[Senate Hearing 110-900]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-900

THE LEGAL RIGHTS OF GUANTANAMO DETAINEES: WHAT ARE THEY, SHOULD THEY BE 
                    CHANGED, AND IS AN END IN SIGHT?

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON TERRORISM,
                    TECHNOLOGY AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 11, 2007

                               __________

                          Serial No. J-110-66

                               __________

         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
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director
                                 ------                                

      Subcommittee on Terrorism, Technology and Homeland Security

                 DIANNE FEINSTEIN, California, Chairman
EDWARD M. KENNEDY, Massachusetts     JON KYL, Arizona
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         JOHN CORNYN, Texas
RICHARD J. DURBIN, Illinois          SAM BROWNBACK, Kansas
BENJAMIN L. CARDIN, Maryland         TOM COBURN, Oklahoma
                      Jennifer Duck, Chief Counsel
               Stephen Higgins, Republican Chief Counsel















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     6
    prepared statement...........................................   103
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, prepared statement...................................   216
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   231
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................     1
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     4
Leahy, Hon. Patrick J., A U.S. Senator from the State of Vermont, 
  prepared statement.............................................   244

                                WITNESS

Burlingame, Debra, Member of the Board of Directors, National 
  September 11 Memorial Foundation...............................    36
Denbeaux, Professor Mark, Professor of Law, Seton Hall Law 
  School:........................................................    30
Engel, Steven, Deputy Assistant Attorney General, Office of Legal 
  Counsel, U.S. Department of Justice............................     9
Hartmann, Brigadier General Thomas W., Legal Adviser to the 
  Convening Authority, Office of Military Commissions............     7
Hutson, John D., Dean and President, Franklin Pierce Law Center..    34

                         QUESTIONS AND ANSWERS

Responses of Mark Denbeaux to questions submitted by Senators 
  Feingold and Feinstein.........................................    48
Responses of Thomas W. Hartman to questions submitted by Senators 
  Feingold and Feinstein.........................................    56
Responses of John D. Hutson to questions submitted by Senator 
  Feingold.......................................................    59

                       SUBMISSION FOR THE RECORD

Burlingame, Debra, Member of the Board of Directors, National 
  September 11 Memorial Foundation:
    statement....................................................    61
    Exhibits - PR Perspective: A Long Term Struggle, how a media 
      campaign helped turn the Guantanamo Tide...................    74
    Exhibits - Lobbying Registrations............................    77
    Exhibits - Foreign Agent Registration ACD filings-Kuwait.....    95
Denbeaux, Professor Mark, Professor of Law, Seton Hall Law 
  School, statement:
    statement....................................................   105
    The Empty Battlefield and the Thirteenth Criterion...........   112
    CTC Report - An Assessment of 516 Combatant Status Review 
      Tribunal (CSRT) Unclassified Summaries.....................   139
    A Response to the Seton Hall Study - An Assessment of 516 
      Combatant Status Review Tribunal (CSRT) Unclassified 
      Summaries..................................................   178
    The Meaning of ``Battlefield''...............................   186
Engel, Steven, Deputy Assistant Attorney General, Office of Legal 
  Counsel, U.S. Department of Justice, statement.................   218
Hartmann, Brigadier General Thomas W., Legal Adviser to the 
  Convening Authority, Office of Military Commissions, statement.   233
Hutson, John D., Dean and President, Franklin Pierce Law Center, 
  statement......................................................   239
Shearman & Sterling LLP, Rohan S. Weerasinghe, New York, New 
  York, letter...................................................   246

 
THE LEGAL RIGHTS OF GUANTANAMO DETAINEES: WHAT ARE THEY, SHOULD THEY BE 
                    CHANGED, AND IS AN END IN SIGHT?

                              ----------                              


                       TUESDAY, DECEMBER 11, 2007

                              United States Senate,
        Committee on the Judiciary, Subcommittee on 
            Terrorism, Technology and Homeland Security
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein, Chairman of the Committee, presiding.
    Present: Senators Feinstein, Durbin, Cardin, Graham, 
Sessions, and Kyl.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Chairman Feinstein. The meeting will come to order.
    I know there are people in this room that have very strong 
feelings on a number of different subjects. I would request 
that you be respectful, that signs not block anyone's view, and 
that there be no comments made. We would appreciate that.
    This is a serious hearing and we are dealing with a very 
serious subject, and so we would appreciate everybody's 
cooperation. You're welcome to attend. We are delighted that 
you care, but please be respectful.
    And I'll begin with a brief statement, call on my ranking 
member, and then we will proceed.
    Thirteen hundred miles south of Washington, in Guantanamo 
Bay, Cuba, the United States has built a detention facility to 
hold and interrogate suspected terrorists and other enemy 
combatants.
    Detainees were brought to Guantanamo beginning in January 
of 2002. Seven hundred and fifty-nine detainees have been held 
there. About 454 have been released or have died, four from 
apparent suicides. As of last week, 305 detainees remain.
    Of those, we understand approximately 60 to 80 have been 
cleared for release, but are still being held because of 
difficulties of sending them elsewhere. Only four detainees 
have been formally charged and it is reported that the Defense 
Department plans to prosecute another 60 to 80 detainees.
    The administration has repeatedly called those individuals 
at Guantanamo ``the worst of the worst,'' and there are bad 
people there. However, one of today's witnesses, Professor 
Denbeaux, has issued reports that challenge this assertion.
    This facility was established following a December 2001 
Office of Legal Counsel memo co-written by John Yoo that 
examined whether Guantanamo might be turned into a legal 
hybrid, wholly under United States control, but beyond the 
reach of the United States courts.
    The administration lawyers' theory was that since 
Guantanamo is not part of the territorial United States, the 
normal legal strictures could be avoided. However, once turned 
into a reality, this new facility has come under criticism, 
been the subject of many court challenges, and has harmed our 
nation's standing abroad.
    For a period of more than 30 months, the Bush 
administration continued to hold these detainees at Guantanamo, 
without providing them with any additional judicial or 
administrative review of their detentions.
    In June 2004, in Rasul v. Bush, the Supreme Court ruled 
that the reach of the U.S. courts did extend to Guantanamo and 
the prisoners held there. After that ruling, the executive 
branch granted the detainees some administrative review, 
although this process, too, has been criticized.
    All detainees were given a combatant status review tribunal 
or a CSRT hearing. This was a one-time hearing to evaluate 
whether they were properly classified as an enemy combatant. 
Detainees were also given an annual review before an 
administrative review board, but this did not examine if their 
detention was lawful.
    Instead, the validity of each detention was assumed and the 
review process only allowed each detainee to argue that he no 
longer constitutes a threat.
    For the remaining limited number of detainees, they were to 
be tried by military commissions. However, the procedures 
initially put in place for those commissions by the 
administration were eventually struck down as inadequate by the 
Supreme Court in the Hamdan decision. The court ruled that the 
trials at Guantanamo had to be based on statute.
    This led the Congress to pass, last fall, the Military 
Commissions Act. I voted against this legislation because it 
allowed hearsay evidence, created a separate and lesser system 
of justice, and also eliminated the right of habeas corpus for 
all of Guantanamo's detainees.
    The 60 to 80 detainees that the department intends to try 
will be put through the military commission process, although 
when those hearings will take place is unknown.
    Now, it is six years after the first detainees were brought 
to Guantanamo and the administration still has not yet tried a 
single detainee, not in any U.S. criminal court and not by the 
military commissions, and only one detainee, David Hicks, has 
pled guilty.
    In addition, new concerns have been raised about the legal 
rights given to Guantanamo detainees, not just by outside 
scholars, but by the very military officers who personally 
participated in the process.
    In fact, over the last few months, several military 
officers have publicly raised concerns about the procedures now 
in place. First, Lieutenant Colonel Stephen Abraham, who served 
on the review board in the CSRT process, has said the DOD 
pressured him and others on the CSRT review boards to rehear a 
case and explain, ``what went wrong,'' when the CSRT issued a 
decision that one of the detainees should not be classified as 
an enemy combatant.
    Lieutenant Colonel Abraham also complained about the 
evidence being presented to the CSRT in order to determine 
detainee status. He said it was often generic, outdated, 
incomplete, and that no controls were in place to ensure that 
evidence of innocence was being disclosed; and second, the 
Defense Department's chief prosecutor, Colonel Morris Davis, 
has recently resigned over his concerns about how the military 
commissions process has been politicized.
    Colonel Davis was previously one of the staunchest 
defenders of Guantanamo. Colonel Davis has written a op-ed in 
the ``New York Times'' and an article for the Yale law journal 
this year arguing that he and his prosecutorial staff at DOD 
could prove the critics wrong by holding full and fair trials 
at Guantanamo that would live up to the standards of American 
and international justice.
    But on October 4 of this year, Colonel Davis resigned from 
his position, after concluding that full, fair and open trials 
were unlikely at Guantanamo. Colonel Davis has stated to me 
yesterday that the convening authority, which is supposed to be 
independent and perform certain evaluations, has been 
compromised and politicized.
    Colonel Davis has stated to DOD and publicly that the 
prosecution process has been politicized, that the convening 
authority and its legal advisor would direct the prosecutions' 
pre-trial preparation, including directing the office about 
what evidence to use, what charges to file, and that his 
efforts to ensure that the military commissions would be open 
and fair were being overridden by administration officials who 
believed it was more important to get convictions before the 
2008 elections.
    As Colonel Davis told the Washington Post on October 20, 
this is a quote, ``There was a big concern that the election of 
2008 is coming up. There was a rush to get high interest cases 
into court at the expense of openness.''
    I invited Colonel Davis to testify at this hearing. 
However, the Defense Department has ordered him not to appear. 
That, indeed, is very disappointing.
    We assured the administration that Colonel Davis would not 
be asked about pending and open cases, but we were told simply 
that Colonel Davis was active duty military and because he was 
active duty military, they could issue an order that he had to 
follow.
    I think this is a real shame that we will not have Colonel 
Davis as a witness today. I think he has an important 
perspective. I wish the administration would allow him to 
appear.
    Unfortunately, I have to conclude that by prohibiting 
Colonel Davis from testifying, the administration is trying to 
stop a fair and open discussion about the legal rights of 
detainees at Guantanamo.
    Clearly, the concerns that have been raised by Lieutenant 
Colonel Stephen Abraham and Colonel Morris Davis need to be 
discussed and evaluated. I believe there also needs to be an 
examination of what is happening at Guantanamo, why cases are 
not being prosecuted, what needs to be done with detainees who 
can't be charged and what legal rights should all detainees be 
afforded.
    That is the purpose of this hearing. I look forward to 
hearing from the witnesses and am very pleased that my ranking 
member, somebody I've worked with on this committee now for 
about 12 years, is that fair to say?
    Senator Kyl. Yes, 13.
    Chairman Feinstein.--13 years, is here today and I turn it 
over to you, Senator Kyl.

 STATEMENT OF HON. JON KYL, A SENATOR FROM THE STATE OF ARIZONA

    Senator Kyl. Thank you very much, Madam Chairman, and I 
appreciate your interest and the questions that you posed and 
hope and trust that some light will be shed on them in today's 
hearing.
    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 has killed an Afghan judge. One led a 
terrorist attack on a hotel in Pakistan and also led to a 
kidnapping raid that resulted in the death of a Chinese 
civilian.
    This former detainee recently told Pakistani journalists 
that he plans, and I'm quoting now, ``to fight America and its 
allies until the very end.''
    The reality is that this nation needs to be able to detain 
those active members of Al Qaida and related groups whom it 
captures. Releasing committed terrorists has already resulted 
in the deaths of allied soldiers and innocent civilians and may 
very well someday result in the deaths of U.S. servicemen. Such 
a result would be unacceptable and the possibility of such 
result must always be kept in mind when we consider the kinds 
of rights that should be extended to these detainees.
    A detention regime for terrorists whom we intend to detain 
until the end of hostilities should seek to weed out mistakes, 
but it must also be designed in a way that also protects our 
nation's legitimate interests. Extending the civilian habeas 
litigation regime to unlawful war prisoners is problematic, 
among other things, because detainees will demand access to 
classified evidence.
    In the civilian habeas system, a detainee would have a 
presumptive right of access to such evidence. The government 
could seek to redact portions of the evidence or summarize it, 
but in the end, it must provide the defendant with the 
substance of the evidence. If it can't do so, if revealing the 
substance of the evidence compromises a unique source, then the 
government simply can't use the evidence.
    As difficult as the problems with classified evidence have 
occasionally proven in criminal trials, they would be greatly 
exacerbated in proceedings involving Al Qaida detainees. Much 
of the information that we obtain about Al Qaida and its 
members comes from our most sensitive sources of intelligence.
    For example, much information has been provided to the U.S. 
by various Middle Eastern governments. These governments are 
often afraid of Al Qaida or radicalized elements of their own 
populations, and they don't want anybody to know that they're 
helping us fight Al Qaida.
    Often, these governments provide information to the U.S. 
only on the condition that it not be disseminated outside of 
the U.S. intelligence community. If we suddenly were required 
in a detainee litigation proceeding to reveal to a detainee and 
his lawyer that we had obtained particular information from one 
of these governments, we would badly damage our relations with 
that government and could lose access to an invaluable source 
of intelligence about Al Qaida.
    The same problems arise with certain technological sources 
of intelligence or with regard to particular human sources and 
there is no simple solution to redaction or summarization of 
the evidence.
    Oft times, the most important types of intelligence are sui 
generis and revealing the nature of the evidence reveals its 
source. These types of problems would arise again and again in 
enemy combat litigation and would repeatedly present the United 
States with a Hobson's choice--either damage a valuable 
intelligence source that could provide information about future 
Al Qaida attacks or release a committed Al Qaida member.
    This is not a choice that the United States should be 
forced to make.
    Another question that immediately arises when contemplating 
the extension of litigation rights to Al Qaida detainees is 
where does it end. The United States is holding 800 detainees 
at Bagram airbase in Afghanistan and tens of thousands in Iraq. 
If the Guantanamo detainees can sue, why shouldn't these 
detainees be allowed to sue, as well? After all, the U.S. 
military's absolute control over Guantanamo is really no 
greater than its control over any other U.S. military base 
anywhere in the world.
    If this is a matter of principle, it should have applied in 
past wars. The U.S. detained over two million enemy war 
prisoners during World War II, including 400,000 who were held 
inside the United States. Should they have been allowed to sue 
in U.S. courts? Would there have been enough lawyers in the 
United States to handle the litigation?
    At the very least, we should be able to agree that we 
should not extend greater rights and privileges to combatants 
who violate the rules of--the laws of war, including 
terrorists, than we do to those who obey the laws of war.
    The Guantanamo debate poses many difficult questions, 
questions that remain unresolved in light of the Supreme 
Court's most recent foray into the area.
    I look forward to testimony from today's witnesses and hope 
that, as the chairwoman said, it can shed light on some of 
these important questions.
    Chairman Feinstein. Thank you very much, Senator Kyl.
    Senator Cardin, it's my understanding you'd like to make an 
opening statement.

