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


                                     

                         [H.A.S.C. No. 110-167]
 
                      IMPLICATIONS OF THE SUPREME
                    COURT'S BOUMEDIENE DECISION FOR
                   DETAINEES AT GUANTANAMO BAY, CUBA:
                      ADMINISTRATION PERSPECTIVES

                               __________

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD

                             JULY 31, 2008


                                     
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                   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        W. TODD AKIN, Missouri
ROBERT ANDREWS, New Jersey           J. RANDY FORBES, Virginia
SUSAN A. DAVIS, California           JEFF MILLER, Florida
RICK LARSEN, Washington              JOE WILSON, South Carolina
JIM COOPER, Tennessee                FRANK A. LoBIONDO, New Jersey
JIM MARSHALL, Georgia                TOM COLE, Oklahoma
MADELEINE Z. BORDALLO, Guam          ROB BISHOP, Utah
MARK E. UDALL, Colorado              MICHAEL TURNER, Ohio
DAN BOREN, Oklahoma                  JOHN KLINE, Minnesota
BRAD ELLSWORTH, Indiana              PHIL GINGREY, Georgia
NANCY BOYDA, Kansas                  MIKE ROGERS, Alabama
PATRICK J. MURPHY, Pennsylvania      TRENT FRANKS, Arizona
HANK JOHNSON, Georgia                BILL SHUSTER, Pennsylvania
CAROL SHEA-PORTER, New Hampshire     THELMA DRAKE, Virginia
JOE COURTNEY, Connecticut            CATHY McMORRIS RODGERS, Washington
DAVID LOEBSACK, Iowa                 K. MICHAEL CONAWAY, Texas
KIRSTEN E. GILLIBRAND, New York      GEOFF DAVIS, Kentucky
JOE SESTAK, Pennsylvania             DOUG LAMBORN, Colorado
GABRIELLE GIFFORDS, Arizona          ROB WITTMAN, Virginia
NIKI TSONGAS, Massachusetts
ELIJAH E. CUMMINGS, Maryland
KENDRICK B. MEEK, Florida
KATHY CASTOR, Florida
                    Erin C. Conaton, Staff Director
                     Paul Oostburg, General Counsel
                Thomas Hawley, Professional Staff Member
                    Caterina Dutto, Staff Assistant


                            C O N T E N T S

                              ----------                              

                     CHRONOLOGICAL LIST OF HEARINGS
                                  2008

                                                                   Page

Hearing:

Thursday, July 31, 2008, Implications of the Supreme Court's 
  Boumediene Decision for Detainees at Guantanamo Bay, Cuba: 
  Administration Perspectives....................................     1

Appendix:

Thursday, July 31, 2008..........................................    31
                              ----------                              

                        THURSDAY, JULY 31, 2008
 IMPLICATIONS OF THE SUPREME COURT'S BOUMEDIENE DECISION FOR DETAINEES 
          AT GUANTANAMO BAY, CUBA: ADMINISTRATION PERSPECTIVES
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Hunter, Hon. Duncan, a Representative from California, Ranking 
  Member, Committee on Armed Services............................     1
Skelton, Hon. Ike, a Representative from Missouri, Chairman, 
  Committee on Armed Services....................................     1

                               WITNESSES

Dell'Orto, Daniel J., Acting General Counsel, Department of 
  Defense; Gregory G. Katsas, Assistant Attorney General, Civil 
  Division, Department of Justice; Col. Steven David, USA, Chief 
  Defense Counsel, Office of Military Commissions, Department of 
  Defense; and Sandra Hodgkinson, Deputy Assistant Secretary for 
  Detainee Affairs, Department of Defense, beginning on page.....     2

                                APPENDIX

Prepared Statements:

    David, Col. Steven...........................................    58
    Dell'Orto, Daniel J..........................................    35
    Katsas, Gregory G............................................    44

Documents Submitted for the Record:

    Supplemental Testimony of Steven David, Colonel, United 
      States Army Reserve, Chief Defense Counsel, Department of 
      Defense, Office of Military Commissions....................    71

Witness Responses to Questions Asked During the Hearing:

    [The information was not available at the time of printing.]

Questions Submitted by Members Post Hearing:

    Mr. Skelton..................................................    87


              IMPLICATIONS OF THE SUPREME COURT'S BOUMEDI-
  ENE DECISION FOR DETAINEES AT GUANTANAMO BAY, CUBA: ADMINISTRATION 
                              PERSPECTIVES

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                           Washington, DC, Thursday, July 31, 2008.
    The committee met, pursuant to call, at 2:04 p.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. Good afternoon. Our committee will come to 
order.
    This afternoon, we have the second part of our series of 
hearings on the implication of the Boumediene decision from the 
United States Supreme Court.
    For this afternoon's panel, we have Mr. Daniel Dell'Orto, 
who is the Acting General Counsel for the Department of 
Defense; Gregory Katsas, who is the Assistant Attorney General 
for the Civil Division of the Justice Department; Colonel Steve 
David, the Chief Defense Counsel in the Office of Military 
Commissions in the Department of Defense; and Sandra 
Hodgkinson, who is the Deputy Assistant Secretary for Detainee 
Affairs in the Department of Defense, who will not testify but 
will be available for questions. Am I correct?
    Ms. Hodgkinson. Yes, sir.
    The Chairman. Ranking Member Duncan Hunter, remarks.

    STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM 
    CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES

    Mr. Hunter. Mr. Chairman, let's get right with the program 
here; and I look forward to the witnesses' statements. I am 
sure we will have some good questions afterwards.
    The Chairman. Thank you.

  STATEMENTS OF DANIEL J. DELL'ORTO, ACTING GENERAL COUNSEL, 
 DEPARTMENT OF DEFENSE; GREGORY G. KATSAS, ASSISTANT ATTORNEY 
  GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE; COL. STEVEN 
     DAVID, USA, CHIEF DEFENSE COUNSEL, OFFICE OF MILITARY 
  COMMISSIONS, DEPARTMENT OF DEFENSE; AND SANDRA HODGKINSON, 
DEPUTY ASSISTANT SECRETARY FOR DETAINEE AFFAIRS, DEPARTMENT OF 
                            DEFENSE

    The Chairman. Mr. Dell'Orto, you are on.

