[Senate Hearing 113-872] [From the U.S. Government Publishing Office] S. Hrg. 113-872 CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN RIGHTS IMPLICATIONS ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION ---------- JULY 24, 2013 ---------- Serial No. J-113-22 ---------- Printed for the use of the Committee on the Judiciary [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://www.fdsys.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 26-148 PDF WASHINGTON : 2018 ---------------------------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Publishing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking CHUCK SCHUMER, New York Member DICK DURBIN, Illinois ORRIN G. HATCH, Utah SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina AL FRANKEN, Minnesota JOHN CORNYN, Texas CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona Kristine Lucius, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director ------ Subcommittee on the Constitution, Civil Rights and Human Rights DICK DURBIN, Illinois, Chairman AL FRANKEN, Minnesota TED CRUZ, Texas, Ranking Member CHRISTOPHER A. COONS, Delaware LINDSEY GRAHAM, South Carolina RICHARD BLUMENTHAL, Connecticut JOHN CORNYN, Texas MAZIE HIRONO, Hawaii ORRIN G. HATCH, Utah Joseph Zogby, Democratic Chief Counsel Scott Keller, Republican Chief Counsel C O N T E N T S ---------- JULY 24, 2013, 2:02 P.M. STATEMENTS OF COMMITTEE MEMBERS Page Cruz, Hon. Ted, a U.S. Senator from the State of Texas........... 4 Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1 prepared statement........................................... 90 Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 6 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5 prepared statement........................................... 93 Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island......................................................... 7 WITNESSES Witness List..................................................... 33 Eaton, Paul D., Major General, U.S. Army, Retired, Fox Island, Washington..................................................... 9 prepared statement........................................... 46 Fryday, Joshua M., Lieutenant, Judge Advocate General's Corps, U.S. Navy, Washington, DC...................................... 14 prepared statement........................................... 67 Gaffney, Frank J., Jr., President, Center for Security Policy, Washington, DC................................................. 12 prepared statement........................................... 72 Massimino, Elisa, President and Chief Executive Officer, Human Rights First, Washington, DC................................... 16 prepared statement........................................... 76 Pompeo, Hon. Mike, a Representative in Congress from the State of Kansas......................................................... 28 prepared statement........................................... 39 Smith, Hon. Adam, a Representative in Congress from the State of Washington..................................................... 26 prepared statement........................................... 34 Xenakis, Stephen N., Brigadier General, M.D., U.S. Army, Retired, Arlington, Virginia............................................ 10 prepared statement........................................... 51 QUESTIONS Questions submitted to Paul D. Eaton by Senator Klobuchar........ 95 Questions submitted to Joshua M. Fryday by Senator Klobuchar..... 96 Questions submitted to Frank J. Gaffney, Jr., by Senator Klobuchar...................................................... 97 Questions submitted to Elisa Massimino by Senator Klobuchar...... 98 Questions submitted to Stephen N. Xenakis by Senator Klobuchar... 99 ANSWERS Responses of Paul D. Eaton to questions submitted by Senator Klobuchar...................................................... 100 Responses of Joshua M. Fryday to questions submitted by Senator Klobuchar...................................................... 109 Responses of Frank J. Gaffney, Jr., to questions submitted by Senator Klobuchar.............................................. 108 Responses of Elisa Massimino to questions submitted by Senator Klobuchar...................................................... 102 Responses of Stephen N. Xenakis to questions submitted by Senator Klobuchar...................................................... 105 MISCELLANEOUS SUBMISSIONS FOR THE RECORD American-Arab Anti-Discrimination Committee (ADC), Washington, DC, statement.................................................. 144 Amnesty International USA, New York, New York, statement......... 208 Association of the Bar of the City of New York, New York, statement...................................................... 183 Cabot, Howard Ross, et al., on behalf of detainee Noor Uthman Muhammed, statement............................................ 191 Center for Victims of Torture, The (CVT), St. Paul, Minnesota, statement...................................................... 153 Coalition for Security, Liberty and the Law, Washington, DC, October 7, 2009, letter........................................ 289 Coalition for Security, Liberty and the Law, Washington, DC, December 20, 2012, letter...................................... 287 CODEPINK: Women For Peace, Washington, DC, July 16, 2013, letter. 160 Council on American-Islamic Relations (CAIR), Washington, DC, statement...................................................... 146 Ellis, Peter, on behalf of detainees Walid Zaid and Mohammed Haidar, statement.............................................. 201 Friends Committee on National Legislation (FCNL), Washington, DC, statement...................................................... 159 Hetrick, Joseph K., Esq., on behalf of detainee Mohammad Zahir, statement...................................................... 139 Hoar, Joseph P., Gen., U.S. Marine Corps, retired, et al., July 24, 2013, letter............................................... 166 Irvine, David R., Brig. Gen., U.S. Army, retired, Salt Lake City, Utah, statement................................................ 223 Jacob, Beth D., et al., on behalf of detainee Mohammed al- Zarnouqi, statement............................................ 142 Lehnert, Michael, Maj. Gen., U.S. Marine Corps, retired, statement...................................................... 214 Lincoln Square Legal Services, Inc., on behalf of detainee Sanad al-Kazimi, July 22, 2013, letter............................... 136 Malone, Daniel C., on behalf of detainee Haji Wali Mohammed, statement...................................................... 221 Marshall, David, Seattle, Washington, on behalf of detainee Ahmed Adnan Ajam, statement.......................................... 207 Muslim Public Affairs Council (MPAC), Washington, DC, statement.. 172 Nashiri family on behalf of detainee Abdel Rahim, July 16, 2013, letter......................................................... 182 National Association of Criminal Defense Lawyers (NACDL), Washington, DC, statement...................................... 177 National Religious Campaign Against Torture (NRCAT), Washington, DC, statement.................................................. 264 O'Hara, Matthew J., Chicago, Illinois, on behalf of detainee Umar Abdulayev, statement........................................... 169 Reprieve, London, England, United Kingdom, July 24, 2013, introduction letter............................................ 111 Aamer, Michael, and Johina Aamer, on behalf of detainee Shaker Aamer, letters...................................... 118 Al Hajj, Mohamed Sami, on behalf of detainee Sami Al Hajj, released, letter........................................... 122 Al-Hakimi, Emad, on behalf of detainee Adel Al-Hakimi, letter 113 Barka, Abd Alhaq, on behalf of detainee Younous Chekkouri, letter..................................................... 120 Belbacha, Mohammed, on behalf of detainee Ahmed Belbacha, letter..................................................... 121 Hadjarab, Ahmed, on behalf of detainee Nabil Hadjarab, letter 114 Massaud, Kamal, on behalf of detainee Abu Wa'el Dihab, letter 117 Sliti, Maherzia, on behalf of detainee Hisham Sliti, letter.. 116 Spaulding, Douglas K., Reed Smith, LLP, on behalf of detainee Ravil Mingazov, July 18, 2013, introduction letter............. 131 Mingazov, Yusuf, on behalf of detainee Ravil Mingazov, letter 132 Mingazov, Yusuf, addressed to detainee Ravil Mingazov, letter 133 Valiullina, Zukhra, on behalf of detainee Ravil Mingazov, letter--Redacted........................................... 134 Valiullina, Zukhra, addressed to detainee Ravil Mingazov, letter..................................................... 135 Sullivan, Thomas P., on behalf of detainee Abdulrahman Suleiman, July 22, 2013, introduction letter--Redacted................... 123 Mother of Abdulrahman Suleiman, on behalf of detainee Abdulrahman Suleiman, letter............................... 130 Thomson, Gerald E., M.D., statement.............................. 150 T'ruah: The Rabbinic Call for Human Rights, New York, New York, statement...................................................... 266 Vladeck, Stephen I., Professor of Law, American University Washington College of Law, Washington, DC, statement........... 269 Willett, Sabin, statement--Redacted.............................. 197 Wilner, Thomas, Shearman and Sterling, Washington, DC, statement. 255 Witness Against Torture, New York, New York, statement........... 279 CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN RIGHTS IMPLICATIONS ---------- WEDNESDAY, JULY 24, 2013 United States Senate Subcommittee on the Constitution, Civil Rights and Human Rights Committee on the Judiciary Washington, DC. The Subcommittee met, pursuant to notice, at 2:02 p.m., in Room SH-216, Hart Senate Office Building, Hon. Dick Durbin, Chairman of the Subcommittee, presiding. Present: Senators Durbin, Leahy, Feinstein, Whitehouse, Klobuchar, Hirono, and Cruz. OPENING STATEMENT OF HON. DICK DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS Chairman Durbin. Good afternoon. This hearing of the Subcommittee on the Constitution, Civil Rights and Human Rights will come to order. I understand Senator Cruz, my Ranking Member, is going to be here very briefly. Today's hearing is entitled, ``Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications.'' We are pleased to have a large audience. That demonstrates the importance and timeliness of this discussion. Thanks to those of you who are here in person and those following the hearing on Twitter and Facebook using the hashtag #closegitmo. At the outset, I want to note that the rules of the Senate prohibit outbursts, clapping, or demonstrations of any kind. There was so much interest in today's hearing that we moved to a larger room to accommodate everyone. Anyone who could not get a seat is welcome to go to the overflow room for a live video feed, 226 of Dirksen, the same floor. I will begin by providing some opening remarks. Then I will turn to Senator Ted Cruz and Senator Leahy, our Chairman of the Full Committee, who has now joined us, for opening statements before we turn to witnesses. Well, it has been more than 11 years since the Bush administration established the detention center at Guantanamo Bay. In that time I have spoken on the Senate floor more than 65 times about the need to close this prison. I never imagined that in 2013 not only would Guantanamo still be open, but some would be arguing that we keep it open indefinitely. The reality is that every day it remains open, Guantanamo prison weakens our alliances, inspires our enemies, and calls into question our commitment to human rights. Time and again, our most senior national security and military leaders have called for the closure of Guantanamo. Listen to retired Air Force Major Matthew Alexander. He led the interrogation team that tracked down al-Zarqawi, the leader of Al-Qaeda in Iraq. Here is what the major said: ``I listened time and again to foreign fighters and Sunni Iraqis state that the number one reason they decided to pick up arms and join Al- Qaeda were the abuses at Abu Ghraib and the authorized torture and abuse at Guantanamo Bay.'' ``It is no exaggeration,'' the major said, ``to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse.'' In addition to the national security cost, every day that Guantanamo remains open, we are wasting taxpayer dollars. According to updated information I received from the Department of Defense just yesterday, Guantanamo Bay detention costs for Fiscal Year 2012 are $448 million and for Fiscal Year 2013 estimated at $454 million. Do the math: 166 prisoners, $454 million. We are spending $2.7 million per year for each detainee held at Guantanamo Bay. What does it cost to incarcerate a prisoner and keep them in the safest and most secure prison in America in Florence, Colorado: $78,000 a year against $2.7 million that we are spending in Guantanamo. This would be fiscally irresponsible during ordinary economic times, but it is even worse when the Department of Defense is struggling to deal with the impact of sequestration, including the furloughs and cutbacks in training for our troops. Every day the soldiers