[Senate Hearing 110-455]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 110-455
                        AMERICAN JUSTICE SYSTEM



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                              JUNE 4, 2008


                          Serial No. J-110-97


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel

                            C O N T E N T S




Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin prepared statement...................................    81
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    96


Benjamin, James J., Jr., Partner, Akin Gump Strauss Hauer & Feld 
  LLP, New York, New York........................................     6
Coughenour, Hon. John C., Judge, U.S. District Court, Western 
  District of Washington, Seattle, Washington....................     3
Guiora, Amos N., Professor of Law, S.J. Quinney College of Law, 
  University of Utah, Salt Lake City, Utah.......................     8
Malinowski, Tom, Washington Advocacy Director, Human Rights 
  Watch, Washington, D.C.........................................    10
Wittes, Benjamin, Fellow and Research Director in Public Law, 
  Brookings Institution, Washington, D.C.........................    13

                         QUESTIONS AND ANSWERS

Responses of John C. Coughenour to questions submitted by Senator 
  Kennedy........................................................    27
Responses of James J. Benjamin to questions submitted by Senator 
  Kennedy........................................................    29
Responses of Amos N. Guiora to questions submitted by Senator 
  Leahy..........................................................    32
Responses of Tom Malinowski to questions submitted by Senators 
  Leahy and Kennedy..............................................    35
Responses of Benjamin Wittes to questions submitted by Senators 
  Kennedy and Leahy..............................................    37

                       SUBMISSIONS FOR THE RECORD

Atlantic.com, Washington, D.C., February 27, 2007, article.......    43
Benjamin, James J., Jr., Partner, Akin Gump Strauss Hauer & Feld 
  LLP, New York, New York, statement and attachment..............    46
Coughenour, Hon. John C., Judge, U.S. District Court, Western 
  District of Washington, Seattle, Washington, statement.........    76
CNN, May 14, 2007, article.......................................    80
Guiora, Amos N., Professor of Law, S.J. Quinney College of Law, 
  University of Utah, Salt Lake City, Utah, statement............    83
International Herald Tribune, May 8, 2008, article...............    95
Malinowski, Tom, Washington Advocacy Director, Human Rights 
  Watch, Washington, D.C., statement.............................    98
McCarthy, Andrew C., Director, and Alykhan Velshi, Staff 
  Attorney, Center for Law and Counterterrorism, Foundation for 
  the Defense of Democracies, Washington, D.C., statement........   106
New York Times, July 11, 2007, article...........................   130
Philadelphia Inquirer, June 2, 2008, article.....................   132
Radack, Jesselyn A., Homeland Security Director, Government 
  Accountability Project, Department of Justice, Washington, 
  D.C., statement................................................   134
Wittes, Benjamin, Fellow and Research Director in Public Law, 
  Brookings Institution, Washington, D.C., statement.............   136
USA Today.com, June 2, 2008, article.............................   140
U.S. News and World Report, June 2, 2008, article................   141
Wall Street Journal, WSJ.com:
    June 4, 2008, article........................................   145
    August 22, 2007, article.....................................   147
Washington Post, October 22, 2004, article.......................   151

                        AMERICAN JUSTICE SYSTEM


                        WEDNESDAY, JUNE 4, 2008

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 10:07 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feingold, Cardin, Whitehouse, Kyl, 
and Sessions.

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning, everyone. I appreciate this 
very good line-up here, and I have to be careful when I say 
``very good line-up'' because I once had a job where, when we 
had line-ups, people were wearing numbers across their chests.
    Senator Whitehouse, do you want to come up here? Please 
feel free.
    For more than 6 years, this administration has made a mess 
of detainee policies. They rejected our courts. They twisted 
our laws. They certainly squandered our reputation. 
Interestingly, the most conservative Supreme Court in my 
lifetime has been the only check on the administration as it 
has repeatedly overruled the administration's legal theories.
    Detainees have languished for years at Guantanamo, without 
access to meaningful judicial review. To date, not one accused 
terrorist has been tried, convicted, and punished by the 
dysfunctional military commissions that the administration has 
established; but prosecutors and judges are being replaced in 
ways that leave the impression that the proceedings are being 
engineered to guarantee a result rather than ensure fairness. 
Now we hear that the administration is intent on proceeding 
with high-profile trials, coincidentally, in the weeks leading 
up to the November election, such a serious matter turning 
trials into a partisan effort.
    As we near the end of this administration, it is time to 
look forward. The next President and the next Congress will 
have to craft a new policy that is consistent with our values 
as a Nation and our respect for the law. A starting point is to 
examine the premise on which this administration based its 
policy, its conclusion that our criminal justice system is 
incapable of handling terrorism cases.
    Obviously, I disagree. I think we have the greatest 
judicial system in the world, and we can handle any kind of 
case that comes before us.
    So I am not one who wants to dismiss our systems of both 
civilian and military justice that have served us so well for 
so long. And one of the saddest legacies of this time and what 
the administration has done is its distrust of our 
constitutional system of justice. We cannot accept without 
examination the view that terrorism cases are too difficult for 
our courts. As a former prosecutor, I feel very strongly that 
we have to make sure terrorists are held accountable and 
punished for their actions. I suspect all Americans agree wt 
that. So today we begin the process of looking more carefully 
at what needs to be done with those suspected of being 
terrorists and what our courts--both military and civilian--are 
capable of doing.
    One excellent contribution to this discussion is the report 
that Human Rights First released last week, titled ``In Pursuit 
of Justice.'' The report is the result of an in-depth look at 
the capabilities of our criminal justice system. It concludes 
that our system here in America is sufficiently flexible and 
well equipped to handle international terrorism cases. We are 
fortunate to have one of the report's authors, James Benjamin, 
with us today.
    We also welcome Judge John Coughenour. He is a respected 
judge who has significant experience with terrorism cases. He 
presided over the trial of the so-called Millennium Bomber, 
Ahmed Ressam. He speaks with authority on the capacity of our 
constitutional system to handle new challenges. The judge's 
written testimony includes a quote from Justice Jackson, a 
former Attorney General of the United States and our chief 
prosecutor at the Nuremberg trials after World War II, who said 
``the strength and vitality of the Constitution stem from the 
fact that its principles are adaptable to changing events.'' 
Judge, I agree with you on that. It is a critical point to 
remember in this discussion. Is handling terrorism under our 
current system really not possible? Or is it just hard? That 
means we have to adapt our procedures and that might require 
some work. I have the faith, which apparently some in the 
administration do not have, that our Constitution and our 
courts can adapt to meet the challenge.
    Our Constitution and our courts have protected this great 
democracy from its inception, and most experts reject the 
decisions of the administration, including its effort to 
establish a system of detention, interrogation, and prosecution 
outside the law. Some propose instead to create ``preventive 
detention'' regimes and what they call ``national security 
courts.'' Those making these proposals see them as more 
legitimate alternatives to the current extra-legal system. 
Their underlying assumption, though, is the same as this 
administration's--that our existing criminal and military 
justice systems are not capable of handling terrorism cases.
    Before we start creating some new, separate mechanism 
designed to handle those accused of terrorism, we need to 
consider the serious impact this could have on our 
constitutional system of justice but also our reputation as a 
Nation, and on the fight against international terrorists. We 
have to ask the obvious question: Would it create more problems 
than it solves? Would the current problems simply be replicated 
in a new, untested system? The current treatment of terrorism 
detainees has had a devastating impact on our national 
reputation. Anywhere you go in the world, you hear that. And 
that is something the next President, whoever that may be, will 
have to restore. Would creating a separate court for terrorist 
suspects help us set that right? We will listen to Tom 
Malinowski and others on that issue.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Now, our first witness, as I said, is Judge Coughenour. He 
is a United States District Judge for the Western District of 
Washington. He was nominated the Federal bench in 1981. He 
served as chief judge of the district from 1998 to 2004. In 
2006, he assumed senior status. The workload did not cut down a 
bit, though, did it, Judge. Prior to joining the Federal bench, 
he served on the law faculty of the University of Washington, 
was a partner at the Seattle firm of Bogle & Gates. He served 
as Chair of the Ninth Circuit Working Groups on Jury 
Instructions and Gender Bias. He is past president of the Ninth 
Circuit District Judges Association.
    Judge, please go ahead. I will just mention there is a 
little button in front of each of you. If the microphone is on, 
it will show red, and this young woman will have a much easier 
time keeping your record if you do that.
    Go ahead, sir.