                STATEMENT OF DANIEL J. DELL'ORTO

    Mr. Dell'Orto. Thank you, Mr. Chairman, Ranking Member 
Hunter, and members of the committee for the opportunity to 
testify on the implications of the Supreme Court's Boumediene 
decision for detainees at Guantanamo Bay, Cuba.
    The Department of Defense is working diligently to satisfy 
the considerable litigation requirements stemming from the 
Supreme Court's decision in Boumediene v. Bush. The 
ramifications of that decision for the Department of Defense 
and for our Nation are significant. The Department already has 
experienced some of these ramifications, while others are 
looming in the near future and still others are as yet unknown. 
As significant as Boumediene is, it is only one in a recent 
line of decisions that establish an unprecedented level of 
judicial involvement in matters historically and, in the 
Department's view, most appropriately reserved to military 
professionals, including decisions on whom to detain as enemy 
combatants in an ongoing armed conflict.
    There are currently more than 250 petitions for the writ of 
habeas corpus pending in federal district court that involve 
more than 300 current or former Guantanamo detainees. Now that 
the Supreme Court has ruled that these petitions may proceed, 
the Department is diverting personnel and assets from other 
ongoing missions to respond to them. Those diverted are not 
just legal personnel and administrative assets. We also have 
diverted or are in the process of diverting substantial numbers 
of intelligence assets to support this litigation.
    The Department's immediate challenge is that what the law 
requires is currently unclear. As the Attorney General noted in 
a July 21st, 2008, speech, the Supreme Court explicitly left 
many questions unanswered in Boumediene. The Court said that 
Guantanamo detainees have a constitutional right to pursue 
habeas proceedings in federal court. The Court did not say how 
these cases would proceed or what procedures and standards 
would apply. Given this lack of direction, and in the absence 
of legislation, the rules governing habeas proceedings for 
detainees at Guantanamo will be devised on an ad hoc basis in 
federal district courts.
    Although we do not know what the federal district courts 
will decree as the ultimate requirements for these proceedings, 
we anticipate a number of potential problems.
    First, these habeas proceedings could require the diversion 
of significant operational, law enforcement, and security 
resources, in addition to administrative, legal, and 
intelligence resources. In addition to the significant 
resources the Department already is devoting to this 
litigation, if judges order the in-person appearance of 
detainees at hearings, numerous security assets would need to 
be devoted to the task.
    As alarming, if federal district court judges issue 
subpoenas requiring in-person testimony of those who gathered 
the relevant information pertaining to a habeas petitioner, 
combat troops, intelligence personnel, and other critical 
military and civilian personnel may need to be pulled from the 
theater of combat operations and sent to Washington, DC, to 
answer questions from detainees' lawyers.
    As Justice Jackson presciently noted in Johnson v. 
Eisentrager in 1950, and I quote, ``It would be difficult to 
devise more effective fettering of a field commander 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.''
    Indeed, the Supreme Court, in Boumediene, acknowledged that 
the conduct of habeas proceedings for Guantanamo detainees 
could raise national security issues.
    Second, the rules for habeas proceedings could affect how 
our soldiers, sailors, airmen, and marines fight on 
battlefields around the world. It must be emphasized that 
petitioners in these cases have been detained under the law of 
war during an ongoing armed conflict. These are not the typical 
habeas proceedings in a civilian context with which the federal 
judiciary is familiar. Judges could require arrest reports, 
chain of custody authentication reports, or other evidentiary 
processes. Rulings that evidence must be excluded or that a 
detainee must be freed because certain evidentiary processes, 
relevant to a civilian but not a wartime environment, were not 
followed, would, in effect, serve to regulate our troops on the 
battlefield, just as judges, in effect, regulate the local 
police in civilian life.
    Third, habeas proceedings could be used as a vehicle for 
detainees charged with war crimes to attempt to halt or delay 
their military commission trials. The Supreme Court ruling in 
Boumediene was focused on challenges to the lawfulness of 
detention, not on military commission procedures as provided in 
the Military Commissions Act.
    Further, the Court looked favorably on the adversarial 
proceedings of prior military commissions. Although a federal 
district court judge recently rejected the effort of one 
detainee to block his military commission trial, another 
detainee already has filed a court challenge to stop his 
military commission from moving forward, and others almost 
certainly will follow. As the Attorney General explained, 
Americans charged with crimes in our courts must wait until 
after their trials and appeals are finished before they can 
seek habeas relief. So should alien enemy combatants.
    Finally, the Supreme Court, while providing access for 
detainees to the federal district courts for habeas 
proceedings, let stand the alternative route to the Court of 
Appeals for the District of Columbia Circuit Court under the 
Detainee Treatment Act. Detainees now have two separate and 
redundant legal channels through which they can challenge the 
legality of their detention, one under the Detainee Treatment 
Act and the other under the Constitution. This dual-track 
challenge to detention only serves to strain the resources of 
the Department further, providing detainees greater 
opportunities to challenge their detention than those that are 
available to U.S. citizens imprisoned in the United States.
    These are but a few of the concerns we have about 
Guantanamo detainee habeas proceedings and their consequences 
for the Department. We recognize that there are opposing 
considerations and that writing the rules governing these 
habeas proceedings will require a difficult balancing of 
interests. The Department acknowledges and respects the 
judgment and expertise of the federal courts. Nevertheless, 
Congress is best suited to conduct this balancing and to write 
the rules for habeas proceedings for detainees at Guantanamo 
Bay.
    The federal district courts do not have the institutional 
competency that Congress has to address these questions 
effectively and efficiently, appropriately taking into account 
national security concerns and the potential impact on ongoing 
military operations. Further, judges might impose conflicting 
rules, putting the Department in an untenable position at least 
until those differences can be resolved in higher courts after 
considerable delay and uncertainty while the war on terror 
continues. Although the D.C. District Court is attempting to 
coordinate the cases to some degree, many substantive issues 
likely will be determined by multiple judges in individual 
cases.
    Finally, unlike Congress, federal judges cannot consider 
and refine the entire statutory framework of Guantanamo 
detainee legal process. By providing rules for habeas 
proceedings, Congress can ensure that habeas proceedings do not 
delay trials by military commission and justice for the victims 
of the September 11th, 2001, attacks. Congress can ensure that 
the government does not waste resources litigating and 
relitigating the very same issues in the more than 250 pending 
habeas petitions and in the more than 190 cases in the United 
States Court of Appeals for the District of Columbia Circuit 
under the Detainee Treatment Act. Legislation, not litigation, 
is the best vehicle for writing these rules.
    The Department of Defense fully supports the six specific 
principles that the Attorney General suggested should guide the 
legislation of rules for habeas proceedings for detainees at 
Guantanamo Bay, Cuba, as he articulated in his recent speech.
    First, Congress should make clear that federal courts may 
not order the government to bring, admit, or release those 
detained at Guantanamo Bay into the United States.
    Second, Congress should ensure our national security 
secrets are protected and that terrorists do not use these 
proceedings as a means to discover what we know about them and 
how we acquired that information.
    Third, Congress should make clear that habeas proceedings 
should not delay the military commission trials of detainees 
charged with war crimes.
    Fourth, Congress should explicitly reaffirm that the United 
States remains engaged in an armed conflict with al Qaeda, the 
Taliban, and associated organizations and that the United 
States may detain as enemy combatants those who have engaged in 
hostilities or purposefully supported al Qaeda, the Taliban, 
and associated organizations.
    Fifth, Congress should establish sensible procedures 
adapted to the realities of national security. To eliminate 
duplicative efforts and inconsistent rulings, one district 
court should have exclusive jurisdiction over these habeas 
cases, and common legal issues should be decided by one judge 
in a coordinated fashion. Military service members should not 
be required by subpoenas to leave the front lines to testify as 
witnesses in habeas hearings. Affidavits prepared after 
battlefield activities have ceased should suffice. Military 
members should not be required to create such documents as the 
arrest reports and chain of custody logs that civilian law 
enforcement entities use.
    Sixth, Congress should make clear that the detainees cannot 
pursue other forms of litigation to challenge their detention. 
Congress should eliminate statutory judicial review under the 
Detainee Treatment Act. Congress should reaffirm its previous 
decision to eliminate other burdensome litigation not required 
by the Constitution, such as challenges to conditions of 
confinement or transfers out of U.S. custody.
    Along these lines, the Department of Defense requests that 
legislation expressly confirm that the habeas jurisdiction of 
the federal courts does not extend beyond the holding of 
Boumediene. We believe this proposition is reflected in the 
current law following Boumediene, which extended constitutional 
habeas jurisdiction based on the unique circumstances 
prevailing at Guantanamo Bay.
    It goes without saying, however, that all of the 
difficulties that we face with respect to the Guantanamo habeas 
petitions would pale in comparison to the difficulties we would 
encounter were federal court jurisdiction extended to those 
detained in or near a zone of active hostilities, such as in 
Iraq and Afghanistan. The burden of litigating the petitions of 
some 270 detainees at Guantanamo is considerable, but the 
prospect of litigating the petitions of multiple hundreds of 
alien detainees in Afghanistan and tens of thousands of alien 
detainees in Iraq would simply be crippling. The Constitution 
of the United States hardly contemplates such a result.
    In conclusion, although the topic of today's hearing is the 
implications of the Supreme Court's Boumediene decision for 
detainees at Guantanamo Bay, Cuba, I have begun by discussing 
the implications of Boumediene for the Department of Defense. 
In my current position as Acting General Counsel of the 
Department of Defense, as in my previous career as a judge 
advocate and Army line officer for more than 27 years, my 
foremost duty has always been to our troops, to ensure that 
they can lawfully do what is necessary to fight and win our 
Nation's wars and to defend our Nation from attacks, whether 
those attacks come from adversary nations or from nonstate 
actors such as al Qaeda.
    We must remain mindful that the enemy we face today and 
have faced since the early 1990's uses 21st century technology 
to perpetrate brutal, indiscriminate attacks on civilians. As 
the Congress considers legislation in response to Boumediene 
and weighs the many important interests at stake, I 
respectfully trust that you will carefully consider this as 
well.
    Thank you very much.
    [The prepared statement of Mr. Dell'Orto can be found in 
the Appendix on page 35.]
    The Chairman. Mr. Katsas, Assistant Attorney General.

                 STATEMENT OF GREGORY G. KATSAS

    Mr. Katsas. Thank you, Mr. Chairman.
    The Chairman. Get as close to that as you can, would you, 
please?
    Mr. Katsas. Can you hear me?
    Mr. Chairman, Congressman Hunter, members of the committee, 
you have my full written statement, so let me just give you a 
brief summary here.
    I appear before you today as the Assistant Attorney General 
for the Civil Division, which is responsible for handling the 
hundreds of habeas corpus and Detainee Treatment Act cases 
brought by aliens detained as enemy combatants at Guantanamo 
Bay, Cuba. In the wake of the Supreme Court's Boumediene 
decision, the parties to those cases and the lower courts face 
unprecedented challenges.
    Boumediene makes clear that its extension of habeas corpus 
to review wartime status determinations of aliens captured and 
held outside the United States is unprecedented. In this 
context, there are no controlling federal rules or statutes. 
There are few relevant federal precedents. There is no past 
experience. And while Boumediene itself recognized that habeas 
proceedings in this context must take account of practical 
considerations and wartime exigencies, the Court gave little 
guidance about how to proceed with the enormously difficult and 
sensitive task of ensuring fairness to detainees, while at the 
same time not unduly impeding the prosecution of an ongoing 
armed conflict.
    Recently, the Attorney General invited Congress to 
establish some guidelines for the efficient, fair, and safe 
adjudication of these difficult habeas cases. Let me briefly 
give you a litigator's perspective on the urgency of his six 
specific proposals.
    First, judges should be prohibited from ordering the 
release of detainees into the United States. In one case, we 
already have a pending motion for release not only into the 
United States but into greater Washington, DC, and even before 
habeas proceedings have run their course. Congress should act 
quickly to prevent judges from releasing potentially dangerous 
individuals into our midst.
    Second, habeas procedures should ensure adequate protection 
for classified information. The military must never be put to 
an impossible choice, as our opponents have urged, between 
revealing classified information to al Qaeda or releasing 
dangerous al Qaeda operatives.
    Third, habeas proceedings should not interfere with war 
crimes prosecutions before military commissions. In Boumediene, 
the Supreme Court cited adversarial military commission 
procedures with approval. Yet in the habeas litigation, Ramzi 
Bin Al Shib, who prosecutors believe was a principal 
facilitator of the September 11 attacks, has moved to stop his 
war crimes trial through habeas. Congress should act to ensure 
that the trials move forward, so that terrorists can be brought 
to justice.
    Fourth, Congress should reaffirm the President's detention 
authority in the ongoing armed conflict with al Qaeda. We think 
that authority is obvious, but in the recent Al-Marri case, 
four of nine judges on the Fourth Circuit would have held that 
the military lacks any authority to detain any member of al 
Qaeda--not Khalid Sheikh Mohammed; not Mohammed Atta, if we had 
managed to catch him in time; not even Osama bin Laden. 
Congress should definitively correct that dangerous 
misunderstanding of military authority.
    Fifth, Congress should establish sensible procedures to 
govern the adjudication of the pending habeas cases. The 
question of what procedures are appropriate remains entirely 
unsettled. The judges have asked for briefing on basic 
procedural framework issues, such as burdens of proof, extent 
of discovery, and the need for evidentiary hearings. In no 
other context that I know of are fundamental rules like that so 
basically unsettled. To facilitate the prompt and uniform 
handling of these cases, Congress should adopt a streamlined 
but fair framework along the lines that the Supreme Court 
approved for habeas proceedings involving citizens held as 
enemy combatants.
    Sixth, and finally, Congress should eliminate the now 
unnecessary judicial review proceedings in the Detainee 
Treatment Act, which were intended as a substitute, not as an 
addition to habeas. Now that habeas review is once again 
available, there is no sense in requiring the government, the 
detainees, or the courts to engage in the duplicative 
adjudication of about 190 Detainee Treatment Act petitions on 
top of about 250 pending habeas petitions.
    Thank you very much.
    [The prepared statement of Mr. Katsas can be found in the 
Appendix on page 44.]
    The Chairman. Colonel David.