and sailors serving at Guantanamo are doing a magnificent job under difficult circumstances. I went to the Southern Command in Miami, and I met with the men who were in charge of this responsibility. I can tell you that they are saddened by this assignment, but they are doing exactly what they are supposed to do. At great risk and at great separation from their family and personal challenge, they are accepting this assignment. And they look to us as to whether this assignment still makes sense. Every day at Guantanamo Bay, dozens of detainees are being force-fed, a practice the American Medical Association and the International Red Cross condemn and that a Federal judge in Washington recently found to be ``painful, humiliating, and degrading.'' As President Obama asked in his May 23rd national security speech, ``Is this who we are? Is that something our Founding Fathers foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that,'' the President said. It is worth taking a moment to recall the history of Guantanamo Bay. After 9/11, the Bush administration decided to set aside the Geneva Conventions, which have served us well in past conflicts, and set up an offshore prison in Guantanamo in order to evade the requirements of those treaties and our Constitution. John Yoo, working in that White House, wrote on December 28, 2001, an Office of Legal Counsel memo to Jim Haynes and said that Guantanamo was ``the legal equivalent of outer space,'' a perfect place to escape the law. But others, others even within the Bush administration, disagreed. General Colin Powell, then the Secretary of State, objected. He said disregarding our treaty obligations ``will reverse over a century of U.S. policy and practice and undermine the protections of the law of war for our own troops. It will undermine public support among critical allies, making military cooperation more difficult to sustain.'' Then-Defense Secretary Rumsfeld approved the use of abusive interrogation techniques at Guantanamo. These techniques became the bedrock for interrogation policy in Iraq. According to a Defense Department investigation, the horrible images that emerged from Abu Ghraib have seared into our memory some of the most outrageous and extreme techniques. Guantanamo became an international embarrassment and an international controversy. The Supreme Court repeatedly struck down the administration's detention policies. Justice Sandra Day O'Connor famously wrote for the majority in the Hamdi case, ``A state of war is not a blank check for a President.'' By 2006, even President Bush--President Bush--said he wanted to close Guantanamo. In 2008, the presidential candidates of both major parties supported closing Guantanamo. Within 48 hours of his inauguration, President Obama issued an Executive Order prohibiting torture and setting up a review process for all Guantanamo detainees. I will be first to acknowledge that the administration could be doing more to close Guantanamo. Last week, Senator Feinstein and I met with senior White House officials to discuss what they are doing under existing law to transfer detainees out of Guantanamo. But let us be clear. The President's authority has been limited by Congress. We have enacted restrictions on detainee transfers, including a ban on transfers to the United States from Guantanamo, that make it very difficult if not impossible to actually close the facility. It is time to lift those restrictions and move forward with shutting down Guantanamo. We can transfer most of the detainees safely to foreign countries, and we can bring the others to the United States where they can be tried in Federal court or held under the law of war until the end of hostilities. Let us look at the track record. Since 9/11--since 9/11-- nearly 500 terrorists have been tried and convicted in our Federal courts and are now being safely held in Federal prisons. No one--no one--has ever escaped from a Federal supermax prison or a military prison. In contrast, only six individuals have been convicted by military commissions. Two of those convictions have been overturned by the courts. Today, nearly 12 years after 9/11, the architects of the 9/ 11 attacks are still awaiting trial in Guantanamo. During his confirmation hearing, I discussed with Jim Comey, who was Deputy Attorney General in the Bush administration and is the nominee for FBI Director, this whole case. Here is what he told me: ``We have about a 20-year track record in handling particularly Al-Qaeda cases in Federal courts . . . the Federal courts and Federal prosecutors are effective at accomplishing two goals in every one of these situations,'' Comey said, ``getting information and incapacitating the terrorist.'' Some may argue we cannot close Guantanamo because of the risk some detainees may join and engage in terrorist activities. But studies show that even in our Federal prisons, the recidivism rate is more than 40 percent, far higher than the rate of any of those released from Guantanamo. And the often quoted recidivism estimate includes hundreds of detainees transferred under the Bush administration when the standards for release were much more lax. No one is suggesting that closing Guantanamo is risk free or that no detainees will ever engage in terrorist activities if they are transferred. But if a former detainee does return to terrorism, he will likely meet the fate of Said al-Shihri, the number two official in Al-Qaeda in the Arabian Peninsula, who was recently killed in a drone strike. The bottom line is our national security and military leaders have concluded that the risk of keeping Guantanamo open far outweighs the risk of closing it because the facility continues to harm our alliances and serve as a recruitment tool for terrorists. It is time to end this sad chapter of our history. Eleven years is far too long. We need to close Guantanamo. I will now recognize Senator Cruz, the Ranking Member. OPENING STATEMENT OF HON. TED CRUZ, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cruz. Thank you, Mr. Chairman. President Obama tells us the war on terror is over, that Al-Qaeda has been decimated, and that we can now take a holiday from the long, difficult task of combating radical Islamic terrorism. I do not believe the facts justify that rosy assessment. Five years ago, the President campaigned on closing Guantanamo, and yet Guantanamo remains open as a detention facility for those deemed to be the most dangerous terrorists that have been apprehended. And, to date, the administration's position seems to be to continue apologizing for the existence of Guantanamo, to continue apologizing for our detaining terrorists, and standing up to defend ourselves, but to do nothing affirmatively to address the problem. In particular, if Guantanamo is closed, it raises the fundamental question of where these terrorists will be sent. Now, we can embrace a utopian fiction that they will be sent to their home nations and somehow lay down their arms and embrace a global view of peace. I do not think that utopian fiction has any basis in reality. We have seen, whether it was in Boston or Benghazi or Fort Hood, that radical terrorism remains a real and live threat. Now, I have significant concerns about the Obama administration's overbroad incursions into the civil rights of law-abiding Americans. But at the same time, I have concerns about their unwillingness or inability to connect the dots and to prevent violent acts of terrorism. And until we are presented with a good, viable strategy for what to do with terrorists who would work night and day to murder innocent Americans, I have a hard time seeing how it is responsible to shut down our detention facilities and send these individuals home where they almost surely would be released and almost surely would return to threaten and kill more Americans. That is a question I hope this panel sheds some light on, how we can responsibly proceed in protecting the national security of this country, protecting the men and women of this country who expect, as the first responsibility of the Federal Government, that we will keep the Nation secure. And I look forward to the testimony today on that question. Chairman Durbin. Thank you, Senator Cruz. Senator Leahy. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Well, thank you, and I do want to thank Senator Durbin for holding this hearing. I think it is long past time that we take action and end this unfortunate chapter in our Nation's history. You can do that and still fight terrorism as it threatens us. It is nice to make up quotes and pretend the President said something about taking a holiday from terrorism, but, of course, he never said any such thing. But I do know that, for over a decade, the indefinite detention of prisoners at Guantanamo has contradicted our most basic principles of justice; it has degraded our international standing; and by itself it has harmed our national security. I think it is shameful that we are still even debating this issue. As long as we keep this detention center open at Guantanamo, it will continue to serve as a recruiting tool for terrorists, just as the photographs after Abu Ghraib did. It will discredit America's historic role as a leader in human rights. Countries that champion the rule of law and human rights do not lock away prisoners indefinitely without charge or trial. Countries that champion the rule of law and human rights do not strap prisoners down and forcibly feed them against their will. We condemn authoritarian states when they do this--and we should--but we should not tolerate the same thing in our country. As Senator Durbin points out, at a time of sequestration, to be spending as much as $2.5 to $2.7 million per prisoner to hold them in Guantanamo--because if we are going to hold these people, we could do it for far, far less at our supermax prisons, if that is the issue. I mean, how can we talk about all the things we have to take out of our budget because there are things that actually benefit Americans and yet we can spend this kind of a fortune down there and talk about spending hundreds of millions of dollars more to overhaul the compound. That is what has been requested. For more than a decade, we have seen precious manpower, resources, and money squandered on this long-failed experiment instead of being directed to important national security missions at home and abroad. I think the waste has to end. Furthermore, again, as Senator Durbin pointed out, the military commission system for trying these detainees is not working. It is a tiny handful that have been prosecuted there as compared to the hundreds in our Federal courts. We have already seen Federal courts overturn two convictions at Guantanamo in opinions that will prevent the military from bringing conspiracy and material support charges against detainees--something that even the lead military prosecutor at Guantanamo himself acknowledged. These same charges, though, can be pursued in Federal courts where our prosecutors do have a strong track record of obtaining long prison sentences against those who seek to do us harm. We are the most powerful Nation on Earth. Why do we act afraid to use the best Federal court system we have ever seen, probably the best court system in the world, and we act like we are afraid to use it? We have convicted nearly 500 terrorism suspects since 9/11 in these Federal courts. So the status quo at Guantanamo is untenable, and I appreciate the President's renewed vow to shutter this unnecessary, expensive, and inefficient prison. His decision in June to appoint a new special envoy at the State Department to coordinate efforts to repatriate detainees is a positive step toward closing the facility. So too are reports that the Periodic Review Boards will soon begin reviewing cases. Now, I am glad to see that commonsense provisions were included in this year's National Defense Authorization Act that was recently reported by the Senate Armed Services Committee. It will be incremental, but it will help, and I look forward to working with Members of Congress to bring this about. I will put my full statement--I know you have witnesses waiting, Mr. Chairman. I will put my full statement in the record. [The prepared statement of Chairman Leahy appears as a submission for the record.] Chairman Durbin. Mr. Chairman, thank you for being here, and thank you for the support you have given to this Subcommittee. We want to welcome one of the fellow Members of the Senate Judiciary Committee, not a Member of this Subcommittee, but today she is more than honorary. She is going to be welcome to participate. You even can come down the line if you would like and sit a little closer. Senator Feinstein. A little later. Chairman Durbin. Okay, good. Senator Dianne Feinstein. OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Thank you, Senator. Thank you for your comments and thank you for allowing me to sit with your Subcommittee. As you mentioned, I believe, when I came in the room, I was at Guantanamo about a month ago with John McCain and the President's Chief of Staff. We have been looking at the figures of cost, and apparently they are much higher than we thought. If the new costs are correct, the cost of the facility is $554.1 million in 