[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                     HABEUS CORPUS AND DETENTIONS 
                           AT GUANTANAMO BAY 

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 26, 2007

                               __________

                           Serial No. 110-152

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia  JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel



















                            C O N T E N T S

                              ----------                              

                             JUNE 26, 2007

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     3

                               WITNESSES

Mr. Gregory Katsas, Principal Deputy Associate Attorney General, 
  Office of the Associate Attorney General, U.S Department of 
  Justice
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Lieutenant Commander Charles D. Swift, Judge Advocate General 
  Corps, U.S. Navy, Office of Military Commissions
  Oral Testimony.................................................    20
  Prepared Statement.............................................    22
Mr. William H. Taft, IV, Of Counsel, Fried, Frank, Harris, 
  Shriver, Jacobsen, LLP
  Oral Testimony.................................................    31
  Prepared Statement.............................................    32
Mr. Bradford Berenson, Partner, Sidley Austin, LLP
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36
Mr. Jonathan Hafetz, Litigation Director of the Liberty and 
  National Security Project, Brennan Center for Justice, New York 
  University School of Law
  Oral Testimony.................................................    70
  Prepared Statement.............................................    72

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, 
  Chairman, Committee on the Judiciary, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........    98

                                APPENDIX

Material Submitted for the Hearing Record........................   123


                     HABEUS CORPUS AND DETENTIONS 
                           AT GUANTANAMO BAY

                              ----------                              


                         TUESDAY, JUNE 26, 2007

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:04 p.m., in 
room 2237, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Wasserman Schultz, 
Ellison, Conyers, Watt, Cohen, Jackson Lee, Franks, Pence, and 
Jordan.
    Staff present: Robert Reed, Majority Counsel; David 
Lachmann, Subcommittee Chief of Staff; Susana Gutierrez, 
Majority Professional Staff Member; Paul Taylor, Minority 
Counsel; George Slover, Majority Counsel; Crystal Jezierski, 
Minority Counsel; and Kanya Bennett, Majority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order.
    Before I begin, I would remind all those in attendance that 
the rules of the House of Representatives do not permit 
demonstrations of any kind by the spectators. The work we are 
doing today is very important. We have the opportunity to get 
answers to questions that go to the core of our liberties and 
the manner in which the current war or wars are being 
conducted. So I hope everybody will observe the rules of the 
House.
    Today's hearing will examine the current state of the right 
of habeas corpus as it applies to the policy of detentions at 
Guantanamo Bay.
    The Chair recognizes himself for 5 minutes for an opening 
statement.
    This hearing is the second in our series titled, ``The 
Constitution in Crisis: The State of Civil Liberties in 
America.''
    The right to petition for a writ of habeas corpus, the 
great writ, has been a fundamental pillar of our legal system 
since the time of Magna Carta in 1215. So fundamental to our 
system of laws and our liberties did the framers consider it 
that the great writ was enshrined in article I of our 
Constitution several years before adoption of the Bill of 
Rights.
    Alexander Hamilton in ``Federalist Paper No. 81'' explained 
the need to preserve the writ of habeas corpus by quoting 
Blackstone: ``To bereave a man of life or by violence to 
confiscate his estate without accusation or trial would be so 
gross and notorious an act of despotism as must at once convey 
the alarm of tyranny throughout the whole Nation. But 
confinement of the person by secretly hurrying him to jail, 
where his sufferings are unknown or forgotten, is a less 
public, a less striking and therefore a more dangerous engine 
of arbitrary government.''
    Hamilton goes on to say that: ``As a remedy for this fatal 
evil, Blackstone is everywhere peculiarly emphatical in his 
encomiums on the habeas corpus act, which in place he calls the 
bulwark of the British constitution.'' And so it has been a 
bulwark of our Constitution and our freedoms until now.
    This Administration seems to believe that it has greater 
wisdom and virtue than governments of the last 800 years, that 
it can be trusted to make correct and just determinations about 
who should be locked up without any independent review. This 
President claims the power to point his finger at anybody who 
is not an American citizen and say, ``You are an enemy 
combatant because I say so. And because I say so, we are going 
to keep you in jail forever, with no hearing, no writ of habeas 
corpus, no court proceeding, no confrontation of witnesses, no 
probable cause, no due process of any kind.'' No executive in 
an English-speaking country has claimed such tyrannical power 
since before Magna Carta 800 years ago.
    One of the complaints in the Declaration of Independence--
and no one today reads the Declaration of Independence--we just 
read the first couple paragraphs, ``We hold these truths to be 
self-evident,'' and so forth. But most of the Declaration of 
Independence is a list of complaints against tyrannical actions 
of the British king, tyrannical acts so terrible that they 
justified violent revolution for independence.
    One of the complaints against the king was, ``He has 
combined with others"--Parliament; we didn't want to name 
Parliament--"He has combined with others to deprive us of the 
benefits of trial by jury.'' We now seem to be going George III 
one better. We now conspire to deprive people of the benefits 
of trial, period, by jury or otherwise. It is an extraordinary 
and dubious claim.
    What has been the result? A violation of our laws and 
values and a self-inflicted stain on our national honor. Even 
the Administration will now concede that it has held and 
continues to hold individuals who have done nothing against the 
United States, who are not a threat to the United States. Many 
of those people have sat in Guantanamo for years, often in 
solitary confinement. Some have been subjected to torture or 
creative questioning or whatever euphemism you prefer.
    Benjamin Franklin observed that, ``Those who would give up 
essential liberty to purchase a little temporary safety deserve 
neither liberty nor safety.'' A devil's bargain, to be sure, 
but if this Administration has asked us to sacrifice liberty, 
has this lawlessness really made us any safer? Is there really 
no alternative than to abandon the rule of law?
    I continue to believe that we have no alternative but to 
defend the rule of law. That is why we are here today.
    The current policy has created a law-free zone outside our 
civil law system, outside our system of military law, outside 
our criminal justice system, outside the laws of war, outside 
every domestic and international obligation this Nation has 
ever undertaken voluntarily or demanded of other countries.
    We have faced many threats over the years, and we have 
prevailed. At times, we have forgotten who we are and acted in 
ways which, in calmer times, we have deeply regretted, such as, 
for example, the Alien and Sedition Acts, the Palmer raids, the 
interment of Americans of Japanese descent during World War II. 
One day, we will look back on this period with the same sense 
of shame and regret.
    Today's witnesses will address the legal and practical 
issues of the policy as it now exists.
    As many of you know, I have introduced legislation to 
restore the right of habeas corpus, simply to determine whether 
someone is being lawfully detained or is being detained under 
unlawful conditions. This Administration's credibility, however 
damaged, is beside the point. Blackstone was right, Hamilton 
was right, Franklin was right. Our Nation has been right for 
over 200 years. No President, no matter how virtuous, should 
ever have the power, should ever have the authority to throw 
people into prison, to make them disappear and not to have to 
answer to anyone for his actions. No person should ever be 
subject to disappearance. We used to talk about Argentina under 
the junta and the desaparecidos. We should have no such thing 
in the United States.
    I look forward to the testimony of our witnesses.
    And I can think of no more important issue for the 
Subcommittee on the Constitution, Civil Rights and Civil 
Liberties to consider. Without the right of habeas corpus there 
is no guarantee of our liberty, there is no guarantee of our 
life.
    I yield back the balance of my time.
    I would now recognize the distinguished Ranking minority 
Member, the gentleman from Arizona, Mr. Franks, for his opening 
statement.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, habeas corpus is an ancient right that grants 
those held by the government the right to require the 
government to justify their confinement. While the Constitution 
references the habeas right, it does not create that right. It 
has always been recognized that such a right is granted by 
statute and enacted by the legislature.
    The people have always found it appropriate in America that 
unlawful enemy combatants, such as terrorists who take up arms 
against Americans and disguise themselves as civilians in 
violation of the laws of war, are appropriately not tried in 
Federal courts but by military courts.
    That is because terrorists are not just common criminals. 
They are blood-thirsty murderers who are plotting in disguise 
to kill as many innocent Americans as possible. They see 
themselves at war with all Americans, and should be treated as 
such.
    General George Washington used military courts to try 
spies. The co-conspirators of John Wilkes Booth, who 
assassinated President Lincoln, were tried by military 
commissions, as were members of the KKK.
    During World War II, in a 1940 case of ex parte Quirin, the 
Supreme Court held that enemy combatants who do not wear the 
uniform of a national army and those who sneak into this 
country to wage war and destroy innocent human life are subject 
to the trial and punishment by military tribunals, not ordinary 
Federal courts.
    Indeed, the Supreme Court upheld a trial by a military 
commission of saboteurs that included a naturalized citizen who 
was executed within 60 days of his capture.
    A few years later, in Johnson v. Eisentrager, the Supreme 
Court held that ``not one word can be cited'' and ``no decision 
of this court supports the view'' that the Constitution extends 
its protection to foreign enemies.
    As a side note, Mr. Chairman, if indeed that were true, 
engagement in the battlefield would be impossible, because we 
would have to have probable cause at the moment. We would have 
to give them their rights to all kinds of insane notions. It 
would make war absolutely impossible.
    The Supreme Court----
    Mr. Nadler. Since the gentleman addressed me, would he 
yield for a second?
    Mr. Franks. I sure would.
    Mr. Nadler. Thank you.
    I would simply point out, in terms of what you were just 
saying--and I think that this whole hearing may turn on that, 
in effect, and that is why I am glad you mentioned it--the 
Supreme Court decisions that you talked about dealt with people 
whose status as combatants, as foreign enemies, were not 
questioned: the four German saboteurs, et cetera. And whether 
citizens of this country or not, they were landed here by 
submarine, and no one questioned that they were, in fact, enemy 
combatants.
    What we are dealing with here with habeas corpus, in many 
cases, are people who claim they are not enemy combatants, who 
may be permanent, legal residents of the United States, picked 
up, alleged by the President or by somebody in the Federal 
Government to be an enemy combatant but they deny that. So the 
question isn't, how do you handle enemy combatants? How do you 
handle people who are alleged to be enemy combatants who claim 
they aren't? And that is where we need habeas corpus.
    Mr. Franks. Reclaiming my time, Mr. Chairman, I think if 
German saboteurs were to land on the shores of America today, 
they would find that they could probably get away with saying 
something as ridiculous as, ``Well, we didn't mean to do it.'' 
And there certainly would be, unfortunately, support among the 
liberal intelligentsia in this country to back them up on that.
    But with that said, the Supreme Court noted that habeas 
corpus rights afforded to enemy combatants would ``hamper the 
war effort and bring aid and comfort to the enemy. Habeas 
corpus proceedings would diminish the prestige of our 
commanders, not only with the enemies, but with wavering 
neutrals.
    ``It would be difficult to devise a more effective 
fettering of a field commander than to allow the very enemies 
he is ordered to reduce to submission to call him into account 
in his own civil courts and divert his efforts and attention 
from the military offensive abroad to the legal defensive at 
home.
    ``Nor is it unlikely that the result of such enemy 
litigiousness would be a conflict between judicial and military 
opinion, highly comforting to the enemies of the United 
States.''
    We were attacked on 9/11 and 3,000 innocent American 
citizens were murdered by lawless terrorists disguised as 
civilians. Congress authorized the President to use all 
necessary force to stop future attacks.
    The Supreme Court held that detention is ``so fundamental 
and accepted an incident to war as to be an exercise of the 
`necessary and appropriate force' Congress has authorize the 
President to use.''
    Even so, Congress enacted legislation that provides 
terrorists with the following rights, far beyond what is 
required by the Constitution, including the right to a full and 
fair trial, a presumption of innocence, government-provided 
defense counsel, an opportunity to obtain witnesses and 
evidence, an obligation on the part of government to disclose 
exculpatory evidence to the defense, a right to cross-
examination of witnesses, a right not to testify against 
themselves, and a right at a minimum of two appeals: one 
through the military justice system and the Federal courts.
    Clearly, far from suspending the writ of habeas corpus, 
Congress has gone far beyond what the Constitution requires. 
Indeed, the protections in the Military Commissions Act are 
considerably more generous to those who seek to kill innocent 
Americans than anything the U.S. or any other nation in the 
history of the world has previously afforded its adversaries.
    The new Habeas Corpus Restoration Act of 2007 would throw 
out the current system for detaining terrorists and would treat 
Osama bin Laden as if he were a common thief with citizenship 
in the United States. Terrorists would have one of the most 
awesome weapons in the American legal system, and that is the 
power to shield themselves from anti-terrorism efforts by 
miring them in years of costly litigation.
    If this Congress makes the mistake of granting 
constitutional protections to the most insidious enemies this 
Nation has ever faced, the Congress itself, and not the 
Constitution, will have chosen that tragic course.
    Mr. Chairman, I yield back.
    Mr. Nadler. Thank you.
    Let me simply say that I think the Nazis were more 
insidious.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I would ask other Members to submit 
their statements for the record, without objection. Without 
objection, all Members will have 5 legislative days to submit 
opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing.
    We will now turn to our witnesses. As we ask questions of 
our witnesses, the Chair will recognize Members in the order of 
their seniority on the Subcommittee, alternating between 
majority and minority, provided the Member is present when his 
or her turn arrives. Members who are not present when their 
turn begins will be recognized after the other Members have had 
the opportunity to ask their questions. The Chair reserves the 
right to accommodate a Member who is unavoidably late or only 
able to be with us for a short time.
    Gentlemen, your written statements will be made part of the 
record in its entirety. I would ask that you now summarize your 
testimony in 5 minutes or less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains, the light will switch 
from green to yellow, and then to red when the 5 minutes are 
up. We don't give out fines here for traffic violations, but we 
do ask that you try to observe the red light.
    Our first witness is Gregory Katsas. He is the principal 
deputy associate attorney general of the United States. Mr. 
Katsas was actively involved in the Rasul, Hamdi and Hamdan 
cases in which the Supreme Court addressed the rights of aliens 
detained as enemy combatants at Guantanamo Bay. He also 
recently argued Boumediene v. Bush, in which the D.C. Circuit 
held that the Guantanamo detainees have no constitutional right 
to habeas corpus. He served as a law clerk to the late Judge 
Edward Becker of the United States Court of Appeals for the 3rd 
Circuit and to Justice Clarence Thomas of the United States 
Supreme Court.
    Our next witness is Charles Swift. He is a lieutenant 
commander in the Judge Advocate General's Corps of the United 
States Navy. He is currently assigned to the Department of 
Defense Office of Military Commissions, where he serves as lead 
counsel for Salim Ahmed Hamdan. He graduated from the U.S. 
Naval Academy in 1984, Seattle University Law School cum laude 
in 1994, and Temple University School of Law, where he obtained 
a LMM in trial advocacy with honors.
    Our next witness, William Howard Taft IV, is of counsel 
resident with Fried, Frank, Harris, Schriver & Jacobson, LLP. 
Mr. Taft originally joined the law firm in 1992. Prior to 
joining Fried, Frank, Mr. Taft served as U.S. permanent 
representative to NATO, deputy secretary of defense, acting 
secretary of defense and as general counsel for the Department 
of Defense. His most recent government service prior to 
returning to Fried, Frank was as a legal adviser to the 
Department of State in the current Bush administration. Mr. 
Taft received his J.D. in 1969 from Harvard Law School and his 
B.A. in 1966 from Yale University.
    Our next witness, Bradford Berenson, currently is a 
litigation partner with Sidley and Austin in Washington. Prior 
to joining Sidley and Austin, Mr. Berenson served as associate 
counsel to the President of the United States from January 2001 
through January 2003. Mr. Berenson holds a B.A. summa cum laude 
from Yale University and a J.D. magna cum laude from Harvard 
Law School. Following graduation from Harvard Law School, he 
clerked for Judge Laurence H. Silberman of the U.S. Court of 
Appeals of the District of Columbia Circuit and for Justice 
Anthony M. Kennedy of the United States Supreme Court.
    Our final witness, Jonathan Hafetz, is litigation director 
of the Liberty and National Security Project at the Brennan 
Center for Justice at New York University Law School, which, I 
might add, is in my congressional district and of which we are 
very proud. He is actively involved in post-9/11 litigation 
involving detainee rights and is lead counsel on several 
leading detention cases, including al-Marri v. Wright. Mr. 
Hafetz received his J.D. from Yale Law School and his B.A. from 
Amherst College, where he graduated Phi Beta Kappa and magna 
cum laude. Mr. Hafetz also holds a master's degree in history, 
with high honors from Oxford University, and serves as a 
Fulbright scholar in Mexico. Mr. Hafetz clerked for Judge 
Sandra L. Lynch of the U.S. Court of Appeals for the 1st 
Circuit and for Judge Jed Rakoff of the U.S. District Court for 
the Southern District of New York.
    I am pleased to welcome all of you.
    As a reminder, each of your written statements will be made 
part of the record in its entirety. I told you this already, 
but here it is again. I would ask that you now summarize your 
testimony in 5 minutes or less. To help you stay within that 
time, I told you about the light already.
    Before we begin, it is customary to swear in our witnesses.
    [Witnesses sworn.]
    Let the record reflect that each of the witnesses answered 
in the affirmative.
    You may be seated.
    The first witness is Mr. Katsas. And you are recognized for 
5 minutes, sir.

