Act.
Sherman and Sterling was initially being paid, they said,
by the families of these 12 Kuwaitis. I found reports where the
government of Kuwait said, ``No, we are footing all the
bills.'' Sherman and Sterling was very coy about their fees.
They said that they were donating everything to 9/11 related
charities. I don't know why they would say they were donating
it to 9/11 related charities. They insist, that what's
happening at Guantanamo has nothing to do with September 11.
I think it's very, very disturbing to think that these are
the same attorneys--and, by the way, it's very important for
you to understand that Sherman and Sterling, I would say, is
probably the most influential law firm of all of the so-called
Guantanamo lawyers, because they were in the case from early
2002.
They were obviously very well funded and they were in the
Guantanamo cases a full two years before most of all of the
other blue chip firms that you've heard about were willing to
come into the cases.
It wasn't until the Supreme Court accepted cert in Rasul
that--and the politics of all of this had begun to change that
all these other firms came in.
But more disturbing than all of that--and if I can digress
one moment. The government of Kuwait is considered--
Chairman Feinstein. If you could summarize. Your time is
up.
Ms. Burlingame. Well, the government of Kuwait is
considered an ally, but they've got a big Islamist problem in
that country. Sixty-five percent of their population is under
30, 40 percent of them are under 16. There is a huge Al Qaida
presence there and they're tamping it down.
Levick Strategic Communications is the PR firm that was
hired by Sherman and Sterling, and I would also like this
document entered into the record.
Chairman Feinstein. So ordered.
Ms. Burlingame. It is called ``PR Perspective: The Long-
Term Struggle.'' This is the PR firm that was hired to make the
detainee case. They were hired very early on. They are called
Levick Strategic Communications and under FARA reporting
protocols they indicate that the government of Kuwait has paid
them $846,000 in fees. The firm's president, Richard Levick,
has laid out the entire PR strategy, and it is devastating.
This is why, when you move these detainees out of
Guantanamo, these men will follow. When you move this into the
civil court system, you will now be inviting criminal defense
attorneys who are zealously defending their clients, perhaps
for millions of dollars and maybe it won't be coming from
Kuwait, maybe it will be coming through corporate fronts,
financed by terrorists and terrorist organizations, to get
these guys out.
And I've run out of time.
Chairman Feinstein. Thank you very much. And we will look
at that material.
To begin, if I could, please, ask you to be restrained.
Admiral Hutson, I'd like to ask you the same question that
my distinguished colleague, Senator Graham, asked General
Hartmann.
What would you say if a member of the United States
military was water boarded overseas?
Mr. Hutson. I would say that, unequivocally, it's torture.
It violates the laws of war. It violates human rights. There's
no question about it.
And I testified some time ago at the Senate Armed Services
Committee, along with all the service JAGS, who all agreed that
water boarding was torture.
So there's no question about that.
Chairman Feinstein. Professor Denbeaux, you were criticized
the CSRT process. Detainees can appeal to CSRT and to the D.C.
District Court of Appeals, although that review is limited to
procedural challenges.
The solicitor general (OFF-MIKE) broadly or even exercise
the authority in order for detainees to be freed.
If that occurred, what would the legal process afforded
to--would then the legal process afforded to Guantanamo
detainees, in your view, be sufficient? Why or why not?
Mr. Denbeaux. As I understand your question, it was if the
CSRTs could be appealed to the court of appeals and they ruled
on it, would that be sufficient. Am I correct?
Chairman Feinstein. That is correct.
Mr. Denbeaux. The first problem is everything in life, and
if you'll forgive me, Your Honor (sic), garbage in is garbage
out. My problem with the CSRTs has been simply this. The
process has been tainted from the top to the bottom.
The evidence that has been presented by them has been
inadequate. We know very well that one of the terrible prices
some military people have paid for this is their careers have
been damaged because they've attempted to come forward and show
that the CSRT substantive results shouldn't have led to the
conclusion they did.
We can't tell how many people shouldn't have to appeal to
the court of appeals, because they were, in fact, initially
found not to be enemy combatants.
So we start with the proposition that a very large number
of these people, perhaps a majority, should not ever have had
the opportunity to appeal.