    Judge Coughenour. Thank you for this opportunity to testify 
about terrorism and the Federal courts. It goes without saying, 
I speak on my own behalf, not as a representative of the entire 
Federal judiciary, nor as a representative of the Judicial 
Conference U.S.
    It is my firm conviction, informed by 27 years on the 
Federal bench, that the United States Courts, as constituted, 
are not only an adequate venue for trying suspected terrorists, 
but also a tremendous asset against terrorism. Indeed, I 
believe it would be a grave error with lasting consequences for 
Congress, even with the best of intentions, to create a 
parallel system of terrorism courts unmoored from the values 
that have served us so well for so long.
    Before I explain how I arrive at this conclusion, I want to 
emphasize that I have great sympathy for those charged with the 
awesome responsibility of our national security. What I hope to 
convey in some small measure with my testimony today is that 
our leaders in the political branches need not view this as a 
choice between the existential threat of terrorism and the mere 
abstractions of a 200-year-old document. They need not mistake 
reliance on cherished values with complacency toward the new 
challenges of a dangerous world. Constitutional is not just a 
long walk in aid of regularity.
    After spending the greater part of my career on the Federal 
bench, and having tried a high-profile international terrorism 
case in my courtroom, I think the choice is better understood 
as follows: Do we want our courts to be viewed as just another 
tool in the war on terror, or do we want them to stand as a 
bulwark against the corrupt ideology upon which terrorism 
feeds? I believe our choice should be the latter.
    Let me begin with the question of competence. Detractors of 
our current system argue that the Federal courts are ill-
equipped for the unique challenges posed by terrorism trials. 
Objections of this kind frequently begin with a false premise. 
That is, some who argue that the Federal courts are not capable 
of trying suspected terrorists support this view by citing 
various procedural and evidentiary rules that constrain the 
prosecutor's ability to bring or prove a case. The threat of 
terrorism is too great, we are told, to risk an unsuccessful 
prosecution. This assumes that courts exist to advance the 
prerogatives of law enforcement, and that convictions are the 
yardstick by which a court's success is measured. Indeed, 
recently we have heard a government representative say, 
``Acquittals? We can't have any acquittals.'' Such a notion is 
inconsistent with our constitutional separation of powers, 
under which courts guarantee an independent process, not an 
outcome. Any tribunal purporting to do otherwise is not a court 
and does not deserve to be called a court.
    This fallacy aside, the courts' detractors are also raising 
some more legitimate concerns about whether judges have 
sufficient expertise over the unique subject matter of 
terrorism trials, and whether the courts can adequately protect 
the government's interest in preserving classified documents 
for future intelligence-gathering purposes. These concerns are 
not insurmountable under the system we have in place. The 
argument about expertise ignores the fact that judges are 
generalists. Just as they decide cases ranging from employment 
discrimination to copyright to bank robbery, they are also 
capable of negotiating the complexities of a terrorism trial. 
As for the protection of classified information, courts are 
guided by the Classified Information Procedures Act, which 
played a prominent role during the trial of the so-called 
Millennium Bomber, Ahmed Ressam, in my courtroom in 2001. While 
I found the extensive precautions to be more than adequate in 
that case, I would submit that any shortcomings in the law can 
and should be addressed by further revision, rather than by 
undermining the institution of the judiciary itself. I would 
also add that courts are not insensitive to the compelling 
needs of the government in criminal cases and apply existing 
law and procedure with deference to those needs. As Justice 
Robert Jackson said in the quote the Senator referred to 
earlier, ``the strength and vitality of the Constitution stem 
from the fact that its principles are adaptable to changing 
    In fact, there is good reason to think that the courts are 
not only competent, but also uniquely situated to conduct 
terrorism trials. Their insulation from the political branches, 
accumulated institutional knowledge, and fidelity to legal 
precedent ensure that no matter which way the prevailing 
political winds blow, critical decisions pitting the interests 
of community safety against individual liberty will be 
circumspect and legitimate. I worry that with specialized 
tribunals for suspected terrorists, governed by a separate set 
of rules and procedures, we would create institutions 
responsive to the perceived exigencies of the moment, upsetting 
the delicate system of balances and checks that deter abuse and 
promote faith in government. For example, if politically 
vulnerable actors start redesigning courts, can we say with 
assurance that popular pressure will not someday demand the 
admission of hearsay evidence or statements obtained by harsh 
interrogation techniques? Might we see the day when counsel for 
the defendant cannot access information needed to mount a 
defense or cannot appear at a defendant's behest without 
undergoing a background check of undefined scope? Or when a 
defendant might be represented by somebody who is not even a 
lawyer? Such practices are not without recent historical 
precedent and cannot be dismissed as mere paranoia once we peg 
our judicial institutions to the ebb and flow of public 
    I also worry that special terrorism courts risk elevating 
the status of those who target innocent life. As I stated 
during sentencing of Mr. Ressam in 2001, we have the resolve in 
this country to deal with the subject of terrorism, and people 
who engage in it should be prepared to sacrifice a major 
portion of their life in confinement. Implicit in my remarks 
was the message that despite the supposed grandeur of their 
aims, these people surrender their liberty just like any 
criminal who has earned society's condemnation.
    At the outset, I stated that the Federal courts are not 
just capable of trying suspected terrorists; they are an asset 
against terrorism. At a time when our national security is so 
intimately linked with our ability to forge alliances and 
secure cooperation from countries that share or aspire to our 
fundamental values, we can ill afford to send the message that 
those values are negotiable or contingent.
    I recently returned from Russia, where I have worked over 
the past 25 years to promote judicial reform. The topic of this 
most recent trip was jury trials, and the 5-day seminar 
culminated in a mock trial conducted in the military court of 
Vladivostok. Serving as mock jurors were a group of Russian law 
students from Far Eastern University, no more than 19 or 20 
years old, most with aspirations to be prosecutors in a system 
struggling to define a role for the courts that is independent 
from the state. That day, I felt that my ability to confidently 
share the virtues of our independent judiciary and Constitution 
with those who represent the future of Russia was more than a 
personal privilege; it was in our country's own strategic 
interest. I cannot help but wonder if I will be able to speak 
with the same authority on future occasions if we lose 
confidence in the very institutions that have made us a model 
for reform in the first place.
    Thank you, Senator.
    [The prepared statement of Judge Coughenour appears as a 
submission for the record.]
    Chairman Leahy. Thank you. You know, you mentioned being 
there in Russia, and I recently returned from a number of 
countries abroad, and I raised some of the same questions, 
especially countries that have become newly democratic nations, 
trying to determine how they will do their court system. And 
with the indulgence of Senator Whitehouse, I recall shortly 
after the break-up of the Soviet Union, a group of Russian 
jurists and others in my office were asking about our system. 
One of the questions they asked, ``Is it true that people in 
the United States can actually sue the Government?'' I said, 
``It happens all the time.'' And they said, ``And is it true 
that sometimes the Government loses?'' I said, ``It happens all 
the time.'' ``And you then replace the judge? ''
    Chairman Leahy. Very interesting questions. And when we 
explained why we do not, I think the light bulb went on.
    James Benjamin is a partner in the Washington law firm of 
Akin Gump. He represents clients in a variety of Government 
regulatory investigations and litigation, focused on civil 
litigation and appellate work in State and Federal appeals 
courts. Prior to joining Akin Gump in 2001, Mr. Benjamin served 
in the U.S. Attorney's Office for the Southern District of New 
York for 5 years. During his time there, he served as deputy 
chief appellate attorney, was a member of the Securities and 
Commodities Fraud Task Force in 2000, received an award for 
superior performance from the Attorney General. He received his 
bachelor's degree from a neighboring State, from Dartmouth, and 
his law degree from the University of Virginia School of Law.
    Mr. Benjamin, go ahead. And I should also note that all 
statements, full statements, will be placed in the record of 
each of you. Also, during the questions and answers--naturally, 
you will all get a copy of the transcript, and if you see 
things in there that you want to add to or may want to correct, 
just notify us, and that will be changed.
    Mr. Benjamin?


