[Senate Hearing 111-491]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-491
 
  THE LEGAL, MORAL, AND NATIONAL SECURITY CONSEQUENCES OF ``PROLONGED 
                              DETENTION''

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 9, 2009

                               __________

                          Serial No. J-111-28

                               __________

         Printed for the use of the Committee on the Judiciary




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                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland         LINDSEY GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
RON WYDEN, Oregon                    TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
            Bruce A. Cohen, Chief Counsel and Staff Director
              Nicholas A. Rossi, Republican Chief Counsel
                                 ------                                

                    SUBCOMMITTEE ON THE CONSTITUTION

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
DIANNE FEINSTEIN, California         TOM COBURN, Oklahoma
RICHARD J. DURBIN, Illinois          JON KYL, Arizona
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
ARLEN SPECTER, Pennsylvania
               Robert F. Schiff, Democratic Chief Counsel
                 Brook Bacak, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......     3
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
    prepared statement...........................................   182
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   185
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared 
  statement......................................................   219
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   221

                               WITNESSES

Cleveland, Sarah H., Louis Henkin Professor of Human and 
  Constitutional Rights and Faculty Co-Director, Human Rights 
  Institute, Columbia Law School, New York, New York.............    18
Klingler, Richard, Partner, Sidley Austin LLP, Washington, D.C...    16
Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, 
  D.C............................................................    10
Malinowski, Tom, Washington, Advocacy Director, Human Rights 
  Watch, Washington, D.C.........................................     5
Massimino, Elisa, Chief Executive Officer and Executive Director, 
  Human Rights First, Washington, D.C............................    13
Rivkin, David B., Jr., Partner, Baker Hostetler LLP, and Co-
  Chairman, Center for Law and Counterterrorism Foundation for 
  Defense of Democracies, Washington, D.C........................     7

                         QUESTIONS AND ANSWERS

Responses of Sarah H. Cleveland to questions submitted by 
  Senators Feingold, Coburn and Whitehouse.......................    32
Responses of Richard Klingler to questions submitted by Senator 
  Feingold.......................................................    42
Responses of David H. Laufman to questions submitted by Senators 
  Feingold and Coburn............................................    52
Responses of Tom Malinowski to questions submitted by Senators 
  Feingold, Coburn and Whitehouse................................    56

                       SUBMISSIONS FOR THE RECORD

Cleveland, Sarah H., Louis Henkin Professor of Human and 
  Constitutional Rights and Faculty Co-Director, Human Rights 
  Institute, Columbia Law School, New York, New York, statement..    69
Columbia Law Review, Matthew C. Waxman, Director, New York, New 
  York, article..................................................   118
Congressional Leaders, June 11, 2009, letter.....................   171
Fox News.com, May 21, 2009, article..............................   190
Guantanamo Recidivism, April 7, 2009, fact sheet.................   197
Heritage Foundation, Washington, DC, memorandum..................   203
Klingler, Richard, Partner, Sidley Austin LLP, Washington, D.C., 
  statement......................................................   211
Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, 
  D.C., statement................................................   222
Malinowski, Tom, Washington, Advocacy Director, Human Rights 
  Watch, Washington, D.C., statement.............................   235
Massimino, Elisa, Chief Executive Officer and Executive Director, 
  Human Rights First, Washington, D.C., statement................   246
Rivkin, David B., Jr., Partner, Baker Hostetler LLP, and Co-
  Chairman, Center for Law and Counterterrorism Foundation for 
  Defense of Democracies, Washington, D.C., statement and 
  attachment.....................................................   256
Wall Street Journal, August 22, 2007, article....................   269


  THE LEGAL, MORAL, AND NATIONAL SECURITY CONSEQUENCES OF ``PROLONGED 
                              DETENTION''