2013, and as Senator Leahy said, that is $2.67 million per detainee. I want to point out that to keep a prisoner in maximum security in our Federal system is $78,000. So this is a massive waste of money. A month ago, when I was there, there were 166 inmates. Most have been there for a decade or more--10 years with no hope, no trial, no charge. These 166 detainees are slated for trial while 46 others will be held without trial until the war against terror is over, whenever that may be. Eighty-six of them, more than half, have been cleared for transfer by either the Bush or the Obama administration. Nonetheless, they remain in dismal conditions and legal limbo. By the end of President Obama's second term, the majority of Guantanamo detainees there today will have been held without trial for almost 15 years. I would submit that this is not the American way, and I would submit that Guantanamo has been a recruiting tool for terrorists. It makes a myth out of our legal system, and it really ought to be closed. We saw the hopelessness. We saw when we were there 70 detainees were undergoing a hunger strike. Twice a day, American military personnel restrains the detainee in a chair by his arms, torso, and feet. A tube inserted through the nose and into the stomach, and for some detainees, this has been going on for 5 months twice a day. I am very pleased that you have some medical testimony here today, and I look forward to hearing it. But this large-scale force feeding and this behavior is a form of protest. It is not an attempt at suicide. I believe it violates international norms and medical ethics. And at Guantanamo it happens day after day and week after week. So I find this unacceptable. I believe the facility should be closed. I believe all of these people can be transferred to high-security facilities in this country and that that is the proper thing to do. So I thank you for this opportunity. Chairman Durbin. Thank you, Senator Feinstein. Senator Whitehouse, do you have any opening comments? OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND Senator Whitehouse. Very briefly, because I want to get to the witnesses, but I do want to thank you, Chairman Durbin, for holding this hearing. I think it is really important. I have been around long enough to have been through several stages on Guantanamo. There was the stage where it was the worst of the worst, and they were too dangerous to release. And then the Bush administration released a huge chunk of them and then said, okay, now we are really down to the worst of the worst. And then they released another huge chunk of them. Now we have I think 86 of 166 slated for release, and we simply have not been able to find places for them to go. So we were kind of fed a bill of goods about who was there along the road and about how dangerous they were, because over and over again they have either been released in these waves or slated for release. And in my time on the Intelligence Committee, both under Chairman Rockefeller and under Chairman Feinstein, we heard over and over again from our national security officials about the value of Guantanamo as a recruiting tool for our enemies. So this is a very timely hearing, and I am grateful to the leadership of you, Senator Durbin, of the Chairman of our Judiciary Committee, Patrick Leahy, who is here, and of Chairman Feinstein as the Chairman of the Intelligence Committee. Thank you. Chairman Durbin. Thank you, Senator Whitehouse. It is the custom of the Committee to swear in the witnesses, and I would ask the first panel to please rise. Raise your right hand. Do you affirm the testimony you are about to give before the Subcommittee will be the truth, the whole truth, and nothing but the truth, so help you God? General Eaton. I do. General Xenakis. I do. Lieutenant Fryday. I do. Mr. Gaffney. I do. Ms. Massimino. I do. Chairman Durbin. Thank you. Let the record reflect that all of the witnesses on this panel answered in the affirmative. And before I recognize the first witness, I ask consent to enter into the record a statement from Retired Major General Michael Lehnert, who served in the Marine Corps for 37 years. General Lehnert led the first Joint Task Force Guantanamo, which established the detention facility in 2002. He could not be here today, but we wanted to make sure his views were in the record. We will circulate his statement to the whole Committee, and I commend it to my colleagues. As he details in his statement, General Lehnert tried to comply with the Geneva Conventions and asked to bring in the Red Cross to inspect this facility. He was rebuked by civilian political appointees. Here is what he says: ``We squandered the good will of the world after we were attacked by our actions in Guantanamo. Our decision to keep Guantanamo open has actually helped our enemies,'' the general writes, ``because it validated every negative perception of the United States. To argue we cannot transfer detainees to a secure facility in the United States because it would be a threat to public security is ludicrous.'' We are pleased to be joined here today by Retired Major General Paul Eaton. Major General, it is good to see you again. He is currently a senior advisor to the National Security Network. He retired from active duty after more than 30 years in the United States Army. From 2003 to 2004, General Eaton served in Iraq as the commanding general of the Coalition Military Assistance Training Team. Prior to serving in Iraq, General Eaton commanded the Army's Infantry Center and was Chief of Infantry for the Army. He studied at West Point, earned a master's degree in political science from Middlebury College. General Eaton, thank you for your service. You have 5 minutes, and your entire statement will be made part of the record and then open to questions. Please proceed. STATEMENT OF MAJOR GENERAL PAUL D. EATON, U.S. ARMY, RETIRED, FOX ISLAND, WASHINGTON General Eaton. Chairman Durbin, thank you very much. Ranking Member Cruz and Members of the Subcommittee, thank you very much for inviting me here to share my views on closing the Guantanamo Bay Detention Center. You mentioned that I had the last operational mission to create the Iraqi armed forces. My biggest challenge when I did that was to overcome over 30 years of despotism and its impact on the society in Iraq. So we worked very hard to develop what the Brits call ``the moral component,'' to instill the adherence to the rule of law. We drilled daily the notion of civilian control of the military, military justice, prisoner management, and battlefield discipline. We stressed accountability. Then Abu Ghraib blew up on us. The day that happened, the day it hit the press, my senior Iraqi advisor, an Air Force general under Saddam, retired, came into my office and said, ``General, you cannot understand how badly this is going to play on the Arab street.'' We lost the moral high ground. The investigation of Abu Ghraib by Major General Tony Taguba, a great American hero, found that torture implemented at Guantanamo was exported to detainee operations in Iraq. Abu Ghraib was a logical outcome of our Guantanamo experience. Men who had served in Guantanamo during the worst days of enhanced interrogation techniques were deployed to Iraq to ``Gitmo-ize interrogations.'' Not my words. Borrowed from testimony. Abu Ghraib was the spawn of Guantanamo, and it is one reason why I am convinced that we have got to close down this detention center. You cannot buff Guantanamo enough to make it shine again after the sins of the past. Improvements in detainee treatment and new military commission rules will not change the belief in the minds of our allies and our enemies that Guantanamo is a significant problem to the prosecution of the U.S. national security agenda in general and the U.S. military in particular. The argument that the Guantanamo facility represents a valuable intelligence tool is simply wrong. The shelf life intelligence has and particularly the people who have the potential intelligence is very short. The argument that the Guantanamo facility is necessary to hold dangerous men is simply wrong. As Senator Durbin mentioned, our supermax prisons do this quite well. We have a great many allies and alliances created for many reasons, most providing for the mutual defense. My team in Iraq was composed of nine nations, military and civilian. In late- night discussions, our Guantanamo problem would come up from time to time, and after Abu Ghraib, often. Some of our closest allies have refused to send up detainees because of Guantanamo, and we are losing intelligence opportunities every time this happens. Releasing any individual Guantanamo detainee does not change our national security posture. To this soldier, the fear-based argument to keep the Guantanamo Bay detention facility open is hard to understand. If brought to the U.S. for prosecution, incarceration, or medical treatment, the detainees will pose no threat to our national security. The 86 men who have been cleared for transfer should be transferred. We must find lawful dispositions for all law of war detainees as we have done in every conflict. Further, Guantanamo places our soldiers and Nation at risk not only because it makes America look hypocritical as we promote the rule of law but because it makes the detainees look like the warriors that they are not. Our leaders in Iraq would pose the question early and often: ``Did we create more terrorists today than we managed to take off the street?'' Guantanamo is a terrorist-creating institution and is a direct facilitator in filling out the ranks of Al-Qaeda and other terror organizations that would attack our country and our interests. Guantanamo, in military terms, is a combat power generator for the enemy. We as a Nation are strongest when we uphold the Constitution, the Bill of Rights, the Geneva Conventions, and the other laws and treaties and conventions to which we subscribe. We are weakest when we stray from the rule of law. We have an opportunity and an imperative to close Guantanamo now as we wind down combat operations in Afghanistan. There is no national security reason to keep Guantanamo open. In the words of one of my colleagues, they do not win unless they change us. And we have got to resist that attempt at change. Thank you very much, Mr. Chairman. [The prepared statement of General Eaton appears as a submission for the record.] Chairman Durbin. Thank you, General Eaton. Brigadier General Stephen Xenakis served in the U.S. Army as a medical corps officer for 28 years before retiring. A psychiatrist with an active clinical and consulting practice, General Xenakis is an adjunct professor at the Uniformed Services University of Health Sciences in the Military Medical Department. He is the founder of the Center for Translational Medicine, a research organization developing treatments and conducting tests on brain-related conditions affecting soldiers and veterans. General Xenakis previously served as senior advisor to the Department of Defense on issues relating to the care and support of servicemembers and their families, graduated from Princeton University and the University of Maryland School of Medicine. General Xenakis, thank you for your service to our country, and please proceed. STATEMENT OF BRIGADIER GENERAL STEPHEN N. XENAKIS, M.D., U.S. ARMY, RETIRED, ARLINGTON, VIRGINIA General Xenakis. Thank you, sir, and thank you, Ranking Member Cruz and Members of the Subcommittee, Senator Feinstein. I appreciate the opportunity to testify today. As you said, I am board-certified in general psychiatry and child and adolescent psychiatry. I have extensive experience in treatment, research, teaching, and administration, commanded-- retired at the rank of Brigadier General, commanded medical activities, medical centers, and medical regions. The Federal courts and the Office of the Military Commissions have qualified me as a psychiatric and medical expert. I have had multiple interviews--multiple interviews-- with detainees, advised attorneys, and spent cumulatively nearly 3 months at Guantanamo over the past 4\1/2\ years. I currently provide consultation and expert testimony as needed on seven current or former detainees. I have reviewed medical, intelligence, and military files of nearly 50. The treatment of hunger strikers at Guantanamo compromises the core ethical values of our medical profession. The AMA has long endorsed the principle that every competent patient has the right to refuse medical intervention. The World Medical Association and the International Red Cross have determined that force feeding through the use of restraints is not only an ethical violation but contravenes Common Article 3 of the Geneva Conventions. Force feeding completely undermines the physician-patient relationship by destroying the trust that is essential for all clinical treatment, including medical issues unrelated to force feeding. It engages physicians in the use of force against detainees. At Guantanamo, physicians and nurses have become part of the command apparatus that uses punitive and painful methods to break the hunger strikes, and the use of restraint chairs, dry cells, forced cell extractions, and denial of communal privileges. The plain truth is that force