                 STATEMENT OF COL. STEVEN DAVID

    Colonel David. Thank you, Chairman Skelton, members of the 
House Armed Services Committee.
    The Chairman. Please get a little closer.
    Colonel David. Is this a little better?
    The Chairman. Turn it on.
    Colonel David. Thank you again, Chairman Skelton----
    The Chairman. There you go.
    Colonel David [continuing]. Members of the House Armed 
Services Committee.
    My name is Colonel Steve David, and I am grateful for the 
invitation and honor to testify before this committee. I have 
prepared and submitted my testimony, so what I intend to do is 
summarize that testimony and then give you all more time to ask 
questions.
    My testimony is given in my capacity as a private citizen 
who is currently serving as the Chief Defense Counsel in the 
Department of Defense Office of Military Commissions. My 
testimony does not represent the opinions of the Department of 
Defense, the Army, my subordinates, or any other entity.
    I have been asked to testify today about the implications 
of the Supreme Court's decision in the Boumediene case and how 
they are likely to affect the detainees at Guantanamo Bay.
    I have served as the Chief Defense Counsel in the Office of 
Military Commissions since August of 2007. I have, in that 
time, seen the number of cases expand from 2 to 21. I have 
served the United States Army for over 26 years in a myriad of 
assignments, both on active duty and as a member of the Reserve 
Component Services.
    While I am currently serving as Chief Defense Counsel, I am 
on leave from my civilian profession as an elected trial court 
judge in the state of Indiana. I have served over 13 years as a 
trial judge in Indiana. I consider myself a public servant. I 
have also served as a military judge, both in the Army Reserves 
and on active duty in the United States Army.
    I am proud to be an elected officeholder, and I am proud to 
wear the uniform of the United States military. In my office in 
Boone County, Indiana, I proudly display with great reverence 
the flag of honor with the names of the 9/11 victims.
    I do not see my role as Chief Defense Counsel or my 
obligations as an officer of the United States military or as a 
judge any way inconsistent with these obligations. I think they 
are entirely consistent.
    Because of the unique vantage point I have, I will 
generally confine what I have to say to what Boumediene means 
for the military commissions.
    To put it briefly, the most important thing that Boumediene 
held is something that I always thought was obvious. Like 
Thomas Paine in Common Sense, in America, the law is king. For, 
as in absolute governments, the king is the law, so in free 
countries, the law ought to be the king, and there ought to be 
no other.
    Boumediene held that in America, there are no law-free 
zones. This is an issue only because of the choice in 2002 to 
move enemy combatants from Afghanistan and terrorism suspects 
captured around the world to the U.S. military base at 
Guantanamo Bay. Even though the government treats the base as 
if it were U.S. soil for every other purpose, it has taken the 
position that it is foreign soil when it comes to the 
constitutional rights of the people we hold there. Boumediene 
puts that convenient theory to rest.
    In particular, Boumediene makes it clear that federal 
courts will ultimately have habeas review over the military 
commissions process, and the commission defendants have 
constitutional rights. The gist of the Court's holding is that, 
unless enforcing a right would be impractical, it should be 
honored. If the suspension clause applies in Guantanamo, then 
so must the ex post facto clause and other fundamental due 
process rights, like the prohibition on the use of coerced 
statements and the right to confront one's accusers.
    There is nothing impractical about ensuring that the 
commissions live up to basic American standards of justice. The 
constitutional protections promised by Boumediene are 
particularly important at a time when the highly politicized 
atmosphere surrounding the commission trials has begun to 
compromise their fairness.
    The legal adviser to the convening authority has been 
disqualified from one case already for overstepping the role to 
such an extent that it amounted to unlawful command influence. 
Much of this appeared motivated by a desire to accelerate as 
many of the cases as possible before the Presidential election. 
If this process cannot survive a Presidential election, I 
submit to you it cannot survive, and does not deserve to 
survive, which brings me to the question of whether, after 
Boumediene, these commissions should survive.
    To reiterate my opening point, Boumediene reaffirmed what 
should be a surprise to no American, that where our government 
is sovereign, the Constitution is sovereign. This fact will 
lead to the ultimate striking down of the most constitutionally 
suspect of the military commission's procedures now in place. 
The only question that remains is how long it will take, how 
many convictions must be reversed, and whether it will be the 
product of the rulings of the military judges presiding over 
the commissions or the federal courts on appellate or habeas 
review.
    Since it is now simply a question of when, the only 
remaining one is why we started down this road in the first 
place. The ultimate tragedy is the United States federal courts 
and military courts martial are more than capable of trying 
terrorists under traditional principles of American justice. As 
one of my favorite country music singers, Toby Keith, explains 
in one of his songs, ``There ain't no right way to do the wrong 
thing.'' It would have been better had we done the right thing 
from the beginning, but it is not too late to change direction 
and do it now. I advocate that we utilize the federal criminal 
court system, with the safeguards in place, or the military 
justice system under the Uniform Code of Military Justice.
    Thank you for the opportunity to address your group. Again, 
I have submitted my testimony in written format and would be 
happy to answer any questions.
    The Chairman. Thank you very much.
    [The prepared statement of Colonel David can be found in 
the Appendix on page 58.]
    The Chairman. We have a series of six votes--one 15-minute 
vote, and the others are 5 minutes. So it will probably be 
about a 40-minute break. And I hope that doesn't disturb your 
afternoon too much. But I think we might be wise just to go 
ahead--this is a good place to break--and come back as soon as 
we can. We will resume the questioning.
    We thank you again for being with us. We look forward to 
the questions shortly. We will take a recess.
    [Recess.]
    The Chairman. Our hearing will come to order.
    We apologize to the witnesses, and we thank you for your 
patience. We had a series of votes, plus one unexpected one 
that took a considerable amount of time. So we will proceed, 
and the gentleman from New York is with us. We will be able to 
forge right ahead.
    Let me ask, Mr. Dell'Orto, yesterday, Colonel Davis 
testified, and in his testimony he testified to the undue 
political influence that permeates the military commission 
process. Much of Colonel Davis' complaint deals with the overly 
intrusive supervision of the prosecution by the current legal 
adviser to the convening authority, an issue which Judge Allred 
in the Hamdan military commission case recently addressed.
    In the May 9, 2008, order Judge Allred, a captain in the 
United States Navy, found that the actions of the current legal 
adviser, General Thomas Hartman, reflected too close an 
involvement in the prosecution of commission cases and 
suggested an improper influence on the chief prosecutor's 
discretion. As a result, Judge Allred ordered the 
disqualification of the legal adviser from further 
participation in the Hamdan case. I understand that the legal 
adviser has been removed from the Hamdan case. My first 
question is: Is that true?
    Mr. Dell'Orto. Mr. Chairman, consistent with the judge's 
order in that case, there is a legal adviser who has been 
appointed to continue the----
    The Chairman. He has been removed?
    Mr. Dell'Orto. There is a different one who has been 
appointed; yes, sir.
    The Chairman. Fine. Thank you. And someone has been named 
in his place?
    Mr. Dell'Orto. Yes, sir, for that particular case.
    The Chairman. Okay. What is being done to eliminate undue 
command influence in all these military commission cases, Mr. 
Dell'Orto?
    Mr. Dell'Orto. Mr. Chairman, I take issue with Colonel 
Davis' remarks in that regard; and I would cite to the 
committee the report that has been posted on our Web site, the 
one that was done at the then General Counsel Jim Haynes' 
direction by Brigadier General Tate from the United States 
Army; Brigadier General Hardy from the United States Air Force; 
then Captain, now retired, Admiral Tronberger, who looked into 
the allegations of Colonel Davis and came up with findings and 
recommendations that addressed those issues. And my reading of 
that report does not concur with, I think, Colonel Davis's 
assessment of the situation that prompted him to resign from 
his position.
    The Chairman. Mr. Katsas, yesterday, Steve Oleskey 
suggested in his testimony--I am sure I am quoting it right--
that we should let this issue regarding the commissions play 
out in the courts before we attempt to legislate on the issue. 
Mr. Katyal didn't quite go that far, but he thought it ought to 
play out for a short while, if I remember his testimony 
correctly.
    Do you have an opinion on that? Should we forge ahead, or 
should we wait until the courts have the opportunity to work 
more cases? Or where do you recommend we go?
    Mr. Katsas. I am sorry, Mr. Chairman, is your question 
about the habeas proceedings or----
    The Chairman. Yes, yes. Excuse me, yes.
    Mr. Katsas. Okay. My strong recommendation to the committee 
would be to legislate standards, a procedural framework to 
govern the conduct of what are 250 unprecedented cases. We 
don't know such fundamental questions as: What are the relevant 
burdens of proof? What is the nature of our discovery 
obligations? How is classified information to be protected? Is 
there an entitlement to live hearings?
    So, you have a tremendous potential for disparate rulings 
as district courts try to work through these issues. You have 
the possibility of disagreement in the district courts, which 
will produce large numbers of reversals on appeal, which will 
slow down the process, not facilitate it. In terms of Justice 
Department resources, you would force us to relitigate the same 
set of issues at least 3 times, potentially 15 times, or dozens 
of times, depending upon the extent of consolidation; and you 
would risk the courts not striking the optimal balance between 
the interests of fairness to individual detainees and 
legitimate military needs in prosecuting this war.
    And, finally, I should just note that there is a 200-year 
tradition of congressional involvement in shaping the scope of 
habeas corpus. Statutory direction goes all the way back to the 
first Judiciary Act. It would not be novel or unusual for 
Congress to set down standards and guidance, as it always has 
with respect to habeas, as the Supreme Court invited in 
Boumediene, and, indeed, as Chief Judge Lamberth of the 
district court has invited in a press release welcoming 
guidance from this Congress.
    The Chairman. Thank you.
    How many detainees are there currently at Guantanamo?
    Ms. Hodgkinson. There are approximately 265.
    The Chairman. Two hundred and sixty-five?
    Ms. Hodgkinson. Yes, sir.
    The Chairman. How many of that 265 have been formally 
charged?
    Ms. Hodgkinson. Twenty-one.
    The Chairman. Twenty-one?
    Ms. Hodgkinson. Yes, sir.
    The Chairman. When were those 21 detainees charged?
    Mr. Dell'Orto. Mr. Chairman, they have been charged over a 
period of time, beginning in, I believe, February of 2007 
through the present. First charges after the--
    Well, let me step back. We did have a number who had been 
charged prior to the Supreme Court decision in Hamdan in 2006. 
There were about, I'd say, somewhere on the order of 5 to 10, 
although my memory may be off there.
    In the aftermath of the Supreme Court decision in Hamdan, 
we and the Congress and the Administration put together the 
Military Commissions Act. The President signed it, and then we 
started the charging process over again for some of those 
detainees. So, some of the 21 who are now charged have been 
recharged post the Military Commissions Act.
    The Chairman. Will all of the 265--is that correct? Will 
all the 265 be charged with one charge or another?
    Mr. Dell'Orto. We don't expect that to be the case, Mr. 
Chairman. The Chief Prosecutor and the prosecutors who work for 
him will make those decisions, as to which of the detainees 
will be charged. The convening authority will make a 
determination about which of those cases will be referred to 
trial unfettered by any outside influence. Those are decisions 
that they will make.
    We have heard estimates from the Office of the Chief 
Prosecutor that somewhere in the order of 60 to 80 detainees 
could be charged. But, again, it is their determination as to 
which they will charge and what charges will be preferred, and 
we will have to see how that plays out over the coming year. 
But I would expect that, since that number has not changed very 
much, that probably, on the outside, 80, maybe slightly more, 
could be charged or are anticipated being charged.
    The Chairman. So, you will have either around 200 or 
slightly fewer that you do not anticipate being charged. Is 
that correct?
    Mr. Dell'Orto. I think, if I were to do the math, I think 
that is about right, Mr. Chairman.
    The Chairman. And what will you do with them?
    Mr. Dell'Orto. Well, we have a number of them who have 
already been cleared for either transfer to their----
    The Chairman. How many would that be?
    Mr. Dell'Orto. That number is about--I think Ms. Hodgkinson 
has that number.
    The Chairman. How many is that?
    Ms. Hodgkinson. Yes, sir, there is approximately 60 
individuals at Guantanamo Bay who have already been approved 
for transfer or release either back to their home country or, 
in the instances where their home country does not want them or 
they can't be sent there out of humane treatment concerns or 
security concerns, then we are seeking a third country.
