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


                                     

                         [H.A.S.C. No. 110-79]
 
         UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR DETAINEES

                               __________

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD

                             JULY 26, 2007


                                     
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13



                  U.S. GOVERNMENT PRINTING OFFICE
45-067                    WASHINGTON : 2009
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001
                                     
                   HOUSE COMMITTEE ON ARMED SERVICES
                       One Hundred Tenth Congress

                    IKE SKELTON, Missouri, Chairman
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
SILVESTRE REYES, Texas               ROSCOE G. BARTLETT, Maryland
VIC SNYDER, Arkansas                 HOWARD P. ``BUCK'' McKEON, 
ADAM SMITH, Washington                   California
LORETTA SANCHEZ, California          MAC THORNBERRY, Texas
MIKE McINTYRE, North Carolina        WALTER B. JONES, North Carolina
ELLEN O. TAUSCHER, California        ROBIN HAYES, North Carolina
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 E. 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            BILL SHUSTER, Pennsylvania
DAVID LOEBSACK, Iowa                 THELMA DRAKE, Virginia
KIRSTEN E. GILLIBRAND, New York      CATHY McMORRIS RODGERS, Washington
JOE SESTAK, Pennsylvania             K. MICHAEL CONAWAY, Texas
GABRIELLE GIFFORDS, Arizona          GEOFF DAVIS, Kentucky
ELIJAH E. CUMMINGS, Maryland
KENDRICK B. MEEK, Florida
KATHY CASTOR, Florida
                    Erin C. Conaton, Staff Director
                Paul Oostburg, 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, July 26, 2007, Upholding the Principle of Habeas Corpus 
  for Detainees..................................................     1

Appendix:

Thursday, July 26, 2007..........................................    91
                              ----------                              

                        THURSDAY, JULY 26, 2007
         UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR DETAINEES
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Saxton, Hon. Jim, a Representative from New Jersey, Committee on 
  Armed Services.................................................     3
Skelton, Hon. Ike, a Representative from Missouri, Chairman, 
  Committee on Armed Services....................................     1

                               WITNESSES

Abraham, Stephen E., Lieutenant Colonel, U.S. Army Reserve.......    13
Dell'Orto, Daniel J., Principal Deputy General Counsel, U.S. 
  Department of Defense..........................................    66
Katsas, Gregory G., Principal Deputy Associate Attorney General, 
  U.S. Department of Justice.....................................    69
Keene, David A., Chairman, American Conservative Union and Co-
  Chair of the Constitution Project's Liberty & Security 
  Initiative.....................................................     9
Oleskey, Stephen H., Partner, Wilmer Cutler Pickering Hale and 
  Dorr LLP.......................................................     6
Philbin, Patrick F., Former Associate Deputy Attorney General, 
  U.S. Department of Justice.....................................    11

                                APPENDIX

Prepared Statements:

    Abraham, Stephen E...........................................   153
    Dell'Orto, Daniel J..........................................   176
    Katsas, Gregory G............................................   180
    Keene, David A...............................................   115
    Oleskey, Stephen H...........................................    95
    Philbin, Patrick F...........................................   124

Documents Submitted for the Record:

    Report on Guantanamo Detainees, A Profile of 517 Detainees 
      through Analysis of Department of Defense Data.............   193
    CTC Report, An Assessment of 516 Combatant Status Review 
      Tribunal (CSRT) Unclassified Summaries, 25 July 2007.......   221
    Preliminary Response to the Pentagon Commissioned Report, by 
      Mark Denbeaux and Joshua Denbeaux..........................   228
    Letter from Karen Mathis, President of the American Bar 
      Association................................................   233
    Excerpts from transcript of June 10, 2007, Meet the Press 
      interview with Colin Powell, and September 13, 2006, letter 
      from Colin Powell to Senator John McCain...................   235
    Letters in support of restoration of habeas corpus...........   239
    Letter from LTC Stephen E. Abraham to Rear Admiral McGarrah, 
      dated 10 December 2004.....................................   267

Witness Responses to Questions Asked During the Hearing:

    [There were no Questions submitted during the hearing.]

Questions Submitted by Members Post Hearing:

    Mr. Skelton..................................................   271

         UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR DETAINEES

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                           Washington, DC, Thursday, July 26, 2007.
    The committee met, pursuant to call, at 9:05 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. Ladies and gentlemen, the committee will come 
to order.
    Today's hearing is about upholding the principles of habeas 
corpus for detainees at Guantanamo Bay, Cuba.
    Many across the country and some in this hearing room may 
ask why Congress should bother restoring the constitutional 
right to challenge arbitrary detention to the men in Guantanamo 
(GTMO) when some of them are self-avowed terrorists.
    For our first panel today, we have four very distinguished 
attorneys.
    Mr. Stephen Oleskey, please raise your hand.
    Mr. Oleskey, a partner at Wilmer Cutler Pickering Hale and 
Dorr, has represented six Bosnian Algerian men who have been 
detained at Guantanamo since 2002. Mr. Oleskey was awarded the 
2007 American Bar Association Pro Bono Publico Award largely 
because of his work on habeas matters.
    We thank you for being with us.
    Our next witness, Mr. David Keene, since 1984, has served 
as the chairman of the American Conservative Union as well as 
co-chair of the Constitution Project's Liberty and Security 
Initiative.
    Mr. Keene.
    Next we welcome back to the committee Patrick Philbin, who 
served as associate deputy attorney general from 2003 to 2005 
and is currently in private practice.
    And, finally, Mr. Stephen Abraham, lieutenant colonel in 
the United States Army Reserve, although he is testifying as a 
civilian today. He has firsthand knowledge of the Combatant 
Status Review Tribunals (CSRT) through his work with the Office 
for the Administrative Review of the Detention of Enemy 
Combatants (OARDEC).
    We welcome you, gentlemen.
    Back in 1945, an American country lawyer took to his feet 
in a courtroom in Germany and foreshadowed a couple of answers 
to the important question just put to us.
    Opening the Nuremberg trials of notorious Nazi prisoners, 
the country lawyer said that ``civilization can afford no 
compromise with social forces which would gain renewed strength 
if we deal ambiguously or indecisively with the men in whom 
those forces survive.''
    Robert H. Jackson, chief counsel to the United States 
during the Nazi war trials, and later a Supreme Court Justice, 
could not have been more correct. We must prosecute those who 
are terrorists with the full force of the law, but we must also 
make sure that the convictions stick. And, gentlemen, being a 
former prosecuting attorney, I know full well what it is to 
make a conviction stick. The certainty of convictions must go 
hand in hand with tough prosecutions.
    The problem that we face is that the Military Commissions 
Act (MCA), which the last Congress passed over my strenuous 
objections, suffers from numerous flaws that I have outlined on 
previous occasions. Now, none of them is more severe than the 
stripping of habeas corpus from the detainees. In addition, 
earlier legislation established a questionable system of 
appellate review of the defective Combatant Status Review 
Tribunals process.
    Already, the legal weaknesses in the existing system have 
begun to crack. Last month, two military judges in separate 
opinions dismissed all charges against the only two detainees 
who have pending proceedings under the Military Commissions law 
because the legal process, under which they had been confirmed 
by a military panel to be enemy combatants, had not properly 
granted the military commissions jurisdiction over these 
defendants.
    Until this fundamental problem of personal jurisdiction is 
resolved, all military trials have stopped.
    Assuming that the Administration is able to correct this 
current mess, other legal challenges remain, which could result 
in known terrorists having their future convictions reversed.
    Restoring habeas to the detainees at Guantanamo would 
enable federal courts to help the Administration identify and 
rectify the inherent problems within the military commissions 
framework sooner rather than later, and may even accelerate 
prosecutions.
    Although the applicability of the holding in the Al-Marri 
case is rather limited and does not apply to the Guantanamo 
detainees, the U.S. Court of Appeals for the Fourth Circuit 
recently recognized a detainee's right to habeas and ordered 
the Administration to consider federal civilian prosecution of 
the individual, among other options, after nearly six years of 
detention.
    As equally important as ensuring tough prosecutions is 
remaining true to who we are as a nation. We must match our 
bedrock commitment to the rule of law and human rights to the 
enemy's propaganda of hatred.
    Restoring habeas for detainees allows us to reaffirm our 
global leadership on these values. On the other hand, 
abandoning a principle which has been a cornerstone of Anglo-
American jurisprudence for nearly 600 years, arms the 
terrorists with another recruiting weapon and undermines our 
worldwide credibility.
    In the course of prosecuting Nazi war criminals who had 
committed once-unimaginable atrocities, Robert Jackson, the 
country lawyer, said it best: ``We must never forget that the 
record on which we judge these defendants is the record on 
which history will judge us. To pass these defendants a 
poisoned chalice is to put it to our own lips as well.''
    Citing Johnson v. Eisentrager, a 1950 case, some may 
propose that Justice Jackson would not have intended his words 
to apply to the detainees at Guantanamo. On the contrary, I 
would argue that Justice Jackson himself would have been 
affronted by the situation at Guantanamo and would have readily 
distinguished his Eisentrager holding from it, as the Supreme 
Court did a few years ago in the Rasul decision.
    I am looking forward to hearing from our witnesses on these 
critical matters.
    I now turn to my good friend, my colleague from New Jersey, 
a senior member of our committee, Mr. Saxton of New Jersey, for 
any opening remarks that he may wish to make.
    Mr. Saxton.

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE FROM NEW JERSEY, 
                  COMMITTEE ON ARMED SERVICES

    Mr. Saxton. Mr. Chairman, thank you very much.
    I want to welcome our distinguished panel as well as the 
next panel of witnesses from the Administration. Thank you for 
being here. I appreciate it. We all appreciate it very much and 
I look forward to your testimony.
    Over the last few years, this committee has spent a great 
deal of time focusing on our global war on terrorism detainee 
policy. The policy that this committee advanced last Congress 
takes into account how the war against terror has produced a 
new type of battlefield and a new type of enemy.
    Our committee worked hard to pass the Detainee Treatment 
Act (DTA) and the Military Commissions Act, ensuring that the 
United States is able to detain, interrogate, try terrorists 
and to do so in a manner that is consistent with the 
Constitution and the International Laws of Armed Conflict.
    I think we got it right. As we meet today, our detention 
policy is being executed in accordance with requirements of the 
DTA and the MCA and the recently revised Army Field Manual.
    The long-awaited military commissions have begun. Just last 
week, the D.C. Circuit Court issued an opinion with respect to 
combat status review tribunals, which demonstrated that the DTA 
and the MCA framework provides detainees at Guantanamo Bay with 
unprecedented robust review of their status as enemy 
combatants.
    A little less than six years after the horrific acts of 
September 11, we are finally seeing the congressional-
authorized detainee policy beginning to work. There were 
challenges along the way, and through rigorous oversight the 
Congress improved and in many instances changed the 
Administration policy. But with the signing of the MCA this 
past October, we are finally moving forward in my opinion in 
the right direction.
    Mr. Chairman, I have taken the time to refer back to the 
work of the previous Congress and to demonstrate that we have 
worked hard on the issue before the Congress today and to say 
we ought to let this policy that Congress authorized in the DTA 
and the MCA have a chance to work.
    Last year on the MCA, this committee voted with a vote of 
52 to 8 to approve this policy. I note that today's hearing is 
on the principle of habeas corpus as applied to detainee policy 
at GTMO. Context here is important. In the same week that 
Congress is wrestling with how to deal with the national 
intelligence estimate that warns of al Qaeda's resurgence and 
its continued resolve to attack the homeland, this committee is 
considering whether we should grant members of al Qaeda 
detained at Guantanamo Bay more access to our courts.
    I emphasize, even more access to our courts because the 
current system does provide significant review of both the 
detention of enemy combatants as well as review of military 
commission decisions. The DTA and the MCA framework goes beyond 
what the laws of war require and are unprecedented in armed 
conflict.
    For those who criticize the DTA for not providing adequate 
review of the CSRT process and status determinations, I suggest 
you read last week's D.C. Circuit opinion, Bismullah v. Gates. 
In my view, the Bismullah decision bolsters the claim that the 
DTA and the MCA framework provides an adequate alternative to 
habeas corpus.
    Though I would argue that the current statutory framework 
provides an adequate alternative to habeas corpus, I do not 
believe that combatants captured and detained outside the 
United States on the battlefield have a constitutional right to 
habeas corpus. The D.C. Circuit Court came to this conclusion 
in a decision earlier this year and the Supreme Court will in 
fact look at this question at the end of this year.
    This leads me to the very basic question: Why are we here? 
Why are we seeking to bestow a right upon terrorists held at 
GTMO that the Supreme Court may tell us in the coming months is 
not required under the Constitution? In the absence of 
compelling national security need or a constitutional 
requirement, the Congress should not move to change the process 
it put in place less than a year ago.
    There is a more fundamental problem with providing habeas 
rights to detainees at GTMO. It will create an avalanche of 
litigation that will bring our detainee policy potentially to a 
grinding halt.
    I am not here to be an alarmist. Competitive and 
duplicative litigation will challenge not only the continued 
detention of detainees at GTMO but also the transfer of 
detainees from GTMO to their countries of origin. If the 
Department cannot continue to detain or transfer detainees 
because of an endless litigation, we will ultimately be forced 
to release these individuals. This is unacceptable.
    Of the approximately 400 detainees at GTMO that we have 
transferred to or released under the current policy, about 30 
have been killed or captured after returning to the 
battlefield. Press reports indicate that one of the former GTMO 
detainees killed himself earlier this week when Pakistani 
soldiers tried to capture him.
    Why would we take steps that would result in more detainees 
returning to the battlefield? Increasing the rights of detained 
terrorists at GTMO will move the present conflict from the 
battlefield into our courts. This would not be to our advantage 
and this is no way to conduct an armed conflict.
    Finally, I fear that adding habeas corpus rights to the 
current statutory framework produces an absurd policy, the 
result where detainees at GTMO would have more due process with 
respect to their detentions than U.S. citizens would in an 
analogous scenario. Additionally, to my knowledge the laws of 
war do not provide lawful combatants with habeas review. As a 
result, I am concerned that giving enemy combatants habeas 
corpus would in addition to the rights we currently give them 
create a system that rewards combatants for acting unlawfully 
and for using terrorist tactics.
    Let me just end with one simple point that I mentioned 
earlier. Our terrorist detainee policy was constructed to 
address a new type of enemy in a new type of war. We have used 
the International Laws of War and the Uniform Code of Military 
Justice as guideposts in crafting this new policy, and that is 
because it is fundamentally a war policy.
    Amending the DTA and the MCA framework will have the net 
effect of holding up the execution of the global war on 
terrorism detainee policy. Some would like this result. They 
would prefer to see terrorists tried under a criminal justice 
system. This is a false choice, at least that is my opinion. We 
can try terrorists for war crimes if it requires our soldiers 
to read terrorists Miranda rights or to take a battalion of 
lawyers onto the battlefield. We have tried the former 
approach, and it doesn't work.
    During the trial of the terrorists responsible for the 
first World Trade Center bombing, the discovery rules of the 
criminal justice system gave the defense access to information 
that found its way to the al Qaeda camps in Afghanistan. The 
DTA and the MCA framework is crucial because it is crafted for 
the conduct of war providing procedures flexible enough to 
account for the constraints and conditions of the battlefield.
    Mr. Chairman, five years-plus into this war we have crafted 
a new policy tailored for the new conflict that will work. Now 
it is upon us to exercise discretion and give this policy a 
chance.
    Mr. Chairman, I would like to submit at this time for the 
record the executive summary of a report released just 
yesterday by the Combating Terrorism Center at West Point, 
which analyzes 516 CSRT unclassified summaries that took place 
between July of 2004 and March of 2005. I note that the CTC 
study found that 73 percent of the unclassified summaries meet 
CTC's highest threshold of a demonstrated threat as an enemy 
combatant, and I have the report here, which I ask unanimous 
consent be included in the record.
    The Chairman. Without objection, it is included.
    Mr. Saxton. Thank you, Mr. Chairman.
    The Chairman. I do, however, introduce the report on 
Guantanamo detainees by Mark Denbeaux, professor at Seton Hall, 
and Joshua Denbeaux--the West Point report that you have, plus 
the preliminary response to that report. And I wish that they 
also be included in the record. And the one that you, Mr. 
Saxton, include in the record, is the one in the middle.
    Without objection, each of them will be placed in the 
record.
    [The information referred to can be found in the Appendix 
beginning on page 193.]
    The Chairman. I am having a little bit of trouble with your 
name. Is it Oleskey?
    Mr. Oleskey. It is, Mr. Chairman, yes. Thank you.
    The Chairman. Okay. Mr. Stephen Oleskey, we will call on 
you first.
    Let me also state that, without objection, each of your 
written statements will be included in the record in total, and 
if you could condense them, that would move us along much more 
rapidly.
    Mr. Oleskey. Have I got it?

 STEPHEN H. OLESKEY, PARTNER, WILMER CUTLER PICKERING HALE AND 
                            DORR LLP

    Mr. Oleskey. You do.
    Mr. Chairman, thank you, Ranking Member Saxton, members of 
this distinguished committee.
    My name is Stephen Oleskey. I am a partner in the law firm 
of Wilmer Cutler Pickering Hale and Dorr. I appear today to 
testify in support of H.R. 2826 filed by the chairman and other 
members of this committee to restore habeas corpus to the 
approximately 375 men detained in Guantanamo.
    Since July 2004, my firm has been representing pro bono in 
habeas corpus proceedings six men from Bosnia. These men were 
living with their wives and children in Bosnia in October 2001. 
Bosnia was far from any battlefield.
    The U.S. Government insisted that the Bosnian government 
arrest the six on suspicion on planning to blow up the U.S. 
embassy in Sarajevo. The Bosnians said they had no evidence of 
any such plot. The U.S. said it wanted the men arrested anyway 
immediately and so they were.
    The men were held for 90 days while an extensive 
investigation, which included our own FBI agents, was carried 
out under the supervision of a judge of the Bosnian Supreme 
Court. The men's homes and offices were searched for 
incriminating evidence, but no evidence of any such plot was 
uncovered. After 90 days under Bosnian law the Bosnian judge 
ordered the men released for lack of evidence.
    There were rumors, however, that the men would be sent by 
the U.S. to a new prison in Cuba. Therefore, their lawyers 
sought and obtained an order from the Bosnian Human Rights 
Chamber Court, set up by the Dayton Accords, prohibiting such 
an action.
    At the U.S.'s insistence, however, the men were sent 
immediately to Cuba. They arrived on January 20, 2002, and have 
been kept there without charge or trial for five years, seven 
months and six days. We filed habeas petitions for them in July 
2004. We have devoted thousands of hours to investigating their 
case, including visiting them 11 times in Cuba.
    The men were all labeled as enemy combatants in the fall of 
2004 by CSRT panels. Let me remind you briefly how that CSRT 
system was created in seven days in early July 2004 by then-
Deputy Defense Secretary Paul Wolfowitz immediately after a 
Supreme Court decision held there must be some formal process 
to hold men without trial indefinitely in Guantanamo.
    The Administration has said these men can be held until the 
end of the war on terror. This means, as Justice O'Connor wrote 
in 2004, that they can be held for the rest of their lives and 
all as a result of a CSRT process in which they had no counsel, 
were not told what the secret evidence was against them, could 
offer no witnesses except fellow prisoners, and could offer no 
documents to rebut the very sweeping, general claims made 
against them in the secret evidence.
    If all of that was not enough of a stacked deck, all of the 
evidence the government gave the CSRT, whatever the source or 
quality, was presumed by the Wolfowitz order to be correct.
    In 2004 in the Rasul decision, the Supreme Court appeared 
to say that all Guantanamo habeas corpus cases could go forward 
on their merits in federal district court. Then in 2005, in the 
Detainee Treatment Act, a previous Congress provided the 
limited review of CSRT decisions by the Court of Appeals in 
Washington, but this review was confined to whether the CSRTs 
had complied with their own procedures.
    You will hear today from me and Lieutenant Colonel Abraham 
how one-sided these procedures were and how grossly unfairly 
they were applied.
    Then in 2006, the last Congress passed the Military 
Commissions Act. This act sought to strip habeas corpus rights 
from any alien anywhere in the world seized by our military and 
labeled an enemy combatant by a CSRT.
    Last week's decision by the D.C. Court of Appeals on 
preliminary procedural issues in the first cases heard under 
the DTA underscores how inadequate that review process is 
compared to a habeas procedure before a federal trial judge.
    We are left with a host of unresolved questions about what 
a Court of Appeals review of each CSRT will involve and how 
long it will take to resolve even a single case. These 
unresolved issues are not surprising. Usually, but not here, an 
appellate court reviews a detailed record of a lower trial 
court or federal administrative proceeding in which lawyers 
were present for all parties. Usually, but not here, recognized 
rules of evidence are applied. Usually, but not here, there is 
no issue of evidence arising from torture or coercion. Usually, 
but not here, all parties are able to offer documents, 
witnesses and cross examine each other. But none of this 
happened for any detainee in the hundreds of CSRTs that took 
place.
    Let me give you three brief examples from our own six cases 
of how truly unfair these CSRTs were and why habeas review is 
required.
    All detainees were declared enemy combatants based almost 
entirely on secret evidence they were not allowed to see much 
less able to abut. As our client, Mustafa Ait Idir said to his 
CSRT panel, ``You say I am al Qaeda and I say I am not. You say 
I am al Qaeda based on evidence that you cannot show me and 
that I cannot respond to. Maybe if you tell me who says this, I 
can say I know this man from somewhere and I can respond. But 
this way, I can do nothing. Excuse me, but if someone said this 
to me in my country, we would laugh.''
    Mr. Ait Idir and another of our clients asked that the 
decision of the Bosnian Supreme Court from January 2002, that 
they be released immediately for lack of evidence, be given to 
their panels. Obviously, this would be an important fact to 
consider. Both panels found this publicly filed legal document 
available on the Web and in our pleadings not reasonably 
available.
    Not one of the six panels for our clients ever saw this 
important document.
    Let me give you a third example of how fundamentally unfair 
these procedures were. The procedures allow detainees to call 
reasonably available witnesses. One of our clients asked that 
his panel contact his boss at the Red Crescent Society of Abu 
Dhabi in Sarajevo where he was a full-time employee doing 
relief work with Bosnia orphans when arrested. The panel 
declared the witness was not reasonably available.
    Three months after this finding, I went to Sarajevo. I 
picked up the local telephone book, found the number for the 
Red Crescent Society and called the witness. Within 24 hours, I 
had interviewed him. He confirmed my client's account of his 
employment and outstanding character, an account that his CSRT 
never heard.
    As these and many other examples show, the CSRT process is 
too full of holes for any Court of Appeals to patch years 
later. Based on our extensive experience and observation, the 
CSRT process is disgraced and disgraceful. No amount of limited 
tinkering with individual CSRT proceedings by a federal appeals 
court is likely to produce a fair result because the CSRT 
process itself was not designed to be fair or to consider 
objectively whether to continue to hold these men.
    Finally, let me tell you a few important facts about a 
habeas hearing. Habeas is not a jury trial. It is a hearing by 
an Article III federal judge alone, one who reviews habeas 
petitions frequently. Habeas hearings are not exotic. They are 
routine. There were 22,000 habeas petitions filed last year in 
the federal courts. We are talking only of an additional 375. 
Habeas is not a criminal trial. There will be no Miranda 
issues. The only issues for a habeas judge will be, one, 
whether the government's evidence before the court is 
sufficient to hold the detainee indefinitely or, two, in some 
cases whether the detainee can be transferred by the government 
to another country where he fears torture.
    The habeas standard will not be the criminal law standard 
of proof beyond a reasonable doubt but a lesser standard of 
review. The habeas judge will independently review the evidence 
he or she considers relevant, whether that evidence was given 
to the CSRT or not. And that judge will look at exonerating 
evidence for the first time, virtually none of which was 
provided to any CSRT panel.
    Finally, under habeas the trial judge can order a detainee 
released in a proper case instead of being sent back for yet 
another CSRT. In a habeas hearing, American citizens can have 
some confidence there is likely to be a fair and final decision 
thoughtfully arrived at. Contrast this with Brigadier General 
Jay Hood's statement several years ago in the press. He had 
been in charge of Guantanamo. He said, ``Sometimes we just 
didn't get the right folks, but nobody wants to be the one to 
sign the release orders. There is no muscle in the system.''
    A federal trial judge in a habeas hearing will put some 
muscle in the system, and some muscle is what the chairman's 
bill will provide. The jury-built seven-day CSRT process needs 
finality and certainty, not endless do-overs where a Court of 
Appeals sends cases bouncing back to yet another CSRT and the 
case then rebounds again back to the appeals court while more 
years pass.
    H.R. 2826 brings integrity and finality to this process. It 
restores the habeas rights that the last Congress took away. It 
leaves the federal trial judges, not appellate judges, doing 
what trial judges do every day and do very well, sift the 
evidence, assess it, decide what other evidence the detainee 
should be allowed to offer. In a habeas case, a trial judge, 
not three military officers, decides whether the government has 
shown enough to justify holding a detainee for a lifetime or 
should instead now be released.
    Yes, let us take the truly evil men who our military seized 
on the real battlefields in this world, put them on trial in 
federal court or in appropriate cases before a military 
commission. There have been over 300 terrorists convicted or 
who have pled guilty in recent years in federal court.
    By passing H.R. 2826 this committee can begin to restore 
the confidence of the rest of the world that this great country 
remains a shining example of a nation committed to living by 
the rule of law, no matter how much our new enemies provoke us 
to experiment with seven-day fixes and seemingly stacked decks.
    Thank you, Mr. Chairman and members of the committee.
    [The prepared statement of Mr. Oleskey can be found in the 
Appendix on page 95.]
    The Chairman. Mr. Oleskey, thank you.
    Now Mr. Keene.

 STATEMENT OF DAVID A. KEENE, CHAIRMAN, AMERICAN CONSERVATIVE 
  UNION AND CO-CHAIR OF THE CONSTITUTION PROJECT'S LIBERTY & 
                      SECURITY INITIATIVE

    Mr. Keene. Chairman Skelton, Mr. Saxton and members of the 
committee, let me begin by thanking you for the opportunity to 
appear before you this morning.
    My name is David Keene. I am chairman of the American 
Conservative Union and co-chair of the Constitution Project's 
Liberty and Security Initiative.
    I am here today because as a conservative I believe that 
ours is the greatest and freest nation on the face of the 
earth. I am here today because as a conservative I believe we 
can defeat our enemies without compromising the values that 
have made this Nation great.
    As citizens, we owe it to ourselves to support realistic 
measures needed to protect our Nation. But men and women of 
goodwill, regardless of party, have to be able to work together 
to make certain that our rights survive the stresses of the war 
in which we are today engaged and the zeal of those fighting 
it, who sometimes forget just what it is they are fighting to 
protect.
    Since 9/11, Congress has granted the executive branch 
extraordinary powers to identify, pursue, and eliminate threats 
to the safety of this country and her citizens. I am one who 
believes that Congress was correct in granting much of the 
power sought because of the need to deal with a new kind of 
enemy in an age of technological advancement that might 
otherwise have given our enemies advantages that we couldn't 
match.
    The fact that we have successfully avoided another attack 
within our borders is testimony to the effective way in which 
those charged with our protection have pursued their mission 
using the traditional and newly granted powers available to 
them.
    On the other hand, as a conservative I believe it is always 
wise to look critically at every request for more governmental 
power. Those charged with protecting us naturally want all the 
power and flexibility they can get to pursue their mission, but 
sometimes forget that in protecting us there is a danger that 
they might inadvertently damage the very values they are trying 
so desperately to protect and preserve.
    A few days after the terrorist attacks in New York and 
here, then-Defense Secretary Don Rumsfeld said that if we 
change the way we live as a result of the terrorist threat we 
face, the terrorists will have won.
    The question we have to ask ourselves as we pursue victory 
over those who would destroy our way of life is whether the 
steps we take to achieve victory risks the destruction of who 
and what we are. It is vital that we preserve the traditional 
American constitutional and common law rights that have made 
our regard for human liberty unique in world history.
    I am here today not to question the validity of holding 
terrorist suspects at Guantanamo Bay or anywhere else, but to 
urge that those we do hold have the ability to seek an 
objective review of the legality of their incarceration.
    Throughout our Nation's history, the great writ of habeas 
corpus has served as a fundamental safeguard for individual 
liberty by enabling prisoners to challenge their detentions and 
to obtain meaningful judicial review by a neutral decision 
maker.
    Although I agree that our government must and does have the 
power to detain foreign terrorists to protect national 
security, repealing federal court jurisdiction over habeas 
corpus does not serve that goal. It is crucial that we maintain 
habeas to ensure that we are detaining the right people and 
complying with the rule of law.
    Those who argue against extending habeas rights to those 
being held at Guantanamo like to describe those incarcerated 
there as among the most dangerous of our enemies and suggest 
that anything that might lead to the premature release of any 
of them would constitute a dire and immediate threat to our 
national security.
    I have no doubt that some of those being held there today 
are enemies who deserve to be exactly where they are. But the 
purpose of a habeas hearing is not to release the guilty but to 
separate the innocent from the guilty. Many of those being held 
there were shipped to Guantanamo without any proof whatever 
that they ever even intended to engage in actions against us.
    Defense Department data suggests that there is evidence 
that about 8 percent of them have actually fought against us, 
but that as much as 55 percent of the remainder have never 
committed a hostile act against the United States or our 
allies.
    Many of these people have been in prison for five years or 
longer and may be held indefinitely without ever being brought 
to trial for anything at all, even though the Central 
Intelligence Agency (CIA) reported five years ago that most of 
them don't belong there.
    If we are to hold people indefinitely without charge, we 
should at the very least want to be certain that we are holding 
the right people.
    Restoring habeas corpus is also important to protecting 
Americans overseas. America's detention policy has undermined 
our reputation in the international community and weakened 
support for our fight against terrorism, particularly in the 
Arab world. Restoring habeas rights would help repair that 
damage and demonstrate America's commitment to a tough but 
rights-respecting counterterrorism policy.
    Having said this, however, I have to say that I am 
personally concerned not so much by what others might think of 
us or do as a result of our policies but of what the cavalier 
dismissal of fundamental rights for those we are holding says 
about who we are.
    Therefore, I urge Congress to restore the habeas corpus 
jurisdiction eliminated by the Military Commissions Act because 
of who we are and what this Nation represents. You can do that 
by supporting H.R. 2826, reporting it out of committee and 
urging your colleagues to do the same when it reaches the floor 
of the House of Representatives.
    Thank you very much.
    [The prepared statement of Mr. Keene can be found in the 
Appendix on page 115.]
    The Chairman. Thank you, Mr. Keene.
    Mr. Philbin. Correct?
    Mr. Philbin. Yes, sir.
    The Chairman. Please proceed.

