[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 110-51]
MILITARY COMMISSIONS ACT AND THE CONTINUED USE OF GUANTANAMO BAY AS A
DETENTION FACILITY
__________
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
HEARING HELD
MARCH 29, 2007
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
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HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Tenth Congress
IKE SKELTON, Missouri
JOHN SPRATT, South Carolina DUNCAN HUNTER, California
SOLOMON P. ORTIZ, Texas JIM SAXTON, New Jersey
GENE TAYLOR, Mississippi JOHN M. McHUGH, New York
NEIL ABERCROMBIE, Hawaii TERRY EVERETT, Alabama
MARTY MEEHAN, Massachusetts ROSCOE G. BARTLETT, Maryland
SILVESTRE REYES, Texas HOWARD P. ``BUCK'' McKEON,
VIC SNYDER, Arkansas California
ADAM SMITH, Washington MAC THORNBERRY, Texas
LORETTA SANCHEZ, California WALTER B. JONES, North Carolina
MIKE McINTYRE, North Carolina ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California KEN CALVERT, California
ROBERT A. BRADY, Pennsylvania JO ANN DAVIS, Virginia
ROBERT ANDREWS, New Jersey W. TODD AKIN, Missouri
SUSAN A. DAVIS, California J. RANDY FORBES, Virginia
RICK LARSEN, Washington JEFF MILLER, Florida
JIM COOPER, Tennessee JOE WILSON, South Carolina
JIM MARSHALL, Georgia FRANK A. LoBIONDO, New Jersey
MADELEINE Z. BORDALLO, Guam TOM COLE, Oklahoma
MARK UDALL, Colorado ROB BISHOP, Utah
DAN BOREN, Oklahoma MICHAEL TURNER, Ohio
BRAD ELLSWORTH, Indiana JOHN KLINE, Minnesota
NANCY BOYDA, Kansas CANDICE S. MILLER, Michigan
PATRICK J. MURPHY, Pennsylvania PHIL GINGREY, Georgia
HANK JOHNSON, Georgia MIKE ROGERS, Alabama
CAROL SHEA-PORTER, New Hampshire TRENT FRANKS, Arizona
JOE COURTNEY, Connecticut THELMA DRAKE, Virginia
DAVID LOEBSACK, Iowa CATHY McMORRIS RODGERS, Washington
KIRSTEN GILLIBRAND, New York K. MICHAEL CONAWAY, Texas
JOE SESTAK, Pennsylvania GEOFF DAVIS, Kentucky
GABRIELLE GIFFORDS, Arizona
ELIJAH E. CUMMINGS, Maryland
KENDRICK B. MEEK, Florida
KATHY CASTOR, Florida
Erin C. Conaton, Staff Director
Paul Oostburg Sanz, Professional Staff Member
Roger Zakheim, Professional Staff Member
Margee Meckstroth, Staff Assistant
C O N T E N T S
----------
CHRONOLOGICAL LIST OF HEARINGS
2007
Page
Hearing:
Thursday, March 29, 2007, Military Commissions Act and the
Continued Use of Guantanamo Bay as a Detention Facility........ 1
Appendix:
Thursday, March 29, 2007......................................... 47
----------
THURSDAY, MARCH 29, 2007
MILITARY COMMISSIONS ACT AND THE CONTINUED USE OF GUANTANAMO BAY AS A
DETENTION FACILITY
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Hunter, Hon. Duncan, a Representative from California, Ranking
Member, Committee on Armed Services............................ 3
Skelton, Hon. Ike, a Representative from Missouri, Chairman,
Committee on Armed Services.................................... 1
WITNESSES
Massimino, Elisa, Director of the Washington, D.C., Office of
Human Rights First............................................. 14
Katyal, Neal, Professor of Law, Georgetown University Law School,
Georgetown University.......................................... 12
Philbin, Patrick F., Former Associate Deputy Attorney General,
U.S. Department of Justice..................................... 10
Taft, William H., IV, of Counsel, Fried, Frank, Harris, Shriver &
Jacobson, LLP, Former Legal Advisor, Department of State,
Former Deputy Secretary of Defense............................. 8
APPENDIX
Prepared Statements:
Hunter, Hon. Duncan.......................................... 51
Katyal, Neal................................................. 97
Massimino, Elisa............................................. 111
Philbin, Patick F............................................ 68
Taft, William H., IV......................................... 60
Documents Submitted for the Record:
Combatant Status Review Tribunal (CSRT) Process at Guantanamo 129
Letter dated March 8, 2007, from civil rights and religious
organizations.............................................. 136
Questions and Answers Submitted for the Record:
[There were no Questions submitted.]
MILITARY COMMISSIONS ACT AND THE CONTINUED USE OF GUANTANAMO BAY AS A
DETENTION FACILITY
----------
House of Representatives,
Committee on Armed Services,
Washington, DC, Thursday, March 29, 2007.
The committee met, pursuant to call, at 10:06 a.m., in room
2118, Rayburn House Office Building, Hon. Ike Skelton (chairman
of the committee) presiding.
OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM
MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES
The Chairman. The committee will come to order.
Let me take this opportunity to welcome our witnesses
today.
Our old friend, Will Taft IV, it is certainly good to have
him once again before our committee--former deputy secretary of
defense, former legal advisor to the Department of State and a
very distinguished career, now a practicing attorney.
Patrick Philbin, former associate deputy attorney general.
Neal Katyal--did I pronounce it correctly? Got it.
Professor of Law, Georgetown Law School at Georgetown
University.
Elisa Massimino--do I pronounce it correctly? Good.
Director of the Washington, D.C., office of Human Rights First.
And thank you each for being with us today. This is a very
important subject, and we look forward to your expertise.
Now, although the Military Commissions Act and Guantanamo
are nominally the subjects of today's hearing, our discussion
is about much more. The hearing tackles fundamental questions
about who we are as a nation and how we treat those who are
charged with threatening our security.
Today's hearing was meant to be the second in a series.
Regrettably, yesterday's hearing with the principal deputy
general counsel of the Department of Defense and the chief
defense counsel of the Military Commissions was postponed
because of the ongoing legal proceedings at Guantanamo.
We are considering these issues with a great deal of
seriousness and with a range of perspectives, because the
questions before us are, frankly, complex and very important.
They do not lend themselves to simple answers. An example of
this is the Military Commissions Act.
Last year, when Congress passed the law, I argued that the
most important task before Congress was to design a system that
could withstand legal scrutiny and would be found to be
constitutional for that reason.
I proposed that we expedite the ability of the courts to
review the constitutionality of various provisions of the bill,
which I find to be legally suspect. There are at least seven
potential constitutional challenges.
First, it seems clear to me and many others that the act
may be unconstitutionally stripping the Federal courts of
jurisdiction over habeas cases.
Relatedly, the act may violate the Exceptions Clause under
Article III of the Constitution by restricting the Supreme
Court's review.
Third, it is questionable whether the Supreme Court would
uphold a system that purports to make the President the final
arbiter of the Geneva Conventions.
Fourth, provisions regarding coerced testimony may be
challenged under our Constitution.
Fifth, the act contains very lenient hearsay rules, which
rub up against the right of the accused to confront witnesses.
And sixth, the act may be challenged on equal protection
and other constitutional grounds on how it discriminates
against the detainees for being aliens.
And last, Article I of the Constitution prohibits ex post
facto laws, and that is what this act may have created.
Providing for the expedited review of the Supreme Court of
these seven issues was, and continues to be, important. If the
justices find that the Military Commissions Act includes
constitutional infirmities and the government has already
secured convictions, it is likely that known terrorists could
receive a ``get out of jail free'' card or have death penalties
reversed.
Permitting hardened terrorists to escape jail time because
we did not do our full job in Congress to fix the Military
Commissions Act would be a travesty of justice.
The bottom line is that we must prosecute those who are
terrorists with the full force of the law, but we must also
make sure that the convictions stick. Certainty of convictions
must go hand-in-hand with tough prosecutions.
And I well know of which I speak, having been a prosecuting
attorney a good number of years ago, that the certainty of
convictions and that they stand up on appeal is so very
important.
This brings me to the future of Guantanamo--an issue on
which, if we act with haste, we will do so at our peril. I have
no doubt that Guantanamo has become a lightning rod for
criticism of American detainee policy and has undermined both
our moral authority and our ability to rally necessary support
for policies abroad.
Secretary Gates, Secretary Rice, Senator McCain and former
Secretary Powell, among many others, reportedly all have
pointed to the hole that Guantanamo continues to burn in the
international reputation of our country. The morale of our
troops overseas and their level of security rely upon how they
are perceived in other countries.
There are some in Guantanamo who might well be released or
remanded to a home or a third country. Yet there is a core
group of hardened terrorists who must be detained, tried, and
confined for a long time.
Determining where we will lock up these hard-core detainees
over the long run, so as to ensure they cannot return to the
battlefield, is the question before us.
Some have proposed maintaining Guantanamo's military
supermax prison for these extremely dangerous individuals.
Others recommend Federal correctional facilities like the
Administrative Maximum facility (ADX) at Florence in Colorado.
This is a hard call, and I look to the witnesses to help
inform this committee to grapple with these very difficult
issues.
Now I turn to my good friend, our distinguished Ranking
Member and former Chairman, Duncan Hunter.
Mr. Hunter.
STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM
CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. Hunter. Mr. Chairman, thank you for holding this
hearing, and I look forward to discussing this issue with our
witnesses.
Mr. Chairman, I think that we got it right when we put this
bill together that established what I call the ``terrorist
tribunals.'' We went through a great deal of analysis. We
interacted with military lawyers, with constitutional scholars,
and we put together a bill that enables us to effectively
prosecute people in this new war, in this long war.
And I just wanted to say, to put my marker out there,
stating that we got it right when we put this thing together.
It has now been upheld in several--this military tribunal
system has been upheld now in two court decisions, one in the
district court and one in the court of appeals, especially with
respect to the constitutionality of the law and with respect to
the habeas corpus--to the denial of habeas corpus to these
terrorists.
There is a second issue here, which is closing down
Guantanamo Bay.
And, Mr. Chairman, I think we are going in exactly the
wrong direction. It is right to keep Guantanamo open.
There is not a single member of this committee who has not
had 10 times the people killed or murdered in their own
prisons, in their own states, as have been murdered in
Guantanamo. And the reason for that is, no one has been
murdered in Guantanamo.
They have unfortunately had a couple of suicides, but there
have been no murders in Guantanamo.
Guantanamo has been open to hundreds and hundreds of visits
by international visitors, by congressmen and congresswomen
from the U.S. House and from the U.S. Senate. And the idea that
we are going to close down Guantanamo--because the image, the
myth, is that Guantanamo is a bad place--does nothing but
confirm the fiction of the bad image. And you have spoken about
the image and referred to that several times in your opening
statement.
When it is not the truth, do not confirm it, and do not
concede it as being the truth, because if we close down
Guantanamo and we move these hardened terrorists to these
locations that have been offered, which involves dozens of
American military communities and dozens of American towns and
counties across this country, we do several various dangerous
things.
Number one, you arguably give more rights to these
terrorists once they are on American soil. And number two, I
think there is a real damage and a real danger in bringing in
people that know how to make car bombs, who are experts with
explosives, and putting them in any proximity with American
prisoners and American criminals, who might pick up that
capability.
The idea that we are going to take these hardened
terrorists, who are very effective in killing people, and move
them to communities throughout the United States, I think, is
very ill-founded.
So, Mr. Chairman, you know, we put this Military
Commissions Act together to ensure that the U.S. was able to
detain, interrogate and try terrorists and to do it in a manner
that was consistent with the Constitution and the international
laws of war.
And, you know, we have had this--it appears to me that the
Democrat leadership does not want to take ``yes'' for an
answer. We did not get a bad decision from the Court of Appeals
or from the initial D.C. court that ruled on the
constitutionality. That was a D.C. circuit court. We did not
get a bad decision from them.
The District of Columbia ruled that this act is indeed
constitutional with respect to the habeas corpus issue. And
that was a major issue that was brought up by a number of
Democrat leaders on the House floor.
Not long after that, the D.C. Circuit Court of Appeals held
that the act conforms with the Constitution and that the
detainees in Guantanamo do not have a constitutional right to
habeas corpus.
And I might add that this right to habeas corpus that many
would give to these terrorists, including people like Khalid
Sheikh Mohammed, who admitted a few days ago to being the
mastermind, the main planner, on the attacks on New York on 9/
11 and the attacks on the Pentagon and the tragedy in
Pennsylvania on 9/11. He admitted to doing that, taking part in
killing thousands of Americans.
And the idea that we are stretching to give him more
constitutional rights, more rights than American service men
and women who wear the uniform of the United States, I think,
is going in exactly the wrong direction.
I think these two decisions that we have seen now, with
respect to the D.C. Circuit Court and the U.S. District Court
for the District of Columbia, have been very encouraging. They
validated what we did. They did not say you did it wrong.
And I know lots of people predicted on the House floor,
that when we got to the U.S. District Court for the District of
Columbia, we would get a bad decision. Well, we did not get a
bad decision. We got a decision that said, ``Yes, indeed, what
you have done is constitutional, and especially with respect to
the habeas corpus issue.'' And then when it went up to the D.C.
Circuit Court of Appeals, they did not say Congress messed up.
They said, you did it right. And they found that the detainees
in Guantanamo do not have a constitutional right to habeas
corpus.
And I would note that the procedures that are provided in
the Combatant Status Review Tribunal (CSRT) track, they track
very, very closely with Army Regulation 190-8 for enemy
prisoners of war. And in some ways, they exceed those found in
A.R. 190-8.
And I would like to submit that for the record, Mr.
Chairman.
The Chairman. Without objection.
[The information referred to can be found in the Appendix
on page 129.]
Mr. Hunter. So, I caution against this committee and this
Congress taking any action amending the MCA, because it will
have the effect of delaying or invalidating the commissions
that are currently underway.