    Mr. Benjamin. Mr. Chairman, members of the Committee, thank 
you very much for the opportunity to be here this morning. I am 
here to talk about a report on terrorism prosecutions that I 
co-authored along with my law partner and close friend, Richard 
Zabel, who is also present here this morning. Rich is sitting 
right behind me, but if we could do it, he should be here right 
next to me, because this was a team effort from beginning to 
    Rich and I practice law together at Akin Gump in New York 
City. Our area of expertise is white-collar criminal defense. 
Before coming to Akin Gump, the two of us collectively spent 
more than 13 years as Federal prosecutors in the Southern 
District of New York. And I know that I speak for Rich as well 
when I say that we are very proud of the time we spent working 
in the Southern District under our former boss, Mary Jo White, 
whom we admire greatly.
    About a year ago, Human Rights First, a wonderful 
organization that is a longstanding pro bono client of our law 
firm, approached Rich and me and asked us to undertake a 
comprehensive study of the capability of the Federal courts to 
handle international terrorism cases. Last week, we published 
the results of that study. We prepared our report in the hope 
that we could make a contribution to the important public 
debate about how best to prosecute and punish individuals 
suspected of complicity in terrorism.
    As the members of the Committee are well aware, in recent 
years a number of people, including some of the distinguished 
panelists here today, have proposed that terrorist criminals 
should be prosecuted outside of the civilian court system, 
either through the use of untested military commissions or in 
an as yet undefined national security court. A significant 
premise of these arguments is that the existing court system is 
not equipped to handle terrorism cases. In our report, we set 
out to test that premise, and we found, contrary to the views 
of those who propose a new court system or a new detention 
regime, that the existing Federal system over the years has 
done a capable job of handling terrorism cases. In other words, 
prosecuting terrorism defendants in the court system has 
generally led to just, reliable results without compromising 
national security or sacrificing rigorous standards of fairness 
and due process.
    Now, that does not mean that the justice system is perfect. 
In some of these cases, the system has been subjected to 
stresses and burdens. This was especially true in the 1990s, 
when some of the issues in these cases were being litigated and 
resolved for the first time. But the system has adapted to meet 
the challenges presented by internatural terrorism cases.
    I also want to make clear that we do not for a minute 
believe that the criminal justice by itself is the answer to 
the problem of international terrorism. Obviously not. 
Terrorism is a complex and enormously important problem, and in 
combating it, the Government must have at its disposal the full 
range of military, intelligence, diplomatic, economic, and law 
enforcement resources.
    In approaching our research, our goal was to look beyond 
rhetoric and generalizations and explore how the courts have 
actually fared in the scores of criminal cases that have 
actually been brought against alleged terrorists. In total, we 
identified 123 terrorism cases going back to the 1980s. We 
obtained detailed information about those cases. Based on that 
foundation, we undertook a detailed review of the key legal and 
practical issues that were presented in these 123 cases. Here 
are some of our findings in very, very brief summary.
    One: Prosecutors can invoke a broad array of substantive 
statutes against alleged terrorists, including very important 
statutes that were adopted by Congress in the mid-1990s and 
    Two: Over and over again, courts have successfully used 
CIPA and other tools to balance the defendant's right to be 
informed of relevant evidence against the need to preserve the 
secrecy of classified information.
    Three: The Miranda rule is manageable and does not affect 
battlefield captures or intelligence interrogations.
    Four: Courts have applied the Federal Rules of Evidence in 
a flexible, common-sense manner, consistent with longstanding 
    Five: Existing law provides an array of tools for the 
Government to detain individuals it believes are dangerous.
    And, six: Courts have imposed severe sentences on persons 
convicted of terrorism crimes.
    Mr. Chairman, we recognize that the project we set out to 
undertake was large and that the subject matter is 
controversial. We have done our best on a pro bono basis to 
prepare a report that is objective and balanced. We hope our 
report is of value in the ongoing debate about how best to 
reconcile our commitment to the rule of law with the imperative 
of assuring security for all Americans.
    Thank you.
    [The prepared statement of Mr. Benjamin appears as a 
submission for the record.]
    Chairman Leahy. Well, thank you, Mr. Benjamin. And we have 
an advanced copy of the report, and I was able to go through 
it, as has my staff. It is an excellent report, and I 
appreciate it.
    Mr. Benjamin. Thank you.
    Chairman Leahy. Professor Amos Guiora--did I pronounce that 
    Mr. Guiora. That is a great start.
    Chairman Leahy. Good staff. He is a law professor at S.J. 
Quinney College of Law at the University of Utah, teaches a 
course in criminal law, ``Global Perspectives in 
Counterterrorism,'' and religion and terrorism. He has also 
taught at Case Western Law School, and he is the founding 
director of the Institute for Global Security Law and Policy. 
Professor Guiora served for 19 years in the Israel Defense 
Force Judge Advocate General's Corps, held a number of senior 
command positions, including Commander of the IDF School of 
Military Law, Judge Advocate for the Navy and Home Front 
Command, and legal advisor to the Gaza Strip. He received his 
bachelor's degree from Kenyon College and law degree from Case 
Western Reserve University School of Law.
    Professor, it is good to have you here. Please go ahead, 


    Mr. Guiora. Thank you for having me, Mr. Chairman.
    Mr. Chairman, members of the Committee, it is indeed a 
pleasure and a privilege to be here this morning, and I hope 
you will find my comments helpful as we go forward with the 
question of where to try terrorists, or at least how do we go 
about trying suspected terrorists.
    The question, when we ask ourselves where to try detainees, 
requires answering a number of preliminary questions.
    First, how do we define the current situation? Is it is a 
war? Is it a police action? Is it an armed conflict short of 
war? Without answering those questions, it is going to be very 
difficult for this Committee to go forward with the question of 
where to try terrorists.
    The second question that must be addressed, Mr. Chairman, 
is: What rights do we grant detainees?
    And the third question is: How do we go about vetting the 
detainees? Depending on who you want to believe, according to a 
number of senior military officials, somewhere between 20,000 
to 25,000 detainees are held worldwide either by the U.S. or on 
behalf of the U.S. And the question of how to go forward cannot 
be answered until we develop an objective criteria for 
determining if a particular detainee presents a current or 
future threat to the United States' national security. So those 
are the preliminary questions.
    Once we have decided how to go forward, then two additional 
questions or two additional premises: One, I think that most 
people, Mr. Chairman, will agree that we need to close 
Guantanamo. But saying to close Guantanamo is an easy answer 
and an incorrect answer until we have come up with an 
alternative solution. What I propose, Mr. Chairman, in my few 
minutes here this morning, is the following: the establishment 
of an American Domestic Terror Court premised on the following:
    One, that an international treaty-based terrorism court is 
going to be an unworkable solution because I think the nations 
of the world will be unable to define what terrorism is. If the 
FBI and the DOD and the State Department and the Department of 
Homeland Security cannot agree on what terrorism is, I think it 
is going to be a tall order for the nations of the world to 
define what terrorism is; and, therefore, an international 
treaty-based terror court is unacceptable, or at least 
    The second obvious solution or option are the Article III 
courts, and I think I am going to respectfully disagree with my 
co-panelists. I think Article III courts are going to be an 
unworkable solution once we close Guantanamo. I think the 
numbers are such, even if there are, say, 25,000 and we vet and 
we are down to 10,000 detainees, I think Article III courts as 
they are presently constituted are going to be unworkable in 
terms of trying 10,000 people.
    The Domestic Terror Court solution that I proposed, Mr. 
Chairman, has the following advantages, and those advantages, I 
immediately add, are also very problematic. One, they will 
enable the introduction of classified information that will be 
heard in camera. Neither the detainee nor the defendant nor his 
counsel will be in a position to hear that information. That 
classified information can be used to bolster conviction. It 
cannot be the sole basis of conviction.
    In addition, Mr. Chairman, there will not be a jury trial. 
In essence, with the proposal based both on the lack of a jury 
trial and an introduction of classified information will enable 
the process of beginning to try the thousands upon thousands of 
detainees we are holding. You have to look at it, I suggest, in 
the following way, Mr. Chairman. We today are holding thousands 
of people in an indefinite detention which clearly violates the 
United States Constitution. To turn those people over to the 
Article III courts the way they are presently constituted means 
that the waiting line will be endlessly long, which means that 
we are going to completely keep the same process in place.
    In proposing the Domestic Terror Court, what I suggest, Mr. 
Chairman, is to take the world I come from, the Israeli 
military, which you referred to in your introduction, taking 
the Israeli military courts in the West Bank and the Gaza 
Strip, along with the administrative detention process, merging 
the two together, and thereby establishing a Domestic Terror 
Court which would enable, on the one hand, a defendant to hear 
the evidence and, in addition, in those cases where it is 
necessary, to also introduce classified information, not to be 
the sole basis of conviction but to bolster conviction.
    Is this a perfect solution? The answer, obviously, is no. 
On the other hand, having 25,000 people in worldwide detention 
is also very much of a wrong solution.
    As we go forward, as we think about how do we go about 
beginning to solve this issue, I close with how I began. 
Without carefully defining what the current situation is, we 
are going to think of and view this issue tactically rather 
than strategically. We as lawyers ultimately have the 
responsibility, Mr. Chairman, to ask ourselves what situation 
are we in, and only then can we begin asking ourselves how do 
we go about trying these individuals. What is imperative is 
that we develop a process premised on the closing of Guantanamo 
after developing a solution, because absolutely it is wrong to 
hold 25,000 people in the present context, which is nothing 
more than indefinite detention.
    And I propose, in conclusion, Mr. Chairman, that my 
suggestion about a Domestic Terror Court is going to be the 
most effective way within the context of the Constitution to 
begin the process of trying those individuals who are suspected 
of involvement in terrorism.
    Thank you.
    [The prepared statement of Mr. Guiora appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Professor.
    Tom Malinowski is the Washington Advocacy Director for 
Human Rights Watch--a position you have held since 2001, I 
    Mr. Malinowski. Yes.
    Chairman Leahy. Prior to his work there, he served in the 
Clinton administration as Special Assistant to the President, 
senior director for foreign policy speechwriting at the 
National Security Council. From 1994 to 1998, Mr. Malinowski 
served as speechwriter for Secretaries of State Christopher and 
Albright, was a member of the State Department policy planning 
staff. He also served as an aide to the late Senator Daniel 
Patrick Moynihan, my neighbor for years in the Russell 
Building. He is a member of the Council on Foreign Relations. 
Mr. Malinowski holds degrees from the University of California 
at Berkeley and from Oxford University.
    Please go ahead, sir.