Now, any system that says innocent and guilty must be
treated alike and innocent and guilty are supposed to appeal
equally as if they're still trying to prove they're innocent
makes absolutely no sense.
By way of digression, I think this is a serious problem for
many military careers. I yield to nobody in terms of my support
for the patriotic efforts not only of those soldiers and
sailors in Guantanamo, but the career officers who have stepped
forward and, I think, paid a significant price.
But included in my view of patriots happens to be the
patriotism of my hardworking students who deserve recognition
and, most importantly, I feel that the utmost patriots I've
come across here, no less than the soldiers and certainly no
more, are the members of the bar who have chosen to step
forward.
I think they've been heroic. I deeply regret it took me
three years to get here, because I think it's a really serious
issue that we all have to address.
Chairman Feinstein. If I may, during oral arguments last
week before the United States Supreme Court, Justice Breyer
suggested that Congress might consider enacting a new
preventive detention law that could provide a basis for holding
dangerous detainees indefinitely without criminal charges.
Do you believe that preventive detention is a viable option
in this particular context? Why or why not and how would it
work?
Mr. Denbeaux. I had heard that and I thought about that a
little bit. One of my problems turns out to be when we always
have a really hard problem and we don't like the two choices we
have, do nothing or, in this case, give them habeas corpus.
We all struggle to find three, four and five other gimmicks
to get around the problem. I think preventive detention does
work in the United States in certain cases.
But the first question is what are they being detained for
and one of the big problems that I faced in all of this is that
people in Guantanamo aren't being charged with being
terrorists. The ones that aren't going to get military
commissions aren't being charged with having committed war
crimes or crimes.
So we have a whole lot of people in Guantanamo for whom the
idea is let's have a process to detain dangerous people.
I think dangerous people are people under the military
commissions. I think that's what the military commissions are
for, if they're for anything. They can't just be there to
release David Hicks. They have to be doing something.
But I don't think, when you hold people without charges for
six years, that you then say now we want to come up with a new
process other than habeas corpus in order to decide what would
happen.
So I don't see how that solves any of the problems we face
and I think it's a distraction to the core issue, which is who
should be detained and who shouldn't, and the Article 3 judges
should make that decision.
Chairman Feinstein. Thank you very much.
Senator Sessions.
Senator Sessions. Thank you.
Ms. Burlingame, I know your brother was the captain of the
plane that crashed into the Pentagon and appreciate your
leadership in this effort over a number of years.
Are you suggesting that these fees--are you suggesting that
we, as a nation, ought to be aware of the fact that forces can
be involved in the defense of persons that are captured that do
not have the interest of the United States involved, at heart,
and that our courts can be used really as a vehicle to promote
an agenda or to disrupt our ability to be successful in
stopping further attacks on America?
Ms. Burlingame. That's exactly what I'm suggesting and
that's why I hope that you will read this document, which
spells out the entire strategy on releasing these 12 detainees
that the government of Kuwait wanted out.
Senator Sessions. The document, fundamentally, what does it
say?
Ms. Burlingame. Well, basically, what it says is we know--
Senator Sessions. This is a public relations campaign
document that indicates a lot of money that has been paid to a
firm to develop a plan of public relations. And what does the
plan say?
Ms. Burlingame. I'm sure that Mr. Levick is not happy that
this is going to be made public. It was published on a Website
that only PR people read and he was very proud of his campaign,
because it's gone very well.
But what he describes is a model PR campaign. He said,
``How a media campaign helped turn the Guantanamo tide,'' how a
model PR campaign could be used in an unpopular cause to
reverse a tidal wave of adverse opinion.
Now, remember, for him and the people he's working for, the
detainees, ultimately, adverse opinion is, first of all, that
America is a force for good, that Guantanamo should exist, and
these people are being properly adjudicated or detained,
preventive detention, because they're dangerous people.
It was the purpose of this campaign to turn that around and
he says here that their goal was to give these prisoners legal
protections provided U.S. citizens. They wanted to give them
full habeas corpus rights.