And let me just end with one simple point.
Our terrorist detainee policy was constructed to address a
new type of enemy and a new type of war. We have used the
international laws of war and the Uniform Code of Military
Justice (UCMJ) as guideposts in crafting this new policy,
because fundamentally, it is a war policy.
And moving the detainees from Guantanamo or amending the
MCA will have the net effect of holding up the execution of our
global war on terror detainee policy.
Now, some folks would like this result. They would prefer
to see terrorists tried under the criminal justice system.
And I want to remind you, Mr. Chairman, we brought in a
Judge Advocate General (JAG) officer who had tried hundreds of
cases. And we asked him if we took the Uniform Code of Military
Justice and applied it.
The colonel sat there where Mr. Taft is sitting today, and
he said, if we applied that--and I said, ``When would Miranda
rights attach?'' That is the time when you have a right to have
a lawyer before you say anything else.
And he said--and I gave him the scenario. I said, ``If you
had an American soldier in Afghanistan, and he saw somebody
shoot at him with an AK-47 and he captured that person and
threw him over the hood of a Humvee to search him, when would
the rights to Miranda attach, if you went under the UCMJ?''
The JAG officer who testified to us said, they would attach
at that point. That means you would have to have lawyers on the
battlefield--according to him--to give Miranda rights. In his
professional opinion, at that point you would have to give them
Miranda rights. So, I am just reminded of his testimony.
And I know, Mr. Chairman, some people say, well, we think
that JAG officer was wrong. And I think that shows precisely
the problem with trying to attach the UCMJ or use the UCMJ, to
go back and use that as the blueprint for this new law.
Now, you know, we tried the terrorists who were responsible
for the first World Trade Center bombing. We all know that. We
found that the discovery rules of the criminal justice system
actually gave the defense access to information under those
trials that found their way to the al Qaeda camps in
Afghanistan.
Military commissions are crucial, because they are crafted
for the conduct of war by providing procedures flexible enough
to account for the constraints and conditions of the
battlefield. And remember, we have American troops on that
battlefield.
So, if we go back to what we had before the first World
Trade Center bombing, where under the rules of discovery we
found out--and this was undeniable, uncontested--that
information that should not have gotten out, under the rules of
discovery it got to defense lawyers. It ended up going back and
being taken under the possession of the al Qaeda on the
battlefield.
Remember this, Mr. Chairman, we have troops still in those
theaters, still fighting. And their safety depends on that
information being closely held.
So, the idea that we are going to afford new discovery
procedures to terrorists, so that we can feel that somehow we
have given them modicum or some shade of constitutional rights,
that will accrue to the detriment of the young men and women
whose lives on the battlefield today depend largely on security
on that kind of information.
So, let me just close with a statement that President
Lincoln made when our country faced another daunting challenge.
He said this. He said, ``The dogmas of the quiet past are
inadequate to the stormy present.'' I think that is very
applicable to today. ``As our case is new, so we must think
anew and act anew. We must disenthrall ourselves, and then we
shall save our country.'' That was Lincoln's second annual
message to Congress, December 1, 1862.
Mr. Chairman, let us just remember this. We were attacked
on 9/11. We discovered we are in a new type of war. It is a war
which often does not know boundary lines between nations. It is
a war in which most of our enemies do not wear uniforms. And we
had to come up with a new system of prosecution to handle the
people that were captured in this new war.
Those people did not wear uniforms. And we found that the
UCMJ could not apply to them totally. We also found, as we
found with the prosecution of the World Trade Center bombers on
the first attack, that you could not give them all the rights
that American citizens had.
So we gave them an array of rights. And we went through
Nuremberg. And we went through Rwanda. And we went through
these other tribunals, and we took a large array of defendants'
rights, and we gave them to these people who murdered thousands
of Americans--people like Osama bin Laden's bodyguards, who
were held at Guantanamo; people like Khalid Sheikh Mohammed,
who admitted to participating in the killing of thousands of
Americans and said, essentially, ``I will do it again, if I get
the opportunity.''
And the idea that for some wrong-headed notion, some idea
that we have to liberalize every single thing that we do in
this country, we are going to take a body of law--which now is
withstanding court scrutiny and which the courts, these two
courts that have ruled on it and said, ``Yes, it is
constitutional, and, no, they do not have habeas corpus
rights,'' which no American soldiers have--somehow, we feel
that we have to do two things.
First, we have to close down Guantanamo, which gives a
higher level of health care than most health maintenance
organizations (HMOs) in America, which serves a better menu
than most American families have on a weekly basis, which
interrupts proceedings five times a day to broadcast over
public broadcast system the prayer for the prisoners, which
allows them to have exercise, which allows them to have games,
which allows them to have entertainment, and which, to date,
has seen not one single murder of a prisoner--and there is not
one member of this body, in this committee or in the House of
Representatives who can claim that even about their county
jails, much less their state prisons, where hundreds of people
are murdered on an annual basis.
The idea that we are going to close down Guantanamo,
because you have had some complaints about square footage and
because you have had all that old footage of the old camp that
had concertina wire on top of the walls--the idea that we are
going to close that down and confirm the myth that Americans
mistreat prisoners is one of the worst things we could do.
I think it is also a disservice to the men and women that
wear the uniform of the United States. These people risk their
lives capturing these people. We now have been treating them
very fairly.
We have put in place a good system of justice--emphasis on
justice--cross-examination, right to a lawyer, right not to
testify on the stand. All the things that--we gave them
everything that they had in the tribunals at Nuremberg and
Rwanda and more.
And we find that somehow we second-guess ourselves and say
that we have done the wrong thing, and reverse this system--
which at least the first two court decisions have validated--
is, I think, wrong-headed.
So, Mr. Chairman, do not put me down as undecided on this.
I strongly oppose closing Guantanamo. And I strongly oppose
opening up this criminal justice system that we labored long
and hard. And your staff worked on this and my staff worked on
it. We used lots of outside experts. We collaborated with the
Senate on this thing.
I think we put together a sound body of law. And I think we
owe it to the men and women who risked their lives to capture
these people, to go forward with their prosecution. And the way
we do that is by not undoing the system at this point.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
Mr. Hunter. And I would like to put my full statement in
the record, Mr. Chairman.
The Chairman. Without objection.
[The prepared statement of Mr. Hunter can be found in the
Appendix on page 51.]
The Chairman. I wish to point out to the committee--and you
should know this, if you do not already--before we call on our
witnesses that on February the 20th, this year, in a three-to-
two panel decision--not en banc, but a panel decision--the
Federal Court of Appeals for the District of Columbia decided a
case known as Boumediene v. Bush.
In that case, it was a consolidation of several habeas
corpus cases, which had been filed by foreign nationals who had
been captured abroad and were being held at Guantanamo.
The appellate court, the panel held that the law that was
passed deprived the Federal courts of jurisdiction over habeas
corpus, and that Guantanamo detainees had no constitutional
right to habeas corpus.
However, the court of appeals did not reach the merits of
the detainees' designation as enemy combatants. And by their
combatant status review tribunals.
This has been appealed to the United States Supreme Court.
Being a country lawyer, I question why it did not go en banc.
However, as I understand it, both sides of the case wanted to
go straight to the Supreme Court, and it was not necessary to
go to the court of appeals en banc, and is now on its way to
the Supreme Court.
And, of course, it would be interesting to see that
particular decision when it is handed down.
Really appreciate our witnesses coming, a rare group of
first-class talent, and we appreciate your doing so.
We call on our friend, Will Taft, first. Secretary Taft.
STATEMENT OF WILLIAM H. TAFT, IV, OF COUNSEL, FRIED, FRANK,
HARRIS, SHRIVER & JACOBSON, LLP, FORMER LEGAL ADVISOR,
DEPARTMENT OF STATE, FORMER DEPUTY SECRETARY OF DEFENSE
Mr. Taft. Thank you, Mr. Chairman. I am pleased to appear
in response to your invitation to discuss the future of the
detention facility at Guantanamo Bay and the Military
Commissions Act.
As you know, I have testified before the committee many
times, but I do not think I have been here since 1988, when I
left the Pentagon, almost 20 years ago.
It is good to be back, and I see some faces--I miss some
faces that were here then, but I am glad to see at least a few
familiar ones, and, of course, many new ones, or if not faces,
at least name plates that are new.
Regarding the future of the detention facility at
Guantanamo Bay, I understand that most people would like to
close it and transfer the persons we have captured in our
conflict with al Qaeda and the Taliban regime--who are there--
to other facilities.
I share this view.
The facility has acquired a notorious reputation around the
world in its continued use as a focal point for criticism of
our foreign policy and a drag on our ability to get important
things done.
Its notoriety arises, I believe, from two causes.
First, detainees have been abused at the facility, and
interrogation methods used there have not complied with our
international obligations.
And second, there is an impression that the facility was
established in Guantanamo in order to deprive the persons
captured of access to our courts and other rights that they
would have, if they were being held at a facility in the United
States.
Regarding this last point, in my view, persons captured in
the conflict with al Qaeda and the Taliban should not be
treated differently, because they are in custody at Guantanamo,
from the way they would be treated if they were in custody in
the United States.
The decision, then, about whether the facility is to be
closed should not be based on how this may affect the legal
rights of the detainees. It should not affect them.
Political and logistical factors should determine our
course. Logistically, I imagine, Guantanamo still has a number
of advantages over other options.
It seems doubtful, however, that these outweigh the
political costs of continuing its operation. At some point, a
brand becomes so toxic that no amount of Madison Avenue talent
can rehabilitate its image.
What the Reverend Jim Jones did for Kool-Aid and the
British penal system did for Van Diemen's Land, abuse of the
detainees--whether there or at Abu Ghraib or elsewhere--seems
to have done for Guantanamo.
My recommendation would be to cut our losses.
Regarding the Military Commissions Act, I have just three
points.
First, it was a mistake for Congress to preclude judicial
review of the lawfulness of detaining the persons we have
captured in the conflict with al Qaeda and the Taliban. As I
understand it, convicted detainees may obtain such review after
their criminal cases are concluded, but persons who are not
charged with crimes do not have access to the courts to
challenge their detention.
The benefits of this approach escape me.
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.
Prior to the enactment of the Military Commissions Act,
consistent with this principle, no court had ordered the
release of any of the detainees, nor will they do so, as long
as it is shown that the detainee poses a threat.
Currently, this determination is made by the military.
Having it endorsed by a court would greatly enhance its
credibility and be consistent with our legal tradition. And I
have no doubt it would be endorsed by a court--any court.
My two other points relating to the Military Commissions
Act concern the rules of evidence in the trials.
I do not think either hearsay evidence or coerced testimony
should be used in these trials. The Sixth Amendment establishes
a defendant's right to confront witnesses in criminal trials.
Use of hearsay evidence is inconsistent with this right.
The hearsay witness is not under oath, on the record or
available for cross-examination, so his testimony is presumed
automatically to be unreliable.
Coerced testimony is likewise inherently unreliable. Courts
normally exclude such testimony, not only because it is
unreliable, but also in order to discourage the use of coercion
by the authorities. Both rationales are relevant here.
If I thought for a moment that Khalid Sheikh Mohammed or
other detainees like him might be released as a result of such
changes, I would not recommend them. What Khalid Sheikh
Mohammed says he has done to Daniel Pearl and in planning the
9/11 attacks enrages all Americans and all normal people around
the world.
But because he is being held consistent with the law of
war, he will not be released. And it is very important when we
are enraged, when our blood boils, that we most need to adhere
to the rule of law and not change it.
And it is in that spirit that I would recommend these
changes to the rules of evidence in the act.
Thank you, Mr. Chairman. I am glad to have this opportunity
to appear before your committee. I ask that my full statement
be included in the record, and I look forward to answering your
questions.
[The prepared statement of Mr. Taft can be found in the
Appendix on page 60.]
The Chairman. Without objection, Mr. Taft's statement will
be put in the record, and we thank you for your testimony.
Mr. Philbin, please.
STATEMENT OF PATRICK F. PHILBIN, FORMER ASSOCIATE DEPUTY
ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Philbin. Thank you, Mr. Chairman, Ranking Member Hunter
and members of the committee, I appreciate the opportunity to
address the matters before the committee today.
Both the Military Commissions Act of 2006, or the MCA, and
the continued use of the U.S. Naval Base at Guantanamo Bay,
Cuba, as a detention facility are exceedingly important issues
for the Nation's conduct of the continuing armed conflict with
al Qaeda and associated terrorist forces.
In this brief opening statement, I would like to emphasize
two points.
First, in the MCA, Congress has already crafted a set of
procedures for military commissions that is both unprecedented
in its detail and fully adequate to satisfy all legal
requirements, including those specified by the Supreme Court in
Hamdan v. Rumsfeld.
Military commissions are finally poised to proceed more
than five years after the President originally issued the order
providing for their creation. At this point, changes to the MCA
should be made only if they are required either by a compelling
legal need to remedy some constitutional infirmity or by an
imperative operational need of the military.
In my view, the changes some have proposed are not
justified by either necessity. Instead, they would only add
confusion to a workable system and further delay the day when
military commissions become fully operational.
In particular, there is no constitutional need to provide
habeas corpus jurisdiction for petitions from detainees at
Guantanamo. Aliens held at Guantanamo Bay have no
constitutional right to habeas corpus.
And in any event, the MCA provides an adequate substitute
for habeas by providing a review in the United States Court of
Appeals for the D.C. Circuit for the decisions of both
combatant status review tribunals and military commissions.
That means that both the determination to detain an
individual as an enemy combatant and the final decision of any
military commission on a war crime charge are subject to review
in a civilian Article 3 court.
And I think I disagree with Mr. Taft on this point. My
understanding under the law is that, through the CSRT process
there is review in the D.C. Circuit Court of Appeals, so that
determination to detain is reviewed in an Article 3 court.