    Mr. Malinowski. Thank you, Chairman Leahy. Thank you for 
having us here to look at this very important issue.
    You have heard today from several witnesses who have 
described the extraordinary strength of the American justice 
system in dealing with terrorism cases. I agree with them and 
with you whenever we have used the traditional criminal justice 
system in this country, we have succeeded in putting dangerous 
people away with both fairness and finality. When we have tried 
to use alternative means, we have mostly failed. Just one 
conviction in the last 6 years in the military commissions 
trials, for example, an extraordinary record of failure.
    So why do we face any dilemma at all when we look at this 
question. I think there is one reason that is worthy of debate: 
the fear that there are people out there who cannot be 
prosecuted because they have not yet committed a crime or 
because the evidence against them would not be admissible in a 
normal court, but who nonetheless frighten us because of their 
beliefs, their associations, or desire to do America harm. And 
it is to deal with such people that some people have proposed 
an alternative system of preventive detention.
    Now, who are these people? There are not actually 
thousands. In Guantanamo, we are dealing with probably, at 
best, a few dozen people who might fit this profile and who 
might be a dilemma for us once the camp is closed. But it is 
important to note that the number of people living at large in 
the world who fit the same profile is probably in the tens or 
hundreds of thousands, people who passed through the camps in 
Afghanistan at some point in the last 10 years or who share the 
extremist ideology that gives rise to al Qaeda, who may 
fantasize on these websites and chat rooms about taking part in 
terrorist attacks.
    Imagine if our troops went through a city like Kandahar, 
Afghanistan, today or Karachi, Pakistan, and randomly rounded 
up the first thousand young men that they met. I bet you that 
at least a few dozen would fit this profile of potentially 
dangerous but have not done anything yet. And if you took those 
thousand and you put them in Guantanamo for 6 years, the number 
deemed too frightening to release would probably rise even 
    So here is the real question: If we are holding today in 
Guantanamo 10 or 50 or maybe even 100 of the countless 
thousands of potentially dangerous but difficult to prosecute 
people out there, should we set up a preventive detention 
system just for them? Keep in mind that we have never done this 
before as a country. Congress has never set up a formal system 
of detention without trial to deal with national security 
threats--not in the Civil War, not in the Second World War, not 
in the Cold War when the survival of this country was at stake. 
So would the benefit of incapacitating without charge or trial 
a very small number of people who wish us harm in the world be 
worth the cost of taking such an unprecedented step? I think 
before we do, there are some hard questions we would need to 
    First, can Guantanamo detainees be moved to a new system of 
detention without trial here in the United States without 
making it seem as if we were simply transplanting Guantanamo, 
with all of its problems, to U.S. soil? I believe the answer is 
no. I believe that we would end up pretty much back where we 
are right now, with detainees held for years without trial 
based on evidence that they cannot see or confront, some of it 
possibly obtained through coercion, in a system that does not 
look like anything America has stood for or championed before. 
Inevitably, you would have errors because you are using 
unreliable intelligence, as all intelligence inherently is, to 
keep people incarcerated. Mistakes would be uncovered. Once 
again, people around the world would be focused on the 
injustices that we commit instead of the crimes that the 
terrorists commit.
    A second question is whether we can create a new form of 
preventive detention without enduring more years of frustration 
and delay. Look at our experience with the military commissions 
in Guantanamo. Six years into this experiment, they are still 
beset by delays, challenges, and embarrassments. Some of those 
are the result of a flawed plan, but many are simply the 
inevitable result of creating any new system from scratch. If 
we try again to create a new system from scratch, if we rely 
again on trial and error to make it work, the likely result is 
again going to be more error than trial.
    Now, eventually, we might get a stable set of rules after 
we finish with all the legal challenges and the legislative re-
dos. But how long are we prepared to wait for a system like 
that to work? Can we afford more years of controversy in this 
country about how to deal with suspected terrorists?
    A third question is whether dangerous people are more or 
less likely to be actually released under such a system? Now, I 
think logically, if we were to set up a system where it would 
be easy to deal with someone without going to the trouble of a 
criminal trial, the Government would have a strong incentive to 
put people in that easier system, including people who probably 
can be prosecuted and put away in the traditional way. And then 
we end up with a situation like Guantanamo where the Government 
is under enormous pressure from around the world to deal with 
these people, including to release them, and dangerous people 
actually do get released sooner than they would be were they 
put through the criminal system.
    Another question is whether a preventive detention system 
would effectively de-legitimize terrorists in the way that the 
criminal justice system does. One thing all terrorists have in 
common is that they do not want to be seen as ordinary 
criminals. They want to be thought of as soldiers. They want 
the attention and glory of being part of a great army at war 
with a superpower on the global battlefield. They use that to 
recruit more fighters. Remember how the 9/11 mastermind Khalid 
Sheikh Mohammed, in his special tribunal in Guantanamo, reveled 
in the status of being called an ``enemy combatant.'' ``You are 
darn right I am an enemy combatant,'' he said. He was proud of 
that. Contrast it to what happened to the Shoe Bomber, Richard 
Reid, when he got his Federal trial before a courtroom in 
Boston. He begged to be called a combatant, and the judge in 
that case said, ``You are no soldier. You are just a 
terrorist.'' And he sentenced him to life in prison. Isn't that 
a better way to deal with such men, to let them fade into 
obscurity alongside the murderers and rapists in our Federal 
    [The prepared statement of Mr. Malinowski appears as a 
submission for the record.]
    Chairman Leahy. Thank you.
    Our next witness is Benjamin Wittes. He is a Fellow and 
Research Director in Public Law at the Brookings Institution in 
Washington, a columnist with the New Republic online, and 
contributing editor to Atlantic Monthly. From 1997 to 2006, Mr. 
Wittes served as an editorial writer for the Washington Post, 
reported for the Legal Times, Slate, and the Weekly Standard. 
He has published numerous books, including the forthcoming 
``Law and the Long War: The Future of Justice in the Age of 
Terror.'' And Mr. Wittes graduated from Oberlin College.
    Please go ahead, sir.