   STATEMENT OF PATRICK F. PHILBIN, FORMER ASSOCIATE DEPUTY 
          ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Philbin. Chairman Skelton, Ranking Member Saxton and 
members of the committee, I appreciate the opportunity to 
address the matters before the committee today.
    The detention and trial of enemy combatants are critical 
functions in the continuing armed conflict against al Qaeda. 
The procedural rights that Congress grants enemy combatants to 
challenge their detention and trial are vitally important also 
both because they can affect the success of the military 
mission at hand and because they play a role in reflecting 
America's commitment to fairness and the rule of law.
    The recently released National Intelligence Estimate (NIE) 
provides a reminder that our conflict with al Qaeda still 
presents a grave continuing threat to our national security. 
Even in the face of this ongoing threat, Congress and the 
executive branch working together under the guidance of the 
Supreme Court have created a fair system for reviewing enemy 
combatant detention and trial by military commission, a system 
that exceeds the United States' obligations under the 
Constitution and under international law.
    First, to address the risk of erroneous detention, the 
executive has established an elaborate system of review, the 
Combatant Status Review Tribunals, or CSRTs. Although none 
detained at Guantanamo are American citizens, these CSRTs were 
crafted to satisfy the procedural requirement that the Supreme 
Court had previously indicated would be sufficient to justify 
detaining even American citizens as enemy combatants when 
detained in the United States.
    The Supreme Court outlined those factors in the Hamdi 
decision. Indeed, the CSRTs provide detainees with more rights 
than are required for status determination under Article V of 
the third Geneva Convention for lawful combatants potentially 
entitled to prisoner of war (POW) status for it grants 
detainees not only the assistance of a personal representative 
but also a right to review of the CSRTs determination in a U.S. 
Court of Appeals for the D.C. Circuit and subsequent review in 
the U.S. Supreme Court through a Petition for Certiorari.
    Just last Friday, moreover, the D.C. Circuit made clear in 
Bismullah versus Gates that its review of the determinations of 
Combatant Status Review Tribunals would be robust. The court 
rejected the government's position that reviews should be based 
solely on the record developed before the CSRT, that is the 
information actually presented to the CSRT. Instead, the court 
will review all information available to the government, 
whether it actually made it into the CSRT process or not.
    That extraordinary level of judicial review for a military 
decision will ensure that even if there have been flaws in a 
particular CSRT proceeding, the court will be able to look 
beyond what was presented to the CSRT.
    Mr. Oleskey has suggested that habeas is necessary because 
an Article III judge will put muscle into the system. I believe 
that the Article III judges of the D.C. Circuit have already 
demonstrated that they will put muscle into the system of 
reviewing the CSRT decisions.
    Second, Congress has established in the Military 
Commissions Act 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 versus Rumsfeld. And Congress has 
also granted detainees the right to challenge military 
commission judgments in the D.C. Circuit as well.
    These review rights are unprecedented in the history of 
warfare. There is no legal requirement to permit detainees 
another largely duplicative round of federal court review 
through habeas corpus. The civilians held at Guantanamo Bay 
have no constitutional rights to assemble under the First 
Amendment. They also have no constitutional right to habeas 
corpus. And even if they did, the current system nonetheless 
would satisfy that right by providing an adequate substitute 
for habeas corpus through federal court review in the D.C. 
Circuit.
    Given the absence of any legal defect in the current 
mechanisms Congress has provided for reviewing the detention 
and trial of enemy combatants, it becomes clear that amendments 
proposed to the MCA and DTA should be evaluated solely as 
policy choices for Congress to make.
    But from a policy standpoint, the case for reestablishing 
habeas review is not compelling. It would add a confusing 
parallel avenue of judicial review that would sacrifice the 
benefits of the order we have received through Congress 
established in the MCA. Moreover, it would do so without 
providing any additional substantive rights for the detainees. 
Nor would the simple step of adding habeas review cure any 
specific practical deficiencies that might exist within the 
current CSRT and military commission procedures and to which 
the D.C. Circuit might well provide answers in any case as the 
recent Bismullah decision indicates.
    There are also two specific problems with H.R. 2826 that I 
would like to focus members' attention on. First, there is a 
substantial risk that the geographical reach created by habeas 
review created by H.R. 2826 would burden military commanders in 
the midst of critical operations overseas, precisely the danger 
the Supreme Court wisely warned against more than 50 years ago 
in Johnson versus Eisentrager.
    Although H.R. 2826 contains an exception barring habeas 
jurisdiction over actions brought by aliens held ``in an active 
zone of combat,'' it is unclear what areas would qualify under 
that undefined term. Defining that term would be left up to 
endless rounds of litigation. Moreover, because the laws of war 
generally require commanders to evacuate prisoners from combat 
zones in any case, there can be little assurance that this 
exception would accomplish its apparent objective of preventing 
the expansion of habeas jurisdiction to areas like Afghanistan.
    Second, as a final point, I would like to make sure that 
close attention is paid to provisions in H.R. 2826 that would 
clear the way for exercise of jurisdiction over actions, ``for 
prospective injunctive relief against transfer.'' The transfer 
of detainees has traditionally been an executive process and 
that is so because it involves delicate and flexible 
negotiations with foreign powers. Through these negotiations, 
our government assures itself that the receiving government is 
willing to accept responsibility for ensuring that the detainee 
will no longer pose a threat to the United States or its allies 
and also that the detainee, once transferred, will not be 
subjected to torture.
    Inserting the courts into this process, which involves 
negotiation with foreign governments, particularly without 
providing any particular standards they are to apply, would be 
extremely disruptive.
    Thank you, Mr. Chairman, for the opportunity to address the 
committee. I would be happy to address any questions the 
committee may have.
    The Chairman. Mr. Philbin, thank you so much.
    [The prepared statement of Mr. Philbin can be found in the 
Appendix on page 124.]
    The Chairman. Mr. Abraham.