They were brought in right away by the law firm. He says
here, ``We'd advise a two-tier PR strategy.'' One was to put a
human face on the detainees and the subtext of that was,
``United States is resorting to nefarious and undemocratic
tactics worthy of the terrorists themselves.''
This is the PR plan. This is a firm right here in
Washington, D.C. He says, ``This will diminish the country's
image and endanger the lives of Americans abroad,'' this is
what Mr. Hutson here has said.
Their ``ace in the hole'' in this plan, according to the PR
firm, was the United States Supreme Court. He says, ``In the
beginning, however, the high court judgment was our main
weapon. The case was so unpopular that we had to recast the
dialogue to, in a sense, make the Supreme Court our de facto
client.''
And to be sure, the Sherman team, the lawyers led by senior
partner Thomas Wilner, recognized that a top notch legal effort
would not be sufficient. The cases would have to be pled in the
court of public opinion as surely as they would have to be pled
in the court of law, and then he goes on to describe how they
did it.
He said that Sherman's lead lawyer is a ``media savvy,
media experienced lawyer, who never needed the explanations for
why we were doing what we were going to do.''
I mean, I could go on. It's quite astonishing. And the
reason why I think that this committee should know about it and
the congress should know about it is if we're going to bring
these cases into the civilian federal courts and try them as
criminal cases, if they're doing this at Guantanamo, they're
going to be far more unfettered in a civil court system.
And, remember, one of the reasons that--I don't believe
President Bush is saying that he wants to close Guantanamo
because he thinks it's not operating. It's because he wishes he
didn't have the problem of terrorists to begin with.
But the fact of the matter is closing Guantanamo isn't
going to solve the state of bad publicity that a lot of people
feel is the reason we have to close it.
The folks sitting behind you in these crazy outfits are
going to follow wherever those detainees go. I hope we don't
bring them to the United States, but we know that the Center
for Constitutional Rights has already filed for habeas relief
on behalf of 25 ``John Doe'' detainees in Bagram.
They will not relent and this PR war will not relent and if
this gets to the civil courts, it will explode, because lawyers
in the civil courts do dangerous things when they become
committed to the belief that what's happening in the government
against these ``defenseless, innocent'' people is wrong.
You have Lynne Stewart, who aided and abetted the so-called
``blind sheikh.'' Then you have the embassy bombing case, where
defense lawyers were given a list of un-indicted co-
conspirators, 200 jihadis, in discovery. That became known by
Osama Bin Laden within 24 hours of the lawyers finding it out.
That's my fear.
Senator Sessions. Well, I think you are correct that there
are increased dangers of public trials in America for serious
cases involving information and intelligence that could hurt
our country.
And I agree with you, also, that the issues that are raised
in Guantanamo are not going to go away if the cases are brought
to the United States.
Someone has quoted former Secretary of State Colin Powell
as saying he criticized military commissions. I'm not exactly
sure what his quote was. I would just say what do we do with
them.
As Senator Graham has said, we've wrestled with this for
some time and the military has come forward with an
unprecedented way to review the people that are being held on
an annual basis, if not more often, and to try to release
anybody that they can release.
It's not the goal of our military to see how many people we
can hold in Guantanamo. It's obvious that their goal is to try
to release everyone they can release safely, but it's also
obvious they've made some mistakes in some that have been
released.
Madam Chairman, I would offer, for the record, a response
to the Seton Hall study that's been done by Colonel Joseph
Felter and Dr. Jared Brockman, and it just would say a couple
of things.
Professor Denbeaux's study is based only on the information
publicly available to him when he did it and even then, he was
not very accurate, because this study at least found that 73
percent of the unclassified summaries meet the CTC's highest
threshold of a demonstrated threat as an enemy combatant.
That's their analysis and I guess we can have--
Chairman Feinstein. That will be added to the record.
Senator Sessions. --different opinions, but I would offer
that for the record.
Chairman Feinstein. Thank you. Are you--
Senator Sessions. I'm through.
Chairman Feinstein. Thank you very much, Senator.
Senator Durbin.
Senator Durbin. Thank you, Chairman Feinstein.