    The Chairman. So, 60 or so will be released one way or the 
other. Is that correct?
    Ms. Hodgkinson. Our goal is to transfer or release about 60 
of them; yes, sir.
    The Chairman. Then you still have----
    Ms. Hodgkinson. But we do continue, sir, to have 
administrative----
    The Chairman [continuing]. 140, 150 that will still be 
there. Do you anticipate charging them with anything?
    Ms. Hodgkinson. Well, I would note that we continue to have 
the annual administrative review boards, which have been very 
successful in approving individuals for transfer or release. To 
date, more than 500 people have gone home under this process 
and through our diplomatic negotiations. So, those processes 
will continue at the rate that we have been doing so.
    Over the past year, we sent more than a hundred people home 
under these very procedures, this careful process and these 
deliberate negotiations with other countries; and we intend to 
continue to do that for the remaining population that does not 
at this time intend to be prosecuted.
    The Chairman. So, you will have approximately 140, 
thereabouts, that will not be charged and are there 
permanently. Is that correct?
    Mr. Dell'Orto. That number, give or take a few, will be a 
difficult number to come to a resolution through either the 
military commission process or the release process, although, 
as Ms. Hodgkinson indicates, we will continue to try to find 
ways to either transfer them--likely they would have to be 
transfers, because my understanding is the threat level for 
those is so high that they could not be outright released. But 
you are right. That is a core number, thereabouts, that will be 
neither charged nor--at least not in the short term--
transferred or released.
    The Chairman. Kind of like the man aboard a ship that 
couldn't get off the ship because he didn't have a country. Is 
that basically it? They are stuck there?
    Mr. Dell'Orto. Until the end of hostilities.
    Again, our basis for holding all of these folks from the 
outset has been that they are enemy combatants during an armed 
conflict, much as we have faced in other prior wars. Obviously, 
this one has gone on longer----
    The Chairman. Are they considered prisoners of war?
    Mr. Dell'Orto. They are not technically--they are not 
treated as prisoners of war under the Third Geneva Convention. 
They are considered unlawful enemy combatants who are detained 
under the laws of war.
    The Chairman. Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman. And I know I join with 
you in apologizing to our witnesses for this bad timing and 
this long delay here, and I apologize for getting back a little 
late here.
    Let me just ask you a few preliminary questions about 
Guantanamo, because I think, to the public, Guantanamo is a 
place that has been excoriated in the press as a place that 
people think mistreatment occurs. So my first question is, in 
your estimation--and I would ask this of all the panelists--are 
the prisoners, detainees being treated well at Guantanamo? And 
do you have any objections, or do you see any problems with 
their treatment?
    I just go left to right here. Yes, ma'am.
    Ms. Hodgkinson. Yes, I will begin by saying, sir, that we 
believe that the detainees are being very well treated at 
Guantanamo Bay. We have taken extensive measures and efforts to 
ensure that they have the highest standards of care that we can 
provide, both through medical care and treatment, which has a 
higher patient-to-doctor ratio than any other facility that we 
are aware of. We try to ensure that they have regular exercise, 
and all detainees have recreation opportunities, including 
sports. They have cultural activities. They have activities 
that comport with their religious beliefs. And it is our full 
belief that they have the highest standards of care that we can 
provide.
    Mr. Hunter. Okay. Anybody disagree with that, that they are 
well treated?
    Mr. Dell'Orto. No, sir. And I have been down there a number 
of visits.
    Mr. Hunter. So they are well treated. So there is no----
    Colonel David. May I comment, sir?
    Mr. Hunter. Yes, go right ahead. Speak up. Bring that 
microphone close to you when you are talking. Everybody seems 
to be real worried about that.
    Colonel David. I have been in the camps. This is Colonel 
David. I have been in the camps. I have met with different 
detainees. As a Legal Support Office (LSO) commander, I sent my 
attorneys to work for Joint Task Force (JTF) Gitmo Staff Judge 
Advocate's (SJ) office. In fact, several years ago I served as 
the interim SJ for a short period of time with Joint Task Force 
Guantanamo.
    I can say that, with very few exceptions, the men and women 
who are members of the guard force are members of the medical 
staff, have provided excellent treatment to the detainees. 
However, there have been circumstances, there have been 
occasions when detainees have been mistreated. That has 
happened.
    It has not happened regularly, and I am not talking about 
the issue of whether or not--certain types of interrogation 
methods or torture or not. I am talking about mistreatment. 
That has happened. But it has happened on occasion, not 
regularly.
    The vast majority of the people down there are doing 
tremendous jobs under very difficult circumstances. But I just 
wanted to clarify the record, from my perspective, that it is 
not a 100 percent true statement in my opinion that they are 
treated well and have been treated well all the time.
    Mr. Hunter. Well, I asked--the question was: Are they being 
treated well now? What is your opinion? Do you see 
deficiencies?
    Colonel David. I think there have been occasions, not 
recently, that they have not been treated as we would like them 
to be treated, I believe.
    Mr. Hunter. Okay. How long ago?
    Colonel David. I think the most recent incident that I am 
aware of is probably within the last 60 days, sir.
    Mr. Hunter. Okay. What happened?
    Colonel David. I am not sure how much I can talk about that 
in this forum.
    Mr. Hunter. Well, you got us there. You tell us you saw 
something bad, but you can't tell us what it was.
    Colonel David. No, sir, I did not see anything bad. It is 
information provided to me which suggests that that incident 
occurred, and we brought it to the attention of----
    Mr. Hunter. Okay. So, if an incident occurs--we assume 
people aren't perfect, and you are not going to have a prison 
without having some incident at some point--is disciplinary 
action taken?
    Colonel David. Sometimes that is a little hard to ascertain 
exactly what happens as an end result. We don't get a full 
briefing or after action as to exactly what happened. Sometimes 
that information is a little incomplete.
    Mr. Hunter. How about finding out for us and letting us 
know?
    Colonel David. Certainly.
    [The information referred to was not available at the time 
of printing.]
    Mr. Hunter. You are a little vague on it. So, find out the 
specific facts----
    Colonel David. I am a little vague because I don't have the 
specifics; yes, sir.
    Mr. Hunter. Well, bring it in and tell it to us.
    Now, let me ask you a question about that. My understanding 
is there has never been a murder at Guantanamo. Is that right? 
A murder.
    Colonel David. That is correct.
    Mr. Hunter. Okay. Is there any other prison in the world, 
major prison, where there has never been a murder besides 
Guantanamo?
    Colonel David. If you are asking me, sir, I would assume 
there is not, although I don't know.
    Mr. Hunter. Any of you other folks know of any other prison 
in the world where there has never been a murder except 
Guantanamo, major prison? I don't think there is one. I think 
it has got--in terms of having a capital crime committed in the 
prison, I think it is the only one in the world where there has 
never been a murder.
    I have heard lots of my colleagues criticize Guantanamo; 
and I have looked at the records of murders, assaults, and 
other problems in their particular districts in their state and 
local prisons; and Guantanamo's record looks pretty sterling 
compared to it. But I wanted to bring this out, because I think 
this is the framework under which we are undertaking this 
hearing, is that somehow Guantanamo has a stigma.
    Is there a practice that we undertake right now that any of 
you think is--because I was there, and I saw them. I saw us. We 
read the Koran to them over the loudspeaker system I think--
what--five times a day? We provide a taxpayer-paid-for Koran, 
prayer beads, rugs. I looked at their medical records. They had 
averaged about a five-pound per person weight gain over the 
year. Is there any particular procedure that we undertake that 
you think is an oppressive procedure that we should change, an 
official procedure? Anybody have a suggestion?
    Mr. Dell'Orto. I have none, Mr. Chairman--or Congressman.
    Mr. Hunter. Then here is my question for you. Outside of 
geography, that is, the fact that Guantanamo is located where 
it is, and it is considered to be an extension of American 
authority because of the geography, is there a good reason to 
close Guantanamo? Assuming that we are continuing to have this 
war against terrorists and that we incarcerate people like 
Khalid Sheik Mohammed, who does say that he planned the attack 
that killed thousands of men, women, and children, and we have 
to put him somewhere, and nobody wants him in their 
congressional district, is there a reason, a compelling reason, 
for us to close Guantanamo?
    Ms. Hodgkinson. Well, the Secretary and the President have 
consistently stated that we are trying to move toward the day 
when we can close the facility and are trying to take those 
efforts that we can to do so, in light of some of the 
international criticism and other concerns that have been 
raised over the detention facility.
    Mr. Hunter. We know what they have said, but my question to 
you is: Is there a compelling reason outside of the geography--
because the Court has now attached certain rights to people who 
are incarcerated in Guantanamo--and most important of which, 
obviously, is the right to habeas--is there a compelling 
reason, outside of the geography, to close Guantanamo? If we 
have good people, as everybody concurs we have, incarcerating 
these folks--we have good care, good treatment, good food, good 
health care--is there a compelling reason to close Guantanamo?
    Ms. Hodgkinson. The Department of Defense would certainly 
not be in a position to provide better treatment in another 
location than the treatment that it provides at Guantanamo Bay.
    Colonel David. Just for the record, sir--I don't mean to 
interrupt you, but I do believe it would be appropriate to 
close Guantanamo Bay. I don't want to not say that. I don't 
want to interrupt you.
    Mr. Hunter. That's why I am asking the questions, so you 
can get your two cents worth in. Why do you think we should 
close it?
    Colonel David. I think, first and foremost, because it is a 
blight on our legal integrity. And the fact that a detainee at 
Guantanamo Bay is being fed appropriately, that is wonderful. 
That is who we are. We are Americans. We are going to take care 
of people.
    But the fact that they do not have the right to counsel 
until they are charged, the fact that only recently the Supreme 
Court extended some constitutional rights to the detainees at 
Guantanamo Bay--I think one can begin to build--and certainly 
build a case bit by bit by bit--things that have occurred that 
justifies that, if we are going to charge someone with a crime 
that faces a life sentence or death or long time in prison, we 
can do better than detaining them at Guantanamo Bay, if for no 
other reason than to make them more accessible to the court 
system, more accessible to the men and women that need to 
defend them.
    I think the issue may be where we put and how we house the 
individuals that we never intend to charge and, politically, we 
may never intend to release. But my function as Chief Defense 
Counsel is to defend zealously those people that have been 
charged, and I don't believe Guantanamo Bay is an appropriate 
place for them to be, and I don't believe that is the best 
place. And I believe we can do better, sir.
    Mr. Hunter. Okay. So my question to you is--you said they 
are not being maltreated at Guantanamo Bay, but your complaint 
is you think the system is mistreating them. We are not 
treating them. We are not giving them all the rights that you 
feel they should be given. But that is not something that is 
driven by geography or where you put them. You could apply the 
full rights of the Constitution to people at Guantanamo Bay if 
the country decides to do that, right? In the proceedings for 
people--that isn't something that is derived from the location. 
That is something that is derived from our justice system. Is 
that not true?
    Colonel David. It is certainly true from the standpoint of 
geography. But, again, it is difficult, if not impossible, to 
apply our laws at this time to the facility, to the operation 
of the facility, to the due process for those individuals.
    Mr. Hunter. Okay. That is something that is hard to 
understand here. Why can't you apply the law and any mechanism 
that is passed by Congress, signed by the President, with 
respect to either the Detainee Treatment Act or this military 
justice system or the so-called Terrorist Tribunal Act that we 
have now put into law? That is not specific to a particular 
piece of geography. What is the problem here, Colonel? I mean, 
are you saying that defense counsel don't have a place to stay 
when they come to Guantanamo, that they don't have access to 
counsel?
    Colonel David. That has been problematic in the past. I 
mean, unfortunately, I wasn't consulted in the operation. I am 
not in charge of that.
    Mr. Hunter. Let me ask the other folks. Do you see a 
problem with defense counsel being allowed access to Guantanamo 
or having enough quarters or transportation or----
    Mr. Dell'Orto. We have made extraordinary efforts since the 
charging of these individuals in 2007 to provide support for 
all participants in the trial process at Guantanamo. We have 
built a brand new courtroom. We have built--put together 
temporary quarters for all participants, so that we can provide 
everyone their opportunity.
    Mr. Hunter. Okay. So, let me do this. Colonel, why don't 
you get us a defense counsel to contact the committee who says 
that he tried to travel to Guantanamo or he traveled to 