STATEMENT OF STEPHEN E. ABRAHAM, LIEUTENANT COLONEL, U.S. ARMY 
                            RESERVE

    Mr. Abraham. Mr. Chairman, Ranking Member Saxton and to the 
honorable members of this committee, I am here to speak as a 
witness to events while assigned to OARDEC.
    The lens through which I describe what occurred was at the 
time of my assignment, based on 22 years as an intelligence 
officer and 10 years as a lawyer. I will resist the urge of a 
lawyer and be brief, if I may.
    In that time of note, I served as lead terrorism analyst 
for the Joint Intelligence Center Pacific following the brutal 
9/11 attacks. I was at OARDEC from September 2004 to March 
2005, the time during which nearly all of the CSRTs were 
performed.
    In that time, I was called upon to serve as an intelligence 
officer, a liaison officer with other agencies, and a CSRT 
tribunal member. What I expected and what occurred were two 
entirely different things.
    The process was described to me as one in which we would 
determine in the first instance if detainees were enemy 
combatants. The reality was that the process was designed to 
fail, to validate prior determinations. The very name OARDEC by 
its letters, its initials and by the words for which they 
stand, the Administrative Review of the Detention of Enemy 
Combatants, did not merely invoke a presumption but a mandate.
    As a liaison officer, I was charged to validate the 
existence of exculpatory evidence. In practice, I was denied 
the ability to review relevant information or confirm the 
existence of exculpatory evidence.
    As an intelligence officer, I expected to see files 
developed on detainees using specific information developed 
through post coordination with other intelligence agencies. In 
reality, the information upon which CSRT decisions were based 
were vague, generalized, dated, and of little probative value.
    And as a CSRT board member, I expected to be presented with 
sufficient material from which to reach conclusions regarding 
the status of detainees. What our board received was not only 
insufficient but evidenced a profound lack of credibility as to 
both the source of the information and the process of review.
    When our panel questioned the evidence, we were told to 
presume it to be true. When we found no evidence to support an 
enemy combatant determination, we were told to leave the 
hearings open. When we unanimously held the detainee not to be 
an enemy combatant, we were told to reconsider. And ultimately, 
when we did not alter our course, did not change our 
determination, did not go back and question the very foundation 
by which we had reached our decision, a new panel was selected 
that reached a different result.
    What I expected to see what a fundamentally fair process in 
which we were charged to seek the truth free from command 
influence. In reality, command influence determined not only 
the enlightening past face of the 500-plus proceedings but in 
large part the outcome, little more than a validation of prior 
determination that the detainees at Guantanamo were enemy 
combatants and, as we have heard so many times, presumed to be 
terrorists who could be detained indefinitely.
    I am not here today as an advocate for any detainee, no 
matter what their status. I am not here as an advocate for 
legislation but rather for truth silenced too long. I am here 
as a person charged by my oaths as a commissioned officer and 
as an officer of the court to uphold and defend the 
Constitution of the United States. What I witnessed while 
assigned to OARDEC respected neither oath.
    The process of which I was a part did not discover the 
truth but ratified conclusions made long before my assignment. 
Those conclusions are entitled no deference by this body or any 
other.
    If I may, I recall a line from ``Casablanca,'' where at the 
end Captain Renault said, ``Round up the usual suspects.'' 
Today, they would be at Guantanamo.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Abraham can be found in the 
Appendix on page 153.]
    The Chairman. Thank you, gentlemen, very, very much.
    Each of the four of you cause me to recall the valiant 
efforts of long deceased Colonel Carl Restine from my hometown 
of Lexington, Missouri, World War I veteran and recalled as a 
judge advocate general officer during the Second World War.
    Colonel Restine was appointed to defend a man by the name 
of Dasch, one of the eight German saboteurs captured in 1942, 
four of which landed at Ponte Vedra, Florida, four of whom 
landed in Long Island, New York. They were all captured and 
tried.
    Colonel Restine, being the great lawyer that he was, and I 
am likening your testimony and your commitment to his record, 
Colonel Carl Restine's client, a fellow by the name of Dasch, 
was not executed as the others were as a result of the 
tribunals conviction that year, 1942.
    So I thank each of you for putting forth your thoughts as 
great advocates and I appreciate each of the four of you doing 
this.
    Mr. Oleskey, in your opening statement you highlighted the 
reasons why the CSRTs and its appeal are not adequate. Would 
you please review again the reasons why you believe the Supreme 
Court will find that the current system does substitute that 
for habeas, please?
    Mr. Oleskey. I think the Supreme Court will find it is not 
a substitute because it doesn't allow in the DTA process any 
real challenge to the evidence that was available to the 
governments in the CSRT. It is going to be impossible in 
reviewing the record in a Court of Appeals to call witnesses, 
offer affidavits, perhaps to offer documents that weren't 
included in the CSRT file.
    It is only a record review of what happened in Guantanamo 
and what the statute says is that the Court of Appeals should 
review that record to see if the military complied with its own 
procedures.
    The burden of the testimony today is that in their creation 
and in the implementation, those procedures were fundamentally 
unfair. I don't believe, and many other lawyers and 
commentators don't believe that in that circumstance the system 
can be found to be an adequate substitute for habeas and it 
will not be so found.
    The Chairman. Thank you.
    Mr. Saxton.
    Mr. Saxton. Let me ask Mr. Abraham, if I may, the case that 
I referred to in my opening statement, the Bismullah case, and 
I said in my view the Bismullah decision bolsters the claim 
that DTA and MCA framework provides an adequate alternative to 
habeas corpus.
    The Bismullah case--and the decision did in fact give the 
Federal Court of Appeals of the D.C. Circuit the right to 
review, as well as to take into consideration, evidence that 
was not considered by the CSRT, did it not? Do you know?
    Mr. Abraham. My understanding, sir, is that it did. 
However, unfortunately the record that was placed before the 
court, as are the records in the cases of every single 
detainee, do not contain all of the information that was 
reasonably available. The process was never calculated to allow 
for or accommodate all of the information that was immediately 
or even reasonably available. And moreover, the process itself 
created a scheme, and I don't mean that in the pejorative 
sense, but a system by which through its streamlining, 
orientation, and focus a quick result was preferred over a 
probing inquiry.
    Mr. Saxton. My understanding is that the court, under this 
decision or pursuant to this decision, has the right to look at 
evidence that was considered by the CSRT as well as any other 
evidence that exists. Is that not correct?
    Mr. Abraham. My understanding is that you are correct as to 
the power or reach of the court. The problem is that the tools 
that are available to gather that information, certainly at the 
disposal of any of the intelligence communities and that would 
have been available within any other procedure, were not 
applied in the case of the CSRTs.
    Mr. Saxton. Just for the record, once the CSRT has rendered 
its determination of status of the detainee, the detainee, 
under the current law that we created last year, is entitled to 
an annual administrative review board process and, not being 
satisfied with that process, has access to the Federal Court of 
Appeals in the D.C. Circuit. And it is the Federal Court of 
Appeals that we are now talking about.
    And of course, if the detainee is not satisfied with the 
result of the Federal Court of Appeals, he has access to the 
United States Supreme Court. Is that correct?
    Mr. Abraham. My understanding, sir, is that that is 
correct.
    Mr. Saxton. Mr. Philbin, what is your view of the Bismullah 
decision and how it affects the ability of the Federal Court of 
Appeals to do its work?
    Mr. Philbin. Well, Mr. Saxton, I think you have described 
it correctly. It shows that the D.C. Circuit will be able to 
look at not only the evidence that was presented to a CSRT, so 
this is not only review on a closed record. The D.C. Circuit 
has said that it will have access and must be presented all 
evidence available to the government.
    And even if in the original CSRT proceeding the recorder, I 
believe it is the recorder that is supposed to gather the 
information available to the government, even if there is some 
question as to whether all of the properly available 
information has been gathered, that too I believe would be 
subject to challenge in the D.C. Circuit, because part of their 
view is did the CSRT comply with its own rules, which include 
having available reasonably available evidence.
    The D.C. Circuit will be able to review how that standard 
is applied and whether it was properly applied in the CSRT in 
determining whether or not the CSRT complied with its own 
rules.
    So I think this is a very robust form of review and in fact 
it is a more searching, factual review than has traditionally 
been allowed in habeas corpus for military tribunal decisions 
of any sort. A lot of the discussion here about habeas is 
simply assuming that habeas review in this circumstance would 
be identical to the way habeas is handled in the criminal 
justice system. And that is not necessarily true.
    The writ of habeas corpus, when it has been applied to 
military decisions in the past, the Supreme Court has made 
clear is very limited in its review and does not include 
searching into the facts and second guessing the facts that 
were before a military tribunal.
    So new law would have to be made to develop the law of 
habeas corpus to give it the kind of robust application that 
many are suggesting here.
    Mr. Saxton. Thank you both very much.
    The Chairman. Mr. Reyes, please.
    Mr. Reyes. Thank you, Mr. Chairman.
    Gentlemen, welcome and thank you for your testimony.
    Mr. Philbin, I first wanted to thank you because we had 
former Deputy Attorney General Comey in my committee, the 
Intelligence Committee, where we were taking his testimony 
about what had transpired on the issue of the Terrorist 
Surveillance Program, and I wanted to thank you for your 
principled stand on that issue in terms of making sure that we 
comply with the Foreign Intelligence Surveillance Act and the 
deficiencies that were in that program, which we are looking 
into now. But thank you for that principled stand.
    Mr. Philbin. Thank you, sir.
    Mr. Reyes. Knowing your work through that experience in my 
committee, I am interested in getting a reaction from you, 
because in reading your statement you state, ``I gained 
significant expertise with respect to both the legal aspects of 
the detention of enemy combatants and military commissions 
during my service with the Department of Justice (DOJ) from 
2001 to 2005. And although it has been almost six years since 
the attack on the World Trade Center, al Qaeda continues to 
pose a grave threat to the Nation.''
    And then you quote from the NIE of this month, which was 
put out last week, and you also state in there that, ``even in 
the face of such a threat, the United States has exceeded its 
obligations toward detainees in the conflict with al Qaeda 
under both our Constitution and under international law. The 
political branches, through recent legislation, have crafted a 
system that provides unprecedented levels of review and access 
to civilian courts for combatants detained by the United States 
in the midst of an ongoing armed conflict.''
    So my question for you is, I would like your reaction to 
the testimony of Mr. Abraham and his experience being part of 
one of those panels and obvious frustration at what he was 
anticipating or expecting as a participant of those panels and 
what his real experience was. What is your reaction to Mr. 
Abraham's testimony?
    Mr. Philbin. Well, obviously, Mr. Reyes, I have no personal 
experience with the conduct of a particular CSRT proceeding, 
and from what Mr. Abraham describes, it sounds concerning to 
me, if that is the way a CSRT is conducted.
    But I don't think that the solution for that, if there is a 
problem in the way particular CSRTs are conducted, because when 
I was in government I dealt at the level of policy, here in 
Washington. We set policies and then expect things to be 
carried out as the policies are set.
    I believe that the CSRT policy, the way the system is set 
up as a policy, is adequate and ought to work properly. If in 
fact in the field it is not working properly, then the 
mechanisms for dealing with that ought to be more directly 
addressed to fixing the CSRT process rather than doing 
something like passing legislation that simply restores habeas 
jurisdiction.
    Habeas jurisdiction is just another round of litigation, 
another avenue of federal court review. It doesn't specifically 
address the kinds of problems that Mr. Abraham was describing.
    I think that the D.C. Circuit has made clear in the review 
Congress has already provided, the D.C. Circuit is going to be 
able to get into those kinds of problems. If there was other 
evidence out there that wasn't presented at the CSRT, the D.C. 
Circuit has already said it is going to be able to look at that 
and find out about that.
    If a CSRT is applying a standard of what is reasonably 
available that makes things that are available seem 
unavailable, then the D.C. Circuit is going to get into that on 
review. The argument will be made to the court that the CSRT 
did not comply with its own standards, that it applied an 
unreasonable standard of availability, and the court will rule 
on that.
    So I think that the judicial review that is already 
provided provides a mechanism for getting at the kinds of 
problems that Mr. Abraham was describing.
    Mr. Reyes. So if what his experience was, Mr. Abraham's 
experience was, if that is the rule rather than the exception, 
is it your feeling or your observation that we don't need to do 
anything, that the system will take care of that?
    Mr. Philbin. It is difficult to say that is the rule rather 
than the exception. I think that----
    Mr. Reyes. Well, I am asking if that were the rule rather 
than the exception, what would you say we would need to do?
    Mr. Philbin. I think that Congress ought to allow the D.C. 
Circuit review process to operate, at least for the time being, 
to see what sort of result it does produce.
    The Bismullah decision already indicates that some of the 
types of problems Mr. Abraham has indicated will be looked 
into, will be questioned by the D.C. Circuit. And if the first 
round of D.C. Circuit review demonstrates that problems are 
uncovered and CSRT decisions are overturned because those 
problems are discovered, I think that demonstrates the system 
is working.
    But at least the first round of review ought to be allowed 
to continue to determine whether or not it is going to have 
that effect.
    Mr. Reyes. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Mr. Bartlett.
    Mr. Bartlett. Thank you very much.
    Thank you, gentlemen, for your testimony.
    We live in a great, free country which I am really honored 
to serve. We are one person out of 22 and we have one-quarter 
of all the good things in the world. And I ask myself, what is 
so special about us that we should be so blessed, so 
privileged, that this one person out of 22 has one-quarter of 
all the good things in the world?
    There are several reasons, perhaps, but I think prime among 
them is our enormous respect for the rights of the individual. 
There is no other constitution, there is no other equivalent to 
our Bill of Rights that provides such rights to the individual. 
I think this established the climate and milieu in which 
entrepreneurship and creativity could flourish.
    I think we put at risk who we are if we put at risk these 
great civil liberties.
    Civil liberties are always a casualty of war. Abraham 
Lincoln suspended habeas corpus, my second favorite President, 
and Norm Mineta, who served as secretary of transportation, he 
told me, he said, ``Roscoe, I remember as a little boy holding 
my parents' hands when they ushered us into that concentration 
camp in Idaho.'' We are embarrassed now that we did that.
    We are engaged in a long war and I want to make sure we 
don't put at risk our civil liberties as a result of our zeal 
to catch terrorists. I had some initial concerns about 
Guantanamo Bay. We put those captured men there, saying that 
since they were not legitimate soldiers they were not protected 
by the Geneva Conventions. And we put them in Guantanamo Bay, 
which is not on our soil, and we said that they are therefore 
not protected by our Constitution.
    I know that there is a Geneva 4 that protects everybody 
that has fallen through the cracks of the other Geneva 
Conventions. And I know also that the Constitution doesn't 
protect just our citizens. It protects people, and I am very 
pleased that the Supreme Court said that those who are under 
our control are people protected by our Constitution.
    My concerns were heightened by the Military Tribunals Act. 
It said that we could use coerced evidence. That is torture in 
common language. And that we could use secret evidence that the 
accused couldn't see in convicting them. I dubbed it the 
``let's torture them and then try them in a kangaroo court'' 
bill. I voted present when that bill was passed out of 
committee because of my enormous respect for the chairman of 
this committee. But when it got to the floor, I voted against 
it.
    Mr. Keene, thank you very much for your testimony. I was 
beginning to lose confidence that many of my conservative 
colleagues didn't seem to understand the importance of these 
enormously valuable civil liberties that we had. I thought I 
might be in trouble with my constituents with this vote, but so 
many of them called in saying thank the congressman for voting 
against the torture bill.
    I want to ask you, why should we be looking for a 
substitute for habeas? Why should we invite criticism?
    Mr. Philbin. Is that question directed to me, sir?
    Mr. Bartlett. No, sir. I am directing the question to all 
of you. I would like all of you to answer. Why should we be 
looking for a substitute for habeas corpus? Why should we 
invite the criticism of the world?
    Mr. Oleskey. My response, Congressman, is that we 
shouldn't. You have addressed some of the issues why the 
Military Commissions Act doesn't substitute for habeas.
    Just to be clear in view of the prior testimony, the 
Appeals Court will be reviewing what the record is from the 
CSRT. And whether it complied with its own procedures. Those 
procedures, as you just pointed out, allow evidence based on 
coercion or torture. Those provisions allow the CSRT to 
determine what was reasonably available.
    The Circuit Court could find that my client's boss's 
testimony in Sarajevo wasn't reasonably available, but in 
habeas I could supplement that with an affidavit. I probably 
can't do that in the Court of Appeals. And the Court of 
Appeals, last week in the decision Mr. Philbin is talking 
about, the Bismullah decision, rejected attorney-client 
privilege by allowing mail that I sent my client in 
Guantanamo--I can't get there very often. I have to fly there 
when the military allows me to, so mail is a really important 
way for me to communicate with my client.
    The Appeals Court felt under the Military Commissions Act 
and the DTA it had to do what the government wanted, which was 
to say that the government can screen my correspondence with my 
client about their case and if I object to that, that they can 
go ahead and tell somebody in Guantanamo, or in the Defense 
Department, what it is I am objecting to about the 
correspondence that I am having with my clients.
    Habeas and the existing protective order that exists in the 
District Court under the original cases won't allow that kind 
of interference in a very basic right that is critical to the 
effective representation of anybody, particularly where 
potential indefinite life sentence may be the result.
    Mr. Bartlett. Mr. Keene.
    Mr. Keene. If I may say something, I have listened to all 
of this and I have asked myself that same question. What we 
have done is or what is being suggested here is that Paul 
Wolfowitz in seven days could do a better job than the drafters 
of the Magna Carta and the United States Constitution, the Bill 
of Rights and the jurisprudence of two centuries.
    And yet we find the court decision, which was argued as a 
reason for not doing anything about it, the court is 
torturously trying to fix what Paul Wolfowitz did, because 
there was no conceptual part of that plan that would have the 
D.C. Circuit look behind what was done at the earlier level.
    So the court is trying to fix something that was thrown 
together and doesn't work. And I listen to this and I looked 
out at you. How many times have you been told not just on this 
issue but on dozens and dozens of other issues that we do this 
at a policy level. And then after the policy is set by the 
people who look at things at that level, it doesn't work where 
the rubber meets the road.
    And there is only one person on this panel that was there 
where the rubber meets the road, and it is not enough to just 
dismiss that. Because we have dismissed it in government action 
and government action, not just in the national security field 
but throughout. And you know, in dealing with your 
constituents, that those folks at the policy level often 
develop things that just don't work on the ground.
    It has been a long time since I have been to law school, 
and I don't practice law. But when you look at laws, I think 
they say they have got problems on their face or they have got 
problems as they are applied. What the witnesses here have said 
today is that this law has problems on its face and it has 
problems as it is applied.
    And an alternative was in place before these laws and 
procedures came into being. It was developed centuries ago and 
it worked and what is wrong with it?
    Mr. Philbin. I would like to make a comment, Member 
Bartlett.
    You ask why should we be looking for a substitute for 
habeas. Let me start by saying the background rule until the 
Rasul decision and the peculiar circumstances that the Supreme 
Court saw in Guantanamo Bay, the background rule from Johnson 
versus Eisentrager, is that habeas is not available to those 
detained as part of an armed conflict overseas. So the 
background rule is no habeas, no judicial review at all, 
whatsoever.
    That was changed by the Rasul decision so that there could 
be habeas for those at Guantanamo Bay, but I think that it is a 
somewhat pervasive error in my view, an error to claim that 
habeas review for enemy combatants detained during an armed 
conflict is this very well-defined, very well-known specific 
set of review rights. It is not.
    There has never been habeas review for enemy combatants 
detained in armed conflict before because of the Johnson v. 
Eisentrager rule. So the law has to be developed about what 
exactly the court will do in habeas review.
    I think that it was a wise decision for Congress to step in 
and say we are going to have judicial review, we are going to 
have Article III court review but we are going to set up 
specific procedures for it so that we are not just developing 
things through litigation, through endless litigation about 
what the habeas review will be. We are going to set up specific 
standards.
    And I think that the standards that were set up for review 
in the DTA are sufficient to address the concerns of allowing 
serious, robust judicial review.
    The D.C. Circuit has made clear that that review is going 
to go outside the record of the CSRT. It is not limited simply 
to the evidence that was presented to the CSRT. It is going to 
include all available evidence. If there are issues like the 
particular petitioner believes that evidence that was available 
was improperly ruled unavailable, that can be challenged in the 
D.C. Circuit, and the D.C. Circuit will rule on that. And there 
is no reason to think that the Article III judges in the D.C. 
Circuit are going to be any worse or any more lenient on ruling 
on basic questions like that than some district court judge in 
a habeas action would be.
    And so I think the question also is now that Congress has 
established this specific procedure, a new specific procedure 
to deal with a new and unprecedented situation, why should we 
be adding habeas corpus, an undefined and somewhat amorphous 
habeas corpus review, as an alternative on top of that so that 
there are two avenues for judicial review that will simply add 
burdensome litigation?
    I think that the system Congress has set up in the DTA 
provides for adequate Article III court review and returning to 
allowing habeas as a duplicative form of access to the courts 
is unnecessary and unwise.
    Mr. Bartlett. If I might say, Mr. Chairman, I think that--
--
    The Chairman. I would suggest that Mr. Abraham answer the 
question. We have run out of time.
    Mr. Bartlett. Okay.
    The Chairman. And because of the excellent nature of the 
question, I think everyone should be given the right to fully 
answer.
    Mr. Abraham, why don't you answer it and then your time 
will expire.
    Mr. Bartlett. Thank you.
    Mr. Abraham. Thank you. I will be very brief, sir.
    I can only speak about the CSRT process, but through a 
very, I think, distinctive perspective.
    Sixty years ago on the soil of two continents people were 
rounded up. Nobody spoke for them and nobody listened. In the 
past six years, people have tried to speak from Guantanamo and 
elsewhere and no one listened.
    I can't speak to which process is better, but I can tell 
you today the CSRT process was neither a forum for speaking nor 
for listening.
    The Chairman. The gentleman's time has expired. Thank you 
very much.
    Mr. Smith, please.
    Mr. Smith. Thank you, Mr. Chairman.
    A couple of comments and one question based on, actually, 
that last question there.
    Two things. First of all, the point of habeas corpus, as I 
understand it, and you know a great deal more about that than 
me, is basically that you should have a review from some group 
other than the people who locked you up in the first place.
    My colleague, Dr. Snyder, was telling me that it is 
interesting that the people who are most excited about habeas 
corpus are the ones who remember what it was like to be a 
country lawyer back in the day, if you will, like our chairman, 
which is that if you are picked up by the local sheriff and 
your review is his brother-in-law and his cousin down the 
street at the county courthouse, that is fundamentally unfair. 
So we put this in place so that you have some place to go where 
it is not the same people who locked you up.
    And that is an obvious problem with the CSRT process, is it 
is in essence the same organization if not the same people, and 
I think that is what Mr. Abraham encountered. So that is to 
credibility. And I understand it is a little bit different in 
each case.
    And that is the second point which Mr. Bartlett made quite 
well, and that is we have a major public relations problem in 
the world right now in what we have chosen to call the global 
war on terror. We are losing the larger battle for ideas, which 
as I like to put it means that somehow we have found a way to 
lose a public relations war to Osama bin Laden.
    This is a piece of it, okay? There are other pieces and I 
think the focus on this has a lot to do with some of those 
other pieces. But to come out and say, look, we have habeas 
corpus that is established, as Mr. Keene described, let's stick 
with that, would help us enormously in that larger battle, and 
ultimately that does help our troops, that does help the fight. 
I think our values are very important, and this in Guantanamo 
is one thing that is undermining them.
    And, you know, the final point on this, Mr. Saxton made the 
point that this overwhelming cost, I gather, of doing habeas, 
which I find just not terribly supportable when you are 
spending $12 billion a month in Iraq. The defense budget has 
gone up enormously since 9/11, which is fine. You know, we are 
spending all this money to fight this battle. But, you know, a 
few cases, a few judicial reviews are going to break the bank?
    I would submit that having our credibility intact is every 
little bit as important in fighting this battle as making sure 
that we have our troops where we need them.
    So with all of that said, the judicial review point that 
was made, I would like to ask the first two witnesses to 
comment on that. Why do you not think that this judicial review 
process, as was described, is adequate?
    Now, my bias is that it is not, that habeas is, basically, 
as we have said, well-defined law. It gives you that clean 
look, whereas this is going to be necessarily restricted to a 
few things. I mean, the first thing that occurred to me was the 
whole, you know, innocence is not a bar to conviction thing. 
That basically judicially you just look to see if the process 
worked. Not if the process worked, sorry, but if the rules were 
followed. And if the rules were followed, then however bad the 
result may be, that is fine.
    But I am curious on your thoughts on the judicial review 
process and why it is not an adequate substitute in this case 
for habeas.
    Mr. Oleskey. Well, first, because, as several speakers have 
pointed out among the Congress and here, coerced testimony, 
testimony procured by torture, can and apparently was admitted 
in the CSRTs and may stand on review by the Appeals Court.
    Second, because as you just pointed out, Congressman, by 
specific command, the Detainee Treatment Act of 2005, the 
Appeals Court review is limited to reviewing the record. And 
Mr. Philbin says, well, the Appeals Court just said last week 
it can go to what would have been reasonably available, but 
that leaves out all kinds of evidence that an advocate would 
want a fact finder to have in the first instance and therefore 
on review, if that fact finder is going to say you can be 
locked up for the rest of your life based on this kind of 
limited review.
    So it is a limited review. It ultimately will turn on what 
an Appeals Court says was or should have been reasonably 
available, so that is a limit placed by Congress. It is a limit 
placed by Congress to determine whether the procedures were 
followed, and those procedures were written by Paul Wolfowitz 
in seven days.
    And as to the point about taking time and money, you know, 
there are 22,000 habeas reviews a year. We are talking about 
375----
    Mr. Smith. At most.
    Mr. Oleskey. At most. And these are not new skills for 
these trial judges to learn. It is what they do. It is not what 
Appeals Court judges do. These are very smart, talented judges 
in the circuit here, they are very respected judges, but they 
are now being asked to do something by Congress that they 
shouldn't be asked to do in making these reviews.
    Mr. Smith. Mr. Keene, if you could just quickly, if you 
have any thoughts on the judicial review process versus habeas. 
I am asking you to respond to your thoughts on the judicial 
review process versus habeas.
    Mr. Keene. As I indicated earlier, as it was designed, the 
court was not to look beyond what was presented from the 
initial hearing. And this decision, the recent decision where 
the court says, well, we are going to look at what might have 
been reasonably available at the hearing level, is an attempt 
to fix that.
    But going to the question of why do we need to do it this 
way rather than through habeas, I hear the objection that, 
well, the habeas route requires a lot of effort and judicial, 
all this stuff. And yet what we are trying to do is replace it 
with procedures, as the previous--as Mr. Oleskey pointed out--
procedures where we lay the same responsibilities or similar 
responsibilities on people who haven't had to do that before 
when there is a whole process and a whole body of law and a 
whole way to do it.
    And I just don't understand it. I have to tell you, I think 
your point--people understand because of the fact that the 
right to habeas corpus, the right to have somebody look at 
whether you ought to be where you are or whether there is a 
case that you should be there, is something that is understood 
worldwide, and people that don't have that right in nations 
that don't have it, wish they do. So why replace something that 
is one of the, from the beginning of our Nation, has been one 
of the things that we have been most proud of and one of the 
rights of our citizens that we are most proud of?
    Even if you come up with something and name it something 
else which reasonably accomplishes the same thing, which we 
haven't, why would you do that?
    Mr. Smith. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank the gentleman.
    I lay before the committee a letter dated July 25 this year 
by Karen Mathis of the American Bar Association and ask that it 
be placed in the record without objection.
    [The information referred to can be found in the Appendix 
on page 233.]
    The Chairman. And I also notice that several members are 
not present at this moment that came in before the gavel, so we 
will go to the list of after the gavel.
    Mr. Jones.
    Mr. Jones. Mr. Chairman, thank you very much.
    I am not a lawyer. I think I understand the Constitution 
and the importance that each one of you have in your own way 
made reference.
    I want to read a quote, then I think I do have a question.
    General Matthew Ridgway, a great World War II general, 
wrote a book ``Soldier, the Memoirs of Matthew B. Ridgway,'' in 
1956. In it, he said, ``To me, nothing could more tragically 
demonstrate our complete and utter moral bankruptcy than for us 
deliberately to initiate a preventive war. Once we take that 
absolutely fatal step, our civilization would be doomed. We 
would have to rely on conquests for survival from then on until 
our society crumbled as the empires of Alexander and of Rome 
crumbled from their own inner decay. In all the history of the 
world, no civilization based on conquest has long endured. 
America would be no exception.''
    When I think about Paul Wolfowitz, Richard Perle, David 
Wurmser, Douglas Feith and all these neo-cons that created the 
justification to go into Iraq, and I listen to learned men like 
the four of you on this panel today, I am offended. And I voted 
for this legislation, quite frankly. I am offended that we have 
to be here today to try to defend and protect habeas corpus, 
which as Mr. Keene said is the bedrock, one of the bedrocks of 
this Nation.
    I just want to know when I hear each of you speak, and Mr. 
Philbin let me say that I have great respect for you and I 
don't disagree with you, but any time--and it should be debated 
and thoroughly analyzed by courts, what the Congress does, and 
there is no question about that. I fully agree with you.
    But as was said by Adam Smith earlier, and said by many of 
you who spoke today, the world looks at America. We have been 
and I hope we can still be the great nation that people across 
this world have envied. But one of those reasons is because we 
have two sacred documents in this country that we revere. The 
Bible and the Constitution. And I do not understand how people 
who believe that they have been given a privilege to serve in 
the Congress, and we can all disagree on what the policies 
should be as it relates to terrorists and terrorism.
    But my question is a simple question. I am not the 
intellect that my friend from Maryland, Mr. Bartlett, is. But 
the simple question is, how would you say to the average 
American, like myself, that this is critical to maintaining a 
strong America?
    I will start with you, David Keene. I know you will 
probably be repetitive, each one of you, but I heard the 
colonel say that, you know, you were told to assume that it is 
true. I know that is military, but it is still wrong. We 
shouldn't assume truth. Truth should be true, just like the 
words of Jesus Christ.
    David, would you try to give me an answer to what I am 
fumbling with?
    Mr. Keene. Well, I think the purpose here, to discuss the 
question of whether or not we should grant habeas corpus rights 
to those goes to the nature of what our country is. And as I 
said in my prepared remarks, I am not so concerned--it should 
be a concern of this committee and it should be a concern of 
our policymakers. But I am not so concerned about what others 
think of us as I am about what we think of ourselves and who we 
are.
    And I urge the support of the chairman's bill to restore 
these rights precisely because I think it reflects who we are 
and who we should be.
    The Chairman. I thank you gentleman.
    Ms. Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman.
    As you know, I am very interested in this subject having 
brought the Commissions Act Bill two years before this 
committee ever took it up. I also, as you know, have a bill 
out, H.R. 2543, the Military Commissions Revision Act of 2007, 
which would address the concerns, I believe by the 
Administration about giving unprecedented habeas access to war 
prisoners which, as Mr. Philbin said, has never been done 
before in the history of this Nation, and also the need for the 
executive to have his Article 2 power to conduct military and 
intelligence operations free from judicial interference, but 
also recognizes the gravity of the liberty interest involved, 
the ambiguous and unconventional nature of this conflict and 
the inadequacy of the CSRTs to ensure that mistakes and 
executive abuses are curbed.
    So I would encourage members to take a look at that piece 
of legislation.
    International law and the Supreme Court recognize the power 
of military commanders in warring nations to capture and to 
detain enemy combatants for the duration of a conflict. 
Historically, the U.S. has not extended the right of habeas 
corpus to alien enemy combatants held as POWs. In fact, in 
1925, Johnson v. Eisentrager, these prisoners did not have a 
constitutional right to habeas corpus review.
    And, of course, in 2004 the court said that enemy 
combatants held at Guantanamo Bay, Cuba, did have statutory 
rights to habeas review, but that decision was, of course, 
pretty much mollified by the MCA last year.
    So my question to you is, if you can write some of these 
down because they are detailed. I want to ask the panel, do you 
believe that enemy POWs or detainees have a constitutional 
right to habeas? And if so, what is the basis of your view? 
What limitations would such a right have? And if so, why was 
the court wrong in Eisentrager? And would you favor the 
statutory right of habeas corpus to apply everywhere, to all 
enemy POWs?
    For example, would you have granted it to Iraqi prisoners 
captured in Kuwait during the first Gulf War, go to into the 
federal courts in D.C. and to challenge their capture on the 
battlefield? Would you have permitted German POWs captured in 
North Africa or Sicily in 1943 the right to challenge their 
internment through habeas?
    And if we could start down at the end.
    Mr. Oleskey. I will be happy to start, Congresswoman.
    Johnson and Eisentrager, the case at the end of World War 
II, involved prisoners who had been through military 
commissions with lawyers and trials. Evidence was taken. It was 
a regular procedure that you have some confidence in. And the 
Supreme Court looked at that and said we will examine whether 
habeas should apply to German prisoners who did acts in China, 
who are held in an allied war prison in Germany. We don't think 
that habeas should extend that far. It never has. So it didn't 
go any further.
    And then in the Hamdi and Rasul cases, as you say, in 2004, 
they looked at the people in Guantanamo and said, you know, 
this is, under that lease that the United States had since 2001 
that gives us a unilateral right to be there, this essentially 
is part of the United States. These people didn't get the 
screening the POWs get under Geneva or Army Regulation 19080 on 
the battlefield, unlike what happened in the first Gulf War or 
in most other wars that I am aware of.
    Therefore, there needs to be some process put in place now.
    Ms. Sanchez. But now we have the MCA. Do you believe that 
they have a constitutional right to habeas now that we have the 
MCA?
    Mr. Oleskey. The Supreme Court has said in some cases that 
fundamental rights under the Constitution can extend outside of 
the continental United States. It addressed in the Rasul case 
in a footnote that has been much discussed, it said if what 
these men are alleging is found to be correct, it would make 
our conduct in violation of the Constitution, statutes or laws 
of the United States. That is as far as the Supreme Court has 
gone.
    My own view is that the right to be free from indefinite 
imprisonment without a hearing is so fundamental. It is in the 
Constitution, it is right there, the framers put it in Article 
I, Section IX.
    Ms. Sanchez. And it applies to United States citizens and 
those people within our boundaries. But would you extend it to 
Sicily? Would you extend it to a war in Iraq? And after you 
answer that, I really need to move on. I want to hear the other 
opinions.
    Mr. Oleskey. I am only advocating today for this bill, 
which does not extend it to those places, does not extend it to 
battlefields, talks about restoring habeas for Guantanamo, 
where my clients are.
    Ms. Sanchez. Anybody else?
    Mr. Keene. I am not going to speak to the constitutional 
history, but I will suggest that there are some differences.
    I wouldn't extend it as a matter of policy to battlefield 
POWs and the like. Many of the people that are being held at 
Guantanamo, like your clients, were not picked up on the 
battlefield, scooped up by American troops. Many of them were 
picked up on vague suspicion. Some were in fact turned over to 
us by tribes that were collecting bounties for doing it.
    And then what makes matters worse is then we have a 
situation in which we are not holding them until an emergency 
in historical terms is over, but we can hold them forever in 
essence because the war on terror could go on forever. And that 
I think qualitatively changes the situation and is why the 
chairman's bill addressing those kinds of prisoners in that 
location is worthy of support.
    Ms. Sanchez. I would just say read my bill, because it 
addresses that also.
    And, Mr. Chairman, if you would indulge me Mr. Philbin's 
comment, I would like to hear it.
    The Chairman. Mr. Philbin.
    Mr. Philbin. Thank you, Mr. Chairman.
    I will just make two brief points. I do not believe that 
aliens outside the United States have a constitutional right to 
habeas. I think the Supreme Court got that right in 
Eisentrager. And the Eisentrager decision was not based in any 
way on the fact that there had been military commission 
proceedings. It was based on a fundamental assessment of 
whether constitutional rights extended extraterritorially to 
aliens.
    And in the 1990's, the Supreme Court emphasized, and I am 
quoting, ``Our rejection of extraterritorial application of the 
Fifth Amendment was emphatic in Eisentrager.'' It had to do 
with extraterritorial application.
    And in terms of extending habeas all around the world, 
certainly it would not extend habeas to detainees or POWs 
outside the United States, but I think that the committee 
should be aware that there is a very real risk in H.R. 2826 
that by excluding simply active combat zones, that bill could 
create a negative implication that anything that is not an 
active combat zone, and who knows exactly what that is, 
anywhere else in the world, habeas does apply. It will have 
that negative implication of extending habeas, and I think that 
is a serious problem with the bill.
    Ms. Sanchez. Thank you, gentlemen.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. McHugh, now.
    Mr. McHugh. Thank you, Mr. Chairman.
    Gentlemen, welcome. I appreciate your comments.
    I want to play a little bit off of what the gentlelady from 
California was pursuing, but I would like to start with Mr. 
Philbin. You said something pretty emphatically. You stated 
that the process and the review and such under our current 
system, the CSRTs as well as the MCA, give rights that are, 
``unprecedented in the history of warfare.''
    I assume I can deduct and deduce from that that you feel 
that our obligations as a lawful and as a respectful country 
are being fully met as defined under the third Geneva 
Convention for enemy combatants. Is that true?
    Mr. Philbin. That is true. In particular because the third 
Geneva Convention doesn't apply to al Qaeda. Al Qaeda is not a 
signatory, so al Qaeda combatants have no rights under it. And 
for Taliban detainees, they don't have status as POWs.
    Mr. McHugh. Well, that was actually going to be my next 
question. I appreciate your prescience.
    Therefore, the fact that you just defined these are not 
signatories, they are not technically covered, yet we extend at 
least equivalent rights, would kind of suggest we are more than 
meeting what most nations on this earth would consider our 
legal obligations, true?
    Mr. Philbin. Yes, sir, that is true.
    In fact, we are going beyond. If we were in a conflict with 
another signatory and detained people outside the United States 
and gave them POW status, they would have no right to access 
U.S. courts.
    Mr. McHugh. Two other things. I assume one of the reasons 
we encourage people to participate under the Geneva Conventions 
is that there will be some semblance of rule and some semblance 
of propriety in warfare. My understanding is that if this bill 
were to be enacted and if those who are detained currently at 
Guantanamo extended the rights, the rights would actually be 
duplicative.
    In other words, there is nothing in the bill before us that 
in any way takes away the current CSRT and MCA process but in 
fact layers another process of appeals and habeas corpus 
review. Is that true?
    Mr. Philbin. That is my understanding, yes.
    Mr. McHugh. Would we not, in your language of creating sort 
of a perverse incentive, would we not therefore almost be 
encouraging people not to abide by Geneva, to in fact 
participate in this kind of unlawful combat and hopefully get 
sent to Guantanamo? They would actually have better protections 
than those afforded under the rules of standard warfare?
    Mr. Philbin. Well, it would be backwards, yes, sir. Because 
we would be providing more process to those who are unlawful 
combatants than would be provided to those with POW status 
under Geneva.
    Mr. McHugh. Thank you very much.
    Mr. Keene, I noted in your very impassioned plea about 
restoring habeas rights, and that was the word you repeated 
used, restoring habeas rights. You also used the comment, 
``Those are the things that we have always provided to our 
citizens,'' and those were your words, ``our citizens.''
    You are not arguing that we somehow on these detainees 
stripped them for the first time of rights of due process and 
such and that they are citizens of the United States?
    Mr. Keene. No, Congressman. I was referring to the fact 
that the court had statutorily suggested that there were habeas 
rights extended there until it was removed by the Military 
Commissions Act. And my reference to our citizens was that 
habeas is one of the things that we have always valued in this 
country for our citizens. I did not mean to confuse those two.
    Mr. McHugh. So I take it from that that you don't take 
exception or disagree with Ms. Sanchez's comments that the 
provision of habeas rights would be revolutionary in our 
history, we have never done that before?
    Mr. Keene. I would not support extending it, as the 
examples she was giving, to battlefields, to everybody outside 
the United States.
    I think that the situation that we face with these people 
in that location, because of all of the contingencies that we 
know about, the fact that they can be held there forever, the 
fact that they were not captured, many of them, on the 
battlefield, and extending habeas rights there, where the 
question is not whether you can hold without these rights enemy 
combatants, the question is whether they are. And that is the 
threshold question that is not being answered under the current 
process.
    Mr. McHugh. I thank the gentleman.
    Mr. Chairman, with your forbearance, and I would use as 
precedent I think every other member here has gone well over, I 
appreciate the comment.
    I just, for the record, I am very concerned that there have 
been statements from the witness panel today that somehow the 
United States, and by suggestion this Congress, supports 
torture and that torture is part of that. The fact of the 
matter is, the MCA expressively and very clearly excludes the 
admission of any statement or evidence by torture, a statement 
attained by the use of torture shall not be admissible under 
military commission under this chapter.
    So I understand the passion that is involved here, but I 
think when you start accusing the United States of formally 
using torture in a process and, by rote and by suggestion this 
Congress of formally endorsing torture, it is just not correct.
    Mr. Keene. If you are referring to my testimony, I never 
used the word torture and never talked about it----
    Mr. McHugh. I am not asking. That is not a question. With 
all due respect, Mr. Keene, that was not----
    Mr. Keene [continuing]. And it has nothing to do with what 
I had to say.
    Mr. McHugh [continuing]. Your question. It was my 
statement.
    The Chairman. Thank the gentleman.
    Mr. Andrews from New Jersey.
    Mr. Andrews. Thank you, Mr. Chairman.
    I thank the witnesses.
    I think the meaning of the suspension clause of the 
Constitution is that absent some emergency limited 
circumstances, this country will not be a party to a situation 
where any person can be held indefinitely without being 
confronted with the charges against him or her so there can be 
some fair and just resolution of those claims.
    And so, Mr. Philbin, I wanted to explore with you your 
conclusion that the procedures that have been set up under the 
CSRTs are a sufficient guarantee that such procedures are in 
place for the detainees that we are discussing here today.
    Is there any provision in the law or regulation that sets 
up the CSRTs for competent and effective counsel for the 
detainees?
    Mr. Philbin. There is not a provision for legal counsel, 
no. There is a provision for----
    Mr. Andrews. So a personal representative, which I think is 
the phrase that you use, need not be a lawyer, correct?
    Mr. Philbin. Correct.
    Mr. Andrews. Need not be a competent lawyer, if the person 
is a lawyer, correct?
    Mr. Philbin. Well, it is not defined in terms of legal 
ability.
    Mr. Andrews. So the person could be a person who is trained 
to process paperwork, for example, correct? That could be the 
personal representative, who doesn't know the law.
    Mr. Philbin. It is a military officer who is not 
necessarily trained in the law.
    Mr. Andrews. Okay. Under the provisions that are set up for 
the CSRT, is a detainee permitted to see evidence that would be 
used against him subject to some in camera limitation or 
emergency limitation? Can they see all the evidence that is 
going to be used against them?
    Mr. Philbin. I believe that they cannot see the classified 
evidence.
    Mr. Andrews. Well, isn't the phrase they can see written 
summaries of the evidence that is going to be used against 
them?
    Mr. Philbin. I don't recall the exact phrasing of the rule.
    Mr. Andrews. It is the phrase that I think is used in your 
testimony.
    So if a detainee were held because of a hearsay report of 
someone in Bosnia, for example, the detainee would not know who 
the person who made the hearsay statement was, necessarily, 
would he?
    Mr. Philbin. I am not aware exactly how the rules are 
applied, sir. I believe that that is possible. But if I could 
go to----
    Mr. Andrews. I think Mr. Abraham has given us a very 
detailed description of how the rules are applied. My 
understanding is----
    Mr. Philbin. Well, in some circumstances. But if I could go 
to the basic----
    Mr. Andrews. Well, no, I would prefer that you answer my 
questions.
    Under the procedures that were set up on the CSRT, is the 
