[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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