                              ----------                              


                         TUESDAY, JUNE 9, 2009

                               U.S. Senate,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10:04 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, Chairman of the Subcommittee, presiding.
    Present: Senators Feingold, Cardin, and Coburn.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Chairman Feingold The hearing will come to order. Welcome 
to this hearing of the Constitution Subcommittee entitled ``The 
Legal, Moral, and National Security Consequences of `Prolonged 
Detention.' '' I want to thank the witnesses for being here, 
and I especially want to thank my Ranking Member, Senator 
Coburn, who will be here, for his cooperation and the help of 
his staff in putting this hearing together on very short 
notice.
    On May 21, President Obama gave an important national 
security speech at the National Archives. He devoted a major 
portion of that speech to the problem of the prison camp at 
Guantanamo Bay, Cuba. He reiterated that he intends to close 
that facility, and I fully support that decision. The 
President, in my view, was absolutely correct when he said the 
following:
    ``Rather than keeping us safer, the prison at Guantanamo 
has weakened American national security. It is a rallying cry 
for our enemies. It sets back the willingness of our allies to 
work with us in fighting an enemy that operates in scores of 
countries. By any measure, the costs of keeping it open far 
exceed the complications involved in closing it.''
    I think the President was also correct in noting the 
difficulties in figuring out what to do with the approximately 
240 detainees still held at Guantanamo. Some of those 
detainees, he said, can be tried in our Federal courts for 
violations of Federal law. Others will be tried in 
reconstituted military commissions for violations of the law of 
war. A third category of detainees have been ordered released 
by the courts. And a fourth category the administration 
believes can be transferred safely to other countries.
    Finally, though, there is a fifth category of detainees 
that the President said cannot be tried in Federal courts or 
military commissions, but the Government believes they are too 
dangerous to release or transfer. For this small group of 
detainees, the President said he is considering a new regime of 
what he called ``prolonged detention,'' accompanied by 
procedural safeguards and the involvement and oversight of both 
the judicial and legislative branches of our Government.
    I was and remain troubled by where the President seemed to 
be heading on this issue. The previous administration claimed 
the right to pick up anyone, even an American citizen, anywhere 
in the world; designate that person a so-called enemy 
combatant, even if he never engaged in any actual hostilities 
against the United States; and lock that person up possibly for 
the rest of his life unless he can prove, without a lawyer and 
without access to all, or sometimes any, of the evidence 
against him, that he is not an ``enemy combatant.''
    Now, that position was anathema to the rule of law. And 
while the President indicated a desire to create a system that 
is fairer than the one the previous administration employed, 
any system that permits the Government to indefinitely detain 
individuals without charge or without a meaningful opportunity 
to have accusations against them adjudicated by an impartial 
arbiter violates basic American values and is likely 
unconstitutional.
    I wrote to the President after his speech to express my 
concern, and I will put the full text of that letter in the 
record of this hearing, without objection. My letter noted that 
indefinite detention without charge or trial is a hallmark of 
abusive systems that we have historically criticized around the 
world. In addition, once a system of indefinite detention 
without trial is established, the temptation to use it in the 
future will be powerful.
    Thus, if the President follows through on this suggestion 
of establishing a new legal regime for prolonged detention to 
deal with a few individuals at Guantanamo, he runs the very 
real risk of establishing policies and legal precedents that 
will not rid our country of the burden of the detention 
facility at Guantanamo Bay, but instead merely sets the stage 
for future Guantanamos, whether on our shores or elsewhere, 
with potentially disastrous consequences for our national 
security. Worse, those policies and legal precedents would be 
effectively enshrined as acceptable in our system of justice, 
having been established not by a largely discredited 
administration, but by a successive administration with a 
greatly contrasting position on legal and constitutional 
issues.
    The fundamental difficulty with creating a new legal regime 
for prolonged detention is that there is a great risk, 
particularly because some of the detainees for whom it would be 
used have already been held for years without charge, that it 
will simply be seen as a new way for the Government to deal 
with cases it believes it cannot win in the courts or even 
before a military commission. Regardless of any additional 
legal safeguards, such a system will not be seen as any more 
legitimate than the one the Bush administration created at 
Guantanamo.
    I do not underestimate the challenges that the President 
faces at Guantanamo. This is not a problem of his making, and I 
appreciate how difficult the situation is. The President was 
right when he called dealing with the fifth category of 
detainees ``the toughest single issue that we face.'' And he 
recognized that creating a new system of prolonged detention 
``poses unique challenges.'' And that is why we are here today. 
We have assembled a panel of distinguished witnesses to help us 
understand the implications of a new system of prolonged 
detention. Although the legality of such a system is crucial, 
that is not the only question. In a recent interview, Daniel 
Levin, who was the acting head of the Office of Legal Counsel 
when that office was attempting to deal with requests for legal 
analysis of interrogation techniques that many believe are 
torture, put it quite succinctly. He said, ``Obviously you can 
only do that which is legal, but that does not mean you should 
automatically do something simply because it is legal.'' So I 
think we have an opportunity today to do what we need to do, 
which is to look at the question from all angles.
    It is my view that a great deal of what was wrong with 
Guantanamo stemmed from an arrogance that the previous 
administration sometimes demonstrated about the rule of law. It 
established a prison that it thought was beyond the reach of 
the law. And it asserted the power to put people in that prison 
with only the barest regard for the law. President Obama 
clearly wants to take a different approach. He spoke at the 
National Archives of ``construct[ing] a legitimate legal 
framework for the remaining Guantanamo detainees that cannot be 
transferred.'' This goal is admirable. But we must be very 
careful not to create a legal framework that is inconsistent 
with the very reasons we need a legal framework--to be true to 
our values and to regain the respect of the world for our 
approach to this conflict.
    One final note, and then I will turn to the Ranking Member. 
When I wrote the President, I indicated that I would invite a 
representative of his administration to testify at this 
hearing. On reflection, I decided that to do so would be to ask 
the administration to publicly defend a position that it has 
not yet formally taken. Consideration of these very difficult 
questions is undoubtedly ongoing, and so I decided to hold this 
hearing as a way to help inform the administration's thinking 
and help make sure it has full information about the 
consequences of its decision. I would, of course, welcome any 
response to the testimony and discussion we will hear today. 
And I look forward to an open dialog on these very difficult 
and important questions as the time for closing Guantanamo 
approaches.
    With that, I am pleased to recognize Senator Coburn, and I 
thank him again for his help and cooperation in arranging this 
hearing.