    Mr. Wittes. Thank you, Mr. Chairman and members of the 
Committee, for inviting me to testify concerning what is, in my 
judgment, the single most important unresolved legal policy 
challenge affecting America's confrontation with international 
terrorism: the design of an appropriate regime for detaining 
alien terrorist suspects seized abroad.
    It is difficult for me to overstate the scope and magnitude 
of our political system's collective failure in detention 
operations to date. A few years ago, in the winter of 2002, 
almost nobody doubted the very common-sense proposition that 
the United States is entitled to detain enemy forces in the war 
on terrorism. Today, doubt concerning the legitimacy of war-on-
terrorism detentions is more the norm than the exception. The 
reason is simple, and it is not that the rationale for these 
detentions has grown less powerful. The current administration 
has very obtusely refused to tailor the detention system 
contemplated by the laws of war to the very unusual features of 
the current conflict. Congress has declined over a lot of years 
to create a better system legislatively. And the courts have so 
far provided next to no guidance on the ground rules for 
detention, save to emphasize the fact of their own habeas 
    The result is a recipe for public and judicial suspicion, 
which is exactly what we have gotten: a system in which complex 
questions of fact get resolved in closed proceedings that 
produce a minimal administrative record based on information--
some of it undoubtedly flawed--that detainees have virtually no 
opportunity to rebut.
    So let me be as clear as I can be. That system has not 
worked, and it cries out for reform by this body to make 
detentions fairer, more transparent, and more defensible both 
before the public and the courts.
    But let me be candid on another point as well: The 
appropriate reform will almost certainly not rely exclusively 
on civilian prosecutions in American Federal courts as the 
source of the power to detain the enemy. This is the case for 
two distinct reasons:
    First, relying exclusively on Federal court prosecution 
would likely require the release of portions of the detainee 
population at Guantanamo whose continued detention prudence 
requires. Nobody outside of the executive branch knows exactly 
how many of the current detainees are too dangerous to release 
but could not face trial in Federal court. Without access to a 
great deal of material that remains classified, you can kind of 
only guess. But the number is almost certainly not trivial, and 
it is probably not even small. Even under the somewhat relaxed 
rules of the Military Commissions Act, prosecutors have 
estimated that they might under ideal circumstances--and I 
suspect this is optimistic--bring charges against only as many 
as 80 detainees. So excluding those current detainees already 
cleared for transfer from Guantanamo, that still leaves around 
100 or so whom the military deems too dangerous to transfer yet 
against whom charges are not plausible. Even if we assume the 
military is being hopelessly conservative in clearing detainees 
for repatriation, there is almost certainly still a gap, and 
that gap are a bunch of dangerous people who want to kill 
    The second reason, even if we could magically repatriate, 
resettle, or free all current detainees, a pure prosecution 
model would face prohibitive obstacles with respect to future 
captures. Specifically, American forces often obtain custody of 
detainees--either in the field or from allied governments or 
militias--without knowing precisely who they are. For example, 
Abu Zubaydah was captured by Pakistani forces in a safe house 
raid with a handful of people around him. You can plausibly 
imagine an extant warrant against, you know, such an al Qaeda 
bigwig himself. But it is highly implausible to imagine pending 
warrants against everybody who might accompany him or anybody 
we might pick up under, you know, circumstances like that. If 
the rule, however, is that anyone against whom charges are not 
either outstanding or imminent must go free, you have to ask 
the question what authority American forces would have even to 
take custody of future non-battlefield detainees whom 
opportunity might present to them. And I think the honest 
answer is that they would have none.
    For all its errors, in other words, the current 
administration is not being eccentric in insisting on some 
authority to detain the enemy outside of the four corners of 
the criminal justice system. I do not think this necessity 
should be a matter of national shame or embarrassment. American 
law actually tolerates preventive detentions across a range of 
areas, many of them--in fact, all of them, in my opinion, less 
compelling than the situation of sworn military enemies of the 
country against whom Congress has authorized the use of force. 
That the laws of war apply uncomfortably to the task at hand 
does not mean that no detention authority here is appropriate 
at all. I think the next administration of either party is very 
unlikely to forswear the power to detain the enemy entirely. So 
the right question for this body is not whether to force it to 
do so, but what appropriate rules for detention ought to look 
like, what the substantive standards for detention ought to be, 
and how to construct appropriate mechanisms of judicial review 
for those detentions.
    I want to emphasize that not all detainees require new law. 
The law of war applies comfortably to a huge percentage of, you 
know, those we are holding around the world. We are really 
talking about a small subset of, you know, terrorist suspects 
whom the laws of war apply to very uncomfortably. And defusing 
the controversy over such detentions requires the creation for 
each detainee of a rigorous set of factual findings and a 
documentary record justifying the decision to hold that person; 
that is a record available to the public and the press to the 
maximum extent possible and reviewable in the courts.
    To that end, I make the following suggestions in my book, 
which I have fleshed out as well in my written statement:
    First, to civilianize the detention regime by severing the 
authority to detain this limited class of terrorists from the 
laws of war and putting such detentions under judicial 
    Second, to greatly enhance the procedural protections for 
the accused.
    And, third, to have whatever the judicial body that is 
supervising it retain jurisdiction over each detention for as 
long as it persists to ensure that detention remains necessary 
and conditions of confinement are humane.
    And I believe, as Professor Guiora testified, that the best 
way to implement such a system would be through some kind of 
specialized terrorism court or national security court. It is 
an idea that others have proposed with varying levels of 
specificity. Such a court would put detentions in the hands of 
judges with all the prestige of the judicial system yet with 
particular expertise in applying rules designed to protect 
classified information and manage legitimate security concerns. 
It is also, in my view, the best venue in which to try 
terrorists accused of war crimes.
    To sum up very briefly, the current administration's 
reliance on a pure law of war model here has been a very 
fateful error. But the attempt to revert to a prosecutorial 
model for disabling terrorists would supplant that error with a 
system unsuited to the challenges we currently face as a 
society. The right answer is--as it has been since September 
11--to design the detention system we need to handle the unique 
situation that we face, and that is a task that only Congress 
can accomplish
    [The prepared statement of Mr. Wittes appears as a 
submission for the record.]
    Chairman Leahy. Judge Coughenour, let me ask you about 
this, about the idea that we need some kind of a new legal 
regime to deal with terrorism cases. If we use the Federal 
courts, it may be too difficult. I have heard not just in 
testimony here but in letters I have received that our 
discovery rules are too generous, our evidence rules are too 
strict, the burden of proof is too high, there is too much risk 
of disclosing sensitive cases. But if we discuss what is the 
easiest way to prosecute a case, of course, you can reach those 
kinds of conclusions. I always thought when I was a prosecutor 
what is the easiest way to prosecute. It might not be the 
constitutional or legal way.
    In your testimony, you say that it would be a grave error 
to create a parallel system for trying terrorism cases, but you 
thought our courts were uniquely suited to conduct terrorism 
cases. You mentioned the Ahmed Ressam case. Now, he was 
convicted. He was sentenced. He is now in jail.
    Let's go into that a little bit. Was there anything--at any 
time during that did you doubt our ability to use our Federal 
courts, our Federal prosecutors, defense attorneys, our Federal 
system to prosecute that case?
    Judge Coughenour. Not for a heartbeat, Senator. We had 
occasion to use the Classified Information Protection Act, 
which was a cumbersome and difficult thing to work through in 
dealing with classified information.
    I had two reactions to that: one was you just roll up your 
sleeves and you work your way through it, and we did; and, 
second, I was, frankly, taken aback by the amount of 
information that was considered to be classified for reasons 
that just struck me as being absurd. For example, it was 
considered to be classified that investigators stayed at a 
Holiday Inn in Algeria when they interviewed members of the 
Ressam family. We had a lot of difficult evidentiary issues 
dealing with witnesses from Canada and the like. But, again, 
you just roll up your sleeves, and you work your way through 
    General Mukasey tried a very difficult trial in New York to 
a conviction. Kevin Duffy tried another major case in New York 
with difficult problems to a quite appropriate conviction.
    It just chills me to the core to hear people talking about 
rounding up someone who is deemed too dangerous to be released. 
In the United States of America, do we stand for that 
proposition? And how long do we hold them? How long do we 
detain them? For the duration of the war on terror? Is there 
light at the end of the tunnel?
    We have been holding people now for 6 years, and it just 
seems to me inconsistent with everything we stand for in the 
United States to be detaining people because we think they are 
dangerous but we do not have enough evidence to try them.
    Chairman Leahy. That is interesting you talk about the 
classified system. We now have spent several billions of 
