[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
Available via the World Wide Web: http://judiciary.house.gov
----------
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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
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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
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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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]