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Thank you, Mr. Chairman. I apologize for 
being late. I was working on a human rights issue associated 
with the Internet.
    I am pleased to join you at this second hearing of the 
Subcommittee on the Community. I understand that this hearing 
was prompted by a detailed letter you sent to President Obama 
following his speech he made on national security issues at the 
National Archives in May. In that letter, you explained very 
clearly your opposition to indefinite detention, an option the 
President described as being ``necessary to protect the 
American people.'' While I disagree with some of your 
conclusions, I appreciate your thoughtful approach to the issue 
and recognize the importance of this Subcommittee to the 
debate.
    We have before us an impressive and diverse panel of 
witnesses, and I thank each of you for being here today. I 
would note, however, I am disappointed that the administration 
is not represented despite the Chairman's request. The 
administration's insight on this and other important national 
security issues, such as state secrets and media shield, are 
vital to ongoing congressional debate, and I am both puzzled 
and frustrated by their apparent unwillingness to engage 
Congress. In the future, I hope to see the executive branch 
more involved in the debates affecting its most important 
responsibilities.
    With respect to prolonged or even indefinite detention, I 
would note at the outset a few observations. In 2004, the 
Supreme Court in Hamdi v. Rumsfeld affirmed the authority of 
the United States to detain enemy combatants until the end of 
hostilities. The Court recognized that by universal agreement 
and practice, quote-unquote, the primary purpose behind the 
capture and detention of enemy combatants is to prevent their 
return to combat. Thus, so long as the current conflict is 
ongoing, and given that President Obama recently directed an 
additional 12,000 troops to Afghanistan, it appears that it is 
the United States that has the authority to detain enemy 
combatants without trial.
    Moreover, President Obama, like President Bush, has 
asserted the necessity of such prolonged detention. In his 
speech at the National Archives, President Obama acknowledged 
the presence of detainees at Guantanamo who cannot be 
prosecuted, yet who pose a clear danger to the American people. 
He rightfully asserted that he will not release any such 
detainee, adding that they must be held to keep them from 
carrying out an act of war.
    His choice and his challenge, as he described, is to 
develop a legal regime appropriate to deal with these 
realities. The President described this category of the most 
dangerous detainees as the toughest single issue that he will 
face. My preference would be that Congress give President Obama 
the support and assistance he needs to create such a framework, 
recognizing that successive Presidents of different political 
parties agree prolonged detention without trial is absolutely 
necessary in certain circumstances. I hope today's debate about 
the propriety of the decision will prompt the administration to 
come forward with ideas so that we can all begin working on 
solutions for the future.
    Thank you, Mr. Chairman. I look forward to hearing from our 
witnesses.
    Chairman Feingold. Thank you, Senator Coburn.
    Will the witnesses rise to be sworn and raise your hands? 
Do you swear or affirm that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Malinowski. I do.
    Mr. Rivkin. I do.
    Mr. Laufman. I do.
    Ms. Massimino. I do.
    Mr. Klingler. I do.
    Ms. Cleveland. I do.
    Chairman Feingold. Thank you.
    Our first witness this morning will be Tom Malinowski, the 
Washington Advocacy Director for Human Rights Watch, one of the 
premier international organizations dedicated to defending and 
protecting human rights. Mr. Malinowski is an expert in United 
States foreign policy with degrees in political science from 
the University of California-Berkeley and Oxford University. He 
has previously served as Special Assistant to President Bill 
Clinton, as senior director for foreign policy speechwriting at 
the National Security Council, and as a member of the State 
Department's policy planning staff.
    I thank you for being here this morning, and I would ask 
all the witnesses to keep their remarks, if at all possible, to 
5 minutes. We will put your whole statements in the record.
    You may proceed, Mr. Malinowski.

  STATEMENT OF TOM MALINOWSKI, WASHINGTON ADVOCACY DIRECTOR, 
              HUMAN RIGHTS WATCH, WASHINGTON, D.C.

    Mr. Malinowski.. Thank you, Mr. Chairman, Senator Coburn. 
Good to hear, Senator Coburn, that you were occupied with an 
issue involving human rights and the Internet. As you know, 
that is an issue near and dear to our hearts as well.
    Senator Coburn. Yes, I know it is.
    Mr. Malinowski.. Thanks for having us. It is obviously a 
very difficult issue. But for all the complexity of it, I want 
to argue today that it would be dangerous for us to continue 
with this experiment of indefinite detention without charge 
that we began in Guantanamo.
    I think there is one broad point on which all of us here on 
this panel do agree, and that is that under the laws of war, 
enemy combatants who are captured in an international armed 
conflict can be detained without charge for the duration of 
that conflict, as you said, Senator Coburn. But the situation 
we are talking about here is different for a couple of 
important reasons.
    First of all, in a traditional war between States, it is 
easy to place boundaries around this extraordinary power to 
detain without charge so that governments do not take it as a 
license to detain preventively anyone who they think poses a 
national security threat. In a traditional war, we know where 
the battlefield is. We know who the enemy combatants are. But 
this is a fight with no recognizable battlefield or 
geographical boundaries, no clear distinction between civilians 
and combatants. So it is very hard to keep those boundaries 