    TESTIMONY OF GREGORY KATSAS, PRINCIPAL DEPUTY ASSOCIATE 
ATTORNEY GENERAL, OFFICE OF THE ASSOCIATE ATTORNEY GENERAL, U.S 
                     DEPARTMENT OF JUSTICE

    Mr. Katsas. Mr. Chairman, Members of the Subcommittee, I 
appreciate this opportunity to discuss the writ of habeas 
corpus and the judicial review procedures that Congress has 
provided to the aliens captured abroad and detained as enemy 
combatants at Guantanamo Bay, Cuba.
    Since September 11, 2001, the United States has been 
engaged in an armed conflict unprecedented in our history. Like 
past enemies we have faced, al-Qaida and its affiliates possess 
both the intention and the ability to inflict catastrophic harm 
on this Nation.
    But unlike our past enemies, al-Qaida forces show no 
respect for the laws of war as they direct their attacks 
primarily against civilians. In 1 day, they destroyed the World 
Trade Center, severely damaged the Pentagon and inflicted 
greater casualties than did the Japanese at Pearl Harbor. They 
are actively plotting further attacks.
    To prevent such attacks, the United States is detaining 
some members of al-Qaida and the Taliban at a military base 
leased by the United States at Guantanamo Bay. The majority of 
the Guantanamo detainees already have been released or 
transferred to other countries, but the U.S. continues to hold 
others either because they remain a threat or because no other 
country will take them.
    Each detainee receives a hearing before a combatant status 
review tribunal, or CSRT. These CSRTs afford detainees more 
rights than ever before provided for wartime status 
determinations. They also afford more rights than those deemed 
by the Supreme Court to be appropriate for United States 
citizens detained as enemy combatants on American soil, and 
they afford more rights than those given for status 
determinations under the Geneva Convention.
    Congress has twice recently provided the detainees with 
even greater protections than that.
    In the Detainee Treatment Act, Congress prohibited the 
government from subjecting the detainees to degrading 
treatment, established additional protections for future CSRTs, 
and guaranteed judicial review for final CSRT decisions and 
final convictions by military commissions.
    At the same time, Congress barred the detainees from 
seeking judicial review through habeas corpus, consistent with 
the traditional understanding that habeas is unavailable to 
aliens held outside the United States, particularly during 
wartime.
    In the Military Commissions Act, Congress codified 
procedures for war crimes prosecutions before military 
commissions. The MCA affords defendants more rights than those 
available in past military commission prosecutions by the 
United States and more rights than those available in war 
crimes prosecutions by international tribunals. Like the DTA, 
the MCA provides for judicial review but forecloses review 
through habeas.
    Extending habeas to aliens abroad is both unnecessary and 
unwise. Over 50 years ago, the Supreme Court, in Johnson v. 
Eisentrager, held that aliens outside the United States have no 
constitutional right to habeas. As Justice Jackson explained, 
``Wartime habeas trials would bring aid and comfort to the 
enemy.'' He continued with the compelling language that Mr. 
Franks has already cited.
    The Supreme Court's decision in Rasul, which addressed only 
the scope of the state habeas statute, does not undermine the 
constitutional holding of Eisentrager.
    Habeas restrictions are also important for national 
security, as explained by Justice Jackson in Eisentrager and as 
borne out by the recent experience at Guantanamo.
    During the last few years, more than 200 habeas actions 
were filed on behalf of more than 300 of the Guantanamo 
detainees. The litigation imposed substantial burdens on the 
operation of a military base abroad in time of war, it 
preventing military commission trials from even beginning, and 
it impeded interrogations critical to preventing further 
attacks.
    These burdens would be even greater if habeas were made 
available to alien enemy combatants in larger conflicts such as 
World War II, when the United States detained more than 2 
million such combatants.
    Habeas review is also unnecessary. As I have noted, the 
CSRT and military commission procedures give the detainees 
unprecedented protections. Moreover, Congress has afforded the 
detainees with judicial review encompassing all legal claims, 
constitutional or statutory. That alone would make the existing 
scheme an adequate substitute for habeas.
    In sum, the existing system represents a careful balance 
between the interests of detainees and the exigencies of 
wartime. It is both constitutional and prudent, and it should 
not be upset.
    Thank you very much.
    [The prepared statement of Mr. Katsas follows:]
                Prepared Statement of Gregory G. Katsas

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Nadler. Thank you.
    Commander Swift, you are recognized for 5 minutes.

   TESTIMONY OF LIEUTENANT COMMANDER CHARLES D. SWIFT, JUDGE 
     ADVOCATE GENERAL CORPS, U.S. NAVY, OFFICE OF MILITARY 
                          COMMISSIONS

    Commander Swift. Thank you, Mr. Chairman and Members of the 
House Judiciary Subcommittee, for inviting me to speak to you 
today.
    My testimony is given in my capacity as Mr. Hamdan's 
military defense counsel, and it does not represent the 
opinions of either the Department of the Navy or the Department 
of Defense.
    I want to thank the Chairman and the Committee for pausing 
to carefully reconsider the issue of denying habeas rights to 
an accused designated for trial by military commission.
    I believe that any commission that is tried under the MCA 
will ultimately be determined, once again, to be unlawful 
because of inherent flaws in it. But whether I am right or not, 
a challenge to the legislation should happen immediately.
    Imagine if the courts had abstained, as Mr. Katsas and 
others had argued, back when Hamdan was in the D.C. Circuit. 
There would have been probably 20 trials held by the time the 
Supreme Court finally came down in striking down what the 
government at that time said was constitutional.
    No one would have benefited from the delay of legislative 
hearings. And I agree with Mr. Katsas: This really is about 
timing more than about hearings, at least as far as military 
commissions go. And so, the right to have pre-trial habeas to 
challenge the system is inherently important.
    Instead of doing that, instead of ensuring that the 
judiciary took a look at a sweeping act like the MCA, which 
basically rewrote military justice, the measures within section 
7 stripped jurisdiction from the Federal courts until after any 
hearing was concluded.
    The MCA is inconsistent with prior interpretations of the 
Constitution, including the suspension clause, the exceptions 
clause, equal protection and prohibitions against bills of 
attainder. To strip jurisdiction at the same time as these 
ideas are being put forth was to create an extremely dangerous 
and unwise act.
    And we saw exactly what was going to happen as soon as we 
got down to the military commissions, because not one, but two, 
military justices immediately dismissed the actions against my 
client and against a Canadian citizen because the CSRT that has 
been lauded here today was found to be inadequate to determine 
jurisdiction, because it hadn't complied with the Geneva 
Convention and it hadn't even complied with the requirements 
set out in the MCA.
    Now, normally that would be able to be appealed to a court 
created under the MCA. The problem is, the Administration 
didn't create the court. That is right: There is no place to 
appeal it right now. So we are all going to sit around while 
the Administration scrambles to put together a court.
    Now, I think even the Administration would admit that 
putting together the court after the issue is sort of closing 
the gate after the horse is out of the barn door. It is not 
going to look good. It hurts our reputation even farther.
    I have submitted in my written testimony a proposal to 
change that expedites the legislation to be heard before the 
Federal courts. It was drafted by myself and Professor Neal 
Katyal, my co-counsel, back when the MCA was being written. But 
I would submit to you here today that current events 
demonstrate its need even more.
    Right now, we are sitting. Had we passed a position for the 
D.C. Circuit to take on the cases immediately, we wouldn't be 
sitting around waiting for yet another appeal, we would be 
arguing it now, which is appropriate.
    Now, no less than Colin Powell--and I am in complete 
agreement--has argued that the entire thing should be closed 
down and we should return to our normal system of justice, be 
it military or civilian. And as a counsel, I believe that will 
work.
    But if we are not going to do that, if we continue to want 
to use the MCA system, then at least we should get an immediate 
judgement on whether it is constitutional or not, rather than 
postpone it.
    You know, I will often tell people, ``What is this all 
about?'' Well, a few years back, I was at my 20th reunion at 
the Naval Academy. And a classmate of mine cut me off, put me 
on the corner--he was a Marine colonel, the type that--I best 
describe Mark's career as, if they have shot at Americans, they 
have probably shot at Mark.
    I thought, ``Well, maybe he had some objections to my 
clients, the so-called terrorists.'' But that is not what he 
said. He said to me, ``I fight for the rule of law. Men died 
for this. Don't you dare stop.''
    Well, I think we owe it to Mark and we owe it to everyone 
else to ensure that whatever happens in Guantanamo, it 
represents the best of the rule of law.
    Thank you very much.
    [The prepared statement of Commander Swift follows:]
                 Prepared Statement of Charles D. Swift

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Nadler. Thank you.
    I now recognize Mr. Taft for 5 minutes.