Guantanamo and could not find adequate quarters, was not 
allowed to have a place from which he could operate to defend 
his particular client. You get us that information. If that is 
your claim----
    Colonel David. My claim is not as it relates to 
accommodations. We have accommodations. My claim is as it 
relates to getting to and from. My claim as it relates to most 
recently is taking down my new counsel for an orientation--
expected orientation--of Guantanamo Bay, since they have the 
appropriate security clearances, and I wanted them to have an 
opportunity, as the prosecution, to have a briefing, have an 
orientation, unclassified briefing; only to have that planned 
and the day before cancelled, because, I was told, it was not 
appropriate for defense counsel to have that kind of 
orientation.
    But I will certainly get you details, sir.
    Mr. Hunter. Okay. But they have a place to stay.
    Colonel David. Absolutely.
    Mr. Hunter. But you didn't get an orientation you wanted to 
get.
    Colonel David. They do have a place to stay, yes, sir.
    Mr. Hunter. Okay. Mr. Dell'Orto, you got a comment on this 
orientation?
    Mr. Dell'Orto. Sir, I am aware of that particular request. 
I do know that the response that went back to Colonel David 
was, if you put it in writing and provide adequate 
justification, so that a decision can be made based on more 
than just an assertion that it was going to be an orientation, 
that that request would be considered.
    Mr. Hunter. You know, we put this law together, and the 
reason I am taking some time--and I appreciate the chairman's 
patience--this is a very serious matter and has a lot of depth. 
We put forth and examined tribunals that have been held in the 
past, from Nuremberg, Rwanda--and the House and Senate worked 
on this, Democrats and Republican counsel and non-counsel, and 
the Members. And we put together a group of rights that we 
afford the detainees under the Military Commissions Act: the 
right to counsel, the presumption of innocence, proof beyond a 
reasonable doubt, the opportunity to obtain witnesses and other 
evidence, the right to discovery, exculpatory evidence provided 
to defense counsel. Statements obtained through torture are 
excluded. Classified evidence must be declassified, redacted, 
or summarized to the maximum extent possible.
    And we had a lot of problems working this, Democrats and 
Republicans, Senate and the House, because you had the problem 
of having classified information that the accused had a right 
to confront, and yet you couldn't give classified information 
out. We finally worked through it to have it, to the maximum 
extent, redacted and summarized, so that you could have a fair 
trial, and yet you could protect classified information.
    Statements allegedly obtained through coercion are only 
admissible if the military judge rules that the statement is 
reliable and probative. A certified judge will preside over all 
proceedings of the individual commissions. The U.S. Government 
must provide defense counsel, including counsel with the 
necessary clearances to review classified information on the 
accused terrorist's behalf. That means you don't keep 
information away on the basis that he doesn't have counsel. And 
in capital cases, the military commissions, 12 panelists, must 
unanimously agree on the verdict, and the President has the 
final review.
    Panel votes are secret ballots, which ensures that 
panelists are allowed to vote their conscience. We did that 
because we didn't want to have a subordinate officer feeling 
that he had to follow his superior's vote in a particular vote 
against a detainee. So we provided for a secret ballot. Right 
to appeal to a new court of military commissions review and the 
court of appeals for the District of Columbia and the right 
against double jeopardy.
    Now, I read those to counsel for some of the defendants 
yesterday, and I asked them if there were any additional rights 
that they would give to the defendants, any specific rights 
that they think that we missed. Not one of them came up with 
one. They talked around it. They talked about they thought they 
had the basic rights to be afforded full constitutional rights 
as U.S. citizens, but nobody came up with, ``one they thought 
you missed one here.''
    Colonel, beyond those are rights, are there additional 
rights that you think that the defendants should have?
    Colonel David. I think it would be helpful if the right to 
counsel arose prior to three or four or five or six years later 
being charged and prior to interrogations of any kind, however 
coercive, or whether they cross into torture.
    I also think it would be helpful if some of those rights 
were played out under the commission's process more openly and 
transparently than they have on occasion--for example, the 
right to discovery of evidence, when that discovery is provided 
to you, either in trial or on the eve of trial--hundreds and 
hundreds and hundreds of pages--it is difficult to, quite 
frankly, utilize that right effectively and have that right 
mean anything without causing prejudice to the accused.
    Off the top of my head, I can't think of any other rights, 
so I probably would be in the same boat as the men and women 
yesterday. I, certainly, if I have an opportunity and could 
supplement my testimony, I will do that.
    Mr. Hunter. Certainly.
    Colonel David. My only point on those rights, sir, is that 
there is a difference in theory and in practice, and I am 
concerned that what looks good at 30,000 feet, when you are on 
the ground has been tremendously problematic.
    Mr. Hunter. Thank you, Colonel. Let me tell you, courts 
across the land make mistakes all the time. Lots of plaintiff's 
lawyers, including myself, have complained that we didn't get 
timely discovery. And you have a right--when you have 
discovery, you have a right to timely discovery. Statements 
obtained by torture are excluded under the law. So, we pass a 
law, and if it is not followed, of course, that is a reversible 
error in a case, and you get a reversal. So, carrying out the 
law is an important thing. If you have any particular incidents 
of not getting timely discovery, I would like you to get those 
to the committee. And if you have any further, on reflection, 
any further ideas on how to make this system more fair and a 
better forum, please get those to us I think we'd appreciate 
that.
    Thank you, Mr. Chairman, for letting me take some time. The 
last thing is this: If you have been given the right to habeas, 
and I have never had a habeas case, but that is basically you 
are being held unlawfully; the heart of that case, for 
practical purposes, if you have been picked up on a 
battlefield, I would think in a practical way, it is going to 
be, whether you are a combatant or farmer in the field, you had 
an AK-47, because you were one of the livestock protectors in a 
town, and you got picked up on a sweep. You shouldn't be there.
    The problem is the details of that are going to be long 
since--the principles in that military sweep are going to be 
long since dissipated from the scene, and this is not like a 
crime scene, where you have a lot of people attend the scene of 
a crime, and you have lots of expert capability focusing. A lot 
of these folks are picked up in battlefield operations which 
are very transitory, very quick, and the idea--if you are the 
court trying to figure out what you review in the habeas, what 
do you think?
    I would ask maybe Mr. Dell'Orto to answer this, do you see 
problems with the court being able to figure out what the scope 
of their review is going to be? You get a guy that was picked 
up in an Afghan village four years ago, what are you going to 
be able to do to ascertain the merit of his habeas appeal?
    Mr. Dell'Orto. It will be a difficult process. It will be a 
question of I would assume the detainee presenting, at some 
point, his view of why he should not be held, countered by the 
government's information, which will be largely from 
battlefield reports--reports filed by those who captured him, 
who brought him into their custody, matching up intelligence 
reports that would come from a variety of sources, many of 
which are going to be very sensitive and highly classified.
    They will be the means by which we obtain that information. 
They will be the sources and methods. In many instances, it 
will be information coming from foreign governments that want 
that information protected. And so, while--in the system that 
we have now, under the Combatant Status Review Tribunal (CSRT) 
process that we have now, many of those things will be 
considered by military officers who have some knowledge of what 
this is all about and, certainly, can assess the intelligence 
value of the information that has been brought forward.
    Judges may not be as able to pour through that and make the 
assessments that they need to make on that sort of information. 
And then, if we start getting into what the detainee needs to 
be provided to allow him to rebut that information, it will be 
a very, very difficult process of trying to take that 
classified information and develop an unclassified summary that 
the detainee can be shown that will satisfy the judge that the 
detainee has had enough information to permit him to respond. 
It will be very, very difficult, and it is one of the 
difficulties associated with this type of warfare.
    Mr. Hunter. Thank you. I know that the chairman is an 
expert in this area and has tried a lot of cases and has 
questions in this area too. It looks to me that the practical 
aspect of laying out a template for what the scope of the 
review is going to be and whether our guys are going to be able 
to, the judge is going to be able to really accomplish a 
meaningful habeas review, is I think questionable; but, thank 
you.
    Thank you, Mr. Chairman, for giving me some time on this.
    The Chairman. You bet.
    Mr. Spratt.
    Mr. Spratt. Thank you, Mr. Chairman.
    I believe Boumediene makes it clear that the detainees at 
Guantanamo have the right to petition for habeas corpus. Do you 
believe that the decision also allows them the full panoply of 
rights that would come to an ordinary defendant seeking habeas 
corpus? Or is there some diminished status, some diminished bag 
of rights, collection of rights that they have? Is that part 
and parcel of the Attorney General's request of us to write the 
law that we may have the right to diminish the associated 
rights that they have?
    Mr. Katsas. No. What Boumediene says is that the detainees 
have a right to petition for habeas corpus. The Attorney 
General----
    Mr. Spratt. Let me ask you: can Congress take 
constitutional rights away? If this is a constitutional right, 
the right to habeas corpus, can we diminish it?
    Mr. Katsas. You can't eliminate the right to habeas corpus. 
You can certainly pass statutes that define the procedures to 
be used, the standards of proof. You have done that with 
respect to habeas corpus.
    Mr. Spratt. Does the Department take the position that 
Congress has the authority to strip courts, federal courts, of 
the right to review habeas corpus petitions?
    Mr. Katsas. The Supreme Court has struck down a strip. What 
we are now proposing is legal standards to govern the exercise 
of the detainee's habeas corpus rights. And I should add that 
the Attorney General's specific proposals are consistent with 
all of the rights recognized in Boumediene and all of the 
rights previously recognized by the Supreme Court in Hamdi.
    Mr. Spratt. Let's take coercive testimony, evidence 
obtained through coercive means. Is that admissible on the same 
basis that it would be admitted or excluded in non-detainee 
cases, in ordinary criminal cases?
    Mr. Katsas. Evidence improperly seized, obtained, would be 
excluded.
    Mr. Spratt. What about the right to confront those who have 
made accusations against you?
    Mr. Katsas. Confrontation rights of the sixth amendment 
would not apply because enemy combatant proceedings are not 
criminal proceedings, and the sixth amendment, even for 
citizens in this country, applies only to criminal 
prosecutions.
    Mr. Spratt. So, there is no right, then, to have witnesses 
who have made charges, accusations, against you personally, 
confront you face to face in open court?
    Mr. Katsas. If that means the only way to support a 
detention is for service members to be summoned back from the 
battlefield to give eyewitness testimony, as opposed to a 
hearsay affidavit, we think the answer is and should be ``no,'' 
as the Supreme Court recognized in the Hamdi case when it 
specifically said that use of hearsay in these circumstances 
would be permissible.
    Mr. Spratt. What about exculpatory evidence as a matter of 
fairness? Should the defendant have access to it, including 
detainees here, or is their right to exculpatory evidence 
somehow less than the right of an ordinary criminal defendant?
    Mr. Katsas. The essence of the habeas proceedings that the 
Supreme Court has mandated is that the detainee be able to put 
on whatever evidence he wishes. We don't think that that 
entails the right to compel the government to search through 
all of its records worldwide for any evidence that might exist 
anywhere due to classification concerns, burdens on the 
military, and the lack of any precedent for applying that kind 
of criminal standard in these very different enemy combatant 
proceedings.
    Mr. Spratt. So, what we are saying is that although the 
court has ruled that the detainees have a right to habeas 
corpus, once they exercise that right and try to show that they 
are not guilty of anything that would justify their being 
further held, their procedural rights are less than the 
procedural rights of an ordinary criminal defendant in the 
federal courts?
    Mr. Katsas. Absolutely Mr. Spratt. The Supreme Court in 
Boumediene said explicitly that the extent of procedural 
protections in habeas corpus proceedings need not track the 
extent of protections in criminal prosecutions in domestic 
Article three courts. They were quite explicit on that point.
    Mr. Spratt. Boumediene holds that?
    Mr. Katsas. Boumediene does not definitively answer the 
question of how much procedure the detainees are entitled to, 
but it does say that the procedure need not match the amount of 
procedure for a domestic criminal trial.
    Mr. Spratt. Colonel David, how do you read the decision?
    Colonel David. Excuse me, I believe the decision is clear 
that neither citizenship nor sovereignty status is dispositive. 