STATEMENT OF HON. BENJAMIN CARDIN, A SENATOR FROM THE STATE OF 
                            MARYLAND

    Senator Cardin. Thank you, Madam Chair. And I'm going to 
ask that my entire written statement be made part of the 
record.
    Chairman Feinstein. So ordered.
    Senator Cardin. And just let me summarize very quickly.
    The original purpose for why detainees were transferred to 
Guantanamo Bay from Afghanistan over five years ago was for us 
to be able to obtain intelligence information from the 
detainees that would be very important to protect the safety of 
the people of our nation. That was its original purpose.
    In doing this, we made major mistakes. The first was that 
we did not, the administration would not allow those that were 
sent to Guantanamo Bay to challenge their status. Ultimately, 
the courts intervened and that was changed.
    We never reached out to the international community to seek 
their understanding as to what we were trying to do in 
Guantanamo Bay. That was also a mistake.
    It's hard to understand that after five years, that the 
people at Guantanamo Bay that are being detained have 
significant intelligence value as far as what we can obtain 
through interrogation.
    They should be brought to justice. They should be brought 
to justice consistent with the values embedded in our criminal 
justice system that we're so proud about.
    Madam Chair, I must tell you that I wear another hat and 
that is the co-chair of the Helsinki Commission and in that 
capacity, I represent the Congress at international meetings, 
and there has been no issue, no issue that's been brought up 
more in, I guess, disappointment in the United States and the 
manner in which Guantanamo Bay has been handled and the total 
disregard for the international community in that respect.
    I want to thank you for conducting this hearing, because as 
the courts have said, the Congress has a responsibility to 
determine the framework in which the detainees at Guantanamo 
Bay are to be brought to our criminal justice system and I 
thank you for holding this hearing and I hope that we will be 
able to get some answers.
    I am disappointed that we were not able to get the full 
cooperation of the administration on the witnesses before our 
committee. I think that's wrong, it's disappointing. And I look 
forward to working with you as we try to craft a proper 
response to the current situation that we find ourselves in.
    Thank you.
    Chairman Feinstein. Thank you very much, Senator Cardin.
    Senator Sessions. Madam Chairman.
    Chairman Feinstein. Yes, Senator Sessions.
    Senator Sessions. Just briefly. When you say they should be 
brought to justice, if that means that captured prisoners of 
war have to be tried, then I don't agree. Prisoners of war are 
not tried. They are detained until hostilities end.
    We know that a number of those that have been improvidently 
released, as Senator Kyl has noted, have attacked us again. 
These are people who are dedicated to the destruction of 
America. Many of them are.
    I wish it were not so. I wish it were not so. I wish that 
we could release these people. I wish that we could not have to 
have detention of those who are waging war against the United 
States and our allies, but we must do so, unfortunately, and we 
cannot create that--transform military detention of prisoners 
of war, even unlawful combatants who don't comply with the war, 
into trials.
    I think it's appropriate that the military pick and choose 
what are the appropriate cases to try first. I don't see 
anything wrong with that.
    Thank you, Madam Chairman. I look forward to the hearing.
    Chairman Feinstein. Thank you, Senator Sessions.
    We'll now turn to the panel, the two witnesses.
    Brigadier General Thomas W. Hartmann has served since July 
of 2007 as the legal advisor to the convening authority of the 
Department of Defense Office of Military Commissions. He is 
responsible for providing legal advice to the convening 
authority regarding referral of charges, questions that arise 
during trial, and other legal matters concerning military 
commissions. His duties also include supervising the convening 
authority legal staff.
    Steven Engel, Deputy Assistant Attorney General, Office of 
Legal Counsel, Department of Justice, is the second witness. 
Since February of 2007, Mr. Engel has served as a deputy 
assistant attorney general in the Office of Legal Counsel, 
where he has provided legal advice to the executive branch on a 
variety of matters, including the detention and prosecution of 
enemy combatants, treaties and congressional oversight. Mr. 
Engel also serves as co-chair of the President's Task Force on 
Puerto Rico's Status.
    Gentlemen, we welcome you and we'll begin with General 
Hartmann.

   STATEMENT OF BRIGADIER GENERAL THOMAS W. HARTMANN, LEGAL 
    ADVISER TO THE CONVENING AUTHORITY, OFFICE OF MILITARY 
                          COMMISSIONS

    Mr. Hartmann. Good morning, Senator Feinstein.
    Chairman Feinstein. General, before you proceed, I'm going 
to have seven-minute rounds. So if you could confine your 
testimony to that period of time, and we will do the same.
    Mr. Hartmann. Okay.
    Chairman Feinstein. Thank you.
    Mr. Hartmann. Thank you, Senator Feinstein, Senator Kyl, 
Senator Sessions, Senator Cardin.
    I'll ask that my testimony just be made part of the record 
and I won't read that into the record, but I thought that it 
would be useful for the subcommittee to see the rights that are 
described in the testimony in a reality.
    And if you had been at Guantanamo Bay on the 5th and 6th of 
December, during the continuation of the United States v. 
Hamdan case, you would have seen the following when you walked 
into the courtroom on Guantanamo Bay.
    You would have seen an accused who was in a tie and a coat 
and he had headphones on his head as he was listening to a live 
translation of his testimony--not his testimony, but the 
testimony and the statements of the court during his continued 
trial. So he was hearing it in his native language.
    Sitting next to him was a translator, between him and five 
counsel who were at his table. He had a detailed military 
defense counsel, a detailed civilian defense counsel, two 
counsel from a distinguished law firm in the United States, and 
a counsel who is a professor at Emory University. Five counsel 
at his table.
    Behind him was a U.N. observer, Mr. Scheinin, as well as 
five members of the press and five nongovernmental 
organizations, the ACLU, the American Bar Association, Human 
Rights Watch, Human Rights First, among others.
    The press were limited to five in the courtroom. There's an 
overflow building that we have for the press. So there were 
other press, domestic and international press in that location, 
as well.
    In the Khadr hearing that had occurred approximately a 
month before that, there were 30 members of the press and, over 
the period of times that we've handled the commissions in the 
last several months, more than 100 press people have attended 
these hearings.
    Also present in the courtroom were military prosecutors, a 
Navy officer, an Army officer, and a member of the Department 
of Justice. Pivotal to that process was a uniformed officer, a 
military judge, who has more than approximately 30 years of 
service in the United States Navy.
    The judges come from all the uniformed services. This judge 
was from the Navy. He wore a black robe and he presided over 
the hearing.
    The accused was allowed to remain silent, because that's 
his right. The accused and his counsel were allowed to cross-
examine witnesses presented by the government, because that is 
his right.
    The accused was allowed to call witnesses for the first 
time in this hearing, because that is his right. The accused 
was allowed discovery and the accused was allowed to seek 
witnesses who he said were exculpatory, even to the point that 
the convening authority, at 10 o'clock on the night of the 
first hearing, granted immunity to that witness so that that 
exculpatory evidence, whatever it was, could be given.
    Those are the rights you would have seen in that courtroom.
    If the accused is found guilty, he will have a right that 
no one else has in the United States or in any other court, and 
that is a right of automatic appeal to the Court of Military 
Commission Review. That is a right that is similar to the 
rights that we give to our uniformed soldiers, but no other 
civilian has that right.
    He will also have the right to have his findings, if he's 
found guilty, and his sentence reviewed by the convening 
authority, impartially, impartially, and she alone will be able 
to reduce the sentence or adjust the findings downward, not 
upward, downward, a right that doesn't exist anywhere on earth 
except in the Uniform Code of Military Justice and in this 
system.
    If you had risen early in the morning that day, you would 
have seen a silhouette of a military member from the Air 
National Guard of Puerto Rico with a dog, walking across the 
top of the building, protecting our soldiers, sailors, airmen 
and the members of that tribunal from bombs.
    There were approximately 60 members of the Puerto Rican 
National Guard defending and protecting that proceeding. And 
the place that I saw that silhouette from was what we call Tent 
City or Camp Justice, which is the location of the new 
expeditionary legal conference, and that complex is being built 
by the Indiana Air National Guard and several other Air 
National Guard units from around the country.
    That complex is designed to be ready about March 1 to deal 
with classified information and other things and your soldiers, 
sailors and airmen are doing a magnificent job in not simply 
describing the rights that are in the manual for military 
commissions or in the Military Commission Act, but effectuating 
them and bringing them to reality for alleged war criminals.
    Thank you, ma'am.
    Chairman Feinstein. You've concluded?
    Mr. Hartmann. Yes, ma'am.
    Chairman Feinstein. Thank you very much. Appreciate it.
    Mr. Engel.

 STATEMENT OF STEVEN ENGEL, DEPUTY ASSISTANT ATTORNEY GENERAL, 
      OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE

    Mr. Engel. Thank you, Chairwoman Feinstein, Ranking Member 
Kyl, Senator Sessions, Senator Cardin. I appreciate the 
opportunity to appear here today to discuss the legal rights of 
the enemy combatants detained at Guantanamo Bay.
    General Hartmann outlined a series of the rights that the 
accused in the military commission is enjoying and will enjoy 
as those prosecutions go forward.
    I'd like to take this time with remarks to talk about the 
legal rights with respect to detention, because these are 
issues that have been developed over the course of a number of 
years that represent the joint action of the executive branch 
and Congress with the guidance of the Supreme Court, and, of 
course, that guidance we expect will continue with the 
Boumediene decision.
    As the subcommittee is well aware, the United States is 
currently engaged in an armed conflict with little precedent in 
our history. Like past enemies, the attacks of September 11 
demonstrated that Al Qaida and its allies possess both the 
intention and the ability to inflict catastrophic harm on this 
nation.
    These terrorist enemies, however, show no respect for the 
law of war. They do not wear uniforms and they seek to achieve 
their goals through covert and brutal attacks on civilians 
rather than by directly engaging our armed forces.
    Although the law of war is based fundamentally upon 
reciprocity, the unconventional nature of our enemies, 
including their refusal to distinguish themselves from the 
civilian population, has perhaps paradoxically resulted in our 
providing the Guantanamo detainees with an ever increasing set 
of rights so as to assure ourselves that those detained at 
Guantanamo, in fact, pose a continuing threat.
    And, again, to be clear, this is a strength of our system. 
This reflects our commitment to the rule of law. But it is a 
strength that must be reconciled with the need to vigorously 
prosecute this armed conflict and defend our nation against 
future attacks.
    The Subcommittee conducts this hearing less than one week 
after the Supreme Court heard oral argument in the Boumediene 
case. That case, again, will no doubt shed considerable light 
on the scope of the detainees' rights.
    In Boumediene, the D.C. Circuit upheld Congress' authority 
to restrict the availability of habeas corpus, as it had done 
under both the Detainee Treatment Act and the Military 
Commissions Act passed last year.
    There is no doubt that the writ of habeas corpus represents 
a fundamental protection under our law, but the writ is 
fundamentally tailored for peacetime circumstances. The 
Constitution specifically grants Congress the authority to 
suspend the writ, even for American citizens, during times of 
rebellion or invasion.
    In the nearly 800 years of the writ's existence, no English 
or American court has ever granted habeas relief to an alien 
prisoner of war.
    Although the Detainee Treatment Act restricted the 
availability of habeas, it did not leave the detainees without 
a day in court. Rather, the act provides that the detainees, 
after receiving fair hearings before the Combatant Status 
Review Tribunals that the Department of Defense has set up, can 
further seek review of those decisions at the D.C. circuit.
    These CSRT procedures, as we call them, were themselves 
established to go beyond the requirements of the Geneva 
Conventions, the requirements owed to lawful prisoners of war, 
and, as well, to provide the Guantanamo detainees with the due 
process that the Supreme Court, in Hamdi v. Rumsfeld, held 
appropriate for American citizens who choose to fight for the 
enemy and are subsequently detained.
    The Detainee Treatment Act, though, goes even further than 
those procedures and provides the D.C. Circuit with 
jurisdiction to review those CSRT decisions. This is a right of 
civilian judicial review that is virtually unprecedented during 
wartime.
    The D.C. Circuit can consider all available constitutional 
and statutory arguments and it can ensure that the CSRT 
followed its own procedures, including the requirement that a 
preponderance of evidence supports the CSRT decision. The DTA 
review process would constitute an adequate and effective 
alternative to habeas corpus, even if the detainees could claim 
such a right under our Constitution.
    Still, the DTA procedures are more properly adapted than 
habeas corpus to the circumstances surrounding military 
detentions. As I noted, extending habeas to Guantanamo would be 
unprecedented and, lacking precedent, it would raise a host of 
serious questions as to how habeas might apply.
    For example, would we be required to bring the detainees 
into the United States to participate in habeas hearings? What 
rules of discovery would govern such proceedings? Could the 
detainees, for example, compel a United States soldier to 
return from Afghanistan or Iraq in order to appear and testify 
at such a hearing? And perhaps most seriously, would the 
detainee have the right to review classified evidence such that 
the United States might be forced to choose between disclosing 
vital intelligence to the enemy or actually releasing members 
of Al Qaida?
    The Department of Justice, no doubt, would argue for 
answers in any of these cases that would minimize their 
intrusion on our war fighting effort, but we can be equally 
assured that detainees' counsel would argue zealously on the 
other side.
    It is our hope that we will not need to answer these 
questions about how to apply habeas to a wartime situation, 
because the DTA procedures themselves provide a robust process 
that would be a constitutionally adequate alternative to habeas 
corpus, should the detainees be entitled to such rights.
    In sum, the existing system reflects a careful and 
appropriate compromise between the needs of military operations 
and our commitment to the rights of the detainees. This system 
has been worked out between the political branches, fully 
consistent with existing judicial precedent, and we hope will 
be upheld by the Supreme Court in its decision in Boumediene.
    Thank you, Senator Feinstein, Ranking Member Kyl and 
members of the subcommittee, and I look forward to answering 
your questions.
    Chairman Feinstein. Recognizing Senators, it will be 
myself, Senators Kyl, Cardin, Sessions and Durbin.
    Colonel Davis, General Hartmann, has also said that he 
directed his office not to use evidence obtained from or in 
connection with enhanced coercive interrogation techniques, 
specifically water boarding.
    What is the current status of this issue?
    Mr. Hartmann. Ma'am, with regard to that, as a general 
matter, a prosecutor is not authorized and should not discuss 
matters of deliberation and how he's going to proceed with a 
trial in public.
    However, since Colonel Davis brought this matter to the 
public, the issue is very clear. As a matter of policy and as a 
matter of law, torture is prohibited under U.S. law. Statements 
obtained by torture are prohibited from being used in these 
commission proceedings.
    As to other enhanced techniques and coercive techniques 
that might be used in connection with gathering evidence, that 
is the purpose for which the Military Commissions Act was 
created. That's why we have a judge in the courtroom. That's 
why the accused has the right to a defense counsel. That's why 
there are prosecutors, ma'am, and discovery.
    Those people will assess the facts and apply them to the 
law as it exists in the United States and as it applies to the 
commissions, and that's the rule of law, not for me to make a 
decision about that in abstraction.
    Trials, commission proceedings are 90 to 95 percent facts 
and you apply the law to those facts. So to answer that in 
abstract is, number one, inappropriate and anything dealing 
with the discretion of a prosecutor is inappropriate to be 
dealt with in public.
    Chairman Feinstein. So I understand from the answer to the 
question that evidence obtained from water boarding is not 
being used to prepare cases.
    Mr. Hartmann. No, ma'am, I didn't say that.
    Chairman Feinstein. Well, will you repeat what you did say?
    Mr. Hartmann. Yes, ma'am, I will say that. The evidence 
that we are gathering is the evidence that we are gathering. 
Whatever the methods that have been used to gather that 
evidence will be evaluated in connection with the law and in 
the trials.
    It can't be defined in an abstract way like that, ma'am.
    Chairman Feinstein. All right. So I understand it's a non-
answer to my question.
    Is evidence from other enhanced coercive interrogation 
techniques being used?
    Mr. Hartmann. Ma'am, I can't answer that either, because 
these are ongoing trials and it's completely inappropriate for 
anyone associated with the preparation of cases or any kind of 
prosecution to prejudge those or to discuss those in the 
public.
    It's very critical that those involved in a prosecution 
effort have the ability to discuss those behind closed doors so 
that they can give unvarnished, unbiased, bark-off-the-tree 
opinions about the right answer.
    Chairman Feinstein. One last question on that subject.
    Do you agree that evidence obtained from water boarding is 
unreliable and should not be used?
    Mr. Hartmann. Ma'am, again, the issues that deal with that 
are fundamentally based on reliability and probativeness of 
evidence and the question that will be before the judge when 
that comes up is whether the evidence is reliable and probative 
and whether it's in the best interest of justice to introduce 
the evidence.
    That is the rule of law, ma'am. That is the rule of 
evidence. That is the rule of law and the rule of evidence that 
is supported by the Military Commission Act that the 
legislature passed.
    Chairman Feinstein. So in other words, if you believe you 
can prove something from evidence derived from water boarding, 
it will be used.
    Mr. Hartmann. If the evidence is reliable and probative and 
the judge concludes that it is in the best interest of justice 
to introduce that evidence, ma'am, those are the rules we will 
follow. Those are the rules we must follow.
    Chairman Feinstein. How is that presented to the judge?
    Mr. Hartmann. How is?
    Chairman Feinstein. How is that issue presented to the 
judge in the--
    Mr. Hartmann. Well, the prosecution--
    Chairman Feinstein. --course of the trial?
    Mr. Hartmann. I'm sorry. The prosecution will raise the 
issue, because the prosecution will be presenting the evidence 
or the defense will file a motion to exclude the evidence, and 
then the parties will deal with that motion and debate it.
    Chairman Feinstein. I see. Did you, the convening authority 
or anyone discuss the need to move quickly on cases because of 
upcoming elections?
    Mr. Hartmann. No, ma'am, I did not.
    Chairman Feinstein. That was never discussed.
    Mr. Hartmann. Absolutely not, ma'am.
    Chairman Feinstein. Would you agree that military 
commission trials should be open, if possible?
    Mr. Hartmann. Yes, ma'am, absolutely. I fully support, and 
so does everyone on the commission process fully support the 
value of having open trials and open presentations. We have 
moved mountains to try to get the press there, the 
nongovernmental organizations there, and we endeavor to do 
that.
    However, there will be circumstances in which classified 
evidence must be used to move forward on the cases and in those 
limited sets of circumstances, it will be necessary to close 
the trial to allow the evidence to come in.
    Let me make one clarification, which often gets in the 
newspaper, which is inaccurate and that refers to the word 
``secret'' trials. There will be no secret trials. There is no 
mechanism for a secret trial.
    Every piece of evidence, every form of evidence, every type 
of evidence that will go before the jury will be seen by the 
accused and his counsel, subject to cross-examination, subject 
to review.
    There will be no evidence that is used on a finding of 
guilt or innocence or a sentence that the accused does not have 
the right to see, object to and challenge.
    Chairman Feinstein. Thank you. I think that's helpful.
    In April 2004, DOD issued a press release saying that it 
was taking the general counsel out of the chain of command over 
the chief prosecutor to help ensure independence of the 
military commissions process.
    That was an important gesture, because it took any 
political aspect out of the chain of command. This was done 
under Military Commission Instruction No. 6.
    Then on October 3, 2007, this position was reversed and new 
orders were issued, putting the chief prosecutor under the 
legal advisor to the appointing authority, the deputy general 
counsel and the general counsel.
    So in just a few months, you took out any opportunity for 
there to be civilian political influence and then, three months 
later, you put that back.
    Why was this change made?
    Mr. Hartmann. Ma'am, the fundamental principle of law in 
this country with regard to the military is civilian control 
over the military. So that's no surprise and it is fundamental.
    With regard to the change that you refer to as occurring on 
October 4, the chief prosecutor always reported to the legal 
advisor. That's no change.
    The change was with regard to where I reported. I had no 
reporting official at that time and one of the recommendations 
of the Tate investigative group was that that be clarified. And 
so the formal designation of my supervisor became one of the 
deputy general counsel within the Office of the General 
Counsel.
    That didn't change anything, in reality, ma'am, and this is 
important. The person that was the deputy general counsel 
before that was the person who was also the deputy general 
counsel after that. I talked to that person regularly, every 
day. So did Colonel Davis. It was a very common form of 
association, a very common source of getting information and an 
understanding of the law and counsel.
    There was no change, ma'am, before October 3 or after 
October 3 and there has been no political influence on this 
effort.
    If there has been an effort to increase the speed of the 
trials, the effort to improve the performance, an effort to 
improve the execution in the trials process, it has been my 
effort and no one has directed me in that regard.
    Chairman Feinstein. Thank you very much. My time is up.
    Senator Kyl.
    Senator Kyl. Thank you, Senator Feinstein.
    First, General Hartmann, are you aware of any war crimes 
tribunal ever, any U.N. tribunal, the Nuremberg tribunals, or 
any other past or present U.S. or international war crimes 
tribunal that has ever provided as much due process to alleged 
war criminals as has the current U.S. Military Commission Act 
trials?
    Mr. Hartmann. Senator, the rights that are provided under 
the Military Commissions Act and the Manual for Military 
Commissions are absolutely unprecedented in their generosity 
and benevolence to the accused.
    Senator Kyl. Mr. Engel, I understand that Professor 
Denbeaux, one of the witnesses on the second panel at today's 
hearing, will release a study today that discounts or downplays 
the evidence that some Guantanamo detainees whom we've released 
have again taken up arms against the United States. You might 
have heard me detail a whole series of cases in which that has 
occurred.
    What unclassified information can you provide about 
released detainees who have returned to waging war against the 
United States?
    Mr. Engel. Sure. Thank you, Senator.
    I haven't had the chance, obviously, to closely review the 
study of Professor Denbeaux, which I understand relies upon 
only the materials that have been publicly released and not the 
extensive classified information that the Department of Defense 
has.
    I understand, in terms of publicly, the Department of 
Defense has said that upwards of 30 detainees who have been 
released from Guantanamo Bay have returned to various theaters 
in order to continue to wage jihad, often against American 
forces or our allies in Afghanistan or Pakistan.
    Among these individuals, the individual the department 
disclosed, a man named Mullah Shahzada, who assumed control of 
Taliban operations in southern Afghanistan after he was 
released. Another was Abdullah Mehsud, who became a militant 
leader in southern Waziristan.
    Taliban regional commander, another individual who was 
reported by Al Jazeera, he appeared and asserted that he was 
the deputy defense minister of the Taliban and he discussed 
defensive positions of the mujahideen and claimed that he had 
recently been involved in the downing of an airplane.
    DOD has specifically discussed upwards of seven detainees 
and they've sorted asserted that there are 30 others that are 
out there and this just shows that we have to be very careful 
with respect to the individuals detained at Guantanamo Bay.
    Contrary to popular myth, the ticket to Cuba is not a one-
way ticket. We have released over half of the folks who have 
ever been there and the United States continues, where 
possible, consistent with our national security, consistent 
with our obligations to ensure that detainees who are released 
will be humanely treated in the country to which they are 
returned.
    We have continually been releasing detainees throughout the 
process and no process is perfect and these folks are evidence 
that sometimes we make mistakes and these mistakes can be 
costly.
    Senator Kyl. Just in round numbers, the number of people 
who have been released who were originally taken, held for a 
period and then released, what is that number, approximately?
    Mr. Engel. Well, with respect to Guantanamo, the United 
States has detained upwards of 10,000 detainees in Iraq and 
Afghanistan over time. About 755, I believe the chairwoman 
quoted 759, have been brought to Guantanamo and something like 
455 or so have been released. We currently have about 305 
there.
    Senator Kyl. General Hartmann, back to the question I asked 
you originally. Let's go down some of the specific kinds of 
rights.
    Did the Nuremberg tribunals apply a presumption of 
innocence to the Nazi war criminals who were tried before those 
tribunals?
    Mr. Hartmann. No such presumption existed, Senator.
    Senator Kyl. Did those tribunals limit the types of 
evidence, like hearsay evidence or evidence obtained in 
coercive circumstances, that it could consider when it found a 
particular piece of evidence to be probative and otherwise 
inclined to consider it?
    Mr. Hartmann. There were no rules of evidence and virtually 
any evidence was freely admitted.
    Senator Kyl. Did those tribunals allow any judicial review 
whatsoever of their verdicts?
    Mr. Hartmann. No, sir. And that was painfully apparent to 
those who were found guilty and received the death penalty. 
They were hung within hours and days of the completion of the 
sentence announcement.
    Senator Kyl. Mr. Engel, let me ask you what effect the 
initial Rasul decision had on interrogation of Al Qaida 
detainees held at Guantanamo? This, of course, permitted a 
statutory habeas type of litigation.
    Mr. Engel. Sure. Well, I mean, I think we have often quoted 
statements of Michael Ratner from the Center for Constitutional 
Rights, who is an attorney for the detainees, who boasted that 
interrogation and any kind of effective interrogation is 
impossible once the detainee has regular access to a lawyer.
    Any expert on interrogation will tell you that one of the 
keys to successful interrogation is a rapport between the 
interrogator and the subject. Any good attorney who is able to 
come in and represent a client is going to come in and shut 
that down as soon as possible.
    So, again, the access to attorneys, which, of course, there 
is access to attorneys in many of the existing processes, but 
they do come at real costs to the effectiveness of our 
interrogations.
    Senator Kyl. If habeas rights were extended to Guantanamo 
detainees, would they be allowed to subpoena U.S. soldiers and 
potentially recall them from the battlefield so that they could 
be cross-examined by the detainee's lawyers?
    Mr. Engel. Well, I think that would be a very serious 
question. As I mentioned in my opening statement, extending the 
peacetime notions of habeas corpus to military prisoners is 
unprecedented and there would be serious concerns that the 
detainee, asserting a right to compulsory process, would be 
able to require a soldier to come back from the battlefield.
    We, of course, in the Department of Justice, would argue 
that that should not be required, but I'm sure there would be a 
vigorous debate over it.
    Senator Kyl. That, of course, is one of the things Justice 
Jackson warned about in the decision, at least up to now, that 
had been the primary U.S. decision in the matter.