Reestablishing habeas jurisdiction at this point would only
add a confusing, parallel avenue of judicial review that would
sacrifice the benefits of the orderly procedure Congress has
established in the MCA. Moreover, it would do so without
providing any additional substantive rights for the detainees.
Habeas provides an avenue for access to the courts, but it
does not supply the substantive law for the court to apply. So,
reestablishing habeas jurisdiction would just entail a new
round of wasteful litigation to determine exactly how the
habeas proceedings should fit in with the other review
proceedings, and it would not actually provide additional
substantive rights to the detainees.
Second, the continued use of Guantanamo Bay undeniably
presents a very difficult question for the United States.
There can be no doubt that Guantanamo has become a
lightning rod for criticism in the international community, and
maintaining good relations with our allies and securing their
continuing support, as well as securing the goodwill of other
nations more broadly, is an important aspect of winning the
conflict with al Qaeda.
When I examine the alternatives, however, I come to the
conclusion that Guantanamo remains the only practical facility
for its mission, based on three considerations.
First, I believe the government has a duty to the American
people to continue to detain those enemy combatants who would
pose a threat to the United States if released.
Second, the only alternative to holding enemy combatants at
Guantanamo would be bringing them onto U.S. soil. As a
practical matter, that would raise a serious security concern
for whatever facility was constructed to house the detainees,
and for the vicinity--the American community around that
facility.
As a legal matter, it would spark a completely new round of
litigation, because once the detainees are on U.S. soil, they
likely will be held to have constitutional rights. The
unprecedented procedures that are provided for the detainees
now, I think, may well satisfy those rights, but it would take
years of additional litigation to determine that.
Third, and finally, I am concerned that simply moving the
detainees to the United States will not achieve one of the
primary stated objectives of closing Guantanamo; namely,
silencing the course of international criticism and repairing
strained relations with foreign partners.
International criticism does not depend primarily on the
place where enemy combatants are detained. Instead, at bottom,
it rejects the fundamental legal paradigm under which the
United States asserts the right to detain individuals as enemy
combatants and, hence, without charge, in an armed conflict
with al Qaeda.
Unless the United States is prepared to abandon the entire
law of war framework governing the conflict with al Qaeda--
which I strongly believe it should not do--I fear that simply
moving the detainees to the U.S. is likely to accomplish little
in appeasing critics in the international community.
Thank you, Mr. Chairman, for the opportunity to address the
committee. I would like to have my full written statement
submitted for the record, and I would be happy to address any
questions the committee may have.
[The prepared statement of Mr. Philbin can be found in the
Appendix on page 68.]
The Chairman. Thank you. Your statement will be put in the
record in total, as well as all four witnesses'.
Mr. Katyal. Do I say it right?
Mr. Katyal. That is perfect.
The Chairman. Got it.
STATEMENT OF NEAL KATYAL, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW SCHOOL, GEORGETOWN UNIVERSITY
Mr. Katyal. Thank you, Chairman Skelton and Ranking Member
Hunter, for inviting me.
I want to begin by thanking the chairman's staff,
particularly Ms. Conaton, Ms. Unmacht and Mr. Oostburg. They
are models of public servants, e-mailing both sides during the
2005 Detainee Treatment Act (DTA) debates and 2006 MCA debates,
frankly, at all hours of the night, just trying to learn about
these issues.
On November 28, 2001, I testified in the Senate about the
President's then-two-week-old military commission plan. I
warned that Congress, not the President, must set them up, or
the result would be no convictions and a court decision
striking those tribunals down.
One thousand nine hundred and forty-seven days have elapsed
since that time. Not a single trial has taken place during that
time. No one was even indicted for over two years. And last
year, the Supreme Court invalidated that scheme.
I did not come here to gloat. The decision to file the
Hamdan lawsuit was the hardest one I have ever faced.
I previously served as national security advisor at the
Justice Department, and my academic work extols the idea of the
unitary executive, strong President theory. My work in criminal
law centers on the need for tough laws to benefit prosecutors.
Yet today, forward-looking members in Congress have
foreseen the results of the MCA: a new court decision that
strikes this tribunal system down and more legislation driven
by reaction, not deliberation.
The committee has asked us here today to help avoid this
new round of the same game. Responsibility, not reaction, is
required.
I want to make two points.
First, the reported views of Secretaries Gates and Rice
that the commission trials be moved to the United States are a
crucial first step, perhaps more important than repealing the
MCA's habeas text.
Trials are gripping, dramatic, and easy to follow. They are
unlike detention, which involves little drama and no grand
moment of resolution. The trials at Guantanamo will be watched
by the world, and we cannot forget that, in them, our Nation--
and not simply the detainees--face judgment.
Yet the Administration clings to the shortsighted theory
that Guantanamo is a legal black hole where none of the
protections of our great Constitution apply.
This view will corrupt the trials and undermine America's
image--what Secretary Taft referred to as the ``brand'' of
America. And these views must be replaced with one that
reflects America's traditions and values.
Second, Congress should repeal the MCA and use our proud
tradition of courts-martial.
Here, I think, I just want to focus on one point, a basic
point, about equality.
When I first met Mr. Hamdan at Guantanamo in 2004, he asked
me a simple question. He said, ``Why are you doing this? Why
are you defending me?'' He said to me, ``Your last client was
Al Gore. What are you doing here?''
And I told him that my parents came here from India with $8
in their pockets, and they chose this land, because they knew
they could arrive on our shores and be treated fairly.
There is no nation on earth, I told him, that would treat
me, the son of immigrants, and give me the opportunities that I
had. I told him I was deeply patriotic for these reasons.
And when I read the President's military trial order, for
the first time I felt that vision of America--my parents'
vision--was being violated.
Remember our history. We are a land of immigrants. The
Declaration of Independence lists as its first self-evident
truth that all men are created equal.
This premise is the heart of what Abraham Lincoln did in
the Civil War. It is the heart of the Equal Protection Clause,
which gives all persons constitutional rights, not simply all
citizens.
When you think about the MCA, think about that. For the
first time, this body set up a trial system that applies only
to the 5 billion people around the world outside the United
States and the 12 million green card holders. A United States
citizen gets the Cadillac version of justice, the foreigner
gets the beat-up Chevy version, a stripped-down Guantanamo
trial.
Yet, in all past military commissions in this Nation's
history, foreigners and United States citizens were brought
before them equally.
As Justice Scalia has warned, the genius of the Equal
Protection Clause is that it prevents Congress from ducking
hard choices by limiting the rights of the powerless. It is not
surprising the MCA was introduced on September 6th and passes
this body a short three weeks later--in record time.
It passed not because the act was written by Plato. It
passed because the only people the Act affected were the
powerless, people who have literally no vote in the process,
the five billion people in the world and the 12 million green
card holders.
Ultimately, the MCA will be struck down for this and other
reasons.
In summary, I ask you to realize the power that lies in
your hands, the power to ensure the safety of our troops and
the dignity of the values they defend.
I applaud Secretaries Gates and Rice and all others who
recognize the only thing worse than making a mistake is failing
to correct it when you have the chance.
Thank you.
[The prepared statement of Mr. Katyal can be found in the
Appendix on page 97.]
The Chairman. Thank you. Thank you very much.
Ms. Massimino.
Ms. Massimino. ``Massimino.''
The Chairman. Try it again. Did I say it right?
Ms. Massimino. ``Massimino.''
The Chairman. Got it.
Ms. Massimino. Thank you, Mr. Chairman.
The Chairman. Please.
STATEMENT OF ELISA MASSIMINO, DIRECTOR OF THE WASHINGTON, D.C.,
OFFICE OF HUMAN RIGHTS FIRST
Ms. Massimino. Thank you very much. And thank you for
inviting me here today.
These are very difficult issues of great urgency and import
for our Nation. And as you noted, Mr. Chairman, in your opening
statement, while this hearing is framed as being about
Guantanamo and the Military Commissions Act, it is part of a
larger debate about U.S. counterterrorism policy.
I strongly agree with that view.
And I believe that many of the missteps that we have made
in interrogation policy, in military commissions trials have
resulted from a failure to view those issues as part of the
broader counterterrorism policy. And that is the main point,
really, that I want to bring home today.
The policy of detention, interrogation, and trial, and of
terror suspects at Guantanamo, in our view, has been a failure.
And it is up to you, to Congress, to fix it.
The decision to hold detainees at Guantanamo in the first
place was driven, at least in part, by a desire on the part of
the Administration to insulate U.S. actions taken there--
detention, interrogation and trials--from judicial scrutiny,
and even from the realm of law itself.
Early on, one Administration official, you might recall,
called Guantanamo the legal equivalent of outer space.
That goal, to create a law-free zone in which certain
people are considered beneath the law, was illegitimate and
unworthy of this Nation, and any policy bent on achieving it
was bound to fail.
The policy at Guantanamo has failed in several important
respects.
First, and most obviously, it has failed as a legal matter.
The Supreme Court has rejected the Government's detention,
interrogation and trial policies at Guantanamo every time it
has examined them, and it likely will do so again.
Of course, I do not need to tell you about--and you have
heard about it already today--how many people, including
Secretary Gates, Secretary Rice, Secretary Powell, and many,
many of the United States' closest allies have urged the
closing of Guantanamo.
And of course, while it is important to take into
consideration the views of our closest allies, nobody argues
that the U.S. ought to change its policy because other
countries do not like it.
The questions, the most important questions that you all
ought to be asking about the current policy now is, is it
smart, is it working, does it serve our overall objective and
does it comport with our laws and values. And I would say that
Guantanamo fails all of those tests.
The military commissions have failed to hold terrorists
accountable for their most serious crimes, as you have heard.
And in addition, the view of Guantanamo as a legal black hole
led it to become the laboratory for a policy of calculated
cruelty that later migrated to Iraq and was revealed to the
world in the photographs from Abu Ghraib.
Whatever information was gained through those policies, few
dispute now that they aided jihadist recruitment and they did
immense damage to the honor of the United States and its
reputation--undermining, as Secretary Gates recently argued,
the war effort itself.
But perhaps most importantly, from a security perspective,
the policy at Guantanamo, which treats terrorists as combatants
in a war against the United States, but rejects application of
the laws of war, has had the doubly pernicious effects of
degrading the laws of war while conferring on suspected
terrorists the elevated status of combatants.
By taking the strategic metaphor of war literally, we have
unwittingly ceded an operational and rhetorical advantage to al
Qaeda, allowing them to project themselves to the world--and to
potential recruits and a broader audience in the Middle East--
as warriors rather than criminals.
Nothing brought that home more than the transcript that we
all read from Khalid Sheikh Mohammed's combatant status review
tribunal a couple of weeks ago at Guantanamo.
After ticking off an itemized list of 30-plus crimes that
he was involved in and committed, including 9/11 an the hideous
murder of Daniel Pearl, he addressed--as if soldier-to-
soldier--the Navy captain that was presiding over that
proceeding and said, essentially, war is hell and people get
killed.
And we, by our policies of treating him as a combatant, has
facilitated the ability of him to frame himself in that role
and to reinforce the terrorist narrative, that they are in a
global war with a mighty power.
And that, I would say, is not only deeply offensive to our
military, our men and women serving in uniform, but it is also
operationally not smart.
I would recommend to you, if you have not looked at it, the
brand-new counterinsurgency manual that was drafted under the
supervision of General David Petraeus, which really underscores
the fundamental problems with that kind of approach to dealing
with an enemy like al Qaeda.
And I think, once we start to view Guantanamo and the
military commissions as part of that broader effort to defeat
this terrorist enemy, it will help reconceptualize our entire
counterterrorism policy. And that is what I would urge this
committee to begin to do.
I look forward to answering your questions.
[The prepared statement of Ms. Massimino can be found in
the Appendix on page 111.]
The Chairman. Thank you very much.
Let me ask some rather quick questions.
Mr. Katyal, being a law school professor, you are it for
the first question.
In 1942, President Roosevelt established by executive order
a tribunal that tried eight German saboteurs, six of whom were
given the death penalty. The United States Supreme Court upheld
the tribunal. Two received life imprisonment.
I happen to know a little bit about this. One of the two
that received life imprisonment was represented by a lawyer
from my home town named Colonel Carl Ristine, who did a first
class representation of Mr. Dasch in that tribunal.
Can we, if you know, tell tribunal executive order and the
initial executive order by this President regarding the present
tribunal? If you know.
Mr. Katyal. Thank you for the question. And Colonel Ristine
did a fantastic job. I have read the transcript very closely
and studied it.
Now, the difference between those 1942 trials and these
ones are quite marked, both in its procedures and in the way
they have ultimately unfolded. Those were quick trials that
happened right away.
They applied the same rules to foreigners and United States
citizens.
This trial system, under the Military Commissions Act,
applies a completely different set of rules to one group of
people--the five billion people and the 12 million green card
holders--than it does to United States citizens.
We have never done that before. We have had military
commissions since 1847. They have always applied the same rules
to foreigners and American citizens.
The MCA, for the first time, does something different.
When we passed the Equal Protection Clause in 1866, when
this body ratified it, one of its objectives was equalizing
punishment between aliens and citizens. This Congress passed
two laws that implemented the Fourteenth Amendment, that made
it a Federal crime to give aliens different punishments than to
give Americans.
Yet, the MCA does precisely that. And for that reason,
Chairman Skelton, I think the MCA will ultimately fail the test
that you laid down last year during the MCA debates, which is,
will this system that this body sets up survive the Supreme
Court review process ultimately?
And I think the answer is ``no.'' This is a newfangled
trial system that enshrines a cardinal discrimination into the
laws of this body. And I think it cannot withstand Supreme
Court review.
And whenever this case gets to the Supreme Court, whether
it is this year or, as the Administration hopes, in 5 or 10
years, it will get struck down, and all these convictions will
have to be overturned.
And then where will we be? We will be where we are right
now, five years later and counting, with not a single person
convicted for these 9/11 attacks in the military commission
system.
The Chairman. Thank you, sir.
The question often put to me--and I will ask each of you
your judgment--should Guantanamo facility be shut down, what do
you do with the detainees?