secure and to limit preventive detention to people who are 
plainly soldiers in a war. And there is this dangerous prospect 
of embracing a theory that would allow presidents in the future 
to detain a broad range of enemies solely based on a prediction 
of their future dangerousness.
    Second, in a traditional war, preventive detention is 
allowed because it is the only way to keep enemy combatants 
from returning to the battlefield. Lawful combatants in a 
traditional war have not committed a crime and cannot be 
prosecuted. And so detention without charge is the only 
conceivable way of keeping them from returning to the fight.
    But for the detainees at Guantanamo, detention without 
charge was not the only option. The people there whom we want 
to continue to detain have all been accused of doing things 
that are crimes--committing or planning acts of terrorism, 
conspiring to commit them, or providing material support, et 
cetera. So if we are considering preventive detention for these 
detainees, it is not because they are lawful combatants who can 
only be kept off the battlefield via preventive detention. It 
is because some people now think that the option of prosecuting 
them may be harder to exercise because of the way in which 
these prisoners were treated in the past, because evidence was 
not properly kept, because some of it was tainted by the use of 
torture, some of it is considered too sensitive to be used in 
court, et cetera.
    So as President Obama has said, in deciding what to do with 
these prisoners, we face this dilemma not because of his 
decision to close Guantanamo, but because of the original 
decision to open it. We are facing it not because of who these 
people are, but because of how their cases were handled in the 
past.
    One conclusion I draw from that is that, whatever we do 
with the current set of detainees, the use of detention without 
charge in the future to detain al Qaeda suspects who are 
captured in the future is not necessary. We can avoid it by 
avoiding the mistakes that we have made in the last 8 years; by 
handling evidence properly, by moving as quickly as possible 
after capture to a criminal prosecution model.
    But what about those legacy cases that we have inherited, 
the ones who are still sitting in Guantanamo, some of whom are 
obviously more difficult to prosecute than others? I do not 
want to minimize that difficulty, but I do not think we should 
throw away the possibility of using our established 
institutions of justice before we have even tried to do so. And 
I think if we are even going to consider going down that route, 
there are some very serious costs that we need to consider.
    The first of these, obviously, is the one that you 
mentioned, Senator Feingold, and that is the possibility that 
we will create a perception that Guantanamo has not been 
closed, because the essence of that system was preventive 
detention without charge. If we move it to the United States, 
even with additional safeguards, there is no question that 
people will say that the camp has not really been dealt with, 
and the costs of keeping the camp open will continue to be 
borne.
    Another obvious cost is more years of frustration and more 
years of delay. Any such system will inevitably be challenged. 
Any such system will inevitably be tied up in court for a long 
time. A stable set of rules may emerge, but it will take a lot 
of time. How much more time do we have to get this right? I do 
not think we have too many more chances.
    I think a third cost--and this one may be 
counterintuitive--is that the danger of having dangerous people 
released may be greater if we go with an alternative system, 
because if I am right and the system is challenged, if I am 
right and these detainees will be able to attack the system 
based on its legitimacy, that system will not be stable. And as 
we saw with the Guantanamo system in which 500 or more people 
were released, in part because the administration was under 
such pressure to get rid of these people, the chances that 
dangerous people will be released will be greater.
    I think a fourth danger is that anytime we treat these 
detainees as something special, anytime we treat these 
detainees as the warriors they claim to be by giving them 
military rules, military detention, military tribunals, we are 
actually reinforcing their narrative. We are reinforcing their 
story about who they are, that they are, in fact, warriors as 
part of a global struggle on a global battlefield against the 
greatest super power in the world--a narrative that I think 
helps them recruit more people to their hateful cause. That is 
a trap that we should not fall into. The more we treat these 
people as not extraordinary, the more we treat them as the 
common criminals that they are, the more we de-legitimize them 
and the better we can fight them.
    So I think these are mistakes that we have made in the 
past. I do not think we should continue to make them. I think 
we have alternative institutions that have proven their 
capacity to deal with this problem. I think at long last we 
should give those institutions a chance to work.
    Thank you.
    [The prepared statement of Mr. Malinowski appears as a 
submission for the record.]
    Chairman Feingold. Thank you very much, Mr. Malinowski.
    Our next witness is David B. Rivkin, a partner in the 
Washington office of the law firm of Baker Hostetler, where his 
practice focuses on international and environmental matters. He 
is also Co-Chairman of the Center for Law and Counterterrorism 
at the Foundation for Defense of Democracies, and a graduate of 
Columbia Law School, with a master's in Soviet affairs from 
Georgetown. Mr. Rivkin has served as Associate Executive 
Director and Counsel to President George H.W. Bush's Council on 
Competitiveness, Associate General Counsel at the Department of 
Energy, and Deputy Director of the Department of Justice's 
Office of Policy Development under the Reagan administration.
    Thanks for being here, Mr. Rivkin, and you may proceed.

  STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, BAKER HOSTETLER 
  LLP, AND CO-CHAIRMAN, CENTER FOR LAW AND COUNTERTERRORISM, 
    FOUNDATION FOR DEFENSE OF DEMOCRACIES, WASHINGTON, D.C.

    Mr. Rivkin. Chairman Feingold, Senator Coburn, I am also 
pleased to appear before you today and testify at this 
important hearing. I would say to the question about morality 
as distinct from law, but we act ``morally'' when we do our 
absolute utmost, within the bounds of law and proper policy, to 
defend the United States and the American people from 
terrorism. Thus, as this very long war continues to go on 
through its eighth year, it is vital to remember that the 
detainees we now have in custody at Guantanamo Bay and many 
other locations in Afghanistan and Iraq are not ordinary 
criminal suspects, such as the individuals responsible for the 
original World Trade Center bombing or the Oklahoma City 
bombing in 1995, who indeed must be charged and brought to 
trial, or released, in accordance with a set of rigorous 
constitutional and statutory requirements guaranteeing a speedy 
trial.
    Instead, the detainees whom we are talking about today--
and, incidentally, it is important to underscore we are not 
just talking about a finite body of legacy detainees. To the 
extent this war goes on, we will continue to capture Taliban 
and al Qaeda operatives and operatives of affiliated 
organizations. It is very difficult to fight a war if you are 
not going to capture people, especially since under the 
international law of war you are obligated to provide them with 
the opportunity to surrender.
    We are talking about unlawful combatants and unlawful 
belligerents, and let me, by the way, say with due respect to 
my good colleague Mr. Malinowski, I do not think we give them 
any homage by calling them ``unlawful combatants'' because 
unlawful combatants do not enjoy any honor or prestige 
associated with lawful combatants. They are criminals, but they 
are worse than criminals. They are more than criminal. They are 
certainly worse than muggers and rapists and bank robbers. So I 
do not think if you grasp the concept of unlawful combatants 
and call anybody that, the enemy of humanity, somebody who is a 
pirate or worse, gives this person any honor.
    I am glad we all agree on this panel that the unlawful 
combatant category remains alive and well today. It is a 
venerable concept. Certainly, I occasionally have to deal with 
the question. People think that it was somehow invented in the 
Bush administration. Of course, it was not. It has been with us 
for hundreds of years. It has been upheld by numerous courts 
around the world, including American courts and the Supreme 
Court. So it is firmly grounded in international law.
    Now, unlawful combatants, although they are not entitled to 
the privilege of legitimate prisoners of war--i.e., POWs under 
Geneva Conventions--can, like POWs--again, I do not think there 
is any serious question about it--be detained until the 
conclusion of hostilities. And in this regard, unlawful 
combatants may be punished for their unlawful belligerence 
because they do not have combatant unity. There is no rule of 
international law requiring that they be punished, and their 
detention for the duration of hostilities is certainly 
supported by the same rationale as with regard to POWs--to 
prevent their return to the fight.
    Incidentally, again, with all due respect to Mr. 
Malinowski, I do not know of any rule of international law that 
suggests that that only applies to ``international armed 
conflicts.'' If you assume the Supreme Court is right in the 
Hamdan case in classifying our conflict with al Qaeda is not of 
an international nature, the whole thrust of international 
humanitarian law since World War II has been to grant the same 
privileges to participants in internal armed conflicts as the 
one in international. So I will be very surprised if anybody 
from ICRC would agree with the proposition that in a civil war, 
for example, which is a classical example of a conflict not of 
an international nature, if you capture a belligerent in a 
civil war that that person cannot be held for the duration of 
that war.
    I also think--how to put it gently--that the notion that we 
have another viable opportunity of prosecuting people is--well, 
``myopic'' would be to put it gently. And the reason for it has 
nothing to do with the legacy problems and torture. It has to 
do with a very simple proposition that is virtually impossible, 
Mr. Chairman, to obtain a corpus of evidence, forensic and 
otherwise, that would suffice to hold the person, bring that 
person successfully to trial. You are not going to run a CSI 
Kandahar and exposing American--in the process of trying to get 
that evidence, you expose American servicemen to additional 
danger because the longer you linger on the battlefield, 
particularly in the context of special force operations, the 
higher is that danger.
    So, to me, the notion that there is this other alternative 
of prosecuting them is somehow--is not viable. We cannot fight 
this war if we are not going to have a military detention 
paradigm. A military detention paradigm requires that lawful 
and unlawful combatants captured in this conflict have to be 
held for the duration of it. I do not have time--in my prepared 
remarks, I go through some historical examples, but we have had 
long wars, 8 years, 5 years, 16 years in the case of Vietnam. 
This may be a longer war, but that does not alter the legal 
paradigm. The only point on which I agree with my colleagues 
is, yes, there is indeed a greater possibility of a mistake. I 
would stipulate that, because when we are talking about people 
fighting out of uniform trying to obscure their belonging to a 
particular group versus somebody wearing a uniform, you can 
make a mistake. But the way to deal with it is not to throw out 
this framework. That is why we give captured enemy combatants 
unprecedented, historically unprecedented degree of due 
process. In no war in American history have we captured enemy 
combatants through habeas. So we have already given people 
plentiful due process rights to ensure we have the right ones.
    And, incidentally, the whole business about dangerousness, 
you do not have to be adjudged to be dangerous. The fact that 
we are doing that, we are looking to see what danger is created 
by returning people to the battlefield, is not required by 
international law. As a matter of international law, if you are 
a captured enemy combatant, you can be held for the duration of 
hostilities even if you never fired, Mr. Chairman, a gun in 
anger, even if you are a cook, even if you are payroll 
processor, because that is how it works. As long as you are a 
member of an enemy combatants organization, your particular 
function is irrelevant. Otherwise, during World War II, 
everybody, you know, who was driving trucks and sewing uniforms 
would have been released. That is not how it works.
    So the traditional paradigm works. I do not think it is 
particularly controversial, and I see no other viable 
alternatives.
    Thank you.
    [The prepared statement of Mr. Rivkin appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Rivkin.
    Our third witness is David Laufman, a partner in the 
Washington office of the law firm Kelley Drye & Warren, where 
his practice focuses on government investigations. A graduate 
of Georgetown University Law Center, Mr. Laufman has had a long 
and distinguished career in public service, beginning as an 
intelligence analyst at the CIA and most recently as an 
Assistant U.S. Attorney for the Eastern District of Virginia, 
where he prosecuted numerous high-profile national security 
cases.
    In 2005, Mr. Laufman was the lead trial counsel in the 
United States Government's successful prosecution of Ahmed Omar 
Abu Ali, an American citizen convicted of providing material 
support and resources to al Qaeda, conspiring to assassinate 
the President of the United States, and conspiring to hijack 
and destroy aircraft, among other charges. For his work on this 
case, Mr. Laufman received the John Marshall Award for 
Outstanding Legal Achievement in Litigation, the highest honor 
for excellence in litigation awarded by the Department of 
Justice.
    Mr. Laufman also represented the United States in U.S. v. 
Chandia, U.S. v. Biheiri and U.S. v. Khan--known as the 
``Virginia jihad'' case--all significant terrorism 
prosecutions. I should also add that from 2001 to 2003 Mr. 
Laufman served as Chief of Staff to Deputy Attorney General 
Larry Thompson, where he helped coordinate responses to the 
terrorist attack of 9/11.
    I thank you for being here, Mr. Laufman. You may proceed.

  STATEMENT OF DAVID H. LAUFMAN, PARTNER, KELLEY RYE & WARREN 
                     LLP, WASHINGTON, D.C.