feeding violates medical ethics and international legal obligations, and nothing claimed in the name of defending our country can justify cruel, inhumane, and degrading treatment of another man or woman. The detention facilities at Guantanamo diminish America's standing among our allies and put at question our true values. The underlying issues that contributed to the hunger strike must be addressed, including ending the harsh conditions of confinement that have been put into place this year. Statements in the media leave the impression that the detainees are highly trained soldiers eager to get back on the battlefield. The vast majority of these men do not fit the picture of the worst of the worst. These detainees pale in comparison to violent prisoners accused of serious felonies or murders that I have seen and evaluated in this country. To be clear, if any detainee has committed a crime, I strongly believe that they should be charged, prosecuted, and convicted, punished accordingly. The fact is, however, that most of these detainees have not been charged. The restrictive and oppressive conditions undermine our national security objectives. Force feeding must end. It is unethical, an affront to human dignity, a form of cruel, inhumane, and degrading treatment in violation of our Geneva Convention obligations. My recommendations include: First, the underlying issues that contributed to the hunger strike must be resolved, including expeditious release. Second, detainees should not be punished for engaging in hunger strikes. Third, all directives, orders, and protocols that provide, explicitly or implicitly, that health professionals act as adjuncts of security officials must be rescinded. Trust in the medical staff by detainees has been so deeply compromised. Independent doctors and nurses should be brought in. Fourth, aging detainees require more complicated and sophisticated medical care. The regular rotation of clinical staff impedes continuity of care, diagnosis, and treatment. It places dedicated and professional military clinicians in untenable circumstances of providing suboptimal treatment to an increasingly ill population. It is not fair to the doctors, nurses, or detainees. Thank you for the privilege of speaking to you. [The prepared statement of General Xenakis appears as a submission for the record.] Chairman Durbin. Thank you, Dr. Xenakis. We will now hear from our next witness, Frank Gaffney. Mr. Gaffney is founder and president of the Center for Security Policy, a think tank in Washington. He is a weekly columnist for the Washington Times, Townhall, and Newsmax.com. He is the host of ``Secure Freedom Radio,'' a syndicated radio program. In the 1980s, Mr. Gaffney served in the Reagan Administration as Assistant Secretary of Defense for International Security Policy and Deputy Assistant Secretary for Nuclear Forces and Arms Control Policy. Prior to his work in the Department of Defense, he was a professional staff member on the Senate Armed Services Committee. He received a bachelor's degree from Georgetown University and a master's in international studies from Johns Hopkins School of Advanced International Studies. Mr. Gaffney, the floor is yours. STATEMENT OF FRANK J. GAFFNEY, JR., PRESIDENT, CENTER FOR SECURITY POLICY, WASHINGTON, DC Mr. Gaffney. Thank you, Mr. Chairman. One small addendum. I also had the privilege of serving in this body for Senator Scoop Jackson, who many of you have a long and wonderful memory of, I am sure. I appreciate the chance to testify on this issue. I recognize that I am in the distinct minority on this panel, but I take comfort from the fact that I think I represent the vast majority of Americans and certainly the vast majority of those of you in Congress on this question: Should Gitmo be closed? And I think the answer is resoundingly no, unless there is a better alternative available to us. I would like to describe why I think there is not a better alternative available by putting this into context, if I may, and that is to describe why we have Gitmo in the first place. It is because we are at war. This is a point that is seemingly lost on a lot of us who talk about this in sort of an abstract concept that somehow this detention facility can be removed from that overarching problem. We are not just at war. We are at war because others attacked us. And in your wisdom, you here in the Congress gave the authority to fight back. I am afraid that increasingly, however, we have lost sight as to who it is we are fighting with. And, again, I think that bears directly on the question before you all today. We are fighting, I would suggest, against people who adhere to a doctrine they call ``Shariah.'' Not all Muslims do, but those that are engaged at this point in---- [Audience outburst.] Mr. Gaffney. Excuse me. Chairman Durbin. Please. No outburst of approbation or disapprobation. Thank you. Mr. Gaffney. Those that do adhere to this doctrine believe that it is their obligation to destroy us, to force us to submit to their will. That bears directly upon this question of what happens if they are allowed to return to the battlefield, and I think we all agree recidivism among those who are released from Gitmo is a problem. Perhaps, as you said yourself, I think, Mr. Chairman, it is not as bad as recidivism in the Federal prison system. That is a sobering thought, which, again, I would argue suggests we do not want to put these prisoners into the Federal prison system if it is even worse than it is at Gitmo. The main point, though, is if the commitment these prisoners have, should they be allowed out, is to wage this jihad, as they call it, against us until we submit, it adds urgency to the question that Senator Cruz asked, which is, how do you prevent that from happening? And I would, with the greatest of respect, say I find unconvincing the idea that any of these problems are made more tractable by simply moving these people into the United States. For one thing, it does raise a question as to whether the costs that we are paying--and several of you have alluded to this excessive, wasteful, inefficient cost. But how much has it meant that not a single one of these people or any of their friends have been able to attack us because of their proximity to a Federal detention facility inside the United States? How many Americans' lives have been spared as a result? There is no way to know for sure. But are you feeling lucky? Do you want to take a chance? My guess is you will find much more violence inside the Federal prison system, not the least because these individuals will be engaged in proselytizing their form of Islam, Shariah, inside the prison system. But beyond that, you will have almost certainly their colleagues trying to do what was done in Iraq yesterday by Al-Qaeda, which is to try to spring them, or at the least, inflict harm on an American community that has the misfortune--perhaps the Thompson Correctional Facility community as an example, has the misfortune of incarcerating these people. Let us just set aside the numbers that you might or might not feel you can safely push out. There are a number, an unknown number--but the President has apparently said it is 46--that you can never try. Do you honestly think that the people behind me and the people who are impelling this hearing will stop cavilling for the release of those prisoners just because they are now in the United States? And, finally, I would just say to you, as you know better than I, Federal judges inside this country will almost certainly look, at least some of them, with sympathy on the claim that these prisoners_once they are inside the United States, once they are entitled to all kinds of constitutional rights they might not otherwise have in places like Gitmo_and that would perhaps result in their release inside the United States. I find that it would be beyond malfeasance were we to go down that road. It is dereliction of duty. I pray you will not close Gitmo, and I hope that my testimony will encourage you not to do that. Thank you. [The prepared statement of Mr. Gaffney appears as a submission for the record.] Chairman Durbin. Thank you, Mr. Gaffney. Our next witness is Lieutenant Josh Fryday. Lieutenant Fryday is a member of the Judge Advocate General Corps in the United States Navy. He is currently stationed in Washington, DC, at the Office of the Chief Defense Counsel for Military Commissions. In addition to his legal duties, Lieutenant Fryday served in the Navy's humanitarian aid and disaster relief effort following the tsunami and nuclear disaster in Japan. Prior to joining the Navy, Lieutenant Fryday worked in the San Francisco District Attorney's Office and the U.S. Attorney's Office for the Northern District of Illinois. He received his B.A. in political science and philosophy from the University of California at Berkeley where he graduated Phi Beta Kappa. He received his J.D. from the University of California Berkeley School of Law. Lieutenant Fryday, thank you for being here today, and please proceed. STATEMENT OF LIEUTENANT JOSH FRYDAY, JUDGE ADVOCATE GENERAL'S CORPS, U.S. NAVY, WASHINGTON, DC Lieutenant Fryday. Thank you, Chairman Durbin, Ranking Member Cruz, and Members of the Committee, for inviting me today to testify. I am grateful for the opportunity to share my experiences with you. While the Office of the Chief Defense Counsel for the Military Commissions is aware that I am testifying today, my statement is based on my own personal experience and knowledge and does not reflect the views of my office, the Navy, or the Department of Defense. Over the past year, I have been assigned under military orders to serve as military defense counsel for individuals detained in Guantanamo Bay, Cuba. As you know, there are 166 remaining. I represent one of them, and his name is Mohammed Khameen. People often ask me if it is difficult representing a detainee in Guantanamo. I am proud to live in a country where my Commander-in-Chief can order me to perform such a challenging mission. My colleagues, prosecutors, and defense lawyers alike are patriots who love their country. We are taught in the military to perform our duties with honor, courage, and commitment. And I am here today doing my duty to talk to you about my client's indefinite detention in Guantanamo Bay. My client has now been detained by our Government for over 10 years. After 5 years of detention, in 2008 he was charged with material support for terrorism. In 2009, the military commission process halted, and the charges against him were dismissed. A recent D.C. Circuit Court decision, Hamdan v. United States, held that material support for terrorism is now no longer a crime that he or anyone detained prior to 2006 can ever be tried for in a military commission. I am not here today to ask for sympathy for a man I was ordered to represent, but I would like to tell you a little bit about him. He is an Afghan citizen with a third grade education received in a Pakistani refugee camp his family went to after fleeing the Russian invasion. He was roughly 22 years old when he was detained, although he does not know his exact age. He has a son who was 6 months old when he last saw him in 2003, and he has never been charged with harming anyone, either Afghan or American. Had my client been brought to Federal court instead of Guantanamo, he could have and would have been tried years ago. Since 9/11, nearly 500 terrorists have been convicted in Federal courts; in the Guantanamo military commissions, six. Now, after a decade of detention with no crime he can be charged of, he sits in Guantanamo, imprisoned indefinitely. My client has asked me how it is possible for my Government to detain him for over 10 years without proving he committed a crime. I try my best to explain that there are people in our Government who believe under the laws of war we are allowed to detain people indefinitely until the war is over. He then asks me, ``You will no longer be at war with Afghanistan after 2014. Can I go home then? Or does this war never end?'' As a servicemember and an attorney sworn to uphold the Constitution and our strong legal traditions, I do not have good answers for him. If my client is guilty of a crime, he should be tried and given his day in court. So I thank this Committee for your willingness to listen to a story today. For as long as he is in Guantanamo, no judge or jury ever will. We are a Nation of laws and a people of principle. Denying my client a trial and detaining him indefinitely is at odds with our oldest values. On the eve of our Revolutionary War, we held trials for British soldiers responsible for the Boston Massacre. Our founding father John Adams served as one of the British soldier's defense lawyers. But today even basic due process in Guantanamo is denied, including the opportunity to confront your accusers, be presented with evidence against you, and have access to counsel. Our threats are real. Criminals and terrorists should be prosecuted and jailed. Our enemies must know that we will bring them to justice, no matter what. But as a people guided by principle and the rule of law, we can do better than indefinite detention. For centuries, American servicemembers have fought and paid the ultimate sacrifice