right of the detainee to confront witnesses in the proceeding 
guaranteed?
    Mr. Philbin. I believe that he has a right to call 
witnesses who are reasonably available and may not be able to 
confront all witnesses because of security or classification or 
other restrictions.
    Mr. Andrews. Well, and under habeas proceedings, isn't it 
true that if there is a witness that might disclose something 
classified or sensitive, there would be an in camera proceeding 
in front of a judge, where the competent lawyer representing 
the person who is the subject of the habeas petition would have 
a chance to confront the witness in that limited setting? Isn't 
that right?
    Mr. Philbin. That is not necessarily true. I think that if 
you are talking about a habeas proceeding in a criminal case in 
the United States, where all of the constitutional protections 
that are attached to criminal prosecutions apply, that might be 
the case. But for a habeas proceeding coming out of the 
detention of an enemy combatant, it is not clear what rules 
will be applied.
    And this goes back to something that is fundamental to what 
we are discussing here, which is whether or not there are 
constitutional rights that bring the suspension clause into 
play. And I don't think there are constitutional rights for 
enemy combatants detained at Guantanamo.
    Mr. Andrews. Well, of course, sir, that is--higher 
authorities than you or me are going to litigate and decide 
that question of what the suspension clause means.
    I wanted to ask you about the review. You put great 
credence in the review that takes place in the D.C. Circuit, 
but that review is based on the record that is created below by 
the CSRT, isn't it?
    Mr. Philbin. I don't think that is accurate, sir, because 
of the decision just last Friday in Bismullah. The government 
had argued----
    Mr. Andrews. I understand that decision. I understand that 
it says that all the evidence that was available to the 
tribunal has to be made available to the Court of Appeals. But 
of course, that is evidence that has not been vetted through 
the process of confrontation of witnesses. That is evidence 
that has not been vetted through the process of discovery. 
There is a difference between evidence and documentation. That 
is the essence of our adversarial system.
    So I respectfully disagree with your conclusion and I would 
yield back.
    Mr. Philbin. Well, sir, you are correct that it is not the 
way things are handled in our adversarial system. Our 
adversarial system was developed for criminal law. These are 
not criminal prosecutions. This is fighting a war.
    The Chairman. Thank the gentleman.
    Mrs. Drake.
    Mrs. Drake. Thank you, Mr. Chairman.
    Gentlemen, thank you for being here.
    I have to start by saying I think Congresswoman Sanchez 
really summed this debate up very well and what divides this 
discussion in my mind is whether or not you think an enemy 
combatant who is captured on a foreign battlefield, a person 
who has sworn to kill each and every one of us, is covered by 
the U.S. Constitution. And I personally do not believe that 
they are.
    Now, reasonable people can disagree, and we have heard that 
disagreement here today, but I truly do agree with Congressman 
Saxton and his assessment that we have not given these laws an 
opportunity to work, and this discussion may be a little bit 
premature.
    But what I wanted to ask about, and to me it is really 
apparent and I think to everyone, that our terrorist enemies 
are really adept at public relations, much better than we are. 
They have proven quite capable of using the World Wide Web to 
promote their message, their hate, and to recruit others to 
their cause.
    So the question is if additional rights are extended to 
unlawful enemy combatants, would you agree that this would 
greatly assist their efforts to recruit other people to their 
cause?
    And the second question I have is if we do extend habeas 
rights to unlawful enemy combatants, what would be the 
expectation for our military at that point? Are they now going 
to be charged with collecting evidence? Are they going to have 
a dual role as a warfighter and as a police officer to compile 
this information? And so what would their role be?
    So those two questions, what impact it will have on what 
appears to be the success of our enemy, and we all know from 
previous NIE reports that the one thing that will destroy them 
is if they believe and the world believes they are losing. And 
I think this argument would give them the opportunity to think 
that that is one more thing they are winning on.
    Mr. Oleskey. Congresswoman, let me start off on that.
    The issue of the rights extension troubles me because I 
have been to Guantanamo 9 times personally, my firm has been 11 
times. I have seen what happened to my clients there in the 
early years. I have seen my client has been in solitary 
confinement for 14 months, 24/7. I have seen my client has he 
is trying to commit suicide right now because he thinks that is 
the only thing that he has left that he has any control over. 
And the notion that any of these people would want to go there 
and be held as they are held, even my clients who are not now 
in solitary confinement, I just think is a nonstarter.
    As Mr. Keene has said repeatedly, we are not talking about 
people in most cases who were found on the battlefield. Five 
percent of them were. We are talking about people who were not 
found on battlefields and the very question or the issue is are 
they unlawful enemy combatants or not. And we need a fair 
process to resolve that.
    In terms of the second part of your question, what the 
military obligations will be, if the military had been allowed 
to do what it has done in every other war, as to the five to 
eight percent found on the battlefield, and made screenings 
then of whether they were lawful or unlawful combatants, we 
probably wouldn't have this today if the Administration hadn't 
decided back in 2001 that it would be a great idea to put 
people in Guantanamo, because then the Eisentrager case from 
1945 could be cited as precedent where they wouldn't have any 
right to habeas, even though habeas goes back to the Magna 
Carta and aliens got habeas in the New World, before the 
Constitution, then we wouldn't be here today.
    So that is my answer to your questions and I hope I am 
responsive.
    Mrs. Drake. Mr. Philbin, would you like to answer?
    Mr. Philbin. Sure. I think that in terms of how it would 
affect al Qaeda, I am not sure that it would affect their 
ability to recruit more members, but it would be helpful to 
them, particularly in training operatives for resistance to 
interrogation.
    We know from captured al Qaeda manuals that they are 
trained to exploit what they perceive to be the weaknesses 
provided by our legal system in order to resist interrogation. 
And the more it is apparent that they will have access to 
courts and will have access to lawyers, that is something that 
they can train for and use to resist interrogation when 
captured.
    I think that in terms of how it would change the military's 
role, it depends on how broadly habeas is provided. And I think 
there are dangers in the current proposal, H.R. 2826, that it 
would go well beyond just Guantanamo and you would just be 
burdening the military. You know, there are already attempts to 
have habeas petitions, I believe, in Iraq and in Afghanistan, 
and you could end up, you know, as Mr. Oleskey said, his firm 
has been down to Guantanamo 11 times. Lots of other firms have 
been down there lots of times. You could have lawyers going to 
bases in Iraq and Bagram, Afghanistan, and diverting the 
military, just as the court warned in Eisentrager, from its 
mission.
    Mrs. Drake. Thank you, Mr. Chairman.
    I yield back.
    The Chairman. Thank you.
    Before I call on Mr. Loebsack, Mr. Abraham, true or false, 
coerced statements are allowed in CSRTs as has to do with 
continued detention.
    Mr. Abraham. I am sorry, sir, I didn't hear the question.
    The Chairman. Coerced statements are allowed in CSRTs as it 
has to do with continued detention, on the one hand, as opposed 
to the military commissions which are for the purpose of 
prosecution and finding of guilt under a crime. Is that 
correct?
    Mr. Abraham. It is true, but fundamentally flawed in the 
question asked. Through the process----
    The Chairman. My question is flawed, Mr. Abraham?
    Mr. Abraham. Forgive me, sir. It presumes that in the CSRT 
process----
    The Chairman. Wait a minute. How would you rephrase the 
question, Mr. Abraham?
    Mr. Abraham. Well, what I would have asked is, ``In the 
CSRT process do you know anything about how you got the 
information?'' It is an important first question, because while 
it is true in the commission process, in the trial, the war 
crimes trials, that coerced statements, the fruits of terror, 
may not be used, none of these are issues that we can 
retrospectively examine properly nor could even have answered 
through the CSRT process.
    You have to understand, the documents that the individuals 
saw, not only the recorder who summarized documents given to 
him by report writers, but that the board saw, were heavily 
redacted. They were excerpts. They were summaries. You didn't 
know where it came from in large part, whether it was the 
product of coercion, and in fact the only thing that you would 
know and the only remarkable document would be one where it was 
explicitly noted ``the detainee said.'' So you knew a source, 
but you didn't know how that information had been obtained.
    Mr. McHugh. Mr. Chairman, will the gentleman yield for a 
moment?
    The Chairman. You bet.
    Mr. McHugh. Thank you.
    I have great respect for the chair and my point, because I 
believe your comment was directed to the comment or the reading 
I made, was that several of the witnesses, contrary to Mr. 
Keene's objection, I never mentioned that it was his statement, 
I want him to be clear on that. I didn't accuse you of that.
    But witnesses today have said very affirmatively, as have 
members of this panel, that torture, I didn't use the word 
coercion, nor does the MCA, torture was being used. And I think 
that is an important point that needed to be clarified.
    So my point was to torture, Mr. Chairman, as it applies in 
the MCA.
    The Chairman. Thank you, sir.
    Mr. McHugh. I thank the gentleman for yielding.
    The Chairman. You bet.
    Now, Mr. Loebsack, maybe you can ask a clearly defined 
question of the panel. Mr. Loebsack.
    Mr. Loebsack. Not being a country lawyer or any kind of 
lawyer, I am not sure that I can do much better, but thank you, 
Mr. Chairman.
    And not being an attorney, this is all very interesting to 
me, but I want to move away from some of the, I guess, the 
legal aspects of what we are talking about, because I have a 
grave concern, as others on both sides of the aisle have 
expressed today, about the reputation of the United States and 
what all of this has done to the reputation of the United 
States.
    I just want to begin by mentioning a ``Meet the Press'' 
interview where Colin Powell was present on June 10, 2007. And 
for the record, I ask unanimous consent that we put that 
transcript in the record. Is that okay, Mr. Chairman? Thank 
you.
    Colin Powell was asked about Iraq by Tim Russert and in the 
course of that discussion Colin Powell mentioned a letter that 
he had sent to Senator McCain and he is quoted as saying, ``The 
world is beginning to doubt the moral basis of our fight 
against terrorism.'' And also I would like to put that letter 
in the record, if I may as well ask unanimous consent.
    The Chairman. Without objection.
    [The information referred to can be found in the Appendix 
on page 235.]
    Mr. Loebsack. Thank you.
    Colin Powell went on to--he was asked about Guantanamo, 
among other things, and he went on to say, ``I would simply 
move them,'' talking about the prisoners, ``to the United 
States and put them into our federal legal system.'' The 
concern was, ``Well, then they will have access to lawyers, 
then they will have access to writs of habeas corpus. So what, 
let them. Isn't that what our system is all about? And by the 
way, America, unfortunately, has two million people in jail, 
all of whom have lawyers and access to writs of habeas 
corpus.''
    And then he goes on to conclude, ``And so, essentially, we 
have shaken the belief that the world had in America's justice 
system by keeping a place like Guantanamo open and creating 
things like the Military Commission. We don't need it and it is 
causing us far more damage than any good we could get for it, 
but remember when I started in this discussion saying, ``Don't 
let any of them go,'' put them into a different system, a 
system that is experienced, that knows how to handle people 
like this.''
    In other words, Colin Powell, like I think everyone on this 
panel and everyone on this committee, is concerned, obviously, 
that we are at war with terrorists, and that we have to do what 
we can, of course, to protect American interests. But at the 
same time, part of America's interest has to do with values, as 
has already been mentioned here. We talked about--many of us 
have talked over the course of American history about America 
as an exceptional nation. Ronald Reagan talked about that and 
``Beacon on the Hill'' with John Winthrop back in the 1600s.
    And I think a lot of us have the concern that what is 
happening with Guantanamo and by withholding habeas from these 
prisoners, that we are not a beacon on the hill around the 
world. Now, some will say that is fuzzy thinking, that is 
naive, what have you. But I would submit that it is in fact a 
vital American interest that we maintain our reputation, 
because we do need, whether we like it or not, cooperation of 
countries around the world to fight this war and to protect our 
vital national interests as well.
    So I just have one question for Mr. Philbin, when, in 
December, he wrote this letter to John Yoo, or this memorandum, 
that was in December 2001, and you mentioned the Eisentrager 
case that has been mentioned here a number of times, and you 
talked about Guantanamo and how none of this applies to 
Guantanamo because it is outside the sovereignty of the United 
States, and I realize that the Justice Department doesn't deal 
in foreign policy.
    But did anyone think about at that time the consequences 
for America's reputation when you were discussing these issues? 
And did anybody in the Administration that you know of, and I 
will ask witnesses of the next panel the same question, but did 
anybody give any consideration to how this might affect our 
reputation and our standing in the world?
    Mr. Philbin. Well, sir, let me just correct one item for 
the record. It was a memorandum co-authored by John Yoo and 
myself----
    Mr. Loebsack. I apologize.
    Mr. Philbin [continuing]. Which we addressed to the 
Department of Defense (DOD). We were just addressing a legal 
question and I couldn't go into policy discussions in any 
event. I think that is a question better asked of the 
Administration witnesses.
    Mr. Loebsack. I will ask Mr. Keene, because you said that, 
you know, you weren't quite as concerned, but that you were 
concerned, obviously, about the United States and our citizens 
and who we are. But are you at all concerned about our 
reputation as well around the world?
    Mr. Keene. Of course I am, because America has always stood 
for something special to the people of the rest of the world. 
What I am merely saying is that my real concern is not about 
what others think about us. That is something that should be of 
particular concern to this committee because of your mission 
and responsibilities.
    But my concern is us, not them and not what they think, but 
what we think and what we are.
    Mr. Loebsack. Thank you.
    Mr. Philbin. If I could add one further comment, I 
certainly agree with you that it is important for the United 
States how the United States is perceived around the world, 
because we do need allies. But I believe that a fundamental 
problem many countries around the world have with the United 
States is the basic war paradigm that we have used for handling 
the conflict with al Qaeda, treating it as an armed conflict. 
And it is not just habeas, and habeas is not going to solve the 
problem that the rest of the world has, of those who have a 
problem with us, with the way we are handling the conflict.
    Mr. Loebsack. Thank you and I yield back.
    The Chairman. Thank the gentleman.
    Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman.
    And thanks to the witnesses for being here.
    It has been a tremendously interesting discussion today, 
whether or not you are a lawyer, and I hasten to say that I am 
not, like my friend Mr. Loebsack.
    It seems to me that we are fundamentally trying to answer 
the question whether we are in a war paradigm, a law of war 
paradigm, or a criminal paradigm as we look to whether or not 
we should grant habeas rights to enemy combatants for the first 
time ever.
    I would just like to make a comment. There has been a lot 
of discussion about the Constitution. I firmly believe that 
every member of this committee has a great love for the 
Constitution. We are all of us sworn to uphold and defend that 
Constitution and I believe that we are trying to do so to the 
best of our abilities.
    One of the issues we have discussed quite a bit is this 
issue of CSRTs that has been folded into this discussion. And 
so Colonel Abraham, Mr. Abraham, you are the expert witness 
here and I would like to ask a series of questions here so we 
can better understand your level of experience and expertise, 
if I can do that.
    So I would just like to go through these and have you 
answer as quickly as you can, please.
    In your opening statement, you have a discussion about what 
was done by case writers, those people whose job it is to 
gather information. Were you ever a case writer?
    Mr. Abraham. I worked close with the case writers.
    Mr. Kline. You were not a case writer?
    Mr. Abraham. I did not physically write many reports.
    Mr. Kline. Thank you, sir.
    Your statement also discusses what members of quality 
assurance teams do. Were you ever a member of a quality 
assurance team?
    Mr. Abraham. No, I was not.
    Mr. Kline. You were not a member. Thank you.
    Mr. Abraham. Correct.
    Mr. Kline. You were an intelligence liaison as I understand 
it. Can you give us some idea of how many times you visited 
intelligence agencies?
    Mr. Abraham. Three to four times I physically went to one 
particular agency. And on many other occasions I communicated 
directly with those agency representatives.
    Mr. Kline. Three or four times. Thank you very much.
    There were, according to my notes here, panels--there were 
a number of duties that people could perform, recorder, 
personal representative, convening authority, legal advisor. 
Were you ever any of those?
    Mr. Abraham. Well, I was in fact a member of a tribunal. I 
was thereby prohibited from serving in any of the other 
positions.
    Mr. Kline. So you were a panel member?
    Mr. Abraham. I was a panel member.
    Mr. Kline. Okay. My notes here show that we have had 558 
CSRTs conducted. How many of those were you involved in? How 
many panels were you on?
    Mr. Abraham. I was on one panel that heard one detainee's 
case.
    Mr. Kline. So I appreciate that that brings a perspective, 
but we are looking to you for information about this entire 
process and you have served on one panel out of 558 in a role 
as a panel member where you were precluded from these other 
things and you weren't a case writer and you weren't on the 
quality assurance team.
    So I don't doubt that you paid close attention and you are 
reporting accurately on your participation, but it seems to me 
that this is not the depth and breadth of experience that we 
probably ought to be hanging our decisions on. Why do you feel 
qualified to tell us about the entire process with what appears 
to be a fairly limited participation?
    Mr. Abraham. If I may, sir----
    Mr. Kline. Please. It is a question to you.
    Mr. Abraham. Thank you, sir.
    The questions that were asked do not necessarily reflect 
the totality of the experiences that I had. Specifically, you 
asked me if I was a case writer. Case writing was the 
responsibility of many individuals who were assigned there, 
very few of them having any involvement in intelligence 
activities or intelligence products.
    One of the things that I did as a qualified intelligence 
officer was work with each of those case writers as questions 
arose, as the circumstance dictated, explaining to them the 
type of products that they were reviewing and, in fact, dealing 
with them on questions of the very products they were 
reviewing.
    In that regard, then, I saw not just one file or one 
detainee's file but more than 300 files and thousands of 
individual documents.
    Mr. Kline. Excuse me. What did you do most of the time? 
What were the majority of your duties?
    Mr. Abraham. The majority of my duties----
    Mr. Kline. Were you involved with the tracking system or 
what was your principal function down there?
    Mr. Abraham. Well, sir, I had three functions, neither of 
which I don't think anybody could describe as being principal.
    One of them was to individually track every step of the 
process for the detainees that were being tracked between 
September 2004 and February 2005. So what I literally did, if I 
may, sir, was I generated the letters that gave notice to the 
detainees that they were going to have a hearing within 30 
days. I generated the letters that were sent out to the various 
ambassadors, to the Department of State, to the intelligence 
agencies, asking them to begin to review their files. I 
generated the letters that were used to identify the 
individuals that were going to be put on the panels.
    Mr. Kline. Excuse me. So most of your time, you were 
writing letters?
    Mr. Abraham. No, sir.
    Mr. Kline. Or were you participating in panels? I mean, 
what concerns me, I know that somebody has to track. There has 
to be a tracking system----
    Ms. Tauscher. Will the gentleman yield?
    Mr. Kline. I would be happy to yield.
    Ms. Tauscher. Mr. Kline, I am much more interested in 
understanding about habeas corpus than I am in having you 
impeach this witness.
    Mr. Kline. Thank you.
    Reclaiming my time, this issue of CSRTs was brought up by 
the chairman by bringing this witness, and I think we need to 
understand better what the witness' level of experience is, 
because his testimony is relevant to what the chairman wanted 
to do.
    I yield back.
    The Chairman. Before I yield to Mr. Sestak, let me ask the 
witness, was there any command influence, in your opinion, on 
your work in CSRT?
    Mr. Abraham. Yes, sir. There were two aspects where command 
influence came directly to bear, again, in my perspective and 
based on my experience.
    The first related to one of the what I believe was highly 
significant tasks that I was charged to do. Following the 
opinions of the courts as were then applied in the practices of 
the CSRT process, through OARDEC, I was specifically charged to 
go certain intelligence organizations, whether physically, 
directly, or through communications, and validate the existence 
or nonexistence of exculpatory information.
    As a part of that process, I also reviewed the thousands of 
documents that were included with many of the tribunal packets. 
I immediately advised my seniors, senior leadership, the deputy 
director of OARDEC and the director of OARDEC, that, one, when 
I went to the agencies I was not only frustrated but prevented 
from seeing or knowing the extent or even the existence of 
exculpatory evidence. That to my mind was a mission show 
stopped and I was dismissed by the comments.
    Second, as related to the documents themselves, I raised 
frequent concerns with the individuals who asked me about the 
documents, the individuals who used the documents, regarding 
their substance, the so-to-speak logical leaps that were 
included in their superficial oftentimes review or review of 
incomplete documents. I expressed these concerns. These were 
dismissed.
    Finally, when I was on a tribunal, yes, sir, one tribunal, 
all three members said this is not even evidence. We were told, 
go back and do it again.
    And if I may address a prior question that was asked of 
whether or not these practices followed a procedure or whether 
they were just individual string, in fact if you look at the 
CSRT implementing guidelines, they very specifically say that 
no matter what we find it is little more than a recommendation 
to the director of OARDEC, who can choose to accept or reject 
it.
    It was that rejection to my mind was the paramount and 
clearest expression of command influence that I could have seen 
in the entirety of the time that I was there.
    The Chairman. Thank the gentleman.
    Mr. Sestak.
    Mr. Sestak. Thanks, Mr. Chairman.
    Listening to today's discussion does give me concern why we 
don't have habeas corpus. I remember being at the U.S. Naval 
Academy and they gave us a book to read, ``Military Justice is 
to Justice as Military Music is to Music.'' Obviously, it was a 
critique of the uniform code of military justice.
    But I was taken, when I read it, in this profession that I 
was about to embark on for 30-some years, in the middle of a 
war, Vietnam, that how we try to instill the dignity, even in a 
war, the dignity in danger by the rule of law, not of command 
influence.
    I then ended my profession having walked through Kuwait in 
another war and discovering that there were 50,000 individuals 
there that have nowhere to go because when Kuwait was 
established you had to find your lineage to a certain number of 
family, and if you couldn't, you couldn't leave Kuwait but you 
couldn't be a member of Kuwait. So they are the ones you see 
along the road selling rags and stuff. They have nowhere to go. 
No law to resort to, no court.
    So as I stepped back, I was taken in warfare that we always 
wanted to have still the rule of law. And I looked at Kuwait 
and it just reminded me that down here in GTMO, Guantanamo Bay, 
we actually are holding men on trial for how long? Until a man 
decides, not the rule of law. And as I look at how the CSRT was 
originally established, it is a man, not a court, that decides 
whether statements of coercion, however anyone wants to 
describe that, are actually--statements that are actually a 
result of coercion and if there is value to them.
    So as I step back, I am concerned for three reasons. Mr. 
Keene, you stressed the first for me. What was I fighting for? 
Everybody knows when you are out there in combat you are 
fighting for the guy beside you. But for this Nation, you are 
fighting for these ideals.
    So two questions, since they have gone back and forth on 
almost everything. If this really is, sir, for you such an 
important issue, why only GTMO? Habeas corpus is so simple. You 
talked about the great right in the 14th century. All it is is 
for an individual to go have the government order a court to 
tell a warden the legal authority for detainees. Why only GTMO? 
Why not elsewhere?
    And sir, for you, I was taken by your comment, it is 
disruptive. Mr. Oleskey, please for that first. You kept coming 
back, why set a second system up, because it is disruptive. I 
have seen a lot of disruptive things in my career, but to have 
that as the basis for why not beginning with a system that has 
already established, habeas corpus, which you may not agree 
goes to an individual, but I do think the suspension clause is 
important.
    Somebody, as Mr. Andrews said, higher will decide. But here 
we have taken a judiciary, in my opinion, and deprived it of 
the jurisdiction over law which the Constitution gives it.
    Tell me why disruption, a second system, has anything to do 
with the concern of starting out initially with what was 
already given by this Nation, the rule of law by habeas corpus. 
Sir, could you answer that, first, Mr. Oleskey. Why not have 
habeas corpus for wherever the U.S. Government detains people? 
Why only in GTMO?
    Mr. Oleskey. Which one of us are you addressing?
    Mr. Sestak. You. Yes, sir. You. You touched upon it but you 
never went over.
    Mr. Oleskey. I am a lawyer, so I generally argue and 
respond in terms of the law as I have understood it and as it 
may evolve. The law as it stood has been that habeas corpus can 
be extended beyond the United States in some instances.
    What the Supreme Court has been grappling with are some of 
the issues that we have been talking about today, which is 
where is it appropriate to extend the writ. Thus far, it has 
been extended to the Philippines in limited cases and in other 
dependencies and now to Guantanamo.
    As a lawyer who advocates for personal liberty, I would be 
willing to see the process more broadly extended. As a lawyer 
advocating for clients in Guantanamo, I make the case for my 
clients within the bounds of where the law has been. The law 
has been that they are entitled to habeas since Rasul in 2004. 
I just want that process to go forward.
    I know that the Court of Appeals under the Military 
Commissions Act and the DTA doesn't have the power to release 
people, even if they disagree with what the CSRTs did. They can 
apparently just send it back for another round of CSRTs and we 
are right back in what Lieutenant Colonel Abraham was talking 
about.
    A habeas judge can release people he determines who have 
been held for five or six or seven years, which is what we are 
getting to, who shouldn't be kept any longer without trial or 
charge.
    So within those bounds, as an advocate, that is where I 
come out. I take your larger point, but it goes beyond what I 
am here to advocate for today.
    Mr. Sestak. Sir?
    Mr. Philbin. I think that we fundamentally disagree on 
whether or not there are constitutional rights--of the 
privilege of the writ of habeas corpus. The privilege of the 
writ does not extend to aliens outside the United States.
    In getting to your question about disruption and why is 
that a basis, that the law all along until Rasul for the 
Nation's entire history has been that when the Nation conducts 
military operations overseas and seizes people in military 
operations, they are not entitled to the writ of habeas corpus. 
Over 600 attempts to get writs of habeas corpus after World War 
II were turned down by the Supreme Court and the big opinion 
that explained why was Eisentrager and it said rights do not 
extend to aliens outside the United States.
    And that explained part of the reason that that makes 
sense, a practical reason that the Constitution is structured 
that way, is that it would be a great hindrance to military 
commanders in the field who are trying to subdue an enemy.
    Mr. Sestak. I am out of time, but I meant with GTMO, why 
would it be disruptive?
    Mr. Philbin. It has been disruptive with GTMO. When----
    Mr. Spratt [presiding]. We need to move on to the rest of 
the members here today, if you will wrap it up in a sentence or 
two.
    Mr. Philbin. The habeas actions were disruptive in the 
amount of control that petitioners wanted courts to exercise 
over access to GTMO and conditions there, and I think Congress 
responded responsibly by providing judicial review through a 
mechanism that is less disruptive to the military operation of 
GTMO but that still provides Article III court review.
    Mr. Spratt. Mr. Wilson of South Carolina.
    Mr. Wilson. Thank you, Mr. Chairman.
    As I hear the discussion about military law, I served 31 
years in the Army National Guard, 28 years as a Judge Advocate 
General (JAG) officer, and I have always been impressed by the 
people serving in the JAG corps, their professionalism, their 
efforts to be fair. I have heard criticism of the military code 
of military justice, but in each instance that I have had the 
opportunity to proceed with the code and work with the code and 
work with Guard and military members, I have just been so 
impressed by fellow JAG officers and the code and the whole 
system of military justice.
    And additionally, I have visited Guantanamo Bay twice. I 
was very impressed by the military personnel there, the 
intelligence personnel. We had full briefings. We had full 
access. It was incredible to me to see through interrogation 
the information that was received which uncovered terrorist 
cells in Europe, in the Middle East, in the United States. It 
was incredible the information that protected and saved, I 
think, thousands of lives of determining techniques of 
recruiting, the extraordinary ability to finance attacks on the 
United States, attacks on other countries around the world.
    And all of this because of the ability we have had of 
detaining people who have every desire and intent to kill all 
of the American public.
    As I look at this and look at the bill before us, Mr. 
Philbin, I am very concerned that there are legal landmines 
present in what we are discussing. And in particular, that 
habeas corpus for alien combatants would not apply for persons 
who are in a zone of active combat. And the question would be, 
does that include Iraq and Afghanistan, all of Iraq and 
Afghanistan?
    Mr. Philbin. I think that that is a difficult question and 
that is a problem, in my view, with the bill, because the term 
is not defined what is an active zone of combat.
    And what will happen in litigation, people have already 
filed and others will file petitions for habeas corpus for 
persons held in Iraq or at Bagram in Afghanistan, and then they 
will start to argue in the courts about what does an active 
zone of combat mean.
    And there are probably other provisions in the U.S. Code 
that will refer to zones of combat. I am not specifically sure, 
but for purposes of combat pay or other reasons, and they might 
be defined in a certain way and they might be only zones of 
combat but not active zones of combat. And then that will be a 
way for lawyer to say, well, even if DOD considers all of 
Afghanistan a zone of combat for one reason, it is not an 
active zone of combat under this provision.
    If there is going to be a carve out that works and is 
intended to ensure that habeas petitions are not entertained 
from Afghanistan or from Iraq, it ought to be a much more well-
defined provision. And as I pointed out in my prepared 
statement, there is also the concern that under the laws of 
war, generally commanders are required to remove prisoners from 
the zone of combat. That is the term used in the third Geneva 
Convention.
    And while that convention doesn't specifically apply here, 
the general presumption under the laws of war is that you must 
take those that you detain out of the zone of combat. There is 
an argument for lawyers to make that anywhere they are held is 
not part of the zone of combat and that habeas therefore would 
apply.
    So those are big dangers, big unknowns with using that 
language in this bill.
    Mr. Wilson. Additionally, I have had the opportunity to 
visit with our troops who I so greatly appreciate. I have got 
four sons serving in the military, so I have a personal 
interest. I have visited with the troops in Kuwait. I have 
visited troops in Kyrgyzstan. My next-door neighbor served in 
Djibouti. Would those be active zones of combat?
    Mr. Philbin. Again, it is hard to say because the term is 
not defined. I think that it is most likely that some place 
like Djibouti would not be considered an active zone of combat, 
at least from what I know.
    Mr. Wilson. Well, having heard discussions from people 
serving there, it is a very interesting place.
    My final question. There is also reference to action solely 
for perspective injunction relief against transfer. What does 
relief against transfer mean?
    Mr. Philbin. I believe that what that is intended to do is 
give the courts authority to stop temporarily, hear and decide 
on whether or not a detainee can be transferred to the custody 
of another country.
    It is part of the United States' policy at GTMO to try to 
transfer as many detainees as possible to the custody of other 
nations who are willing to accept responsibility for them.
    Mr. Wilson. But they couldn't--there is a potential they 
could not be held and could not be transferred.
    I yield the balance of my time. Thank you, Mr. Chairman.
    Mr. Spratt. Ms. Boyda.
    Mrs. Boyda. Thank you, Mr. Chairman.
    And I certainly appreciate the testimony of all four of you 
this morning, taking your time to do this.
    I would ask the committee's indulgence for a few minutes to 
share my own personal story in this.
    Five years ago, if somebody would have said I was 
nonpolitical, that would have been an overstatement. I was 
completely apolitical for some different reasons, and have 
listened to my father and my mother and my grandparents carry 
on for years about the younger generation and what is going on 
in our country and what is going to happen, and listened to 
this debate, and worried about our country for years on how 
things are going to resolve themselves, but always rested in 
that assurance that things would take care of themselves. And 
that it didn't need my participation.
    About four years ago I stood up, kind of like you, Mr. 
Abraham, and said I can't remain quiet any longer. I don't know 
what to do. The very core of our foundation of our country is 
about a balance of power, it is about checks and balances, so 
that nothing can get too far out of line and that the problems 
we solve some way or another, the pendulum will swing back and 
we will get this country back on track.
    The reason that I sit here today is because I believe that 
those checks and balances have been so severely undermined, and 
the CSRT, it may be a good system, it might work, but it 
doesn't provide us any assurance that there are any checks and 
balances, and that is a very fundamental right and a 
fundamental core of our democracy.
    And so I applaud what you are doing to stand up and talk 
about what has been going on and I hope that you are able to 
get that message out. It is not just that it didn't work. It is 
just that it was fundamentally flawed. And a core value that we 
share in this country is now under the consideration of this 
committee and will be under the consideration of this entire 
House of Representatives, and I hope that our country has not 
gone so far that we cannot bring it back into balance.
    I certainly sit here today as one of those people who is a 
new kid in Congress because enough people in Kansas said it has 
gone too far. And that gives me hope.
    Now let me ask my question. I do represent Kansas. I 
represent Leavenworth. And so the discussion certainly is about 
GTMO and I have a very specific question for you.
    Does the problem that we have seen at GTMO, somebody will 
go down and say, you know, they have got good meals, they have 
got a good place to exercise in the day, there is not a 
problem. And we are going that is not the issue at GTMO. The 
issue is are people being held, detained, without being 
charged? Do they have a right to even ask questions about their 
detention in a way that we are used to in these United States?
    So it is not about the physical facility. It is about the 
black eye that has been put on.
    And my question to you would be, can we carry out justice 
at GTMO were this Congress to say we do want to return to the 
fundamentals of our democracy and we do want to bring back 
habeas corpus? Can justice be served at GTMO? Do we have to 
physically close GTMO or can we do it there?
    Mr. Abraham. What I can speak to, Madam Representative, is 
to what happened in the CSRT process. But we have to begin by 
remembering that the Constitution did not invent the rights of 
life and liberty, that all it took was the absence of truth, a 
silence demonstrated in the CSRT process, to literally 
extinguish it.
    We speak of the bulwarks of our Constitution of rights 
that, at least as far as this Nation is concerned, existed for 
200 years, and yet we measure the lives of men in decades. Some 
of these individuals will spend a great part of their adult 
lives in detention, whether it is at GTMO or somewhere else.
    Again, I can't speak to how the freedoms that we enjoy are 
eroded or our reputations are eroded, but what I can do, if I 
may, is say that the CSRT process was our opportunity to find 
the truth, to identify the truth, and by that process determine 
whether these individuals should be detained for one more day 
than they were at the time of the CSRT process. Now, years 
later, we still don't know why many of them----
    Mrs. Boyda. Let me just yield. The point of my question is, 
again, now that this has such a black eye, the good people of 
Leavenworth, Kansas, are asking why do we want to bring that 
into our community? And some are asking--these are different 
opinions. But I, on the position of do we close GTMO, I have 
said we don't have to close GTMO to have justice being served. 
Would you care to, or would anyone else, care to comment on 
that?
    Mr. Oleskey. I agree with you, Congresswoman, and I thank 
you for your time and the time you extended to me in May when 
we chatted briefly about this issue.
    The issue is justice. It is the principle to be served. 
There are issues raised today about whether it will be 
litigation, about restoring habeas. There has already 
litigation about the system in place and a point of fact, if 
the Administration had accepted the Rasul ruling and Hamdi and 
put in place a proper process and agreed to let habeas go 
forward, we wouldn't be having this discussion today.
    Mrs. Boyda. Exactly.
    Mr. Oleskey. So I think that you are on the right track, 
absolutely.
    Now, the question is when and where are we going to serve 
the interest of justice, in this case individual liberty, not 
where are we going to put people who we continue to deny those 
rights.
    Mrs. Boyda. Thank you.
    Mr. Spratt. Mr. Franks of Arizona.
    Mr. Philbin. If I can make a brief comment.
    Mr. Spratt. Who would like to comment?
    Mr. Philbin. I would, sir, on the representative's 
question.
    Mr. Spratt. I am not trying to truncate anybody's full 
explanation of the facts of the law, but we do have a full day, 
so do it as expeditiously as possible, please.
    Mr. Philbin. I agree with you, Madam Representative, that 
Guantanamo does not need to be closed for justice to be served. 
But I just wanted to comment that when the discussion refers to 
the rights we are used to, the things we are used to and people 
being held without charge, I think that is putting the 
discussion in the wrong context, because it is importing the 
rights of the criminal law into war fighting.
    People can be held at GTMO without charge. That is what 
happens in war. And I think it is important to keep that 
distinction in mind.
    Mr. Spratt. Thank you, sir.
    Mr. Franks of Arizona.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, I first want to say that I identify so much 
with the heart and the sentiments of Mr. Keene and Mr. 
Bartlett, that this country is unique and that we do have a 
higher standard than the rest of the world, because we are not 
only the unipolar superpower of the world, that we are 
essentially the focus of freedom and the depot of freedom 
throughout the planet.
    That said, I have a great concern here that today we are 
inflating, if that is a good term, war and law enforcement. I 
serve as ranking member on the Constitution Committee and with 
the committee's indulgence here, I would like to do two things. 
I would like to read in the Constitution where the writ of 
habeas corpus I think has its most relevant reference for us 
today, and then to relate some of the testimony given before 
the Constitution Committee.
    In Article I, Section IX of the Constitution, it says, 
``The privilege of the writ of habeas corpus shall not be 
suspended unless when in cases of rebellion or invasion the 
public safety may require it.''
    Now, the Founding Fathers anticipating the possibility of 
having to suspend the privilege of habeas corpus, even in this 
country, for certain critical reasons, to protect this Nation. 
And I think it is important here, first of all, for us to 
realize that this action in Guantanamo Bay, this action in the 
fight against jihadist terrorism, is not law enforcement. This 
is a war between the free peoples of the world and the most 
dangerous enemy they have thus far ever faced.
    In the Constitutional Committee, we have had testimony that 
essentially went this way: habeas rights would also give 
detainees the ability to compel witnesses, the context of enemy 
combatant combatant detention, in that context, the most 
relevant witnesses would be those soldiers who captured those 
detainees. It is hard to contemplate a system in which our 
soldiers are recalled from the battlefield to be cross-examined 
by the very enemy combatants whom they captured. Indeed, it 
would be hard to think of anything more demoralizing for our 
soldiers.
    As the court in Eisentrager noted, ``It would be difficult 
to devise more effective fettering of field commanders than to 
allow the very enemies he is ordered to reduce to submission to 
call him to account in his own civil courts and divert his 
efforts and attention from the military offensive abroad to the 
legal defensive at home. The detention of enemy combatants 
during wartime is not criminal punishment.'' And I think that 
is so important for us to understand.
    The purpose of detention is prevent combatants from 
returning to the battlefield, as some have done upon their 
release. Detention is a matter of military necessity that has 
long been recognized as legitimate under international law.
    As former Attorney General William Barr testified before 
the Senate Judiciary Committee in July of 2005, he said, ``What 
we are seeing today is an effort to take the judicial rules and 
standards applicable in domestic law enforcement context and 
extend them to fighting wars. Nothing could be more farcical or 
more dangerous.''
    And, you know, I have a hard time understanding that if 
indeed we are committed to extending habeas corpus to enemy, in 
this case unlawful enemy combatants, why don't we go ahead and 
extend bail and Miranda rights and counsel. Why don't we make 
sure that our soldiers, before they fire on anybody, give them 
their rights and all of these kinds of--it is just an 
hysterical notion. It just does not work in reality.
    And this notion of torture that was brought up, Mr. 
Chairman, it is--our penalty for torturing a prisoner is 20 
years. If the prisoner dies, it could be the death penalty. So 
this nonsense that we are in this country trying to torture our 
prisoners is just that.
    And the idea of bringing back habeas corpus, that was 
mentioned earlier today, that is another misnomer. Habeas 
corpus has never been given to military combatants, especially 
nonlawful ones.
    I guess I will just close up my thoughts here and ask Mr. 
Philbin to respond.
    We face the most dangerous enemy we have ever faced. We are 
at war and the survival of this republic, I am afraid, is in 
question if we are unable to not be the victims of our own 
sense of propriety to the point that we throw out every justice 
point of view completely, then we will, I am afraid, 
disintegrate from within.
    Mr. Philbin, do you think that if we apply full habeas 
corpus rights to prisoners, that somehow this will denigrate 
our ability to fight war?
    The Chairman [presiding]. Please proceed.
    Mr. Philbin. I think that it would have a deleterious 
impact on the war fighting mission. I think that Congress 
responsively in the DTA and the MCA provided a review mechanism 
that is keyed onto a military procedure first, to something 
that the Supreme Court suggested in the Hamdi decision would be 
a fine mechanism, that would satisfy due process rights, even 
for American citizens, and it already adapts a mechanism for 
going beyond anything that is provided before to the war 
fighting situation by providing a form of review that keys off 
of prior military proceedings.
    Habeas corpus would be a disruption and the current system 
should be allowed to play itself out.
    Mr. Franks. Thank you, Mr. Chairman.
    The Chairman. Thank the gentleman.
    Let me remind the members that we have another panel 
following these distinguished gentlemen, and please proceed 
accordingly.
    Ms. Tauscher?
    Ms. Tauscher. Thank you, Mr. Chairman. Thank you for 
holding this hearing.
    I am honored to be an original cosponsor of your 
legislation and I think it is very important that we move ahead 
to restore habeas corpus.
    Gentlemen, thank you for being here.
    Mr. Chairman, I have, with your permission, some letters 
for the record in support of the restoration of habeas corpus 
that I would like to include in the record.
    [The information referred to can be found in the Appendix 
on page 239.]
    Ms. Tauscher. I represent Walnut Creek, California, some of 
the smartest people in the world, not because they have elected 
me six times but because they understand fairness very up close 
and very far away. And I think what my constituents and what I 
think many people around the world understand about how we have 
created a Gumby-like situation with the Constitution and thrown 
the Constitution up as an excuse when we choose to and then 
quickly hide it when we don't, is a stain on the conscience of 
the American people.
    And it is about Guantanamo and those people that are there 
now, that they cannot find any way to prove who they are and 
what they were doing in a situation that is completely 
asymmetrical to any war that we have ever done. And frankly the 
situation of how they got to Guantanamo is completely different 
to anything that has ever been done in American history.
    And the fact is that we have people that are absolutely 
willing to justify this by comments, Mr. Philbin, that say even 
in the face of such a threat, the United States has exceeded 
its obligations toward the detainees in the conflict under both 
the Constitution and under international law.
    That does not satisfy me and it doesn't satisfy my 
constituents, because they know that there is actually 
something even better than the Constitution and international 
law. It is their own gut sense that these men, particularly in 
Guantanamo, specifically in Guantanamo, have never been given a 
chance to understand who turned them in, how they got picked up 
and how they are going to get themselves home. How are they 
going to get themselves home?
    And for our government to constantly bend like a pretzel 
the excuses for why these habeas rights shouldn't be extended 
to these people after we intricately designed Guantanamo to be 
a place where we can slip the noose on having anybody really 
pay attention to what we were doing there for a long time is on 
the face of it very necessarily rejected by my constituents and 
average Americans.
    Why is this stain of Guantanamo not enough for us to 
understand as we are battered about the head internationally, 
consistently, by our friends and our allies? Why isn't it 
enough for us to understand that this is wrong and that we have 
to do something about it?
    Mr. Philbin.
    Mr. Philbin. I think that it is certainly the case that we 
withstand, we take criticism internationally, for Guantanamo.
    Ms. Tauscher. Why?
    Mr. Philbin. I do not think that the policies at 
Guantanamo, though, should be changed to provide habeas corpus 
rights for enemy combatants detained there in response to that.
    I believe that the United States----
    Ms. Tauscher. Because the criticism is illegitimate or 
because we don't deal with what other people think?
    Mr. Philbin. But the criticism doesn't depend simply on 
habeas corpus rights or on specific judicial review rights. The 
United States has already provided----
    Ms. Tauscher. Mr. Philbin, the criticism is consistent. It 
is specific to this issue.
    Mr. Philbin. The criticism relates to what you have 
referred to as the stain of Guantanamo. It is an abomination of 
various things that other----
    Ms. Tauscher. Is it legitimate?
    Mr. Philbin. I do not believe that it is legitimate. I do 
not.
    Ms. Tauscher. I do.
    Mr. Philbin. Well, we disagree, Madam Representative, and--
--
    Ms. Tauscher. I will tell you one other thing----
    Mr. Philbin [continuing]. I believe that----
    Ms. Tauscher. Excuse me. In your comments, I find it 
fascinating that you say, ``The political branches through 
recent legislation.'' I am not a political branch, Mr. Philbin. 
I am a legislator.
    Mr. Philbin. Forgive me, Madam Representative, but lawyers 
refer to both the legislative branch and the executive branch 
as political branches because they are politically elected, 
they are representative bodies. Those are the political 
branches, and then the judicial branch is not a political 
branch.
    Ms. Tauscher. We are the legislative branch. But let's get 
back to the issue.
    Mr. Philbin. And the issue, in terms of criticism of the 
United States will not be solved by providing habeas corpus 
rights to detainees at Guantanamo.