         TESTIMONY OF WILLIAM H. TAFT, IV, OF COUNSEL, 
          FRIED, FRANK, HARRIS, SHRIVER, JACOBSEN, LLP

    Mr. Taft. Thank you, Mr. Chairman.
    Let me address just two issues specifically: first, whether 
upon the filing of a habeas corpus petition, a court should 
determine the lawfulness of detaining persons at Guantanamo 
Bay; and second, how those persons who are lawfully detained 
should be treated.
    Before the enactment of the Military Commissions Act last 
year, detainees in Guantanamo were entitled to have the 
lawfulness of their detention reviewed after filing petitions 
for habeas corpus. The benefits of that procedure were 
considerable, not so much for the detainees--none of whom was 
released by a court--as for establishing beyond argument the 
legitimacy of holding persons who continue to present a threat 
to the United States as long as the terrorists continue to 
fight us.
    It should be recalled in considering this question that the 
Supreme Court has on two occasions affirmed the lawfulness of 
detaining persons captured in the conflict with al-Qaida and 
the Taliban as long as they pose a threat to the United States. 
This is black letter law of war.
    Currently, whether a person poses a threat to us is 
determined by the military, with only very limited judicial 
review of the proceedings of the combatant status review 
tribunal.
    Having the determination made by a court following 
established habeas procedures would, in my view, greatly 
enhance its credibility and be consistent with our legal 
traditions.
    Beyond that, providing habeas corpus review of the limited 
number of cases at Guantanamo will impose only a very modest 
burden on the courts.
    Fewer than 400 people are currently detained at Guantanamo, 
and I understand that a substantial number of these may soon 
return to their own countries. By comparison, the courts handle 
many thousands of habeas petitions each year.
    Also, the cases are comparatively straightforward. Many 
detainees freely state that they would try to harm the United 
States if they are released. Others are known to be members of 
al-Qaida, have been captured while attacking our troops or are 
otherwise known to pose a threat to us.
    In short, practically all of the detainees at Guantanamo 
are there for a good reason and should remain in custody, 
either there or elsewhere.
    Judicial review of such cases should be relatively 
uncomplicated when compared with the voluminous trial and 
appellate records involved in most habeas cases.
    In the event, however, that a court were to be presented 
with a case that raised serious questions about the lawfulness 
of detention, surely those questions should be carefully 
considered, and no institution is better equipped by experience 
to do that than a court.
    In proposing that we return to the system that was in place 
previously, I want to stress that I do not believe that this 
issue should be treated as a constitutional one, but simply as 
a matter of policy.
    Whether Congress has the power to bar habeas review to 
aliens detained in Guantanamo is a question that will be 
resolved by the courts. My guess is that it probably does have 
that power.
    But Congress should not want to bar the habeas review that 
the Supreme Court found the aliens in Guantanamo were entitled 
to under our statutes. It should want, instead, to have the 
judiciary endorse the detention of the terrorists who threaten 
us.
    For the very reason that the law of war allows us to detain 
persons without charging them with criminal conduct for 
extended periods, it is all the more important to be sure that 
the process for determining who those people are is beyond 
reproach.
    Unlike wars between national armies, where it is easy to 
tell who the enemy is, identifying those terrorists we are 
entitled to detain is more difficult.
    Regarding the standard of treatment for detainees, I 
believe we should have followed our practice in previous wars 
of treating all captured persons in accordance with the Geneva 
Conventions, whether or not they were entitled to this. Any 
state, after all, can designate its enemies as unlawful 
combatants. In fact, North Vietnam and Iran have led the way in 
this practice in recent years.
    But we should not follow them. Our own service men, 
diplomats and ordinary citizens will pay the penalty of that 
precedent. They will be abused, tortured and perhaps never even 
accounted for.
    For more than half a century, the United States was a 
leader in opposing the use of torture and coercive methods of 
interrogation against those captured in conflict, as well as 
the deplorable practice of disappearing people. And we need to 
reclaim our reputation.
    It is often said that the war with the terrorists calls for 
new approaches melding traditional law enforcement procedures 
with the law of war. How we decide who will be detained and how 
we treat them in our custody provides a good example of this.
    Detainees are held pursuant to the law of war, but the term 
of their detention is so long and indeterminate that it has 
many of the characteristics of criminal punishment. The fact 
that each terrorist has made an individual choice to fight us, 
rather than being drafted by his government into the army, 
reinforces this criminal law perspective, which addresses 
itself to personal responsibility.
    Extending habeas review to determine the lawfulness of 
detaining the terrorist combatants, as has not been done in 
previous wars, seems to me to be an appropriate acknowledgment 
of the new situation that the conflict with the terrorists has 
created for us.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Taft follows:]
               Prepared Statement of William H. Taft, IV
    Mr. Chairman and Members of the Committee:
    I am pleased to appear in response to your invitation to discuss 
legal issues related to the detention of persons captured in our 
conflict with al Qaeda and other terrorist organizations. My testimony 
will address two issues specifically--first, whether upon the filing of 
habeas corpus petitions courts should determine the lawfulness of 
detaining persons at Guantanamo Bay and, second, how those persons who 
are lawfully detained should be treated.
    Before the enactment of the Military Commissions Act last year, 
detainees in Guantanamo were entitled under the Supreme Court's 
interpretation of the relevant authorities to have the lawfulness of 
their detention reviewed after filing petitions for habeas corpus. The 
benefits of this procedure were considerable, not so much for the 
detainees--none of whom was released by a court--as for establishing 
beyond argument the legitimacy of holding persons who continued to 
present a threat to the United States as long as the terrorists 
continue to fight us.
    It should be recalled, in considering this question, that the 
Supreme Court has on two occasions affirmed the lawfulness of detaining 
persons captured in the conflict with al Qaeda and the Taliban as long 
as they pose a threat to the United States. This is black letter law of 
war. Currently, whether a person poses a threat to us is determined by 
the military with only very limited judicial review of the proceedings 
of the Combatant Status Review Tribunal involved. Having the 
determination made by a court following established habeas procedures 
would greatly enhance its credibility and be consistent with our legal 
tradition.
    Beyond that, providing habeas corpus review of the limited number 
of cases at Guantanamo will impose only a very modest burden on the 
courts. Fewer than four hundred people are currently detained at 
Guantanamo, and I understand that a substantial number of these may 
soon return to their own countries. By comparison, the courts handle 
many thousands of habeas petitions each year. Also, the cases are 
comparatively straightforward. Many detainees freely state that they 
would try to harm the United States if they are released. Others are 
known to be members of al Qaeda, have been captured while attacking our 
troops, or are otherwise known to pose a threat to us. In short, 
practically all of the detainees at Guantanamo are there for a good 
reason. Judicial review of such cases should be relatively 
uncomplicated when compared with the voluminous trial and appellate 
records involved in most habeas cases. In the event, however, that a 
court were to be presented with a case that raised serious questions 
about the lawfulness of detention, surely those questions should be 
carefully considered, and no institution is better equipped by 
experience to do that than a court.
    In proposing that we return to the system that was in place 
previously, I want to stress that I do not believe this issue should be 
treated as a constitutional one, but simply as a matter of policy. 
Whether Congress has the power to bar habeas review to aliens detained 
in Guantanamo is a question that will be resolved by the courts. My 
guess is that it probably does. But Congress should not want to bar the 
habeas review the Supreme Court found the aliens in Guantanamo were 
entitled to under our statutes. It should want, instead, to have the 
judiciary endorse the detention of the terrorists who threaten us. For 
the very reason that the law of war allows us to detain persons without 
charging them with criminal conduct for extended periods, it is all the 
more important to be sure that the process for determining who those 
people are is beyond reproach. Unlike wars between national armies, 
where it's easy to tell who the enemy is, identifying those terrorists 
we are entitled to detain is more difficult. We should take advantage 
of the courts' expertise in performing this task.
    Regarding the standard of treatment for detainees, I believe we 
should have followed our practice in previous wars of treating all 
captured persons in accordance with the Geneva Conventions and the Army 
Field Manual applying them, whether or not they were entitled to this. 
Any state, after all, can designate its enemies as ``unlawful 
combatants''. In fact, North Vietnam and Iran have led the way in this 
practice in recent years, but we should not follow them. Our own 
servicemen, diplomats and ordinary citizens will pay the penalty. They 
will be abused, tortured and perhaps never even accounted for. For more 
than half a century, the United States was a leader in opposing the use 
of torture and coercive methods of interrogation against those captured 
in conflict. We need to reclaim our reputation.
                               __________
    It is often said that the war with the terrorists calls for new 
approaches, melding traditional law enforcement procedures with the law 
of war. How we decide who will be detained and how we treat them in our 
custody provides a good example of this. Detainees are held pursuant to 
the law of war, but the term of their detention is so long and 
indeterminate that it has many of the characteristics of a criminal 
punishment. The fact that each terrorist has made an individual choice 
to fight us, rather than being conscripted by his government, 
reinforces this criminal law perspective, which addresses itself to 
personal responsibility. Extending habeas review to determine the 
lawfulness of detaining the terrorist combatants, as has not been done 
in previous wars, seems to me an appropriate acknowledgement of the new 
situation that the conflict with the terrorists has created for us.
    Mr. Chairman, thank you for this opportunity to appear before the 
subcommittee. This concludes my testimony. I look forward to answering 
your questions.

    Mr. Nadler. Thank you.
    I now recognize Mr. Berenson for 5 minutes.

                TESTIMONY OF BRADFORD BERENSON, 
                  PARTNER, SIDLEY AUSTIN, LLP

    Mr. Berenson. Thank you very much, Mr. Chairman, Ranking 
Member Franks, other Members of the Subcommittee. I appreciate 
the opportunity to address you this afternoon.
    As I listened to the Chairman and the Ranking Member's 
opening statements, I thought that members of the audience 
could be forgiven for thinking that they were describing two 
different universes.
    In the Chairman's view, the constitutional right to habeas 
corpus is absolutely fundamental to what we are talking about 
this afternoon, whereas in Congressman Franks's view, the 
constitutional right to habeas corpus was essentially 
irrelevant to the debate.
    And I thought, ``Well, how can we reconcile these competing 
views?'' And, in fact, they are fully reconcilable.
    I agree with the vast majority of what you said, Mr. 
Chairman, about the importance of habeas corpus in our 
constitutional traditions. But I also agree, as Mr. Taft just 
indicated, that the constitutional right to habeas corpus is 
essentially irrelevant to the debate we are having today.
    How can this be? Well, let me lay out three quick legal 
principles that I think explain all of this and then describe 
what I think the implications of them are.
    First, alien enemy combatants outside of U.S. territory are 
not protected by the United States Constitution. As fundamental 
as habeas corpus rights are for our citizens or those who may 
be found on our territory, they have never been extended to 
those fighting against us who are outside our territory and 
have no meaningful connections to this Nation.
    The Constitution and its protections are a privilege 
afforded to those who have meaningful ties to our Nation, not 
to foreign enemies who seek to destroy it.
    The practical consequences of any other view would be 
absurd. As Congressman Franks pointed out, there is very little 
due process on a battlefield. Every time one of our soldiers 
pulls a trigger, drops a bomb, he takes extraordinary risks 
with the lives and the property of potentially innocent people, 
and does so with no advance warning and with no form of 
process. If the Constitution really applied on the battlefield, 
we simply could not fight.
    In recognition of this, case after case in the Supreme 
Court has made this crystal clear, most recently the Boumediene 
case in the D.C. Circuit, which Mr. Katsas argued. But that 
built on a long series of existing Supreme Court cases.
    But that does not mean that individuals whom we capture in 
this or any other war have no rights, or that they are in the 
often-described legal black hole at Guantanamo Bay. They do 
have rights. Those rights just don't spring from our 
Constitution. They spring from the international law of armed 
conflict.
    Now, the second important principle is that the individuals 
we are talking about here--al-Qaida terrorists, Taliban 
irregulars and the like--fall into the lowest category of 
protection under the international laws of armed conflict. They 
are unlawful enemy combatants, which means that they do not 
bear arms openly, wear insignia recognizable at a distance, 
participate in the chain of command that can control them, and 
themselves obey the law of war.
    They are, in short, walking law of war violations 
themselves. And as a result, the laws of war afford them far 
less protection than they afford to honorable soldiers and far, 
far less protection than we ought to afford to our own 
citizens, even if they transgress our criminal laws.
    The people in this category have been described in 
precedents as hostis humanis generis--that is, enemies of all 
mankind--precisely because the way they fight is so dangerous 
to civilians, who are the ultimate object of the law of war's 
solicitude.
    The third important principle: Habeas corpus rights for 
alien enemy combatants outside the United States are absolutely 
unknown in human history. No nation at war ever has afforded 
access to its domestic court system to people fighting against 
it militarily. No contrary authority has ever been cited in the 
Supreme Court or elsewhere that I am aware of.
    There are cases that extend habeas to enemy combatants, but 
those are on home soil. There are cases that extend habeas 
corpus in certain circumstances abroad, but those typically 
involve U.S. citizens or those under our protection.
    It is not the case that the President is exerting some 
radical new tyrannical power unknown in the history of the 
United States. In fact, every President prior to President Bush 
had exactly the same power to capture, detain and hold those 
who take up arms against this Nation.
    So what does that mean for today's debate? Well, to 
summarize very briefly, the Military Commissions Act is the 
most generous set of procedural rights ever afforded in the 
history of warfare to individuals against whom we are fighting. 
We get no credit for it, but it is absolutely true.
    There are sound reasons for this, and I think Mr. Hafetz 
has accurately identified many of them in his testimony. But 
the Military Commissions Act represents a balance----
    Mr. Nadler. Mr. Hafetz hasn't testified yet.
    Mr. Berenson. I have read his written testimony. 
[Laughter.]
    There are things about this conflict that justify some 
innovations and more generous procedures to those whom we 
capture. But the Military Commissions Act represents a sensible 
compromise balancing the rights and interests of those who we 
capture against the military exigencies that Greg Katsas 
described at the very beginning.
    At a bare minimum, I would urge the Committee to give the 
Military Commissions Act the opportunity to prove itself in 
practice, to show how it functions, to build a better 
legislative record before reconsidering any aspect of it.
    Thank you.
    [The prepared statement of Mr. Berenson follows:]
               Prepared Statement of Bradford A. Berenson

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Nadler. Thank you.
    Now recognize Mr. Hafetz for 5 minutes.

   TESTIMONY OF JONATHAN HAFETZ, LITIGATION DIRECTOR OF THE 
   LIBERTY AND NATIONAL SECURITY PROJECT, BRENNAN CENTER FOR 
           JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW

    Mr. Hafetz. Thank you, Chairman, thank you, Ranking Member 
Franks, and thank you to Members of the Subcommittee for 
inviting me to share my views at today's hearing.
    The subject of today's hearing cuts to the heart of 
America's values and commitment to the rule of law. Since pre-
Revolutionary American history, habeas corpus has been a 
cornerstone of our system, protecting individuals against 
unlawful exercises of state power.
    Habeas guarantees individuals seized and detained by the 
government the right to question the legal and factual basis 
for their detention. It has traditionally been available to 
citizens, noncitizens, slaves, alleged spies and alleged 
enemies alike. Our founders all regarded the writ as a bulwark 
of individual liberty and safeguarded its protections in the 
Constitution.
    I want to briefly address the question of the 
constitutional implications, because I do not agree that the 
Supreme Court's decision in Rasul was only won regarding the 
habeas statute. The Supreme Court in its 6-3 decision made two 
important points: first, that executive imprisonment has been 
lawless since the Magna Carta; and second, that the common law 
writ of habeas corpus enshrined in the suspension clause of the 
Constitution would have extended to detainees at Guantanamo 
Bay.
    Now, habeas corpus provides two important--well, it 
provides several important protections, two of which I will 
highlight here. The others I have highlighted in my written 
testimony.
    First, it provides a guarantee that the government provide 
a legal basis for an individual's detention. That serves a very 
important function: It ensures, as the Supreme Court said, that 
the detention of enemy combatants remains within the 
permissible bounds of the law. That is very important, because 
the Administration has asserted sweeping powers to detain 
individuals as enemy combatants, powers that would extend to 
people who, according to the Administration, donate money or 
services to an organization that, unbeknownst to them, is 
affiliated with a terrorist organization. It would allow people 
to be held for life based on innocent association.
    Second, habeas corpus provides meaningful review of the 
factual basis for a prisoner's detention; in other words, to 
determine whether or not the individual is who the government 
claims the person to be. That serves a very important function 
at Guantanamo for several reasons, including because 
individuals were picked up at Guantanamo and not provided the 
underlying process that the military ordinarily provides during 
armed conflicts. Instead, many were handed over for bounty, for 
rewards, by individuals seeking rewards. In addition, the 
detentions are based on evidence gained by torture and other 
coercion.
    Now, the other witnesses have talked a little bit about the 
military commissions procedures, but I want to focus on the 
other procedure, the procedure that really dominates 
Guantanamo, the combatant status review tribunal.
    Of the 750 individuals who have been detained at Guantanamo 
since September 11th, and of the approximately 375 who remain, 
only a handful have been charged and only a few will ever be 
charged. The rest are being held indefinitely, potentially for 
life, based upon executive say-so.
    The only process they have been given is that of a CSRT, 
the combatant status review tribunal, which was created 
deliberately to avoid habeas review. The CSRT is a summary 
proceeding that lacks all the hallmarks of due process: denying 
detainees attorneys, relying on secret evidence, preventing 
detainees from calling witnesses or presenting evidence, using 
evidence gained by torture and other abuse, and rubber-stamping 
detentions based on what higher-ups have said and political 
influence.
    In fact, a striking recent affidavit from Lieutenant 
Colonel Stephen Abraham, a 26-year veteran of military 
intelligence, details that CSRT decisions were based on generic 
information and that lacked the fundamental earmarks of 
objectively credible evidence. Every Federal judge that has 
examined the CSRT against the requirements of due process has 
found it lacking. According to District Judge Joyce Hens Green, 
the CSRT denies detainees a fair opportunity to challenge their 
incarcerations.
    Now, supporters of the MCA say affording Guantanamo 
detainees habeas rights would give America's enemies 
unprecedented access to the courts, but that is inaccurate and 
misleading. Courts have reviewed the habeas petitions of 
foreign nationals detained by the United States during wartime, 
including Nazi saboteurs and a Japanese general accused of war 
crimes.
    But even more significantly, what the Administration calls 
a global war on terror is very different than prior wars. It 
has no identifiable enemies, no recognizable battlefields and 
no foreseeable end. It is precisely the indeterminate, open-
ended nature of the fight against terrorism that increases the 
risk that government officials will inadvertently detain the 
wrong people based upon suspicion, innuendo or mistake.
    In other words, the very nature of what the Administration 
calls a global war on terror makes habeas corpus more, not 
less, important.
    But the issue is not merely about the detainees. It is also 
about America and what America stands for. As former Secretary 
of State Colin Powell explained, Guantanamo has become a major 
problem for how the world sees our country. It has shaken the 
belief that the world had in America's justice system, and it 
has undermined the faith that is necessary to fight terrorism.
    The first step in regaining that faith is to restore habeas 
corpus. As Mr. Powell said, isn't that what our system is all 
about?
    [The prepared statement of Mr. Hafetz follows:]
                 Prepared Statement of Jonathan Hafetz