    Incidentally, I understand you clerked for Justice Kennedy. 
I'm tempted to ask you what you think he might do in the 
Boumediene case, but I'll refrain from doing that.
    Mr. Engel. I appreciate that.
    Senator Kyl. I don't think that would be prudent.
    Let me just ask one final question here. If litigation 
rights were extended to these detainees and they were given a 
right of--well, would they be given potentially access to 
classified materials?
    What kind of problems would that create or would the 
request by their lawyers to gain access to that classified 
evidence create?
    Mr. Engel. I think that's a big question and a big issue 
and really one of the biggest issues and the greatest 
difficulties that we have faced with respect to detaining 
individuals, with respect to the CSRT process, the DTA review 
process, the potential for habeas, and the military commissions 
process is how do we deal with the wealth of classified 
information that we have and we rely on and must protect in 
order to wage a war and, at the same time, provide some kind of 
adversarial process at times in which the detainees have the 
opportunity to confront the evidence against them.
    And the CSRT process, with the DTA review, has developed 
what we think is a workable and a fair system, one grounded in 
familiar law of war principles.
    As to alternatives as to something like traditional habeas, 
again, we would argue vociferously for limits on detainees' 
access to classified information. But CIPA rules require 
alternatives if you're not going to give individuals the actual 
evidence and it's not always easy to come by those 
alternatives.
    So we would be very concerned over precisely that issue.
    Senator Kyl. I want to thank both of you for being here 
today and apologize in advance. I have a meeting at 11. I'm 
going to have to leave about five minutes before that and I 
wish I could be here for the remainder of your comments.
    Thank you, Madam Chair.
    Mr. Engel. Thank you, Senator.
    Chairman Feinstein. Thank you, Senator Kyl.
    Senator Cardin.
    Senator Cardin. Thank you, Madam Chair.
    General Hartmann, let me first make it very clear about the 
service of our people down at Guantanamo Bay. I've been to 
Guantanamo Bay and the men and women who are serving our nation 
there are serving with great distinction and protecting our 
country and in the methods that they are using in carrying out 
their responsibilities, and I have nothing but praise for the 
men and women who serve our nation.
    My concern is that why we never sought the advice of the 
international community in the manner in which detainees were 
treated and decided to go to Guantanamo Bay.
    This is unprecedented. It's the unlawful combatant 
circumstances. And, yet, we chose to do this on our own, 
without really working with the international community and but 
for the courts, there would have been no opportunity for those 
who were determined to go to Guantanamo Bay to have any type of 
a transparent process to decide whether they were appropriate 
to be at Guantanamo Bay or not.
    I want to just, first, in regards to Senator Kyl's point, 
those who have been charged at Guantanamo Bay, are any of them 
charged with war crimes?
    Mr. Hartmann. They are charged with war crimes as defined 
in the Military Commissions Act.
    Senator Cardin. But not charged with international-- 
Nuremberg, those were created under the auspices of the 
international community.
    Is there any effort here to use the international 
community's definitions? My understanding is that David Hicks 
pled guilty to material support, that Mohammed Jawad is charged 
with attempted murder.
    Am I wrong on those assumptions?
    Mr. Hartmann. You are correct in those.
    Senator Cardin. Thank you.
    And, Mr. Engel, your point about wartime powers of the 
president and wartime powers generally that we have, my concern 
with that as relates to habeas corpus, and I disagree with your 
analysis on the habeas corpus burdens, I think that these 
individuals are basically criminals and that criminals have the 
right to habeas corpus.
    But under the president's definitions of wartime powers, 
we're going to be at war during all of our lifetime. The war 
against terror is unlikely to have a definitive end.
    I think that's just a dangerous interpretation of powers to 
say that we're going to deny those who are now entering our 
criminal justice system the ability at early stages, at this 
point, it's already very late, to have basic rights and I 
disagree with you on that.
    I want to get back, though, to Chairman Feinstein's point 
on how cases are prepared.
    General Hartmann, you raised a point in regards to how 
evidence will be determined. You point out, and rightly so, 
that evidence that is obtained by illegal means cannot be used 
in the trial, should be excluded, and you have acknowledged 
that torture is illegal under U.S. law.
    My question to you is what process, if any, do you have in 
the development of a case to take a look at the methods that 
were being used to obtain evidence, to make an independent 
judgment, as a prosecutor, as to whether that evidence has been 
obtained lawfully or not?
    Any competent state's attorney preparing a case will take a 
look at the evidence and see whether it is permissible to be 
used or not. What process have you developed within the 
military commissions to evaluate the legality of the 
information that's been obtained?
    Mr. Hartmann. Senator, that's an important question and 
it's a question that every prosecutor must ask himself or 
herself and it's a process through which they must go.
    I am not going to describe that process to you in public. 
It's a process and it's a matter of judicial and prosecutorial 
discretion. They must have the privacy. They must have the 
behind-the-doors ability to evaluate the evidence and to look 
at it in an unvarnished way.
    But for me to tell you in public, on the record, the 
process that they use would be completely inappropriate.
    Senator Cardin. Are you telling--
    Mr. Hartmann. But I assure you there is a process.
    Senator Cardin. And are you telling us that that process 
will exclude certain information because of the concerns about 
it being challenged?
    Mr. Hartmann. No, sir, I'm not telling you that. I am 
telling you that there is a process and that the obligation of 
the prosecution is to take the evidence through that process 
and to try to determine if they think it will be admissible or 
not and the reasons for which they think any particular piece 
of evidence will be admissible.
    And if they intend to proceed with that, that issue will 
then be resolved in public in front of the court, in front of 
the judge, the defense counsel, the accused, and the 
prosecutor.
    Senator Cardin. And explain to me why the process that you 
use cannot be discussed in a public forum.
    Mr. Hartmann. Because there's no particular-- there's no 
defined one-step, two-step-three process that anyone uses, 
Senator. There's a process that you use. You take the evidence 
that you've got, which is unique in every single case, and you 
evaluate that against the law and the rules of evidence.
    So to say that you follow a specific process would be 
completely inaccurate, in the first place.
    Any prosecutor, even if you're not a prosecutor, if you're 
a trial lawyer, you understand that the focus of your attention 
has to be on the facts, not on generalities, not on even the 
broad outlines of the rules, but the facts and then you figure 
out how to admit that evidence--
    Senator Cardin. You've acknowledged--
    Mr. Hartmann.--or the challenges that you will face in 
trying to admit that evidence.
    Senator Cardin. You've acknowledged, and properly so, that 
information obtained or facts--information obtained through 
coercion will not be--should not be used and is unreliable.
    We had a hearing yesterday in College Park on the Helsinki 
Commission on torture and it was interesting as to one subject 
that came up, and that is the reliability of information that's 
obtained through torture or similar procedures and that during 
the times of witchcraft, we had confessions that people were 
witches.
    So the reliability of this information is very questionable 
and I think we would all feel more comfortable if you would be 
more forthcoming in telling us the process, not talking about a 
specific technique that may or may not have been used, but a 
process, so that we have a little more confidence that our 
government is, in fact, evaluating, as they prepare for 
criminal trials, the quality of the information that they have 
obtained.
    Mr. Hartmann. Senator, the key to your answer will be found 
in the well of the courtroom. That's where--
    Senator Cardin. I disagree with that. I disagree. I think 
there's an obligation on the government in preparing a case to 
make sure it's done properly.
    Mr. Hartmann. It will be done properly, Senator, and that's 
where you--you will learn about that in the well of the 
courtroom. The prosecutor's obligation, his fundamental 
obligation is to ensure justice in the military commissions 
process and in the Uniform Code of Military Justice process.
    That is his fundamental obligation or her fundamental 
obligation. So it's their duty to take the evidence, to assess 
the evidence, to determine its admissibility, to determine the 
risks of non-admissibility, to determine the law that applies 
to the admissibility of that evidence, and then they make a 
decision whether they're going to try to use it in the case.
    And once they try to use it in the case, in the American 
system, the defense counsel, a right that this Congress gave to 
these accused, will challenge that evidence and the military 
judge who will be present and who has experience will be able 
to challenge it and will be able to evaluate it, and the press 
that we bring down to these hearings will be able to see that 
and report that to the world, and the nongovernmental 
organizations that we allow to sit in the courtroom will see 
that and bring that to the attention of the world.
    You will be very proud, Senator, of what your uniformed 
service members are doing. They are following the rule of law. 
They are following the rule of law.
    I am not going to presume on them what that is. They know 
the law. They know the evidence. These rules of evidence are 
quite similar to the things that they follow in the military 
court-martial process, which is renowned by some of our 
greatest trial advocates as an outstanding system.
    Those are the same people who take an oath to protect the 
Constitution, the same oath they are using in the desert--
    Senator Cardin. I don't challenge anything you've said 
about the dedication of the people who are doing their job.
    I just come back to a point that I expect those who 
prosecute the criminal cases will also try to help us improve 
the system. That's been done at the local levels, at the 
federal levels, and I would feel more confident if I knew that 
there was some evaluation being done by those who are preparing 
the case as to the methods that were used to obtain 
information.
    Mr. Hartmann. It is being done, Senator.
    Chairman Feinstein. Thank you very much, Senator Cardin.
    Senator Sessions is next. Senator, you're up.
    Senator Sessions. Thank you, Madam Chairman. And I thank 
the panelists.
    This concern--I remember reading in the paper, I think, 
about the selection process of what cases to try first. As a 
former United States attorney and attorney general of Alabama, 
I think good prosecutors always try to pick the cases they 
feel, in a series of cases, that have the greatest appeal, 
maybe the strongest evidence, and, to me, that's just good 
prosecutorial strategy.
    Apparently, Colonel Davis objected to that.
    Explain to me what that disagreement is all about, General 
Hartmann.
    Mr. Hartmann. Senator, the focus, my focus has been to move 
the process with intensity and with focus and with prepared 
counsel and my concentration has been to ask the counsel and 
encourage the counsel to identify those cases which have the 
most material evidence, the most important evidence, the most 
significant evidence among the roughly 80 to 90 or so cases 
they intend to try to bring those forward rapidly, as rapidly 
as possible, in light of their evaluation of the evidence.
    So I agree with exactly what you said, Senator, that we 
needed to focus on the most material cases and bring those 
forward as rapidly as possible.
    Senator Sessions. I think it's almost prosecutorially 
incompetent not to think in those terms. It's important that 
you do so.
    Well, let me ask you this. We had this long list of people 
that have been released. I would suggest that if those had been 
released had killed a United States Senator instead of an 
American military person, we'd have a lot different attitude 
about it.
    But my question to you, General Hartmann, why are these 
people being released?
    We have some of them, you say, Mr. Engel, that they were Al 
Qaida leaders and this sort of thing. What kind of process 
allows us to take persons who it appears are dedicated to their 
cause to the point that some will blow themselves up to kill 
men, women and children, why do we release these persons, that 
could result in the death of American servicemen?
    Mr. Engel. Well, Senator, I think it's a very good 
question. I think what it shows is that no process is perfect 
and these are individuals who were detained initially and 
managed to convince the United States, over a period of weeks, 
months, even, in some cases, maybe years, that they were 
innocent or they were minor players and that all they were 
looking to do was to go back home and be with their families 
and return to whatever agricultural or otherwise activity that 
they do.
    And, frankly, they tricked us and any process in which we 
are releasing individuals is a process with risk, and we 
understand this risk, but it is a risk that we are committed 
to, because we're not looking simply to being an indefinite 
jailer of all the individuals at Guantanamo.
    We are trying to work hard to make sure that the 
individuals who can be released without a threat to our 
national security, in fact, are released and that what these 
cases reflect, though, is that no release is going to be a 
risk-free proposition, even if we believe that these 
individuals are no longer a threat.
    Senator Sessions. Well, I just thought if you captured 
somebody in the course of a military conflict, they were 
detained, because any good soldier, while they're being 
detained, know their rights and that sort of thing.
    But when they get out of jail, they go back and join the 
forces that they used to be a part of. I mean, that's what 
every--people who escaped from prison went back to their 
American units and fought against the enemy and continued to do 
so.
    So that's why you hold them until the war is over. And, 
frankly, I think this committee and this Congress needs to 
focus a little bit more on trying to protect our soldiers, 
protect our homeland, make sure that murders, killers who are 
dedicated to the destruction of America are detained rather 
than trying to see how many we can release.
    And I suspect some of those are released because there is a 
feeling that Congress is on your necks and you had to 
demonstrate that you were going to release a lot of prisoners 
so you would get less criticism at a hearing like this, and now 
we've got people dead as a result of it.
    General Hartmann, with regard to the trials that you've 
referred to, just if you can clarify for the American people 
and me, because I tend to get confused about it, are you trying 
to people to ascertain--are these trials to ascertain whether 
they should be continued to be held in custody or are these 
trials to ascertain whether they deserve punishment for 
committing acts unlawfully under the rules of war?
    Mr. Hartmann. It's the latter, Senator. We are focusing 
these trials on violations of the law of war and based upon a 
finding of guilty, they would be sentenced to confinement.
    The other people are detainees, as Mr. Engel has described. 
These are people who are going to be tried under the Military 
Commission Act for violations of the law of war and they will 
be sentenced upon a finding of guilt.
    Senator Sessions. Well, I remember what happened in 
Oklahoma City after those people were tried for bombing 
American citizens. At least one of them was executed.
    Is it possible some of these who've murdered innocent men 
and women and children and American personnel could be 
executed?
    Mr. Hartmann. It's an option that's available under the 
Military Commission Act and, again, Senator, I won't prejudge 
any case or any charging.
    Senator Sessions. Well, I would just hope that if that kind 
of punishment is good enough for an American who kills 
Americans, that it ought to be good enough for a terrorist who 
kills Americans.
    Mr. Engel, is there any judicial decision in the 800-year 
history of Anglo-American jurisprudence in which habeas corpus 
relief has been extended to someone who's been declared a 
prisoner of war?
    Mr. Engel. I'm not aware of one.
    Senator Sessions. I'm not either.
    Mr. Engel. And the Supreme Court, in considering, this last 
week, I think it became clear in oral argument, no one at that 
court was able to find one that was directly on point, as 
you've said, Senator.
    Senator Sessions. I think it has grave implications for our 
ability to be successful as a nation in the defense of this 
republic if we capture people on the battlefield and then start 
treating them as American citizens who are being tried for a 
drug crime. It just does not make sense to me.
    Now, how do we get to the point that prisoners of war are 
now being entitled to personal attorneys? This is a step that's 
unusual in the history of war, it seems to me.
    General, my time is up, so if you'll briefly respond to how 
we got to this point. Is this consistent with the history of 
the way we treated prisoners of war in the past?
    Because as you noted, Mr. Engel, when an attorney talks 
with a client, the first thing they tell them is to quit 
talking.
    Mr. Engel. That's right. With respect to detention issues, 
the use of lawyers is virtually unprecedented in the annals of 
war and conflict. With respect to prosecution, I think in order 
to have prosecutions, there have been, of course, defense 
lawyers in those cases, but we grant an unprecedented degree of 
process here, including review by the federal court of appeals 
in the D.C. Circuit.
    Mr. Hartmann. I can't add anything to that, Your Honor 
[sic], but as I said, Mr. Hamdan had five defense counsel at 
his table last week.
    Senator Sessions. Well, it's a dangerous group of prisoners 
that you're dealing with. I visited, in Alabama, a German 
prisoner of war camp in Pickens County. The people were given a 
great deal of freedom. They still have many items that they 
have there and it was a different kind of prisoner than we have 
today.
    Thank you.
    Chairman Feinstein. Thank you, Senator Sessions.
    Senator Durbin.
    Senator Durbin. Thank you, Madam Chair.
    Mr. Engel, many of us were troubled to learn that CIA 
officials destroyed videotapes of detainees being subject to 
the so-called interrogation techniques.
    These techniques reportedly included forms of torture like 
water boarding. According to some media reports, the Justice 
Department attorneys advised the CIA not to destroy these 
videos.
    Was the Department of Justice aware of the existence of 
these tapes prior to their destruction?
    Mr. Engel. Well, let me tell you what I can say. The 
Department of Justice, as you know, has initiated a preliminary 
inquiry, which is being run by Ken Wainstein of the National 
Security Division in conjunction with the CIA's inspector 
general's office, and I also know that General Hayden is going 
to be testifying this afternoon.
    I am not aware of my office being involved in providing 
legal advice on the subject. But I've seen the press reports 
which suggest that some of these issues may have been discussed 
years ago and I think Mr. Wainstein's investigation or the 
preliminary inquiry will bring a lot of these facts to light.
    Senator Durbin. Specific question. Was the Department of 
Justice aware of the existence of these tapes before they were 
destroyed?
    Mr. Engel. Sitting here, I don't have an answer for that, 
Senator.
    Senator Durbin. Did the Department of Justice advise the 
CIA not to destroy these tapes?
    Mr. Engel. Again, likewise, I've seen what's in the press 
reports, but sitting here, I don't have an answer, though--
    Senator Durbin. When General Hayden said the destruction 
was in line with the law, do you have any indication or 
knowledge of the law as it was given to him or the standards 
that he was asked to follow in destroying these tapes?
    Mr. Engel. Again, sitting here, I'm not aware.
    Senator Durbin. General Hartmann, you said that the 
military commissions are transparent, provide a window through 
which the world can view military justice in action.
    You also claim military commission defendants have the 
right to review and respond to all evidence.
    In the pending case of Omar Khadr, defense lawyers have 
been ordered not to tell the defendant or anyone else who the 
witnesses are against him.
    How can you call a system that relies on secret evidence 
transparent?
    Mr. Hartmann. We don't rely on secret evidence, Senator. 
Every piece of evidence that will go to the finder of fact, to 
the jury, will be reviewed by the accused and his counsel.
    Senator Durbin. You're a graduate of law school and you 
know that confronting your accuser is part of our system of 
justice. In this situation, Mr. Khadr is not even given the 
identity of the witnesses who are testifying against him.
    Mr. Hartmann. There may be some limited cases in which that 
applies, Senator. However, the order to which you are referring 
says, below it, ``except as provided below.''