    The United States has already provided mechanisms of 
judicial review and Article III courts that go beyond anything 
that has ever been provided to any detainees in wartime before. 
And the----
    Ms. Tauscher. The only thing that will solve the problem of 
Guantanamo is to close it. The only thing that will solve the 
problem of Guantanamo is to make sure we don't repeat the 
mistakes that we made in creating Guantanamo.
    Mr. Philbin. The problem----
    Ms. Tauscher. I yield back, Mr. Chairman.
    Mr. Philbin. If I could respond, Mr. Chairman.
    If the problem of Guantanamo to which you refer is that we 
receive international criticism about it, then I believe you 
are correct, that the only way to stop all of our critics 
from----
    Ms. Tauscher. No, the problem is that we are wrong.
    Mr. Philbin. If I could finish--if I could finish, Madam 
Representative, answering your question. The only way that we 
could respond to all our critics is to do everything that they 
want and to stop treating this as a war and to start treating 
it as criminal law enforcement. And that is not----
    Ms. Tauscher. That cannot be your legal opinion. I would 
say that is your ideological opinion.
    Mr. Philbin. No. That is my view of the only mechanism that 
could be used to stop all international critics of the United 
States. And that is why I do not believe that U.S. policy 
should be dictated by whether or not we receive international 
criticism for it.
    We have determined that we are in a war and that we will 
conduct our conflict with al Qaeda according to the laws of 
war, and I believe that is the right decision and it is the 
policy that we should stick with.
    Ms. Tauscher. This is not----
    The Chairman. The gentlelady's request regarding the 
documents will be entered into the record without objection.
    Ms. Tauscher. Thank you, sir.
    The Chairman. Thank you.
    And now Mr. Hayes from North Carolina.
    Mr. Hayes. Thank you, Mr. Chairman.
    I know that it has been a long session and thank you all 
for your time and interest and intellect.
    And, Mr. Chairman, I think this is a very worthwhile 
discussion. I have listened with fascination and come away with 
a conclusion that Guantanamo is the right thing to do. We don't 
need to close it. And our enemies, who are very hard to define, 
they don't typically wear uniforms, have declared the whole 
world as a battlefield.
    To close Guantanamo Bay and bring these people to a 
community near you, as Ms. Boyda pointed out, she is not 
particularly anxious to have them at Fort Leavenworth. I agree.
    A couple other points. As I look at a press clipping from 
July 25, a top Taliban commander who became one of Pakistan's 
most wanted men after his release from Guantanamo Bay, Abdullah 
Mehsud, killed himself because he didn't want to be captured. 
We have got some dangerous people here. They are not 
jaywalkers. They are not there for littering.
    We had a process, and Mr. Abraham I find your testimony 
quite fascinating and I think Colonel Kline's comments were 
appropriate because in this kind of forum, the public has a 
hard time seeing and understanding everything that goes on in a 
broader context, so your comments are appropriate but I think 
Colonel Kline was saying it shouldn't be disproportionately 
weighted in the overall process.
    And in the interim, the responsibility of this committee is 
to protect and defend, raise an army, whatever it takes to 
defend this country. I am going to ask you a hypothetical 
question. It may not be quite fair, but each one of you all is 
an attorney, and that is perfectly fine. The professional 
responsibility you have is to defend your client, and that is 
crucial. That is crucial to our rule of law and the way we look 
at things. And you all have done an admirable job of that in 
the abstract and in the specific today.
    Given the circumstance that you were defending a murderer, 
you knew he was guilty, the whole world knew he was guilty, 
couldn't get a fair trial because of the weight of the evidence 
against him, all of the sudden you had to reverse and no longer 
were you the defense attorney. You sat on the jury. What would 
you do?
    We in this committee are a jury of sorts charged to defend 
this Nation. The Cole, they didn't have habeas corpus. Daniel 
Pearl had no habeas corpus. Folks in the 82nd who are faced 
with improvised explosive devices (IEDs) every day, there is no 
habeas corpus there. We are defending the country.
    My question to you, if you had to come sit on the jury all 
of the sudden and defend these people that you know are guilty, 
how would you do that? Because that is what we are called to do 
here. And people back home want to know--it is a criticism. We 
are all criticized because, as you said, we are in the 
political branch. Criticism, one of the reasons that we are 
criticized by the world is that it is an easy thing to do, and 
witnesses and members create the ability and information that 
we are criticized.
    Guantanamo is correct. If we need to have another combatant 
status review tribunal, then that is what we need to do. But 
the Magna Carta and habeas corpus said we have to have these 
people a chance to have a review of their status. Well, we have 
done that.
    And, Mr. Abraham, you said we didn't do it that well, but 
the Federal Court of Appeals said it was done right. So it 
seems if anything has come out of this, it is we got a process 
that is not as good as it ought to be. Let's go back and 
correct that process. But to give people who are out to do away 
with us, to give them rights as though they were U.S. citizens 
having earned this right would be a terrible mistake.
    I know I am running out of time, but again, the jury 
question, you all left, you are no longer the defender, you are 
the jury. What would you do?
    Mr. Keene, you have got a smile on your face. That is a 
good start.
    Mr. Keene. Well, Congressman, I agree with almost all that 
you say. I have listened to some of these things. I don't think 
there is a need to close Guantanamo. I don't think the question 
is whether people are well-fed at Guantanamo. I think what we 
are discussing is how do you get an answer to the threshold 
question does someone belong there.
    There have been references to that they are all unlawful 
enemy combatants, but that is the question and that is the 
threshold question. Are they? Many of them weren't captured on 
the battlefield. Many of them were turned in for bounties. And 
the process by which we ask that question, not the subsequent 
questions--I think they ought to be interrogated, I think all 
of those things are true.
    And, actually, I am agreeing with you because you say 
whether it is habeas or something else, if we need to review 
that, let's fix it.
    What we have doesn't or hasn't or is demonstrably in some 
cases not gotten to the threshold question, not answered that 
accurately. And that is what you, as the jury, have to decide 
how to do. We think that habeas is a way to do it. But at the 
end of the day, you have to say can you go to sleep knowing 
that all of the 375 people that are at Guantanamo deserve to be 
there. And that the process that we now have that says that 
they do deserve to be there, is it flawed? And if it is flawed, 
does that mean some of them don't? And that is the question, 
and that is what you have to wrestle with.
    Mr. Hayes. Thank you, Mr. Chairman.
    I don't think habeas is the way to go, and I don't think we 
ought to close Guantanamo.
    Thank you very much.
    The Chairman. Thank you very much.
    Ms. Davis from California.
    Mrs. Davis of California. Thank you. Thank you, Mr. 
Chairman.
    Thank you to all of you for being here.
    I wanted to follow up with a few things that were said, if 
I may.
    Mr. Philbin, you mentioned that we have many, several 
hundred, many hundred individuals that have not come under 
habeas, would not come under habeas. But as I understand it, I 
think they would be covered by the Geneva Convention. Is that 
not correct? Who are you referring to that we would have to--if 
we chose to bring enemy combatants under the habeas corpus, who 
else would that impact? Who else would that include?
    Mr. Philbin. Well, I am not sure. I think what I referred 
to was that at the end of World War II the Supreme Court 
rejected habeas corpus petitions from over 600 people who were 
being held. I think that is the only----
    Mrs. Davis of California. Were those individuals, though, 
whose countries were signatories to the Geneva Convention?
    Mr. Philbin. Most probably were. I don't know if all were. 
But----
    Mrs. Davis of California. But that makes a difference, 
correct? That they at least are covered as opposed to being in 
what we would consider this kind of ``Never Never Land''?
    Mr. Philbin. Well, those who have POW, who are members of 
the armed forces of signatory nations and who meet the 
requirements of POW status will have protections under the 
Geneva Convention (GPW). Those protections do not include 
Article III court review of their detention. They are simply 
held until the end of the conflict.
    But if I could get, I think, to part of the point of your 
question, what would happen if Congress now passed legislation 
that broadly said habeas corpus is available for enemy 
combatants overseas and we will have a carve out for active 
combat zones. There will be a ton of litigation about what an 
active combat zone is, and people particularly in Afghanistan, 
who do not have POW status under the GPW would have access to 
habeas corpus if it were determined through litigation that 
they were being held in an area that is not an active zone of 
combat.
    Mrs. Davis of California. Would you advocate, do you think 
it would be better to bring everyone in a war zone, even if 
their countries are not signatories to the Geneva Convention, 
would it be preferable to have them covered under the Geneva 
Convention?
    Mr. Philbin. To have----
    Mrs. Davis of California. Would it be preferable to have 
them basically be POWs then as opposed to coming under the 
folds of habeas corpus, if in fact this was changed?
    Mr. Philbin. I don't think so. I think----
    Mrs. Davis of California. Let me move on.
    Mr. Philbin. The Geneva Conventions are set up to create a 
series of incentives for conducting war in a certain fashion. 
To give POW status to those who are actually unlawful 
combatants, I think, is a very bad idea, because it perverts 
the incentives of the entire Geneva Convention system, which is 
designed to force people to do things like wear uniforms and 
not attack civilians.
    Mrs. Davis of California. I understand that, but I am just 
trying to--see, we have individuals who are in this ``Never 
Never Land'' and we are trying to--in some ways, is it true 
that we are trying to find a home for them of sorts? So that 
the laws----
    Mr. Philbin. I don't think----
    Mr. Oleskey. We are trying to find a remedy for this 
unusual situation that has been created by the decision to put 
people deliberately in a place where they have no rights, which 
is what Mr. Philbin was tasked in doing, as I understand it, 
when he was in the Justice Department, and he makes no bones 
about that, and I understand and appreciate his candor.
    But now we have this situation. There has been a lot of 
talk about criminal process today. Habeas is not a criminal 
process, but the confusion is that usually when we deprive 
people of liberty, for their lives, we do it through a criminal 
process which has all kinds of safeguards. And I think what is 
running around in this room is, we are holding folks, which the 
Administration says it can hold for the rest of their lives, 
without the safeguards that most of us feel, at least folks I 
talk to, ought to attend taking away your life and liberty 
forever.
    So we are talking about a problem that has been created 
that needs a solution, and does this thing that Wolfowitz, 
Secretary Wolfowitz built hastily in seven days withstand six 
years? And the burden of the argument from this side of the 
table is it doesn't.
    Mrs. Davis of California. I was concerned, Mr. Philbin, 
because I think at one point you did say that habeas is just 
another round of litigation. Does that sound true to what you 
meant, that it is just another round of litigation? Or is 
that----
    Mr. Philbin. Well, let me address that, and if I could 
address some other points from what Mr. Oleskey said.
    First, I believe he mischaracterized my testimony in saying 
that I made no bones about the fact that, as he put it, my job 
at DOJ was to find someplace to put these people where they had 
no rights. I was asked to answer a legal question about whether 
or not there would be habeas jurisdiction at Guantanamo, and I 
answered that question.
    Second, Mr. Oleskey referred to this process that Paul 
Wolfowitz put together in seven days. In fact, the CSRT process 
had been in the planning stages for much longer, before the 
Rasul decision, and in any event is modeled on AR190-8. It is 
not something that was just dreamed up in seven days. It is 
modeled on an existing set of Army regulations and provides 
more protections than that set of regulations, which is usually 
what is used to determine on detaining someone.
    In terms of my reference to habeas as another round of 
litigation, I don't know if I said it exactly that way, but let 
me put it this way. Congress has already provided an adequate 
mechanism for Article III court review. It has established a 
system of review both for military commissions and CSRTs that 
allows Article III courts to examine those decisions.
    Habeas corpus petitions will be duplicative and an 
additional round of litigation under this bill if they are 
added, and there seems to be an assumption that habeas corpus 
will mean this specific set of procedures that will be used and 
this specific review mechanism, but I----
    It seems to be an assumption that habeas corpus will mean 
this specific set of procedures that will be used and this 
specific review mechanism. But I don't think that that is a 
correct assumption.
    The law on what habeas corpus review provides varies from 
one situation from another. It is a set system of rules when it 
is review in the criminal justice system. That is a very well-
developed system. But habeas corpus review of a military 
decision to detain someone is not a well-developed system.
    And what standard of review will be applied in those cases 
and what exactly that would provide is going to be determined 
by a big round of litigation. And the precedents are from World 
War II in Yamashita v. Styer and in the Kearing case that 
judicial review by habeas corpus of a decision of a military 
tribunal is very limited and does not inquire into the facts. 
It only inquires into the jurisdiction of the tribunal.
    Mrs. Davis of California. Could I just say ask for a motion 
because I know our time is up?
    The Chairman. Thank you.
    Mrs. Davis of California. Would you all agree it is ill-
defined, it would be ill-defined under the military?
    Mr. Oleskey. That what would be ill-defined? Habeas?
    Mrs. Davis of California. Yes.
    Mr. Oleskey. I don't think the military has any business in 
habeas. I don't think the military thinks it has any business 
in habeas. That is the business of the federal courts. And the 
genius that habeas is it is flexible. So where Mr. Philbin sees 
lemons, I see a sweeter fruit.
    The Chairman. I thank the gentlelady.
    Dr. Gingrey.
    Dr. Gingrey. Mr. Chairman, thank you.
    And, Mr. Oleskey, you have stated several times in your 
testimony that Secretary Wolfowitz literally threw this 
detention facility together and the legal policy. I think Mr. 
Philbin just stated that, in fact, that was not the case.
    There was certainly a very careful judicial review with the 
Justice Department, and this was not something that was just 
thrown together. And I want to start out my questioning though 
and ask the panelists just in a show of hands how many of you 
who have actually been to Guantanamo Bay, to GTMO.
    Okay, thank you.
    And I see, in particular, Mr. Keene, that you have not been 
there. And I would like to point out that I have been there. I 
have been there twice. And when I was there back in 2004, early 
2004, again in 2005, I saw the detention, the interrogation 
process. I saw the food service. I saw the exercise facility.
    I saw detainees having an opportunity daily to meet 
privately with members of the International Committee of the 
Red Cross. This at the same time while some of our soldiers in 
Iraq were treated a little differently when they were detained.
    And I could name several names that were very prominent in 
the news, but one in particular, a contract worker from my home 
town of Marietta, Georgia, Jack Hensley, was beheaded, cruelly 
beheaded without any right of habeas corpus.
    So therefore, I don't feel, I certainly don't feel we need 
to take the additional unprecedented step of allowing foreign 
terrorists, not prisoners of war, but foreign terrorists, enemy 
combatants that were detained not because they were jaywalking 
or spitting on the sidewalk. Indeed, one of these terrorists 
that was released just last week, Abdullah Mehsud, was released 
after the review commission decided that maybe he was no longer 
a threat, but went back and rejoined the fight. And when he was 
cornered, he blew himself up.
    So the difference between the way we treat our detainees 
and the way our enemy does could not be greater. Simply 
restoring habeas corpus privileges for terrorists or closing 
GTMO is not the answer. What it is is throwing the baby out 
with the bath water.
    Back to allowing foreign terrorists access to our judicial 
system, let me point this out. Between July 2004 and early 
2005, the Department of Defense conducted 528 CSRTs, combatant 
status review tribunals, resulting in 38 determinations of no 
longer enemy combatant. Further, the administrative review 
board process is conducted annually. It is done every year to 
consider whether an enemy combatant should remain detained.
    After the first two cycles, there were 14 decisions to 
release. And there are now 83 more detainees approved for 
release. Does this not indicate--and this is my question--that 
there is a review process in place outside of habeas petitions 
for evaluating the status of detainees and their detention, 
which, by the way, goes beyond the Geneva Conventions, which do 
not bestow rights to challenge detention or the opportunity to 
be released as this thug was, Abdullah Mehsud prior to the end 
of hostilities?
    Mr. Keene. This was directed at me, I believe. And I think 
first of all I should point out, as I have said repeated here, 
I am not in favor of closing Guantanamo Bay. I don't think the 
question has anything to do with whether Guantanamo is open or 
closed or whether they have exercise facilities or whether they 
have good food. That is nice that they do.
    We treat prisoners, prisoners of war, and our criminals 
better than do most nations. That is a different question.
    The question is is there an independent way to determine 
whether or not people actually belong there. We refer to them 
all as terrorists. We refer to them all as hostile enemy 
combatants. Do we know that? And that is the question. That is 
the threshold question that these things have to answer.
    Initially we didn't do much at all. The system that we have 
in place now was a response to the court's criticism of that 
and saying that you have got to do something. So the question 
is not whether we are doing anything. And obviously we are 
doing more than we did before. We are maybe doing more than 
some other country would do.
    That is good. The question is is that the best way to make 
that determination. And the difference between habeas and the 
others is something that one of the other Members of Congress 
raised earlier. And that is that it is independent. It is not 
asking the person in charge of doing it whether they are doing 
the right thing.
    So I think we can do it better. I think that the 
Administration and the people in charge of Guantanamo Bay have 
moved admirably. But the question is whether we are confident 
that that threshold question is being answered.
    Do we know and is there a fair way to determine whether all 
the people there belong there? It is not a question of how they 
are treated once they are there. It is a question of whether 
they belong there because many of these people were not picked 
up on the battlefield.
    The Defense Department itself----
    Dr. Gingrey. Mr. Chairman, I thank you for your indulgence 
in the time for both me and the witness. I yield back.
    The Chairman. Okay. Thank you so much.
    Mr. Murphy from Pennsylvania.
    Mr. Murphy. Thank you, Mr. Chairman.
    Gentlemen, thank you all for your testimony today and for 
being here. I am Patrick Murphy from the Eighth District of 
Pennsylvania. Before I came in Congress, I used to be a 
professor at West Point. And I used to teach constitutional 
law.
    And in 2002, I was fortunate enough to lead the cadet team 
for the first ever law of war competition. It was all the 
military academies throughout the world. It was being held in 
San Remo, Italy.
    And about the third day of the week-long course and 
competition, a cadet from Belgium grabbed me, and she pulled me 
aside. She said, ``Captain Murphy, can I see you, talk to you 
in private?'' I said, ``Sure.''
    And she had this look on her face that I will never forget. 
And she said to me, she said, ``Captain Murphy,'' she said, 
``why doesn't America give Article 5 hearings to those 
detainees in Guantanamo Bay?'' And I had to look at her, and I 
had no real legitimate answer.
    I said, ``I don't know why. I don't know why.'' And it 
wasn't until 2004 until the United States Supreme Court stepped 
in that forced this Administration to allow detainees at 
Guantanamo Bay to at least look at and challenge their 
detainment. And since the combatant status review tribunal, the 
CSRT, was instituted, every detainee in Guantanamo Bay has been 
through the CSRT process.
    And from the statistics that I have seen, in over 550 CSRTs 
conducted by the Department of Defense, the detainees' enemy 
combatant status is being reaffirmed 93 percent of the time. So 
my question is first to the panel, but first to Colonel 
Abraham.
    And, sir, thank you for your service to our country and for 
standing up like you are. Do you think that the CSRT process is 
in line with the letter and the spirit of Article 5 of the 
Geneva Convention?
    Mr. Abraham. Thank you very much, sir, for your comments. 
It is not.
    Both in looking at the percentages, the 93 percent 
affirmed, the annual reviews, of the 38 non-enemy combatants 
and of the large number of individuals who have been alleged to 
have been released and then returned the battlefield, the one 
message that comes through with clear resonance is that the 
process achieved arbitrary results. By that I mean are there 
certain terrorists at Guantanamo.
    Absolutely. I followed one of them for a year during my 
duties in the Pacific theater. I know about him. I know what he 
has done. And he should be there for the rest of his life.
    Are there people who did nothing? Absolutely. But between 
those two extremes there is a chasm in which we have filled the 
bodies, in excess of 500 bodies. And that is all they are. What 
they have been reduced to are statistics.
    They were processed through a system that was, as you 
rightly point out, not the Article 5 proceeding. Because the 
presumption was under Article 4 that they didn't need that 
level of protection, we didn't need that level of protection 
for them.
    The annual review process does not deal with the same 
question, the validity of their detention. Rather it deals with 
the two questions that are completely different: are they any 
longer a threat to the United States and is there any more 
intelligence value or some other reason why we should keep 
them. We lost sight in all of that process of the first 
question that we as a part of OARDEC involved in the CSRT 
process were charged to answer to the best of our abilities: 
should they be there in the first place.
    Mr. Murphy. Thanks, Colonel.
    Gentlemen, could you please respond as well?
    Mr. Keene. I think that he has pretty much nailed it.
    Mr. Murphy. I would agree.
    Mr. Oleskey. I agree.
    Mr. Philbin. I will respond to a couple points. Article 5 
tribunals were not required because al Qaeda is not a signatory 
GPW. So those who were detained who were al Qaeda were not 
entitled to that. And----
    Mr. Murphy. Well, actually, sir, it is actually the term 
whether or not someone is a lawful combatant or an unlawful 
combatant. I would agree with you that al Qaeda is an unlawful 
combatant because they don't adhere to the same rules that our 
professional soldiers do. But I would argue that that is 
exactly the premise behind the Article 5 hearing, to determine 
that.
    Mr. Philbin. The Article 5 hearing is to determine POW 
status. And POW status can only be for those who are 
signatories.
    Mr. Murphy. Right. And the argument that you and I will 
probably have is that just because Secretary of Defense 
Rumsfeld or whoever it was in charge said they are all al 
Qaeda, they are all unlawful combatants, that is not for him to 
decide. That is not for him to decide. And that is exactly why 
we have the United States of America signing on to these 
international agreements, to lead the world, to show them that 
we believe in the rule of law.
    Mr. Philbin. Well, I disagree with the representative on 
whether or not it can be determined. It was determined by the 
President himself that, given their tactics, their failure to 
use uniforms, that the Taliban generally were not entitled to 
POW status.
    But in any event, as to the CSRTs, do they comply with 
Article 5? Again, I dealt when I was in the government at the 
policy level. I didn't sit on a CSRT. But in terms of the way 
the CSRTs are structured, they provide more process, they 
provide more protections than Army Regulation 190-8, which is 
what is used to comply with GPW Article 5. So as a matter of 
how the system is set up, it is set up to comply, more than 
comply with Article 5.
    The Chairman. I thank the gentleman.
    We have four members who have not asked questions. We have 
a second panel waiting. So let us proceed.
    Ms. Castor.
    Ms. Castor. Thank you, Mr. Chairman.
    And thank the gentlemen.
    And, Mr. Abraham, thank you for your 22 years of service as 
a military intelligence officer.
    Mr. Abraham. Thank you, ma'am.
    Ms. Castor. Regardless of how folks feel about the closure 
of Guantanamo, we are out to find out the truth here. And I 
think that, regardless of your political stripes, that is the 
intention of this committee.
    Mr. Abraham, in your testimony you state that these CSRTs 
and the whole process was designed not to ascertain the truth, 
but to legitimize the detention. The process was nothing more 
than an effort by the executive to ratify its exercise of power 
to detain anyone it pleases.
    You say the system was designed to fail. The combatant 
status review tribunal panels were an effort to lend a veneer 
of legitimacy to the detentions, to launder decisions already 
made. The CSRTs were not provided with the information 
necessary to make any sound fact-based determinations. Instead, 
the Office for Administrative Review, the leadership there, 
exerted considerable pressure and was under considerable 
pressure itself to confirm prior determinations.
    I would like you to go a step further than your answer to 
Chairman Skelton on where the pressure came from, explain the 
command influence in greater detail and how the chain of 
command--who was in the chain of command, and how far up did it 
go, in your experience.
    Mr. Abraham. I can't speak ultimately as to how far it 
went. My experiences stopped with Rear Admiral McGarrah. But 
above me and beside me were were commanders, two of them JAG 
officers with whom I consulted on a daily basis. We dealt with 
the issues of evidence and of the law applying it to the 
proceeding.
    I asked them questions and got their feedback to my 
concerns. There were then two captains, Navy captains, the 
equivalent of an Army full colonel, above me in the leadership 
chain, one, the assistant to the deputy and one the deputy 
director. And these individuals were essentially the 
intermediate level of command between, so to speak, myself or--
and I don't want to imply that I was in any position of 
command--but between me and Admiral McGarrah.
    In terms of the specific pressure that was applied to this 
process and as it specifically applied to me, I was directly 
cast to gather information and to validate the existence or 
non-existence of exculpatory evidence. I went to one particular 
agency and said, ``Where is the evidence?'' They literally put 
a laptop in front of me and said, ``This is all you get to look 
at. We did the search for you. Accept that what we have given 
you is all there is.''
    I went back and I said, ``I cannot perform this mission.'' 
That is, specifically, I can tell you that I went to the 
agency. I can tell you they showed me things. And I can tell 
you what I said. But I can give you no independent basis for 
concluding, one, that there is or is not exculpatory evidence 
or that I have satisfied your charge to me. I was told, ``That 
is fine. That is all you need to do.''
    That, however, was not my charge. But where it specifically 
came to bear was when I sat on a CSRT and I looked at the very 
same kind of evidence, so to speak, that I had seen for months. 
And not only I, but the other members of the panel said, ``This 
is garbage.''
    And as a matter of fact, when we looked at direct 
statements that came from interrogators, where they said, ``Our 
conclusion as to the facts is that this individual was involved 
in activities,'' and we said, one, ``That is not even a 
rational conclusion that you could reach, but, two, we have no 
reason for presuming the validity of that,'' we were told, 
``You have to accept that as true.''
    The presumption is it is true, it is valid. And when we 
asked questions, we were told more time should be allowed for 
them to get the answers. And the answers didn't come.
    And we concluded that the individual was not an enemy 
combatant. We were told, ``Keep the hearings open so that they 
can come back.'' We were told, ``Reconsider when there is other 
residents.''
    Ms. Castor. And then ultimately you were not asked to 
return to a tribunal panel.
    Mr. Abraham. That is correct. What I found--in fact, I 
didn't even know that the individual received another panel's--
was involved in another hearing.
    Ms. Castor. Did they have similar interest when there was a 
determination that they qualified as an enemy combatant?
    Mr. Abraham. Absolutely not, Madam Representative.
    Ms. Castor. And who did Captain Sweigart and Admiral 
McGarrah report to?
    Mr. Abraham. My understanding is that--and, again, I may be 
off as to the number of steps. But Secretary England was within 
that chain of command.
    The Chairman. I thank the gentlelady.
    Mr. Courtney.
    Mr. Courtney. Thank you, Mr. Chairman. I just want to 
follow up that line of questions.
    When panel 23 reached its conclusion, and then was told to 
look again, and then panel 32 was convened and just overruled 
or contradicted your findings, how did OARDEC do that? I mean, 
did they reconvene the second panel because of their guidelines 
that you mentioned in earlier testimony? I mean, what is the 
authority they have to just reconstitute a second panel?
    The Chairman. Would the gentleman suspend for just a 
moment?
    As I understand it, Mr. Philbin has a prior commitment and 
must leave. Am I correct?
    Mr. Philbin. Yes, sir.
    The Chairman. We appreciate your being with us this long.
    Mr. Philbin. Thank you.
    The Chairman. Thank you so much.
    Mr. Philbin. Thank you, Mr. Chairman.
    The Chairman. Please proceed.
    Mr. Abraham. If I may, sir, I knew of no authority for 
holding a second CSRT or what has been referred to as a redo. I 
do know, my understanding based upon my reading of the 
procedures and as they were applied, was that each individual 
got a CSRT. The statement being no matter what happens as to 
that outcome, that is, if they continue to be detained, if they 
are identified as enemy combatants or an unlawful enemy 
combatant, in the ARB process we will smooth over any problems.
    I had never heard of a redo. I was not only shocked much 
later to have learned of it, but surprised as to its results 
because the information that we were given I had known from my 
experience working with it, and not just working with it 
through OARDEC, but in the years that I have worked with 
information from various agencies, very detailed and specific 
information contrasting that to what I saw, there was no way 
that our board could reach any other conclusion.
    It wasn't a close call. And we weren't giving the benefit 
of the doubt to small holes in the evidence. It simply didn't 
even rise to the level of evidence.
    So I didn't understand from two aspects how this happened. 
One, procedurally, I had never heard of it and never saw a 
basis for it. And two, the evidence simply was not there when 
that CSRT was scheduled.
    It is important to note, however, because I think one of 
the things you touch upon in your question is the fact that in 
many respects, the CSRT panel is merely advisory because the 
rules that instituted the CSRT procedures give the director of 
OARDEC the absolute authority to disregard the findings and 
recommendations. Essentially the judgment of the tribunal 
becomes little more than the findings and recommendations that 
a magistrate that a judge can accept or reject.
    Mr. Courtney. I am sorry Mr. Philbin had to leave because 
he actually just finished praising the structure of CSRTs. And 
it is hard to see how a structure that basically says the whole 
process can just get trumped by someone who is not even within 
that tribunal process or an independent magistrate just doesn't 
comport with any structure of any kind of independent judicial 
review that I have ever heard of.
    Mr. Abraham. If I may, there is a saying in the military 
repeated by everybody. I think they are born knowing it: ``It 
is the doctrine, not reality.'' It is a recognition of the 
dichotomy between what we are taught in class and what is 
applied on the field.
    In the instance of the CSRTs, there was no such dichotomy. 
It wasn't as if there was a procedure that anyone in the 
trenches disobeyed. And that much should be made very, very 
clear.
    Talking about the qualifications, the personal 
representative only had to be a major, no other qualifications. 
That was it. The recorder only had to be a captain equivalent, 
an O-3. And that was it.
    They were required to faithfully discharge their duties. 
And to the best of their abilities, I think they did.
    The fundamental flaw was in the fact that OARDEC was not an 
embedded consumer of intelligence or information. It was a 
stranger to most of these agencies making requests when it 
could, giving very little time to get meaningful responses from 
them, and physically constrained by the necessary limitations 
that involved the use of sensitive intelligence products.
    In other words, when they were handed a diluted, watered 
down, summarized statement that might or might not even apply 
to the individual, it was the best they got. It was all they 
had.
    In the case of our board, we said, ``That is not to justify 
holding somebody perhaps for the rest of their life.'' To our 
mind, to reach any other conclusion would have validated what 
we would then have had to have regarded as an arbitrary 
process, a game of spin the wheel.
    Mr. Courtney. All right.
    I yield back, Mr. Chairman.
    The Chairman. I thank the gentleman.
    Ms. Giffords.
    Ms. Giffords. Thank you, Mr. Chairman. I appreciate the 
opportunity to have such a distinguished group of panelists. 
And I find the discussion absolutely fascinating.
    When you think about whether or not the people that are 
being held at Guantanamo Bay should be issued habeas corpus, it 
really cuts to the core of who we are as a nation and our 
status internationally. I think that it is a difficult 
discussion. But I also think it is tempting to think about 
restricting detainees' rights just because of the fact of who 
they are, and the fact that we have military expediency, that 
always seems to take over and to take command of the situation.
    I mean, after all, I look at the attorneys who are 
representing these individuals. And many of these individuals 
who are currently being held don't believe in the very legal or 
justice system that we have here in this country. And perhaps, 
if given the opportunity, they would destroy it or have 
attempted to destroy the values that we think are so important 
here in this Nation.
    But I also think that the lack of appropriate habeas corpus 
really undermines our standing internationally. And I think 
about how we are going to fight this global war against radical 
idealism, whether they are Jihadists or Muslim extremists or 
other types of extremists. And I think our reputation as a 
nation in terms of justice, and our commitment to freedom, is 
really important.
    The more we have discussions like this, and the more that 
people are internationally concerned about what is happening, I 
think that we drive away potential allies. And for those 
radical individuals that may be on the fence, I think that we 
are losing people.
    So my question is to Colonel Abraham. Giving fair trials to 
360 detainees at Guantanamo, I don't believe, could possibly be 
more dangerous to our national security than to the thousands 
of individuals, perhaps young Muslims, who are aspiring to hate 
us based on what they see happening. In your opinion, based on 
your experience with the CSRT and the intelligence community, 
do you believe that the situation in Guantanamo currently is 
reducing or increasing the overall violence and hatred toward 
the United States?
    Mr. Abraham. Although this is purely my personal opinion, I 
think it makes tremendously difficult both the military and 
political aspects of what we do. One of the assignments that I 
had long before I came to work, either at Pacific Command or 
with OARDEC, was as a member of a psychological operations unit 
and military organization specifically designed to go out and, 
as we like to remind ourselves, win the hearts and minds of 
individuals, both in wartime and in peace.
    Most of those individuals are reservists. It is largely a 
Reserve function, the way that it is constructed.
    It has been tremendously difficult as I have seen it to get 
across a message. And it is a message based on an interesting 
paradox. On the battlefield when an enemy faces us with his 
gun, we can kill him. Yet the moment he raises his hand and 
drops his gun, we have to protect him.
    He may not understand the distinction between those two 
moments. But it is important enough that we do.
    As we sat at OARDEC dealing with these questions, it wasn't 
important that somebody else know the difference between the 
rule of law and lawlessness, the difference between those who 
would destroy our country and those that support our country. 
The question was whether we understood the difference.
    I think most of the people at OARDEC did. But I think the 
system in which they worked made it impossible to find a 
meaningful distinction between those two sides of the line.
    Ms. Giffords. And, Colonel, given just what you said, how 
would you personally recommend implementing habeas corpus or 
another appellate system to reduce the rate at which we have 
this conflict and perhaps a misconception, reduce the ability 
to radicalize our enemies, but also not provide for these folks 
to basically be able to talk their way out of prison?
    Mr. Abraham. I can't speak ultimately for the effect of 
habeas or some other proceeding. There are eminent experts 
surrounding me to my left, my right, my front, even my rear 
that know better about that. But I think we begin when we do 
what the CSRTs and OARDEC were charged to do, find the truth, 
find the truth as to these individuals.
    When you take away the generalizations and the claims and 
the categorizations and the ease with which you can put 
somebody in a broad, sweeping stroke into one category or 
another, decide they are terrorists and keep them in Guantanamo 
for the rest of their lives--when you stop that by first 
examining the truth as we were charged to do, I think you take 
away the fertilizer from that tree of which you speak.
    The Chairman. I thank you.
    Ms. Giffords. Thank you.
    The Chairman. The gentlelady. I have remaining Ms. Shea-
Porter and Mr. Cummings who have not asked questions. And when 
they have finished, we will then go to the second panel.
    Ms. Shea-Porter.
    Ms. Shea-Porter. Thank you, Mr. Chairman. I think we have 
heard some people who have confused safety with this Nation 
with habeas corpus. I, too, worry about the danger this Nation 
faces. But that does not mean that we can't have habeas corpus.
    John Adams said that we were a nation of laws, not men. And 
I am afraid that we have gotten that confused.
    But what really concerns me are the statements coming from 
our friends. And so, I would like to quote a BBC news security 
correspondent talking about the report that came out and was on 
BBC News yesterday about the U.S./U.K. relationship: Dilemmas 
Revealed in U.S./U.K. Relationship. Intelligence and security 
committee report had this to say.
    The IST report reveals aspects of the usually close Anglo-
American intelligence relationship that are surprising and 
concerning. These tensions have centered on the evolving U.S. 
policy of rendition, the transferring detainees from one 
country to another, in some cases to stand trial, in other 
cases to U.S. military detention or even to third countries for 
interrogation and to alleged mistreatment.
    This policy has meant that for British intelligence, 
ethical dilemmas are not confined to countries with poor track 
records on human rights. The United Kingdom now has an ethical 
dilemmas with our closest allies because of very different 
legal guidelines and ethical approaches.
    This should horrify all of us, all of us good Americans who 
understand what our role has been in this world, to be 
embarrassed that the United Kingdom is concerned about some of 
our practices. We are supposed to be the beacon of light and 
freedom in this world.
    Mr. Oleskey, I would like to ask you a couple of questions. 
You were talking about your client 24/7 in his cell.
    Mr. Oleskey. Yes.
    Ms. Shea-Porter. Okay. That is against everything we 
understand about human rights. That is the kind of stuff that 
we read about in newspapers or in books and they talk about 
some other government, not ours. Would you like to talk a 
moment about that? And then I have a couple of other questions 
to ask.
    Mr. Oleskey. Yes. It is a man named Saber Lahmar, who is 
one of my six clients from Bosnia. I can't tell you why he is 
there because no one in the system will tell me. I have written 
letters. I have asked that he be released from solitary. The 
last time I was able to see him last fall he told me he was 
hearing voices.
    I have tried to get him medical attention. I have tried to, 
in every way I can. But without access to habeas, there is no 
way for anybody to pass upon why he is there at all, much less 
why he should be punished in this fashion.
    But I am very concerned about because I think he is--I am 
losing him. And I can't even talk to him about it because he 
seems to have lost the ability to leave his cell and talk to 
anyone.
    Ms. Shea-Porter. I don't think any American would approve 
of somebody being kept 24/7 in darkness like that, especially 
without hearing what the story was.
    Mr. Oleskey. Actually, it is worse than darkness. He has a 
light on 24 hours a day, so he never knows when it is day and 
when it is night.
    Ms. Shea-Porter. These are the kinds of stories that my 
father told me about why our Constitution was so wonderful, 
because we were protected from this kind of activity.
    I wanted to ask you a couple of questions.
    And I had one to ask Mr. Philbin, and I hope that he will 
answer in writing to me.
    Some of these people were not picked up on a battlefield.
    Mr. Oleskey. Yes, in fact, it appears that it is not 
disputed that the majority was not picked up on a battlefield 
as it would be defined by anybody, unless we define the whole 
world as a battlefield.
    Ms. Shea-Porter. Yes. Right. So they are not technically 
enemy combatants.
    Mr. Oleskey. Not as I would view it.
    Ms. Shea-Porter. Okay. They can't see all the evidence. 
Some is classified.
    Mr. Oleskey. They can't see most of the evidence because 
most of what the panels are shown, in my experience, is 
classified, not unclassified. And I am sure Colonel Abraham 
from what he said would agree.
    Ms. Shea-Porter. Who determines what is classified and what 
is not?
    Mr. Oleskey. People in the military, people in civilian 
intelligence.
    Ms. Shea-Porter. So we don't know who really determines 
that. And we don't know what evidence is----
    Mr. Oleskey. That is correct. And I can't tell you what 
evidence--I can't even discuss classified evidence, much less 
whether I have seen at all.
    Ms. Shea-Porter. How is a personal representative chosen?
    Mr. Oleskey. As I understand it, the personal 
representatives were not to be lawyers. And so, they were 
chosen by the command structure as non-lawyers, as Colonel 
Abraham said, relatively low rank in the officer corps. In my 
experience, they did not function as advocates at all.
    Ms. Shea-Porter. And one last question. How did they go 
from combatant to no longer an enemy combatant? Whatever 
happened to innocent or guilty?
    Mr. Oleskey. That is a very good question. I would note 
that in the first Gulf War when this Article 5 process was used 
on the battlefield, the numbers of people who were screened out 
as not military, civilian, you go home was 70 percent.
    At Guantanamo, as you have heard this morning, it was 10 
percent. That is because, in my view, the process was applied 
three years after the battlefield, and it is a battlefield 
process. It is not a process designed to be used after the 
fact, especially long years after the fact.
    Ms. Shea-Porter. Thank you.
    The Chairman. I thank the gentlelady.
    Mr. Cummings.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    I want to thank our witnesses for being here. I am the last 
questioner. All of you, I thank you for standing up for what 
you believe in.
    And, Mr. Abraham, as I listened to your testimony, I could 
not help but say to myself that this is truly a brave man.
    And all of you, standing up for what you believe in.
    And I also thought about the fact that I heard a number of 
concerns about inconvenience. You know, if it were for the 
inconvenience of the courts, I wouldn't be sitting here today. 
I mean, when you think about all the cases that have been 
brought by Thurgood Marshall and so many others, if 
inconvenience was the standard for not doing something, not 
hearing cases, I wouldn't be here today.
    But one of the things that concern me, Mr. Abraham, was 
something that you said that. I am having trouble as a lawyer 
dealing with this enemy combatant status. And perhaps the other 
two witnesses can talk about this, too.
    When I heard what you said about what happens from the 
beginning, that is, that exculpatory evidence--I mean, what you 
witnessed, what you said you witnessed, it seems like some of 
these folks should have never been picked up from the 
beginning. And that seems to taint almost everything down the 
line.
    And then when I hear you, Mr. Oleskey, say that you don't 
have to be picked up on the battlefield, that makes me wonder, 
too. And then I wondered about this so-called war on terror. 
Does that then give every single inch of the world--I mean, 
anybody can be picked up, considered an enemy combatant 
wherever they may be found, anywhere in the world? Because when 
we say war on terror, that is pretty broad.
    And I am just wondering, would you all comment on those 
things?
    Mr. Abraham. I can, if I may, sir. One of the problems is 
that we think of war in the traditional sense, and we say we 
know where the battlefield is. Well, let us take a very 
specific example of an individual who is in Guantanamo. He is 
identified by the name Haballi. He was the head of Gamaz 
Lamyia.
    We had been watching him for years. The South Pacific was 
his battlefield from Indonesia up the peninsula to Thailand. He 
gave little regard to the notions of even what was going on in 
the Middle East.
    In that sense, he created his battlefield. The battlefield 
itself is not the problem and has never been a problem for the 
intelligence community in dealing with its relationship with 
the legal questions, the Article 4 and Article 5 questions.
    That was never a concern. When I go to an intelligence 
agency, and I ask it the question, ``What are the circumstances 
of this individual's capture, what are the circumstances of his 
activities, do you have any evidence relating to the question 
of whether or not--he didn't do any of those things?''
    They don't come to me and say, ``Gee, Colonel Abraham, he 
wasn't really found on a battlefield.'' It is not a meaningful 
question. So that was never a problem of where the individual 
came from.
    In my mind, the question squarely before us was what 
evidence do you have of what he did, whether he moved money, 
whether he fired a gun, whether he trained terrorists, or 
whether he was sent by his wife to get a gallon of milk. The 
answer to that question was the most important piece of 
information in this process. And whether it came from a highly 
classified source or somebody saying, ``Yes, I sent him, and 
between that chore, he had other chores,'' those are probative 
pieces of evidence.
    Mr. Cummings. And assuming that kind of information was 
lacking, Mr. Oleskey, I guess, they would almost have to let 
your client go, is that right, under habeas?
    Mr. Oleskey. They would have to let my client go, in my 
view, if they looked at all the evidence. As the colonel is 
pointing out, they didn't see much of the evidence.
    And we filed with the military, as a result of doing our 
own review, a lengthy document, 128 pages, where we pointed out 
that these 6 men, who are said to be commonly linked in a 
conspiracy, had in one of their CSRTs somebody sent in after a 
CSRT in the system, somebody in the system, something they said 
was exculpatory. And that panel said, ``No, we have already 
closed the books.''
    And nobody in the chain of command said, well, if these men 
were all supposed to be part of a common plot and somebody in 
the military thinks that whatever this information is could be 
exculpatory, it must relate to all of them potentially, not 
just to this one. But it wasn't shown to any of the other five 
panels.
    And you talk about the expansion of this doctrine under the 
Military Commission Act of withdrawing habeas corpus. Mr. al-
Marri was a student at Bradley University. Mr. Padilla stepped 
off a plane in Chicago.
    So this doctrine that if you label anyone a combatant you 
can take them anywhere in the world, not just off a battlefield 
in Bosnia, but in the United States, has been greatly expanded 
by this Administration. I think that the muscle the chairman's 
bill puts back in this to circle around to where we were would 
help stop what many people regard as some of those excesses.
    Mr. Cummings. Thank you all very much.
    The Chairman. Thank you. I thank the gentleman from 
Maryland.
    And again, thanks to this panel. It has just been 
excellent. We appreciate your expertise.
    We will now go to our second panel. We will give them time 
to enter the room.
    Again, thank you, gentlemen.
    The gentlelady from New Hampshire is to submit some 
additional questions for the last panel. And without objection, 
that will be so ordered. Just submit them in. We will make sure 
that they receive those. Thank you very much.
    The second panel, Mr. Daniel Dell'Orto, principal deputy 
general counsel for the Department of Defense; Mr. Gregory 
Katsas, principal deputy associate attorney general of the 
United States. And with us also is Rear Admiral James McGarrah, 
retired, director of the Office for Administrative Review of 
the detention of enemy combatants from 2004 to 2006. And he is 
here to answer questions as well.
    As I understand, Mr. Dell'Orto and Mr. Katsas will make 
presentations.
    And, Admiral, you will just be available. Am I correct in 
that?
    Mr. McGarrah. Yes, sir.
    The Chairman. Well, thank you very, very much.
    Mr. Dell'Orto.
    Mr. Dell'Orto. Thank you, Mr. Chairman.
    The Chairman. First, let me say that any prepared remarks 
will be placed into the record en toto. And if you could 
condense your comments, that would help us. Thank you.
    Mr. Dell'Orto.