Mr. Taft.
Mr. Taft. Well, sir, I think that the detainees are on
their way to being treated and the numbers diminished, even as
we speak.
I gather that some 400 or more have already been returned
to their countries. There are more going each month.
My guess is that the facilities that are available in the
United States could easily accommodate whatever number of
detainees remain in Guantanamo.
There are many stockades and brigs available in the
country, and I think that they could be used.
It is obviously an important thing to be sure that these
people are in secure places. But I have not--I am not familiar
with any difficulties that the Army or the Navy have had in
keeping people locked up in the United States in their
facilities.
The Chairman. Thank you.
Mr. Philbin.
Mr. Philbin. I think that is a difficult question, Mr.
Chairman. Where would they go?
From the time that I was in government, it was--you know,
it has been considered for many years. Is there an alternative
to Guantanamo? And if so, what is it? Where would they go?
And it is my understanding that the military has serious
concerns with having enough high security places where they
could put over 300 people from Guantanamo. You create a
security concern for that facility and for the community around
that facility.
No place in the United States is as remote and as secure as
Guantanamo.
And in addition, you have the options. You have options of
either splitting them up amongst a whole bunch of facilities,
in which case you have got to increase the security at all of
those facilities, or building some new facility that is secure
enough to house all of them.
In addition to that, you have to take into consideration
the intelligence mission that goes on at Guantanamo. Guantanamo
continues today to receive new detainees.
Just this week someone was transferred who was captured in
Kenya, who is considered to have significant operational
intelligence about al Qaeda's East African network, was
transferred to Guantanamo. There is going to be an intelligence
mission there.
And part of the advantage of Guantanamo is that all the
detainees are in one spot. So, if, in interrogating one
detainee, you get some information that seems relevant to
another or that might play into something that someone else has
said, interrogators on the team working on that can go back
around to the other detainee.
If you have them spread out among different facilities all
over the country, that becomes more difficult. Those are
operational concerns that I think that the military would be
better able to address.
But I think there are a lot of difficulties, a lot of
serious problems with where will you put them if they were not
at Guantanamo.
Mr. Chairman, if I could, just to add something briefly to
your question to Professor Katyal.
In comparing the President's initial, November 13, 2001,
order to President Roosevelt's order--just specifically
comparing those two--President Bush's order very closely
parallels FDR's order. It was, in fact, modeled after it, and
intentionally so.
And the initial military commission system then set up
actually, because the military supplemented the President's
order with Military Commission Order No. 1, and other
procedures, provided a great deal more procedures than were
provided in the trials for those in Ex parte Quirin.
So, the initial Presidential order was similar, but then
there were additional procedures added to it.
The Chairman. Thank you.
I am not sure who argued the case on behalf of the German
convicted saboteurs, whether Colonel Ristine did or not, before
the Supreme Court. But it is interesting to note that the
Supreme Court very quickly held that to be proper and
constitutional.
Mr. Katyal.
Mr. Katyal. Colonel Royall argued the case on behalf of the
saboteurs, Chairman, and it was upheld, precisely because it
applied equally to foreigners and United States citizens.
This order--President Bush's order--explicitly deviated
from FDR's by only applying it to foreigners.
With respect to what we do with Guantanamo, I would do two
things. First, I would move the small number of anticipated
trials to the United States.
That is a small number of detainees. Right now it is only
three. There are Pentagon projections it might go as high as
80.
Trials are high-visibility events, unlike detention. So,
the eyes of the world are going to be watching these trials.
And right now they are taking place under a legal theory of the
Administration that the Constitution does not apply at all--no
part of it--to Guantanamo.
That is one reason why you have so much outrage
internationally at what is going on at Guantanamo. Within these
trials people may be put to death.
And the idea that the United States is going to put them to
death with no constitutional protections at all--literally
none--I think, will undermine the image of the United States
and undermine our Constitution.
Second, with respect to the larger group of detainees, I
think Mr. Philbin raises some very good security points. I
still think that a military base may be an appropriate place,
but it should be the subject of inquiry by this committee.
Whatever happens, though, I think a national security court
is something that this body should consider authorizing. This
unites people on both the political left and the right, people
like Andrew McCarthy of the National Review, people like
myself, who are identified more on the Democratic side of the
aisle.
And it is a way to try and think through detention issues
in the form of a specialized court that hears the cases and
evaluates them fairly.
The Chairman. Ms. Massimino.
Ms. Massimino. Thank you.
Your question about what to do if we were to close
Guantanamo is a very important, practical, operational
question, and I appreciate it. And there is no question that
that is going to be difficult.
As with all of these questions, there is going to have to
be a balancing, whether the liabilities of continuing to hold
people at Guantanamo outweigh the clear risks, as Mr. Philbin
outlined, the security risks and others, of bringing them here.
But the Administration is now working, I think, as hard as
it can to convince other governments to take many of the
detainees at Guantanamo. As Secretary Taft said, they are
trying very hard to unload people.
I think--I believe that U.S. allies, particularly the
Europeans, who have called so loudly for the closing of
Guantanamo, ought to be doing more to help the U.S. The U.S.
may have climbed into this box by itself, but it is the
responsibility of all of our allies to help get out of that.
And I think that that would be made easier, were we to
bring the remaining detainees from Guantanamo to military
installations in the United States.
If we were to do that, I think that would indicate to the
Europeans, in particular, that we are not afraid of that, and
that the ones that we have determined are no longer of a danger
to the United States should be sent elsewhere.
The Chairman. Thank you.
Before I ask my friend, Mr. Hunter, to ask questions, I
remind the committee members that we are under the five-minute
rule.
Mr. Hunter.
Mr. Hunter. Thank you, Mr. Chairman.
Mr. Katyal, you are Mr. Hamdan's lawyer, are you not?
Mr. Katyal. I am.
Mr. Hunter. Okay. What new rights will attach to Mr.
Hamdan, in your opinion--in your legal opinion--if he is moved
to the United States?
Mr. Katyal. In my opinion, none. That is because I think,
ultimately, the Supreme Court will hold, as it has already
hinted, that Guantanamo is, for all practical purposes, United
States soil.
The relevant test is the Supreme Court's case in 1990, in a
case called Verdugo-Urquidez, which says that, basically, when
you are dealing with territory of the United States in which
the United States has absolute control, the fundamental rights
of the Constitution apply.
The Supreme Court in 2004, in Rasul v. Bush, said that
Guantanamo--unlike, say, Iraq or Afghanistan or France or
Germany--is a place in which the United States has permanent,
total control over the area. And for that reason----
Mr. Hunter. Okay. So, we have now basically separated these
two issues, because you have established by your statement that
we are to take it as being a valid representation of rights
that attach to Guantanamo versus the United States, that the
movement of prisoners from Guantanamo to the United States does
not have legal impact on the rights of the defendants.
That is basically what you have said. Is that right?
Mr. Katyal. What I am saying, the Administration takes a
different view right now----
Mr. Hunter. Well, I understand, but I am just asking you
for your position.
Mr. Katyal. That is right.
Mr. Hunter. Does anybody else have a different position?
Are there any of you think that there is a difference in the
rights of the prisoners, of the detainees, dependent on whether
they are located in Guantanamo or the United States?
Anybody have a view on that?
Mr. Philbin.
Mr. Philbin. Yes, Mr. Hunter. I disagree with Professor
Katyal.
I think that the detainees now at Guantanamo are not on
U.S. soil, that the controlling opinion is Johnson v.
Eisentrager from 1950, which holds that constitutional
protections, like those of the Fifth Amendment, do not apply to
aliens held outside the United States, so that they do not have
those constitutional protections.
Now, as a practical matter, since they have been given,
through CSRTs, a procedure----
Mr. Hunter. Pull that mike a little bit closer to you, so
we can hear you a little bit better.
Mr. Philbin. As a practical matter, since they have been
given procedures through the combatant status review tribunals,
that were designed to meet the due process requirements, the
Supreme Court plurality in the Hamdi case--Hamdi v. Rumsfeld--
outlined as what would be necessary to detain a U.S. citizen in
the United States as an enemy combatant.
Those procedures have been given to the detainees at GTMO.
And they have Article 3 court review with that. And given the
procedures in the Military Commissions Act, and the Article 3
court review with that, I am not sure that there would be much
practical difference. But they would be able to challenge
those, if brought to the United States.
But as a legal matter of their status, they would gain
constitutional rights that they do not have now.
Mr. Hunter. So, in your opinion, they would have new rights
as a result of being located here, rather than being located
there.
Mr. Philbin. Yes.
Mr. Hunter. That is the essence of your testimony.
Mr. Philbin. Yes.
Mr. Hunter. We are discussing, really, whether or not this
new body of law that we have created is going to make it, all
the way up through review that includes going up to the U.S.
Supreme Court.
That is largely going to depend on the array of rights that
we have granted, as we deliberated and wrote and wrote this
bill and put it together, along with our counterparts in the
Senate, whether we gave an adequate array of rights to the
defendants.
For practical purposes, fairness is manifested in the
rights that you give to the individuals who are tried.
Now, I have got the rights that are given to Khalid Sheikh
Mohammed, and all of the other prisoners.
And I want to go over them: right to counsel; right to an
impartial judge; presumption of innocence; standard of proof
beyond a reasonable doubt; right to be informed of the charges
as soon as practicable; right to service of charges
sufficiently in advance of trial; right to reasonable
continuances; right to preempt or rechallenge against members
of the commission, and challenges for cause against members of
the commission and the military judge; witness must testify
under oath; judges, counsel, and members of military commission
must take oath; right to enter a plea of not guilty; right to
obtain witnesses and other evidence; right to exculpatory
evidence as soon as practicable; right to be present at all
proceedings with the exception of certain classified evidence
involving national security, preservation or safety, or
preventing disruption of proceedings; right to public trial,
except for national security issues or physical safety issues;
right to have any findings or sentences announced as soon as
determined; right against compulsory self-incrimination; right
against double jeopardy; right to the defense of lack of mental
responsibility; voting by members of the military commission by
secret written ballot; prohibitions against unlawful command
influence toward members of the commission counsel or military
judges; two-thirds vote of members required for conviction;
three-quarters vote required for sentences of life over 10
years; unanimous verdict required for death penalty; verbatim,
authenticated record of trial; cruel or unusual punishments
prohibited; treatment and discipline during confinement the
same as afforded to prisoners in U.S. domestic courts; right to
review a full factual record by convening authority; and right
to at least two appeals, including to a federal, Article 3
appellate court.
I want to ask each of you, and let us start with Mr.
Katyal, what rights in this array of rights that we have given
to Khalid Sheikh Mohammed--who has now said that he, in fact
did participate in putting together the plan that killed
thousands of Americans--which rights would you give him in
addition to the rights that he now has?
Because that is the body of this law, not some generalized
discussion about vague statements about Guantanamo or about
whether the United States has made mistakes in terms of the
legal standing for the body of law that was put together in
violation of Geneva Article 3, which required participation by
Congress, basically, arguments that go to the structure of the
law and the way the Administration acted without Congress'
participation.
This is the bundle of rights that every single defendant
has.
Which rights, above and beyond these, would you give to the
defendants, substantive rights?
Mr. Katyal.
Mr. Katyal. Representative Hunter, I appreciate the
excellent question. And I would say three things.
First, the list that you just read is the same list that
the Administration read about its November 13, 2001, order,
that many of us warned would get struck down by the courts.
It is not simply the rights that are written on the paper;
it is the fundamental way those rights are enforced.
And here, the Administration says the Constitution does not
protect the detainees at all. And if that is true, none of the
laundry list of rights you have read actually give the
detainees any right in court that enforces all of the things
that you read.
Mr. Hunter. Actually, Mr. Katyal, there is a difference
with respect to the classification of the classified evidence
to which the defendant has a right to review. Evidence upon
which he is convicted, he does have a right to be present----
Mr. Katyal. He now cannot be kicked out of the trial. That
is one----
Mr. Hunter. That is a change in what the Administration
has----
Mr. Katyal. Absolutely. And it is a wonderful change. And I
think many appreciate it, that----
Mr. Hunter. So, which substantive rights, again, do you
think that the prisoners should have--the defendants should
have--that I did not read here? Rather than simply say, this is
what has gone before.
Mr. Katyal. I think it should----
Mr. Hunter. And Mr. Katyal, this has gone before, not
only--I mean, basic rights like the right to counsel, the right
to the presumption of innocence--those are not things that are
unique to the Administration's proposal. Those are rights that
are embodied in legal systems around the world, as you know.
And also, a number of them were manifested in Nuremberg,
Rwanda, and other military proceedings.
Mr. Katyal. Absolutely.
Mr. Hunter. So, if there are substantive rights that you
think that your defendant should have that are not on this
list, I want to know what they are. I think that is a
reasonable question.
Mr. Katyal. Absolutely. It is a great question.
It is not the rights that--or it is not what the paper says
about the rights. It is how they are enforced and implemented.
And let me give you one example, Representative Hunter.
You pointed out in your list the right to obtain
exculpatory evidence. That is----
Mr. Hunter. Okay. But let me stop you for one minute. I
want to hear that. If you are saying these rights are not
enforced, now that is a second answer.
The first thing I want you to do is to presume that the
rights that I just listed are enforceable--are, in fact,
enforceable and are defendants' rights. Are there other
substantive defendants' rights that are not on here?
Mr. Katyal. Yes.
Mr. Hunter. For example, maybe saying I think that they
should be--there should be a unanimous verdict for a
conviction.
Mr. Katyal. Yes. The most important----
Mr. Hunter. Okay. What I want to hear is the substantive
rights.
Mr. Katyal. The most important substantive rights that are
not on there are the right of equality--same treatment for
citizens and aliens, which would mean court-martial systems,
which would mean a procedure that we know enforces the rights,
as opposed to a newfangled one, which we do not know is going
to actually enforce the rights in practice.