Instead, the Court quoted whether a constitutional provision 
has extraterritorial effect depends on the particular 
circumstances and practical necessities and the possible 
alternatives. I think they were not satisfied with the 
alternatives. They made it clear that habeas will extend, and I 
think there is certainly a precedent there that other 
constitutional rights will apply to the detainees charged 
before the commissions in Guantanamo Bay.
    As I stated earlier, and if necessary, those will be 
litigated one by one. But I certainly believe it is a broader 
right reading.
    Mr. Spratt. Mr. Katsas, the Attorney General sent us a 
letter on July 21 with six key points that he would like to see 
in legislation that the Congress writes. The first is that the 
law should prohibit federal courts from ordering the government 
to bring enemy combatants into the United States. What is the 
purpose of that?
    Mr. Katsas. The purpose of that is safeguarding the 
security of this country. It seems unwise to allow potentially 
dangerous people into the country to roam free in our midst.
    Mr. Spratt. They would be in the custody of the military, 
would they not?
    Mr. Katsas. They may or may not be in custody. I would 
think that other things being equal, custody at a secure 
foreign military base on a remote island is safer than custody 
in New York City or Washington, D.C.
    Mr. Spratt. Thank you very much.
    The Chairman. Mr. McHugh from New York.
    Mr. McHugh. Thank you, Mr. Chairman.
    Gentlemen, I want to pursue Mr. Spratt's last point a 
little bit. I would preface it by saying that I think the very 
interesting discussion between Mr. Katsas and Colonel David as 
to what this court decision conveys with respect to 
constitutional rights and what the provision of habeas means 
here, given the absence of guidance by the court, which is also 
at the crux of all four of the dissenters in this case, show 
the peril in which this case has left us, because we truly 
don't know what this ruling means in terms of conveyed rights. 
Colonel, I respect your opinion, and you may well be right that 
there is a clear indication that these combatants being held 
are entitled, under our Constitution, to additional rights; and 
while I would say to Mr. Katsas I would probably agree with 
your analysis and your arguments as to what you believe, I 
suspect before Boumediene came down, you believed there was no 
right to habeas either, so we don't know.
    Let's talk about the 60, roughly, individuals at Guantanamo 
who we expect, at some point, will have no status there. They 
have been processed and ready for release, but they have 
nowhere to go, either because, for our purposes we would not 
release them to certain countries or, for other reasons, other 
countries would not take them. Is there not at least a question 
of uncertainty, at some point, in a process of habeas, a judge 
will be looking at this as a result of the Boumediene decision 
and will say, ``You must release these people into the United 
States''? Is that not a possibility?
    Mr. Katsas. Absolutely. It is a possibility. We have one 
pending motion in which a detainee has requested precisely 
that.
    Mr. McHugh. Would that now take us back to Attorney General 
Mukasey's first point that he is concerned about that 
possibility? Those people could--and I assume in that 
circumstance would not be under custody--they would be free to 
roam; true?
    Mr. Katsas. The request is for release into the country.
    Mr. McHugh. Colonel, would you disagree with that analysis, 
that potential?
    Colonel David. I think, certainly, the potential is there.
    Mr. McHugh. Thank you. Colonel, I tried to follow very 
carefully the discussion with the ranking member with respect 
to the facility at Guantanamo. And quite frankly, I tended to 
agree with the ranking member that the concerns you have 
weren't necessarily embedded into a facility per se. They were 
largely procedural, although I recognize there is a geography 
issue in transport and such that you have. But I made an 
assumption as to what I believe your position was, and I don't 
think making an assumption on your position on my part is fair, 
so I want to ask you.
    My assumption is, listening to what you said, you would 
believe that the only fair location in which to operate this 
kind of system and have this kind of facility would be in the 
continental United States (CONUS), in the United States. Am I 
making a correct assumption?
    Colonel David. Yes, sir. With respect to those detainees 
being charged, my opinion would be that they could be 
transferred to and tried within the federal criminal justice 
system or under the Uniform Code of Military Justice (UCMJ) or 
even under some quasi-special court.
    Mr. McHugh. Here in the United States?
    Colonel David. Yes, sir.
    Mr. McHugh. Thank you. I am glad we got that on the record. 
I didn't feel it was fair to assume that.
    The other assumption, but I want to give you a chance to 
more clearly define--I also heard you say, but before that--I 
was assuming your belief is that Hamdi suggests very clearly 
that the detainees at Guantanamo have a wider range and, as you 
just said, will be argued and ultimately held that they have a 
wider range of constitutional rights than just this narrowly 
defined habeas; true?
    Colonel David. Yes, sir. I think that issue is obviously 
not answered.
    Mr. McHugh. I am asking your belief?
    Colonel David. Yes, I do believe it.
    Mr. McHugh. Thank you.
    Mr. Dell'Orto, you said in the beginning in your 
statement--you read it here--that the dual-track process 
provided under this ruling, as well as that provided under the 
Detainee Act, provides to those detainees more appellate rights 
than a United States citizen?
    Mr. Dell'Orto. Yes, sir.
    Mr. McHugh. I want to be clear for the record. I would 
argue it also affords more rights of appeal than are afforded 
to the people who are guarding them, the men and women who wear 
the uniform of this country. Would you agree with that?
    Mr. Dell'Orto. Yes, sir. And if I could append a point on 
your previous question, in point of fact, if you take Colonel 
David's argument to its logical conclusion, he would be arguing 
that by virtue of this decision, a detainee at Guantanamo has 
more rights under the Constitution than our service men and 
women have under the Uniform Code of Military Justice, because 
there are certain constitutional rights that are constrained 
under the Uniform Code of Military Justice.
    Mr. McHugh. In fairness to the Colonel, I didn't hear him 
say all constitutional rights are conveyed. But I appreciate 
your comment.
    Mr. Chairman, just one more question.
    Thank you, sir.
    I would say to Mr. Katsas: I think your analysis of the 
conveyance of the right to confront--and by the way, for the 
record I dropped out of law school after 10 days, so jump in 
here and correct me at any time--but from my limited knowledge, 
that the right of confrontation under the sixth amendment is 
normally considered a civil finding and would not be applied 
here, you would argue. You and I would agree in that argument. 
But would I be wrong to be concerned that, thereto, there could 
be a court determination in the future, as they fill in these 
considerable blanks left by this decision, that that right of 
confrontation should be extended to detainees? Does that 
concern you?
    Mr. Katsas. In the habeas proceedings or in the 
prosecutions?
    Mr. McHugh. Either.
    Mr. Katsas. In the prosecutions, that is an open question, 
but the Military Commissions Act already provides confrontation 
rights by statute.
    Mr. McHugh. If it were provided under a sixth amendment 
right, a right that we would argue is not yet extended but 
could be as the blanks were filled in, it is my understanding 
that a true confrontation under the traditional aspects would 
be held here in the United States in federal court over on 
Constitution Avenue. Is that true?
    Mr. Katsas. If the proceedings were conducted here----
    Mr. McHugh. Is that not standard procedure in a sixth 
amendment confrontation before federal court?
    Mr. Katsas. The habeas proceedings would be conducted here. 
If confrontation rights were extended, then the detainees would 
be here in Washington, D.C. at Third and Constitution, 
Northwest.
    Mr. McHugh. Mr. Chairman, in closing, I would say, look, 
Colonel David is doing a great job in representing the 
interests of his clients, and I feel certain he comes committed 
to his passion, and he probably has points that need to be 
carefully considered, but I refer in closing to the Attorney 
General's comments. And without saying he is all right or all 
wrong, I think these are points that we have to carefully 
consider. In my opinion, there are far too many blanks here in 
far too many important ways, as is embedded in much of the 
dissent opinions, for those who have read it--that it is 
incumbent upon us to step in and be heard and fill in some of 
those blanks that I think cry out for definition.
    That is why this hearing is important and why I, 
personally, deeply appreciate all four of you being here. Thank 
you all for your service and patience, too.
    The Chairman. Thank you very much. Mr. Murphy.
    Mr. Murphy. Thank you, and I agree with Mr. McHugh on his 
past statement.
    Mr. Dell'Orto, I know you are an Army officer for 27 years, 
and I appreciate the whole panel for being here. I do want to 
mention that you actually get more rights as a soldier, as you 
know, when it comes to criminal law, whether it is fifth 
amendment rights because you have the article 31(b) rights as 
compared to Miranda, and you get sixth amendment right to 
counsel in the military, as compared to in the civilian world, 
where you have to be indigent to get a right to counsel free of 
charge. You get free attorneys in the military.
    I know you don't give first amendment freedom of speech 
rights and others. I know you are a Notre Dame grad. I went to 
King's College, another Holy Cross school, but you went on to 
Pepperdine and St. John's and Georgetown, and I don't want to 
match wits with you or with the board. I was just a lowly 
constitutional law professor for West Point before I got this 
gig.
    Going to my question, Mr. Katsas, pursuant to the authority 
granted under the Authorization for the Use of Military Force 
(AUMF), do you believe that an old lady in Switzerland who 
sends a check to an orphanage in Afghanistan can be taken into 
custody as an enemy combatant if, unbeknownst to her, some of 
her donation is passed to al Qaeda terrorists?
    Mr. Katsas. I don't. And I should add that Judge Green, 
whom you were quoting, went on to say that she believed that 
that hypothetical does not describe any Guantanamo detainee.
    Mr. Murphy. Then, you disagree with the statement of Deputy 
Associate Attorney General Brian Boyle, who, in federal 
district court in 2004, responded to that very question just 
asked you by saying that the grandmother could be held because 
``someone's intention is clearly not a factor that would 
disable detention.''
    So, I am puzzled. What is the government's formal position 
to the outer limit on who can be detained under the AUMF?
    Mr. Katsas. Under the AUMF, nations, organizations, or 
persons who committed the September 11 attacks or harbored 
those who did are proper objects of military force, including 
detention. In general, what that means at a minimum is that al 
Qaeda fighters and Taliban fighters can be detained, because al 
Qaeda is the organization that committed the attacks, and the 
Taliban is the armed force of the Nation that harbored al 
Qaeda.
    I fully agree with you to the extent your line of 
questioning suggests that there will be difficult questions at 
the outer bounds of who counts as al Qaeda. What happens to 
someone who is not actually fighting but writing checks? Is 
someone who occasionally writes a check different from someone 
who looks more like an Army paymaster?
    The existence of those hard questions at the outer margins, 
I don't think changes the fundamental point that Taliban and al 
Qaeda fighters are subject to detention, and our fundamental 
concern is with the core principle, because, as I said in my 
opening remarks, we had four out of nine judges on the fourth 
circuit conclude that no member of al Qaeda could be detained, 
not even Osama bin Laden.
    Mr. Murphy. Which is a minority?
    Mr. Katsas. A bare minority. Four out of nine.
    Mr. Murphy. Colonel David, do you believe that the AUMF 
applies to individuals who have no direct connection to al 
Qaeda or the Taliban and have not engaged in belligerent acts 
toward the United States?
    Colonel David. With that general proposition, I would hope 
so.
    Mr. Murphy. Thank you.
    In response to the Boumediene decision, Attorney General 
Mukasey called on Congress to pass legislation that basically 
codifies the Administration's broad and, in my opinion, 
constitutionally suspect definition of who the government can 
detain as an enemy combatant pursuant to the AUMF. We are 
trying to find a balance here. Obviously, we are looking at the 
spectrum. One the one hand are the Miranda rights on the 
battlefield, which no one on this committee and 99 percent of 
us in America don't agree that when you are fighting enemy 
combatants, they don't get constitutional rights on the 
battlefield, and we don't give them Miranda warnings, or 
article 31(b) warnings, as we call them in military justice.
    But on the other hand--I think most Americans say this--and 
we have hundreds of folks who have been detained in Guantanamo 
Bay for over six years now, and what is going on with them, and 
that is why we had this decision--grant them a habeas corpus.
    With all due respect to the Attorney General's proposal, I 
don't think it is serious or realistic, and he knows full well 
that this Congress will not approve legislation granting the 
government power that broad, nor, in my opinion, should it.
    As Judge Wilkinson of the Fourth Circuit Court said, who I 
think you would agree is a conservative judge--he said of the 
al Marri case, ``To turn every crime that might tenuously be 
linked to terrorism into a military matter would breach this 
country's most fundamental values.''
    I think the American people, Mr. Chairman, are tired of 
blatant partisanship from this Administration, which has been 
displayed too many times when it comes to national security 
issues over the past seven years. We are trying to find a 