  STATEMENT OF DANIEL J. DELL'ORTO, PRINCIPAL DEPUTY GENERAL 
              COUNSEL, U.S. DEPARTMENT OF DEFENSE

    Mr. Dell'Orto. Again, thank you, Mr. Chairman, members of 
the committee for the opportunity to testify before you today 
regarding individuals detained by the Department of Defense as 
unlawful enemy combatants.
    The United States is in a state of armed conflict with al 
Qaeda, the Taliban, and its associated forces. During this 
conflict, persons have been captured by the United States and 
its allies. And some of those persons have been detained as 
enemy combatants.
    The United States is entitled to hold these enemy combatant 
detainees until the end of hostilities. The principle purpose 
of this detention is to prevent the persons, those persons, 
from returning to the battlefield, as some have done when 
released.
    Detention of enemy combatants in wartime is not criminal 
punishment, and therefore, does not require that the individual 
be charged or tried in a court of law. It is a matter of 
security and military necessity that has long been recognized 
as legitimate under international law.
    In Hamdi v. Rumsfeld, the Supreme Court confirmed this 
principle of international law and held that the United States 
is entitled to detain enemy combatants, even American citizens, 
until the end of hostilities, in order to prevent the enemy 
combatants from returning to the field of battle and again 
taking up arms. The court recognized the detention of such 
individuals is such a fundamental and accepted incident of war 
that it is part of the necessary and appropriate force that 
Congress authorized the President to use against nations, 
organizations, or persons associated with the September 11th, 
2001, terrorist attacks.
    The U.S. relies on commanders in the field to make the 
initial determination of whether persons detained by United 
States forces qualify as enemy combatants. And we have done 
this throughout our history.
    Since the war in Afghanistan began, the United States has 
captured, screened, and released approximately 10,000 
individuals. Initial screening has resulted in only a small 
percentage of those captured being transferred to Guantanamo. 
The United States only wishes to hold those who are enemy 
combatants and who pose a continuing threat to the United 
States and its allies.
    In addition to the screening procedures used initially to 
screen detainees at the point of capture, the Department of 
Defense created two administrative review processes at 
Guantanamo in the wake of the Hamdi and Rasul cases: Combatant 
Status Review Tribunals, CSRTs, and Administrative Review 
Boards, ARBs. The CSRT and ARB processes provide detainees with 
a measure of process significantly beyond that which is 
required by international law.
    The CSRT is a formal review process created by the 
Department of Defense, and incorporated into the Detainee 
Treatment Act of 2005 that provides the detainee with the 
opportunity to have his status considered by a neutral 
decision-making panel composed of three commissioned military 
officers sworn to execute their duties faithfully and 
impartially. The CSRTs provide significant process and 
protections, building upon procedures found in Army Regulation 
190-8.
    The Supreme Court specifically cited these Army procedures 
and that regulation as sufficient for U.S. citizen-detainees 
entitled to due process under the United States Constitution. 
The CSRT guarantees the detainee rights notable beyond those 
provided by an Article 5 tribunal.
    In addition to the opportunity to be heard in person and to 
present additional evidence that might benefit him, a detainee 
can receive assistance from a military officer to prepare for 
his hearing and to ensure that he understands the process. This 
personal representative has the opportunity to review the 
government information relevant to the detainee.
    Furthermore, a CSRT recorder is obligated to search 
government files for evidence suggesting the detainee is not an 
enemy combatant and to present such evidence to the tribunal. 
Moreover, in advance of the hearing, the detainee is provided 
with an unclassified summary of the evidence supporting his 
enemy combatant classification.
    Every decision by a tribunal is subject to review by a 
higher authority, empowered to return the record to the 
tribunal for further proceedings. In addition, if new evidence 
comes to light relating to a detainee's enemy combatant status, 
a CSRT can be reconvened to reevaluate that status.
    In addition to the CSRT, an ARB conducts an annual review 
to determine the need to continue the detention of those enemy 
combatants not charged by military commission. The review 
includes an assessment of whether the detainee poses a threat 
to the United States or its allies, or whether there are other 
factors that would support the need for continued detention, 
intelligence value, as an example.
    Based on this assessment, the ARB can recommend to a 
designated civilian official that the individual continue to be 
detained, be released, or be transferred. The ARB process also 
is unprecedented and is not required by the law of war or by 
international or domestic law. The United States created this 
process to ensure that we detain individuals no longer than 
necessary.
    In Rasul v. Bush, the Supreme Court ruled that the federal 
habeas corpus statute applied to Guantanamo and therefore, 
federal courts have jurisdiction to consider habeas challenges 
to the legality of the detention of foreign nationals at 
Guantanamo. The court accordingly held that aliens apprehended 
abroad and detained at Guantanamo Bay, Cuba, as enemy 
combatants could invoke the habeas jurisdiction of a district 
court. Of course, there is not and has never been a 
constitutional habeas right that attaches in this setting.
    In the Detainee Treatment Act of 2005, Congress established 
additional procedural protections for future CSRTs and provided 
for judicial review of final CSRT decisions regarding enemy-
combatant status in the U.S. Court of Appeals for the District 
of Columbia Circuit. At the same time, Congress foreclosed the 
Guantanamo detainees from pursuing alternative avenues of 
judicial review, including through statutory habeas corpus. The 
Military Commissions Act of 2006 made the provisions providing 
for judicial review of final CSRT decision and foreclosing 
statutory habeas expressly applicable to pending cases.
    The DTA and the Military Commissions Act permit the D.C. 
Circuit to review CSRT determinations of detainees at 
Guantanamo. Traditional habeas review in alien-specific 
contexts involved, in general, review of questions of law, but 
other than the question of whether there was some evidence to 
support the order, the courts generally did not review the 
factual determinations made by the executive.
    However, under the Detainee Treatment Act, or DTA, to the 
extent an alien-petitioner has concerns about the legal 
adequacy of the CSRT standards and procedures used to make an 
enemy combatant determination, he may squarely raise those 
concerns and have them adjudicated in the court of appeals. 
Further, the court of appeals' review involves an assessment by 
that court of whether the CSRT, in reaching its decision, 
complied with the requirement that the conclusion of the 
tribunal be supported by a preponderance of the evidence. 
Providing review of an enemy combatant determination in a 
nation's own domestic courts is an unprecedented process in the 
history of war.
    As some of you know, the Department has filed motions to 
dismiss all habeas cases brought by detainees at Guantanamo 
Bay. Under the MCA, and as affirmed by the D.C. Circuit in 
Boumediene, the appropriate venue for detainee challenges to 
the lawfulness of their detention is in the D.C. Circuit. As 
you also may be aware, the Supreme Court recently granted 
certiorari to review the Boumediene decision. We look forward 
to presenting our argument to the court in the fall and are 
confident in our legal position, as upheld by the D.C. Circuit.
    Extending statutory habeas to aliens held at Guantanamo Bay 
is both unnecessary and unwise. Together, Congress and the 
President developed the Detainee Treatment Act and the Military 
Commissions Act. Those statutes, which were passed with 
bipartisan majorities, along with the CSRT and ARB processes, 
represent the result of the combined wisdom of the President, 
the Congress, and numerous military and civilian personnel, 
applied to the Nation's accumulated experience in fighting an 
entirely new kind of war.
    They seek to provide justice, fairly and lawfully 
administered, while safeguarding the security of the American 
people. To discard this system, or any element of it, would be 
to ignore wisdom and experience. And doing so would do a 
disservice to the American public.
    Thank you, Mr. Chairman. And I await your questions.
    [The prepared statement of Mr. Dell'Orto can be found in 
the Appendix on page 176.]
    The Chairman. Thank you, sir, for being with us.
    Mr. Katsas.