    Mr. Laufman. Thank you, Mr. Chairman, Distinguished Ranking 
Member Coburn. Thank you for the opportunity to testify before 
you today. I am coming to this issue from a slightly different 
approach, as a former prosecutor, as a former Department of 
Justice official, and those will be the experiences that inform 
my judgments today.
    I would say to you that while it will not be appropriate or 
feasible to adjudicate all terrorism cases in the criminal 
justice system, that terrorism prosecutions should be brought 
in Article III courts whenever possible. First, both before and 
since September 11th, the courts have demonstrated their 
ability to handle complex terrorism cases. They have applied 
longstanding jurisprudence from criminal and constitutional law 
to resolve difficult issues, such as chain of custody for 
evidence seized in foreign countries by foreign law enforcement 
authorities, claims of coerced confessions, and the application 
of the Confrontation Clause to testimony given overseas by 
foreign government officials. Utilizing the Classified 
Information Procedures Act, or CIPA, the courts have guarded 
against the improper disclosure of sensitive intelligence 
information. And rather than complain about the additional 
administrative burdens that terrorism prosecutions sometimes 
impose on the courts, judges have looked upon these cases as an 
opportunity to shoulder their coordinate responsibility for 
meeting a national challenge and to demonstrate the strength 
and adaptability of the American criminal justice system.
    Second, bringing terrorism cases in Article III courts 
under well-established constitutional standards and rules of 
procedure and evidence confers greater legitimacy on these 
prosecutions, both here and abroad, and the importance of that 
legitimacy should not be minimized.
    Third, criminal proceedings also play an important role in 
educating the American people and the world about the nature of 
the threat we face. In the al-Marri case, for example, it was 
the defendant's guilty plea in April of 2009 to conspiracy to 
provide material support to al Qaeda which resulted in the 
public admissions, nearly 6 years after his initial 
apprehension, that al-Marri had been recruited by Khalid Sheikh 
Mohammed, then the operations chief of al Qaeda, to assist with 
al Qaeda operations in the United States; that al-Marri had 
been directed to come to the United States no later than 
September 10, 2001, to operate as a sleeper agent; and that he 
had received sophisticated codes for communicating with KSM and 
other al Qaeda operatives while he was in the United States.
    With respect to existing non-military detention options, 
because that is my focus here, the Government currently has 
only three options for detaining individuals suspected of 
terrorist activity in a non-military detention system. 
Depending on the individual's nationality, if the individual 
has been charged with a crime, the Government can move for pre-
trial detention under the Bail Reform Act. If no charges have 
been brought and the individual is an alien, the Government can 
detain the individual administratively under an immigration 
removal statute. If the individual is a U.S. person, the only 
other recourse is detention under the material witness statute, 
which is problematic. That is it.
    As to pre-trial detention, it is axiomatic that in order to 
obtain pre-trial detention under the Bail Reform Act, the 
Government must first charge an individual with a Federal 
crime. Under Department of Justice policy, however, a 
prosecutor may bring charges only if he or she believes that 
the admissible evidence--the admissible evidence--will probably 
be sufficient to obtain and sustain a conviction.
    In a terrorism case, the need to make this early 
determination can be especially formidable. Terrorism 
investigations are often driven by threat analysis, and threat 
assessments often are based on intelligence information, such 
as communications intercepted under the Foreign Intelligence 
Surveillance Act, informant reporting, and information provided 
by foreign law enforcement and intelligence authorities.
    Sometimes the Government has the luxury of building a case 
over a period of months to develop evidence that is admissible 
in a criminal prosecution. But often it does not because of the 
nature of the threat, the credibility of information regarding 
a potential attack, or the perceived imminence of an act of 
violence. And in those cases, the Government often needs 
options for detaining individuals before it may be ready to 
bring criminal charges in order to protect the public safety.
    The rules regarding the detention of a person who has been 
charged with a Federal crime are favorable to the Government in 
terrorism cases. In support of a request for detention, the 
Government can submit hearsay and other information that would 
be inadmissible at trial because the Federal Rules of Evidence 
do not apply at a detention hearing. The court ordinarily must 
take into account several factors in determining whether to 
detain a defendant pending trial, and the Government ordinarily 
has the burden of proof. But there is a statutory rebuttable 
presumption in favor of detention in a terrorism case if there 
is probable cause that the defendant committed a specified 
Federal crime of terrorism.
    Although magistrate judges are not rubber stamps for the 
Government in detention hearings, the Government has been 
largely successful in obtaining pre-trial detention and 
terrorism cases, sometimes for many months when trial is 
delayed. And where judges have denied Government motions for 
detention, they typically have imposed restrictive and 
sometimes draconian conditions of release.
    With respect to material witness warrants, as you know, 
under the material witness statute, the court may authorize an 
arrest warrant if the Government files a sworn affidavit 
establishing probable cause that the testimony of a person is 
material in a criminal proceeding and that it may become 
impracticable to secure the presence of the person by a 
subpoena. There is no expressed time limit in the statute for 
the length of detention, but the Government must submit a 
biweekly report to the court in which it lists every material 
witness held in custody for more than 10 days pending 
indictment, arraignment, or trial and states why the witness 
should not be released, with or without a deposition being 
taken.
    After the September 11th attacks, the Government 
aggressively used the material witness statute to detain 
individuals in connection with terrorism investigations, at 
least several of whom were subsequently charged with crimes. 
But what the Committee must understand is that the material 
witness statute was not intended to serve as a substitute for 
pre-trial detention.
    In the case of United States v. Awadallah, the defendant's 
name and telephone number had been found on a piece of paper in 
a car abandoned at Dulles Airport by September 11th hijacker 
Nawaf al-Hazmi. Reversing the district court, the U.S. Court of 
Appeals for the Second Circuit found that the defendant's 
detention for several weeks on a material witness statute 
warrant was not unreasonably prolonged, but it cautioned that 
it would be improper for the Government to use the material 
witness statute to detain persons suspected of criminal 
activity for which probable cause has not yet been established.
    Last, immigration detention. The Government does have 
additional tools to detain foreign nationals in terrorism 
cases. Upon a warrant issued by the Attorney General, an alien 
may be arrested and detained pending a decision on whether the 
alien is to be removed from the United States. The Attorney 
General has broad discretion in exercising this authority, and 
detention is mandatory where the alien is reasonably believed 
to have engaged in activity that endangers the national 
security of the United States.
    In the immediate aftermath of 9/11, Mr. Chairman, the 
Department of Justice used the alien removal statute to arrest 
and detain numerous foreign nationals suspected of engaging in 
terrorist activity. Utilizing the alien removal statute can buy 
the Government substantial additional time to determine whether 
to pursue criminal charges against an alien defendant. In 
Zadvydas v. Davis, a case decided a few months before September 
11th, the Supreme Court construed the law to limit the period 
of detention to the time reasonably necessary to secure the 
alien's removal, with 6 months presumed to be a reasonable 
limit. But the Court noted that the case did not involve 
``terrorism or other special circumstances, where special 
arrangements might be made for forms of preventive attention 
and for heightened deference to the judgments of the political 
branches with respect to matters of national security.''
    With that, Mr. Chairman, I will in the interest of time 
stop. Thank you.
    [The prepared statement of Mr. Laufman appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Laufman. I appreciate the 
presentation.
    Our next witness is Elisa Massimino, the CEO and Executive 
Director of Human Rights First, one of America's most 
influential human rights advocacy organizations. A graduate of 
the University of Michigan Law School with a master's degree in 
philosophy from Johns Hopkins University, Ms. Massimino teaches 
human rights advocacy at the Georgetown University Law Center 
here in Washington. She grew up in a military family and was 
instrumental in assembling a coalition of retired generals and 
admirals to speak out publicly against policies authorizing the 
torture of prisoners in U.S. custody.
    Ms. Massimino, we appreciate your presence here this 
morning, and you may proceed.