to protect the fundamental values that define our Nation. We should strive to always be faithful to those values, especially when it is most challenging to do so. [The prepared statement of Lieutenant Fryday appears as a submission for the record.] Chairman Durbin. Thank you, Lieutenant. The last witness on the panel is Elisa Massimino. She is the President and CEO of Human Rights First and an adjunct professor at Georgetown University Law Center. Human Rights First is one of the Nation's leading human rights advocacy groups, and Ms. Massimino and Human Rights First have been great partners with this Subcommittee working on our human rights agenda. Before joining Human Rights First, Ms. Massimino was a litigator in private practice and taught philosophy, earned her J.D. from the University of Michigan, master of arts in philosophy from Johns Hopkins, and graduated Phi Beta Kappa from Trinity University in San Antonio. Ms. Massimino, you have testified before the Subcommittee before, and I welcome you back. Please proceed. STATEMENT OF ELISA MASSIMINO, PRESIDENT AND CHIEF EXECUTIVE OFFICER, HUMAN RIGHTS FIRST, WASHINGTON, DC Ms. Massimino. Thank you. Chairman Durbin, Ranking Member Cruz, and Members of the Committee, thank you for the opportunity to testify today about the importance of closing Guantanamo and how we can do so in a way that protects our country, our national security, and our values. As the president of an organization whose central mission is to advance American global leadership on human rights, I focus on ensuring that our country remains a beacon to freedom- seeking people around the world and that it can continue to lead by the power of example. That is why, after the terrorist attacks on our country, we joined forces with more than 50 retired generals and admirals, led by former Marine Corps Commandant Chuck Krulak and former CENTCOM Commander Joe Hoar who believed that our values and institutions are assets in the fight against terrorism, not liabilities. I have been to Guantanamo and met the dedicated people serving there under difficult circumstances. We have been official observers to every military commission convened at Guantanamo since its inception. We know and have great respect for the servicemembers and civilian defense lawyers who are struggling to navigate this untested and jerry-rigged system to wring some form of justice from it. Some would have you believe that Guantanamo's critics are a handful of human rights activists, some foreigners, and defense lawyers for detainees. That is not true. The loudest and most persistent calls to close the prison come from our own senior defense, law enforcement, intelligence, and diplomatic officials, people with a 360-view of the costs and benefits of Guantanamo who have concluded that our national security is best served by closing it. President Bush said he wanted to close Guantanamo. Henry Kissinger called Guantanamo ``a blot on our national reputation.'' Jim Baker said it has given America a very, very bad name. Admiral Dennis Blair, former Director of National Intelligence, called Guantanamo ``a rallying cry for terrorist recruitment and harmful to our national security.'' Secretary Gates told President Bush that Guantanamo was a national security liability and advised him to close it down. Major General Michael Lehnert, as you have said, who was in charge of standing up Guantanamo in 2002, said it cost us the moral high ground. Former Chairman of the Joint Chiefs Admiral Mullen said that Guantanamo has been ``a recruiting symbol for our enemies.'' General Colin Powell said he would close it ``not tomorrow; this afternoon.'' And Senator McCain has suggested that it would be an act of moral courage to find a way to shutter the prison. Whatever one thinks about the initial benefits of detaining prisoners at Guantanamo, there is growing bipartisan consensus that we no longer need it. Today's hearing catalogs the reasons why it is imperative to transform this consensus into action. We heard about the astronomical costs of Guantanamo at a time when the Pentagon is furloughing more than half a million employees. General Eaton reminded us that the impeding end of combat operations in Afghanistan will require a change in detention authorities. General Xenakis described the deterioration of morale at Guantanamo and the degraded mental state of many of the prisoners, a combination that is leading to a tipping point. And Lieutenant Fryday told us how Guantanamo has warped our system of justice. In many ways, the struggle with Al-Qaeda is a war of ideals. That is the battleground on which our country should have the greatest advantage. Sometimes when we lose our way, outsiders who admire our values can remind us of who we are and what we stand for. Some family members of Guantanamo detainees have written letters to you in advance of this hearing, and I want to quote from them. Ahmed Hadjarab, the uncle of an Algerian who has been detained for more than a decade without charge and has been cleared for released, wrote, ``When in 2002 I was told that Nabil was detained by the Americans, I thought that at least he would have a right to a fair trial. I thought his rights would be respected and that justice would prevail. What I feel today is mostly incomprehension. How can this Nation, one that prides itself on defending human rights, close its eyes to these violations of its founding principles?'' Hisham Sliti from Tunisia has been held for more than a decade without charge. He, too, has been cleared for transfer. His mother wrote, ``I do not understand why my son is still in Guantanamo after all these years when we know he has been cleared. We never thought the United States was the kind of place where people could be held like this.'' We have often talked about who we are as a Nation, but sooner or later who we are cannot be separated from what we do. As we wind down the war in Afghanistan, we must expunge the legacy of Guantanamo and restore America's reputation for justice and the rule of law. The question is not why or if, but how. Today Human Rights First has published a comprehensive exit strategy with a detailed plan for closing the prison. Among the challenges facing our country today, closing Guantanamo is far from the most complex. While it may be politically complicated, as Senator McCain recently said, it is not rocket science. It is a risk management exercise, and the risk is manageable. With leadership from the President and Congress we can get this done. Thank you again for convening this hearing and soliciting our views. We are deeply grateful for your leadership, Mr. Chairman, on this and so many other human rights issues. I look forward to your questions. [The prepared statement of Ms. Massimino appears as a submission for the record.] Chairman Durbin. Thanks, Ms. Massimino. Now we are going to have rounds of questioning of 7 minutes per Senator, and I ask that each Senator try to stick with those time limits, if they can. And, again, I thank the panel. Let me start at the beginning. Marion, Illinois, is a small town, small city in southern Illinois. It is a great town, and in a rural setting, and it has a Federal prison, the Marion Federal prison. Incarcerated in that Federal prison are convicted terrorists. I have never heard one word from a person living in Marion, Illinois, about a fear associated with those terrorists being in that prison. The notion at Marion and at other places where Federal prisons exist is that our Federal prisons are pretty good. People do not escape from them. And the community around them feels pretty safe. So, Mr. Gaffney, the notion of sending the worst of the worst to the Florence supermax prison 30 miles away from any city in the middle of nowhere, where they can have little or no communication with the outside world, why does that frighten you? Mr. Gaffney. Senator, I am concerned, as I said in my testimony, about several things. One is I think there will be more violence inside the prisons. Second, I think that we cannot be sure, but I think it is a safe bet on the basis of experience elsewhere that when---- Chairman Durbin. Excuse me. Have you been inside a supermax prison? Mr. Gaffney. I have not personally had the privilege of being inside a supermax prison. [Laughter.] Chairman Durbin. Please. I have visited a similar facility, and most of them are in a very restricted, lock-down condition. It is rare for them---- Mr. Gaffney. As they should be. Chairman Durbin [continuing]. To have more than 1 hour a day outside of the detention facility and then usually by themselves. So how do you believe that they will be able to incite problems within the Florence supermax prison? Mr. Gaffney. I am so glad you asked that, sir. One of the things that is concerning me is what we are seeing done in the prisons writ large now, not just the supermax, but I think it includes the supermax, and that is this proselytization, the fact that we have imams who are brought in for the purpose of, I believe, catering, of course, to the Muslim population but in the process also converting and promoting this doctrine, which does conduce to violence. There is no getting around it. It is supremacist in character. So you have to assume that there will be opportunity, especially if we start, as we have done with the Shoe Bomber, relieving them of some of the limitations on their freedom of movement---- Chairman Durbin. Mr. Gaffney---- Mr. Gaffney. Then you will get, I think, more violence. But if I may come to the question of the community---- Chairman Durbin. I am sorry, but I have a limited amount of time. I just want to say---- Mr. Gaffney. May I just say on the community, sir? Chairman Durbin [continuing]. We have now incarcerated in Federal prisons Moussaoui, a person we suspected to be part of 9/11, being held with no hint of problems within the prison or outside of it. I also want to make something very clear for the record. There are some very patriotic Muslim Americans who do not want to be characterized as part of an extremist movement. They are people who we have met and worked with every day---- [Applause.] Chairman Durbin [continuing]. And the notion that bringing in an imam or someone associated with their religion is an invitation to violence and extremism presumes the prison authorities will pay no attention, number one, and presumes perhaps that everyone brought in is a danger. And I think that is---- Mr. Gaffney. May I very quickly respond, sir? Chairman Durbin. Of course. Mr. Gaffney. One is that the fellow who started the Muslim chaplains in the Federal prison is now in the Federal prison himself, Abdul Rahman al-Amoudi. He is a terrorist. He is a man who created, among other things, an infrastructure inside the United States for promoting Shariah through the Muslim Brotherhood. But on your question is critically important: Will Marion be at risk if they take prisoners from Gitmo? I am concerned that they might be, not least because, quite apart from whether they could ever spring people from the supermax facility, it makes it a target for terrorism. It is an opportunity to---- Chairman Durbin. Mister---- Mr. Gaffney. Create---- Chairman Durbin [continuing]. Mr. Gaffney---- Mr. Gaffney. A spectacular incident, and that is what these guys are about. Chairman Durbin. Mr. Gaffney, there are domestic gang members and leaders of extremist groups from all over the United States incarcerated in these prisons, and they are handled very professionally and securely so that communities beg for the opportunity to have a Federal prison constructed near them. Let me move to the question, Ms. Massimino. I believe the President should move, according to his promise, to close Guantanamo. But I also believe that Congress has made that exceedingly difficult with restrictions that we have put in place in terms of the transfer of these detainees. Would you comment on those restrictions? Ms. Massimino. Yes, I would be happy to do that. I also would like to say one word about the Federal prisons, because I had some of the same questions, and I understand that many people have these anxieties. So I reached out to the American Correctional Association and asked them what they thought about whether they could handle these kinds of prisoners, and they asked me, ``Do you know who is in there now? These are not nice people. But we know how to handle this. We have got this.'' As Senator Graham said, it is absurd to think that our corrections officials cannot handle this population. You are absolutely right, Senator, that Congress has made closing Guantanamo more difficult because of these transfer restrictions, and I was happy to see that the Senate defense authorization bill has included some provisions that would give greater authority to the Commander-in-Chief to dispose of the prisoners at Guantanamo in the way that he thinks best fits our national security. And I hope those provisions become law. We also, in our exit strategy document that we released today, break down the population at Guantanamo. It is essentially about the math. We have 166 people. The majority of those have been cleared for transfer. The President has now appointed a leader at the State Department to take on this challenge, and we are awaiting