Let me say at the outset, in relation to Ms. Burlingame's
testimony, two of my friends in Chicago, Tom Sullivan, former
U.S. attorney for Chicago, northern district of Illinois, and
Jeffrey Coleman, a man who's been in practice there many years,
are, in fact, pro bono lawyers for Guantanamo detainees, and I
have spoken to them several times.
They have published their findings. They don't--to my
knowledge, they have no financial motive. In fact, they are
absorbing the expense of flying back and forth because they
believe that's part of the responsibility of a professional.
And I would just say that the characterization of those who
are dong this as doing it for financial gain is your right to
make and you've made it and you've put some items in the record
as part of this hearing.
And, Madam Chairman, I would like to ask you if you-- I
don't know this law firm of Sherman and Sterling of New York,
but I would at least like to have our staff offer them an
opportunity to put in the record their response to what Ms.
Burlingame has now made part of our official record, her
accusations against this firm and some of the people in it. I
think that's only fair.
I know that they've--this is many months back, but I know
that there was an ongoing dialogue in the ``Wall Street Journal
Letters to the Editor'' over this and at least allow this firm
to tell their side of the story and put that in the record.
Chairman Feinstein. I think that's a good point and we will
send them a letter and offer them that opportunity.
Senator Durbin. Thank you very much.
I might also say I'm sorry that Senator Sessions stepped
out, because he asked an important question that I want to
answer, and it was about Secretary of State Colin Powell, who I
don't believe is a pawn of any public relations firm in his
comments, and this is what he said in June of this year. ``If
it were up to me, I would close Guantanamo, not tomorrow, but
this afternoon.''
He added, ``I would not let any of those people go. I would
simply move them to the United States and put them in our
federal legal system'' and that he would, ``get rid of
Guantanamo and the military commission system and use
established procedures in federal law.''
So to suggest that the critics of Guantanamo were somehow
caught up in a big public relations campaign here, I have more
respect for General Powell. We've disagreed, but, certainly, as
former chairman of the Joint Chiefs of Staff, his service to
our country, being our secretary of state, I think we ought to
acknowledge that people of goodwill have reached an opposite
conclusion that you've reached.
Ms. Burlingame. Well, Senator, I'm not saying that anyone
who wants to shut down Guantanamo isn't of goodwill. What I'm
saying is that there are those who understand that these are
very dangerous people, but that the reputation of Guantanamo
because of these charges about what's going on down there, that
fly in the face of what's actually happening, has so tainted
the reputation of the process down there that it can't be
rehabilitated.
Senator Durbin. I agree with that completely and I think
the record speaks for itself.
Ms. Burlingame. And I think it's very--I don't think that
necessarily means that Colin Powell is conceding that
Guantanamo is everything that its critics are saying it is.
He's acknowledging that it's become a PR nightmare for this
country.
Senator Durbin. I am not going to go into the business of
trying to figure out what's on his mind, but his conclusion is
very clear.
Ms. Burlingame. Well, closing it doesn't--
Senator Durbin. If I could ask--
Ms. Burlingame. --tell you--
Senator Durbin. Professor Denbeaux, let me ask you and
Admiral Hutson, if I might.
You heard the testimony, the response of General Hartmann
to the question offered by Senator Graham about a downed United
States airman being subjected to water boarding as a torture--
or water boarding in interrogation and whether that was
torture, and he was reluctant to reach that conclusion, in
fact, would not on the record.
We went through that a few weeks ago with the nominee for
attorney general.
I am trying to get, in my own mind, if there is a
reasonable explanation as to why General Hartmann would be
reluctant to say this in light of the fact that the United
States has prosecuted its own military officers, in our
history, for water boarding--this goes back 100 years ago--and
that we've prosecuted Japanese officials and soldiers for water
boarding American prisoners during World War II.
I don't understand the ambiguity of this charge. It's like
saying, ``Well, I know you said murder, but I need to know more
about the circumstances.'' Well, it was the taking of a life. I
mean, that's the circumstance.
And the same thing with water boarding. It is simulated
drowning as part of an interrogation technique. I mean, I can't
understand this ``I need to know more information'' response
that we're getting on this question of water boarding.