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Nadler. I thank you.
    I will begin the questioning by recognizing myself for 5 
minutes.
    Mr. Berenson, you said that there is no habeas for enemy 
combatants abroad, obviously; that there is no new tyrannical 
power assumed by the President.
    The President claims the power, for example, in the Padilla 
case, to seize someone in the United States, someone who we 
don't know to be an enemy combatant--there may be information 
to that effect, but someone, anyone basically, anyone who isn't 
a citizen--my grandmother before she became a citizen--and 
throw them in a military brig forever.
    How is that not a new tyrannical power?
    Mr. Berenson. I think that is a misunderstanding of the 
power that the President claimed with respect to Mr. Padilla.
    I was working in the White House at the time that Padilla 
was first captured, and the United States never took the 
position that Mr. Padilla did not have right of access to U.S. 
courts and did not have the ability to file a writ of habeas 
corpus.
    He in fact did those things, and the Administration never 
took the view that the courts were without jurisdiction to 
entertain his claims.
    Mr. Nadler. I thought that was exactly the position of the 
Administration.
    Mr. Berenson. No, the dispute was really over what that 
habeas court could do. The Administration took a very 
restrictive view of the right mode of judicial review for the 
habeas court; that is, it was extremely deferential review, 
which essentially amounted to a review of the record on which 
the Administration had based its conclusion that Padilla was a 
combatant. The Administration did not want trial-type adversary 
proceedings, with lawyers on both sides duking it out----
    Mr. Nadler. But on what basis--if I am accused of murder 
and I am picked up on the streets of New York--or genocide or 
anything else--I get full normal rights to contest that. But if 
I am accused of being an enemy combatant, I don't get full 
rights.
    How can the characterization of the accusation deprive me 
of the rights?
    Mr. Berenson. Because it is a fundamentally different thing 
to take up arms against this Nation----
    Mr. Nadler. Excuse me. No one knows I took up arms. Someone 
has accused me of taking up arms. How can the characterization 
of the accusation, not the facts, which haven't yet been 
determined, but the characterization that I took up arms 
against the United States, allegedly, as opposed to murdering 
people, the first 10 people who walk down the street, why is 
that a difference?
    Mr. Berenson. During World War II, we detained, on our 
soil, hundreds of thousands of people who were suspected of 
being Japanese or German soldiers.
    Mr. Nadler. And no one today thinks that was good law.
    Mr. Berenson. Many of them---- [Laughter.]
    No, I am not talking about the internment of Japanese 
citizens.
    Mr. Nadler. Then what are you talking about?
    Mr. Berenson. I am talking about prisoner of war camps.
    Mr. Nadler. Oh, okay.
    Mr. Berenson. We held prisoners of war, here, from the Axis 
powers. And many of them claimed that they were not in fact 
enemies of the United States. They claimed that they were in 
forced labor battalions, that they had essentially been 
enslaved by the Nazis, that they bore us no enmity----
    Mr. Nadler. But in those cases, they had been captured. I 
am not arguing with someone who was captured on a battlefield 
in Afghanistan, which would be the analogous case. They were in 
fact captured in circumstances that gave weight to the belief 
that, in fact, they were not simply criminal defendants charged 
with waging war against the United States. They were captured 
in combat abroad and they may have said, ``I was here under 
duress,'' or whatever.
    Mr. Padilla or anybody else in the United States is not in 
that situation. He is analogous. Other people are analogous to 
someone who is simply--they are captured the way any criminal 
defendant would be captured.
    And the position you are taking is that, because they are 
accused of being an enemy combatant, they should have fewer 
rights than someone accused of different crimes but even more 
serious crimes.
    Mr. Berenson. Well, the evidence on which the President 
certified that Mr. Padilla was an enemy combatant included very 
good intelligence about his meetings with Osama bin Laden----
    Mr. Nadler. It may or may not be wonderful intelligence. It 
may or may not be true. That is not the question.
    Mr. Berenson. And a court was going to review that and 
determine its adequacy.
    I accept your point that the risk of error in the 
detentions in this war is higher than in a conventional----
    Mr. Nadler. That was not my point. That was a different 
point. Mr. Hafetz made that point. I agree with it, but that is 
not the point.
    My point is that the procedure of someone picked up in the 
United States cannot differ simply because he is accused of 
being an enemy combatant, as opposed--once he is determined to 
be an enemy combatant, what you do may differ; what rights he 
has then may differ.
    But I don't know how you can pick up someone in New York 
and say that his rights are different or less because he is 
accused of being an enemy combatant, based on whatever 
information, as opposed to he is accused of being a murderer.
    Let me go on to a different question now.
    Mr. Berenson. With your indulgence, may I make one point?
    Mr. Nadler. Okay.
    Mr. Berenson. On that view, we need to be clear about what 
that means. It means that, if we had captured Mohammed Atta on 
September 10th, we would have had no choice but to treat him as 
a criminal defendant, which would have meant----
    Mr. Nadler. Exactly right.
    Mr. Berenson [continuing]. No interrogation, no 
intelligence, and the World Trade Center coming down.
    Mr. Nadler. That is exactly right. And when we captured 
mass murderers in the United States, we did the same, when we 
captured Charles Manson or other mass murderers.
    But let me go on to another point, which I also don't 
understand. If someone is in Guantanamo, or for that matter 
someone is accused of being an enemy combatant, he gets a CSRT 
as a matter of policy, but the law does not require that.
    Mr. Berenson. Well, the Military Commissions Act 
specifically refers to the CSRTs. So, although the statute 
doesn't direct that they----
    Mr. Nadler. But there is no legal compulsion, because the 
Speedy Trial Act is specifically waived in the Commission Act. 
He could be held forever, without any--and since there is no 
habeas corpus and there is no ability to go into court, under 
any reason except to appeal from a final determination of a 
CSRT or military tribunal, we can in fact hold people there 
forever without any kind of review, can we not?
    Mr. Berenson. I don't agree with that. The CSRTs perform a 
status review, which is much more robust----
    Mr. Nadler. Excuse me. No, no. But there is no legal 
requirement that there be a CSRT.
    Mr. Berenson. But the Administration has made clear that in 
every single case there will be a CSRT, and there has been.
    Mr. Nadler. But the Administration saying that, as a matter 
of policy, it will do so is not the same as saying, as a matter 
of law, it must do so.
    Mr. Berenson. I would be surprised if the Administration 
objected to having it written into the law that there have to 
be CSRTs. I mean, they are committed to providing----
    Mr. Nadler. The gentleman will suspend.
    There will be no demonstrations from the audience, please.
    Mr. Berenson. The Administration has committed that every 
person held and detained at Guantanamo is going to receive a 
CSRT, followed by judicial review in the D.C. Circuit.
    Mr. Nadler. Thank you.
    The time of the Chairman has expired. I now recognize the 
Ranking minority Member, Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    I missed the excitement a moment ago. I thought he was 
upset at Mr. Berenson. [Laughter.]
    You have done an outstanding job, Mr. Berenson. I have not 
heard more compelling testimony before this Committee.
    Mr. Chairman, in sincere respect toward you, one of the 
comments I made in my opening statement was that the jihadist 
ideology is one of the most dangerous ideologies that this 
country has ever faced. And you said that you thought that the 
Nazi ideology was.
    I would say to you that there is great agreement that the 
Nazi ideology and the jihadist ideology, both of which have no 
respect for innocent human life and have damaged humanity with 
scars that will never heal--I believe they belong in the same 
category.
    I mean, a Nazi ideology that did what they did is 
impossible to really relate to. It is also true that the 
jihadist ideology that beheads little girls because they want 
to attend a faith-based school is a pretty hellish ideology, 
given their statements to wipe out humanity.
    With that said, what if we had granted habeas corpus to 
Nazi war criminals in Nazi jails? I am afraid that all of us on 
this Committee, if it existed--and it wouldn't--would be 
speaking German. It certainly would have prevented us, in my 
judgment, from prevailing in that hellish conflict.
    With that said, I think there is a lot of distortion about 
how we treat the detainees in Guantanamo Bay. Just to suggest 
to you some of the things that we do there, first of all, we 
fly in special meals to the detainees in Guantanamo Bay to meet 
their faith-based dietary requirements. That food is better 
than what we feed our own soldiers on the battlefield.
    We give five times a day a time for prayer so that they can 
do this, which is called over a taxpayer-funded address system. 
We have arrows pointed toward Mecca painted on the floors so 
that they can pray toward Mecca. We have a taxpayer-funded 
Koran so that they can follow their own religious practices.
    We do everything in the world to try to uphold American 
sensibilities in this tragic situation, but that does not 
change the reality that we are facing terrorists that are 
indeed enemies of humanity.
    And I wonder, if we indeed granted habeas corpus to some of 
the Guantanamo Bay detainees, do the proponents believe that 
there is a terrorist code of honor that would prevent them all 
from saying, ``I didn't mean to do that; I wasn't really trying 
to fight anybody''? It is astonishing to me that we would 
suggest such a thing.
    So, Mr. Berenson, if I could, with the time I have 
remaining--let me skip over to Mr. Taft first.
    In the Johnson v. Eisentrager case, the Supreme Court said 
the following regarding the argument that the Constitution was 
meant to extend its protections to foreign enemies: ``Not one 
word can be cited, and no decision of this court supports such 
a view. None of the learned commentators of our Constitution 
has ever hinted at it. The practice of every modern government 
is opposed to it.''
    Can you cite something to support the proposition that the 
Constitution extends its protections to foreign enemies that 
the Supreme Court missed in that case?
    Mr. Taft. Well, Mr. Franks, thank you.
    No, actually, I was on the----
    Mr. Franks. Can you pull up to the mike, please?
    Mr. Taft. Yes, sorry.
    Actually, I believe I was one of the people who signed the 
brief that the government submitted in the Rasul case, which 
cited Eisentrager favorably. And I thought Eisentrager was good 
law at that time.
    I will say, obviously, the Supreme Court decided that, in 
fact, under the statutes--not under the Constitution, but under 
the existing statutory law--that the right to file petitions 
for habeas corpus did extend to the people in Guantanamo.
    They are a very special case. They really are. That is why 
I think I would make an exception for them. I would not extend 
it to the battlefield. I would not take it to Afghanistan or 
overseas.
    But I think Justice Kennedy described fairly well the 
peculiar situation in Guantanamo which makes it not dangerous 
at all, I think, to provide habeas and does give us that extra 
edge of making these decisions wisely and correctly, which will 
give legitimacy to our detention of those people there.
    Mr. Franks. Thank you, sir.
    Mr. Berenson, you know, the court went on to explain that 
if the Constitution conferred rights to foreign enemy 
combatants, that ``enemy elements could require the American 
judiciary to assure them freedoms to speech, press and assembly 
as in the First Amendment; the right to bear arms, as in the 
Second Amendment; security against unreasonable searches and 
seizures, as in the Fourth; as well as rights to a trial by 
jury in the Fifth and Sixth Amendments.''
    How do you think that this would affect a wartime 
situation?
    And if you would take any opportunity to expand any other 
issues that you think are important.
    Mr. Berenson. Well, as I indicated before, I think taking 
seriously the notion that our Constitution extends its 
protection to our military foes abroad would literally render 
warfare impossible.
    In addition to all the things that Justice Jackson cited in 
the Eisentrager opinion, consider this: We would have to afford 
just compensation for any property of theirs we destroyed in 
bombing them. It really is absurd and unthinkable that the 
Constitution extends its protections to our enemies in arms. 
The Constitution was meant to restrain the power of our 
government as relates to our citizens and what happens in our 
Nation. It was meant to strengthen our government and 
strengthen our government's hand, with the recent experience of 
the Revolution and the Articles of Confederation in mind, when 
we direct our power outward at external foes.
    Mr. Nadler. The time of the gentleman has expired.
    Let me just comment that I think the Constitution was meant 
to extend, not just to our citizens but to persons in the 
United States, various protections.
    I will now recognize the distinguished Chairman of the full 
Committee, the gentleman from Michigan, Mr. Conyers, for 5 
minutes.
    Mr. Conyers. Thank you, Mr. Chairman. I commend you for 
these hearings. I am very happy to hear the witnesses' 
testimony.
    I would like unanimous consent to put my statement in the 
record.
    Mr. Nadler. Without objection.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties
    The writ of habeas corpus is a legal protection having its origins 
in the Magna Carta. For almost 800 years, it has stood as a fundamental 
institutional safeguard of constitutional rights and civil liberties, 
giving prisoners the right to challenge their detention before neutral 
decision-makers. In America today, this writ continues to act as an 
important check on executive power, helping ensure that our Nation's 
criminal justice system adheres to the fundamental guarantees of the 
Constitution.
    The importance of habeas corpus is particularly critical in 
Guantanamo Bay, where many detainees are being held indefinitely--
without charge, and without any opportunity to challenge their 
detention at trial. In 2004, the United States Supreme Court in the 
case of Rasul v. Bush upheld the jurisdiction of federal courts to hear 
habeas petitions filed by Guantanamo detainees to challenge the 
lawfulness of their indefinite detentions.
    In response, the Administration established the Combatant Status 
Review Tribunals as an alleged substitute for habeas corpus review. And 
Congress passed two bills--the Military Commissions Act and the 
Detainee Treatment Act of 2005--dealing a further blow to the rights of 
Guantanamo detainees. The result is a due process quagmire.
    Let me just highlight a few of these problems. First, the Tribunals 
have proven to be wholly inadequate, because they lack the basic 
hallmarks of due process. For example:

          A detainee must prove himself innocent of allegations 
        that he has no right to be informed of.

          A detainee has no right to counsel in the hearings 
        before the Tribunal.

          A detainee has no right to present witnesses or 
        evidence in his own defense.

          The Tribunals allow the use of evidence obtained 
        through coercion and even torture.