dollar, many, many more billions of dollars to classify things 
than ever in our history, including when we were in world wars 
and so on. Matters at the National Archives that had been on 
their website for years and years are suddenly classified 
matters that are on various administration websites. They are 
open--actually used in speeches by administration officials, 
but suddenly when the Congress has to ask, well, what really 
happened, ``Oh, it is classified,'' and it is off the website. 
I worry a little bit about that.
    But let me ask, in my time left here, Mr. Benjamin, this 
war on terror--and the judge referred to this--can justify a 
lot of things, including classifying everything, and perhaps 
intimidating people into accepting unnecessary restraints on 
our civil liberties and turning our backs on the U.S. court 
system. I want to just try to put the reality apart from the 
rhetoric in this area. The strength of your report, instead of 
beginning with a conclusion that our courts can handle 
terrorism, you did the hard work of actually examining the 
cases and the relevant data. In the hundred terrorism cases 
that you reviewed in your investigation, what did you find out 
about leaks of classified materials? Because Attorney General 
Mukasey, before he held his current job, referred to the 
problem of leaks in terrorism cases. He claimed specific 
examples. What did you find? And did you find the problem of 
leaks justified the creation of a national security court, some 
kind of alternative criminal justice system?
    Mr. Benjamin. Thank you, Senator. Certainly the issue 
surrounding classified evidence is one of the features that 
people point to and say, ``Well, that is why these cases are 
different,'' and so we looked quite closely at that issue in 
our research.
    CIPA is the primary method for dealing with classified or 
sensitive evidence in terrorism prosecutions. It is not the 
only method. There are also protective orders that are 
routinely used. Things are filed under seal, as is often the 
case in all sorts of criminal prosecutions. And there are other 
more case-specific devices that have been invoked, such as the 
Fourth Circuit's very creative solution to some of the issues 
that were raised in this area in the Moussaoui case.
    What we found, Senator, is that CIPA has been invoked over 
and over again in terrorism cases, including many of the most 
important high-profile cases, such as the Ressam case that 
Judge Coughenour so ably presided over; the Rahman case that 
Judge Mukasey presided over, involving the blind sheikh; and 
the embassy bombings case that Judge Sand presided over. CIPA 
has been broadly upheld as constitutional. And, Senator, we 
have not found a single instance of a security breach in any 
terrorism cases where CIPA was invoked.
    You referred to the op-ed piece that Judge Mukasey wrote 
shortly before his nomination to become Attorney General. In 
that piece Judge Mukasey cited two examples of security 
breaches, but it bears noting that in neither case were the 
CIPA procedures invoked. The first instance arises from one of 
the cases in the early 1990s, the Rahman case, where the 
prosecutor sent a list of co-conspirators--quite a long list, I 
might add--to defense counsel prior to trial. That is 
consistent with the normal rules of disclosure in a case where 
a conspiracy is charged. And it turned out that that list of 
co-conspirators made its way to Osama bin Laden in Sudan. And 
actually, by the way, interestingly enough, the fact of the 
transmission of that co-conspirator list to bin Laden was later 
part of the Government's evidence in the embassy bombings case 
a few years later.
    Now, it is not a good thing, obviously, that the co-
conspirator list reached bin Laden, but it bears noting that 
the Government did not invoke a protective order in that case 
with respect to the co-conspirator list, did not make use of 
the tools that might have been available. And I would submit, 
Senator, that more importantly that incident is the exception 
that proves the rule. This was 13 years ago, and this is sort 
of the one example that is cited, and it is a case where CIPA 
was not even applied.
    The other example that Judge Mukasey cites involves, as he 
described it, testimony in one of the two Ramzi Yousef trials. 
We have looked hard at those trials, have not been able to 
confirm the episode that Judge Mukasey recounts. There is some 
reason to think that Judge Mukasey may have been intending to 
refer to a different incident in the embassy bombings trial. In 
the white paper, we recount in quite a bit of detail the facts 
and circumstances from the embassy trial. And as we point out, 
when you look at the chronology and the timeline--and this 
involves phone records, satellite phone records--it is just not 
possible that the introduction of that phone record evidence 
had any effect on intelligence gathering because bin Laden had 
stopped using the phone years before the evidence was offered 
in court.
    So, again, I have just tremendous respect and admiration 
for Judge Mukasey, and so I hesitate to suggest that that 
incident was misreported. There may be something else that he 
is referring to that we have not been able to confirm. But 
thank you.
    Chairman Leahy. Thank you very much, Mr. Benjamin.
    I was going to call on Senator Sessions next, but he has 
left, so Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Let me ask a question for all of the witnesses, and it is a 
long question, and I would ask unanimous consent, Mr. Chairman, 
that the back-up material for the question be included in the 
record, along with my question. But I do not need to refer to 
it at this point.
    Chairman Leahy. Without objection.
    Senator Kyl. Last year, I wrote a minority report 
dissenting from the Committee report for a bill that would have 
extended civilian litigation rights to al Qaeda detainees, and 
the minority report began by noting the following: At least 30 
detainees who have been released from the Guantanamo Bay 
detention facility have since returned to waging war against 
the United States and its allies. A dozen released detainees 
have been killed in battle by U.S. forces, while others have 
been recaptured. Two released detainees later became regional 
commanders for Taliban forces. One released Guantanamo detainee 
later attacked U.S. and allied soldiers in Afghanistan, killing 
three Afghan soldiers. Another former detainee has killed an 
Afghan judge. One released detainee led a terrorist attack on a 
hotel in Pakistan and also led a kidnapping raid that resulted 
in the death of a Chinese civilian. This former detainee 
recently told Pakistani journalists that he plans to fight 
America and its allies until the very end.
    Since that Committee report was published last fall, we 
have seen another case of a Guantanamo detainee who was 
released by the U.S. military and subsequently returned to 
    The following is from a May 8, 2008, article in the 
International Herald Tribune: A former Kuwaiti detainee at the 
United States prison camp at Guantanamo Bay, Cuba, was one of 
the bombers in a string of deadly suicide attacks in the 
northern Iraqi city of Mosul last month, the American military 
said Wednesday. Commander Scott Rye, a spokesman for the 
American military, identified one of the Mosul bombers as 
Abdullah Salim Ali al-Ajmi, a Kuwaiti man who was originally 
detained in Afghanistan and spent 3 years at Guantanamo Bay 
before being released in 2005. Al-Ajmi had returned to Kuwait 
after his release from Guantanamo Bay and traveled to Iraq via 
Syria, Rye said, adding that the man's family had confirmed his 
    Ajmi is one of several former Guantanamo detainees believed 
to have returned to combat status, said another American 
military spokesman, Commander Jeffrey Gordon, quoting, ``Some 
have subsequently been killed in combat and participated in 
suicide bomber attacks,'' he said.
    Now, here is my question for all of you. Do you generally 
agree that it is a bad thing that men like Ajmi, the Mosul 
suicide bomber, have been released from Guantanamo Bay? And do 
you agree that the United States should be allowed to detain 
such men to prevent them from returning to the battlefield, 
which in the case of terrorists, of course, could be almost 
anywhere? Since I suspect we have started down at the left 
hand, let me--and, by the way, for the record, Mr. Benjamin, I 
am not aware that there is a protective order exception to the 
Sixth Amendment confrontation right; you referred to the 
failure of the Government to get a protection order. Would you, 
for the record, confirm for me whether that is your 
understanding or not? But let's don't take time with that right 
    Let's start with Mr. Wittes and go on down the line.
    Mr. Wittes. I do agree that there is a significant problem 
that there have been a number--and the exact number is, as I 
understand it, the subject of some dispute. But I agree that 
there is a significant problem with people being released and 
going back to the fight, absolutely. I further agree that it is 
a necessary component of an international conflict that you do 
get to detain the enemy in order to prevent that sort of thing.
    I think I disagree with what I take to be the implication 
of your question, which is that there is--that as a consequence 
of those two points, that we should have a sort of unamended or 
untailored law of war or paradigm here which issues judicial 
review. I think one of the problems at Guantanamo has been--
    Senator Kyl. Excuse me. Let me just make it clear that is 
not implied. We have judicial review. We have an annual 
determination of status, and there is a determination for each 
of these individuals. So please do not read into my question--
    Mr. Wittes. Fair enough. If that--
    Senator Kyl.--an absolutely free--
    Mr. Wittes. If that was not the implication of your 
question, then I--
    Senator Kyl. Let me just add to it. Underlining the 
provisions that we already have in law for the determination of 
status and review of that status.
    Mr. Wittes. Yes, fair enough. I mean, I guess my point is 
that I think one of the problems that we have had at 
Guantanamo, in my opinion, is that the doubt as to the 
legitimacy of these detentions has created enormous political 
pressure to release people, and I think has led in some 
instances to releases of people of whom I am, frankly, 
terrified. And I can give you specific examples of that, but I 
believe sort of the more process we create for Guantanamo--and, 
obviously, I am not talking about a Federal court trial here, 