    In that order, it specifically says that 21 days before 
trial, the prosecution has the burden of explaining why that 
part of the order that you're focused on is to continue and if 
the prosecution does not do that, then all the witnesses are 
made available to the counsel and to the accused.
    Senator Durbin. The presumption is just the opposite, as I 
understand it. The presumption is that the prosecution, the 
government, can withhold the identity of the witness.
    Mr. Hartmann. No. I would say the presumption is just the 
opposite, that unless the prosecution makes an affirmative 
effort, these witnesses will be disclosed to the accused.
    Senator Durbin. And has that happened?
    Mr. Hartmann. We haven't gotten to 21 days before trial, 
sir.
    Senator Durbin. I see. Well, let me ask you this. In the 
six years that Guantanamo has been in operation for this 
purpose, how many convictions have taken place of the 775 
people who have been detained there?
    Mr. Hartmann. One.
    Senator Durbin. Would you repeat that for the record?
    Mr. Hartmann. One.
    Senator Durbin. And was that not a plea bargain?
    Mr. Hartmann. It was a pretrial agreement, yes, sir.
    Senator Durbin. And it involved a sentence of what 
duration?
    Mr. Hartmann. I believe it was a sentence of seven years, 
with everything above nine months deferred.
    Senator Durbin. So it ended up nine months detention, 
correct?
    Mr. Hartmann. That may be the case, sir.
    Senator Durbin. And this gentleman, Mr. Hicks, I believe, 
was a low level operative.
    Mr. Hartmann. I wouldn't categorize it, sir.
    Senator Durbin. Isn't it interesting that in six years, 
with 775 detainees who have been characterized here as war 
criminals, blood thirsty killers, that only one conviction has 
taken place? How do you explain that?
    Mr. Hartmann. I cannot explain it. There are reasons with 
regard to various legal delays. However, I am as disappointed 
in that as you are and I am, with the various members of the 
Office of Military Commission, trying to move the process much 
more rapidly, Senator.
    Senator Durbin. Somewhere in your heart of hearts, in those 
dark moments at night when you reflect on what you do, have you 
thought perhaps we're doing this the wrong way? Maybe we don't 
have the people who are most threatening to the United States?
    Isn't the fact that we've released 470 of these detainees 
an indication that maybe we got it wrong in over half the cases 
in bringing them to Guantanamo?
    Mr. Hartmann. In my heart of hearts, Senator, I'm convinced 
we've got the right process with the military commissions. It 
is literally unprecedented the rights that we are making 
available to people we call alleged terrorists, unprecedented.
    Senator Durbin. Well, let me talk to you about some of 
those rights. Four hundred and seventy of these people were 
arrested, transported, detained and interrogated for months and 
years and then released because we couldn't charge them with 
one single crime or one thing that they had done wrong. Is that 
not correct?
    Mr. Hartmann. I don't know, Senator. My focus is on the 80 
to 90 people we intend to try to war crimes trials in the 
military commissions process.
    Senator Durbin. Well, that's a good focus. But I still 
wonder what happened to 470 people who took a little tour 
through Guantanamo for years and now go home to explain to the 
rest of the world what American justice is all about.
    Isn't that part of your concern, as well?
    Mr. Hartmann. The entire process is part of my concern, but 
my almost entire focus is on the trials and moving them, which 
was the beginning of your comment, Senator, that we have only 
tried one person.
    I want to change that record.
    Senator Durbin. So Senator Kyl talked about having to call 
in American soldiers as witnesses, take them off the 
battleground, he said. So just how many of the people, those 
775, that have been detained at Guantanamo were, in fact, 
picked up off the battlefield?
    Mr. Hartmann. Senator, that's outside of my area. That's 
in--
    Senator Durbin. Well, I'll tell you what Professor Denbeaux 
tells us. He tells us, according to his report, when President 
Bush says these people from Guantanamo have been picked up off 
the battlefield, the Defense Department has accused only 21 
detainees of having ever been on the battlefield, 21 out of 
775.
    He'll testify, as well, the Department of Defense has 
alleged that only one, only one detained in Guantanamo was 
captured on a battlefield.
    Do you have any evidence otherwise?
    Mr. Engel. Senator, I think it's important for the United 
States to be able to detain members of Al Qaida, members of the 
Taliban, whether we get them on a literal battlefield outside 
of Tora Bora or whether we get them in a city thereafter.
    Senator Durbin. I don't argue with that premise. I think 
your premise is correct. But this notion that somehow we're 
going to devastate our military by calling our soldiers off the 
battlefield to show up at these commissions to testify on 
behalf of the government is, frankly, not supported by the 
clear evidence here that these are not battlefield combatants 
that are under arrest.
    Mr. Engel. Again, and I would defer to General Hartmann, I 
mean, if we look only at the hearing last week in the Khadr 
case, we did have military officers appearing and testifying 
about the circumstances under which Mr. Khadr was apprehended.
    Senator Durbin. Is there anything wrong with that?
    Mr. Engel. There's nothing wrong with that and the military 
commissions--
    Senator Durbin. Isn't that part of a system of justice?
    Mr. Engel. Well, but we're talking here about two different 
things. We're talking about the military commissions process 
and when we prosecute people, we do believe, if feasible, that 
we should be able to get the witnesses into the court, which 
will not always be feasible.
    If we're talking about the detention of hundreds of enemy 
combatants and if we're asking federal habeas corpus in the 
United States or to conduct these hearings, these are quite 
significant burdens that raise serious questions.
    Senator Durbin. My last question.
    Mr. Hartmann. Senator, of course, just to add to that, we 
did bring people off the battlefield last week to testify and 
to allow the accused to witness them in the courtroom, to 
confront them and to cross-examine them.
    Senator Durbin. Senator Kyl suggests that that's an 
unreasonable burden on our government. Do you believe it is?
    Mr. Hartmann. We were happy to do it, Your Honor [sic].
    Senator Durbin. I'm glad you were.
    General Hartmann, former Secretary of State Colin Powell 
has stated, ``We have shaken the belief the world had in 
America's justice system by keeping a place like Guantanamo 
open and creating things like military commissions. We don't 
need it and it's causing us far more damage than any good we 
get for it.''
    That was his statement, quote, from General Colin Powell. 
What is your opinion with regard to that statement?
    Mr. Hartmann. With regard to that statement, I would say 
that the military commissions are an honor to the American 
justice system. You should be very proud of what was written in 
the Military Commission Act, what is the Manual for Military 
Commissions, what is in the regulation, and about those people 
I described at the beginning of my testimony, Senator, those 
people who enforce the right, five defense counsel at the table 
of Hamdan.
    Senator Durbin. I would just say to you--
    Mr. Hartmann. He was given access to counsel. He was 
given--
    Senator Durbin. General Hartmann.
    Mr. Hartmann [continuing]. The right to cross-examine.
    Senator Durbin. Please.
    Mr. Hartmann. Those are the basic rights that are made--
    Senator Durbin. Every time--
    Mr. Hartmann [continuing]. Available through the American 
justice system.
    Senator Durbin [continuing]. We question Guantanamo and its 
use, you and others say we are somehow questioning the 
integrity of the men and women in uniform. That is not a fact. 
None of us have and none of us will.
    They are good and brave soldiers and they are doing their 
duty for their country.
    But the policymakers have to be held accountable for a 
situation in Guantanamo which has become an embarrassment for 
the United States around the world, as General Powell stated 
very, very clearly.
    Mr. Hartmann. Senator--
    Senator Durbin. I respect him, as well, as a man who served 
his country.
    Mr. Hartmann. Yes, sir. The rights that are available are 
written down. The rights that are available are written down. 
They are rules of evidence that virtually mirror the military 
rules of evidence.
    The people that are enforcing those rights, the judge, the 
prosecutor, the defense counsel, are the same people who take 
the oath of office on other things. They are--
    Senator Durbin. But one of the most--
    Mr. Hartmann [continuing]. Very similar.
    Senator Durbin [continuing]. Fundamental right under 
justice, of habeas corpus, to know why you're being detained, 
to know what you're charged with and to confront your accusers, 
you can't argue to me that that is being protected.
    Mr. Hartmann. What I will argue to you--
    Chairman Feinstein. Senator, you are doing a Schumer. You 
are 2.5 minutes over your time.
    Mr. Hartmann. I will say in response to that, Senator--I 
keep calling you Your Honor--the process in the courtroom is 
extraordinarily fair. The appellate process is unprecedented.
    Chairman Feinstein. Senator Graham, welcome.
    Senator Graham. Thank you, General. I would agree that 
we're finally getting this right, but I hope you don't ignore 
the fact that we had to pull teeth to get here.
    One reason we hadn't prosecuted anybody is because we had 
some pretty really weird theories that the courts kept knocking 
down and now we're back to a more traditional way of doing 
business, and I want to applaud the fact that we do have 
dedicated men and women who are serving their country well as 
prosecutors, defense attorneys and military jurors.
    But I'm not going to sit here and just ignore 3.5 years of 
trying to sell things that nobody would buy. Well, now we've 
about got it right and I'm willing to make it better, if we 
can.
    Bottom line for me is that the big distinction between us 
and anyone else in the world, Mr. Engel, is that we consider 
the people we're fighting enemy combatants, not common 
criminals. Is that correct?
    Mr. Engel. I think that's right.
    Senator Graham. I don't think there's another jurisdiction 
in the world that takes Al Qaida suspects and tries them under 
the theories of laws on conflict.
    We do. The reason we do is because of September 11, 2001. 
This country has to reconcile itself as to how we want to 
proceed.
    Did the people who attacked us--were they a group of common 
criminals, afforded due process of law under domestic criminal 
law? If that's the case, nothing we do at Guantanamo Bay can 
move forward, you're right, Senator Durbin.
    That is not my theory. My theory is that we've been in an 
undeclared state of war without uniformed combatants who wish 
to kill us all if they could. And when we capture one of them, 
we have the obligation of a great nation to follow the law of 
armed conflict, which is very robust, has a rich history, which 
I have played a small role in. Insignificant as it may be, I am 
proud of it.
    And we've tried to bastardize that and we've tried to 
change it and we've tried to cut corners and we've paid a 
price.
    Now, as I understand military law, that once you capture 
somebody and their status is to be determined, that's a 
military decision, not a federal judge's decision under the 
Geneva Convention. Is that correct, General Hartmann? Either 
one of you.
    Mr. Engel. I think that's exactly right, Senator.
    Senator Graham. Under Article 5 of the Geneva Convention, 
it requires, if there's a question of status, whether or not 
you're an unlawful enemy combatant, a traditional prisoner of 
war or an innocent civilian, a competent tribunal will be 
impaneled to make that decision.
    Is that not what the Geneva Convention says?
    Mr. Engel. That's exactly right.
    Senator Graham: Now, based on that, we have taken 
Regulation 190-1, I believe it is, the Army regulation.
    Mr. Engel. Dash-8.
    Senator Graham. Dash-8, and we've enhanced it. Now, the 
question for people like me is should you provide military 
lawyers at the combat status review tribunals, something I 
wanted to do three years ago.
    I wish I had done it now, because the reason I wish I had 
done is, even though it's unprecedented, in traditional wars, 
we assumed the war would be over when the powers met and 
declared an end to it.
    Do either one of you believe there will be a surrender 
ceremony in your lifetime regarding the war on terror?
    Mr. Hartmann. I'm unable to answer that.
    Senator Graham. I will answer it for you. No. Never in my 
lifetime will some politician declare this war over and let 
everybody at Guantanamo Bay go. That's not going to happen.
    So what we need, I think, gentlemen, is an understanding 
we're at war, but it's a different kind of war. And to Senator 
Sessions' comments, how did we let these people go?
    Well, what we have at Guantanamo Bay is an initial 
decision-making process by the military, ``You're an enemy 
combatant, unlawful enemy combatant.'' And every year, Senator, 
we look at the case anew.
    We look for three things. Is there any new evidence to 
change your status? Do you still have intelligence value that 
would be useful to the war? And, third, are you a threat?
    And a board of officers meets every year and you can have 
new input from the detainee's point of view along those three 
lines, and we have let over 400 people go using that annual 
review board process.
    Unfortunately, you're right, Senator Sessions, 30 have gone 
back to the fight. We are at war.
    Senator Sessions. Thirty have been caught.
    Senator Graham. Thirty have been caught. And who knows what 
the others are doing.
    But having said that, Senator Sessions, I think it is 
incumbent upon us to have a hybrid process, because if we 
don't, the initial decision is a de facto life sentence and I 
am proud of this process and when it comes to your side, 
General Hartmann, if there is an allegation that the evidence 
in question is tainted because it's a result of torture, it is 
my understanding the military judge must exclude any evidence 
that violates the torture statute. Is that correct?
    Mr. Hartmann. Any statement obtained through torture is 
inadmissible.
    Senator Graham. And as to an allegation of coercion, which 
is our enemy is trained to allege, Al Qaida operatives are 
trained into the American legal system. They know exactly what 
to say.
    It's my understanding, at Guantanamo Bay, the military 
judge will have a hearing regarding the allegation of coercion 
and will decide whether or not the evidence is reliable and 
should go to the finder of fact. Is that correct?
    Mr. Hartmann. Reliable, probative, and in the best interest 
of justice.
    Senator Graham. And that judicial decision by that judge 
can be appealed to civilian courts.
    Mr. Hartmann. That's correct. It can be appealed to the 
civilian courts after going through the military process.
    Senator Graham. It is my understanding that every detainee 
at Guantanamo Bay, Senator Durbin, will have their day in 
federal court, that every decision by the military will be 
reviewed by the D.C. Circuit Court of Appeals and that is 
ongoing right now.
    The difference I have with you, my friend, is I don't want 
to turn over to the federal judges in this country the ability 
to determine the enemy force in the first instance, because 
they're not trained to do so.
    That is a military decision. But I do not mind any judge in 
any appellate court in this land looking over the shoulder of 
these gentlemen here to make sure they did it right.
    I think that is the sweet spot for this country.
    Now, when it comes to whether or not there's political 
influence on these trials, Senator Feinstein, I want to get to 
the bottom of this. Now, I know Mo Davis and I know you. I've 
been an Air Force JAG for 25 years. I respect you both and I 
want to find out the best I can what's going on down there.
    But I would like to just tell my good friend, Senator 
Durbin, if we close Guantanamo Bay, and maybe we should, where 
do we send them and what do we do with them? And the only thing 
I ask of my colleagues is that as we try to correct the process 
and improve it, and I think there's ways that we can go forward 
to make it better, please don't lose sight that the people that 
we're dealing with, the truly guilty, are warriors, not 
domestic common criminals.
    And those who have been caught up in this net of trying to 
find out who the enemy is, some of them are probably either on 
the fringes or just in the wrong place at the wrong time, and 
that's been the nature of war as long as man has been engaged 
in war.
    What I'm looking for is not the outlier case where they 
went back to killing Americans, because if you do that, nobody 
ever gets released, or the idea that they're all victims and 
just at the wrong place at the wrong time. All we can hope to 
find as a nation is a process that will be flawed, but still 
adheres to our values, and I think we're very close to that 
process being correct in terms of us being at war.
    Now, one of the issues facing this country is water 
boarding. General Hartmann, do you believe water boarding 
violates the Geneva Convention?
    Mr. Hartmann. I was asked that earlier, Senator, and with 
regard to this entire issue, we start with the following 
premise: torture is illegal in the United States.
    Senator Graham. We have a downed airman in Iran. We get a 
report that the Iranian government is involved in the exercise 
of water boarding that downed airman on the theory they want to 
know when the next military operation may occur.
    What would be the response of--what should be the response 
of the uniformed legal community regarding the activity of the 
Iranian government?
    Mr. Hartmann. I'm not equipped to answer that question, 
Senator.
    Senator Graham. You are.
    Mr. Hartmann. I will tell you the answer to the question 
that you asked in the beginning, Senator, and that is--
    Senator Graham. You mean you're not equipped to give a 
legal opinion as to whether or not Iranian military water 
boarding, secret security agents water boarding downed airmen 
is a violation of the Geneva Convention.
    Mr. Hartmann. I am not prepared to answer that question, 
Senator. I am prepared--
    Senator Graham. Thank you. I have no further questions.
    Chairman Feinstein. Thank you very much, Senator. That 
completes this round.
    I'd like to just quickly make a brief comment. I think 
Senator Sessions and Senator Graham have pointed out some 
interesting things, which indicate a real dichotomy in this 
situation that all of us have to deal with.
    The first is the undeclared state of war, which is this 
situation. Senator Sessions pointed out that there is no 
requirement to try detainees during the course of hostilities 
of a declared war, that is true.
    The president himself has said this could go on for a 
generation and if you look at the history of terrorism in the 
world, it is likely to go on. Ergo, what happens to people who 
are not charged, who remain in custody, for what period of 
time?
    I'm going to ask, and will send you in writing, both of 
you, a question and that question will be: what is the 
government's plan to deal with the indefinite detention, 
without charge, of detainees for what may be decades?
    And I think we have to come to grips with that question. I 
think there has to be an answer and if we need to legislate, we 
should.
    With respect to Guantanamo and its closure, we've just done 
an inventory of super max beds and if there are 305 detainees 
currently, then we can add up those super max beds and come to 
326 available beds today in the United States between maximum 
security, military brigs, and maximum security federal prisons.
    So I think we have to come to grips with both of those and 
whether Guantanamo, left the way it is over the next half-
decade, decade, really redounds to the credibility of this 
nation or whether it destroys that credibility.
    And, here, we have different opinions. There are those that 
believe it does and there are those of us that believe it does 
not. And I think that's a real question.
    So we will put this in writing to both of you and we will 
follow up so we will not forget. So please answer the 
questions.
    Thank you very much. We appreciate that.
    Mr. Engel. Thank you.
    Chairman Feinstein. And now the second panel, Professor 
Mark Denbeaux. Professor Denbeaux serves as professor of law at 
Seton Hall Law School in New York, New Jersey. Through a law 
school project, he has reviewed and categorized most publicly 
released DOD data. Prior to teaching, he was the senior 
attorney in charge of litigation for the New York City legal 
services program.
    The second witness will be retired United States Navy Rear 
Admiral John Hutson. Admiral Hutson currently serves as the 
president and dean of Franklin Pierce Law Center in Concord, 
New Hampshire. From 1997 to 2000, he served as the Navy's judge 
advocate general. As a judge advocate general, he provided over 
the JAG corps and advised the secretary of Navy, the commandant 
of the Marines, and the senior leadership of the Navy in all 
legal matters related to military justice.
    And our final witness of the morning is Debra Burlingame. 
She is a member of the board of directors of the National 9/11 
Memorial Foundation and she is the sister of Charles ``Chic'' 
Burlingame, III, the pilot of the hijacked American Airlines 
Flight 77, which crashed into the Pentagon on September 11.
    I have had the privilege of meeting with Debra Burlingame 
and her family and it's very good to see you again. So I 
welcome you.
    And we will begin with Professor Denbeaux.