    Second, the Military Commissions Act eliminated habeas corpus for 
non-citizens held by the United States as ``enemy combatants.'' Indeed, 
a detainee does not even have to be found to be an enemy combatant--it 
is enough for the Government to assert that the detainee is 
``awaiting'' determination of that status.
    Third, while enemy combatants may seek review of their status in 
the United States Court of Appeals for the District of Columbia 
Circuit, the Acts confine that review to the record of facts already 
created by the Tribunal, a process that is inherently unsatisfactory. 
Even more recently, the Administration has sought to limit the ability 
of detainee attorneys to provide even the most basic representation to 
their clients.
    Although it is necessary for our government to have the power to 
detain foreign terrorists to protect national security, repealing 
federal court jurisdiction over Guantanamo detainee habeas corpus 
petitions does not advance that goal. It is critical that we maintain 
habeas corpus to ensure not only that we are detaining the right 
people, but that we are complying with the rule of law.
    Restoring habeas corpus is also crucial to upholding our Nation's 
reputation abroad. The United States will not be able to expect other 
nations to afford our citizens the guarantees provided by habeas corpus 
unless we provide those assurances to others.
    Our detention policy, both in law and practice, has damaged our 
reputation in the international community and undermined support for 
our ongoing war on terrorism. Indeed, the United States should 
demonstrate that while our Nation is tough on terrorism, it remains no 
less committed to fundamental human rights.