Do either of you have an opinion as to why we're running
into this?
Mr. Denbeaux. Well, I think it's torture. I think it would
be an outrage happening to any airman. We believe that. And my
real suspicion is that we know we've water boarded and we don't
want people who--we want to protect people who have water
boarded from being prosecuted and I think people don't want to
call it what it is simply because the consequences of doing so
for some people who may have done it could be great.
Senator Durbin. And if I'm not mistaken, in the Military
Commissions Act, we included language, I don't want to go too
far, but at least in some form, legally absolving those in the
intelligence agencies who may have engaged in these techniques.
Admiral Hutson.
Mr. Hutson. That's right, Senator Durbin. It was like deja
vu all over again, because I was at the attorney general
confirmation hearing. I was sitting in about the same place I
was sitting for that and you were sitting at sort of the same
place, with Senator Whitehouse, and the reaction was kind of
the same.
It sort of sucked the oxygen out of the room when he
wouldn't agree that water boarding was torture, and I'm not
sure why that is that--it may be as a consequence of the
service JAGs talking about it in another way at another
hearing, so that the administration response now is to just
deflect the question, no matter how silly that may seem at the
time. You've deflected the question and finally the Senators
get tired of it and move on.
Senator Durbin. Thank you very much for your testimony.
Thank you, Madam Chair.
Chairman Feinstein. Thank you, Senator.
Senator Graham.
Senator Graham. Thank you.
Admiral Hutson, we've met a lot about this whole issue --
Mr. Hutson. Indeed, we have, sir.
Senator Graham [continuing]. And I do respect you. I know
you've spoken from the heart and with great experience.
And, Debra, I just want to let you know that I believe
we're at war and I don't want to apply domestic criminal law to
what I think is a mighty struggle between good and evil and
that the people that we're fighting are just as much committed
to their cause as Adolf Hitler was to his.
And I had the unique opportunity, with Senator Levin, to go
to the combat status review tribunal and witness Sheikh
Mohammed's presentation to the tribunal. I thought he never was
going to shut up.
He talked for about an hour of everything he has done in
recent times to wage war against the United States. He very
much tried to impress upon the tribunal that he was at war with
us because of his religion and I think it's incumbent upon us
to recognize we're in war.
But having said that, this is a war of ideologies. There
will be no capital to conquer, Debra. There will be no navy to
sink or air force to shoot down.
And I was in Iraq Thanksgiving and I met one of the senior
Al Qaida operatives who was captured and he's since broken away
from Al Qaida and is actually helping us. And we asked him
about what happened in Iraq and he said two things that were
very stunning.
He said the lawlessness after the fall of Baghdad created a
vacuum that they filled. People got intimidated. There was no
rule of law. There was no police and they were able to kind of
operate openly and nobody challenged them, and they were
surprised, and that intimidated the population. And he said
that Abu Ghraib was a godsend, that it was used in an amazingly
effective manner to recruit people and that they exploited that
to no end.
So what I'm trying to do is get us back into a wartime
footing, maintain the moral high ground, because that's where
you win the war here.
And, Admiral Hutson, it is clear that water boarding
violates the Geneva Convention.
And, General Hartmann, as a fine officer, I do think
there's some fear here that if you express that opinion, it may
jeopardize people in the past, I think.
But the Military Commissions Act provided basically the
corporal's defense to the CIA. And to those CIA agents out
there who are operating around the world, I appreciate what
you're doing and I know you're risking your lives, but no
agency is above the law.
And the fact that we provide military counsel to people
accused of a trial and our enemy doesn't is a strength. I know
what they do to our people. It's well known in Iraq what
happens to you if you're caught by these folks.
But it should be equally well known that in America we do
something different. The fact that we would provide a lawyer
and base our decision on evidence, not a twisted view of
religion, is a strength. There is no shortage in this world of
people who would cut your head off because of their ideology.
There is a shortage in this world of a process that
believes in something bigger than revenge or hate.
And, Admiral Hutson, I am firmly committed to the idea that
habeas corpus, as Justice Jackson said, it would be difficult
to devise a more effective bettering of a field commander than
to allow the very enemies he's ordered to reduce to submission
to call into account at his own civil courts and divert his
efforts and attention away from the military offensive abroad
to the legal defensive at home.