Another one. The list you had does not provide a right
against evidence taken under coercion, which, you know, the
American courts, the Supreme Court has said, is absolutely
essential to the fairness of any military tribunal system.
But here is the fundamental point----
Mr. Hunter. Okay. So, you have got two--hold on a second.
This is a careful procedure. Let us walk down this.
You say, first----
The Chairman. Just a minute. Let the gentleman answer.
Are you through answering the full question?
Mr. Hunter. Well, I know. But I want to make sure that we
lay this out in an orderly way.
You have got court-martial procedures. So you think under
the UCMJ--is that what you are saying?
Mr. Katyal. That is right.
Mr. Hunter. The UCMJ system should have been followed. And
second, you think that evidence that is taken under coercion
should be excluded.
Mr. Katyal. That is correct.
Mr. Hunter. Okay.
Mr. Katyal. And then, my fundamental point, Representative
Hunter, is this. If you are convinced that these trials are
fair, that is all the more reason to bring them to the United
States and have the type of orderly review that this Nation has
always had, up to the Supreme Court.
Let us test that. Let us see if these things are really
fair.
Let us not have these trials in a place which the
Administration says is a legal black hole in which people are
going to be convicted and these convictions are ultimately
going to have to be undone.
Mr. Hunter. Okay, Mr. Katyal.
Let me ask--let the other folks ask--are there any of the
array of rights that I read--and I am going to give you each a
copy of those. We have one--I see one substantive right; that
is that evidence under coercion should be excluded. That is Mr.
Katyal's recommendation.
Ms. Massimino.
Ms. Massimino. Yes.
Mr. Hunter. Have I got it right?
Ms. Massimino. Yes, you do.
Mr. Hunter. What other substantive rights would you give
the defendants?
Ms. Massimino. Well, I would put the one that we just
discussed, that you just discussed with Mr. Katyal at the top
of the list. And that is the introduction of evidence based on
coercion.
I think that that alone risks undermining the fairness of
the trial, even if you do not look at all of these other
issues.
In a fair trial, Khalid Sheikh Mohammed would have a very
difficult time raising a defense. But we are giving him a
defense----
Mr. Hunter. Now let me remind you----
Ms. Massimino [continuing]. After we fixed that problem.
Mr. Hunter. I believe--and we had the rights that attached
at Nuremberg--I believe that that was not an exclusion at
Nuremberg. Now, if that was, correct me.
So, you are saying that these people should have at least,
in that case, more rights than attached at Nuremberg.
And I believe that they--I do not believe that that right,
the exclusion of evidence that was derived under coercion,
attached at Rwanda.
So, you are saying, if, in fact that is the case, they
should have additional rights beyond what those folks had in
those two military tribunals.
Ms. Massimino. I am saying that, yes. And I think that our
own understanding of the fundamental due process rights that
adhere in a fair system has evolved, and it clearly includes
that right today.
Mr. Hunter. Okay.
Mr. Philbin. What additional rights would you give beyond
that array of rights that I just read?
Mr. Philbin. I would not add additional rights. But could I
make two comments on what the other panelists have suggested?
Mr. Hunter. Well, sure, just--yes, sir, quickly. And then
we will move on to Mr. Taft.
Mr. Philbin. Yes, sir.
Professor Katyal has, at a number of points, suggested that
there must be equal protection, that the Equal Protection
Clause here requires that citizens and aliens be treated the
same.
And I do not think that that is a serious constitutional
issue here.
The Supreme Court has always allowed the Federal Government
to make distinctions between citizens and aliens, particularly
non-resident aliens--we are not talking about resident aliens
here--and has not applied it to strict scrutiny.
And the Supreme Court has said specifically, any policy
toward aliens is vitally and intricately interwoven with
contemporaneous policies in regard to the conduct of foreign
relations, the war power and the maintenance of a republican
form of government. Such matters are so exclusively entrusted
to the political branches of government as to be largely immune
from judicial inquiry or interference.
And similarly, in the Eisentrager case, the Court made
clear that there was a distinction between citizens and aliens
that was particularly important in wartime.
And in terms of evidence obtained by court--and I believe
you are correct, Representative Hunter, that in Rwanda and the
International Criminal Tribunal for Rwanda and for Yugoslavia,
the way the issue of coercion is dealt with is that, hearsay
evidence may be admitted, but there is then some probe into the
reliability of it, which is a similar standard to what is in
the MCA today, that there is a probe into whether or not
evidence is reliable.
Mr. Hunter. Mr. Chairman, I understand we have got very
little time left for this vote. If we could break here.
I think this is a really critical question, because this
goes to the heart of what we wrote----
The Chairman. The gentleman will be able to resume his
questions when we get back.
[Recess.]
The Chairman. I thank the witnesses for resuming, for
staying at the table.
Mr. Hunter had to break as we went over to vote.
Mr. Hunter.
Mr. Hunter. Thank you, Mr. Chairman.
And, Mr. Chairman, I would ask for unanimous consent just
to distribute the list of rights that are derived from the
tribunal legislation that this body passed and that is now the
law.
The Chairman. Yes, without objection.
May I make an inquiry? Let me ask inquiry as to where this
was derived from?
Mr. Hunter. Derived from our legislation. This is the right
to counsel, right to impartial judge, et cetera.
The Chairman. Thank you. You bet.
Mr. Hunter. Let me continue. My question simply was, of
this array of rights that I read off, which of them--what
additional rights would you give to the accused terrorists,
including people like Khalid Sheikh Mohammed, that are not in
the law that we passed?
And Mr. Katyal said that he would also add the exclusion of
evidence that is obtained under coercion. Ms. Massimino said
also she would add that right to exclude evidence obtained
under coercion.
And I might note that the only way that evidence obtained
under coercion can be introduced is if the judge finds--and I
am looking at the statute--one, the totality of the
circumstances renders the statement reliable and possessing
sufficient probative value; and, two, the interests of justice
would best be served by admission of the statement into
evidence.
And that that is an exclusion that you are asking for,
under my understanding, did not attach to the defendants at the
Nuremberg trials, nor did it attach to the Rwanda trials.
And I would now ask Mr. Taft if there are any additional
rights, substantive rights for the accused that you would add
to this list of rights that we gave him.
Mr. Taft. Well, Mr. Hunter, the two points that I mentioned
in my testimony are the only things that I would----
Mr. Hunter. Bring that mike a little closer, sir, if you
could.
Mr. Taft. The two points that I mentioned in my testimony
are the only ones that I would bring in.
I do think that coerced testimony should not be admitted,
even in the circumstances that you have--the finding that you
said, just described. And I would----
Mr. Hunter. Okay. Well, let me just ask one question on
that, because I----
Mr. Taft. Could I just finish the second one?
Mr. Hunter. That is a common point. I will let you make
your second one, but since that is a common point----
Mr. Taft. Thank you. It is just the hearsay. I would also
exclude hearsay.
Mr. Hunter. Okay. You would exclude hearsay. And hearsay
was not excluded at the Nuremberg trials, nor was it excluded
in Rwanda.
But let me just say that one of the testimonies that was
given to us as we very carefully put this legislation together,
with respect to the potential exclusion of any coerced
testimony, one of our JAG officers testified to us, in essence,
he said, any time you capture somebody at the point of a gun,
and you have got a loaded gun pointed at them, and they make
statements, there is always an element of coercion that attends
that.
And he said, if you flatly exclude any evidence that is
excluded under coercion, you have an argument with respect to
any statement at all that is made on the battlefield, because
battlefield statements are always extracted, generally by
somebody who is at the other end of a loaded weapon.
And so, once again, I would offer that that evidence is
excluded, unless a judge makes the two findings that we put in
as conditions upon which that evidence can be admitted.
And so, let me ask another follow-up on this.
You stated--you have all stated, except for Mr. Philbin--
that Guantanamo should be closed or people should be moved from
Guantanamo.
Now, my understanding is that not a single person has been
murdered at Guantanamo. And yet, there is nobody sitting in
this hearing today, nor is there a single Member of Congress
who can say that about the prisons in their respective states.
There is not a major prison in this country which has not
been the site of murders.
So, Mr. Taft, do you think, in light of that, that we
should close down domestic prisons when murders occur in those
prisons on the basis that they have been given a stigma or have
been given a bad image, and that that detracts from the world
view of America?
Mr. Taft. No----
Mr. Hunter. Do you think we should close down domestic
prisons, if murders occur in domestic prisons?
Mr. Taft. No, sir.
Mr. Hunter. Mr. Philbin.
Mr. Philbin. No, sir.
Mr. Hunter. Mr. Katyal.
Mr. Katyal. No, sir. And I would add that, if the best we
can say about Guantanamo is that no murders occurred there,
that strikes me as not the most important thing.
We are in a war on terror, and our reputation and our
values are how we win this war on terror.
Mr. Hunter. Okay.
Mr. Katyal, let me ask you this question, then, since you
have stated that that is not the full picture, in essence.
If you have looked over--and I am sure you have--the health
care that is delivered to the people in Guantanamo, which
appears to me, and by testimony of our doctors who were there,
that it is really a higher quality than many HMOs and Americans
receive.
The average prisoner has gained something over six pounds
in weight since he has been there, that the medical care is
good.
The diet--in fact, when we went down on our bipartisan
congressional delegation (CODEL), we ate the same menu that the
prisoners had. As I recall, on one Friday it was honey-glazed
chicken. It was lemon fish for Saturday, served with rice
pilaf. It is quite an attractive menu, if that is attractive.
If we are paying for prayer rugs, if we interrupt the daily
routine five times a day to give prayer call for all the
prisoners over the loud speakers.
When we left they were--they had a soccer game going on
when our CODEL left.
What additional things do you think we should give those
prisoners, in any setting, that they are not receiving?
Mr. Katyal. Again, a great question. And there are
undoubtedly great stories about treatment at Guantanamo, about
the food, about guards who care for the detainees, and the
like.
There are also bad stories about what happens at
Guantanamo, whether it be----
Mr. Hunter. Well, Mr. Katyal, I want your opinion, based on
defects that you see. Do not accept my statement as a fact.
Do you see a--is there anything else that you would give
those people right now that they do not have?
Mr. Katyal. Let me point to one from my own experience.
Mr. Hamdan was put in solitary isolation, did not see
another human being for 10 months. Our own CIA manuals say, if
you put someone in solitary isolation for three days, it causes
permanent psychological damage.
Yet, we want to try these people after they have been put
through that long period of isolation. That strikes me as a
dangerous strategy.
What I would say, Mr. Hunter, is that, Representative
Hunter----
Mr. Hunter. Okay, so isolation----
Mr. Katyal. Yes, so what I----
Mr. Hunter. Isolation is a substantive--you think we have
isolated some people too long, and that that is a condition you
would change.
Although my understanding is that nobody there right now is
isolated beyond very short periods of time.
Mr. Katyal. I believe that is inaccurate, and that camp six
effectively amounts to a solitary isolation facility, which
houses dozens of detainees.
But, again, I do not know exactly the details----
Mr. Hunter. Okay. But let us put you down as saying
isolation is a condition you would change.
Mr. Katyal. And then----
Mr. Hunter. What else?
Mr. Katyal [continuing]. I think the most important thing
is the trials--not the detention, but the trials--because that
is what the world is watching. And the trials have to take
place under a regime of fairness, with review that we know will
survive the Supreme Court's test----
Mr. Hunter. Okay, key question. And, Mr. Chairman, I will
then move on--but this is a complicated area. We devoted
hundreds of hours, and therefore, the consideration of
reviewing this record--and what we did has to be very carefully
looked at.
You said the fairness of trials, and that has been used
interchangeably with moving the site from Guantanamo to the
U.S.
Why can't you have just as fair a trial at one site?
Because fairness in trials is manifested in rights and the
application of rights.
Why can't you have just as fair a trial inside a building
in Guantanamo as you have inside a building somewhere else in
the world?
Mr. Katyal. Because the trials that take place at
Guantanamo take place against the Government's argument that
the Constitution does not constrain what they do.
Again, Representative Hunter, it is not the rights on the
piece of paper; it is the way the rights are enforced.
So, for example, on that piece of paper you read, it said
there is a right to exculpatory evidence. That is the same
right that was there in the last military commission system.
And what happened? There were front page stories in the New
York Times and the Wall Street Journal, that the military
commission prosecutors protested the system, because it was not
turning over exculpatory evidence for the defense.
Mr. Hunter. What does that have to do with the location, in
which building the trial is held?
Mr. Katyal. Because if----
Mr. Hunter. Why would in one building you would not get
exculpatory evidence, in another building you would have it?
Mr. Katyal. Because if it takes place in America, the
Administration cannot cling to its wrong argument----
Mr. Hunter. Mr. Katyal, you have just contradicted
yourself, because you told me, your first answer to the
question was, there were no substantive rights that were
changed as a result in the difference in sites between
Guantanamo and America.
Now you tell me you must have them in America, because
there are new rights that attach.
Now, which one is it?
Mr. Katyal. With all due respect, it is not a
contradiction. It is the same argument. That is, if the trials
take place now at Guantanamo, they will take place with no
constitutional rights. That is what the Administration is
saying.
That will get struck down by the Supreme Court, and we will
be left years from now with no convictions.
I am saying, Representative Hunter, move them to the United
States where it is undoubtedly the case, and the Administration
cannot cling to its bad argument that no constitutional rights
apply. And then you will see the discovery process unfold more
fairly. You will see the rights given mirror those of our
courts-martial system.
And I think the world will be on notice that America does
justice fairly and proudly.
Mr. Hunter. Okay. Ms. Massimino.
Ms. Massimino. Yes. I have to----
Mr. Hunter. What are your thoughts here?
Ms. Massimino. I have to admit that I am a little confused
by your framing of the question about the safety of the
prisoners at Guantanamo. I do not hear anyone arguing that
Guantanamo ought to be closed because it is unsafe for the
prisoners.