   STATEMENT OF ELISA MASSIMINO, CHIEF EXECUTIVE OFFICER AND 
    EXECUTIVE DIRECTOR, HUMAN RIGHTS FIRST, WASHINGTON, D.C.

    Ms. Massimino. Thank you, Mr. Chairman, and thank you, 
Ranking Member Coburn, for convening this hearing. I really 
appreciate the opportunity to be here to share the views of 
Human Rights First on these issues and, in particular, to 
address how the choices on detention policy going forward will 
impact U.S. national security and international standing.
    The use of arbitrary and unlimited detention by the 
previous administration has undermined America's efforts to 
defeat terrorists. It has served as a powerfully effective 
recruiting advertisement for al Qaeda. It has strengthened the 
hand of al Qaeda rather than isolating and de-legitimizing them 
in the political struggle for hearts and minds. It has 
undermined critical cooperation with our allies on intelligence 
and detention. And it has done considerable damage to the 
reputation of the United States, undermining its ability to 
lead on counterterrorism and other key national priorities.
    Now, President Obama has stated that he wants to reverse 
the negative impact of these policies. In his speech last month 
at the National Archives, he made clear that trust in our 
values and our institutions will enhance our national security, 
not undermine it. But I believe that vision could be undermined 
by the continued use of military commissions and detentions 
without trial and would deprive us of the ability to, as he 
said, ``enlist the power of our fundamental values,'' proving 
counterproductive and not durable. Such efforts are also 
unnecessary in light of the existing laws that provide an 
adequate basis to detain terrorism suspects and try them for 
crimes of terrorism before regularly constituted Federal 
courts.
    In January of this year, Admiral Dennis Blair testified 
before the Senate Committee on Intelligence that, ``The 
detention center at Guantanamo has become a damaging symbol to 
the world and it must be closed. It is a rallying cry for 
terrorist recruitment and is harmful to our national security, 
so closing it is important for our national security.'' But the 
damage done by Guantanamo is not because of its location. It 
stems from the discredited policies of unfair trials and 
detention without charge. If those policies are continued, even 
in a somewhat modified form, Guantanamo will not be closed; it 
will just be moved.
    Proponents of preventive detention argue that those ready 
to do harm to the United States should be treated as warriors 
under the laws of war. Yet the decision to label all Guantanamo 
prisoners as ``combatants'' engaged in a ``war on terror'' has 
unwittingly ceded an important advantage to al Qaeda, 
supporting their claim to be warriors engaged in a global 
battle against the United States and its allies.
    Accused 9/11 planner Khalid Sheikh Mohammed reveled in this 
status at his Combatant Status Review Tribunal at Guantanamo in 
March of 2007. He said, ``For sure, I am America's enemy. The 
language of war in the world is killing. The language of war is 
victims.''
    Now, those whose job it is to take the fight to al Qaeda 
understand what a profound error it was to reinforce al Qaeda's 
vision of itself as a revolutionary force engaged in an epic 
battle with the United States. Former CIA case officer and 
counterterrorism expert Mark Sageman said, ``Terrorist acts 
must be stripped of glory and reduced to common criminality. It 
is necessary to reframe the entire debate from imagined glory 
to very real horror.''
    Likewise, General Wesley Clark stated, along with 19 other 
former national security officials and counterterrorism 
experts, ``By treating such terrorists as combatants, we accord 
them a mark of respect and dignify their acts, and we undercut 
our own efforts against them in the process. If we are to 
defeat terrorists across the globe, we must do everything 
possible to deny legitimacy to their aims and means and gain 
legitimacy for ourselves. The more appropriate designation for 
terrorists is not `unlawful combatants,' '' they said, ``but 
the one long used by the United States: `criminal.' ''
    Last June, Alberto Mora, former Navy General Counsel, 
testified that, ``Serving U.S. flag-rank officers maintain that 
the first and second identifiable causes of U.S. combat deaths 
in Iraq--as judged by their effectiveness in recruiting 
insurgent fighters into combat--are, respectively, the symbols 
of Abu Ghraib and Guantanamo.''
    This vision is reinforced in the updated ``Army-Marine 
Corps Counterinsurgency Manual'' that was drafted under the 
leadership of General Petraeus and incorporated lessons learned 
in a variety of counterinsurgency operations, including Iraq 
and Afghanistan. It stresses repeatedly that defeating 
nontraditional enemies like al Qaeda is primarily a political 
struggle and one that must focus on isolating and de-
legitimizing the enemy rather than elevating it in stature and 
importance. As the manual states, ``It is easier to separate an 
insurgency from its resources and let it die than to kill or 
capture every insurgent. Dynamic insurgencies can replace 
losses quickly. Skillful counterinsurgents, which we seek to be 
must, thus, cut off the sources of that recuperative power.
    As long as Guantanamo detainees are held in prolonged 
detention without charge or tried before extraordinary military 
commissions, the facility's legacy will continue to nurture 
that recuperative power of the enemy, and focus will remain on 
how the procedures deviate from those in criminal trials before 
regularly established Article III courts and not on the heinous 
acts of those we seek to try. Guantanamo has become a symbol to 
the world of expediency over fundamental fairness and of this 
country's willingness to set aside its core values and beliefs.
    The reputational damage caused by Guantanamo has very 
practical ramifications for our counterterrorism operations. If 
U.S. detention policies continue to fall short of the standards 
adhered to by our closest allies, then those policies will 
continue to undermine our ability to cooperate in detention and 
intelligence operations.
    In his June testimony, Alberto Mora described in detail how 
concerns about U.S. detainee policies damage U.S. detention 
operations by leading our allies to hesitate to participate in 
combat operations, to refuse to train on joint detainee 
operations, and to actually walk out on meetings regarding 
detention operations.
    The Guantanamo detentions have shown, as three retired flag 
officers said in the letter to the President last month--which 
I ask that be included in the record.
    Chairman Feingold. Without objection.
    Ms. Massimino. It stated: The Guantanamo detentions have 
shown that assessments of dangerousness based not on overt 
acts, such as in a criminal trial but on association, are 
unreliable and will inevitably lead to costly mistakes. This is 
precisely why national security preventive detention schemes 
have proven a dismal failure in other countries. The potential 
gains from such schemes are simply not enough to warrant 
departure from hundreds of years of Western criminal justice 
traditions.
    In conclusion, there has not yet been a full accounting of 
the strategic and operational costs of the failed Bush 
administration policies on prisoner treatment, but there is 
plenty of evidence to suggest that continuing down the road of 
prolonged detention without trial will undermine national 
security and hamper counterinsurgency efforts against al Qaeda. 
It will also seriously impede the Obama administration's 
efforts to turn the page on the past and successfully implement 
a new strategy to combat terrorism that brings the United 
States and its allies together in pursuit of a common goal. It 
is time for us to learn from the mistakes of the past and chart 
a new course, a smarter strategy, one that draws on all of the 
elements of national power. This is a real turning point for 
our country, and I urge you to seize it and ensure that we do 
not do to ourselves what al Qaeda could never do on its own: 
upend our constitutional system and values by establishing an 
entirely new system of detention without trial in the Federal 
law and on American soil.
    Thank you.
    [The prepared statement of Ms. Massimino appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Ms. Massimino.
    Our next witness is Richard Klingler, a partner in the 
Washington office of the law firm Sidley Austin, where his 
practice focuses on national security matters and complex 
litigation. A Rhodes scholar and a graduate of Stanford Law 
School, Mr. Klingler clerked for Judge Kenneth Starr on the 
D.C. Circuit and for the path-breaking Supreme Court Justice 
Sandra Day O'Connor. During the George W. Bush administration, 
he served as general counsel and legal adviser for the National 
Security Council and as senior associate counsel to the 
President.
    I thank you for being here, Mr. Klingler, and the floor is 
yours.