 STATEMENT OF PROFESSOR MARK DENBEAUX, PROFESSOR OF LAW, SETON 
                        HALL LAW SCHOOL

    Mr. Denbeaux. Thank you very much. I appreciate the 
opportunity to come here. I'm here, in large part, because of a 
fortuitous circumstance involving my son, Joshua--
    Chairman Feinstein. Could you pull the mike closer to you?
    Mr. Denbeaux. --who asked me about four years ago what I 
thought of Guantanamo and I said, ``Not much.'' And then he 
said, ``Do you think they have the right people there?'' And I 
said, ``Probably.'' And then he said, ``What do you think 
grandpa would think?''
    And my father was a combat chaplain with General Patton. 
And he said, ``Would grandpa believe that the 3rd Army could've 
figured out who were the good German civilians from the bad 
ones?'' And I said, ``My father didn't think the 3rd Army would 
have a clue about doing that.''
    And then I said something, I said, ``But he wouldn't cared, 
because he didn't believe there were any good German 
civilians.'' And my son said, ``Isn't that the point,'' and 
that got me interested in looking into why people are detained 
in Guantanamo and who's there.
    And while I believe process is crucially important, I 
believe truth is equally important and I think misinformation 
is very pernicious in this particular debate.
    What I did in trying to resolve who was there and what it 
was was to become involved with a small group of incredibly 
diverse Seton Hall law students, some of whom have served tours 
of duty in Afghanistan and Iraq. Others have come from all 
parts of the country.
    And we started looking at the Department of Defense data, 
and our position has been very simple. What the Department of 
Defense says we take as true and our investigation was to see 
what the Department of Defense said, and we've really come up 
with a fairly stark picture that I think most people have 
accepted, in at least some parts.
    I mean, the Department of Defense data, for instance, 
concedes that it only charges 45 percent of those people in 
Guantanamo with ever having committed any hostile act against 
U.S. or coalition forces.
    Their statement is that eight percent of the people in 
Guantanamo are fighters for Al Qaida or the Taliban. But 
they've also made some other points and one of the other points 
they've made is that these people were captured on the 
battlefield, and, in fact, many senior government officials 
have said they were captured on the battlefield shooting at 
American forces.
    Well, my students were stunned, when we looked at the data, 
to find out that the entire array of Defense Department data 
identified 21 detainees as having ever been on a battlefield. 
And my students were even more shocked to discover that only 24 
of those detained in Guantanamo, at least as of the summer of 
2004, were captured by U.S. forces.
    And they were even more surprised to find out that only one 
of the detainees in Guantanamo was captured by U.S. forces on a 
battlefield, and I'd like to point out that that person is 
Khadr and he's being prosecuted under the military commission.
    So my understanding is that every single person captured on 
a battlefield shooting at Americans has had a hearing or will 
have a hearing in front of the military commission.
    My understanding is that the best thing that could happen 
to most Guantanamo people is to have a military commission and 
lose. After all, Mr. Hicks, who was supposed to be one of the 
worst of the worst, and supposedly, if Senator Sessions is 
right, they had the best case they had against him because they 
tried him first, that man was given effectively a nine-month 
sentence, sent home to Australia, and will basically be there 
with his family on New Year's.
    If he had won his hearing before the military commission, 
he would have been held as an enemy detainee and returned to 
Guantanamo indefinitely. The people in Guantanamo who are not 
even accused of any war crimes, who aren't being identified as 
people for whom a military commission are appropriate, are much 
worse off than Mr. Hicks.
    But I want to add a few other points that my students 
raised. My students pointed out that if American's didn't 
capture these people, who did? And the answer is that the 
Americans captured 24 people and of the 517 files available to 
review, all the rest were turned over by either third parties, 
Pakistani authorities, Afghan authorities, tribal chiefs, 
warlords, and all of our evidence for these people begins with 
the information provided from those sources in exchange for 
bounties.
    Now, one of the things that I wanted to show this panel, 
because I think it goes to the entire weight and truth, is the 
release in which they simply drop this bounty out and it says 
``get wealth and power beyond your dreams, help the anti-
Taliban forces, and rid Afghanistan of murderers and 
terrorists,'' and nobody objects to that.
    But if you look at the bottom, it says, ``You can receive 
millions of dollars for''--
    Chairman Feinstein. Would you hold that up for a minute, 
please?
    Mr. Denbeaux. Yes.
    Chairman Feinstein. Thank you. Thank you.
    Mr. Denbeaux. ``This is enough money to take care of your 
family, your village, pay for the rest of your life, pay for 
livestock and doctors, school books and housing for all your 
people.''
    To the best of our knowledge, only four percent of the 
people who are in Guantanamo could have not been turned over 
for bounties. I'm not saying everybody was. We can't tell. 
DOD's data doesn't say.
    But bounties were paid that were enough to take care of 
people's whole villages for the rest of their life for people 
who are detained in Guantanamo.
    Now, that deals with the first proposition, and I am very 
distressed by the fact that so many people keep claiming they 
were captured on the battlefield shooting at American people.
    It's simply not true, according to what the Department of 
Defense alleges for each one of these people.
    But there's another even more pernicious piece of 
information that is coming out now and it has penetrated the 
halls of Congress, as I've heard here today, and that is the 
claim that detainees, after release, have returned to the 
battlefield.
    I have a couple points I would like to make about that. 
First of all, if true, that would have a terribly important 
effect on the CSRT process, because it would be very hard to 
release people if you knew that was to happen. Judges are 
tempted by that fear and everyone else.
    But a couple of crucial facts. One is the Department of 
Defense, after being pushed from a variety of sources, produced 
a report and the report doesn't say what Senator Sessions says 
it did. The report says up to 30 people have returned to the 
fight and to get to that, they can't identify 15 of them and of 
the remaining 15, three of them are called the Tipton Three and 
the evidence they returned to the fight was that they made a 
documentary in England called ``The Road to Guantanamo'' after 
they were released.
    Five of them are listed as Uighurs. Now, the Uighurs are 
the Chinese nationalists who, in fact, left China, partly 
because of religious oppression, and we've released them and 
they're being held in Albania in a refugee camp. The other 
seven that they've identified as having been released from 
Guantanamo and returned to the fight, two of them were never in 
Guantanamo, which is distressing.
    And in addition, the remaining five, two of them apparently 
are still alive. They may have returned to the battlefield, but 
they're still alive, and that leaves three. And the Defense 
Department has said the number is 30. Senator Sessions has said 
the number is 30. They keep repeating it.
    And it's a very upsetting thing to learn that our own 
government, from the Department of Defense, is characterizing 
the released detainees in that fashion.
    If I could, I'd like to show one other chart. This chart--
and, by the way, Senator--Joshua, can you lift it higher? This 
chart is in our report, which I hope will be included with my 
testimony today.
    Chairman Feinstein. It is included.
    Mr. Denbeaux. Okay. Thank you. This chart actually shows 
two things. The blue line is the line of statements made by 
Department of Defense officials about the number of detainees 
killed or captured on the battlefield. The red line is the 
number of detainees killed or captured on the battlefield that 
the Department of Defense data, as of July 2007, identify.
    And if you'll notice, as late as April of this year, the 
deputy general counsel to the Defense Department came before 
the Armed Services Committee and stated that up to 30 people 
have been killed or captured on the battlefield.
    That statement is simply refuted by everything that DOD's 
data says. It's simply not true and it's a very upsetting 
thing.
    Now, I know my time is up, but if I could just briefly 
comment on the effect of this on the CSRT process.
    Senator Kyl. (OFF-MIKE)
    Chairman Feinstein. When you were chairman, you did it your 
way. In the meantime, the answer is, yes, you may.
    Mr. Denbeaux. The CSRT process is a process that is 
administered by the military, not under the military judges, 
not under the Code of Military Justice.
    What we have in the CSRT process are the senior government 
officials saying these are the worst of the worst, they were 
captured on the battlefield shooting at American people.
    I think when you look at the record that these people had 
to review, the record that they had to review made clear that 
it wasn't true. But when senior officials tell you that 
everyone there was captured on the battlefield shooting at 
American troops and that's false, there's a message there. And 
when they say the same thing about their return to the 
battlefield, I think the same message is there.
    I would love to stop that myth about return to the 
battlefield. It's a very dangerous and damaging point.
    Thank you.
    Chairman Feinstein. Thank you, Professor Denbeaux.
    Admiral Hutson.

   STATEMENT OF JOHN D. HUTSON, DEAN AND PRESIDENT, FRANKLIN 
                       PIERCE LAW CENTER

    Mr. Hutson. Thank you, Madam Chair. Thank you for holding 
this hearing. I have a written statement that I, too, would 
like to have made part of the record.
    Chairman Feinstein. So ordered.
    Mr. Hutson. I feel like I should sede some of my time to 
Professor Denbeaux and I will try to be brief to get us back on 
track.
    When I think about what I was going to say here, a phrase I 
think I learned from my dad was that you could accomplish 
something if the future of the free world depended on it. We 
could rake all the leaves in the front yard today if the future 
of the free world depended on it.
    That was sort of the thought that came to my mind when I 
was thinking about closing Guantanamo Bay. The president has 
called for it, the secretary of defense has called for it. Lots 
of people have called for that to happen and we just can't seem 
to do it, but we could do it if the future of the free world 
depended on it.
    And then it occurred to me that, indeed, it does depend on 
it in a very large way. How the United States, the leader of 
the free world for generations, conducts its business, even its 
war fighting business, determines the future of the free world 
in a very real way.
    And I think that Guantanamo has become an iconic example of 
misadventure and it is absolutely incumbent upon the United 
States to close it.
    I have a hard time believing that the generation that won 
World War II, the so-called greatest generation, couldn't close 
Guantanamo and figure out what to do with 305 people if the 
future of the free world depended on it.
    There are lots of things and, Senator, you demonstrated the 
ease of doing it with the beds in maximum security. We can 
close Guantanamo and for us to pretend that we can't is just 
pretending.
    The question isn't so much closing Guantanamo and whether 
or not we can do it. The question becomes what to do with those 
people who are in Guantanamo.
    I was an early and ardent supporter for a long time, too 
long, in retrospect, of military commissions. I was attracted 
to them from a historical point of view. I thought that having 
military people involved was a good idea. I thought that the 
security aspect of it was a good idea.
    But as has been pointed out on other occasions here today, 
we've tried exactly one person who pled guilty and is now back 
in Australia, somewhat ironically, perhaps, a former kangaroo 
skinner from Australia, not the worst of the worst, not 
Himmler, not Gering. The comparisons to Nuremberg, I think, are 
inapt.
    We need to make a change and I think that time has long 
since passed. As recently as yesterday, in Manhattan, the 
United States court of appeals was dealing with terrorists 
quite well, no big problems.
    We have the greatest judicial system on the face of the 
earth in the U.S. district courts and rather than using it and 
showcasing what the United States can do. We're hiding under 
the leaky bushel of the military commissions, which, in all 
these years, has tried one person.
    We ought to demonstrate to the world what the United States 
stands for, what kind of justice we can afford. These people, 
the worst of the worst, if they are, we need to prosecute them. 
We need to get convictions. We need to incarcerate them, if 
they should be incarcerated, if there's evidence against them, 
execute the worst of the worst.
    I am not for mollycoddling terrorists, very much to the 
contrary. I prefer to prosecute them. But we simply seem to be 
incapable of doing it.
    I think that General Hartmann's phrase was telling when he 
said that they have been guided--using the guidance of the 
Supreme Court, I think is an interesting turn of a phrase, the 
Supreme Court keeps knocking down what we do and so we are, in 
some ways, responding to the guidance of the Supreme Court.
    General Hartmann seemed like a nice guy, but I thought his 
testimony is a perfect example of the problems we've got. He 
was the personification of the issues with the military 
commissions.
    You cannot listen to his testimony and come away with a 
comfortable feeling about what the United States is doing with 
the military commissions, that Hamdan wears a tie and the Navy 
judge has a black robe. It's all very interesting, but the 
reality of it is that it just ain't working and we need to do 
something that starts to work and that starts with closing 
Guantanamo and getting these cases either into U.S. district 
court or into the military court-martial system, which is 
another fine alternative.
    The court-martials could do this. There is no doubt in my 
Navy mind that Senator Graham and I couldn't sit down and, by 
the close of business this afternoon, have a system that--the 
United States court-martial system, the Uniform Code of 
Military Justice, the Manual for Courts-Martial, couldn't adapt 
and adopt and start prosecuting people successfully.
    And by successfully, I mean prosecuting them in such a way 
that we can be proud of. But we simply can't reverse engineer 
the process. We can't start with a conviction and then reverse 
engineer it to ensure that we have a conviction.
    We have to be willing to have an acquittal. If we're not 
willing to have an acquittal, if we are so intent on having a 
conviction, the system isn't going to work. It's not going to 
stand up to scrutiny.
    It's only a human right if it applies to all human beings. 
It's only a rule of law if it applies all the time.
    I look forward to your questions. Thank you very much.
    Chairman Feinstein. Thank you very much, Admiral.
    Ms. Debra Burlingame.