Now, Human Rights First, my organization, has not been
permitted to go to Guantanamo for the purpose of a fact-finding
mission about the treatment of the prisoners. We go down to
observe the military commissions trial.
But we are not arguing, and we have not argued that it
should be closed because it is unsafe for the prisoners,
because they might be murdered there. But----
Mr. Hunter. Well, are they inhospitable?
Ms. Massimino. Excuse me, but----
Mr. Hunter. Let me just address that, since you asked
that--you made that point. My point is that, if there is a
reason to close down a prison, it is because people are
murdered in the prison. The first thing you go to is murder.
And the point is, every single prison in the United States has
had murders occur in it. Guantanamo has never had a murder
occur in it.
So, if you go on the basis that severe acts--that is,
murder--occurring to the inmates justify closure, we would
justify closure of every prison in America before we closed
Guantanamo, because nobody has been murdered in Guantanamo.
Ms. Massimino. That is a straw--with respect, that is a
straw man. No one is making that argument. And that is not----
Mr. Hunter. Well, then, how about the treatment?
Ms. Massimino. And that is not the sole reason why we--the
only consideration that ought to be--that you all ought to be
thinking about when you decide where we ought to hold these
prisoners----
Mr. Hunter. How about the treatment of the prisoners?
Ms. Massimino. Well, as I say, we have not been able to go
there to make any kind of independent judgment. But I will say
that people who have, including Secretary Gates, has said that
the trials there will never be viewed as fair by the rest of
the world.
Now, that is a very sad fact, but it is a fact. And we have
to grapple with that.
When the government originally argued that Guantanamo was
the legal equivalent of outer space--now, thankfully, because
of our courts and this Congress, that is no longer really true.
But the rest of the world believes that. And unfortunately,
they always will.
Now, you know, we have not been clamoring for years that
Guantanamo be closed, frankly, because for us, as Will Taft
said, it is more important how they are treated and the legal
system under which they are judged, than whether they are 90
miles south of the United States or they are here.
But you must consider, I would submit, whether the
liabilities of continuing to hold people there under the system
that we have constructed, outweigh the benefits.
Now, there are clearly some benefits, as you have heard.
But there are serious liabilities. And people much more close
to the national security interests of the United States than I
am have made that judgment and are making that argument.
And I would submit to you, that when you think about
Guantanamo, and the Military Commissions Act in particular,
until you start to consider that those issues must be addressed
in the context of a broader strategy to defeat al Qaeda, then
we will continue to make these kind of shortsighted mistakes.
Mr. Hunter. Okay.
Mr. Chairman, thank you for that time.
I would just recount that, with respect to going through
this large array of defendants' rights, the basic defendants'
rights in any trial--there were precisely two recommendations
that were made for expansion of those substantive rights.
And no one gave a condition, a living condition, that they
would change in Guantanamo, except Mr. Katyal said that he
thought that isolation was, in and of itself, an inappropriate
aspect of incarceration.
But with respect to the food, with respect to the medical
treatment, with respect to the prayer call, with respect to the
exercise, no one had a complaint.
Ms. Massimino. Excuse me.
Mr. Hunter. And, Mr. Chairman, I think that closing down a
base to fulfill a myth, which is that we brutalize people at
Guantanamo, only confirms the myth. It certainly does not
alleviate those who would criticize our country.
The Chairman. I thank the gentleman.
Dr. Snyder, please.
Dr. Snyder. Thank you, Mr. Chairman.
We have been here an hour and 50 minutes, and so you
finally get to look at a different face than our chairman and
ranking member.
We have a policy here of what we call ``questions for the
record'', in which sometimes something comes up that you may
not know the answer and that we give you a chance to submit it
in written form.
Mr. Chairman. Mr. Chairman.
What I want to do is--my question for the record is--I
think every one of you have been interrupted multiple times in
your answers so far today, and these are very complex
questions.
If, after this hearing is over, on review you believe that
you would like to provide either more complete answers to any
questions you have been asked by any member or amplify on
anything that has come up, please submit your statements and as
a response to my question for the record that you have that
opportunity to do that.
The Chairman. Without objection.
Dr. Snyder. The posture we are in as a committee in the
Congress is that the President----
Mr. Hunter. Mr. Chairman, just reserving the right to
object, I just want to comment on that.
I would just say to my friend that we have gone--it is
important when you have a limited amount of time in a hearing,
we all have our statements and our positions that we want to
take, and that is absolutely appropriate with respect to our
witnesses.
But there are several key facts that we have the right to
explore. And so, when I ask the question, what additional
rights would you give, above and beyond the ones that I read,
it was important to get an answer to that. And that is why I
asked the witnesses to, along with the rest of their
statements, answer those questions, and they did.
So, I would just say to my friend----
The Chairman. It has occurred----
Mr. Hunter [continuing]. That I did not intend to cut
anybody off, and I want to see, if you have reams of paper in
explanations that you want to give with respect to your
answers, let us do it.
But I thought it was important, because the rights that we
put together and the deliberation that we undertook built this
bill, this body of law, that we are now using.
And the substantive rights that accrue to those defendants
under this body of law are the key to whether a reviewing court
is going to uphold this law in the future. That is why those
questions were critical.
With respect to Guantanamo, the condition and treatment of
the prisoners is everything. And so, while world opinion may be
an important thing, the actual treatment of the prisoners, and
whether or not prisoners have been murdered, is absolutely
crucial to this question of whether we should close down
Guantanamo.
So, I thank my friend, but I think it was important to get
those answers on the record, and I would be happy to agree with
him that, if they have extended answers, that is absolutely
fine with this member.
And I would withdraw my objection.
The Chairman. I was about to say, doesn't it constitute an
objection? But we will see.
Dr. Snyder, your time will be adjusted.
Dr. Snyder. Mr. Chairman, in response to this discussion,
it is a matter of the rules of this committee that I can ask a
question for the record. No member has the right to object to
any question I ask for the record.
So this discussion about, in which you said, without
objection, and Mr. Hunter reserved the right to object, that is
not the way the rules are.
I have a right to ask a question for the record. I have
done that, and I look forward to any response or----
The Chairman. You certainly do, and let me tell the
gentleman that he withdrew his objection. And I also understood
that it was not a proper objection.
Dr. Snyder. Thank you.
One of the issues that has come up is--what I started to
say is, in leaving this question, I find this very complex. And
I guess that is the nature of the topic, as Mr. Hunter's
discussion brought out.
We are in a posture where the President made a decision to
do the Guantanamo facility. There have been no legislative
restrictions placed on that.
He has the authority at this time to continue it. He has
authority to move the prisoners, as he has done. He has
authority to shut the thing down tomorrow and move everyone.
Apparently, there has been a very, very vigorous debate
within the Administration about what they want to do. But there
has not been any restrictions put on that.
In our subcommittee a couple of weeks ago, a Military
Personnel Subcommittee, we did our wounded warriors bill, and
there was an amendment that went to a vote--unfortunately it
was a party line vote, and it was, I think fortunately, voted
down--in which the basic language would be, if Guantanamo were
to be shut down, that none of those enemy combatants could be
located anywhere within 50 miles of a military medical
treatment facility.
Well, that brings--Mr. Philbin, your point is a great one--
security has got to be the number one issue. I always thought
the most secure place for these people would be on a military
base. All bases have military treatment facilities.
So it means they could be on no military base in the United
States. We then put ourselves in the position of contracting
out with a state facility, trying to find room on another
Federal facility, building something out on state land.
So, my specific question is with regard to this geography
determining rights.
If the amendment that was proposed by one of my Republican
colleagues were to be law and we could not place these people
on military bases, because they would be in proximity to a
military treatment facility, and we ended up putting them not
on Federal property, then do we have any issues with regard to
any state rights that would complicate this matter further?
Two weeks ago I would have thought this was completely
hypothetical until my colleagues presented this amendment.
Mr. Philbin. I am not sure I know the answer to that
legally. I would assume that, even if not on a military base,
that they would be located on Federal property.
Dr. Snyder. I thought so, too, until this discussion. You
could easily see that being farmed out to--the state of
Arkansas has 20 empty beds. We will pay you to incarcerate
these folks.
Mr. Philbin. And I have to caveat this. I am not really
sure. But I think that the Bureau of Prisons has contracts with
states' facilities all the time to house prisoners. That is the
nearest analogy I can think of.
I do not think that that creates additional complications,
additional rights, because they are contracted in a way that
they are still in Federal custody. So, it does not give them
different rights arising from state law that they would have--
other than the rights they have as Federal prisoners in a
Federal facility.
Dr. Snyder. It is still not clear to me, this issue that
the geography of being on the federal, clearly U.S.-controlled
property at Guantanamo versus in the United States.
Mr. Philbin, you think it is settled law about what kind of
rights they have.
Are all three of our legal experts--or, Ms. Massimino, you
are a lawyer. Are you an attorney also?
Ms. Massimino. Yes, sir.
Dr. Snyder. Oh, all are. Are you all in agreement with that
proposal? I mean, does the geography change the rights when
they come to the United States?
Mr. Philbin. Well, if I could give a brief answer first.
I think that it is settled law that aliens outside the
United States do not have rights under the Constitution. And
other members of the panel can object or disagree. But I do not
think----
Dr. Snyder. On federal-controlled property.
Mr. Philbin. Well, but then, I think that is where the
disagreement on this panel will come, that Professor Katyal
will suggest that there are indications in recent Supreme Court
decisions and a footnote into the Rasul decision and in a
concurring opinion by Justice Kennedy in Verdugo-Urquidez and a
concurring opinion by Justice Kennedy in Rasul, that the
absolute control, the jurisdiction and control over the
physical land at Guantanamo that the U.S. has makes it
different, and that it should be treated just as if it were
U.S. soil for purposes of the extension of constitutional
rights.
I disagree with that. I mean, there is a footnote there in
the Rasul opinion. It is just a footnote. It is not a holding
yet.
I believe the current law is that, as held recently by the
U.S. Court of Appeals for the D.C. Circuit, that Guantanamo is
outside the United States. It is not United States territory.
As a result, U.S. constitutional rights do not extend to
aliens there.
And one would have to consider that, if it were true that
just jurisdiction and control means that constitutional rights
extend to a place, occupied Germany was occupied for years. The
Landsberg prison where prisoners were held in the Eisentrager
case was controlled by the United States.
The U.S. sector in Berlin was controlled for decades by the
United States. And whether or not just control over a place for
an extended period of time means the constitutional rights
extend there is a very dicey issue. And----
Dr. Snyder. Mr. Philbin, my time has long expired, but
thank you for your answer.
The Chairman. Thank the gentleman.
Going down the list, before the gavel, Mr. Johnson of
Georgia.
Mr. Johnson. Thank you, Mr. Chairman.
The Chairman. Ms. Sanchez, thank you.
Mr. Johnson. What evidence, Mr. Philbin--well, let me ask
the question this way.
The Chairman. Would the gentleman suspend? I apologize. I
misread the list. It is Ms. Sanchez before the gentleman from
Georgia.
The gentlelady from California is recognized.
Ms. Sanchez. Thank you, Mr. Chairman.
And thank you, all of you, for being before us today.
As the chairman knows, I have been very interested in this
topic, probably even before most of the members of this
committee.
I believe that the Supreme Court will uphold the MCA. And I
do believe that aliens outside the United States do not have
U.S. constitutional rights for some very good reasons. I think
the Supreme Court will not extend the reach of our Constitution
to the four corners of the globe.
The Constitution is our national law. Outside the
territory, international law applies.
And I think it would be very poor on their part to extend
constitutional rights to people detained, for example, for war
reasons elsewhere, like in Iraq. I mean, what are we going to
do, let Iraqis bring equal protection claims in U.S. courts?
I really think the idea is so ludicrous, it is almost self-
refuting. So, I would begin with the process that there is a
reason why we have these detainees in Guantanamo rather than
here in the United States.
I have some questions for Mr. Katyal. Is that how you
pronounce it?
Mr. Katyal. That is fine.
Ms. Sanchez. I have a number of concerns about trying cases
by courts-martial, because I believe that the MCA looks like
and functions like the court-martial, but it is not. And we
determined, when we passed that law, that military commissions
would have a legitimate place in U.S. military law, and that
would be an alternative for trying alien, unlawful, enemy
combatants.
And I would also point out that MCA authorizes the use of
military commissions, but it does not require their use in war
crime cases. In fact, if the President wanted to, he could
still direct that Hamdan, Hicks, or other detainees be tried by
courts-martial instead of military commissions.
But since you are such an advocate of courts-martial, the
MCA expands the kinds of offenses that may be tried by military
commissions to include certain offenses that are not
traditional war crimes, but are still offenses that should be
available, I believe, to the prosecution of international
terrorism.
For example, crimes of hijacking, material support to
terrorism, and even conspiracy are arguably not war crimes per
se.
Do you believe that such crimes could legally be tried by
courts-martial under the UCMJ today? Because, if we were to use
courts-martial for these trials, we would have to give up the
possibility of charging your clients with these kinds of
terrorism offenses. Isn't that right?
These offenses can be tried by the military commissions
under the MCA.
Mr. Katyal. A terrific question, Representative Sanchez.
First of all, I do not think that the MCA can both look
like a court-martial and not be a court-martial at the same
time. It is one or the other.
And my view is that it should be a court-martial, these
trials should be courts-martial, to signal to the world and
comply with our Geneva Convention obligations, regular courts
with offenses defined ahead of time, not before.
The crimes you mention--crimes like hijacking and
conspiracy--were added in October of last year. And we cannot
turn back the clock and apply them to people who have already
committed their acts. After all, that is what the Article 1,
Section 9 ex post facto prohibition is all about.
Of course, those crimes that you mention are crimes at
least in the civilian code, if not in the military code, as
well.
But let me point out two fundamental defects between--for
the reason why courts-martial do not--why the MCA does not look
like a court-martial. One is expedited review. Representative
Skelton's opening remarks about how a court-martial--we know
the system is fair. It has been upheld by the Supreme Court
time and time again.