    Mr. Conyers. Now, what I would like to do with my time is 
engage a discussion between Mr. Hafetz and Lieutenant Commander 
Swift over the comments of Mr. William Taft, who suggests 
habeas as a matter of policy--well, here is his statement: ``In 
proposing that we return to the system that was in place 
previously, I want to stress that I do not believe this issue 
should be treated as a constitutional one.''
    Let me begin with you, Mr. Hafetz. Can we find any 
agreement between the three of you in that regard, of the 
statement of Mr. Taft that I have just recited?
    Mr. Hafetz. Well, I certainly concur with Mr. Taft's 
statement that, as a matter of policy, the United States should 
or Congress should restore habeas corpus for Guantanamo 
detainees, regardless of what the courts do. It is a matter of 
sound policy.
    Guantanamo is a failure. It is widely recognized as a 
failure, including by many within the Administration. And a 
principal reason is that the United States has denied habeas 
corpus to Guantanamo detainees; it has prevented any lawful or 
meaningful process to determine whether we are detaining people 
in accordance with law.
    However, I also do think that, as a matter of 
constitutional law, Guantanamo detainees do have a right to 
habeas corpus.
    And I would just point out in response to Mr. Franks's 
point about Eisentrager one other thing in the Rasul opinion--
and this is from Justice Kennedy's concurring opinion--that 
Guantanamo in all practical respects is a U.S. territory, given 
the long-term exclusive control the United States exercises 
there, which is another reason that makes a constitutional 
difference.
    Mr. Conyers. Thank you.
    Commander Swift?
    Commander Swift. Yes, sir. I fully agree with Mr. Taft in 
several respects, in that this war, A, is unprecedented; B, 
that normally speaking in a conflict between nation-states, 
there is no constitutional protections, nor would habeas extend 
to that battlefield. No one here thinks it does.
    Mr. Conyers. I don't think so either.
    Commander Swift. Guantanamo Bay is unique in that it is 
somewhat more like a territory.
    And this conflict is unique, as Mr. Taft pointed out, in 
that when we throw around the word ``unlawful combatant,'' what 
we should say is ``criminal.'' That is what we are saying. 
Under the rubric of war, you are saying it is criminal.
    Now, the question is whether, as the Chairman would have 
it, they be accused criminals and let's have a trial, or, as 
maybe Mr. Franks would have it, they are convicted criminals 
and there is no need for a trial.
    I think that the good policy in a war where we will call 
our adversaries criminals is to make sure that the process 
comports with that that we would expect from enemy criminal 
defendant, and that that is the best way to go forward.
    So I agree completely with Mr. Taft that the smart way to 
do this is to make sure that whether we are using the military 
justice system or the civil justice system, that we have the 
complete protections, including the Federal courts.
    I personally believe that the Supreme Court is likely to 
extend it if Congress does not, but, as I have testified, why 
wait? We get black eyes and bloody noses every day we don't. So 
I think it is only prudent that Congress intervene now and move 
the process along.
    As Colin Powell pointed out, nobody is leaving. We are just 
getting back to the basics of justice.
    Mr. Conyers. Mr. Taft, you get the last word on this.
    Mr. Taft. Well, I am not sure where to go from here except 
to say I do agree with myself---- [Laughter.]
    Mr. Conyers. You have a fair degree of agreement between 
Hafetz and Swift.
    Mr. Taft. I do disagree with Mr. Hafetz on the 
constitutional point, but for me it is a small point because I 
think the Congress should do this by statute.
    Mr. Conyers. Thank you very much.
    Mr. Nadler. The gentleman's time has expired.
    I now recognize Mr. Jordan for 5 minutes.
    Mr. Jordan. Thank you, Mr. Chairman.
    Let me go to Mr. Berenson, back to the hypothetical you 
raised when the Chairman was questioning you. You talked about 
September 10th, if Mr. Atta, a non-citizen, would have been 
apprehended.
    I believe the Chairman's remark was he should be treated no 
different, even if you knew, had intelligence that told you 
what was going to happen the very next day, he should be 
treated no different than a citizen who was alleged to have 
committed some crime.
    Can you comment on that exchange? It didn't really get to 
take place with you and the Chairman, but I would like your 
comments.
    Mr. Berenson. Yes. I think that there is no doubt that when 
the enemy disguises himself as a civilian, as our adversaries 
routinely do, they create big problems for us, legally and 
morally. The risk of error in detention goes up.
    But it doesn't mean that we abandon the law-of-war model 
entirely. These are absolutely military adversaries. On 
September the 11th, they attacked the center of our financial 
power, the center of our military power, and tried to attack 
this building, the center of our political power.
    There is no question that these are not ordinary criminals. 
NATO invoked article V for the first time in its history. We 
had combat air patrols flying over our cities.
    There is very little doubt that that was an act of war. It 
was regarded by us as such, by the President and the Congress, 
by the world as such. And there is no reason to jettison the 
law-of-war model entirely.
    All we really need to do is what Congress has already done, 
which is modify it to take account of some of the unique 
aspects of this conflict in the Military Commissions Act.
    And the Mohammed Atta example I gave illustrates the 
dangers of just thinking it is an either/or choice and that 
really what we ought to do is gravitate back to a criminal law 
model. You cannot afford to. You could have saved 3,000 lives 
and all the distress that those families have endured if you 
could have interrogated him rather than given him a lawyer and 
a quarter to call his confederates.
    Mr. Jordan. And maybe you have not seen, maybe you have, 
today on the front page of the Washington Times, the lead 
story, the 6-year-old who was recruited by the Taliban, that 
they told this young boy, ``Put on the vest, and when you hit 
the button it is going to spray the flowers and water the 
plants and the flowers.'' And this kid, sharp kid, 6 years old, 
but street-smart kid, had figured out what was going on, went 
to the authorities. And that is the mindset that we are up 
against.
    Take me back--and I only caught part of the testimony here. 
I heard Mr. Hafetz when I walked in. And I apologize for that. 
But what kind of due process in fact--I mean, Mr. Hafetz seemed 
to allude that they had no due process, that the 750 and the 
300 who still remain at Guantanamo.
    Tell me about the CSRT and what exactly due process that 
entails.
    Mr. Berenson. The critical thing with looking at the CSRTs 
is the same thing as in this debate overall. You have to 
identify the appropriate baseline against which to measure it.
    The appropriate baseline under the law of war for people 
who are detained and whose status is unclear, who maintain that 
they are not enemy combatants, comes from the Geneva 
Conventions, article V.
    Compared to an article V hearing, a CSRT is much, much more 
protective of the rights of the accused. Article V hearings 
tend to be 2, 3, 4 minutes long in a field tent with a few 
harried officers. They do not get personal representatives the 
way the Guantanamo detainees do. There is no right to get 
exculpatory evidence in the hands of the government the way the 
Guantanamo detainees have.
    There are a variety of rights that Mr. Katsas described at 
the very beginning afforded to people in the CSRTs that go well 
beyond what we would afford even to honorable, law-abiding 
enemy soldiers of a foreign country.
    Now, that is not to say that this affords all the 
protections available in the civilian criminal justice system. 
I understand why Lieutenant Commander Swift and Mr. Hafetz want 
to have more rights and more protections, but that is not the 
right measure.
    Mr. Jordan. I understand. I appreciate it.
    And I am running out of time here. Let me go to one of the 
folks on the other side.
    Go back to the hypothetical that Mr. Berenson raised about 
Mr. Atta on September 10th and tell me why you think, as Mr. 
Berenson described it, that is not appropriate.
    Mister----
    Commander Swift. I will address it, sir.
    If he were tried, as I have advocated, under the Uniform 
Code of Military Justice, nothing changes.
    You see, if we just use the process we have in the war 
model, the Military Court of Appeals have held that someone can 
be interrogated for operational reasons without reading them 
Miranda. In fact, a Marine Corps private was so held. The 
difference, of course, is what we can't do going underneath it.
    No court in the recognized world--and I don't believe we 
should start now--would allow us to use extreme duress on such 
a person or force them to confess or testify by being 
waterboarded or in extreme isolation or any of the above and 
put that testimony in.
    Whether we can or can't do that in interrogation is a 
subject of a different hearing, but it is not going before a 
court.
    Mr. Jordan. I appreciate that. So let me be clear: You 
disagree with what the Chairman's characterization of how he 
would handle that same hypothetical.
    Commander Swift. In the context of the law of war.
    Now, on September 10th, we didn't know we were at war. But 
if on September 11th, you know you are at war and you use the 
Uniform Code of Military Justice, which I have always argued is 
appropriate for war crimes, you don't have a problem with an 
operational interrogation.
    Now, again, that interrogation must comply with the law of 
war. It can't be the extreme interrogations that have been 
pushed forward and could be admitted in a commission.
    Mr. Nadler. The gentleman's time has expired.
    The gentleman from Minnesota, Mr. Ellison, is recognized 
for 5 minutes.
    Mr. Ellison. Thank you, Mr. Chairman. I would also like to 
thank you for these hearings.
    Mr. Berenson, my first question is for you. Going back to 
this Mohammed Atta example, of course if he would have been 
arrested on September 10th he would have been in the United 
States, according to your hypothetical. What due process, in 
your opinion, do you think he should be entitled to?
    Mr. Berenson. I think the system that currently exists 
today, which is the Military Commissions Act of 2006, the CSRT 
system and the like, had it been in place on September the 10th 
would have represented a good balance between Mr. Atta's 
interests in being treated fairly and having some procedural 
options for disputing that he is in fact an enemy combatant and 
the United States's interests in protecting itself and 
effectively prosecuting a war.
    Mr. Ellison. So you do agree that he should be afforded 
some due process, even Mohammed Atta the day before 9/11? I 
mean, it sounds like you are saying, ``Yes, there should be a 
process even for a person like that.''
    Mr. Berenson. Absolutely. He should--yes. He should receive 
a status review if he disputes his status. And if we want to 
charge him with war crimes, he should be tried in a military 
commission.
    Mr. Ellison. Mr. Hafetz, let me ask you this question. 
Today, you know, the title of this hearing is the ``Habeas 
Corpus and Detentions at Guantanamo Bay'' hearing. There has 
been some testimony so far about what should or shouldn't 
happen on a battlefield. But there is a fairly important 
distinction to be made between the location of the detainees at 
Guantanamo Bay and in the battlefield, don't you agree?
    Mr. Hafetz. Well, certainly, there is a difference between 
individuals who are being detained on a battlefield and 
individuals who are being detained at Guantanamo thousands of 
miles from a battlefield.
    And as I note in my written testimony, if you look at the 
reason people were brought to Guantanamo, it was pretty simple. 
According to a 2001 memorandum from the Department of Justice, 
which was leaked to the press in 2004, individuals were brought 
to Guantanamo deliberately to try to avoid habeas corpus 
review. And the memorandum noted that if a court were to review 
those detentions, they would find them illegal.
    Mr. Ellison. Lieutenant Commander Swift, I know you are a 
lawyer, but you are a soldier.
    Commander Swift. Yes, sir.
    Mr. Ellison. What national security dangers are presented 
by offering habeas corpus to detainees at Guantanamo? Are we 
running any risks if we do that?
    Commander Swift. I don't believe we are.
    I believe that we put our trust into a Federal court that--
the federally appointed constitutional officers are capable of 
safeguarding our national security. I don't think the Senate 
would have confirmed them if they didn't believe they were.
    And we have to trust someone in this, otherwise we come to 
the position where we trust no one except but the President, 
and that is not our democracy.
    I actually think the failure to give habeas actually 
increases our national security.
    Mr. Ellison. Could you elaborate on that, please?
    Commander Swift. Certainly. In this type of a war, the 
other side doesn't have to win a battle. They don't have to win 
a skirmish. They don't have to win a single day. All they have 
to do is keep fighting, and we haven't won.
    How do they do that? They recruit. And Guantanamo Bay is 
the Uncle Sam recruiting poster for Jihad, Incorporated, 
period. And for every one we hold, they recruit hundreds.
    It is no way to win a war. We need to stop them from 
recruiting, not help them.
    Mr. Ellison. Reclaiming my time, Commander Swift, could 
you, as well as you can--and I know you may not be prepared for 
this question because it is, sort of, outside of the area that 
we are here about.
    Could you try to describe, as best you can for our panel, 
the argument that--and I am not going to us the term 
``jihadist,'' because I don't think it is a useful way to 
describe what we are talking about, but let's just talk about 
the terrorists.
    Could you describe what pitch they make to people who are 
vulnerable to recruitment? What are they saying?
    Commander Swift. They say that the United States hates 
Islam, that the United States hates Arabs, that the United 
States is racist and that all of its policies are geared 
against Arabs and against Islam, that we have no values.
    And they demonstrate that by arguing, ``See, in Guantanamo 
Bay, Arabs are treated different, they get second class. And in 
fact, citizens of England or Australia get special deals 
because they are America's allies. But make no bones about it, 
in the Middle East we get a different deal.''
    Mr. Ellison. Now, Commander, there are about 1.5 billion 
Muslims in the world.
    Commander Swift. That is correct, sir.
    Mr. Ellison. And all of them want to see--I mean, they are 
Muslims, so they are in favor of Islam, right? And so, don't we 
undermine our ability to protect the United States by allowing 
terrorists to make this global sales pitch to the entire Muslim 
world?
    Commander Swift. Absolutely, sir. And with just a little 
indulgence, I think the story that happened when I was in Yemen 
demonstrates it completely.
    On the last night that I was in Yemen, I was meeting with 
my client's family. The grandmother of that household brought 
together all the little girls of the household, and she pointed 
to my female colleague, and this is what she said, sirs. She 
said, ``Look at her. She went to school. She studied very, very 
hard. And now she is a lawyer.'' And then she looked into their 
faces and said, ``If you go to school and study very, very 
hard, you can be anything.''
    Now, that woman is obviously Osama bin Laden's worst 
nightmare. She is victory. She is exactly what it looks like. 
But she is counting on the rule of law for that to come true. 
And how we treat her son-in-law determines whether those 
daughters are on our side or against us.
    Mr. Ellison. Thank you.
    Mr. Nadler. The time of the gentleman has expired.
    The gentleman from North Carolina is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. And thank you for 
convening this important hearing.
    I have the unfortunate and unenviable problem today of 
having to be in three places at one time, with three very 
important hearings going on. The other two locations are full, 
just like this audience.
    So I want to first apologize to the members of this panel 
for having to miss your testimony, because testimony was going 
on in those other hearings at the same time and I had to make a 
choice.
    That happens sometimes, but seldom you are put in the 
position of not being able to figure out where your highest 
priority is. And this was a difficult day because this is so 
basic to us that it takes precedence even over other important 
hearings that we are involved in.
    Because I haven't been in the flow, like the Chair, I am 
going to try to save time to yield to the Chair to ask 
additional questions.
    But I just want to say that I guess the real question I 
have heard here on the panel is between whether these are 
ordinary criminals or so-called enemy combatants. And my 
concern is that, while I guess I know an enemy combatant by 
profile at some level, I am not sure I trust anybody to make a 
dictatorial decision about what the characteristics of that 
person are.
    And I guess the most difficult question--even if your 
client, Mr. Hafetz, turns out to be an enemy combatant--is how 
one could be basically in a courtroom on a credit card matter 
in 2003 and then all of a sudden be in a military brig simply 
because the President of the United States said, ``You are not 
a credit card common thief; you are an enemy combatant,'' and 
then to have your client charged--really no charge brought 
against your client and he be held for 4 years without a charge 
against him and without any indication of when the detention 
would end, including 16 months when he was held incommunicado.
    That strikes me as a country that I don't want to be 
associated with. Even if somebody determines that your client 
is an enemy combatant at some point, I don't think one person 
ought to be able to do that.
    So I guess, in my own mind, this is just un-American for 
one person to be able to do that. And there at least ought to 
be, as Lieutenant Commander Swift has indicated, somebody other 
than a President who has assumed dictatorial powers making that 
kind of determination--a court system, a legal process, that 
would make that determination.
    I see you are chomping at the bit to respond to my general 
comment, even though I haven't asked a question. So I will give 
you that opportunity, and then I am going to yield the balance 
of my time to the Chairman.
    Mr. Hafetz. Thank you, Mr. Watt.
    Absolutely right, absolutely un-American.
    And there is a name for individuals in the United States 
who are accused of plotting terrorism or planning bad acts. 
They are accused criminals. In the United States, we give 
accused criminals trials. If they are convicted, they are 
punished. They go to jail for a very long time.
    And actually one of the ironies of what has happened with 
the Administration's policies is to prevent this from 
happening: It failed to try a number of people when it has gone 
to this enemy combatant definition.
    But actually every day the Department of Justice charges, 
tries and convicts individuals in the United States who are 
accused of terrorist acts. They did it before September 11, and 
they have done it after September 11. That is the American 
system.
    And to shed some light on why my client, in this case Ali 
al-Marri, was declared an enemy combatant, we can look at 
statements of John Ashcroft, the former attorney general of the 
United States.
    Mr. al-Marri, when he was accused of a crime, asserted his 
innocence and asked for a trial. If the government had 
evidence; it could have gone forward and convicted him.
    But what Mr. Ashcroft said was, ``Well, he refused to plead 
guilty, and we wanted to put the squeeze on him. So we locked 
him up for 16 months, denied him a lawyer, denied him any 
contact with the outside world, held him totally incommunicado 
and subjected him to horrific, cruel, inhuman and degrading 
treatment.''
    That is simply un-American, and as the Court of Appeals has 
ruled, allowing this kind of policy to happen in America would 
have disastrous consequences for our Constitution.
    Mr. Watt. Mr. Chairman, I apologize to you. I told you I 
was going to yield you some time, but----
    Mr. Nadler. I thank the gentleman, but his time has 
expired.
    But we will begin a second round of questioning.
    And let me ask Mr. Swift, Mr. Berenson said that the CSRTs 
afford accused enemy combatants more rights than Geneva article 
V would require. Why is that not true? And why is it that CSRTs 
do not provide at least basic fundamental fairness?
    Commander Swift. Three reasons, sir.
    The first one is, how do you know when your CSRT is over? 
When you are declared a combatant, that is how you know. Don't 
like that decision? Send it back down, get new evidence. Still 
find the person not to be a combatant? Send it back down, more 
new evidence. Under article V, one time.
    Mr. Nadler. So a finding of innocent means they simply can 
do it over again.
    Commander Swift. Absolutely.
    Number two in the CSRT proceedings that don't comply with 
article V is, the definition of combatants has been radically 
changed. Under the CSRT definition, the little old lady in 
Switzerland who gave some financial support, as was explained 
to Joyce Hens Green, to a charity is now a combatant.
    By changing the meaningful distinctions that was in an 
article V tribunal on what actually constituted combatancy, one 
spread the net so wide as to catch anyone.
    Mr. Nadler. So that is wider than would be contemplated by 
article V?
    Commander Swift. Yes.
    Number three is the use or consideration of evidence that 
would have been obtained in violation of the conventions 
themselves. Again, evidence would not be considered in an 
article V tribunal that had been obtained by force or coercion.
    Mr. Nadler. Any other reasons?
    Commander Swift. Well, those are the three off the top of 
the head.
    Mr. Nadler. Okay. Thank you.
    What was referred to a moment ago by Mr. Hafetz, holding 
someone incommunicado for 16 months under harsh conditions, is 
that contemplated by article V?
    Commander Swift. Well, in the article V tribunal, not 
directly. Under the Geneva Conventions, absolutely, 30 days, 