  STATEMENT OF GREGORY G. KATSAS, PRINCIPAL DEPUTY ASSOCIATE 
          ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Katsas. Mr. Chairman, members of the subcommittee, 
since September 11, 2001, the United States has been engaged in 
an armed conflict unprecedented in our history. Like past 
enemies we have faced, al Qaeda and its affiliates possess both 
the intention and the ability to inflict catastrophic harm on 
this Nation. But unlike past enemies, al Qaeda forces show no 
respect for the law of war as they direct attacks primarily 
against civilians.
    In one day, they destroyed the World Trade Center, severely 
damaged the Pentagon, and inflicted greater casualties than did 
the Japanese at Pearl Harbor. They are actively plotting 
further attacks.
    To prevent such attacks, the United States is detaining 
selected members of al Qaeda and the Taliban at a military base 
leased by the United States at Guantanamo Bay, Cuba. Each of 
those detainees has received a hearing before a CSRT. These 
CSRTs afford detainees more rights than ever before provided 
for wartime status determinations.
    They also afford more rights than those deemed by the 
Supreme Court to be appropriate for American citizens detained 
as enemy combatants on American soil. And they afford more 
rights than those given for status determinations under the 
Geneva Convention.
    Congress has recently provided the detainees with even 
greater protections than that. In the Detainee Treatment Act, 
Congress prohibited the government from subjecting detainees to 
inhumane and degrading treatment, established additional 
protections for future CSRTs, and guaranteed judicial review of 
final CSRT decisions and final criminal convictions before 
military commissions.
    At the same time, Congress barred the detainees from 
seeking judicial review through habeas consistent with the 
traditional understanding that habeas is unavailable to aliens 
held outside the United States, particularly during wartime. In 
the Military Commissions Act, Congress codified procedures for 
war crimes prosecutions before a military commission. The MCA 
affords defendants more rights than those available in past 
military commission prosecutions by the United States and more 
rights than those available in international war crimes 
prosecutions like those conducted at Nuremberg.
    Like the DTA, the MCA provides for judicial review, but 
just not through habeas. Extending habeas to aliens abroad is 
unnecessary and unwise. Over 50 years ago, the Supreme Court in 
Johnson v. Eisentrager held that aliens outside the United 
States have no constitutional right to habeas. In the words of 
Justice Jackson, the same country lawyer mentioned by the 
chairman and others, wartime habeas trial would bring aid and 
comfort to the enemy, and it would be, in Justice Jackson's 
words, difficult to devise a more effective fettering of a 
field commander than to allow the very enemies he is ordered to 
reduce to submission to call him into account in his own civil 
courts and divert his efforts and attention from the military 
offensive abroad to the legal defensive at home.
    The Supreme Court's decision in Rasul, which addressed only 
the scope of the habeas statute, does not undermine this 
constitutional holding of Eisentrager. Habeas restrictions are 
important for national security as explained in Eisentrager and 
borne out by recent Guantanamo experience.
    During the last few years, more than 200 habeas actions 
were filed on behalf of more than 300 detainees. The litigation 
imposed substantial burdens on the operation of a military base 
in time of war.
    It prevented military commission prosecutions from even 
beginning. And it impeded interrogations critical to preventing 
further attacks. These burdens would be even greater if habeas 
were made available in larger conflicts such as World War II 
when the United States detained not hundreds of enemy 
combatants, but more than two million enemy combatants.
    Habeas review is also unnecessary. As I have noted, the 
CSRT and military commission procedures give detainees 
unprecedented wartime protections. Moreover, detainees may 
challenge those procedures in court and may raise any 
constitutional or statutory claim of their choosing. That alone 
would make this scheme an adequate substitute for habeas.
    But Congress went even further and allowed detainees to 
challenge both the sufficiency of evidence underlying the 
tribunal's decision and the tribunal's compliance with its own 
procedures. Even where habeas had been available, prior law 
would have barred those claims.
    In sum, the existing system represents a careful balance 
between the interests of detainees and the exigencies of 
wartime. It is both constitutional and prudent and should not 
be upset. Thank you.
    [The prepared statement of Mr. Katsas can be found in the 
Appendix on page 180.]
    The Chairman. Thank you very much.
    Mr. Katsas, before I ask Mr. Saxton, under the statute 
passed by Congress regarding the review process, who has the 
burden of proof in that process?
    Mr. Katsas. In the combatant status review tribunal?
    The Chairman. Yes.
    Mr. Katsas. I think initially the government has the burden 
of proving enemy combatants.
    The Chairman. Wait. What do you mean ``initially''?
    Mr. Katsas. In the combatant status review?
    The Chairman. Yes, sir.
    Mr. Katsas. Well, the government has the burden of proving 
enemy combatant status by a preponderance of the evidence. 
There is a provision in the CSRT procedures affording to 
government evidence a presumption of regularity that comes 
straight out of the Supreme Court's opinion in Hamdi where the 
Supreme Court said that a presumption like that would be 
appropriate even where you are talking about the detention of 
an American citizen.
    The Chairman. Who has the presumption of proof in a habeas 
corpus case?
    Mr. Katsas. In a habeas? I think similarly the government 
has the burden of justifying detention. The structures are 
analytically similar, Mr. Chairman, in that we are not talking 
about----
    The Chairman. I am not talking about structures. I am 
talking about who has the burden of proof. You understand what 
burden of proof is?
    Mr. Katsas. I do, sir. The government----
    The Chairman. You have tried a few cases, I take it?
    Mr. Katsas. I am sorry.
    The Chairman. You have tried a few cases?
    Mr. Katsas. I have argued a few appeals.
    The Chairman. All right. Well, you understand.
    Mr. Katsas. The government----
    The Chairman. Are they exactly the same, the review process 
that is set forth in the statute and the habeas corpus? Is the 
burden of proof exactly the same?
    Mr. Katsas. I think it is. There is a----
    The Chairman. Now, wait a minute.
    Mr. Katsas. May I?
    The Chairman. In your opinion, yes, sir, it is.
    Mr. Katsas. Yes. But----
    The Chairman. The answer is yes.
    Mr. Katsas. Well, yes. But may I explain?
    The Chairman. Sure.
    Mr. Katsas. The one respect in which the combatant status 
review tribunal procedures is arguably distinctive in terms of 
presumptions and burdens from normal procedures is the 
presumption that the government's evidence is true and 
accurate. Now, the Supreme Court in the Hamdi case made clear 
that that kind of presumption in favor of the government's 
evidence, which is not found in habeas corpus generally, would 
be appropriate in habeas corpus proceedings to address status 
determinations for Americans held in this country. So if you 
compare habeas under Hamdi to combatant status review tribunal 
procedures at GTMO, I think the burdens are essentially the 
same.
    The Chairman. Thank you very much.
    Mr. Saxton.
    Mr. Saxton. Mr. Chairman, thank you.
    Mr. Dell'Orto and Mr. Katsas, for purposes of clarification 
for members who are here or for anyone who may be listening, I 
suspect this is a fairly complicated conversation that we are 
having, particularly for those of us who haven't practiced law 
or are not lawyers.
    So I would just kind of like to walk through this for 
purposes of clarification and walk through what is current law 
or what I perceive is current law and what I perceive as the 
main provisions of what has been proposed in the way of new 
law, a bill to be passed, which is the subject of this hearing.
    Under current law, an individual is apprehended as being 
suspected of being an illegal enemy combatant. Under the 
proposal, that doesn't change obviously. Somewhere on the 
``battlefield'' in this new kind of warfare, an individual is 
apprehended and is suspected of being an enemy combatant. No 
difference.
    Under current law, there is a process that has come to be 
known as the combatant status review tribunal. And that is 
where the status of the individual is reviewed and, my word, 
confirmed, if that is what it is. He is an enemy combatant or 
he is not.
    Under new law, there is something called habeas corpus, 
which I interpret from a layman's point of view as going to 
court to make the same kind of determination. Now, from there 
on in this process, under current law we go to appeals court. 
And under the chairman's proposal, or whoever's bill this is, 
we go to federal appeals court.
    The only difference being that we specify under current law 
the D.C. appeals court. And under the new proposal, it could be 
one of 12 circuit courts. Does that follow along? Okay. So no 
difference there, except that there is a broader set of 
choices, if you will, for the individual to choose a court.
    Mr. Katsas. Presumably, it would be one of 93 or 94 
different United States district courts under habeas then.
    Mr. Saxton. Okay. But the point that I am trying to make is 
that it is a federal appeals court, which is the next step 
beyond either CSRT or habeas corpus. Right? And finally, the 
last step, of course, would be to appeal, that if the enemy 
combatant was not satisfied with the result of the appeals 
court, he would go to the Supreme Court in both cases. No 
difference there.
    Mr. Katsas. Right.
    Mr. Saxton. So the real difference in this is whether we 
subscribe to the concept in current law of a combat status 
review tribunal or the habeas corpus process.
    Mr. Katsas. I agree with that.
    Mr. Dell'Orto. I agree as well.
    Mr. Saxton. Okay. Why then do we think that the CSRT, 
combat status review tribunal, is the way we ought to go rather 
than habeas corpus?
    Mr. Katsas. I think for some of the reasons that Mr. 
Philbin explained, in terms of the legal uncertainty about how 
habeas plays out for some practical reasons, in terms of the 
burdens habeas imposes, and for some security reasons. And let 
me try to spell all of those out for you.
    We had experience with habeas corpus at Guantanamo in the 
period between 2004 when Rasul was decided, and 2006 when this 
Congress said no, we want you to go seek review by other means. 
The experience in that interval is exactly what Justice Jackson 
predicted in terms of the tremendous burdens imposed on 
military operations with the hundreds of cases, with the 
Defense Department having to accommodate essentially full-time 
visits to a military base.
    We had problems with information slipping into Guantanamo 
getting to detainees, sensitive information that risked 
security. The D.C. Circuit averred to that in Bismullah.
    We had problems with frustrating interrogations, as one of 
the detainee lawyers has publicly boasted. We have under habeas 
questions about whether discovery will be available so that 
detainees and their counsel could rifle through government 
files. We would oppose that. But as Mr. Philbin explained, the 
standards are unclear, and we might or might not win.
    We would have uncertainty about trial procedures. Possibly 
there would be strict evidentiary rules. If there were strict 
evidentiary rules, we would have to summon military commanders 
back from half a world away to avoid hearsay evidence, to 
establish chain of custody. We would impose on those people 
evidence gathering requirements.
    Habeas corpus literally means ``produce the body.'' We 
would face arguments about having to bring someone like Khalid 
Sheikh Mohammed into New York or Washington for a habeas trial. 
Presumably we are trying to keep people like that out of our 
major cities. We might well have to bring them into court to 
present testimony at a habeas hearing.
    Obviously that creates huge security risks. The district 
court judge in New York who tried the World Trade Center I 
bombings required security, personal security escort 24 hours a 
day, 7 days a week for over a decade based on his presiding at 
that trial. Imagine the spectacle of dozens of folks like 
Khalid Sheikh Mohammed coming before a United States district 
court judge in this country.
    Habeas also enables detainees to raise collateral claims 
about treatment, about conditions of confinement, about 
transfer. In our view, that is not proper because habeas is 
only about detention. But the standards are unclear, and we 
have to litigate out of all of those issues.
    Finally, if you have the enemy combatant determination 
being done by a court in this country, there would be stronger 
arguments on the other side for the application of full 
constitutional protections. And then we would be in the 
nightmare world of arguing about Miranda warnings or Mr. 
Mohammed before his interrogation and knock and announce rules 
before we go into caves in Afghanistan.
    I am not saying we would necessarily end up there. But 
those are all the risks attendant with habeas.
    And finally, if you create habeas across the board, you are 
doing so not only for the conflict at Guantanamo where things 
might arguably look manageable because we are talking about 300 
some odd detainees. You are changing the rules across the 
board. And God forbid we should ever find ourselves in a larger 
conflict.
    But we have historic precedent where this Nation detained 
two million enemy combatants in World War II. If you apply the 
litigation standards that prevailed at Guantanamo between 2004 
and 2006 to a conflict like World War II where we are talking 
not hundreds, but millions, that system is not remotely 
sustainable.
    Mr. Saxton. Thank you.
    Mr. Dell'Orto.
    Mr. Dell'Orto. Congressman, I would only add a very small 
postscript to what Mr. Katsas has eloquently stated. We should 
not fool ourselves into thinking that this conflict that we are 
now engaged in is the only one we will fight against an enemy 
that doesn't want to follow traditional rules about 
conventional war fighting.
    If you pick most any potential adversary out there right 
now, I suspect that if we were to engage that adversary in 
battle today, we would be fighting the conflict the way we have 
been fighting it in Afghanistan and in Iraq, where the enemy is 
not lining up as an armed force in uniform, so that we know who 
we have.
    We would potentially have tens of thousands, maybe more, 
captured combatants on the battlefield who are unlawful in the 
way they conduct their operations. And thus we would clearly 
overwhelm any system that we have in the United States court 
system or Article III system for dealing with this. And even if 
we didn't overwhelm them in pure numbers, the burdens on 
commanders, soldiers in the field would completely disrupt our 
ability to conduct our operations on the ground.
    Mr. Saxton. Okay, thank you. Let me ask this now. There is 
a difference between wartime activities that threaten a people 
and criminal activities that exist in society. Would you agree?
    Mr. Dell'Orto. Yes.
    Mr. Saxton. In this case, these detainees have been accused 
of wartime activities that threaten a people. And I believe our 
court system was essentially designed and carries out a mission 
of taking care of problems that relate to criminal activity. 
Would you speak to those two concepts and say why they are 
different?
    Mr. Dell'Orto. Let me begin. Military commissions are not a 
new concept. Military detentions of combatants on the 
battlefield or taken away from the battlefield is not a new 
concept.
    When our forefathers penned the Constitution and created 
the rights that are our baseline rights for this Nation, we had 
been at war with Britain at the time. We chose and in the many 
years since, the centuries since, to maintain a system of 
justice focused on criminal behavior, a system of laws dealing 
with civil issues, but also recognize and by design did not 
incorporate into those structures--that is for dealing with 
criminal processes and civil judicial processes--the military 
commission process, because the drafters of the Constitution 
understood that what happens in a wartime setting is going to 
be different.
    And traditionally over the years, over the decades, there 
has been no change in that philosophy. Military commissions 
starting during the Revolutionary War and have proceeded ever 
since through the most recent wars that this Nation has fought.
    And so, I would assert that we as a Nation and those who 
built the foundation for this Nation understood that difference 
and maintained that difference. And there is no reason why that 
difference should be changed at this particular point and have 
those systems blended because we are engaged in combat.
    I would ask anyone to admit for discussion a criminal 
enterprise that has ever in our Nation's history had the effect 
and the purpose that we saw on September 11, 2001, which went 
to the very core of our Nation's economic well-being and its 
governance.
    Mr. Katsas. I think the rules are different because the 
stakes are different. In the criminal context, if a guilty 
person is turned loose, a bad act goes unpunished. In the 
wartime context, if an enemy combatant is wrongly turned loose, 
that is someone who is trying to kill us. And I think you need 
look no farther than the example of Mr. Mehsud, the guy who was 
on the front page of yesterday's Washington Post.
    He is someone who was mistakenly let go from Guantanamo 
who, in fact, had been an enemy combatant, one person. He was 
let go. He rose to become one of the Taliban's leading 
commanders in Pakistan, orchestrated the kidnapping of various 
Chinese civilians and because a big part of the Taliban 
resurgency in that country. Those are the stakes from even one 
erroneous decision to release someone who should have been kept 
at Guantanamo.
    Mr. Saxton. Mr. Chairman, if I could just ask one short 
question to Admiral McGarrah?
    Admiral, I am sure that you were within earshot of the 
testimony that was offered by the previous panel and 
particularly Mr. Abraham. I would just like to give you an 
opportunity to describe the activities that you oversaw and 
perhaps respond to some of Mr. Abraham's statements.
    Mr. McGarrah. Thank you, Representative Saxton. I came to 
work directly for Gordon England, who was then secretary of the 
Navy in July of 2004. When he initially interviewed me, I was 
coming to the position of director of the Office of the 
Administrative Review of the Detention of Enemy Combatants. And 
we were going to implement the ARB process. And Mr. Dell'Orto 
just mentioned the annual review.
    Between the time of my interview and the time of my 
reporting, the Supreme Court on June 28th issued three 
decisions. Based on those decisions, we stopped what we were 
doing on the ARB process and started to structure the CSRT 
process based on Army Regulation 190-8, which is the regulation 
that outlines the competent tribunal portion designed to meet 
the requirements of Geneva Article 5.
    I had over 200 people assigned to me from all 4 services 
for various periods. We were one of what was called then 
``individual augment organization,'' which meant the services 
were tasked with providing staffing for us for various, 
generally temporary, periods of time, usually three to six 
months each. Although I had some that were detailed to me for 
longer, one to two years.
    We started to avail ourselves of the training that was 
available from organizations and intelligence agencies that had 
been involved in the detention business from the start because 
one of our requirements was that anybody detailed to my process 
should not have been involved in any prior way in the 
apprehension, detention or interrogation of detained enemy 
combatants. We didn't want to create any possibility of a 
conflict or a bias on the part of the people that were assigned 
to us.
    We began the CSRT hearings at the end of July 2004. We had 
the last hearing in January of 2005 and the last decision that 
I signed the final paperwork on for the CSRT as the convening 
authority in March of 2005.
    Let me talk a little bit about the processes that we had. 
And let me clarify one thing that came up in the earlier panel. 
As the convening authority, I only had two options when a 
decision came to me. The tribunal members, who were three 
senior military officers, the senior of which was an O-6, a 
Navy captain or an Army, Air Force colonel. Those were the 
decision makers in this process.
    As the convening authority, I could either concur in their 
decision, or if something didn't look right to me, I could send 
it back for further deliberations. I did not have the authority 
to reverse that decision. That was by design. And we did not 
want to put in place a single individual who had the capability 
to make those decisions.
    We solicited input from the intelligence agencies per our 
procedures. They were tasked with looking at their files and 
identifying information that was relevant to enemy combatant 
status determination.
    We then collected and reviewed that information, including 
reviewing on the site of some of the intelligence agencies. And 
we culled from that information the information that we felt 
was directly applicable to a status review. And we provided 
that to the tribunal.
    The Chairman. I thank the gentleman from New Jersey.
    Mr. Saxton. Thank you very much.
    The Chairman. Mr. Katsas, in your opinion, you told us a 
few moments ago that there was no difference in the burden of 
proof between the CSRT's procedure and the procedure of habeas 
corpus.
    In the Rogers dissent, Judge Rogers dissent and what is 
known as the Boumediene case, D.C. Circuit, under the common 
law, when a detainee files a habeas petition, the burden shifts 
to the government to justify the detention in its return of the 
writ. It goes on to say the CSRT works quite differently. The 
detainee bears the burden of coming forward with evidence 
explaining why he should not be detained.
    Mr. Loebsack.
    Mr. Loebsack. Thank you, Mr. Chair.
    I just want to follow up on some issues that I raised in 
the earlier panel. I know you folks were not here. But one of 
my big concerns as a new Member of Congress, as somebody who 
follows international politics, taught it at a small college 
for 24 years also at a small college in Iowa, is the reputation 
of the United States in the world community.
    And there have been a number of folks who have talked 
about--academics primarily, and I will admit not practitioners 
so much, unfortunately--but who have talked about so-called 
soft power. And I am sure you are familiar with what that 
means, our values, what we represent to the rest of the world 
and how the rest of the world looks at those values and our 
system and all the rest.
    One of my big concerns with respect to this particular 
issue is that our soft power, if you will, around the world has 
declined dramatically over the course of the last five years, 
in particular with respect to this issue that we are talking 
about today. I would never make the argument; I don't want 
anyone to mistake what I am going to say. I would never make 
the argument that we should extend habeas corpus everywhere 
around the world to all folks we have detained all over the 
world. But I do support what the chairman's bill is attempting 
to do.
    But I am just wondering. You know, I have got in front of 
me here a letter that 34 former members of the diplomatic 
corps, including former Secretary of State William Rogers and 
former National Security Advisor Anthony Lake, wrote in 
September of 2006. They wrote it to Members of the Senate, to 
Members of the House and the Senate, urging us--not me at the 
time, but Members--not to go along essentially with the 
legislation that was adopted having to do with detainees.
    And I just want to mention, one part of it here where they 
say that, ``Judicial relief from arbitrary detention should be 
preserved here, else our personnel serving abroad will suffer 
the consequences. To deny habeas corpus to our detainees can be 
seen as a prescription for how the captured members of our own 
military, diplomatic, and NGO personnel stationed abroad may be 
treated.''
    And I mentioned our values and our soft power. I am very 
concerned, obviously, as I think a lot of people are, and no 
doubt you folks as well, that when we begin to sacrifice our 
own values at home, that other nations around the world will 
begin to treat our personnel around the world as they believe 
we are treating these detainees at GTMO in particular.
    When you folks were considering some of these, you know, 
the new regulations, I mean, did you think about, I guess, the 
broader context, the role of America in the world and our 
reputation and what that may, in fact, do to our national 
interests? Because I would argue that our reputation is part of 
our national interest.
    We have to have allies in this war on terror. We have to 
have allies to help us protect our national interests. Did that 
factor into the discussion at all? Anybody?
    Mr. Dell'Orto. Congressman, let me try to address that in a 
more indirect way. As a government lawyer, my principle role is 
to advise the decision maker about the law. That is what by 
statute the general counsel of the Department of Defense is 
obligated to do. And I as the principal deputy obviously follow 
that lead.
    And I think a lawyer does a disservice if he or she in 
advising a client says, you should do this or you shouldn't do 
that, without making it clear that the law permits you to do 
something or prohibits you from doing something. So your first 
charge is to give your best advice as a lawyer about the law.
    Now, lawyers in government service have, I think, a 
secondary aspect to their job. And it is probably not defined 
in statute anywhere. But we do have a vantage point, as we look 
over an organization to which we provide legal advice, that 
because the scope of our legal responsibilities generally runs 
through the breadth of that organization, we are in a position 
to supplement that legal advice, again, if the client desires 
that, with our views as to policy.
    Mr. Loebsack. Right.
    Mr. Dell'Orto. But one of the problems, I think, lawyers 
have today is too often they don't distinguish between those 
two roles. And so, they do say, you shouldn't do this or you 
shouldn't do that. And the decision maker walks away from that 
thinking the law has told him or her that he can't do something 
or she can't do something.
    With respect to these issues, certainly our principal focus 
was on the law and what the risks of taking certain actions 
were under the law. I think all of us were mindful of broader 
policy concerns.
    And you try to take those into account. But you have to be 
careful in doing so that you deal with the law first, and then 
the policy piece later, because you don't ever want to co-opt 
all those other people who are standing at the side of the 
decision maker and providing the policy advice that they are 
charged to do by statute and their assigned responsibilities by 
the decision maker.
    Mr. Loebsack. Thank you.
    Mr. Dell'Orto. So I think certainly aspects of this were 
taken into account by lawyers. But I think they were also taken 
into account by those other people who were providing advice.
    Mr. Loebsack. Right.
    Mr. Dell'Orto. And this was and is new, unique, and novel 
under many aspects of the law, but even many more aspects from 
a policy standpoint. And in the face of what we had suffered on 
September 11th, 2001, what we knew about what had transpired 
prior to September 11th, 2001, the attacks we had suffered 
overseas prior to that date going back to the bombing in 
Lebanon at the Marine barracks, going back to Office of the 
Program Manager-Saudi Arabian National Guard (OPM-SANG) and 
Saudi Arabia, going back to Cobar Towers, going back to the 
Cole, going back to the embassy bombings.
    I mean, you could see a trend line of greater and greater 
vulnerability to this Nation on its home soil. And so, that 
becomes your principal policy focus. How do we stop this from 
happening again?
    Mr. Loebsack. Right.
    Mr. Dell'Orto. And it remains our principal policy focus.
    Now, I mean, clearly, other people around the world 
disagree with the notion that we are at war. They view this as 
a criminal law enterprise. We respectfully disagree.
    When 3,000 people, more than Pearl Harbor, more than died 
on the beaches of Normandy on D-Day in one single event, and 
innocent civilians pay that price, then I think it is incumbent 
upon us to provide the decision maker with the broadest 
possible latitude under the law to make the calls he or she 
needs to make to defend the country. And I think that is the 
perspective we brought to the decisions that stem from that 
horrific day on September 11th.
    Mr. Loebsack. Okay.
    The Chairman. I thank the gentleman.
    You know, I just can't let it go, Mr. Katsas.
    Mr. Katsas. Mr. Chairman, may I respond?
    The Chairman. Just a minute. Just a minute. I think you are 
leading us to believe that under the review commission, the 
CSRT, is a substitute for habeas corpus. Truth in fact, it 
isn't, and it can't be.
    Though you said in your opinion, Mr. Katsas, that the 
burden of proof was the same, according to the Rogers dissent, 
it is not the same. And for us to have the opinion from anyone 
that the burden of proof is the same under the statute as 
opposed to the common law habeas corpus is incorrect.
    Mr. Katsas. I respectfully disagree with that.
    The Chairman. You would disagree with the court dissent, is 
that correct?
    Mr. Katsas. I----
    The Chairman. Are you familiar with it?
    Mr. Katsas. I argued the case and won the case and agree 
with the views of the majority, not the views of Judge Rogers 
in dissent.
    The Chairman. Thank you very much.
    Mr. Katsas. May I respond to your question about standards?
    The Chairman. How many cases have you tried, Mr. Katsas?
    Mr. Katsas. Tried?
    The Chairman. Yes, sir.
    Mr. Katsas. Zero. I have argued some 40 appeals. I am an 
appellate lawyer by training, sir.
    The Chairman. I see. Okay. Go ahead. You want to say 
something. Go ahead.
    Mr. Katsas. Yes. You made reference to the rules that would 
apply generally in habeas corpus.
    The Chairman. That is correct.
    Mr. Katsas. The more specific focus has to be, though, on 
the rules that apply to status determinations made by habeas 
courts. And on that point, the Supreme Court spoke in the Hamdi 
case and said that even in habeas corpus, and even where the 
detainee was an American, and even where the detention was in 
this country, it would be appropriate because of the nature of 
war to apply a presumption in favor of the government's 
evidence.
    And that holding of the Supreme Court in the Hamdi case is 
the very basis for the combatant status review tribunal 
provision that I think we are discussing. So if you compare 
CSRTs to habeas in Hamdi, the principles are analogous.
    The Chairman. Okay. I appreciate your comments. And I am 
pleased to know you won that case. That is good.
    Mr. Hayes.
    Mr. Hayes. Thank you, Mr. Chairman.
    Mr. Chairman, again my compliments to you for providing 
this forum today. As you know better than anybody in the room, 
once this process begins up here it takes a life of its own. I 
might observe that it is unfortunate, or at least to me, that 
we spent three and a half hours, constructive though it may be, 
on the other side of this issue.
    And now, again because of things that happened here and the 
business of the place we have a very, by comparison, small 
group of folks who are able to hear--I am not sure if it is the 
rest of the story, but a very important part of what is going 
on here.
    Admiral, Colonel Abraham made a very eloquent and obviously 
informed and well-researched presentation, which led me to 
believe that the review process was deeply flawed, that even 
reviewed by the appeals court that really didn't count for 
much. I tend to disagree very much with what he had to say.
    Could you elaborate on your earlier comment and again 
expand on the idea that the review process and the appeals 
process, if not in theory a substitute for--is this not, given 
the nature of the enemy who are not only combatants--they are 
assassins. Would you comment on the process from your 
perspective?
    And is this something that we need to go back--again, I 
totally disagree with granting habeas corpus. In spite of all 
the good legal arguments here, I think it is not appropriate.
    Having said that, how do you see the process in context of 
what Colonel Abraham said over and over again?
    Mr. McGarrah. Sir, I will confine my comments to the CSRT 
process and defer to the lawyers at the table for discussion of 
the appellate process.
    Mr. Hayes. Perfect.
    Mr. McGarrah. My personal view is the CSRT process was an 
extremely robust process. Keep in mind that the 558 CSRT 
hearings that were conducted when I was the director of 
OARDEC--all of those at Guantanamo that went through those 
hearings had had at least one, and many times multiple prior 
determinations of enemy combatant status because combatant 
status determinations are, in fact, typically done by the 
military commander on the field.
    Regardless of that, we went and did a search through the 
records of government agencies, both within DOD and outside DOD 
seeking all the information that was relevant to that status 
determination, including a specific request to government 
agencies for anything that might tend to indicate that an 
individual should not be an enemy combatant. I shy away from 
using the word exculpatory because that connotes a legal 
process. My direction in the procedures was to look for 
anything and everything that might tend to indicate that an 
individual should not be classified as an enemy combatant.
    We expended hundreds of hours working with the interagency. 
We talked to them early on, even before the start of the formal 
process.
    They understood the importance of the process. They had a 
wealth of information that dated back to the point of capture, 
which was included in my charge to try to seek information on 
the conditions of capture, through the time at which we 
conducted the hearings.
    We had a process in place where we added resources, 
significant resources to supplement the positions that were 
identified in our procedures to collect that information. We 
added dozens of people to supplement that because of the 
importance and because of the thousands and thousands of pages 
and documents that we found were available and relevant, or 
potentially relevant to these determinations.
    We had a process that we invoked, or that we implemented, 
called a request for information process where anybody in the 
CSRT process if they had a doubt as to the sufficiency of the 
information or if they had a question of the information that 
was collected and being considered, could request additional 
information or clarification. We had those requests that were 
initiated by our dedicated intelligence section.
    Those requests were initiated by recorders, by personal 
representatives. And some personal representatives actually 
brought requests that originated with detainees who asked 
questions about specific information. And we had information 
requests that came from our panel members, hundreds of those 
requests. And in some cases we put in recess the CSRT panels 
until we were able to provide the panel members with answers 
for that information.
    So we had dozens of people working on the information 
collection. And my personal view is it was a very robust 
process.
    Mr. Hayes. Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Mr. Andrews.
    Mr. Andrews. Thank you.
    I thank the panels for their testimony this afternoon.
    Let me start by saying I think there is unanimity on the 
committee, close to unanimity in the country, that if someone 
is a terrorist that wants to kill Americans, the last thing in 
the world we want them to do is be released from anywhere under 
any circumstance.
    Second, it is my strongly held view that you gentlemen and 
your colleagues are doing your job with integrity as well as 
you can do it under very difficult circumstances. And I don't 
doubt for one moment your veracity or your commitment to 
justice, not for one moment.
    I do have a grave concern about a process where the first 
time at which an innocent detainee or any detainee is in front 
of a fact finder who is independent of the executive branch, is 
in the court of appeals. That is my concern.
    I do not in any way mean to impugn the integrity of those 
in the executive branch that are conducting these processes, 
not at all. But this is my concern.
    Let me ask you this question. From a practical point of 
view toward the twin goals, the complementary goals of holding 
people for whom there is good cause to hold while not holding 
those for whom there is no such good cause. If we were to 
institute habeas, how would things be different from a 
practical point of view for the work that you are doing?
    Let us say we pick somebody up on the streets of Beirut and 
determine that the person was a threat to the country and 
incarcerated him in Guantanamo. And he files an application for 
a habeas proceeding, and it is heard in a federal district 
court in Miami. How would it be different the way you do your 
job, different than what we have now?
    Mr. Katsas. I would just repeat my earlier answer about the 
practical and security harms that we faced at Guantanamo.
    Mr. Andrews. What are they?
    Mr. Katsas. Under habeas.
    Mr. Andrews. Let us be specific.
    Mr. Katsas. Okay. Well, as I said, the burden of having 
hundreds of cases, hundreds of lawyers visiting a foreign 
military base in time of war, the security risks coming from 
information slippage from the outside world to the detainees, 
the harm----
    Mr. Andrews. Let us take these one at a time.
    Mr. Katsas. Okay.
    Mr. Andrews. Is it that big of a deal to have attorneys 
under supervision of military police visit their clients in a 
jail?
    Mr. Katsas. When in a foreign military base in time of war 
when there are hundreds of cases, yes, it can be. And we have 
documented instances of detainees getting information that 
caused security problems. We have concern that----
    Mr. Andrews. If there is a situation where a detainee is 
getting information that causes a security problem and the 
attorney who conveyed that information has done so knowingly or 
intentionally, I think they have committed a federal crime. And 
I think the remedy would be to prosecute that attorney, not to 
have a procedure that is totally devoid of an independent 
review before you get to the court of appeal.
    Mr. Katsas. I would agree there might well be a federal 
crime there. I am just saying we have experience at Guantanamo 
for a few years of what habeas is like even with respect to 
what one might call the pre-trial skirmishing.
    Mr. Andrews. Have there been any security breaches when 
habeas was in effect? Were there any security breaches that 
involved conversations between attorneys and detainees?
    Mr. Katsas. There were numerous instances. They were 
referred to in an affidavit filed by, I believe it is, 
Commander McCarthy, that we filed in the D.C. Circuit 
explaining all of this and that are summarized in the 
majority's opinion in Bismullah.
    Mr. Andrews. If the government in making its proofs in the 
habeas proceedings says, ``Look, this guy is here because 
informant X said he is a terrorist,'' wouldn't that take place 
in in camera proceeding before a judge? What is the security 
problem with that happening in an in camera proceeding in a 
habeas proceeding?
    Mr. Katsas. It might or it might not if we have a habeas 
trial in the United States. As I said, the detainees' arguments 
were full-blown, constitutionally based, trial-like procedures 
would be much stronger than they are in the context of a 
military proceeding outside the United States.
    And we faced these arguments, sir. We had habeas 
proceedings for two years in which the detainees said, ``Of 
course, we are entitled to see the evidence against us.''
    Mr. Andrews. And they were dealt with in the normal regular 
order of the law, weren't they?
    Mr. Katsas. Well, they were suspended because we prevailed 
on our broad legal argument that the Constitution doesn't apply 
at Guantanamo. If the habeas trials are in Washington, D.C., we 
might or might not win that argument.
    Mr. Andrews. I understand.
    I see my time is up. Thank you.
    The Chairman. Thank you.
    Ms. Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman.
    And, gentlemen, I had some other business to attend to so I 
didn't get to hear your testimony and see the questions. I hope 
I am not repeating what has gone on already.
    We have historically given the President broad latitude to 
establish policy and procedures for the detention and the 
reparation of the enemy POWs in traditional conflicts. I 
believe, however, that our concerns about habeas in the present 
campaign against international terrorist organizations is 
justified for two primary considerations: one, the problem of 
indefinite detention of the enemy detainees in a war that may 
last indefinitely, and, two, the ambiguous status of many of 
the detainees who were not captured by soldiers on the 
battlefield but may have been apprehended by intelligence or 
law enforcement officers far away from the battlefield.
    I believe that the Congress should restore a limited 
statutory right of habeas for detainees in the present 
conflict. And I actually have a bill that I have dropped into 
the Congress that has proposed a limited right. And under my 
proposal, detained alien enemy combatants can petition for writ 
if they haven't had a CSRT, if they haven't been charged with a 
crime, or if they have been in detention for at least two 
years.
    And the compromise acknowledges, I think, the concern given 
the unprecedented habeas access to war prisoners, giving them 
something that traditionally we really haven't ever given as a 
country and the need to give the executive his Article 2 power 
to conduct military and intelligence operations free from 
judicial interference.
    And I believe that given the gravity of the interests 
involved, especially when we heard the colonel on panel one, 
that the combat status review tribunals are not sufficient to 
ensure confidence in executive decisions about detention of 
individuals for indefinite periods of time under conditions 
that look more like punitive incarceration rather than 
administrative wartime internment.
    So my proposal would be to grant a habeas right that is 
triggered after a certain period of time has elapsed. My 
question is, would you support a statutory right to habeas if 
it contained some limitation of that sort?
    Mr. Dell'Orto. Congresswoman, from the standpoint of the 
Department of Defense I think where we are right now, given the 
posture of current litigation, it would be preferable to allow 
the courts as they are undertaking their review to complete 
their review of what we believe is a very robust assessment of 
the basis for detention for the detainees we currently have.
    We have taken--between the Department and certainly 
Congress and the President in the various Detainee Treatment 
Act and the Military Commissions Act--we have taken the process 
for review of detention far beyond what it either has 
historically been or what we believe either international law 
or our domestic law requires.
    Ms. Sanchez. I would agree with that comment, by the way. 
But you still are detaining people indefinitely.
    Mr. Dell'Orto. Well, again----
    Ms. Sanchez. And the court has just ruled that they have 
constitutional rights.
    Mr. Dell'Orto. I am not sure that the court has given us 
that ruling yet.
    Mr. Katsas. The court has ruled exactly the opposite.
    Mr. Dell'Orto. But in either event, I mean, this conflict, 
although it is not likely to, could end tomorrow and we would 
be perhaps faced with the prospect of what are we going to do 
with some of these folks who clearly are dangerous. And it may 
not be that a review process does that.
    And I think the secretary has indicated this. We may need 
to look at some statutory fixes for indefinite detention beyond 
the notion of detention pursuant to the hostilities as they 
exist right now. But with respect to the people we currently 
have, while hostilities are currently underway, we believe that 
the process that is in place right now and the review that is 
being undertaken in the courts should be allowed to run its 
course before we entertain a further level of statutory changes 
into what we are attempting to do on a day-to-day basis in the 
Department of Defense.
    Ms. Sanchez. Let me ask you just one other question. It is 
my information that the detainees that we have at GTMO are not 
just from the Iraqi War, but maybe from Afghanistan and other 
countries. Is that true?
    Mr. Dell'Orto. We have, to the best of my knowledge, no one 
in Guantanamo who has been brought there from Iraq.
    Ms. Sanchez. Okay.
    Mr. Dell'Orto. There are several detainees in Guantanamo 
who are Iraqis, but who were apprehended prior to the 
initiation of combat activities on the ground in Iraq. So they 
were part of the war on terror in advance of the invasion of 
Iraq in March of 2003.
    Ms. Sanchez. Great. Thank you for that clarification.
    The Chairman. Thank you very much.
    Mr. Hayes.
    Mr. Hayes. Thank you, Mr. Chairman.
    Would the gentlelady yield for a question?
    Ms. Sanchez. Certainly.
    The Chairman. You have the floor, she doesn't.
    Ms. Sanchez. I will entertain a question.
    Mr. Hayes. Thank you. Were you here when I asked Admiral 
McGarrah about the process from his perspective? I couldn't 
remember whether you were in the room or not.
    Ms. Sanchez. I don't believe that I was.
    Mr. Hayes. Okay, I don't think so, either. But, I mean, the 
questions that you asked a moment ago really go to the heart of 
what we are talking about here.
    And picking up on her question about how the detainees are 
questioned and how you determine keeping them, in the context 
of our conversation, Admiral McGarrah, which was a very robust 
process of finding out where they came from, how they got 
there, what the circumstances are, would you elaborate and 
expand on your answer so that it directly addresses the very 
good questions that Congresswoman Sanchez just asked?
    Mr. McGarrah. Yes, sir. What I tried to describe pursuant 
to the prior question was what I think is a very robust 
process, the CSRT process. Keep in mind that the 558 that we 
ran when I was the director or OARDEC, all 558 came to us with 
at least one prior determination, typically by the military 
commander, which is traditionally how this is done, but at 
least one prior status determination of enemy combatant.
    We work closely with over 200 people in my organization. We 
work closely with the intelligence agencies, both inside the 
Department of Defense and outside Department of Defense and 
with other groups that might have relevant information to 
collect thousands of pages and thousands of documents of that 
information.
    Those documents were then provided through the process 
ultimately into the CSRT record. And that was what was before 
the three-person panel.
    The officers on the panels were senior military officers, 
no more junior than O-4, the senior of which was an O-6, which 
is a colonel or captain. We had resources that I dedicated to 
supplement the recorders in the gathering of information 
because it became such a huge task. So I added a couple of 
dozen people to assist in the gathering of information.
    And we had a process by which if there was any question 
about the information or any apparent gap in the information, 
anybody in that process, the intel section, the case writer, 
the recorder, the personal representative or even tribunal 
members. In some cases, we had requests from detainees that 
came to us through the personal representative. We could stop 
that process and pursue answers to those questions.
    Mr. Hayes. Thank you very much.
    Ms. Sanchez. Would the gentleman yield just for a second?
    Mr. Hayes. Yes, ma'am.
    Ms. Sanchez. May I ask why is that in such stark contrast 
to what the colonel testified on panel one, do you think?
    Mr. McGarrah. Colonel Abraham was assigned to us for six 
months from September of 2004 until March of 2005. The role 
that he functioned primarily in for me was utilizing some 
pretty strong information technology skills to build a database 
that we use to track every step of this process.
    We tracked our contacts with the source agencies of 
information. We tracked when we had drafted, for instance, the 
unclassified summary of evidence that was shared with the 
detainees in advance of the hearing. We tracked the scheduling 
of the hearing.
    We tracked things like the requests for information. So the 
vast majority of his time was spent in helping us to build the 
database and the mechanics of that database structure to do 
that tracking.
    He did a little bit of intelligence information gathering, 
as he alluded to before, but only about two weeks of the time 
that he was assigned to me. So he had a much narrower view of 
the process than I had or my deputy or some of our other staff 
that was involved in dozens and hundreds of those cases.
    I do know that he made a point in the earlier hearing of 
saying that he was not assigned to another panel after his 
panel made a determination of no longer an enemy combatant. 
That was actually at his request. That panel was in early 
December. He did write a letter to me in December where he 
expressed concern about his serving on the administrative 
review board process versus his obligations as an attorney.
    When we discussed that with him, my deputy met with him 
directly about that. And the issue that was the genesis of his 
concern was an issue that is referred to as a ``professional 
responsibility'' issue. That is, one lawyer can not deal with a 
client of another lawyer without that other lawyer's 
permission. That issue had come up from habeas counsel back in 
August that actually caused us to suspend for several weeks 
anything in the CSRT process while we resolved that issue.
    So the bottom line is that while he had a personal 
involvement in this, his view was to a very narrow piece of the 
total process.
    Ms. Sanchez. I thank the gentleman for yielding.
    The Chairman. Mr. Hayes.
    Mr. Hayes. Thank you.
    And I thank the gentlelady again for a very thoughtful 
question.
    It would be appropriate, Mr. Chairman, and I think it would 
be helpful to this committee for the admiral to give us that or 
submit that letter for the record as it relates to the hearing 
today.
    The Chairman. Excellent.
    Do you have it, Admiral?
    Mr. McGarrah. Yes, sir, I have a copy with me. I would be 
glad to.
    The Chairman. Well, then, it is so entered, without 
objection.
    [The information referred to can be found in the appendix 
on page 267.]
    Mr. Hayes. Okay. In summation, one of the incredible 
wonders and the beauty of the process that people have 
witnessed here today, people can come before the U.S. Congress, 
civilians, military, Members of Congress. They can say what 
they believe. They can defend passionately their position. They 
can ask questions.
    They have the right to be heard. And the ``blame America 
first'' crowd, whether they be foreign or domestic, I hope, as 
they seek to sometimes point the finger at America for not 
being fair would look at this process today, where people from 
varying opinions, varying points of view have brought the facts 
to the table, where their right to express them was protected. 
And the facts stand on their own.
    So, Mr. Chairman, again, I think you have done a wonderful 
job of putting the process out for people to see. And you all 
and others have made a very strong case that we treat people 
right. We don't torture them. But habeas corpus is not where we 
need to go with these terrorists.
    And I thank you and yield back.
    The Chairman. Well, thank you very much.
    It looks like that Shea-Porter is the only one--just a 
moment. Does Mr. Saxton have a question? No.
    Ms. Shea-Porter, please.
    Ms. Shea-Porter. Thank you. And I do think we have a 
wonderful system of government that we are able to have this 
conversation. But we are also interested in other human beings 
being protected, not being held without the evidence. And that 
is why we are here. This is a pretty important conversation.
    I would like to just confirm that habeas would only be for 
land that is under U.S. jurisdiction. Is that so? I mean, that 
is how they are looking at Guantanamo, right, that it would be 
under our jurisdiction? The United States has that right to put 
habeas there.
    Mr. Katsas. It would depend on how you write the bill, of 
course. If you simply restore----
    Ms. Shea-Porter. Okay, I understand. So in other words, all 
that argument that you have put forth about having it 
everywhere around the world, that is not even the issue on the 
table.
    Mr. Katsas. I am not sure that is right. If you simply 
restore habeas corpus, there would be credible arguments 
against us if habeas runs worldwide.
    Ms. Shea-Porter. I think I read the language to talk 
about--I read the language. And it is----
    Mr. Katsas. Subject to the one exception of zones of 
conflict, which I think Mr. Philbin discussed.
    Ms. Shea-Porter. Okay. Well, I read the language. But we 
will move on.
    And it is very possible we use habeas corpus in this 
Nation. And we still have vigorous prosecutions and sentencing, 
including the death penalty. So if we had people committing 
crimes against this Nation, habeas corpus would not strike any 
of that. So when we
talk about worried about punishing, we certainly would be 
capable of doing that, we just would ask for the evidence 
first.
    Mr. Dell'Orto, I would like to ask you the first question. 
You talked about the administrative review board in your 
writing. And you said it was created to ensure that we detain 
individuals no longer than necessary. Are you saying that 
before that board we did keep people longer than necessary? 
When was that board created?
    Mr. Dell'Orto. The board was created--I think Admiral 
McGarrah has indicated we were in the process of putting that 
together in 2004. But even before the formalized process, or 
that formalized process was put in place, we had fairly early 
on in the conflict determined that we did not just want to hold 
these people, all of these people, indefinitely.
    Ms. Shea-Porter. Okay. Let us----
    Mr. Dell'Orto. And so, we were actively through an 
interagency process screening individuals for return to their 
countries of origin, and had moved some number of people, 
certainly in the tens at that point, maybe dozens, back to 
their countries under various conditions of transfer. So we had 
already undertaken to do that.
    Ms. Shea-Porter. Right. And we do know that we have been 
holding people. But let us go on about these questions, please.
    You also wrote about Detainee Treatment Act and Military 
Commissions. And you said in your writings they seek to provide 
justice fairly and lawfully administered while safeguarding the 
security of the American people. And I wanted to ask you does 
it trouble you that not all of the people that are being held 
right now came from a battlefield, when you talk about enemy 
combatants and battlefield.
    Mr. Dell'Orto. Well, I think given the way this conflict 
has unfolded and the fact that the individual operators, the 
combatants, the cells in which many of them operate, their 
ability to move across international boundaries and put 
themselves beyond the reach of our armed forces who are 
respecting those international boundaries creates----
    Ms. Shea-Porter. Again, if I may answer that.
    Mr. Dell'Orto [continuing]. A necessity for being able to 
reach out and have others capture them for us and bring them to 
us.
    Ms. Shea-Porter. Thank you. But what I am concerned about, 
and I think we should all be concerned about, is that some of 
these were picked up as a punishment. They got caught in some 
tribal feud. Do you acknowledge that there are people there who 
were not supposed to be there, that never intended any harm to 
the United States? They were picked up and turned over by a 
possible tribal feud or other issues.
    Mr. Dell'Orto. Well, as I said, we looked at over 10,000 
individuals who were provided to us either as a result of our 
own captures, the captures by our allies or who may have been 
provided to us by others who were reacting to rewards that were 
put out. But they were screened in Afghanistan before being 
sent to Guantanamo.
    Ms. Shea-Porter. So bounties were paid? There was some 
incentive for somebody who had a feud with somebody else?
    Mr. Dell'Orto. We have a public rewards program that is 
sponsored both by the Department of Defense and the Department 
of State for the capture of individuals.
    Ms. Shea-Porter. And, you know, Mr. Dell'Orto, these things 
happen. But that is why you have to have a thing to bring 
evidence so that we can figure out who is there lawfully, who 
committed crimes, and who did not. They can't see the 
classified evidence. Is that correct?
    Mr. Dell'Orto. The detainee himself or his representative?
    Ms. Shea-Porter. The detainee cannot see classified 
evidence.
    Mr. Dell'Orto. Correct. I mean----
    Ms. Shea-Porter. Okay. Who determines whether the evidence 
is classified or not?
    Mr. Dell'Orto. The original classification authority who 
would be the source of the information, whether it be one of 
the intelligence agencies or the commanders on the battlefield 
themselves.
    Ms. Shea-Porter. Okay. And the personal representative, 
again, is not a lawyer?
    Mr. Dell'Orto. Correct.
    Ms. Shea-Porter. Okay. So they may or may not know how to 
interpret whether that should be classified evidence or not?
    Mr. Dell'Orto. Well----
    Ms. Shea-Porter. As a matter of fact, I believe I heard 
they don't even see the classified evidence.
    Mr. Dell'Orto. No, they have access to the classified 
evidence. But I will tell you----
    Ms. Shea-Porter. Am I wrong when the attorney who sat in 
your seat earlier said that he doesn't even really know why his 
client is there, that he has not seen the classified evidence?
    Mr. Dell'Orto. No, I think we are talking about the 
personal representative. He does get an opportunity to see the 
classified evidence. And the notion of classified evidence is a 
military connotation. These are military officers. They know 
what the standards are for classification of information.
    Ms. Shea-Porter. Mr. Chairman, if I could just ask one last 
question.
    How come when you determine they are no longer enemies--
what standard do you use? You don't say guilty or not guilty. 
When did they shift from that to ``no longer'' instead of not 
an enemy combatant?
    Mr. Dell'Orto. The process at Guantanamo envisions 
continuing gathering of information. If their circumstances 
change because new information has become available that 
changes the original determination----
    Ms. Shea-Porter. So it is not no longer. It is simply not 
an enemy combatant.
    Mr. Dell'Orto. They are considered no longer to be an enemy 
combatant because new information may have surfaced to change 
that original determination or to update that original 
determination.
    Ms. Shea-Porter. Okay, so not an enemy combatant as in 
innocent?
    Mr. Dell'Orto. No, we are not talking about guilt or 
innocence here, ma'am. This is no longer an enemy combatant, an 
administrative determination based on the laws of armed 
conflict, not a judicial or criminal determination.
    Ms. Shea-Porter. Okay. But you understand the phrasing 
there, ``no longer an enemy combatant''? It would be clearer, I 
think, and am I correct when I am saying it turned out they 
were not an enemy combatant?
    Mr. Dell'Orto. Well, again, a commander has made a call on 
the ground. He has, as commanders traditionally do throughout 
our history based upon the circumstances and factors that are 
available to them on the ground in the heat of battle, you 
know, in a dusty hut somewhere as this individual is presented 
to him by his soldiers. This is who we picked up. This is what 
we found in his pockets. This is what people have told us about 
him.
    Ms. Shea-Porter. Okay.
    Mr. Dell'Orto. The commander has made that call.
    Ms. Shea-Porter. Right. Again, let me state that I 
certainly want to catch anybody who has any harm. But we should 
not catch those who did not intend us harm.
    Thank you, Mr. Chairman.
    The Chairman. I thank the gentlelady.
    I note the presence of the gentleman from Texas, Mr. 
Conaway.
    I understand you have no questions, however. Is that 
correct?
    Mr. Conaway. That is correct, Mr. Chairman. Thank you very 
much.
    The Chairman. All right. Thank you.
    Gentlemen, thank you. You have been excellent witnesses. We 
appreciate your being with us and your expertise.
    Mr. Katsas, your expertise on the preponderance of 
evidence, we thank you very much.
    Mr. Dell'Orto. Mr. Chairman, could I address that for a 
second to perhaps help?
    The Chairman. You know, I have been wanting to ask you that 
all afternoon since Mr. Katsas and I disagreed on it. Please go 
right ahead.
    Mr. Dell'Orto. And let me give you my background. As a----
    The Chairman. But now you must understand he is the expert 
since he actually argued the case itself. But you must yield to 
him as being the expert.
    Mr. Dell'Orto. I do in all matters of the law, Mr. 
Chairman.
    The Chairman. Go ahead.
    Mr. Dell'Orto. But let me at least from my more simplistic 
view of things offer this. If we conducted a combatant status 
review tribunal of an individual and the recorder introduced no 
evidence about that individual's situation, none, and the 
detainee, as it is his right to do under this system, said 
nothing, didn't object, said nothing, the government would not 
have carried its burden and he would be declared not to be or 
no longer an enemy combatant. And he would be released.
    I mean, that is what all burden is all about. If the 
government produced no evidence, he would win without saying a 
word of his own. That is my more simplistic view based upon my 
years as a prosecutor, defense counsel, trial and appellate 
judge.
    The Chairman. Thank you. Thank you very much.
    Gentlemen, thank you. This has been an excellent hearing. 
And we are most appreciative.
    And to the members, thank you.
    [Whereupon, at 2:06 p.m., the committee was adjourned.]
?