the appointment of a leader at the Defense Department to do the same. There is renewed urgency about this, as you heard from Senator Feinstein about what is going on down there with the hunger strikes. So this is something on which the President and Congress have to work together. Presidential leadership is essential, but Congress needs to trust the Commander-in-Chief to make these decisions. Chairman Durbin. Lieutenant Fryday, thank you for your compelling testimony. Thank you for your service to our country, and thanks for reminding us what we are all about in this country when it comes to the rule of law. That reference to John Adams is one that just stands out in this man's biography. Before he was elected President, he was assigned to defend British soldiers who were accused of massacring American colonists. It is an indication of where we started as a Nation and where we need to continue. You have had a foot in both camps. You have been a prosecutor in our criminal justice system at the Federal level, and now you have been a defense counsel when it comes to military commissions. Some in Congress argue we just cannot trust Article III courts. If we give somebody a Miranda warning, they are going to clam up and will not even talk or cooperate, while others point to the record that over 500 accused terrorists have been successfully prosecuted in Article III courts and six before military commissions. What is your view about the proper place, the proper tribunal for these trials? Lieutenant Fryday. Thank you, sir, very much for the question and your comments. I do not believe it is my job to provide a recommendation to this body or this Committee. It is not what I have been assigned to do and ordered to do. I can say, having been in Guantanamo and seeing the commissions up close, it has been 12 years since 9/11, and we are still litigating what kind of clothes people can wear in court, what kind of notes lawyers can take in meetings, and what rights apply. It is a very confusing system. It is a very slow, inefficient system. It is obviously--as the numbers you indicated, it is a much slower system than Federal courts. There are still a lot of barriers in place in the military commission system, barriers for counsel, issues of attorney- client privilege, issues of classification that are confusing, hearsay rules that are relaxed in the military commission system that is different. So there are lot of differences that still need to be worked out as we move forward. Chairman Durbin. Thank you very much. Senator Cruz. Thank you, Mr. Chairman. I would like to thank each of the witnesses for coming here and for your testimony. It seems to me this is an issue that inspires a great deal of passion, a great deal of emotion. And it also seems to me that our national security policy should not be derived simply from bumper-sticker ideology but, rather, from careful, hard decisions about how to protect the national security of the United States. There are two facts in particular that I think are hard facts that I heard very little discussion of from the panel today. The first is, as of January 2013, the Director of National Intelligence in the Obama administration has confirmed or suspects that 28 percent of former Guantanamo detainees re- engaged in terrorism. Now, that is a very inconvenient fact for any argument that would leave a substantial risk of these individuals that are currently in Guantanamo being released. The second fact is underscored by timing this week, which is on Monday of this week, about 500 prisoners, including senior members of Al-Qaeda, escaped from the Abu Ghraib prison, which is now controlled by the Iraqi security forces. I think that likewise underscores the inherent risk in relying on foreign facilities to detain known terrorists, particularly terrorists for whom there is a substantial risk of their re- engaging in terrorism if they find themselves at large. The first question I would like to ask is to General Eaton. General Eaton, I thank you for your many years of service and leadership. There are, as of November 2012, 166 detainees in Guantanamo. Is there any reason to believe that if those individuals were released, their recidivism rate would be any less than the Guantanamo detainees who have already been released who have re-engaged in terrorism at a rate of 28 percent, according to the head of the DNI? General Eaton. Senator Cruz, thank you for the question. I spent a career managing risk. Soldiers never get all the assets they need to buy risk down to zero. The question, I believe, could also be posed: Is the existence of Guantanamo a higher risk than the release of the prisoners we have there now? We have a terrific judicial system. Our intelligence architecture reveals a 28 percent recidivism rate. If we accept 28 percent, then we have that same intelligence architecture that will help us buy down the risk of placing those individuals back in the care of countries that will take care of them, which is a requirement that this body has imposed upon the Secretary of Defense, a certification process. So when we talk about releasing the 86 that are cleared for release under conditions that meet the expectations that the Secretary of Defense has to certify, then I think it is appropriate, and I think that the risk associated with that is indeed relatively low. It is not zero. But I live in a world, a military world, that accounts for risk, and you buy the risk down with every factor available to you, and America has a great deal to help buy down that risk. Senator Cruz. General Eaton, if I understood your answer correctly, it was that if detainees are released, we can act to mitigate the risk of their re-engaging in terrorism. I would note that it seems to me you did not dispute the premise of my question that these individuals, if released, we could expect to re-engage in terrorism at at least the same rate. And, in fact, I would suggest to you surely it was not the case that the people we released initially were the most dangerous. Under any rational system, presumably the first people released were those we deemed to be the least dangerous. And so the rational inference would be those remaining would, if anything, return to terrorism at a higher rate not a lower rate than 28 percent. General Eaton. Senator, as Yogi said, predictions are really hard, especially if it is about the future. And we have got a population that is unknowable to 100-percent prediction rate. So, again, we mitigate risk. We buy it down. It will not go to zero. But I cannot put a figure on it. Senator Cruz. Well, with respect, General, it will go to zero with respect to those detainees if they remain detained. I mean, we are talking about the risk of future acts of terrorism. And let me say more broadly to the panel, at the outset I noted what I thought was the most difficult question, which is, it is easy to say close Guantanamo and get an applause from various audiences. The harder question then is what do you do with these terrorists. And it seems to me there are one of two options. You either send them to U.S. detention facilities--now the Chairman has generously volunteered Marion, Illinois, to host these terrorists. I do not know what the citizens of Illinois would think of that. I feel confident I know what the citizens of Texas would think about their coming to Texas. I would note we have had multiple instances of individuals in Federal prisons engaging in terrorism, directing terrorist acts from Federal prisons, including the Blind Sheikh; Lynne Stewart was convicted for aiding terrorism for individuals in Federal prison. Or the alternative is to send it to foreign locations, whether it is nations like Yemen, with enormous instability, or other allies. And given the escape we just saw in Abu Ghraib, it is hard to have any confidence that if these individuals are sent to a foreign facility that they will not in due course be released and in due course commit future acts of terrorism, taking the lives of innocent Americans. I want to close with a final question, which is, Mr. Gaffney, it has been reported that the President--under the Obama administration, approximately 395 people have been killed by drone strokes. Are you aware of any reasonable argument that it is somehow more protective of human rights, more protective of civil liberties, to fire a missile at someone from a drone and kill them than it would be to detain them and interrogate them, determine their guilt or innocence, and determine what intelligence might be derived from that individual? Mr. Gaffney. Mr. Chairman, one housekeeping item. I think I neglected to ask if my entire statement could be put in the record. Chairman Durbin. It certainly will be. Mr. Gaffney. And there is also a short letter from a number of distinguished military officers that I would like to have in the record as well. Chairman Durbin. Without objection. [The letter appears as a submission for the record.] Mr. Gaffney. Senator Cruz, look, I am probably not the best arbiter of what is humane. You have people on this panel who spend a lot of their time dwelling on that. I kind of focus on national security. But just as a human being, I will tell you I think if you kill people, that typically is less humane than incarcerating them. Letting them starve to death is, in my judgment, less humane than feeding them, involuntarily if necessary. But this is not my specialty, and I would defer to others who may have a higher claim on knowledge in this area. Senator Cruz. And we get no actionable intelligence from someone who has been killed by---- Mr. Gaffney. And that is where the national security piece comes in. Foreclosing the option to detain and interrogate people is, I would suggest, as I am sure Senator Feinstein knows, a real impediment to our ability to prosecute a war like the one that has been thrust upon us by people who operate with a very high regard for operational security. To the extent that we deny ourselves unilaterally this ability by essentially foreclosing putting them anyplace where we can have those kinds of interrogations I think is--well, I said earlier, strong words, but I think it is a dereliction of duty on the part of the Commander-in-Chief. Senator Cruz. Thank you, Mr. Gaffney. Thank you, General and the panel. Ms. Massimino. Mr. Chairman, I wonder if I might respond to this question about recidivism that Senator Cruz raised. Chairman Durbin. Please proceed. Ms. Massimino. Because it is certainly a reasonable concern, as it is in the criminal context, as you heard. But the claim that 28 percent of Guantanamo detainees have ``rejoined the fight'' is highly misleading, and Defense Department officials have said that many detainees included in that category are merely suspected of having some associations with terrorist groups and may very well have not engaged in any activities that threaten our national security. But that does not mean that all the prisoners at Gitmo are somehow innocent farmers and that there is no risk. I really think this question about recidivism has to relate to what is our overall objective. You know, a lot of the people at Guantanamo are precisely the kinds of targets that Al-Qaeda looks to for cannon fodder, and some of them could cause harm if they are released. But that does not make them any different from the hundreds of thousands of other angry young men throughout the Muslim world who believe in the same case. And there is, sadly, no shortage of potential suicide bombers. Guantanamo does nothing to solve that problem. In fact, it probably makes it worse. Chairman Durbin. Okay. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. I want to ask a question of Lieutenant Fryday, about in your past, did you serve as an intern in my San Francisco office, per chance? [Laughter.] Lieutenant Fryday. Proudly, ma'am. Senator Feinstein. Well, I am very proud of you, so that is what I wanted to say. [Laughter.] Senator Feinstein. Isn't it true that some of the 80 Gitmo detainees who have not been cleared for transfer now, as you have spoken, can only be prosecuted in a Federal criminal court because the charges of conspiracy and material support to terrorism are no longer available in the military commission? Is that not correct? Lieutenant Fryday. That is correct, ma'am. Senator Feinstein. So what we are saying is for those, if there is no alternative prosecution in a Federal court, they remain without charge or trial until the end of time. Lieutenant Fryday. Let me clarify, ma'am. Material support for terrorism and conspiracy is a charge that can be charged in Federal crime. So it is not something that can be charged in a military commission, but is a charge that is available to the Federal court. Senator Feinstein. But if you are going to keep them in Guantanamo, they cannot be tried by a military commission. Is that not correct? Lieutenant Fryday. That is correct, ma'am. They cannot be tried. Senator Feinstein. So the only hope would be they would have to be transferred out to be tried in a Federal court. Lieutenant Fryday. Either that or go through a meaningful process like the PRBs that have just been set up where our country determines that at some point they are no longer a threat, in which case they could be transferred if they meet the restrictions that have been---- Senator Feinstein. Let us talk. See, I have believed from the days of Colonel Davis down there that the military commission is an ineffective instrument. How many cases have they actually tried? Lieutenant Fryday. There have been six convictions in the military commissions. Senator Feinstein. And explain to us exactly what those six convictions are and who is still serving? Lieutenant Fryday. So the six convictions were for--the names are Hicks, Hamdan, al Bahlul, Khadr, al Qosi, Noor--and Majid Khan. Because I did not serve on those trials, I do not know all the details of each case. We do know that Hamdan has since been overturned by the D.C. Circuit court for saying, as I described in my testimony, the charge that he was charged with, material support for terrorism---- Senator Feinstein. Well, maybe I could give them to you then. Hamdan received a 5-month sentence. He was sent back to his home in Yemen to serve the time before being released in 2009. In October 2012, the D.C. Circuit vacated his conviction for material support because the charge was not recognized as a violation of the international law of war. Hicks was the first person convicted in a military commission. When he entered into a plea agreement on material support on terrorism charges in March 2007, he was given a 9- month sentence, which he mostly served back home in Australia. Al Qosi pled guilty to conspiracy and material support. A military jury delivered a 14-year sentence, but the final sentence handed down in February 2011 was 2 years, pursuant to his plea agreement. He has returned to Sudan at the conclusion of his sentence in July 2012. Noor Muhammed pled guilty to conspiracy and material support. A judge delivered a 14-year sentence, but the sentence will be less than 3 years pursuant to his plea agreement. Because of credit for time served, he could be eligible for release to Sudan in December of this year. One last one, and there is a point. Omar Khadr pled guilty in a military commission to murder, material support to terrorism, and spying. He was sentenced to 8 years, but was transferred to a Canadian prison where he will serve out his remaining sentence and be eligible for parole after he serves a third of the sentence. Now, there are a couple more here, and one of them is your client. Here is my point: The sentences were very few and very low, essentially, from the military commission. And I have sat here over the years and wondered: What are we doing? Why are we maintaining this farce of a military commission which really does not work? And we have had different people down there trying to make it work, but to the best of my knowledge, no one has been successful. Last month, when I was down there, I saw a very spanking new courtroom with nothing scheduled to go forward. And it just seems to me that everything down there is so deceiving and is really a kind of untruth about the American way, about the American judicial system, about America's humanitarian treatment of prisoners. Force feeding is not humanitarian, and yet it goes on and on and on. There is no end to this war yet that we know of. So unless the facility is closed, it will continue to go on. Do you have any other comment you would like to make, or General Eaton? Mr. Gaffney. Senator, could I just make a quick comment, if I may? Senator Feinstein. Sure. Mr. Gaffney. I think this question of whether it is going to go on and on goes back to the point that I was trying to make earlier. That is not entirely up to us. The President's saying that it has to end is only possible if we surrender, if we submit. And, specifically, this question of will there be more of this, you know, recruiting if we leave it open I think begs the question: Compared to what? Senator Feinstein. Sir---- Mr. Gaffney. Does it--does it get worse if you actually have more of these jihadists inspired by our submission? And that is what I am concerned about, ma'am. Senator Feinstein. I read the intelligence daily. I know what is happening. I also know that Guantanamo contributes nothing positively. It contributes nothing that a Federal prison could not do better. It contributes nothing that a Federal court could not do better. So---- Mr. Gaffney. But if we close it, that may contribute quite negatively, is my concern, to inspiring our enemy. Senator Feinstein. I profoundly disagree with you. Mr. Gaffney. Understood. Senator Feinstein. I think it will send a signal that finally we have learned something. I saw the people there. The doctor is right. These are not robust specimens any longer. It is a very different picture, I think, than people imagine. Doctor, do you not agree? General Xenakis. Yes, ma'am. Senator Feinstein. So---- Mr. Gaffney. Look at the prisoners coming out of Israel, ma'am, and how they are regarded and how they inspire jihadism. Senator Feinstein. We are not---- Mr. Gaffney. No, but it is a similar phenomenon, and that is why I call to your attention this Shariah underpinning of the war we are engaged in. Senator Feinstein. I hope someday you go take a look. In any event, I want to say thank you, Mr. Chairman. I appreciate being here. Chairman Durbin. Thank you very much, Senator Feinstein. We have two House Members who were, unfortunately, delayed by votes, and I have never seen this happen in the Senate before. We are going to let House Members testify. How about that? This may bring this institution down, if nothing else has. [Laughter.] Chairman Durbin. I am sure it will not, having served in the House. We are honored to have Congressman Adam Smith in his ninth term, Ranking Member of the House Armed Services Committee. He has a very lengthy and impressive bio, which I am not going to read. I hope you understand. And Congressman Mike Pompeo, who is--he enrolled at West Point and graduated first in his class. I do not know how long you have been in Congress, Mike. How long? Representative Pompeo. Thirty months. Chairman Durbin. Thirty months. So we are going to ask each of them to make a statement, and if the panel would not mind staying for just a few moments, so each of them would speak for 5 minutes, and then if there are any further questions from Senator Cruz or myself or Senator Feinstein. Congressman Smith. STATEMENT OF HON. ADAM SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON Representative Smith. Thank you, Mr. Chairman, and I am honored that the Senate would have us over here. We should work together more often, I think all would agree. I am just here to argue that we should close Guantanamo Bay, and a number of issues have been raised which are separate from that question. I am not here to argue that we should stop detaining and interrogating suspects or that we should even necessarily release any number of the suspects that are at Guantanamo. Those are difficult questions, and do not get me wrong, I have positions on that. I certainly think that the 84 inmates that we have designated for release as being acceptable risks should be released. But that is an entirely separate question from where we hold them. And the argument that I make is that Guantanamo Bay, you have to balance the cost and the benefit, and there is literally no benefit to keep Guantanamo Bay open. All of the arguments that I have heard about the necessity to detain and interrogate, the necessity to continue to fight the war, which I agree with completely, you know, the necessity to protect ourselves from our enemies, all of that can be accomplished by holding them within the United States. And it has just been stupefying to me the last several years the degree to which people seem to have become unaware of the fact that we already hold hundreds of terrorists in United States supermax prisons, including Ramzi Yousef, the Blind Sheikh, Abdulmutallab, many notorious Al-Qaeda operatives. We continue to do that right here in the U.S., safely, efficiently, and, I might add, very much more cost-effectively. Number one, the average cost of an inmate is estimated at $1.5 million a year in Guantanamo. Now, there will be transition costs to shut down Guantanamo and open up here. But in the long run, there is no question that it is cheaper to hold them here in the U.S. than it is in Guantanamo. So the question is: What is the benefit of keeping that prison open? There is absolutely none. There has been spurious arguments made about somehow more constitutional rights will apply if they come to the U.S., when the Supreme Court has already ruled that Guantanamo is treated like the U.S., that is why they granted habeas under the people in Guantanamo. There are no greater constitutional rights here in the U.S. than out there. There is no benefit. So what is the cost? The cost I think is, well, number one, the cost, the sheer amount of money that we have to spend to maintain this facility. But understand how the international community looks at Guantanamo. It was opened in the first place as an effort to get around the United States Constitution. It was the hope that if we held them outside of the territorial United States, we would not have to abide by those pesky constitutional values and rules that we hold so dear in this country. And the world knows that, and it is an international eyesore as a result. Now, as it turns out, as I said, the Supreme Court said, ``Nice try, but you are effectively in control of them, so the Constitution does, in fact, apply.'' But Secretary Gates, George W. Bush, John McCain, many hard-core Republicans, who I think would take a back seat to no one in prosecuting this war, have said that we need to close this prison because it is hurting us with our allies and is inspiring our enemies. Now, I am not naive. I am not going to tell you that the only reason Al-Qaeda attacks us is because of Guantanamo Bay. Far from it. But it certainly stands out there as one recruiting tool that, again, is wholly unnecessary. So what I propose--and I proposed an amendment on the House side--is for an orderly way to close the prison. The President has also put out a plan--I know he has occasionally been accused of not having one, but I actually have it in my file folder right next to me--for how we should go about Guantanamo Bay. And, again, it is not even about recidivism or any of these other--those are arguments that you can have separate. This argument is not about whether or not we should hold them. It is about where we should hold them. And holding them in Guantanamo Bay hampers our efforts to successfully prosecute the war against Al-Qaeda. It continues to be a piece of evidence that our allies use to say, well, we do not want to cooperate with the U.S. because we do not like the way they implement their Constitution, we do not like the way they treat prisoners. That hampers our ability to successfully prosecute this war. And the only argument that is left hanging out there is somehow we cannot safely hold these people in the U.S. And, again, I find that argument to be patently ridiculous because we are safely holding hundreds of terrorists, not to mention mass murderers and pedophiles and some of the most dangerous people in the world. If the United States of America is incapable of successfully holding a dangerous inmate, then we are all in a world of hurt, Guantanamo or no Guantanamo. And I hope we understand that. And, also, the notion that this will somehow inspire Al- Qaeda more, I hate to tell you, but Al-Qaeda is sufficiently inspired right now. They are doing everything they can to attack us. And I applaud the various efforts that we have put forth to stop them. But the idea that instead of having 400 terrorists inmates we have maybe 484 in the U.S. is going to somehow massively increase the threat, well, it is just ridiculous on its face. There is no benefit. The cost is great. Let us get around to closing Guantanamo as soon as we can. [The prepared statement of Representative Smith appears as a submission for the record.] Chairman Durbin. Thanks, Congressman Smith. Congressman Pompeo. STATEMENT OF HON. MIKE POMPEO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KANSAS Representative Pompeo. Thank you, Chairman Durbin, thank you, Ranking Member Cruz. It is an honor as a Member of the House to be here with you today. I agree with Mr. Smith only so far as that Al-Qaeda is absolutely very much inspired. I was at Guantanamo Bay this past May, and I want to dispel a couple of facts right up front about the situation on the ground. First, every American should be proud of the integrity shown by those U.S. military personnel caring for these detainees. Their work is difficult, but they bring the highest honor and care to the work they do there with the members of Joint Task Force Gitmo. Second, there are no human rights violations occurring at Guantanamo Bay. There is no doubt that the detainees are held in conditions---- [Audience outburst.] Representative Pompeo. That meet or surpass the standards-- -- [Chairman gavels to order.] Representative Pompeo. Thank you. There is no doubt that the detainees are held in conditions that meet or surpass the standards provided for under the Geneva Conventions. In fact, given the safe and secure environment that Gitmo provides, most detainees maintain