This is a newfangled system operating in what the
Administration calls a legal black hole.
Ms. Sanchez. Reclaiming my time for a moment.
If we were worried about every time we make a new law and
there was not case law for it, then we would never make new
laws. If we were worried about every time we tried a person
that we were going on new ground, then we would never make a
new system.
So, I think that that is neither here nor there.
Mr. Katyal. What I am saying----
Ms. Sanchez. The Supreme Court will decide.
Mr. Katyal. And what I am saying, Representative Sanchez,
is that it is not just that it is a new law. There is law that
is fundamentally against what the MCA is all about. And the
arguments that you would advance, the arguments Representative
Skelton has advanced, are the same arguments we have heard for
five years.
Johnson v. Eisentrager is going to uphold this military
commission system. We do not have to give Geneva Convention
protection. We do not have to give habeas----
Ms. Sanchez. No. Again, reclaiming my time, that is not the
case.
In fact, I argued to the former chairman, now the ranking
member, and to the chairman during the year, that I thought the
Supreme Court would come back and tell the Congress, ``You are
in charge of writing the rules for these military commissions,
or whatever it is you decide to do, not the President.''
But I believe that we had a very thorough process in doing
this. And I do believe the Congress had that right and it was
their responsibility. And we did it.
If you will indulge me just--I have one more question that
I have for the gentleman, Mr. Chairman.
The Chairman. Please proceed.
Ms. Sanchez. I am very concerned about you wanting to go to
courts-martial versus what we have done in the MCA. And it has
to do with the rules of evidence, in fact, Military Rule of
Evidence 305.
Because, as you know, battlefield interrogation, other
types of interrogations that have gone on have not been with
Miranda rights.
And so, it is my opinion that, if somebody who is on the
side of a defendant right now--of course, you would like to
kick this into a courts-martial process, because the evidence
in the interrogation and any of the information we may have had
since your client did not have Miranda rights read to him,
would be thrown out automatically. Don't you believe that?
Mr. Katyal. Absolutely not.
As I testified in the Senate in July of last year, the
United States Court of Armed Forces--our highest military
court--has issued an opinion called United States v. Lonetree,
in 1992. The Lonetree decision says that when interrogation is
taking place for purposes of intelligence gathering, no Miranda
warnings need be given.
And so, I would respectfully disagree with the judge
advocate general that Mr. Hunter referred to earlier, because
it is quite clear under existing military law that no Miranda
warnings need be given, and the evidence would not be excluded,
so long as the interrogation is being undertaken for purposes
of intelligence gathering, which is, as I understand it, what
these interrogations were all about.
Ms. Sanchez. And I would differ with you, in that the line
of case asked in Lonetree asked whether the intelligence and
law enforcement investigations have merged.
And if they have merged, then the exception does not apply.
And as you know, at GTMO, it is almost a total merge of
intelligence and law enforcement purposes and routine sharing
of information between intel and criminal investigators.
And I realize my time is over, but I would disagree with
the gentleman.
The Chairman. Thank the gentlelady.
Ms. Castor and then Dr. Gingrey.
Ms. Castor. Thank you very much for your testimony today.
I am very concerned that the Bush-Cheney policy here has
undermined our national security and, in fact, unnecessarily
delayed bringing terrorists to account. It has not been smart
or strategic from a counterterrorism point of view, because it
has fed the radical jihadist terrorist movement.
I think it has been very interesting, just in recent days,
the press reports about the struggle in the executive branch.
It has been reported in his first week, says Defense Secretary
Robert Gates repeatedly argued that the detention facility at
Guantanamo Bay, Cuba, had become so tainted abroad that legal
proceedings at Guantanamo would be viewed as illegitimate.
He told President Bush and others that it should be shut
down as quickly as possible. And he was joined by Secretary
Rice.
It has been reported President Bush and Attorney General
Alberto Gonzales and Vice President Dick Cheney rejected those
arguments.
So, as I think it is going to be vital to look at this from
two points of view. One is the broader view. As you put it,
reconceptualize our counterterrorism strategy and strengthen
it, try to repair the damage done to the relationships with the
global community and our allies.
But then I would like you all to focus now on specific
recommendations to this committee moving forward. I have heard
a few--a national security corps ensuring that rights that are
written on paper are implemented and enforced, and not just
written down.
But what else specifically can you recommend to this
committee right now that should be changed, should be
implemented, should be adhered to?
Secretary Taft.
Mr. Taft. My recommendation, as I said, was that we should
shut down the facility at Guantanamo. I understand the factors,
that it is mostly logistical convenience that suggests that it
has advantages.
But on the whole, it seems to me that the political cost is
too high.
I do not see that there is any great difficulty in finding
places in the United States in the military facilities to house
the detainees there that we are entitled to have in custody.
I mean, I am familiar with a number of situations where,
for example, when we took in the Vietnamese refugees in the
late 1970's, we had over 100,000 people housed over a period of
8 months on military bases.
There is plenty of room. There are facilities. We can get
security. The military can do this.
And I was in the Pentagon for eight years, so I know a
little bit about this. And it can happen.
So, logistically, it will cost some money, but it costs
some money in Guantanamo. They can do it. It will be secure. It
will be safe. And that is what we ought to do.
The cost politically is too high. And that is my
recommendation to the committee.
Mr. Philbin. Representative Castor, I would not recommend
abandoning Guantanamo and making that sort of change.
And I would just like to respond, and respond to your
question also, to something that you picked up on from Ms.
Massimino's earlier comments about reconceptualizing our
approach to the war on terror.
Part of the reason that I think closing down Guantanamo
will not achieve the intended objective of repairing relations,
strained relations, with foreign partners is that, the real
criticism is not just Guantanamo.
As Secretary Taft put it, you know, some brands become
toxic. I think the brand that is toxic is not just Guantanamo.
It is not the place.
The reason that we get criticism from our foreign partners
is that they fundamentally reject the law of war paradigm that
we are applying to the conflict with al Qaeda. They reject the
idea that we can hold people as enemy combatants for years
without charging them and trying them for something.
And I do not think that we should abandon that law of war
paradigm.
And to get back to what Ms. Massimino said at the
beginning, I do not think that law of war paradigm in any way
empowers or heightens or raises the terrorists that we are
fighting against by giving them some sort of legitimacy as
combatants.
We have recognized that this is an armed conflict, but that
our opponents, al Qaeda, are unlawful combatants in that
conflict. They are not legitimate belligerents.
They are violating the laws of war in everything they do.
It is an unlawful armed conflict. They attack women and
children. They operate without uniforms. They do not abide by
the laws of war.
And it does not in any way diminish the laws of war to
treat this as an armed conflict. What would diminish the laws
of war is, in treating this as an armed conflict, to treat them
as if they were legitimate belligerents, as if they had rights
as lawful belligerents. And that is not the approach we have
taken.
We have recognized that this is an armed conflict, because
of the level of hostility, the level of destruction that is
involved in the attacks and the transnational attacks, but at
the same time have recognized that it is a conflict carried on
by unlawful belligerents who can be prosecuted for their war
crimes.
And I think that is the right paradigm and that we should
not abandon that paradigm.
Mr. Katyal. I would fundamentally disagree with Mr. Philbin
that the idea for why Guantanamo is so offensive to the world
is because of the law of war paradigm. I do not think there are
a bunch of law professors sitting around analyzing what legal
regime applies, the law of war or law of peace.
The real problem, as Secretary Gates and Secretary Rice
have said, is that Guantanamo has become a black hole where no
law applies. The rest of the world is very concerned about that
idea.
And so, that is why Britain, Australia, and all these other
countries--Britain refuses to let its own citizens be tried at
these Guantanamo commissions for this reason.
So, I would do three things.
First, I would move the trials to the United States. They
are high-visibility events. Second, I would restore habeas
corpus to the people at Guantanamo.
And third, I would abandon the MCA project in favor of a
court-martial review, or at the very least, take up
Representative Skelton's idea about expedited review of these
military commission procedures.
Ms. Massimino. Thank you.
The Chairman. Do you have a comment, Ms. Massimino?
Ms. Massimino. I was going to answer----
The Chairman. Go ahead.
Ms. Massimino [continuing]. The congresswoman's question,
the recommendations that I would make right now.
And they are informed by a belief that this view that there
is a stark, binary choice between the criminal justice system
and war is a trap that we have fallen into.
First, I would close Guantanamo. And I think that that will
speed up the process of repatriating the people that the United
States finds is no longer a threat.
I would try them in either regular courts-martial
proceedings or in Federal court, as we have done with many
other al Qaeda terrorists since 9/11.
I would restore habeas corpus to the detainees.
I would repeal the MCA, or at the very least, fix the
overly broad definition of enemy combatant, which funnels
people who have never been considered combatants under the laws
of war into this military system.
And I would--something we have not addressed here, but
should be of great concern to this committee--I would engage
very quickly on the Administration's current consideration of
how it will interpret Common Article 3 of the Geneva
Conventions, because while that is being framed as the rules
for interrogation for the CIA, essentially what that project
is, right now is deciding what protections our military will
have when they are engaged in non-international armed
conflicts.
And that is very, very important for our people and should
be of interest to this committee.
The Chairman. I thank the gentlelady.
Dr. Gingrey, then Mr. Johnson.
Dr. Gingrey. Mr. Chairman, thank you.
First of all, let me just comment in regard to what Mr.
Taft said a few seconds ago in regard to how we dealt with the
Vietnamese refugees in Federal facilities.
I would suggest to the gentleman that Khalid Sheikh
Mohammed is a little different than Vietnamese refugees in
regard to security or for housing these enemy combatants.
I want to direct my question to Mr. Katyal first. I want to
ask the gentleman, the professor of law at Georgetown
University, if he is permitted to have any outside employment
other than, I guess, full-time faculty position. Are you able
to take any consults or consultations or anything?
Mr. Katyal. I am.
Dr. Gingrey. In regard to that response, have you ever been
of counsel or represented in any way, shape or form any of
these enemy combatants that are detained at Guantanamo Bay?
Mr. Katyal. Yes, Representative. As my prepared statement
said and my oral statement, I represented Mr. Hamdan pro bono
all the way up to the Supreme Court of the United States and
argued his case in the Supreme Court.
Dr. Gingrey. Very, very interesting.
Well, thank you. I got here late, and I am sorry I did not
hear that initial testimony. I think that, certainly for this
member, sheds some additional light on maybe where you are
coming from in regard to some of your testimony that I have
heard.
I do want to ask you, in regard to the issue of an alien, I
think we all know pretty much the definition of an alien--an
unnaturalized foreign resident of another country.
And I think you have spent some time this morning in your
testimony trying to state that Guantanamo Bay, Cuba, is United
States territory in some way, shape, or form.
But I think you probably are aware that we lease Guantanamo
Bay from the sovereign country of Cuba. And, in fact--and I
would expect that you would know this, as well, that Castro
has, in fact, not even cashed the checks that we have submitted
to him as the lease payment on an annual basis. So, he does not
even recognize the lease as legal.
So, I just find it amazing that you could consider this
United States sovereign territory and apply the same rights to
these enemy combatant detainees that are there at Guantanamo
Bay as if they were aliens--legal or illegal--in this country
or a territory owned by this country.
Could you explain that to me?
Mr. Katyal. Absolutely. And my position is that--it is not
my view--it is the view, I think, of the United States Supreme
Court that Guantanamo, because of the degree of American
control over the base, is, for all practical purposes--that is
Justice Kennedy's quote from the last Supreme Court decision--
United States territory. And let me explain to you why.
This is a lease unlike any other lease. I lease an
apartment, and I am sure many of your constituents do. The
lease with Cuba says that we lease this big piece of land, 45
square miles, from Cuba for $4,000, or something, a year until
both parties say the lease should be broken--both.
So, this is effectively permanent territory of the United
States, regardless of what Mr. Castro decides to do or not.
And the fundamental point is this. Guantanamo----
Dr. Gingrey. Well, I think the fundamental point, with all
due respect, is that we would be a tenant at will in that
situation.
Mr. Katyal. Our position is that we have that lease
indefinitely and that the laws of Cuba do not apply to protect
these detainees. Neither does the Constitution of the United
States.
That is different from every other parcel of land in the
world. That is why Guantanamo Bay was chosen by the
Administration.
They adopted a legal theory that said, ``Well, this is a
place where we have absolute control, but we do not have to
follow the laws of Cuba, because we are effectively permanent
leaseholders in this area.''
That is why, I think, you have seen the degree of
condemnation internationally, and why Secretary Gates and Rice
are reportedly wanting to close Guantanamo----
Dr. Gingrey. Well, I appreciate your response. My time is
limited, and I want to move on to the next question, because
you just quoted a Court precedent in regard to Justice
Kennedy's opinion on that.
You commented just a few minutes ago in regard to restoring
the rights of habeas corpus. So, let us go to another court
decision then.
February 20, 2007, the United States Court of Appeals for
the District of Columbia decided--I think I am pronouncing this
correctly--Boumediene v. Bush, that Guantanamo detainees have
no constitutional rights to habeas corpus. And I tend to agree
with that opinion.
And I further note that the Constitution clearly calls--
clearly calls--for the speech and of habeas with the existence
of an invasion or a threat to public safety.
I would like, Mr. Chairman, if you will indulge me, I
realize that the time has expired, but let Mr. Katyal respond
to that, if he would.
Mr. Katyal. I have great respect for that court, the Court
of Appeals for the D.C. Circuit. I think their track record in
these cases has not been good.
The decision on February 20th is the same sort of decision
as the one they issued in 2003 on habeas corpus rights of
Guantanamo detainees. It was reversed by the Supreme Court, as
was that court's later decision about military commissions at
Guantanamo Bay.
So, I would caution this body to read too much into a two-
to-one decision by that court.
The Chairman. I think I would point out to the gentleman
that it was a three-to-two decision, if I am not correct.
Mr. Katyal. I think it is two-to-one.