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



 
                            A P P E N D I X

                             July 26, 2007

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

      
?

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


              PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                             July 26, 2007

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

      
      
    [GRAPHIC] [TIFF OMITTED] T5067.001
    
    [GRAPHIC] [TIFF OMITTED] T5067.002
    
    [GRAPHIC] [TIFF OMITTED] T5067.003
    
    [GRAPHIC] [TIFF OMITTED] T5067.004
    
    [GRAPHIC] [TIFF OMITTED] T5067.005
    
    [GRAPHIC] [TIFF OMITTED] T5067.006
    
    [GRAPHIC] [TIFF OMITTED] T5067.007
    
    [GRAPHIC] [TIFF OMITTED] T5067.008
    
    [GRAPHIC] [TIFF OMITTED] T5067.009
    
    [GRAPHIC] [TIFF OMITTED] T5067.010
    
    [GRAPHIC] [TIFF OMITTED] T5067.011
    
    [GRAPHIC] [TIFF OMITTED] T5067.012
    
    [GRAPHIC] [TIFF OMITTED] T5067.013
    
    [GRAPHIC] [TIFF OMITTED] T5067.014
    
    [GRAPHIC] [TIFF OMITTED] T5067.015
    
    [GRAPHIC] [TIFF OMITTED] T5067.016
    
    [GRAPHIC] [TIFF OMITTED] T5067.017
    
    [GRAPHIC] [TIFF OMITTED] T5067.018
    
    [GRAPHIC] [TIFF OMITTED] T5067.019
    
    [GRAPHIC] [TIFF OMITTED] T5067.020
    
    [GRAPHIC] [TIFF OMITTED] T5067.021
    
    [GRAPHIC] [TIFF OMITTED] T5067.022
    
    [GRAPHIC] [TIFF OMITTED] T5067.023
    
    [GRAPHIC] [TIFF OMITTED] T5067.024
    
    [GRAPHIC] [TIFF OMITTED] T5067.025
    
    [GRAPHIC] [TIFF OMITTED] T5067.026
    
    [GRAPHIC] [TIFF OMITTED] T5067.027
    
    [GRAPHIC] [TIFF OMITTED] T5067.028
    
    [GRAPHIC] [TIFF OMITTED] T5067.029
    
    [GRAPHIC] [TIFF OMITTED] T5067.030
    
    [GRAPHIC] [TIFF OMITTED] T5067.031
    
    [GRAPHIC] [TIFF OMITTED] T5067.032
    
    [GRAPHIC] [TIFF OMITTED] T5067.033
    
    [GRAPHIC] [TIFF OMITTED] T5067.034
    
    [GRAPHIC] [TIFF OMITTED] T5067.035
    
    [GRAPHIC] [TIFF OMITTED] T5067.036
    
    [GRAPHIC] [TIFF OMITTED] T5067.037
    
    [GRAPHIC] [TIFF OMITTED] T5067.038
    
    [GRAPHIC] [TIFF OMITTED] T5067.039
    
    [GRAPHIC] [TIFF OMITTED] T5067.040
    
    [GRAPHIC] [TIFF OMITTED] T5067.041
    
    [GRAPHIC] [TIFF OMITTED] T5067.042
    
    [GRAPHIC] [TIFF OMITTED] T5067.043
    
    [GRAPHIC] [TIFF OMITTED] T5067.044
    
    [GRAPHIC] [TIFF OMITTED] T5067.045
    
    [GRAPHIC] [TIFF OMITTED] T5067.046
    
    [GRAPHIC] [TIFF OMITTED] T5067.047
    
    [GRAPHIC] [TIFF OMITTED] T5067.048
    
    [GRAPHIC] [TIFF OMITTED] T5067.049
    
    [GRAPHIC] [TIFF OMITTED] T5067.050
    
    [GRAPHIC] [TIFF OMITTED] T5067.051
    
    [GRAPHIC] [TIFF OMITTED] T5067.052
    
    [GRAPHIC] [TIFF OMITTED] T5067.053
    
    [GRAPHIC] [TIFF OMITTED] T5067.054
    
    [GRAPHIC] [TIFF OMITTED] T5067.055
    
    [GRAPHIC] [TIFF OMITTED] T5067.056
    
    [GRAPHIC] [TIFF OMITTED] T5067.057
    
    [GRAPHIC] [TIFF OMITTED] T5067.058
    
    [GRAPHIC] [TIFF OMITTED] T5067.059
    
    [GRAPHIC] [TIFF OMITTED] T5067.060
    
    [GRAPHIC] [TIFF OMITTED] T5067.061
    
    [GRAPHIC] [TIFF OMITTED] T5067.062
    
    [GRAPHIC] [TIFF OMITTED] T5067.063
    
    [GRAPHIC] [TIFF OMITTED] T5067.064
    
    [GRAPHIC] [TIFF OMITTED] T5067.065
    
    [GRAPHIC] [TIFF OMITTED] T5067.066
    
    [GRAPHIC] [TIFF OMITTED] T5067.067
    
    [GRAPHIC] [TIFF OMITTED] T5067.068
    
    [GRAPHIC] [TIFF OMITTED] T5067.069
    
    [GRAPHIC] [TIFF OMITTED] T5067.070
    
    [GRAPHIC] [TIFF OMITTED] T5067.071
    
    [GRAPHIC] [TIFF OMITTED] T5067.072
    
    [GRAPHIC] [TIFF OMITTED] T5067.073
    
    [GRAPHIC] [TIFF OMITTED] T5067.074
    
    [GRAPHIC] [TIFF OMITTED] T5067.075
    
    [GRAPHIC] [TIFF OMITTED] T5067.076
    
    [GRAPHIC] [TIFF OMITTED] T5067.077
    
    [GRAPHIC] [TIFF OMITTED] T5067.078
    
    [GRAPHIC] [TIFF OMITTED] T5067.079
    
    [GRAPHIC] [TIFF OMITTED] T5067.080
    
    [GRAPHIC] [TIFF OMITTED] T5067.081
    
    [GRAPHIC] [TIFF OMITTED] T5067.082
    
    [GRAPHIC] [TIFF OMITTED] T5067.083
    
    [GRAPHIC] [TIFF OMITTED] T5067.084
    
    [GRAPHIC] [TIFF OMITTED] T5067.085
    
    [GRAPHIC] [TIFF OMITTED] T5067.086
    
    [GRAPHIC] [TIFF OMITTED] T5067.087
    
    [GRAPHIC] [TIFF OMITTED] T5067.088
    
    [GRAPHIC] [TIFF OMITTED] T5067.089
    
    [GRAPHIC] [TIFF OMITTED] T5067.090
    
    [GRAPHIC] [TIFF OMITTED] T5067.091
    
    [GRAPHIC] [TIFF OMITTED] T5067.092
    
    [GRAPHIC] [TIFF OMITTED] T5067.093
    
    [GRAPHIC] [TIFF OMITTED] T5067.094
    
    [GRAPHIC] [TIFF OMITTED] T5067.095
    
    [GRAPHIC] [TIFF OMITTED] T5067.096
    
?

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


                   DOCUMENTS SUBMITTED FOR THE RECORD

                             July 26, 2007

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

      
      
    [GRAPHIC] [TIFF OMITTED] T5067.109
    
    [GRAPHIC] [TIFF OMITTED] T5067.110
    
    [GRAPHIC] [TIFF OMITTED] T5067.111
    
    [GRAPHIC] [TIFF OMITTED] T5067.112
    
    [GRAPHIC] [TIFF OMITTED] T5067.113
    
    [GRAPHIC] [TIFF OMITTED] T5067.114
    
    [GRAPHIC] [TIFF OMITTED] T5067.115
    
    [GRAPHIC] [TIFF OMITTED] T5067.116
    
    [GRAPHIC] [TIFF OMITTED] T5067.117
    
    [GRAPHIC] [TIFF OMITTED] T5067.118
    
    [GRAPHIC] [TIFF OMITTED] T5067.119
    
    [GRAPHIC] [TIFF OMITTED] T5067.120
    
    [GRAPHIC] [TIFF OMITTED] T5067.121
    
    [GRAPHIC] [TIFF OMITTED] T5067.122
    
    [GRAPHIC] [TIFF OMITTED] T5067.123
    
    [GRAPHIC] [TIFF OMITTED] T5067.124
    
    [GRAPHIC] [TIFF OMITTED] T5067.125
    
    [GRAPHIC] [TIFF OMITTED] T5067.126
    
    [GRAPHIC] [TIFF OMITTED] T5067.127
    
    [GRAPHIC] [TIFF OMITTED] T5067.128
    
    [GRAPHIC] [TIFF OMITTED] T5067.129
    
    [GRAPHIC] [TIFF OMITTED] T5067.130
    
    [GRAPHIC] [TIFF OMITTED] T5067.131
    
    [GRAPHIC] [TIFF OMITTED] T5067.132
    
    [GRAPHIC] [TIFF OMITTED] T5067.133
    
    [GRAPHIC] [TIFF OMITTED] T5067.134
    
    [GRAPHIC] [TIFF OMITTED] T5067.135
    
    [GRAPHIC] [TIFF OMITTED] T5067.136
    
    [GRAPHIC] [TIFF OMITTED] T5067.097
    
    [GRAPHIC] [TIFF OMITTED] T5067.098
    
    [GRAPHIC] [TIFF OMITTED] T5067.099
    
    [GRAPHIC] [TIFF OMITTED] T5067.100
    
    [GRAPHIC] [TIFF OMITTED] T5067.101
    
    [GRAPHIC] [TIFF OMITTED] T5067.102
    
    [GRAPHIC] [TIFF OMITTED] T5067.103
    
    [GRAPHIC] [TIFF OMITTED] T5067.104
    
    [GRAPHIC] [TIFF OMITTED] T5067.105
    
    [GRAPHIC] [TIFF OMITTED] T5067.106
    
    [GRAPHIC] [TIFF OMITTED] T5067.107
    
    [GRAPHIC] [TIFF OMITTED] T5067.108
    
    [GRAPHIC] [TIFF OMITTED] T5067.137
    
    [GRAPHIC] [TIFF OMITTED] T5067.138
    
    [GRAPHIC] [TIFF OMITTED] T5067.140
    
    [GRAPHIC] [TIFF OMITTED] T5067.141
    
    [GRAPHIC] [TIFF OMITTED] T5067.142
    
    [GRAPHIC] [TIFF OMITTED] T5067.139
    
    [GRAPHIC] [TIFF OMITTED] T5067.143
    
    [GRAPHIC] [TIFF OMITTED] T5067.144
    
    [GRAPHIC] [TIFF OMITTED] T5067.145
    
    [GRAPHIC] [TIFF OMITTED] T5067.146
    
    [GRAPHIC] [TIFF OMITTED] T5067.147
    
    [GRAPHIC] [TIFF OMITTED] T5067.148
    
    [GRAPHIC] [TIFF OMITTED] T5067.149
    
    [GRAPHIC] [TIFF OMITTED] T5067.150
    
    [GRAPHIC] [TIFF OMITTED] T5067.151
    
    [GRAPHIC] [TIFF OMITTED] T5067.152
    
    [GRAPHIC] [TIFF OMITTED] T5067.153
    
    [GRAPHIC] [TIFF OMITTED] T5067.154
    
    [GRAPHIC] [TIFF OMITTED] T5067.155
    
    [GRAPHIC] [TIFF OMITTED] T5067.156
    
    [GRAPHIC] [TIFF OMITTED] T5067.157
    
    [GRAPHIC] [TIFF OMITTED] T5067.158
    
    [GRAPHIC] [TIFF OMITTED] T5067.159
    
    [GRAPHIC] [TIFF OMITTED] T5067.160
    
    [GRAPHIC] [TIFF OMITTED] T5067.161
    
    [GRAPHIC] [TIFF OMITTED] T5067.162
    
    [GRAPHIC] [TIFF OMITTED] T5067.163
    
    [GRAPHIC] [TIFF OMITTED] T5067.164
    
    [GRAPHIC] [TIFF OMITTED] T5067.165
    
    [GRAPHIC] [TIFF OMITTED] T5067.166
    
    [GRAPHIC] [TIFF OMITTED] T5067.167
    
    [GRAPHIC] [TIFF OMITTED] T5067.168
    
    [GRAPHIC] [TIFF OMITTED] T5067.169
    
    [GRAPHIC] [TIFF OMITTED] T5067.170
    
    [GRAPHIC] [TIFF OMITTED] T5067.171
    
?

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


              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             July 26, 2007

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

      
                   QUESTIONS SUBMITTED BY MR. SKELTON

    The Chairman. As of August 1, 2007, are the United States Armed 
Forces applying Army Regulation 190-8 in Iraq and Afghanistan?
    Mr. Dell'Orto. Army Regulation 190-8 is being applied by the United 
States Armed Forces in Iraq and Afghanistan as of August 1, 2007, as it 
was before that date. As with all doctrine, it is subject to further 
guidance issued by the chain of command.
    The Chairman. In response to a question, Admiral McGarrah (Ret.) 
stated that he intended to submit for the record a letter which he says 
you sent to him, expressing your desire not to be assigned to any 
future Combatant Status Review Tribunal (CSRT). Did you submit such a 
letter? If so, what reasons did you have for such a submission?
    Mr. Abraham. As to the first question, Admiral McGarrah has 
mischaracterized my letter of December 10, 2004. Attached is a copy of 
the letter that I sent to Admiral McGarrah. The letter was not a 
request to not be assigned to any future CSRT but, rather, a request to 
be released from my tour of duty at OARDEC. The letter made no specific 
reference to my assignment as a CSRT panel member.
    [The information referred to can be found in the Appendix on page 
267.]
    I wrote the letter because of my considerable concerns about 
participating in the process of prosecuting the CSRTs where my 
questions regarding the lack of fairness and absence of constitutional 
due process were repeatedly ignored. My concerns did not relate 
specifically to my service on a CSRT panel, where, at least, I had the 
ability to challenge evidence that I found to be insufficient, even if 
my panel's decision might later be reversed. Rather I was concerned 
about assisting in the prosecution of the CSRT cases by compiling 
evidence that I knew was not reliable or sufficient.
    As a lawyer, I was familiar with the Supreme Court's decisions in 
Rasul v. Bush and Hamdi v. Rumsfeld, and I was concerned that my 
participation in the prosecution of CSRT cases did not respect the 
Constitution or the Supreme Court's decisions. When I addressed these 
concerns with Rear Admiral McGarrah and Captain Sweigart, they were 
dismissive. When I addressed my concerns with OARDEC's legal advisor, 
he informed me that other lawyers had expressed similar concerns and 
that the Department of Defense would probably not offer any protection 
if allegations of misconduct were made against me by my state bars or 
in federal court.
    After I submitted the December 10th letter to Admiral McGarrah, I 
was not assigned to another CSRT. No explanation was given. However, I 
was told that I would continue in my other assignments at OARDEC 
notwithstanding my specific request. This did nothing to assuage my 
concerns about my duties and potential liability that I might face upon 
return to my law practice. In fact, the response to my letter was 
directly counter to my request and increased my concern. As a Tribunal 
member, I could act in accordance with my obligations under the 
Constitution notwithstanding the deficiencies about which I previously 
testified. However, I saw no way that I could perform other tasks in 
support of the CSRT process, a fundamentally flawed process, without 
violating my legal and ethical duties.
    The Chairman. In addition to the one CSRT on which you served on 
the Tribunal, in how many other CSRTs did you actively participate in 
the preparation of the materials for the CSRT hearings? What was the 
nature of your participation on these other CSRTs?
    Mr. Abraham. The CSRT process, generally speaking, consisted of two 
phases, a preparatory phase and a hearing phase. Between October 1, 
2004 and December 8, 2004, OARDEC prepared more than 200 research 
packages for CSRT hearings and conducted approximately 350 hearings. I 
was involved, to varying degrees, in each of the packages and its 
associated hearing.
    I was closely involved in every aspect of the preparatory phase. At 
the outset, I singlehandedly created the database that not only tracked 
all aspects of the CSRT process in DC but served as the repository of 
information collected and assembled for use in the CSRTs both in 
Washington and in Guantanamo.
    I personally coordinated with various agencies and reviewed 
information received from those agencies regarding most of the 
detainees for whom Tribunals were held between October and December and 
many others thereafter. Notwithstanding fundamental constraints imposed 
upon and by OARDEC, this coordination resulted in increased access to 
information by research writers.
    I reviewed thousands of documents that were used by the Recorders 
and Tribunal members during the CSRT hearings in nearly all of those 
cases. Throughout the process, I worked closely with the researchers, 
answering questions regarding particular intelligence products or the 
source agencies. My involvement constituted one of the only instances 
of substantive and critical review of intelligence information used in 
support of the hearings.
    I was directly involved in the revisions of the templates that were 
used to structure the unclassified and classified summaries for the 
hundreds of CSRT's for which research was conducted in OARDEC's DC 
offices. I was involved in the compilation of information and inputs 
from research writers and others that was used to prepare the materials 
to be presented to the Tribunals.
    Ultimately, my direct involvement touched upon nearly every aspect 
of the CSRT process, from the moment that a detainee's hearing was 
scheduled until the hearing packets were received by the Tribunals.
    The Chairman. Do you agree with the proposition that ``the 
military's determination to detain an alien overseas as an enemy 
combatant in an armed conflict has never been reviewable in civilian 
court''? Why or why not? Even if correct, is this proposition 
applicable to the detainees at the U.S. Naval Station, Guantanamo Bay, 
Cuba?
    Mr. Oleskey. First, I disagree that the proposition quoted above is 
accurate. Aliens detained by the military as enemy combatants have 
always had the right to contest the factual basis for their 
classification, wherever they were detained--so long as it was within 
the jurisdiction of functioning civilian courts and away from active 
hostilities. See, e.g., Case of Three Spanish Sailors, 96 Eng. Rep. 775 
(C.P. 1779) (taking evidence in challenge by prisoners of war to their 
detention); R. v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) (reviewing 
affidavits submitted by petitioner and a third party in review of a 
Swedish national's detention as a prisoner of war); Du Castro's Case, 
92 Eng. Rep. 816 (K.B. 1697) (ordering discharge of alleged foreign 
spy); cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121 (1866) (reviewing 
citizen's challenge to his classification as a prisoner of war).
    This is no less true where prisoners are held overseas. In the case 
of Yamashita v. Styer, for example, the Supreme Court reviewed a habeas 
challenge brought by a Japanese general in United States custody in the 
Philippines. 327 U.S. 1 (1946). Despite the fact that Yamashita was 
held in overseas military custody as an enemy combatant and was a 
convicted war criminal, the Supreme Court exercised jurisdiction over 
his challenge to his detention. See id. at 25 (``We therefore conclude 
that the detention of petitioner for trial and his detention upon his 
conviction, subject to the prescribed review by the military 
authorities, were lawful.''). Indeed, the Supreme Court considered not 
only whether the military commission that tried Yamashita had lawful 
jurisdiction, but also the substantive question whether the commission 
which tried him had ``violate[d] any military, statutory, or 
constitutional command.'' Id.; see also, e.g., 18-19 (adjudicating 
challenge to prosecution's use of deposition testimony as well as other 
hearsay and opinion evidence).
    Second, even if the proposition quoted above were correct as 
applied to certain overseas detention facilities, it would certainly be 
inaccurate as applied to Guantanamo Bay. In fact, the Supreme Court has 
already held that Guantanamo detainees had the right to challenge their 
imprisonment, because ``the federal courts have jurisdiction to 
determine the legality of the Executive's potentially indefinite 
detention of individuals who claim to be wholly innocent of 
wrongdoing.'' Rasul v. Bush, 542 U.S. 466, 484 n.15, 485 (2004).
    Even though the statutory framework has changed in the three years 
since Rasul was decided, I note that the Supreme Court has also held as 
a constitutional matter that, ``at the absolute minimum, the Suspension 
Clause protects the writ `as it existed in 1789.' INS v. St. Cyr, 533 
U.S. 289, 301 (2001) (quoting Felker v. Turpin, 518 U.S. 651, 663-664 
(1996)). In this context, it has already been established by the 
Supreme Court that the historical writ of habeas corpus--which permits 
prisoners to test the lawfulness of executive detention before an 
independent judge in civilian courts--would have extended to detainees 
at Guantanamo Bay. As explained in Rasul, the right of ``persons 
detained at the [Guantanamo] base'' to challenge their detention on 
habeas is wholly ``consistent with the historical reach of the writ of 
habeas corpus.'' 542 U.S. at 481. In sum, because petitioners held 
under similar circumstances at the time of the Founding would have had 
access to habeas review, detainees at Guantanamo Bay cannot be denied 
access to such review unless Congress validly suspends habeas corpus, 
which it has not done here.
    Moreover, habeas corpus extends to Guantanamo Bay because the naval 
base there ``is in every practical respect a United States territory, 
and it is one far removed from any hostilities.'' Id. at 487 (Kennedy, 
J., concurring in the judgment). Because ``the indefinite lease of 
Guantanamo Bay has produced a place that belongs to the United 
States,'' the United States' permanent ownership and control has 
extended ``the `implied protection' of the United States to it.'' Id. 
(quoting Johnson v. Eisentrager, 339 U.S. 763, 777-778 (1950)). In such 
circumstances, far from any battlefield, military claims of a right to 
detain present ``a weaker case of military necessity and much greater 
alignment with the traditional fimction of habeas corpus.'' Id. at 488.
    The Chairman. Beyond the U.S. Naval Station, Guantanamo Bay, Cuba, 
what was the extraterritorial reach of 28 U.S.C. Sec. 2241 before the 
enactment of Detainee Treatment Act of 2005 (DTA)? After the DTA but 
before the enactment of Military Commissions Act of 2006 (MCA)? After 
the MCA?
    Mr. Katsas. [The information referred to was not available at the 
time of printing.]
    The Chairman. How many habeas petitions had been filed in United 
States federal district courts on behalf of detainees in Iraq or 
Afghanistan from October 31, 2001, to August 1, 2007? Have these 
petitions generally been dismissed?
    Mr. Katsas. [The information referred to was not available at the 
time of printing.]
    The Chairman. In the last five years, on average, how many habeas 
petitions have been filed in United States federal district courts by 
detainees or prisoners in the United States?
    Mr. Katsas. [The information referred to was not available at the 
time of printing.]

                                  