but I think a more robust process would create more legitimacy 
and, therefore, lessen the pressure to do sort of precipitous 
releases, for which, I agree with you, we have paid a high 
price and I suspect we will pay a higher price to come.
    Mr. Malinowski. Thanks, Senator. Let me start by echoing--
    Chairman Leahy. I would ask each person, because of the 
time constraints, to answer the question, of course, but try 
and keep it within a shorter framework, And, of course, we will 
give you more--if you want to expand the record subsequently, 
that will be done.
    Mr. Malinowski. First, to agree with Mr. Wittes that it is 
precisely because of the perception that we have an 
illegitimate system that there is enormous pressure to release 
people, including people who perhaps should not have been 
released and I think probably would have been better dealt with 
in a system that is of unquestioned legitimacy.
    I think the second way I would answer your question, 
Senator, is to point out that the fundamental problem we face 
in this conflict is that there is no shortage of misguided 
young men in the broader Muslim world who are willing and 
capable of blowing themselves up for that awful cause. We may 
have a few dozen in Guantanamo. There are thousands or tens of 
thousands out there. We released hundreds of such people, 
thousands at the end of the conflict with the Taliban in 
Afghanistan, knowing that you cannot prevent terrorism 
completely by seeking to detain everyone in the world who 
wishes us harm, unless we are willing to build 10,000 
Guantanamos; and that the problem of Guantanamo, and I think of 
any system that is perceived to be illegitimate, is that it is 
likely to create more such people than it takes off of the 
battlefield. And I think one glance at any of the jihadi 
websites that recruit people to the fight will confirm that 
statement. They use Guantanamo and they will use any system 
that looks like Guantanamo to recruit people to kill us. And 
that is the problem we need to deal with.
    Mr. Guiora. Senator Kyl, your question goes to the heart of 
my proposal about establishing a Domestic Terror Court. During 
the course of my 20 years' service in the Israel Defense 
Forces, I was involved in innumerable detainee release 
decisions. It ultimately requires objective criteria for who 
can and who should not be released predicated on an 
understanding of do they present a continuing threat to 
America's national security. Without articulating and 
subsequently implementing this objective criteria, we will be 
releasing people simply because, and, indeed, you are 
absolutely right, the chances of those people who have been 
released without a proper check into what kind of a threat they 
present, chances are that they will commit those same acts once 
    On the other hand, there is no doubt that the process of 
indefinite detention without robust, independent judicial 
review as to whether or not that individual presents a 
continuing threat to America's security is, at the end of the 
day, I think, both unconstitutional and also, frankly, immoral, 
meaning that if we are going to go forward in a rationale 
fashion, the first thing we absolutely must do is to develop 
this objective criteria. Then and only then can we begin the 
process of determining who we will release and who we will not 
release, and those who are not released, what judicial process 
they go forward with is obviously what we are talking about 
today. But without establishing criteria, it is very much a 
catch-as-you-can, which, at the end of the day, is 
extraordinarily dangerous to America's national security.
    Mr. Benjamin. Senator, I could not agree more than when our 
troops are engaged in the field as they are, it is fundamental 
in the law of war that when they capture enemy fighters, they 
can and should detain them so that they do not return to the 
field. And the incident that you spoke about that was in the 
paper 2 weeks ago was tragic and horrible. And as I said 
earlier, we do not for a minute say that the criminal justice 
system by itself provides the answer to all of the challenges 
of terrorism. Certainly not. Rather, what we say is that for 
individuals that the Government has zeroed in on and said, 
``This is someone that we want to prosecute and punish--not 
someone that we want to disable from returning to the fight, 
but someone we want to prosecute and punish''--the existing 
system has proved that it is capable of handling those cases in 
the most challenging cases against the most dangerous people: 
Khalid Sheikh Mohammed's co-conspirators, Osama bin Laden's co-
conspirators in the embassy bombings case, and some of the 
    So we do not for a minute propose that the justice system 
is a one-stop solution. Absolutely not.
    Judge Coughenour. I cannot add a whole lot to what has 
already been said and what I have already said, and that is 
that I still think it is entirely inconsistent with the ideals 
of this country to round people up because we think they might 
be dangerous and to hold them indefinitely for the duration of 
an ill-defined and undefined war, which could mean, in essence, 
that we hold them for the balance of their natural lives based 
upon a standard there that is they are dangerous. I just do not 
think that is consistent with what we stand for in the United 
States of America.
    Chairman Leahy. Thank you.
    Senator Whitehouse?
    Senator Whitehouse. Thank you, Chairman. Welcome to all the 
witnesses. I appreciate the very thoughtful testimony that we 
have had here today. Like Senator Kyl, I would like to ask a 
question and then ask each of the witnesses to respond to it. 
Mine has to do with Guantanamo, which I think is pretty widely 
understood by essentially all rational Americans to be a 
terrible stain on our reputation and something that we would be 
well advised to close as rapidly as possible. And if we were to 
pursue that task, it would not be easy. This is not the simple 
kind of mess that you just pick up off the rug and it is over. 
I mean, we have kind of got ourselves in a lot worse to this 
problem as a result of the 6 years of the experience with 
    As we unwind it, if we were to go about establishing a 
commission or a committee to advise us, to advise perhaps the 
next President, on what you would want to do to close 
Guantanamo--which would raise obviously military issues. It is 
being run, I think, better than ever before now by the U.S. 
military. It raises intelligence issues related to what 
remaining fragments of intelligence might be extracted from 
folks down there. It raises significant judicial issues as to 
what procedures should be imposed. It raises very live for 
Americans civil liberties and fairness issues. And it raises 
significant corrections issues as to where people who are going 
to be kept incarcerated should now be kept.
    And in the midst of all of that, I just want to have each 
of you share with me your advice, if we were to establish such 
a body, what sort of a charge would you want to ensure that it 
had? What sort of expertise, what sort of make-up? Any ideas 
you might have about such a body that would just be advisory, 
but who should be on it? What should be on it? What issues 
should they be sure to look at? What should a legislative 
charge to it look like? Any thoughts you have in that area, I 
would be very grateful to hear. I think I will go in the other 
direction this time and start with Your Honor.
    Judge Coughenour. Well, I will give you one limited idea, 
and he will probably be upset with me, but he is an old enough 
friend that I can do this. I would suggest you have in this 
town a judge who is Chair of the FISA Court, Royce Lambert, who 
would be a superb person to give you the views of the judiciary 
on dealing with that problem.
    Senator Whitehouse. I am sure you have made his day.
    Mr. Benjamin. And at the risk of singling out another 
friend, I would suggest that an experienced terrorism 
prosecutor from an office like the U.S. Attorney's Office for 
the Southern District of New York be included. And I would also 
suggest that if such a commission were established, it should 
not impede the decision to transfer some of the Guantanamo 
detainees into the existing system for trial if the evidence is 
deemed to be sufficient to bring civilian charges, as one would 
think it probably is for at least some of those people.
    Senator Whitehouse. I agree, and by the way, I appreciate 
your nice words about Mary Jo White. I was her colleague in 
Rhode Island while she served in New York. She is terrific.
    Professor Guiora?
    Mr. Guiora. Senator, I am a big proponent of a comparative 
international perspective and analysis as to how to go forward, 
and I think that no one country has the answer to terrorism, no 
one country has the answer to counterterrorism. If you are 
going to have such a commission, which I think is an excellent 
idea, I would recommend having people who are equipped and able 
to take a very close look at how other countries are going 
forward in terms of their counterterrorism and legal policy 
efforts. You can take away certain things from certain 
countries, and you can also that way discern what works and 
what does not work in the American constitutional context. But 
I think if you are going to have only an American-only 
perspective, it will be very limited and ultimately 
ineffectual. And I think particularly in this day and age, it 
is going to be critical to truly have a very broad-based, 
comparative, international perspective, and what I call in the 
book I wrote, ``Global Perspectives on Counterterrorism,'' I 
there looked at five different countries--Israel, America, 
Russia, Spain, and India. I think we can take something away 
from each of those countries, and we can very much adapt that 
or adopt that to the American constitutional context.
    Senator Whitehouse. To put it mildly, we do not have a 
record of success in America to justify relying only on our own 
    Mr. Guiora. I leave that to the Senator.
    Senator Whitehouse. It seems pretty universal among the 
witnesses' testimony. Mr. Malinowski?
    Mr. Malinowski. Well, if you would like me to nominate 
someone, I will suggest someone you may be surprised to hear me 
    Senator Whitehouse. Well, not just people, but also ideas, 
charges, issues they should be sure to look at.
    Mr. Malinowski. First a person and then an idea. The person 
I would nominate is General Petraeus, somebody who has served 
on the front lines of the struggle, understands the non-
traditional nature of the threat that we face, understands 
clearly, based on what he said and has written on the subject, 