proper balance. So, could the panel please give this committee 
a realistic idea of how future bipartisan legislation would 
define who exactly the government can detain, while not 
breaching our country's most fundamental values? I would ask 
the panel to please answer that question.
    Mr. Katsas. The Administration agrees with the quote from 
Judge Wilkinson that you just read. The Attorney General, I am 
pretty confident, would not disagree with it. I think a good 
start would be confirming the power of the military to detain 
members of al Qaeda, the Taliban and associated forces.
    Mr. Murphy. I would agree with you. I think we can all 
agree that if it is an al Qaeda member or a Taliban member or 
anyone who harbors al Qaeda or Taliban, we want to be able to 
go after them. No one in this room is disagreeing with you.
    What we are arguing, though, is how do you find out if they 
are Taliban or al Qaeda? And how tenuous of a connection does 
it have to be?
    Mr. Katsas. On the question of how tenuous the connection 
has to be, no doubt there are hard questions on the outer 
bounds of that. And if you were to try to specify a more 
precise definition of who is sufficiently related to al Qaeda 
to be subject to detention, we would be happy to work with you 
on that.
    Mr. Murphy. With all due respect, you are a member of the 
Administration. We are asking for your professional opinion 
here as we are trying to craft very important legislation that 
is dealing with the very important issue dealing with national 
security. We are asking for your professional opinion. Give us 
a realistic idea of how--in the future, what kind of bipartisan 
legislation do we need? How do we move forward from here?
    Mr. Katsas. Sorry. I think I just gave it to you. My 
professional opinion is that it would be both constitutional 
and prudent to confirm the military's authority to detain al 
Qaeda, Taliban, and associated forces. And to come back to your 
other question about how do we determine who falls within that 
circle, the Supreme Court has spoken. The answer is through 
habeas corpus proceedings; and now the task, I hope, for the 
political branches working together, is to spell out the 
details of how those proceedings should be implemented.
    Mr. Murphy. Part of the issue, and we had a very important 
hearing yesterday--and I think it was Neal Katyal who said only 
half of a single trial was completed after seven years of the 
existence of Guantanamo Bay. You know, there is an argument 
whether or not we should have a national security court. There 
are a lot of issues we are trying to wrap arms around. I would 
ask the other members of the panel if they would like to 
answer.
    And I know Sandra Hodgkinson. We served at the same time in 
Iraq together. I know you were on the civilian side. I was 
south of you. Unfortunately, I didn't get a chance to live in 
the green zone, although that was not nice duty; don't get me 
wrong. I used to bring my legal team there to swim in the pool, 
because we didn't have showers at the time we worked. We were a 
bunch of paratroopers, and we didn't smell too well. I know you 
have the experience, as well, being a JAG attorney. And if you 
have a comment on my question, I would appreciate to hear it.
    Ms. Hodgkinson. One thing that I think is important to 
note, and I know we are talking a lot about Boumediene and 
Guantanamo, but we have captured as you know well over 100,000 
people since the beginning of this particular war. And a very 
small number, through battlefield screening, ever ended up at 
Guantanamo Bay. So, while we agree it can be difficult to 
define who fits within these narrow definitions, the hope is 
that after different levels of hearings, whether they are 
battlefield or combatant status tribunal or an administrative 
review board, gets us to a degree of more confidence that at 
least we are holding the people who pose a real threat to us; 
because I want to assure everybody here in the room that we 
have no desire to hold anybody who doesn't fit in that category 
or pose a threat to the United States.
    As we move forward, I think there have been a lot of issues 
addressed in the Attorney General's testimony and, also, 
discussed here about practical ways to ensure that these habeas 
proceedings can proceed as quickly and efficiently as possible, 
to have those very determinations made, so that we can move 
forward and the decisions can be made by the courts. In the 
meantime, I can assure you that we are going to do everything 
we can to continue to transfer out those detainees that can be 
transferred from Guantanamo Bay and to continue to try to 
shrink the population as we look at the other alternatives that 
are out there.
    Mr. Murphy. Anyone else?
    Mr. Dell'Orto. Congressman, in terms of the definition, I 
would suggest that you might want to look first at section 
948(a) of the Military Commissions Act, which, obviously, was 
passed by Congress in 2006 and signed by the President shortly 
thereafter. From the standpoint of jurisdictions of the 
military commissions, that gives you a definition which is very 
similar to what was adopted very early on for the purposes of 
the combatant status review tribunal process. And so those 
definitions are out there, and we think that they are operable 
definitions, and we think that they have served us well to date 
in the war on terror.
    Mr. Murphy. Colonel David.
    Colonel David. My concern right now is what happens to 
those individuals that are charged. I think we all agree, or at 
least I hope we agree, that when all is said and done, whether 
you are a prosecutor or defense counsel, the discussion centers 
on, gosh, the evidence I could have called or the witness I 
could have called or something I could have done differently 
and whether someone is found guilty or not guilty and what the 
sentence is--the discussion is about that and not, for years to 
come, about the process or the flaws in the process or the 
problems with the process.
    I think that is a goal we all share. The problem is how we 
get there, and the concerns we are trying to bring forth, in 
the litigation and in any form we can, is that the process, the 
commission's process, has flaws.
    I am concerned. I don't want anyone murdered in prison, but 
I don't want someone dying there of old age because they have 
been held there for an extended time without due process. I 
think we are better than that. I don't envy your challenge.
    Mr. Murphy. Along those lines, Colonel, yesterday we had 
testimony from Colonel Morris Davis from the Air Force, and he 
quoted the prosecutor from the World War II saboteur case. In 
2001, right after the 9/11 attacks--and his name is Mr. 
Cutler--he said, after 2001, that we know more about the United 
States on how we prosecute al Qaeda members, and that will say 
just as much about us as it will say about al Qaeda.
    Colonel David. Sir, I am just a small town Indiana boy, but 
I wouldn't want to drive a 1940's vintage automobile, and I 
wouldn't want to be operated on in a 1940's vintage hospital. 
So, I think, as painful as it may be for us as a country, in 
the long run, giving the detainees 21st century legal rights is 
the right thing to do, so we can stand up in front of the 
world. We did it right, and we have no excuses, and we are not 
subject to ridicule and criticism, and our legal integrity is 
maintained, and we have defended the rule of law. I think that 
is what we are about.
    Mr. Murphy. I yield back to the chairman. For those folks 
home watching, the chairman is a former county prosecutor in 
Missouri and a military historian, and I just want those people 
home in America to realize that we are not asking to give any 
type of Miranda rights on the battlefield. If it is al Qaeda or 
Taliban, we want to prosecute them to the fullest extent, and 
that is an appropriate judgment if that is the case. But at the 
same time, if there are people who are locked up in Guantanamo 
Bay that were there for wrong reasons, whether they were turned 
over because they got a bounty or whatever reason, now that 
they have the rights under habeas corpus, which I think we 
should have passed as a Congress--we didn't get there, even 
though we have legislation and it hasn't come up for a vote; 
but we are getting after it now, and it is something that I am 
very proud of.
    I yield back to the chairman.
    The Chairman. I thank the gentleman.
    Mr. Hunter. Mr. Chairman, if I may.
    The Chairman. Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    Once again, Colonel, you talked about 21st century rights. 
The right to have counsel is a 21st century right. The right to 
be convicted beyond a reasonable doubt is a 21st century right.
    These 15 rights that I enumerated which so far nobody has 
been able to expand upon, including you, are 21st century 
rights. And of course, we expect the system to carry those 
rights out. Now, if you see people not carrying those rights 
out, we expect to know about that. But I don't want to let this 
hearing conclude with the idea that somehow we are summarily 
convicting people without affording them their rights. We are 
not doing that.
    And I also know that we have given a free pass to people 
who were incarcerated in Guantanamo Bay, and they have gone 
back, picked up arms; and they have tried to kill Americans on 
battlefields. That is people who come from Mr. Murphy's town 
and people who come from my town in San Diego, and the people 
who come from the chairman's towns, and we have an obligation 
to the people who fight on the battlefield to make sure that 
the guys that they have given blood, sweat, and tears to bring 
those people in when they capture them--and the idea of us 
having a system where tie goes to the runner, and we jettison 
those people back to the battlefield to make ourselves feel 
good, instead of warehousing them for the duration of the war, 
is a disservice to them.
    I appreciate the panel being here, but I also appreciate 
the fact that we did put a bill together. I think it is a good 
bill. I notice that the Colonel, who was with us yesterday, 
said that he thought that the Military Commissions Act (MCA) is 
a good basis for the prosecution of people who are accused of 
terrorism against the United States. I want to see these 
prosecutions continue. I think we all do. I think everybody 
here does. I want to thank the panel for being with us.
    Last, I think it is a real mistake for us to close 
Guantanamo because the rest of the world doesn't like it. The 
rest of the world goes behind closed doors after Americans go 
out to the far reaches of the world and risk our lives trying 
to bring these guys to justice. And they breathe a sigh of 
relief after the Americans do it. Then they can hold press 
conferences and say that we didn't give Khalid Sheikh Mohammed 
all of the rights that he was entitled to while our guys were 
out there risking their lives to bring him in.
    I think we have done a pretty darn good job of this so far, 
and I think it is a mistake for our political figures, 
including those in my party, to say that they are going to 
close Guantanamo to somehow do away with this image that has 
falsely built up around this system of justice.
    Thank you, Mr. Chairman, thanks for having the hearing 
today.
    The Chairman. Back to the legislative issue.
    There is a law on the books called the Classified 
Information Procedures Act. The Attorney General mentioned in 
his speech before the American Enterprise Institute that there 
should be legislation in relation to habeas corpus proceedings 
that are related to the status of detainees, that the 
Classified Information Procedures Act is inadequate. I am 
asking Mr. Katsas: Upon what basis does the Attorney General 
make that assertion?
    Mr. Katsas. The Classified Information Procedures Act 
governs criminal trials, outside the wartime context, in 
domestic Article 3 courts. The question before you today is 
appropriate procedures for wartime status determinations in a 
non-criminal context for aliens captured and held outside the 
country.
    The fundamental problem with applying the Classified 
Information Procedures Act in this very different context is 
that, ultimately, the Classified Information Procedures Act, in 
many cases, puts the government to the Hobson's choice of 
either revealing classified information or letting somebody go 
in any case where a judge finds that there is no adequate 
substitute for classified information. That might be an 
appropriate burden to impose on the government in the context 
of criminal prosecution. We don't think it is an appropriate 
burden in the context of fighting a war.
    The Chairman. Has the Classified Information Procedures Act 
been used in any of the trials thus far? Regarding terrorism, 
of course.
    Mr. Katsas. In the habeas hearings or the prosecutions?
    The Chairman. No, in the actual prosecution.
    Mr. Dell'Orto. We have the version of the Classified 
Information Procedures Act that is different for military 
commissions that was passed by Congress in the Military 
Commissions Act.
    I don't believe we have actually had to employ those 
procedures yet in the trial that is underway at Guantanamo at 
this moment. I could be wrong on that, because I don't follow 
the day-to-day happenings in that particular court. So, I could 
be wrong on that, Mr. Chairman, but I don't believe we have had 
to employ those procedures yet.
    Mr. Katsas. And I should add it has not yet been used in 
the habeas proceedings involving detention challenges, although 
detainee counsel have asked for something like it.
    The Chairman. Despite that, if your Department has 
recommendations along this line, we would appreciate additional 
information on it for us, because it could pose a problem in 
the future.
    Mr. Katsas. We would be happy to do that.
    The Chairman. Colonel David, you might be interested in 
knowing that country lawyers do think alike, and you have some 
country lawyers up here listening to your testimony today.
    Gentlemen, thank you for your patience and your testimony. 
It has been very, very helpful. I know it has been a long day 
for you, but this is a most important subject for us to be 
considering, and we will obviously be looking at your testimony 
in the days ahead. Thank you so much.
    The hearing is adjourned.
    [Whereupon, at 5:35 p.m., the committee was adjourned.]
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                            A P P E N D I X