maximum----
    Mr. Nadler. Under the Geneva Conventions, that is okay?
    Commander Swift. No. Under the Geneva Conventions, first 
you must register someone with the International Committee for 
the Red Cross, give an opportunity to visit. Second, solitary 
confinement cannot exceed 30 days. Access to sunlight, et 
cetera, must be----
    Mr. Nadler. Are these requirements met at Guantanamo?
    Commander Swift. They were for a period of time. They are 
not currently, unfortunately.
    Mr. Nadler. Okay.
    Commander Swift. They were met inside the Camp 4, which was 
a large-scale holding which----
    Mr. Nadler. But they are not currently.
    Commander Swift. Not currently.
    Mr. Nadler. Thank you.
    Let me ask you a different question. If someone is at 
Guantanamo and he is put before a CSRT, and the CSRT says, 
``You are not an enemy combatant and you are not a danger to 
the United States"--we are holding 75 such people anyway, 
right?
    Commander Swift. I don't have the exact numbers, currently.
    Mr. Nadler. I don't care about the exact number. We are 
holding people anyway.
    Commander Swift. Yes.
    Mr. Nadler. In other words, a finding of, ``You are not an 
enemy combatant, you are innocent,'' by the CSRT doesn't 
guarantee your release?
    Commander Swift. That is correct.
    Mr. Nadler. Under what authority do we hold people if they 
have been found not guilty?
    Commander Swift. I think that you do misuse a term there, 
sir. They haven't been found not guilty. They have been found 
not to be a combatant.
    Mr. Nadler. Why are they being held?
    Commander Swift. The difficulty is, in our spiriting these 
people away from Afghanistan, is now--and others are more 
qualified to testify about it--the ability to find someplace 
for them to be.
    Mr. Nadler. Well, Mr. Hafetz, if someone is in the United 
States and we think that he shouldn't be in the United States, 
we try to deport him. If no government will accept him, do we 
keep that person in jail?
    Mr. Hafetz. No, we cannot keep that person in jail 
indefinitely. There is a period of time----
    Mr. Nadler. So under what authority--and I think I will ask 
Mr. Berenson, too, in a moment--under what authority do we keep 
someone who has been adjudged not a threat, not an enemy 
combatant, do we keep them in jail because we can't find--
having brought them to Guantanamo, would the law not require 
that we simply release them in the United States if we brought 
them here and they can't go anywhere else and they have been 
judged not a threat and not an enemy combatant?
    Mr. Hafetz. In my view, it would. And the answer that the 
government would rely on is the President's power as Commander-
in-Chief, which, in its view, allows it to do virtually 
anything.
    Mr. Nadler. Mr. Berenson, the President's power as 
Commander-in-Chief allows him to hold someone in jail who has 
been judged not an enemy combatant, not a threat and guilty of 
no crime, indefinitely?
    Mr. Berenson. As soon as someone is determined not to be an 
enemy combatant, our government tries very hard to find a 
place----
    Mr. Nadler. Yes, but let's assume it could never do that. 
What then?
    Mr. Berenson. Well, the notion of bringing them into the 
United States strikes me as extremely dangerous. Let's not 
forget that there have been mistakes made.
    Mr. Nadler. Excuse me. Why is it extremely dangerous to 
bring someone in the United States who has been adjudged not to 
be a threat to the United States?
    Mr. Berenson. Because we are not always right about that. 
There are dozens of documented instances where----
    Mr. Nadler. Fine. Then let me ask a different question.
    So it is dangerous to bring them into the United States, we 
have brought them here, and, because of our mistakes, we are 
going to hold them in jail forever, even though we have 
adjudged them not to be guilty of anything, not to be an enemy 
combatant and not to be a threat?
    Mr. Berenson. I don't think anybody wants to hold those 
people forever or----
    Mr. Nadler. Never mind they want to, but that is what we 
are going to do if we can't find a foreign country to accept 
them?
    Mr. Berenson. Well, we are going to work as hard as we can 
to find someplace to send them, and eventually we will.
    Mr. Nadler. Do we have the right under our law, in your 
opinion, to keep them in jail forever if we cannot find such a 
foreign country?
    Mr. Berenson. I mean, if the only alternative is to release 
them into the population of the United States and give them 
immigration status----
    Mr. Nadler. Your answer is yes.
    Mr. Berenson. I am just not--it is a series of bad choices 
at that point----
    Mr. Nadler. That we have created.
    Mr. Berenson. Well, listen, we make mistakes all the time 
in this and lots of other arenas. And, you know, the question 
is, what do we do to fix them? And I think we try very hard to 
fix them in these cases.
    Mr. Nadler. I thank you.
    My time has expired. The gentleman from Arizona?
    Mr. Franks. Well, thank you, Mr. Chairman.
    I guess, just for the record here, Commander Swift had 
mentioned some time ago that I had made some sort of a 
reference to criminal defendants; that I would have the 
criminal defendants not have any due process at all.
    First of all, I have never referred to them as criminal 
defendants, because I think that implies that they are 
defendants under the Constitution of the United States, which I 
do not believe. And I believe that that is the pertinent 
question before this Committee.
    Indeed, I believe that they are unlawful combatants, and I 
believe that that law that I speak of that makes them unlawful 
is essentially every war laws that we have in the world. And 
what makes them unlawful combatants besides is their 
willingness to slaughter innocent people.
    There was a statement made that the notion that we wouldn't 
afford them constitutional rights was un-American. First of 
all, America has never afforded constitutional rights to people 
in the battlefield. So that is, kind of, on the face of it, an 
incorrect statement.
    But let me tell you what is really un-American. What is un-
American is blowing innocent women and children up. What is un-
American is cutting people's heads off with a hacksaw while the 
victims scream in front of a TV camera. Those things are the 
un-American things.
    And, again, I am just astonished at how much we have veered 
off of the real subject here. It is too bad that we don't have 
as much focus in this Committee and in Congress on stopping 
terrorists from continuing to wreak the havoc and hell that 
they have done in the past. We are focused on making sure that 
we give them more due process than any country in the history 
of humanity has done and which we already do.
    With that said, Mr. Berenson, as I suggested, your 
testimony here has been so compelling. And I am hoping that you 
might be able to expand on some of the points that you were 
talking about earlier with the Chairman.
    Mr. Berenson. Yes, I guess the main point there has to do 
with the risk of error in these detentions.
    Everybody understands that in any kind of detention, 
whether it is in our criminal justice system or it is in 
wartime in a traditional war like World War II or in this kind 
of unconventional war, there is going to be an error rate in 
detention, just as there is in who you shoot, who you drop a 
bomb on, what property you destroy. That is just reality.
    The question is, what kind of error rate shall we tolerate, 
and how much process shall we build in to reduce the risk of 
error? More process probably will reduce the risk of error, but 
the question is, at what price?
    And one of the prices that we pay for building in more 
process is creating more of the opposite kind of error; that 
is, erroneous releases rather than erroneous detentions.
    In wartime, nations have traditionally not regarded 
protecting the rights of their presumed adversaries as the 
paramount value. They naturally protect themselves and protect 
their societies and understand that a lot of innocent people 
are going to get hurt in the process, and that is just one of 
the terrible but unavoidable things about war.
    If we engraft habeas corpus protections onto the existing 
system, I can guarantee that we will have more erroneous 
releases. Each erroneous release represents a risk of another 
9/11 or worse.
    Even under these procedures, and earlier ones which some of 
the other panelists think are manifestly inadequate, there are 
dozens of documented instances where we have found detainees to 
be not enemy combatants, repatriated or released them, and then 
found them on the battlefield fighting against us once more. 
That is a very high price for a nation at war to pay.
    Mr. Franks. Thank you, sir.
    Mr. Chairman, I guess I will just try to associate myself 
with Mr. Berenson's comments. I believe that if we grant the 
writ of habeas corpus to prisoners in Guantanamo that we 
believe are terrorists, that the effect will be more of our 
soldiers will die and that we will take a greater risk of 
endangering American citizens.
    And I truly believe that a dirty bomb or some terrible 
terrorist attack on this country will transform this debate 
very dramatically.
    With that said, I would like to ask one question of 
Commander Swift.
    The Military Commissions Act, far from abolishing the writ 
of habeas corpus, provides captured unlawful enemy combatants 
with judicial review opportunities that far exceed 
constitutional requirements.
    Can you describe any system of judicial review in any other 
country in the world that has provided greater procedural 
protections to unlawful enemy combatants that were at war with 
that country than we have?
    Commander Swift. The International Criminal Tribunal for 
Yugoslavia, the International Criminal Tribunal for Rwanda, the 
current tribunal set up for Sierra Leone, the Uniform Code of 
Military Justice, the British detainment act, the Israeli 
detainment act, all provide more and none permit tortured 
testimony.
    Mr. Franks. Nor does ours. Under our laws, it is 20 years 
in prison to torture any person in our custody, and if they 
die, it is a death penalty.
    There is a lot of distortion there, Mr. Swift.
    Commander Swift. Well, sir, it might be a penalty for it, 
but under the Military Commissions Act nothing prevents the 
government from entering testimony that was obtained by 
inducing the system a feeling or sensation or drowning to the 
point that one believes one is going to die. And at that point, 
if the confession or statement against someone else is brought 
forward, the Military Commissions Act permits that testimony to 
be entered.
    It permits testimony to be entered--I will just give you 
one example, sir.
    Mr. Franks. Forgive me, Mr. Chairman, I know my time is up 
here. But if such testimony was going to save millions of 
lives, or thousands, or tens of thousands of lives, we would be 
derelict in not making sure that we understood that.
    Commander Swift. Sir, you asked me whether those systems 
would permit it.
    Mr. Nadler. The gentleman's time has expired. The witness 
may answer the question.
    Commander Swift. Yes, sir.
    A, the debate on how to interrogate someone is a different 
debate. The debate for here is whether a court of law should 
consider the testimony or not, sir. And under none of those 
systems, including Israel's system, would that testimony be 
considered.
    Great Britain has dealt with this in Ireland. Israel deals 
with it every day. And when we look at both of those systems, 
they have been able to do it without compromising their 
judicial integrity. And I argue that the military system and 
the existing Federal system can do it as well.
    Mr. Franks. Mr. Chairman, I just have to respond, with 
unanimous consent, for 30 seconds.
    Mr. Nadler. Gentleman is granted----
    Mr. Franks. If indeed----
    Mr. Nadler. By unanimous consent, the gentleman is granted 
an additional 30 seconds.
    Mr. Franks. If indeed the gentleman is suggesting that 
Israel--I don't know about Rwanda--but that the gentleman is 
suggesting that Israel grants its own constitutional rights to 
its prisoners of war in a suggested situation like that, I 
would love to see the proof of that.
    And with that, I yield back.
    Mr. Nadler. Well, the gentleman can answer that question.
    Commander Swift. Sir, I am referring basically to the 
Israeli Supreme Court decision in the use of testimony and the 
trial of persons detained, members of the PLO or other 
terrorist organizations.
    Mr. Franks. That wasn't my question. That wasn't my 
question.
    Commander Swift. I thought it was.
    Mr. Nadler. The gentleman's time has expired.
    The gentlelady from Florida?
    Ms. Wasserman Schultz. On that note, thank you, Mr. 
Chairman.
    I represent a district in south Florida, so obviously 
Guantanamo is of strategic importance and concern to my 
constituents and to me.
    And quite honestly, I have not determined that I believe 
that Guantanamo should be closed. In fact, Lieutenant Commander 
Swift, I believe in your testimony you said that Guantanamo Bay 
should represent the best of the rule of law.
    And that is really the spirit in which I view how we should 
be conducting operations at Guantanamo. I think, rather than 
simply closing it, we should be conducting investigations and 
questioning in an appropriate way that upholds human rights.
    And I want to ask you, Commander Swift, about the 
President's conversation last week with Vietnamese President 
Nguyen Minh Triet. And they discussed trade and human rights 
issues. The President was quoted to have said, ``In order for 
relations to grow deeper, it is important for our friends to 
have a strong commitment to human rights, freedom and 
democracy.''
    Do you think that the continued detention of hundreds of 
men without charge and without habeas rights at Guantanamo 
makes us hypocrites?
    Do you not feel that this paints us as hypocrites when we 
ask countries such as Vietnam, China, Sudan to adhere to 
standards that we ourselves don't follow?
    Do you think that this undermines U.S. efforts to win 
hearts and minds, an essential component of any successful 
counterinsurgency strategy?
    And do you not also believe that this puts U.S. troops at 
risk, making it harder to credibly object if our own soldiers 
are taken into custody and held indefinitely without charge and 
without the ability to contest the basis of their detention?
    And, lastly, I will say that, as a Member of Congress who 
also argues that we should ensure that Cubans have human rights 
and who stands up for their human rights and supports the 
current restrictions on our interactions with Cuba, doesn't it 
further make us hypocrites, right on the very land that we are 
violating people's human rights, that we insist that the 
country on the other side of the fence do the same?
    Commander Swift. You missed my earlier testimony, ma'am. 
Yes. The answer is yes. I will only expand on this.
    You know, down in Guantanamo Bay, you can't help but hear 
the Cuban radio station. It bleeds over. And my translator is 
fluent in Spanish, and I am okay, barely okay, and we listen to 
it.
    And what strikes us is that, if you listen to the regular 
news, well, I guess they have their spin is the best I can put 
on it, until they get to Guantanamo Bay, wherein they don't 
spin it at all. They just read it off and argue that this 
demonstrates, here on Cuban soil, who the United States really 
is and how they act toward people who don't agree with them.
    And, again, that part, the image that Guantanamo Bay poses 
to us and the danger that it presents to us not to follow the 
rule of law, I agree with Mr. Berenson: There is always this 
question in safety, on procedure. But I disagree on the idea 
that if you let one guilty person go, you are--an incredible 
threat.
    To me, Guantanamo Bay, as a recruiting magnet and as a 
cloak for those who would abuse human rights the world over, 
does far more damage than any one person who might be let go by 
following the rule of law.
    Ms. Wasserman Schultz. Mr. Hafetz, since my time has not 
expired, if you wouldn't mind addressing my question as well.
    Mr. Hafetz. Well, I agree completely with everything that 
Commander Swift said.
    You know, the goal here is to create a rights-respecting 
approach to national security policy, an approach that balances 
liberty and national security, that enables us to effectively 
fight terrorism and remain strong while remaining true to our 
values.
    And Guantanamo contradicts that. It undermines that in 
every possible respect. It undermines the United States's moral 
credibility. It undermines support among moderate Arab and 
Muslim communities whose support is absolutely essential to 
fighting terrorism.
    So, you know, for these reasons, Guantanamo is really an 
eyesore and it undercuts the fight against terrorism.
    And, again, one of the principal reasons for that is the 
absence of a lawful process, the absence of habeas corpus and 
the failure to provide what is really a cornerstone of our 
values and our system, and has always been.
    Mr. Nadler. Thank you. The gentlelady's time has expired.
    The gentleman from Ohio is recognized for 5 minutes.
    Mr. Jordan. Thank you, Mr. Chairman.
    I want to go back to--and Commander Swift has actually 
alluded to this twice now, but earlier he was a little more 
adamant about it. He said that Guantanamo Bay represents the 
biggest recruitment poster that there is for terrorists.
    And I would just kind of want to get the rest of the 
panel's response. And let me attempt to frame it first before I 
ask you what your response to his statement.
    Because I am always troubled by this, that somehow 
America's actions are what caused the terrorists to do the 
things, the bad things they have done to us. And I would say, 
you know, what was the recruitment poster prior to the USS 
Cole? What was the recruitment poster prior to the Khobar 
Towers? What was the recruitment poster prior to the first 
World Trade Center? What was the recruitment poster prior to 
our Marine barracks being bombed in Lebanon? What was the 
recruitment poster prior to 1979 when they took over our 
embassy in Iran and held hostage American citizens?
    I mean, at what point does that logic break down? Because 
you can go all the way back.
    And I have been here for an hour now and haven't heard from 
Mr. Katsas, so let's start with Mr. Katsas.
    Mr. Katsas. I think that is a very good point. The notion 
that if we ratchet up the protections at Guantanamo Bay with 
respect to combatant status review tribunal procedures, 
military commission prosecutions, how we treat the individuals 
there, the notion that incrementally improving or substantially 
improving the procedures would cause al-Qaida to just wither 
away and say, ``Well, that is fine, never mind, we will stop,'' 
seems to me fanciful. There will always be radical elements 
willing to attack the United States.
    With respect to the different question about how reasonable 
people react to what is going on, I frankly think there must be 
a failure of explanation on our part, because the fact of the 
matter is, both with respect to protections in the combatant 
status review tribunals and with respect to protections in the 
military commission prosecutions, we have exceeded historical 
norms for the conduct of a war. We have exceeded norms applied 
internationally, judged by reference to the relevant law-of-war 
baseline. And I don't think the United States has anything to 
be ashamed about in that record.
    Mr. Jordan. Mr. Taft?
    Mr. Taft. Thank you, sir. I would just make two points.
    I agree, generally, with what Mr. Katsas said about the 
effect of what we are doing and how we are conducting ourselves 
in the war on terror on our enemies. They are not impressed. 
They will not be better or worse because of what they see us 
doing.
    I think there is a cost to us, actually, with, potentially, 
our friends, who--their publics are not--have been very 
distressed and publicly unsupportive of a lot of actions that 
we take, not necessarily in the war on terror but in Iraq, in 
other areas of the world, where their enthusiasm for our 
policies has been diminished because of disagreements over the 
policies that we have been following vis-a-vis the terrorists.
    And when the British, for example, said that they couldn't 
accept our system down there because it was not consistent with 
civilized norms, I think that hurt us very much in getting 
cooperation and assistance from that crucial ally, who wants to 
think as well of us as it possibly can.
    And so that is where the cost comes. It is not with your 
enemies; they are hopeless.
    Mr. Jordan. Thank you. I have got 30 seconds.
    Mr. Berenson. I will be brief because I have very little to 
add to what Mr. Taft and Mr. Katsas said.
    I think it is absolutely correct that Guantanamo is a 
recruiting tool. Surely it is a recruiting tool. But if we were 
to wave a wand and make it disappear tomorrow, that would not 
stop recruiting efforts. And I think it would not meaningfully 
slow recruiting efforts.
    They have a laundry list of other grievances. September 11, 
2001, happened after a period in which President Clinton 
invested more of this Nation's capital and energy in trying to 
resolve the Arab-Israeli problem than had happened in a long, 
long time.
    One of their grievances against us in the 1990's had to do 
with our stationing troops in Saudi Arabia, which happened only 
because we intervened to protect one Muslim nation, Kuwait, 
from another, Iraq.
    So the world view on the other side is so warped and so 
different that certainly nothing having to do with habeas 
corpus rights is going to, in my view, meaningfully affect 
recruitment.
    Mr. Jordan. Thank you, Mr. Chairman. I think my time----
    Mr. Nadler. Thank the gentleman.
    I now recognize the gentleman from Tennessee, Mr. Cohen, 
for 5 minutes.
    Mr. Cohen. Thank you, Mr. Chairman.
    And if any of this is duplicated with other questions, I 
apologize.
    I think it was Mr. Berenson, when I listened to your 
testimony, you talked about this being a war on terror and 
unique situations.
    How do we define who the combatants are in a war on terror?
    Mr. Berenson. I actually am one of those people who 
believes ``war on terror'' is a bit of a misnomer. That is a 
tactic that could be employed by a variety of different people.
    I think it is a war on an ideologically motivated group, 
religiously based fascists, militant Islamists, who are willing 
to use extreme violence to try to reimpose a caliphate on at 
least part of the world. And I think our adversaries, the enemy 