the necessity of detaining people on the battlefield who wish 
our troops harm, but who has also spoken very eloquently about 
the fact that you cannot detain your way out of this problem 
and that you cannot win a non-traditional war or conflict like 
this unless you sustain the moral high ground. I would love to 
hear the perspective of the serving officer who has been 
through this reflected in that kind of discussion.
    In terms of ideas, you know, the one point I would make is 
don't just focus on the nitty-gritty challenge of what to do 
with detainee 1 and 50 and 48 in Guantanamo, but ask the big 
question of who should we be detaining as part of this larger 
struggle and how does detention fit into a strategy for 
winning. And I think you might get some interesting answers 
that are different from what you might expect if you start from 
that perspective.
    Senator Whitehouse. I appreciate it.
    Mr. Wittes?
    Mr. Wittes. I would like to start by saying on the 
personnel question, I cannot imagine a better suggestion than 
Mr. Malinowski's.
    On the substantive dimension, I would actually say having a 
very intense focus on Guantanamo detainee 1 and 50 and 48--I 
think were the examples that he used--you know--
    Mr. Malinowski. Don't look at 49.
    Mr. Wittes. Just don't look at 49, right.
    Mr. Wittes. I mean, I think the thing that really--when you 
peel all the layers of the onion away, the thing that separates 
his argument from mine, I think, is a sense of what the 
universe of the people who are unambiguously too scary to set 
free and not amenable to U.S. prosecution in U.S. Federal court 
where it actually looks like. And I think you feel very 
different about this question if you believe that that is a 
very small group about whom the risks are very manageable, than 
if you believe that it is a very large group or even a mid-
sized group about whom the risks are not particularly 
manageable. And one of the real problems that has pervaded this 
entire discussion--and I do not mean the discussion in this 
room today; I mean the discussion over 6\1/2\ years--is that 
the quality of the information that is public about, you know, 
the universe of detainees is simply dreadful. And, you know, 
the administration has to take a lot of responsibility for 
    But I think one thing that any commission or advisory body 
that you put together needs to look at is, you know--and I 
notice that both Mr. Malinowski and I in our written statements 
specifically said that you cannot responsible identify what the 
universe of the population is at this stage, and that matters 
enormously, because, you know, if it is five people and we 
could just, you know, have the NSA and the CIA watching them 
very carefully, I might be persuadable. If it is 120 people 
and, you know, they are people who are different from Abu 
Zubaydah only in one level below in the hierarchy and with--you 
know, and the difference is really that the evidence that we 
have is inadmissible--not that the evidence that we have is not 
real--I think he might be persuadable if I--I don't know that. 
You would have to ask him. But I think it would change the 
discussion a lot if we knew what that universe of detainees 
looks like.
    Senator Whitehouse. Thank you, Chairman.
    Chairman Leahy. Of course, it does not help that the 
administration, even when they have talked about it, they have 
changed their numbers so many different times that their 
credibility is somewhat hurt. But then that falls into what I 
had said earlier about classifying things that had been on 
Government websites for years, been in Government publications 
for years, even to the extent of things that had been 
published, and classifying them just before a court hearing, 
the credibility is not at its highest.
    Mr. Wittes. I could not agree with you more.
    Chairman Leahy. Thank you.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman, for holding this 
hearing. I am sorry I could not be here earlier to hear the 
testimony. I was chairing a hearing of the Africa Subcommittee 
of the Foreign Relations Committee, but from what I understand, 
you have heard powerful arguments today for why the traditional 
American criminal justice system is a strong and effective tool 
for trying terrorism suspects. The United States has 
successfully prosecuted terrorist suspects in Federal courts, 
and courts have provided the flexibility needed to address 
complicated evidentiary and legal issues. The traditional 
military justice system, too, is available. There is no doubt 
that the administration's actions over the past 7 years have 
created a difficult situation at Guantanamo Bay with respect to 
a small number of detainees. But I am deeply concerned about 
establishing an entirely new regime, with rules that would not 
otherwise be tolerated in Federal court or military court-
martial and that would be subject to years of challenges, to 
address this very narrow set of cases, when there is every 
indication that we can effectively use our long-established 
    Mr. Chairman, I ask that my full statement be placed in the 
    Chairman Leahy. Of course, it will be.
    Senator Feingold. Mr. Benjamin, when Congress was 
considering the Military Commissions Act, some argued that we 
could not rely on the traditional criminal justice system to 
try terrorism suspects because it was unrealistic to expect 
soldiers to read Miranda warnings to those captured on the 
battlefield. Is this argument a red herring?
    Mr. Benjamin. Yes, Senator, it is a red herring. I think 
there are many, perhaps, popular misconceptions about the 
Miranda rule. The Miranda rule does not apply to or regulate or 
restrict in any way what soldiers do on the battlefield or what 
intelligence officers do during intelligence interrogations. It 
is a rule of criminal procedure that says when a law 
enforcement officer conducts a custodial interrogation and when 
a person who is being interrogated makes admissions that the 
Government later wishes to offer in court, the person must 
receive the Miranda warnings up front.
    Miranda does not apply when foreign officials are 
conducting interrogations. It was held in the embassy bombings 
case, presided over by Judge Sand, one of the very best judges 
in the Southern District, that Miranda applies when U.S. law 
enforcement officials are conducting interrogations overseas. 
But the FBI is trained to give Miranda warnings. They can give 
them. And I can tell you from my own experience as a 
prosecutor, lots and lots and lots of people waive their 
Miranda rights and make statements.
    Senator Feingold. Mr. Malinowski, would you like to comment 
on that?
    Mr. Malinowski. When I am asked this question, I always say 
that every experienced judge and prosecutor I speak to who has 
handled these cases believes that that is a red herring, and we 
have heard from a judge and a prosecutor with far greater 
experience than I have. I think clearly the civilian system can 
handle these cases. When it has, it has succeeded. When we have 
used an alternative system, we have failed. That is a pretty 
clear track record.
    Senator Feingold. I thank you for that, Mr. Malinowski. 
Proposals for new preventative detention schemes have been put 
forward by some thoughtful, well-meaning individuals, including 
some of the witnesses here today. Some of these proposals have 
incorporated quite a few procedural safeguards, including a 
neutral decisionmaker and the right to counsel. Why doesn't the 
inclusion of these types of safeguards address your concerns 
about creating such a system?
    Mr. Malinowski. I think in theory you could continue to 
build procedural safeguards into the system until it looks 
virtually identical to our existing system of civilian criminal 
courts and military courts-martial, at which point it really 
does not look like Guantanamo anymore. But then what is the 
point? I mean, if you are going to do something that is very, 
very similar to what we already have, why go to the 
extraordinary trouble of creating a brand new system from 
scratch? And that is why every real proposal for creating a 
preventive detention system presumes such things as the 
defendant is not going to see or be able to confront some of 
the evidence that is being used to hold him potentially 
indefinitely, which I think inevitably leads to the kind of 
controversy that we want to avoid, the kinds of mistakes that 
end up haunting us, and the inevitability of a system that I 
think is unsustainable in the long term.
    Senator Feingold. Mr. Benjamin, do you want to comment on 
    Mr. Benjamin. Yes, I agree completely, and I think one of 
the great strengths of the existing system is its credibility 
and its adaptability. It is a system--and we speak of it as a 
``system'' as if it is a monolith, but, of course, it is 
composed of judges and lawyers and agents, and it relies on 
statutes and case law and precedents and traditions that we 
have inherited from those who have gone before us and that have 
been adapted to deal with all of the changing circumstances 
that we confront. And the record of these cases in this 
particular area I think is particularly noteworthy for 
demonstrating that the courts do have the capacity in a 
credible, fair, reliable, and transparent way to handle these 
    Senator Feingold. Thank you very much.
    Thanks, Mr. Chairman.
    Chairman Leahy. Thank you, Senator. And I could not help 
but think Judge Michael Luttig, who retired a few years ago to 
take a position in the private sector, was known as one of the 
most conservative judges on a conservative court, the Fourth 
Circuit. He was involved in the Padilla case a few years ago. 
He condemned shifting legal positions of the administration, 
which was a constantly moving position. And this, of course, 
involved an American citizen. He said the shifting and the 
moving has consequences ``not only for the public perception of 
the war on terror but also for the Government's credibility 
before the courts in litigation ancillary to that war.'' And he 
went on to say that this behavior in yielding to expediency 
left an impression that may ultimately prove to be at 
substantial cost to the Government's credibility. I mention 
that, but we could put in dozens of such quotes from judges 
across the political spectrum.
    I thank you all for being here. Please, as you go through 
this, if you find there is something further you wanted to add 
based on questions, feel free to do so, and we will keep the 
record open for a few days for that purpose.
    Thank you very, very much.
    [Whereupon, at 11:33 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record