significantly more freedom of movement and activity than they would in a maximum security U.S. prison. They have access to gym equipment, educational materials, entertainment, and top-rate medical and dental care. The health care matches the level of the care received by our U.S. military personnel. I would be remiss, given the situation, if I did not talk a little bit about the current hunger strike there. This is a political stunt. It is orchestrated or encouraged at least in part by counsel for the detainees and should not be rewarded. Claims that the efforts by our guards to force-feed those Gitmo detainees currently refusing nutrition are inhumane and should be ceased are simply wrong. The methods used by military personnel to feed those detainees who wish not to feed themselves meet court-approved standards and are carefully monitored by medical personnel and those in command. It is right to continue to provide these detainees nutrition. I want to talk about the constitutionality of Gitmo. Some folks continue to question it. We have to start with the basic fact. We continue to be at war with Al-Qaeda and associated extremist groups who daily seek to kill Americans. As long as these groups fight us, we remain at war. And as the Supreme Court made clear in Hamdi and as courts have confirmed many times since, the capture and detention of enemy combatants is a necessary incident to the conduct of this war. There is no question about the constitutionality of the detention at Guantanamo Bay. Let us talk about the merits, the policy concerns surrounding it. First of all, current detainees have been off the battlefield for some time, yet they may well continue to provide valuable intelligence to U.S. intelligence collectors. But we should not focus just on those who are there today. As I said, we are still engaged in a counterterrorism battle all around the globe. The continued need to have a secure location in which to detain captured enemy combatants remains. The intelligence collection that can occur at these locations is enormous and central to our efforts to continue to identify, capture additional enemy combatants, and, in fact, defeat our enemy. I just returned from a trip to Afghanistan as well, and I can assure you that there are many folks there that the options would either be to kill or capture, and we will serve our national security interests far better if we are able to capture them. We talk about options. What are the alternatives? We could release Gitmo detainees to third-party countries. But as I heard Senator Cruz speak about, we have a very high recidivism rate. Whether it is 10 percent or 15 percent or, as the studies have shown, one-quarter of those detainees, I can assure you that we will have American servicemembers killed as a result of releasing detainees from Guantanamo Bay. Indeed, just within this past week, Al-Qaeda conducted a major attack on two facilities in Iraq, releasing 500, some of whom were senior Al-Qaeda warriors. The transfer to third parties is simply not a reasonable solution to keeping America safe. Moreover, transfer to third parties also presents another risk, a human rights risk, namely, that the nation to which we send those detainees will torture those folks. We cannot permit that. Second, the other option is to bring them back to the United States. Twice within the last 48 hours in the U.S. House of Representatives, Members have offered amendments to the defense appropriations bill. Twice those bills have been defeated. The American people and their House of Representatives understand that bringing these detainees back to the United States is not a workable solution. Last, I want to talk about the damage that has been done to national security as a result of this administration's policies and rhetoric surrounding Guantanamo Bay. After over 4 years in office, the President continues to insist that we pursue a political goal and then, later, figure out a way to meet the real mission. The President knows, he knows full well--indeed, he has spoken about it--that not all of those prisoners are in any way, shape, or form transferable or returnable, including the 9/11 five. No one believes they are going to come back, including this President, yet he continues to use the rhetoric of Guantanamo Bay closure. You know, the President seems far more concerned in my judgment with mollifying the grievances of Al-Qaeda than defending against the real dangers these enemy combatants pose to the American people. By insisting on a catch-and-release counterterrorism strategy or a kill terrorism strategy, the President continues to do great harm to America's national security interests. Thank you for the time today. I yield back. [The prepared statement of Representative Pompeo appears as a submission for the record.] Chairman Durbin. Thank you very much, Congressman. Senator Whitehouse, do you have any questions of the panel or Congressmen? Senator Whitehouse. I had a question for the panel. Just a moment of background on it. I grew up the son of a Foreign Service family and spent a certain amount of time in Africa and Southeast Asia and was, I felt, the beneficiary of the good will and good example that my country represented around the world. I never was able to articulate it very clearly until I heard President Clinton, who is a master articulator, say that the power of our example as Americans has always been more important in the world than any example of our power. And I recently ran across Daniel Webster's first Bunker Hill Memorial oration from 1825, where he said, ``The last hopes of mankind therefore rest with us''--meaning Americans. ``And if it should be proclaimed that our example had become an argument against the experiment''--the ``experiment'' being our experiment in democracy--he continued, ``the knell of popular liberty would be sounded throughout the Earth.'' So I would just like those of you who represent our country overseas to react to those thoughts and explain where in the range of hard military power, soft economic power, and diplomatic persuasion you think the example that America presents to the world stands in the assets that we bring to bear to support and defend our interests around the world. General Eaton. Senator, my name is Paul Eaton, and thank you very much. Human Rights First has stenciled on their wall a quote from one of my favorite Presidents, Dwight Eisenhower: ``Whatever America hopes to bring to pass in the world must first come to pass in the heart of America.'' Do we want America to be represented by a young man with an M4 carbine? Or do we want America to be represented by a man who flew back with me from Africa who had just built a very large industrial chicken farm in an African country? And I will tell you that as a soldier, I would far better want representation by a man who knows how to bring agricultural expertise than my sons and daughter with rifles overseas. So we are far better served by our economic prowess and by our diplomatic prowess than by our extraordinarily fine military. Thank you. Mr. Gaffney. Senator, I am not sure whether I qualify as one of your candidates for answering this, but if I may---- Senator Whitehouse. You are on the panel. You can. Mr. Gaffney. I am. Thank you. I would just offer that the idealism that you have described and that the general has just referred to is certainly commendable, and I think it is something that we should strive for. And yet it has to be tempered by a certain realism, and that is, when you are confronting people who are not moved by our example and may be affected by our power, I think you need to be able to bring both to bear. And in this case, I had a colloquy--I think you were out of the room--with Senator Feinstein about this. I just have to return to it, if I may. To the extent that an enemy like the one we confront today actually perceives weakness not as dissuasive or exemplary or desirable but as an inducement to violence against us, the dangers of making a miscalculation here, not because it is the way we would like things to be, but because it is the way our enemy perceives and responds to these things, submission is their goal. Our submission is their goal, and I guarantee you they will perceive the closure of Gitmo as evidence of accomplishing it. Senator Whitehouse. I just have to react to that because I have to disagree. George Washington led armies that left bloody footprints in the snows of Valley Forge with no certainty that their enterprise would succeed and that pledging their lives and fortunes and sacred honor would not put them at the end of a rope. And yet they did not torture Hessians when they caught them. They did not force-feed them. You can go on and on, through World War II, the example of Britain in the shadow of Hitler's Nazism, throwing out of their secure intelligence facility somebody who had the nerve to lay hands on one of their prisoners, partly because they knew it was bad practice in intelligence gathering, partly because it was not who they were. And we are still proud of the way Britain stood up against the Nazi menace even before we got into the war, when they stood alone, and Winston Churchill is going to be a figure in history because of that. And I think the fact that over and over again they refused to use those techniques is actually a measure of their strength. And you could just as easily make the argument that we are strengthening Al-Qaeda and our enemies by treating them as if they were more dangerous than Nazi Germany, more dangerous than the opponents of our American Revolution, and require us to veer from standards of decency and conduct that have characterized this Nation since its inception. Chairman Durbin. Senator Whitehouse, are you finished? Senator Whitehouse. I am. Chairman Durbin. Thank you. Before we adjourn this meeting--and I thank the panel and my colleagues--I would like to ask you to note one particular thing. Fifteen years ago today, at this moment, at 3:40 p.m., two of the officers of the Capitol Police were shot down and killed in the Capitol by a madman with a gun. They were Officer Jacob Chestnut and Detective John Gibson. And each year at this time, when the Senate and House are in session, we have a moment of silence in their memory, and I would like to ask all those who are in attendance to please join me, if you can, and stand for a moment of silence in their memory. [Moment of silence.] Chairman Durbin. Thank you very much. If there are no further questions, I have a script to read. Thanks again to my colleagues from the House for joining us here today. There has been a great deal of interest in today's hearing. Many individuals and organizations submitted testimony, including Retired Brigadier General David Irvine, 26 retired admirals and generals supporting the closure of Guantanamo--the full list is going to be added in the record--Amnesty International, the Constitution Project, the National Religious Campaign Against Torture, the Center for Victims of Torture, Reprieve, Air Force Captain Daphne LaSalle Jackson, Tom Wilner, and my friend Tom Sullivan, the former U.S. Attorney for the Northern District of Illinois. I would also like to note that two other attorneys, close friends of mine in Chicago, in addition to Tom Sullivan, Lowell Sachnoff and Jeff Coleman, are volunteer attorneys lieutenant representing detainees as well. They give extraordinary amounts of time in help bringing justice to this situation. We also received more than a dozen statements from family members of those detained in Guantanamo Bay. I particularly want to thank the human rights organization Reprieve for their assistance in ensuring these individuals were allowed to share their perspective. Without objection, I would like to place these statements in the record. [The information referred to appears as submissions for the record.] Chairman Durbin. The hearing record is going to be open for a week to accept additional statements. Written questions for the witnesses will also be submitted by the close of business 1 week from today, no later. And we will ask the witnesses to respond promptly if they can. If there are no further comments from our panel or colleagues, I want to thank the witnesses for attending and my colleagues for participating. There is difference of opinion, obviously expressed today, and that is what this system of Government is all about, that we would come together with differences of opinion in a peaceful gathering and debate an important policy relative to our values and our security. And I think this Subcommittee, which has a responsibility to deal with issues involving the Constitution, human rights, and civil rights, has a particular responsibility to raise even these controversial issues on a regular basis. I am sorry that it has been 5 years since we have had a hearing on Guantanamo. I can guarantee you that, if it continues to be open, there will be another hearing very, very soon. At this point this meeting of the Subcommittee stands adjourned. [Applause.] [Whereupon, at 3:44 p.m., the Subcommittee was adjourned.] [Additional material submitted for the record follows.] A P P E N D I X Additional Material Submitted for the Record [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]