combatants, are defined by their adherence to that philosophy 
coupled with their pledged commitment to use extreme violence 
against us to try to make it ascendant.
    Mr. Cohen. So they have to be Islamists? If they just 
wanted to rain terror on our country for some other reason 
other than religiously inspired, they would not be considered 
part of the war on terror?
    Mr. Berenson. I believe that is correct. I am not aware of 
any other terror group at this point that the United States 
government regards as posing a military threat to us.
    Mr. Cohen. So anybody else, would you think it would be all 
right to give them habeas corpus?
    Mr. Berenson. Well, if they were here in the United States 
or if they were U.S. citizens, we would. If there were 
terrorists of some other sort in Indonesia and our intelligence 
services had some reason to interact with them, I don't believe 
habeas corpus would extend to them there.
    Mr. Cohen. But there would have to be a religious test. 
Somebody would have to determine what their religion was to see 
if they fell under the war on terror, to see whether or not 
they were disqualified from having this particular American 
cornerstone of justice extended to them?
    They would have to fail this religious test and be one of 
the anti-religions. Is that right?
    Mr. Berenson. It is not a religious test. I need to be very 
clear about that. The vast majority of Muslims are in no way 
affected by this at all.
    It is a test about belonging to particular militant groups 
that have been waging war against us for more than a decade. 
That would be al-Qaida and its affiliated organizations and the 
Taliban.
    It is really those groups. There is a religious component 
to who they are and what they believe, but the test is not 
itself religious.
    Mr. Cohen. What if there was, like, an agnostic over there, 
but they didn't like the fact that we had invaded their 
country, destroyed their culture, destroyed their economy, but 
they didn't like us as an invading power and they did some act 
against us and they were captured.
    Would they qualify if they didn't want the caliphate to be 
reimposed, they just----
    Mr. Nadler. The gentleman's time has expired. The witness 
may answer the question.
    Mr. Berenson. I don't think al-Qaida or the Taliban would 
be a particularly comfortable place for agnostics, but I think 
there probably are people of that description in Iraq, for 
example. And I believe our nation's current policy is to treat 
them according to the Geneva Conventions, and I believe that is 
what we do.
    Mr. Nadler. Thank you.
    And we have been joined now by the gentlewoman from Texas, 
Ms. Jackson Lee, who is a Member of the full Committee but not 
a Member of the Subcommittee.
    With unanimous consent, she will permitted to sit in the 
Subcommittee and will be recognized for 5 minutes to ask 
questions of our witnesses after the Members of the 
Subcommittee have had the opportunity to do so.
    Mr. Franks. Chairman, I would have to object on that.
    Mr. Nadler. Excuse me?
    Mr. Franks. Kind of a longstanding objection to Mr. Smith, 
Mr. Chairman.
    Mr. Nadler. I would ask my colleague to reconsider the 
gentlewoman from Texas a Member of this Committee. I realize 
that the Ranking Member of the full Committee, the gentleman 
from Texas, has a declared policy of objecting to the 
participation of other Members of the Committee in our work. 
That is regrettable and not helpful to our work.
    For example, in the past, the minority has objected to the 
participation of our full Committee colleague from 
Massachusetts, Mr. Meehan, in the hearing on the reform of the 
Lobby Disclosure Act, an issue on which he is the recognized 
leader and expert.
    In prior Congresses, other Members of the Committee and 
other Members of the House have been allowed, as a matter of 
comity and courtesy, to proceed in our proceedings. No one has 
objected.
    It is a small courtesy that has previously been extended to 
Members on both sides of the aisle. I hope the gentleman would 
reconsider his objection on this occasion.
    Does the gentleman insist on his objection?
    Mr. Franks. Mr. Chairman, unfortunately I have to insist on 
the objection. If there is an opportunity for the Chairman of 
this Committee and the Ranking Member of the Committee to work 
this thing out in the spirit of comity, I would be certainly 
very amenable to that. But given the nature of the situation, I 
would hope that we could take that up with the Ranking Member 
of the full Committee.
    Mr. Nadler. The gentleman is within his rights under the 
rules. The objection is heard.
    Clause (2)(g)(2)(C) of Rule XI of the Rules of the House 
declare, ``A member, delegate or resident commissioner may not 
be excluded from non-participatory attendance at a hearing of a 
committee or subcommittee.'' Pursuant to the rule and in light 
of the gentleman's objection, the gentlewoman is entitled to 
non-participatory attendance.
    I would remind my friend that I fully intend to apply the 
rules in a consistent and even-handed manner. I very much 
regret this objection. I am glad the objection was not heard 
yesterday at this Committee's hearing on the 9/11.
    On behalf of the Subcommittee, I want to apologize to our 
colleague from Texas.
    I will now recognize----
    Ms. Jackson Lee. I thank the Chairman.
    Mr. Franks. Might I just tell the gentlelady that there is 
certainly nothing personal intended on my part whatsoever.
    Ms. Jackson Lee. Thank you.
    Mr. Nadler. And I should add that the only reason that the 
objection was not made yesterday was that we had the unanimous 
consent before our Members of the minority were present. 
[Laughter.]
    So as not to make it seem as if the Members of the minority 
are discriminating against the gentlelady from Texas.
    Ms. Jackson Lee. Thank you. I watched that on late-night 
television. So thank you, folks. [Laughter.]
    Mr. Nadler. You are quite welcome.
    Ms. Jackson Lee. Thank you for clarifying that it is not 
personal. Thank you.
    Mr. Nadler. I now recognize the gentleman from Minnesota 
for 5 minutes.
    Mr. Ellison. Thank you, Mr. Chair.
    And I also want to extend my apologies to Congresswoman 
Jackson Lee, who is always insightful and always has excellent 
and important questions that are often missed. So it really is 
too bad we couldn't get better cooperation.
    But my question is for Mr. Katsas and also for you, Mr. 
Berenson. And I would like if you both feel free to jump in. 
You have both been clear; you have articulated your positions 
very well.
    While I will freely admit I don't agree, let me ask you 
this. What about this point: that by having fewer rights for 
the detainees, or having--to put it like this, the situation in 
Guantanamo and the detainees, the lack of habeas corpus rights 
there, don't you agree that we do pay a cost?
    I mean, I am not asking how highly you rate it, but don't 
you agree we do pay a cost, in terms of our reputation, in 
terms of our standing in the world, with regard to being a 
symbol of civil and human rights?
    Mr. Berenson. I do agree, Congressman Ellison. In my 
written testimony, I acknowledge that extending greater 
procedural rights to the detainees, along with probably lots of 
other things, could be expected to have some benefit. How big 
is a very big question in my mind, as an earlier answer 
suggested, but it could be expected to have some benefit, in 
terms of world opinion.
    And I don't discount the value of world opinion, not just 
for making us, as a Nation, feel good about ourselves and feel 
true to our traditions and our principles, but also in terms of 
the effectiveness of the war. I am not dismissive of that. I am 
skeptical about whether extending habeas rights will 
meaningfully impact that.
    I also think we have to be careful not to over-weight those 
considerations, because sometimes the Nation has to act in its 
own interests to protect its own citizens, even when that will 
make it unpopular.
    But I don't discount that at all.
    Mr. Ellison. Mr. Katsas?
    Mr. Katsas. I think I would give the same answer that I 
gave a few moments ago. I don't think it has any material 
effect on the people who are actually waging war against us.
    Mr. Ellison. Okay, thank you. Thank you.
    There was an earlier question in which we were talking 
about this subject, and I think one of my colleagues made the 
point that there had been other instances in the past, and they 
asked the rhetorical question, ``What was the poster child 
then?"
    But I think it is--and just recalling my own history for a 
moment, it sounds to me like not all of these incidents 
involving people who call themselves Muslims, who either 
attacked the United States or an embassy--that these are 
different historical circumstances in some of those cases.
    For example, in 1979, when the American embassy was 
stormed, aren't the historical circumstances in Iran quite a 
bit different from what led to the historical lead up to, say, 
the 1993 World Trade Center incident and also the World Trade 
Center?
    Mr. Hafetz, what is your understanding of history? Can we 
lump all these things together, or are they, in some ways, 
different?
    Mr. Hafetz. I think it is very dangerous to lump those 
things together, and I didn't quite understand the reference to 
the ``they'' in the 1979 in Tehran. I assumed the ``they'' was 
the----
    Mr. Ellison. It is the students.
    Mr. Hafetz [continuing]. The students, which I have not 
read anywhere were responsible for September 11th. You know, it 
is a different issue.
    I think it is very important to keep in mind, I think this 
is a problem with this, sort of, notion of this global war on 
terrorism and unchecked executive power, is that it prevents 
carefully thought out, calibrated responses to the real threat. 
It allows for or it leads to often bad information, 
misjudgments.
    And sort of lumping everyone together prevents us sometimes 
from seeing clearly what the real threat is and then going 
after that real threat, rather than just sort of lumping 
everyone together in a generalized ``us and them'' mentality, 
which, frankly, according to many experts, including I would 
refer you to the work of Louise Richardson, a leading terrorism 
expert--according to many of these experts, actually this plays 
exactly into the terrorists' hands.
    Mr. Ellison. When you say ``they,'' as if all the people 
involved in these incidents are all united and are operating 
out of a central plan, that does actually feed directly into 
the argument that I believe Commander Swift was referencing 
earlier, is that I am sure that Osama bin Laden would love to 
be able to say that ``They are against all of us,'' even though 
the historical circumstances behind these incidents is unique 
and different.
    Commander Swift?
    Oh, we are done?
    Mr. Nadler. Finish your question.
    Mr. Ellison. Commander Swift, would you like to respond 
to----
    Commander Swift. Certainly.
    Mr. Nadler. The time of the gentleman has expired. The 
witness may answer the question.
    Commander Swift. Yes, sir. I will put it simply in respect 
to Guantanamo itself.
    In Guantanamo, those of us who have represented down there 
know that there is an ongoing battle between those who 
absolutely, immediately say, ``Yes, I will kill Americans; 
there is no process.'' Those people, in my experience, the hard 
core in Guantanamo, don't meet with their lawyers, don't want 
their lawyers, don't want anything to do with this.
    Those who want to believe in the process, who may or may 
not have been picked up in error, who are represented--there is 
a constant battle inside the prison itself for recruitment on 
who you are going to recruit. Constantly my client has 
suggested that he is a fool to put his trust in an American 
lawyer or to spend any time with him and that of course I will 
sell him out because of who I am. And that battle goes on every 
day.
    I don't mean to suggest that without Guantanamo Bay there 
won't be those to oppose us. But I would ask whether, the day 
after 9/11, whether we think the majority of the Muslim world 
was against us or with us, the majority of Saudi Arabia, the 
majority of Yemen. And as these policies go out, it is for that 
elastic center that we play.
    There will always be enemies. The question is, how many 
friends can we make?
    Mr. Nadler. Thank you.
    The gentleman from Indiana is recognized for 5 minutes.
    Mr. Pence. Thank you, Chairman. And thank you to the 
Committee for assembling this learned panel of distinguished 
Americans.
    I would like to focus my questions on Mr. Berenson, the few 
minutes that I have.
    And having been otherwise employed today at a few markups 
and otherwise, I apologize to the panel for not being here for 
their live testimony. But I look forward to reviewing the 
transcript.
    But I must tell you, Mr. Berenson, I am preoccupied every 
day with the issue of the protection of the American people. It 
seems to me that the oath of office I take really begins with 
making those decisions necessary to provide for the common 
defense.
    And so the question of whether the Constitution was meant 
to extend its protections to foreign enemies of this country is 
kind of inherently contradictory to me. But I am willing to 
consider these issues, because I cherish the Constitution, and 
I am willing to consider these issues thoughtfully.
    Let me ask very specifically, Mr. Berenson, if the 
detainees from Guantanamo are transferred, as some have 
suggested, to Fort Leavenworth, Kansas, can you describe for 
me, as a result of that change in their geographic location, 
how would their rights change?
    Mr. Berenson. There is an important respect in which their 
rights would change, and then there are some other significant 
disadvantages.
    Once they are on U.S. soil, they do have a greater claim to 
the protection of our laws and our Constitution. There would be 
a much more serious question about the constitutionality of the 
Military Commissions Act's restrictions on judicial review as 
to people who are located in Kansas than people who are located 
in Cuba. And I believe Mr. Hafetz's client, Mr. al-Marri, was 
in that category. So their legal rights would be greater. The 
claims that they would have on our system would be greater.
    Perhaps equally as important, bringing them to Leavenworth 
would put the citizens of Kansas at risk because immediately 
Fort Leavenworth becomes an accessible target to their 
confederates on the outside, an object of possible terrorist 
attack. And it is here on our soil. I don't know why we would 
want to create more targets than we already have here on U.S. 
soil.
    And finally, I think bringing them into a mainstream U.S. 
prison population creates the potential for, as we have been 
discussing in other contexts, recruitment. I think that unless 
you were going to keep these people segregated or in solitary 
confinement or in some other way, there is no doubt but that 
they would try to recruit U.S. citizens.
    And by far the most dangerous kind of adversary we have 
here, the most prized kind of recruit for al-Qaida, is a U.S. 
citizen, precisely because of the citizen's ability to blend 
into the population, its knowledge of our customs and our 
mores, and their ability to avoid some of these tougher 
measures that we can apply to alien enemy combatants.
    Mr. Pence. So you said, with regard to the law and the 
Constitution, I am very interested in your notion that there is 
something about being on U.S. soil that gives one greater 
purchase----
    Mr. Berenson. Absolutely.
    Mr. Pence [continuing]. Protections of the Constitution. I 
don't discount that. And it in very many respects is the focus 
of this hearing.
    Let me make sure I understand your second point, if I can. 
Specifically, the people of Leavenworth, Kansas, should know 
that at the moment at which enemy combatants are transferred to 
their facility, that Leavenworth would become a very attractive 
target for terrorist elements.
    Is that what you are referring to, or----
    Mr. Berenson. That is my own personal view. Leavenworth 
would gain the kind of currency in jihadi circles that 
Guantanamo currently has. The difference is that one is in Cuba 
and one is in the heartland. I would rather have their focus on 
Cuba than on Kansas.
    Mr. Pence. Going back to your first point, the greater 
purchase on rights associated with questioning military 
tribunals and detainment, habeas corpus rights, elaborate for 
me, if you will. Because I think most Americans don't 
understand the nature of that greater purchase on the 
Constitution: that once we bring people onto the soil of the 
United States of America, there are rights and privileges that 
attach to persons.
    It is one of the great miracles of the Constitution. It is 
one of my bases for my pro-life positions. And I think the 
Constitution answers to persons, and the argument over 
personhood is very much the American argument throughout our 
history. And so we are not a Nation that extends our rights and 
privileges to citizens.
    So talk to me, if you can, about when an individual becomes 
a person within the jurisdiction of the United States.
    Mr. Berenson. Sure.
    Mr. Nadler. Gentleman's time is expired. The witness may 
answer the question.
    Mr. Berenson. There is a general point and a specific 
point.
    The general point is that the protections of the 
Constitution flow to people who have a meaningful connection 
with the United States. They are at their fullest flower with 
U.S. citizens, and they follow those citizens throughout the 
globe. So what our government cannot do to me here, it cannot 
do to me in France, so there is a nationality principle.
    But then there is also a territorial principle. That is, 
the Constitution reigns where the United States government 
reigns territorially. So even aliens, even illegal aliens, who 
come onto our soil are entitled to a much greater level of 
protection from our Constitution than they would receive if 
they were abroad.
    The Supreme Court in the Verdugo-Urquidez case said that 
DEA agents were not violating the Constitution when they 
essentially kidnapped a drug lord down in Mexico. If that drug 
lord had been in the United States, the same thing could not 
have happened. You would have had to arrest him according to 
constitutional norms and treat him as a criminal suspect.
    The specific point relates to habeas corpus: the wartime 
cases where the Supreme Court has reviewed enemy combatant 
determinations have involved people here. The Nazi saboteurs 
came ashore on Long Island and were captured here, and that is 
why they had access to the Federal courts.
    So the policy choice that I believe Congress has, as it 
relates to Cuba or other places outside our shores, is largely 
taken away if we bring those people here in the U.S. The 
Constitution will dictate access to the courts.
    Mr. Pence. Thank you, Chairman.
    Mr. Nadler. With unanimous consent, I will ask for 30 
seconds.
    Mr. Berenson, didn't the Supreme Court, on your last point, 
in one of the cases--or Mr. Berenson, Mr. Hafetz--say that, 
given the control the United States has in perpetuity over 
Guantanamo, it is essentially the same as the United States for 
geographical purposes?
    Mr. Hafetz. Yes, it did----
    Mr. Nadler. Mr. Berenson first, and then Mr. Hafetz.
    Mr. Hafetz. Oh, sorry.
    Mr. Berenson. No, no, go ahead. We will do point/
counterpoint on this.
    Mr. Nadler. No, Mr. Berenson first because I asked you 
first, and then Mr. Hafetz.
    Mr. Berenson. Yes, sure.
    The Supreme Court has not held that Guantanamo Bay is the 
United States. There were some comments made by Justice Kennedy 
in a concurrence, which, if you stitched them together with 
some comments made in Justice Stevens's opinion, give grounds 
for people to expect that it is possible that when this next 
comes up before the Supreme Court there will be five votes to 
say that our Constitution extends to Guantanamo Bay.
    I believe that that view is not correct. There will 
probably be a full briefing on it.
    Among other things, in Guantanamo Bay--I learned this when 
I went and visited there--we don't have the most basic element 
of a property right; namely, the right to exclude. Cuban 
commercial vessels are entitled to traverse the bay on our 
territory, without our permission.
    So there are a lot of reasons to think that----
    Mr. Nadler. But they can't come onto land, can they?
    Mr. Berenson. No, I don't believe they can come onto land, 
but they can traverse the bay----
    Mr. Nadler. Thank you.
    Mr. Hafetz?
    Mr. Hafetz. I think the court's opinion in the Rasul case 
makes clear that Guantanamo is considered U.S. territory by 
virtue of the long-term, permanent, exclusive jurisdiction and 
control that the U.S. exercises there. It is, for all intents 
and purposes, U.S. territory.
    Mr. Nadler. And the fact that, as Mr. Berenson points out, 
commercial vessels can criss-cross the bay, that is irrelevant 
for the court's decision?
    Mr. Hafetz. I think that consideration would have been 
irrelevant to the court's decision. I don't know that I have 
looked at that, but it was irrelevant.
    I mean, the fact of the matter is this, as I say, 
basically, for all practical purposes, U.S. territory. Again, 
it is in the concurring opinion of Justice Kennedy where he 
says it is essentially United States territory. And having been 
down to Guantanamo a number of times, I mean, this really looks 
like the United States. It has McDonald's, it has Starbucks, et 
cetera.
    Mr. Nadler. I have been there, too. But it is not important 
what it looks like; it is that the Supreme Court seems to think 
so.
    Mr. Hafetz. Yes, this is a U.S. enclave.
    Mr. Nadler. Thank you.
    On behalf of the Subcommittee, I want to thank our 
witnesses for appearing here today, for your testimony on this 
very important question.
    Without objection, all Members have 5 legislative days to 
submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as promptly as you can so that your answers may be part 
of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    And again, let me thank the witnesses and thank the 
observers for being patient.
    And with that, this hearing is adjourned.
    [Whereupon, at 4:15 p.m., the Subcommittee was adjourned.]





















                            A P P E N D I X

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               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 
Congress from the State of New York, and Chairman, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties

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