The Chairman. Was it two-to-one?
It is, as I understand it, on the way to the Supreme Court.
Is that correct?
Mr. Katyal. The Supreme Court tomorrow is scheduled to
decide in conference whether to hear that case, yes.
The Chairman. I see.
Mr. Johnson.
Mr. Johnson. Thank you.
The Military Commissions Act of 2006 authorized the
establishment of military commissions to try alien unlawful
enemy combatants. And prior to that time, there had not been
that class of alien that was recognized in law.
But with the advent of that act, we carved out, instead of
a prisoner of war, now we have this second class of alien
unlawful enemy combatant.
And that was a law that was passed by the 109th Congress,
that put it into the hands of the secretary of defense, in
consultation with the attorney general, to formulate rules for
the conducting of trials of these enemy combatants.
And then at the same time, the Administration, under the
leadership of the now-embattled attorney general, whose respect
for notions of constitutional principles are suspect, in
coordination with the secretary of defense, who is now
thoroughly discredited, they had embarked upon this plan to
establish that black hole, Guantanamo Bay, which is not subject
to this legal fiction.
It is not subject to U.S. jurisdiction or Cuban
jurisdiction--or any other jurisdiction. And so, therefore, no
rights apply--no Geneva Convention rights, no U.S.
constitutional rights. We will just decide as we go along, and
we will leave it up to the attorney general--we will leave it
up to the secretary of defense, along with the attorney
general--to promulgate these rights.
And Congress has absolutely no say-so about those
particular rules that have now been established and that we are
now operating on in trying these enemy combatants. Congress has
not approved them. The only thing that happened was this
committee was briefed on those rules. And it was about a 45-
minute briefing.
And so now, the constitutional bedrock principles that this
country has been founded upon have been thrown out of the
window, and we are told to assume that the arrest and detention
of any person in, say, Iraq or Afghanistan, but certainly not
limited to those two places--anywhere in the world that we
decide to arrest somebody.
Then we start referring to them as terrorists, and there is
no idea of probable cause that is given to these people to
challenge the detention in advance of being charged. And, in
fact, they can be held indefinitely.
And they have been held for, as you note, Mr. Katyal, five
years or more--five years without charges, people still being
held, held incognito in Guantanamo, not able to notify family,
not able to have an attorney to represent them to contest the
merits of their detention.
And now they are being brought to trial under these
principles that have been established by the attorney general
and the secretary of defense, which enable or allow for the use
of coerced testimony, torture, to convict the accused. And it
is held in a secret trial.
So, my question is to Mr. Philbin.
Evidence obtained from a witness who was forced to stand up
non-stop for 20 hours is admissible in a trial of an enemy
combatant. Is not that correct? Isn't that correct?
Mr. Philbin. That is not clear from the rules. It would
have to be determined by a military judge in charge of the
tribunal. If----
Mr. Johnson. And it would be the burden of--that the
presumption would be that the evidence obtained in that manner
was, in fact, probative and----
Mr. Philbin. No, I do not think there is any presumption
like that put into the Military Commissions Act. The Military
Commissions Act says that, if there is a disputed amount of
coercion with respect to some evidence, if the conduct occurred
after passage of the Detainee Treatment Act and the conduct
violated the Detainee Treatment Act, that the evidence cannot
come in, period.
If it is does not violate the Detainee Treatment Act, the
military judge must find that, in the totality of the
circumstances--all of the circumstances, including everything
that you have described--that the evidence was reliable and
that it had probative value.
Mr. Johnson. But to make that----
Mr. Philbin. And it would be in the interest of justice for
it to come in.
Mr. Johnson. And this would be a military judge with a
military prosecutor, with a military jury and a military
defense attorney, who could be subject to being coerced
himself, as is the case with Colonel Morris Davis, the chief
prosecutor--excuse me, Major Michael Mori, the military defense
lawyer--for David Hicks, the Australian, who has been accused
by Colonel Morris Davis, the chief prosecutor in the case, with
possible prosecution himself.
Mr. Philbin. If I understand it, there are rules in place
for the military commissions, just as there are the same rules
that would apply in the court-martial system. That if there is
influence by a superior--improper influence to try to pressure
one of those on the defense counsel--that that is a violation
of the UCMJ, and that the person who applied that pressure
improperly could be prosecuted for that.
Mr. Johnson. Well, let me ask you this.
Mr. Philbin. The same protection would apply. And I would
like to----
Mr. Johnson. Let me ask you this question.
Mr. Philbin. I would like to respond to some of the earlier
parts of your question, if I may, Representative.
Mr. Johnson. Let me just ask you this question, because I
am out of time.
Mr. Philbin. You are----
Mr. Johnson. Do you have any information as to whether or
not--or can you guarantee the international community that
Khalid Sheikh Mohammed was not subjected to torture prior to
his confession?
Mr. Philbin. I cannot make personal guarantees. The
President of the United States has said----
Mr. Johnson. I think that is the problem that we have with
this entire----
Mr. Philbin. You want me to answer your question, sir? The
President of the United States----
Mr. Johnson [continuing]. Because it does not hold us in
good regard to the public.
Mr. Philbin [continuing]. Says that we do not torture. It
is the policy of the United States that we do not torture. The
United States has never conducted----
Mr. Johnson. But we allow other countries to torture. We
will allow people in other countries to torture, and then we
will leave it up to the judge to decide whether or not that
information is relevant, probative, or whether or not it is----
Mr. Philbin. Not that I am aware of, sir.
And I would like to go back to some of the earlier part of
your question, because it contained a number of misstatements.
You said that the Military Commissions Act allows military
commissions to admit evidence obtained by torture. That is
explicitly prohibited by the Military Commissions Act.
Mr. Johnson. Well, it is prohibited in terms of the person
who is charged.
The person who is accused, if they were tortured, then
evidence derived from that torturous conduct would be excluded,
correct?
Mr. Philbin. I believe that the statement in the Military
Commissions Act is that statements obtained by torture are
prohibited.
Mr. Johnson. Well, let me read it to you.
The Chairman. I thank the gentleman. Do you have a--do you
wish to complete your question, Mr. Johnson?
Mr. Johnson. Yes.
The Chairman. Please proceed. We are going to try and get
the next two members before we break to go vote.
Mr. Johnson. Yes. The military code of--MCA allows for the
admission of hearsay testimony--or excuse me--it allows for the
use of torture testimony, so long as that torture was not
against the individual who is standing trial.
But statements that were obtained through cruel, inhumane
or degrading treatment that does not amount to torture is
admissible. And it is not defined. Torture is not defined.
But that kind of evidence is admissible under certain
circumstances. And so, we have some problems with this
legislation, insofar as the use of information derived from
torture. And that is the point that I want to make.
The Chairman. Sir, do you have an answer?
Mr. Philbin. Yes. I believe that the representative's
characterization of the Military Commissions Act is incorrect.
The Military Commissions Act prohibits the admission of any
statement obtained by torture, whether it is a statement of the
accused or a statement of any other person, and as consistent
with the United States obligations under the Convention Against
Torture.
And just to go back to some of the earlier statements the
representative may have----
Mr. Johnson. Torture is not defined, though, is it?
Mr. Philbin. Torture is explicitly defined in the
Convention Against Torture and in the United States statute.
The Chairman. I thank the gentleman.
We are going to squeeze in the next two, Mr. Wilson and Mr.
Sestak, and then we will end the hearing.
We will have to vote shortly.
Mr. Wilson.
Mr. Wilson. Mr. Chairman, thank you very much.
And we do have votes, but I would like to make an
observation.
I have visited Guantanamo Bay twice. I have the background
of seeing a first class detention facility. I served on the
Corrections and Penology Committee in the State Senate of South
Carolina for a number of years.
I know prisons inside and out, not from having been placed
there, but having visited and asking questions. Additionally, I
was the chairman of our county law enforcement advisory
committee working with the detention facility.
In my visit to Guantanamo Bay, I saw a first class facility
with trained personnel, professionals, who were well treating
the detainees, and in particular, it was very impressive to
me--giving the highest respect for all religious observances.
I was surprised on my visits to find there, that these
alien detainees from the battlefield were highly educated
people, highly trained people to commit mass murder. It was
extraordinary to me to find out that such people indeed are
enthusiastic in their efforts to want to harm the people of the
United States.
I also found out that the interrogation produced
information on overseas cells of terrorists in Europe, Asia,
the United States.
We found out their training ability, the extraordinary
financing capability they had. These are not poor people. These
are very wealthy people, who have every intent to kill the
people of the United States.
We found out their methods of operation. And indeed, I
believe that Guantanamo Bay and the interrogation has saved
thousands of lives.
I also have a background--I was 28 years as a judge
advocate general in the Army National Guard. And so, I have
worked very closely with the court-martial system. And I
respectfully disagree with any thought that we would provide
our constitutional benefits to people worldwide.
And so, I respect the view of the congresswoman from
California. Indeed, I believe that military commissions protect
American families.
And very important, Chairman Skelton, when this issue came
up previously, stated our first goal is to protect American
troops.
And I really want to see a system in place that does that.
Mr. Chairman, I yield the balance of my time.
The Chairman. Thank you very much.
Mr. Sestak. You are recognized. And then we will close the
hearing.
Mr. Sestak. Thanks, Mr. Chairman.
Mr. Philbin, I just had a couple of quick ones.
What are the consequences, and particularly security, if
any, of transferring detainees from Guantanamo Bay to America?
Maybe you have already answered this.
Mr. Philbin. I addressed it to some----
Mr. Sestak. I am sorry, to comment on the United States.
Mr. Philbin. I addressed it to some extent in my written
testimony. And, of course, I am not an expert on this. I think
that members of the military from DOD could give you a more
precise answer.
But my understanding is there are obvious security issues.
You have 273 enemy combatants held at Guantanamo now, who
through multiple screenings have been determined to be a
continuing threat, that if they were released they would return
to the fight to try to kill Americans.
To bring them to the United States, you have either got to
distribute them around to a bunch of different military
facilities, because no one facility right now has the capacity
for them, in which case you have to increase the security at
each of those.
I visited the Naval consolidated brig at Charleston, South
Carolina, where Jose Padilla is housed. It is not a very large
facility. Some could be housed there, but you would have to
increase the security, and it is right near a population
center.
Any place that you put some of these detainees,
particularly, I think, if you put them all in one spot--which
is what would be helpful for continuing the intelligence
mission that goes on now at Guantanamo--you make it a huge
target for any potential terrorist attack that al Qaeda could
mount in the United States.
Mr. Sestak. What would the concern be for the supermax
prison at Florence, in Florence, Colorado, today, where we have
terrorists kept?
Mr. Philbin. I do not think it----
Mr. Sestak. Are they--do you happen to even know if
Florence, Colorado, is on a potential terrorist list?
Mr. Philbin. I do not----
Mr. Sestak. I mean, you know, the vulnerability list that
we keep?
Mr. Philbin. I am sorry, I do not know that. And I think
that it would be a different situation from supermax. We have
got Ramsey Yousef and a few other terrorists to transporting
several hundred and concentrating them at one site,
particularly where these would be the comrades in arms of the
actual people who are still out there.
Mr. Sestak. May I ask you, if you can tell me--and we only
have a moment or two.
In regard to the most important changes you would like to
see in the Military Commissions Act that this Congress could
make, and particularly hearsay evidence, what would it be?
Ms. Massimino. Well, if you are asking, Mr. Sestak, about
the military commission rules themselves, there is a long list
of defects, and I go through them in my testimony.
Mr. Sestak. Could you speak to the hearsay?
Ms. Massimino. Yes. The biggest concern, frankly, that we
have about the current hearsay rules is that they will provide
a means for a backdoor way for there to be the admission
actually of evidenced obtained through torture, frankly.
And that, because of the restrictions that are in there of
preserving the classified nature of sources and methods, the
problem we have is that the operation of the hearsay rule and
the classified evidence rule will mean that the protections
against the admission of coerced testimony, evidence obtained
through cruel, inhumane and degrading treatment will end up
coming in, despite the characterization, which was correct, of
Mr. Philbin of the protections against the admission of that
kind of evidence into military commissions.
Mr. Sestak. Mr. Katyal, do you have a comment on that?
Mr. Katyal. Maybe I will just defer to Secretary Taft, who
has spoken on the hearsay rules.
Mr. Sestak. Mr. Taft.
Mr. Taft. Congressman, my concern about the hearsay rule is
simply that it is inconsistent with our approach embodied in
the Sixth Amendment of the right to confront a witness. A
hearsay witness is not under oath, he is not on the record, he
is not there, he cannot be subject to cross-examination.
Such testimony should be excluded. It is not a----
Mr. Sestak. Mr. Taft, would you----
Mr. Taft. It is not improper----
Mr. Sestak. I understand.
Mr. Taft [continuing]. To say, to want to have a different
rule.
Mr. Sestak. But do you think that the hearsay evidence that
was submitted at the International Criminal Tribunal for the
former Yugoslavia, are they doing it wrong to do that?
Mr. Taft. They have a very different----
Mr. Sestak. Or is there some sort of structure----
Mr. Taft. No, I do not----
Mr. Sestak [continuing]. That we could take from that to
consider?
Mr. Taft. No, they have a very different system in that
tribunal. Also in the Rwanda tribunal, and indeed, in national
courts in Europe. Hearsay is admitted there because of the
whole different structure that they have for conducting
criminal trials, where the judge and the prosecutor play very
different roles from what our system is.
And we have not adopted it in our own civilian criminal
trials, and I do not think we should be adopting it here.
The Chairman. There is a vote on.
I thank the gentleman.
Without objection, the letter dated March 8th this year
from certain civil rights and religious organizations, is
submitted into the record.
[The information referred to can be found in the Appendix
on page 136.]
The Chairman. I thank the witnesses very, very much. I am
sorry we have to close the hearing, because there is a vote
pending.
Thank you. Adjourned.
[Whereupon, at 12:42 p.m., the committee was adjourned.]
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