     STATEMENT OF DEBRA BURLINGAME, MEMBER OF THE BOARD OF 
      DIRECTORS, NATIONAL SEPTEMBER 11 MEMORIAL FOUNDATION

    Ms. Burlingame. Thank you for the opportunity to be here 
today, Chairman Feinstein. It's a pleasure to be here and to be 
able to thank you personally for all you did for my family six 
years ago.
    As we sit here today, there are 192,000 men and women in 
uniform in some of the most dangerous places in the world. They 
are still taking fire. They are still taking casualties. They 
are still risking their lives to collect the vital intelligence 
that we need to stop the very evil and bad people in this world 
from doing what they want to do, very similar to what they did 
six years ago.
    They are determined not just to kill Americans and to kill 
U.S. military and our allies, they really do want to destroy 
this country and if you don't believe that, just roll back, 
dial back the video and watch what happened in lower Manhattan, 
where you had an estimated $2 trillion of damage which that 
attack is estimiated to have cost, and that isn't even touching 
on the lives lost in 102 minutes.
    I would like to say, before I get into the heart of my 
testimony, that kangaroo skinners can be very dangerous when 
they are toting RPGs launchers on their shoulders. We have 
pictures of David Hicks as a jihadi, a deadly guy.
    I, frankly, don't understand why it is hard to understand 
that these so-called lowly foot soldiers can be quite lethal. I 
think in the summer of 2000, if you had been, Mr. Hutson, in Al 
Farouq training camp and you had encountered 19 men who, up 
unto that point, had committed no crimes, you might have 
described one as an engineering student, another would be a 
rather hapless young man from Saudi Arabia who dreamed of 
flying airplanes, who was having a hard time getting a pilot's 
license and who might have claimed to be doing charity work in 
Afghanistan.
    If you had rounded those guys up, they would have seemed 
utterly harmless, even less threatening than our kangaroo 
skinner, David Hicks. But look at what those men did. Look at 
what they did. When they were in that camp, they weren't firing 
at Americans. They weren't firing at anybody. But they were 
slaughtering camel and sheep with short knives in preparation 
for storming the cockpits of four airplanes.
    Now, I would like to say to you, Senator Durbin, again, 
before I take away my own time, the battlefields are everywhere 
and I think to dismiss that is to totally misapprehend the kind 
of danger we face.
    The battlefields are in schools in Beslan. They're in 
nightclubs in Bali. They're on commuter trains in Madrid. They 
are in condos in Riyadh. They are in hotel wedding receptions 
in Amman. And they are in the sky at 35,000 feet.
    So I think that to be stuck on the old paradigm of war and 
even the old paradigm of jurisprudence for dealing with this 
incredibly difficult enemy I think is very, very dangerous.
    And I would like to say to you, Senator Sessions, I, too, 
would like to get to the bottom of why some of these people 
have been let go.
    And now I will get to my testimony and tell you what I 
think is going on here.
    Senator Cardin wanted to know or made an observation that 
so many mistakes have been made and how did we get down this 
road. In point of fact, the Center for Constitutional Rights 
filed their first case on behalf of the detainees in February 
of 2002. The camp was only one month old. People knew very 
little about it.
    Abu Ghraib wouldn't happen for another two years. There 
were no allegations of abuse, torture, inhumane treatment. CCR 
was determined from the very beginning, when none of the so-
called Guantanamo Bay bar wanted anything to do with these 
cases, they were determined to get these guys full habeas 
corpus rights or get them released.
    But there was one law firm that joined with the Center for 
Constitutional Rights. There was one law firm, it was Sherman 
and Sterling, and they joined that lawsuit at the behest of 
their oil industry client, the government of Kuwait. They were 
paid a handsome fee and they have been paid handsome fees for 
the entire duration of their representation not only as 
attorneys, but as lobbyists.
    Now, they deny that they were lobbying for the government 
of Kuwait, but in point of fact, and I have all the records 
here and, Chairman Feinstein, I would like all of the financial 
records of the lobbying fees paid to these attorneys to be made 
part of the record.
    These are reportings under the protocol of the Foreign 
Agents Reporting Act (FARA). This is the FARA reporting 
document filed by Sherman and Sterling, as well as their filing 
under the LDA, Lobbying Disclosure Act.
    They have earned, from the government of Kuwait, over $1 
million just in lobbying fees alone on behalf of 12 Kuwaiti 
detainees.
    Chairman Feinstein. We will add that to the record.
    Ms. Burlingame. Yes. They are not alone. Arnold and Porter, 
I've traced, as of June of 2006, reported $792,000 in lobbying 
fees under the Foreign Agents Act and the Lobbying Disclosure 
Act.
    Sherman and Sterling was initially being paid, they said, 
by the families of these 12 Kuwaitis. I found reports where the 
government of Kuwait said, ``No, we are footing all the 
bills.'' Sherman and Sterling was very coy about their fees. 
They said that they were donating everything to 9/11 related 
charities. I don't know why they would say they were donating 
it to 9/11 related charities. They insist, that what's 
happening at Guantanamo has nothing to do with September 11.
    I think it's very, very disturbing to think that these are 
the same attorneys--and, by the way, it's very important for 
you to understand that Sherman and Sterling, I would say, is 
probably the most influential law firm of all of the so-called 
Guantanamo lawyers, because they were in the case from early 
2002.
    They were obviously very well funded and they were in the 
Guantanamo cases a full two years before most of all of the 
other blue chip firms that you've heard about were willing to 
come into the cases.
    It wasn't until the Supreme Court accepted cert in Rasul 
that--and the politics of all of this had begun to change that 
all these other firms came in.
    But more disturbing than all of that--and if I can digress 
one moment. The government of Kuwait is considered--
    Chairman Feinstein. If you could summarize. Your time is 
up.
    Ms. Burlingame. Well, the government of Kuwait is 
considered an ally, but they've got a big Islamist problem in 
that country. Sixty-five percent of their population is under 
30, 40 percent of them are under 16. There is a huge Al Qaida 
presence there and they're tamping it down.
    Levick Strategic Communications is the PR firm that was 
hired by Sherman and Sterling, and I would also like this 
document entered into the record.
    Chairman Feinstein. So ordered.
    Ms. Burlingame. It is called ``PR Perspective: The Long-
Term Struggle.'' This is the PR firm that was hired to make the 
detainee case. They were hired very early on. They are called 
Levick Strategic Communications and under FARA reporting 
protocols they indicate that the government of Kuwait has paid 
them $846,000 in fees. The firm's president, Richard Levick, 
has laid out the entire PR strategy, and it is devastating.
    This is why, when you move these detainees out of 
Guantanamo, these men will follow. When you move this into the 
civil court system, you will now be inviting criminal defense 
attorneys who are zealously defending their clients, perhaps 
for millions of dollars and maybe it won't be coming from 
Kuwait, maybe it will be coming through corporate fronts, 
financed by terrorists and terrorist organizations, to get 
these guys out.
    And I've run out of time.
    Chairman Feinstein. Thank you very much. And we will look 
at that material.
    To begin, if I could, please, ask you to be restrained.
    Admiral Hutson, I'd like to ask you the same question that 
my distinguished colleague, Senator Graham, asked General 
Hartmann.
    What would you say if a member of the United States 
military was water boarded overseas?
    Mr. Hutson. I would say that, unequivocally, it's torture. 
It violates the laws of war. It violates human rights. There's 
no question about it.
    And I testified some time ago at the Senate Armed Services 
Committee, along with all the service JAGS, who all agreed that 
water boarding was torture.
    So there's no question about that.
    Chairman Feinstein. Professor Denbeaux, you were criticized 
the CSRT process. Detainees can appeal to CSRT and to the D.C. 
District Court of Appeals, although that review is limited to 
procedural challenges.
    The solicitor general (OFF-MIKE) broadly or even exercise 
the authority in order for detainees to be freed.
    If that occurred, what would the legal process afforded 
to--would then the legal process afforded to Guantanamo 
detainees, in your view, be sufficient? Why or why not?
    Mr. Denbeaux. As I understand your question, it was if the 
CSRTs could be appealed to the court of appeals and they ruled 
on it, would that be sufficient. Am I correct?
    Chairman Feinstein. That is correct.
    Mr. Denbeaux. The first problem is everything in life, and 
if you'll forgive me, Your Honor (sic), garbage in is garbage 
out. My problem with the CSRTs has been simply this. The 
process has been tainted from the top to the bottom.
    The evidence that has been presented by them has been 
inadequate. We know very well that one of the terrible prices 
some military people have paid for this is their careers have 
been damaged because they've attempted to come forward and show 
that the CSRT substantive results shouldn't have led to the 
conclusion they did.
    We can't tell how many people shouldn't have to appeal to 
the court of appeals, because they were, in fact, initially 
found not to be enemy combatants.
    So we start with the proposition that a very large number 
of these people, perhaps a majority, should not ever have had 
the opportunity to appeal.
    Now, any system that says innocent and guilty must be 
treated alike and innocent and guilty are supposed to appeal 
equally as if they're still trying to prove they're innocent 
makes absolutely no sense.
    By way of digression, I think this is a serious problem for 
many military careers. I yield to nobody in terms of my support 
for the patriotic efforts not only of those soldiers and 
sailors in Guantanamo, but the career officers who have stepped 
forward and, I think, paid a significant price.
    But included in my view of patriots happens to be the 
patriotism of my hardworking students who deserve recognition 
and, most importantly, I feel that the utmost patriots I've 
come across here, no less than the soldiers and certainly no 
more, are the members of the bar who have chosen to step 
forward.
    I think they've been heroic. I deeply regret it took me 
three years to get here, because I think it's a really serious 
issue that we all have to address.
    Chairman Feinstein. If I may, during oral arguments last 
week before the United States Supreme Court, Justice Breyer 
suggested that Congress might consider enacting a new 
preventive detention law that could provide a basis for holding 
dangerous detainees indefinitely without criminal charges.
    Do you believe that preventive detention is a viable option 
in this particular context? Why or why not and how would it 
work?
    Mr. Denbeaux. I had heard that and I thought about that a 
little bit. One of my problems turns out to be when we always 
have a really hard problem and we don't like the two choices we 
have, do nothing or, in this case, give them habeas corpus.
    We all struggle to find three, four and five other gimmicks 
to get around the problem. I think preventive detention does 
work in the United States in certain cases.
    But the first question is what are they being detained for 
and one of the big problems that I faced in all of this is that 
people in Guantanamo aren't being charged with being 
terrorists. The ones that aren't going to get military 
commissions aren't being charged with having committed war 
crimes or crimes.
    So we have a whole lot of people in Guantanamo for whom the 
idea is let's have a process to detain dangerous people.
    I think dangerous people are people under the military 
commissions. I think that's what the military commissions are 
for, if they're for anything. They can't just be there to 
release David Hicks. They have to be doing something.
    But I don't think, when you hold people without charges for 
six years, that you then say now we want to come up with a new 
process other than habeas corpus in order to decide what would 
happen.
    So I don't see how that solves any of the problems we face 
and I think it's a distraction to the core issue, which is who 
should be detained and who shouldn't, and the Article 3 judges 
should make that decision.
    Chairman Feinstein. Thank you very much.
    Senator Sessions.
    Senator Sessions. Thank you.
    Ms. Burlingame, I know your brother was the captain of the 
plane that crashed into the Pentagon and appreciate your 
leadership in this effort over a number of years.
    Are you suggesting that these fees--are you suggesting that 
we, as a nation, ought to be aware of the fact that forces can 
be involved in the defense of persons that are captured that do 
not have the interest of the United States involved, at heart, 
and that our courts can be used really as a vehicle to promote 
an agenda or to disrupt our ability to be successful in 
stopping further attacks on America?
    Ms. Burlingame. That's exactly what I'm suggesting and 
that's why I hope that you will read this document, which 
spells out the entire strategy on releasing these 12 detainees 
that the government of Kuwait wanted out.
    Senator Sessions. The document, fundamentally, what does it 
say?
    Ms. Burlingame. Well, basically, what it says is we know--
    Senator Sessions. This is a public relations campaign 
document that indicates a lot of money that has been paid to a 
firm to develop a plan of public relations. And what does the 
plan say?
    Ms. Burlingame. I'm sure that Mr. Levick is not happy that 
this is going to be made public. It was published on a Website 
that only PR people read and he was very proud of his campaign, 
because it's gone very well.
    But what he describes is a model PR campaign. He said, 
``How a media campaign helped turn the Guantanamo tide,'' how a 
model PR campaign could be used in an unpopular cause to 
reverse a tidal wave of adverse opinion.
    Now, remember, for him and the people he's working for, the 
detainees, ultimately, adverse opinion is, first of all, that 
America is a force for good, that Guantanamo should exist, and 
these people are being properly adjudicated or detained, 
preventive detention, because they're dangerous people.
    It was the purpose of this campaign to turn that around and 
he says here that their goal was to give these prisoners legal 
protections provided U.S. citizens. They wanted to give them 
full habeas corpus rights.
    They were brought in right away by the law firm. He says 
here, ``We'd advise a two-tier PR strategy.'' One was to put a 
human face on the detainees and the subtext of that was, 
``United States is resorting to nefarious and undemocratic 
tactics worthy of the terrorists themselves.''
    This is the PR plan. This is a firm right here in 
Washington, D.C. He says, ``This will diminish the country's 
image and endanger the lives of Americans abroad,'' this is 
what Mr. Hutson here has said.
    Their ``ace in the hole'' in this plan, according to the PR 
firm, was the United States Supreme Court. He says, ``In the 
beginning, however, the high court judgment was our main 
weapon. The case was so unpopular that we had to recast the 
dialogue to, in a sense, make the Supreme Court our de facto 
client.''
    And to be sure, the Sherman team, the lawyers led by senior 
partner Thomas Wilner, recognized that a top notch legal effort 
would not be sufficient. The cases would have to be pled in the 
court of public opinion as surely as they would have to be pled 
in the court of law, and then he goes on to describe how they 
did it.
    He said that Sherman's lead lawyer is a ``media savvy, 
media experienced lawyer, who never needed the explanations for 
why we were doing what we were going to do.''
    I mean, I could go on. It's quite astonishing. And the 
reason why I think that this committee should know about it and 
the congress should know about it is if we're going to bring 
these cases into the civilian federal courts and try them as 
criminal cases, if they're doing this at Guantanamo, they're 
going to be far more unfettered in a civil court system.
    And, remember, one of the reasons that--I don't believe 
President Bush is saying that he wants to close Guantanamo 
because he thinks it's not operating. It's because he wishes he 
didn't have the problem of terrorists to begin with.
    But the fact of the matter is closing Guantanamo isn't 
going to solve the state of bad publicity that a lot of people 
feel is the reason we have to close it.
    The folks sitting behind you in these crazy outfits are 
going to follow wherever those detainees go. I hope we don't 
bring them to the United States, but we know that the Center 
for Constitutional Rights has already filed for habeas relief 
on behalf of 25 ``John Doe'' detainees in Bagram.
    They will not relent and this PR war will not relent and if 
this gets to the civil courts, it will explode, because lawyers 