                             July 31, 2008

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                             July 31, 2008

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              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             July 31, 2008

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                   QUESTIONS SUBMITTED BY MR. SKELTON

    The Chairman. There is a law on the books called the Classified 
Information Procedures Act. The attorney general mentioned in his 
speech before the American Enterprise Institute that there should be 
legislation in relation to habeas corpus proceedings that are related 
to the status of detainees, that the Classified Information Procedures 
Act is inadequate. Upon what basis does the attorney general make that 
assertion?
    Mr. Katsas. When classified materials may be relevant to criminal 
proceedings, the Classified Information Procedures Act (``CIPA''), 18 
U.S.C. app. III Sec. Sec. 1-16, Pub. L. 96-456, provides procedures 
designed to protect the rights of the criminal defendant while 
minimizing the associated harm to national security. The habeas 
litigation currently ongoing in the wake of Boumediene, like all habeas 
litigation, is civil in nature, and therefore CIPA has no application 
to it. CIPA reflects a fundamental policy choice that individuals 
subject to criminal prosecution should be entitled, in some 
circumstances, to access classified information for their defense. That 
conclusion is inapplicable to aliens captured and held outside the 
United States as wartime enemy combatants.
    Wartime status determinations, whether performed by the military or 
by habeas courts, are fundamentally different from criminal 
prosecutions. The purpose of detaining enemy combatants for the 
duration of hostilities is not to punish, but to prevent those 
combatants from returning to the battle to fight against American 
soldiers and interests. In that context, the Government should not be 
put to the Hobson's choice of either releasing Taliban or al Qaeda 
combatants during the ongoing conflict, on the one hand, or sharing 
with those combatants classified national security information about 
our intelligence sources, methods, or operations, on the other.
    Finally, to the extent that the question relates to military 
commission prosecutions of enemy combatants, those prosecutions are 
being undertaken by the Office of Military Commissions in the 
Department of Defense. Although the Department of Defense is best able 
to respond to questions regarding the military commission process, 
generally, I would like to note an important point. As iterated 
earlier, the Attorney General's comments that are the subject of the 
question above related not to criminal trials, but to civil habeas 
corpus proceedings--proceedings in which CIPA does not apply. 
Similarly, CIPA does not apply in military commission prosecutions 
either; however, the Military Commissions Act of 2006 provides 
similar--but more extensive--protections for classified information in 
the commission process.

                                  
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