I think habeas lawsuits are inappropriate, that I do want
judicial review, but allow the military to make the decision as
to who an enemy combatant is and have the federal courts review
that process.
And back to your point about military court-martials versus
military commissions, could you provide me with some examples
of where you think the commission process that is deviated from
the court-martial process could be improved
Mr. Hutson. The review process.
Senator Graham. Not so much the review, the actual trial
itself and the review both.
Mr. Hutson. I think that just to finish that point for a
second, I think the military review process, as you know very
well, is tried and true and I would just stick with that.
Senator Graham. Let that be your basis. But like Article 31
rights, we can't--
Mr. Hutson. No, you couldn't have Article 31 rights. I
think that whatever system, whether it's the military
commission system or the court-martial or U.S. district court,
it would have to accommodate the vagaries of the circumstances
by which the person was convicted.
But as Secretary England said quite clearly and the Supreme
Court said, more importantly, the Supreme Court said that
Common Article 3 applies.
Senator Graham. It does.
Mr. Hutson. All of the judicial guarantees considered
indispensable by civilized peoples have to apply, which starts
out, I think, with a presumption of innocence, which can be
overturned or met with admissible evidence.
Senator Graham. And I do believe the military commission
has a presumption of innocence. It has the right to counsel. It
has the ability to confront witnesses.
As a matter of fact, I think you help us write the judicial
review of an allegation of coercion. Torture is a, per se,
excludable event and the allegation of coercion has be balanced
by the judge and his decisions or her decisions reviewed by
civilian courts.
That is generally where we need to go, isn't it?
Mr. Hutson. I think it is, although it depends, to some
extent, what we're talking about when we're talking about
coercion. If we're talking about coercion in the sense of Fifth
Amendment confessions and where the person's will has been
overcome by--that's one question.
Senator Graham. Under the military justice system, you have
to have voluntary statements.
Mr. Hutson. Right.
Senator Graham. And our judges, I think, can handle the
ramifications--the different ideas that may present themselves
about coercion. I'm looking at a process where the judge's
decision can be reviewed and people can have their say that my
client said this only because somebody made him say it and he
didn't want to.
That's the essence of a humane, fair trial, that, ``You
know what? You've got to prove me guilty. I don't have to prove
myself innocent,'' and you're telling the jurors there,
basically, ``You've got to decide among yourselves in a
unanimous way if you're going to put somebody to death.''
I mean, we've got generally what I think is a workable
system, but I would like more input from you, because I respect
you, about how to make it better.
Mr. Hutson. Thank you.
Senator Graham. And I'll just end with this thought. The
idea of Guantanamo Bay being closed is a statement we're trying
to make. Then once the statement is made, the war goes on.
Here's the statement I'm trying to make along with this
debate. I believe we're at war and I believe the military legal
system is the proper venue to adjudicate matters involving our
enemies. I am proud of them, the military legal community.
I believe civilian Article 3 courts should review their
work product, because it makes us stronger, not weaker. And the
techniques and the devices we use to prosecute people and to
gather information will do one of two things--it will elevate
this country so we can beat this enemy or it will diminish us.
And I believe we can be safe and maintain the moral high
ground and that is a false choice to have to choose between the
two and if you do, you've already lost to the enemy.
Thank you for this hearing.
Chairman Feinstein. Thank you very much.
Ms. Burlingame, Admiral Hutson, Professor Denbeaux, we very
much appreciate it.
Senators Feingold--
Ms. Burlingame. Chairman Feinstein.
Chairman Feinstein. One second--and Leahy would like to
have statements entered into the record. That will be the
order.
Ms. Burlingame. Could I have mine entered into the record,
as well, my full--
Chairman Feinstein. Yes, you certainly may.
Ms. Burlingame. Thank you.
Chairman Feinstein. All statements will be. And thank you
very much.
And the hearing is adjourned.
[Whereupon, at 12:29 p.m., the hearing was adjourned.]
[Questions and answers and submissions for the record.]
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