in the civil courts do dangerous things when they become 
committed to the belief that what's happening in the government 
against these ``defenseless, innocent'' people is wrong.
    You have Lynne Stewart, who aided and abetted the so-called 
``blind sheikh.'' Then you have the embassy bombing case, where 
defense lawyers were given a list of un-indicted co-
conspirators, 200 jihadis, in discovery. That became known by 
Osama Bin Laden within 24 hours of the lawyers finding it out.
    That's my fear.
    Senator Sessions. Well, I think you are correct that there 
are increased dangers of public trials in America for serious 
cases involving information and intelligence that could hurt 
our country.
    And I agree with you, also, that the issues that are raised 
in Guantanamo are not going to go away if the cases are brought 
to the United States.
    Someone has quoted former Secretary of State Colin Powell 
as saying he criticized military commissions. I'm not exactly 
sure what his quote was. I would just say what do we do with 
them.
    As Senator Graham has said, we've wrestled with this for 
some time and the military has come forward with an 
unprecedented way to review the people that are being held on 
an annual basis, if not more often, and to try to release 
anybody that they can release.
    It's not the goal of our military to see how many people we 
can hold in Guantanamo. It's obvious that their goal is to try 
to release everyone they can release safely, but it's also 
obvious they've made some mistakes in some that have been 
released.
    Madam Chairman, I would offer, for the record, a response 
to the Seton Hall study that's been done by Colonel Joseph 
Felter and Dr. Jared Brockman, and it just would say a couple 
of things.
    Professor Denbeaux's study is based only on the information 
publicly available to him when he did it and even then, he was 
not very accurate, because this study at least found that 73 
percent of the unclassified summaries meet the CTC's highest 
threshold of a demonstrated threat as an enemy combatant.
    That's their analysis and I guess we can have--
    Chairman Feinstein. That will be added to the record.
    Senator Sessions. --different opinions, but I would offer 
that for the record.
    Chairman Feinstein. Thank you. Are you--
    Senator Sessions. I'm through.
    Chairman Feinstein. Thank you very much, Senator.
    Senator Durbin.
    Senator Durbin. Thank you, Chairman Feinstein.
    Let me say at the outset, in relation to Ms. Burlingame's 
testimony, two of my friends in Chicago, Tom Sullivan, former 
U.S. attorney for Chicago, northern district of Illinois, and 
Jeffrey Coleman, a man who's been in practice there many years, 
are, in fact, pro bono lawyers for Guantanamo detainees, and I 
have spoken to them several times.
    They have published their findings. They don't--to my 
knowledge, they have no financial motive. In fact, they are 
absorbing the expense of flying back and forth because they 
believe that's part of the responsibility of a professional.
    And I would just say that the characterization of those who 
are dong this as doing it for financial gain is your right to 
make and you've made it and you've put some items in the record 
as part of this hearing.
    And, Madam Chairman, I would like to ask you if you-- I 
don't know this law firm of Sherman and Sterling of New York, 
but I would at least like to have our staff offer them an 
opportunity to put in the record their response to what Ms. 
Burlingame has now made part of our official record, her 
accusations against this firm and some of the people in it. I 
think that's only fair.
    I know that they've--this is many months back, but I know 
that there was an ongoing dialogue in the ``Wall Street Journal 
Letters to the Editor'' over this and at least allow this firm 
to tell their side of the story and put that in the record.
    Chairman Feinstein. I think that's a good point and we will 
send them a letter and offer them that opportunity.
    Senator Durbin. Thank you very much.
    I might also say I'm sorry that Senator Sessions stepped 
out, because he asked an important question that I want to 
answer, and it was about Secretary of State Colin Powell, who I 
don't believe is a pawn of any public relations firm in his 
comments, and this is what he said in June of this year. ``If 
it were up to me, I would close Guantanamo, not tomorrow, but 
this afternoon.''
    He added, ``I would not let any of those people go. I would 
simply move them to the United States and put them in our 
federal legal system'' and that he would, ``get rid of 
Guantanamo and the military commission system and use 
established procedures in federal law.''
    So to suggest that the critics of Guantanamo were somehow 
caught up in a big public relations campaign here, I have more 
respect for General Powell. We've disagreed, but, certainly, as 
former chairman of the Joint Chiefs of Staff, his service to 
our country, being our secretary of state, I think we ought to 
acknowledge that people of goodwill have reached an opposite 
conclusion that you've reached.
    Ms. Burlingame. Well, Senator, I'm not saying that anyone 
who wants to shut down Guantanamo isn't of goodwill. What I'm 
saying is that there are those who understand that these are 
very dangerous people, but that the reputation of Guantanamo 
because of these charges about what's going on down there, that 
fly in the face of what's actually happening, has so tainted 
the reputation of the process down there that it can't be 
rehabilitated.
    Senator Durbin. I agree with that completely and I think 
the record speaks for itself.
    Ms. Burlingame. And I think it's very--I don't think that 
necessarily means that Colin Powell is conceding that 
Guantanamo is everything that its critics are saying it is. 
He's acknowledging that it's become a PR nightmare for this 
country.
    Senator Durbin. I am not going to go into the business of 
trying to figure out what's on his mind, but his conclusion is 
very clear.
    Ms. Burlingame. Well, closing it doesn't--
    Senator Durbin. If I could ask--
    Ms. Burlingame. --tell you--
    Senator Durbin. Professor Denbeaux, let me ask you and 
Admiral Hutson, if I might.
    You heard the testimony, the response of General Hartmann 
to the question offered by Senator Graham about a downed United 
States airman being subjected to water boarding as a torture--
or water boarding in interrogation and whether that was 
torture, and he was reluctant to reach that conclusion, in 
fact, would not on the record.
    We went through that a few weeks ago with the nominee for 
attorney general.
    I am trying to get, in my own mind, if there is a 
reasonable explanation as to why General Hartmann would be 
reluctant to say this in light of the fact that the United 
States has prosecuted its own military officers, in our 
history, for water boarding--this goes back 100 years ago--and 
that we've prosecuted Japanese officials and soldiers for water 
boarding American prisoners during World War II.
    I don't understand the ambiguity of this charge. It's like 
saying, ``Well, I know you said murder, but I need to know more 
about the circumstances.'' Well, it was the taking of a life. I 
mean, that's the circumstance.
    And the same thing with water boarding. It is simulated 
drowning as part of an interrogation technique. I mean, I can't 
understand this ``I need to know more information'' response 
that we're getting on this question of water boarding.
    Do either of you have an opinion as to why we're running 
into this?
    Mr. Denbeaux. Well, I think it's torture. I think it would 
be an outrage happening to any airman. We believe that. And my 
real suspicion is that we know we've water boarded and we don't 
want people who--we want to protect people who have water 
boarded from being prosecuted and I think people don't want to 
call it what it is simply because the consequences of doing so 
for some people who may have done it could be great.
    Senator Durbin. And if I'm not mistaken, in the Military 
Commissions Act, we included language, I don't want to go too 
far, but at least in some form, legally absolving those in the 
intelligence agencies who may have engaged in these techniques.
    Admiral Hutson.
    Mr. Hutson. That's right, Senator Durbin. It was like deja 
vu all over again, because I was at the attorney general 
confirmation hearing. I was sitting in about the same place I 
was sitting for that and you were sitting at sort of the same 
place, with Senator Whitehouse, and the reaction was kind of 
the same.
    It sort of sucked the oxygen out of the room when he 
wouldn't agree that water boarding was torture, and I'm not 
sure why that is that--it may be as a consequence of the 
service JAGs talking about it in another way at another 
hearing, so that the administration response now is to just 
deflect the question, no matter how silly that may seem at the 
time. You've deflected the question and finally the Senators 
get tired of it and move on.
    Senator Durbin. Thank you very much for your testimony. 
Thank you, Madam Chair.
    Chairman Feinstein. Thank you, Senator.
    Senator Graham.
    Senator Graham. Thank you.
    Admiral Hutson, we've met a lot about this whole issue --
    Mr. Hutson. Indeed, we have, sir.
    Senator Graham [continuing]. And I do respect you. I know 
you've spoken from the heart and with great experience.
    And, Debra, I just want to let you know that I believe 
we're at war and I don't want to apply domestic criminal law to 
what I think is a mighty struggle between good and evil and 
that the people that we're fighting are just as much committed 
to their cause as Adolf Hitler was to his.
    And I had the unique opportunity, with Senator Levin, to go 
to the combat status review tribunal and witness Sheikh 
Mohammed's presentation to the tribunal. I thought he never was 
going to shut up.
    He talked for about an hour of everything he has done in 
recent times to wage war against the United States. He very 
much tried to impress upon the tribunal that he was at war with 
us because of his religion and I think it's incumbent upon us 
to recognize we're in war.
    But having said that, this is a war of ideologies. There 
will be no capital to conquer, Debra. There will be no navy to 
sink or air force to shoot down.
    And I was in Iraq Thanksgiving and I met one of the senior 
Al Qaida operatives who was captured and he's since broken away 
from Al Qaida and is actually helping us. And we asked him 
about what happened in Iraq and he said two things that were 
very stunning.
    He said the lawlessness after the fall of Baghdad created a 
vacuum that they filled. People got intimidated. There was no 
rule of law. There was no police and they were able to kind of 
operate openly and nobody challenged them, and they were 
surprised, and that intimidated the population. And he said 
that Abu Ghraib was a godsend, that it was used in an amazingly 
effective manner to recruit people and that they exploited that 
to no end.
    So what I'm trying to do is get us back into a wartime 
footing, maintain the moral high ground, because that's where 
you win the war here.
    And, Admiral Hutson, it is clear that water boarding 
violates the Geneva Convention.
    And, General Hartmann, as a fine officer, I do think 
there's some fear here that if you express that opinion, it may 
jeopardize people in the past, I think.
    But the Military Commissions Act provided basically the 
corporal's defense to the CIA. And to those CIA agents out 
there who are operating around the world, I appreciate what 
you're doing and I know you're risking your lives, but no 
agency is above the law.
    And the fact that we provide military counsel to people 
accused of a trial and our enemy doesn't is a strength. I know 
what they do to our people. It's well known in Iraq what 
happens to you if you're caught by these folks.
    But it should be equally well known that in America we do 
something different. The fact that we would provide a lawyer 
and base our decision on evidence, not a twisted view of 
religion, is a strength. There is no shortage in this world of 
people who would cut your head off because of their ideology.
    There is a shortage in this world of a process that 
believes in something bigger than revenge or hate.
    And, Admiral Hutson, I am firmly committed to the idea that 
habeas corpus, as Justice Jackson said, it would be difficult 
to devise a more effective bettering of a field commander than 
to allow the very enemies he's ordered to reduce to submission 
to call into account at his own civil courts and divert his 
efforts and attention away from the military offensive abroad 
to the legal defensive at home.
    I think habeas lawsuits are inappropriate, that I do want 
judicial review, but allow the military to make the decision as 
to who an enemy combatant is and have the federal courts review 
that process.
    And back to your point about military court-martials versus 
military commissions, could you provide me with some examples 
of where you think the commission process that is deviated from 
the court-martial process could be improved
    Mr. Hutson. The review process.
    Senator Graham. Not so much the review, the actual trial 
itself and the review both.
    Mr. Hutson. I think that just to finish that point for a 
second, I think the military review process, as you know very 
well, is tried and true and I would just stick with that.
    Senator Graham. Let that be your basis. But like Article 31 
rights, we can't--
    Mr. Hutson. No, you couldn't have Article 31 rights. I 
think that whatever system, whether it's the military 
commission system or the court-martial or U.S. district court, 
it would have to accommodate the vagaries of the circumstances 
by which the person was convicted.
    But as Secretary England said quite clearly and the Supreme 
Court said, more importantly, the Supreme Court said that 
Common Article 3 applies.
    Senator Graham. It does.
    Mr. Hutson. All of the judicial guarantees considered 
indispensable by civilized peoples have to apply, which starts 
out, I think, with a presumption of innocence, which can be 
overturned or met with admissible evidence.
    Senator Graham. And I do believe the military commission 
has a presumption of innocence. It has the right to counsel. It 
has the ability to confront witnesses.
    As a matter of fact, I think you help us write the judicial 
review of an allegation of coercion. Torture is a, per se, 
excludable event and the allegation of coercion has be balanced 
by the judge and his decisions or her decisions reviewed by 
civilian courts.
    That is generally where we need to go, isn't it?
    Mr. Hutson. I think it is, although it depends, to some 
extent, what we're talking about when we're talking about 
coercion. If we're talking about coercion in the sense of Fifth 
Amendment confessions and where the person's will has been 
overcome by--that's one question.
    Senator Graham. Under the military justice system, you have 
to have voluntary statements.
    Mr. Hutson. Right.
    Senator Graham. And our judges, I think, can handle the 
ramifications--the different ideas that may present themselves 
about coercion. I'm looking at a process where the judge's 
decision can be reviewed and people can have their say that my 
client said this only because somebody made him say it and he 
didn't want to.
    That's the essence of a humane, fair trial, that, ``You 
know what? You've got to prove me guilty. I don't have to prove 
myself innocent,'' and you're telling the jurors there, 
basically, ``You've got to decide among yourselves in a 
unanimous way if you're going to put somebody to death.''
    I mean, we've got generally what I think is a workable 
system, but I would like more input from you, because I respect 
you, about how to make it better.
    Mr. Hutson. Thank you.
    Senator Graham. And I'll just end with this thought. The 
idea of Guantanamo Bay being closed is a statement we're trying 
to make. Then once the statement is made, the war goes on.
    Here's the statement I'm trying to make along with this 
debate. I believe we're at war and I believe the military legal 
system is the proper venue to adjudicate matters involving our 
enemies. I am proud of them, the military legal community.
    I believe civilian Article 3 courts should review their 
work product, because it makes us stronger, not weaker. And the 
techniques and the devices we use to prosecute people and to 
gather information will do one of two things--it will elevate 
this country so we can beat this enemy or it will diminish us.
    And I believe we can be safe and maintain the moral high 
ground and that is a false choice to have to choose between the 
two and if you do, you've already lost to the enemy.
    Thank you for this hearing.
    Chairman Feinstein. Thank you very much.
    Ms. Burlingame, Admiral Hutson, Professor Denbeaux, we very 
much appreciate it.
    Senators Feingold--
    Ms. Burlingame. Chairman Feinstein.
    Chairman Feinstein. One second--and Leahy would like to 
have statements entered into the record. That will be the 
order.
    Ms. Burlingame. Could I have mine entered into the record, 
as well, my full--
    Chairman Feinstein. Yes, you certainly may.
    Ms. Burlingame. Thank you.
    Chairman Feinstein. All statements will be. And thank you 
very much.
    And the hearing is adjourned.
    [Whereupon, at 12:29 p.m., the hearing was adjourned.]
    [Questions and answers and submissions for the record.]

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