  STATEMENT OF RICHARD KLINGLER, PARTNER, SIDLEY AUSTIN LLP, 
                        WASHINGTON, D.C.

    Mr. Klingler. Thank you, Mr. Chairman, Ranking Member 
Coburn, for allowing me to present my views today regarding the 
lawfulness, morality, and national security necessity of 
ongoing--or indefinite, or prolonged--detention.
    Detention for this purpose means detention by our military 
of enemy combatants: persons who our military has concluded 
have waged or threaten war against our troops, citizens, and 
allies. The combatants at issue are members of al Qaeda and 
related terrorist organizations that pose a significant threat 
of violence to U.S. citizens.
    The main purpose of detention is to keep those who would 
harm U.S. citizens and troops from returning to the fight, and 
detention appropriately continues until that threat no longer 
exists. In this sense, wartime detention is always 
``indefinite'' or ``prolonged'' until conflict ceases. We have 
fought long wars and wars against unconventional forces. The 
conflict against terrorist organizations is not different in 
kind.
    The debate over indefinite detention often wrongly focuses 
on Guantanamo Bay. Prolonged detention is not just something 
proposed for the future, for a small subset of Guantanamo 
detainees. It is, instead, a practice that this administration 
is already conducting on a widespread scale, in Afghanistan and 
elsewhere, will continue to pursue for hundreds if not 
thousands of detainees for many years, and has already defended 
repeatedly in Federal court.
    The lawfulness of ongoing detention of enemy combatants is 
clear and well established.
    In short, such detention is a lawful incident of war, 
authorized whenever the exercise of war powers is proper. The 
Supreme Court has reached this conclusion for this specific 
conflict. The current administration has correctly argued that 
``[l]ongstanding law-of-war principles recognize that the 
capture and detention of enemy forces are important incidents 
of war,'' that our enemies are not confined to fixed 
battlefields in Iraq and Afghanistan, and that Congress has 
through the AUMF authorized ongoing detention.
    Challenges to the detention of enemy combatants, relying on 
the criminal law or otherwise, usually depend on rejecting the 
premise that we are truly at war on a very wide scale. That 
conclusion would surprise our troops in Afghanistan, Iraq, and 
many other places. It would particularly surprise our 
Commander-in-Chief. He recently confirmed that ``[w]e are 
indeed at war with al Qaeda and its affiliates'' and that 
because ``al Qaeda terrorists and their affiliates are at war 
with the United States, those that we capture--like other 
prisoners of war--must be prevented from attacking us again.''
    Perhaps now that this administration has endorsed ongoing 
detention, as has nearly every one of its predecessor once 
controversial counterterrorism policies, we can more readily 
accept the legitimacy of these practices.
    The most important national security benefit of detaining 
enemy combatants is simple but essential: to meet our moral 
commitment to ensure that those detained do not directly or 
indirectly attack our troops or citizens, here or abroad. 
Continued detention also ensures that our military and 
intelligence forces can and will continue to seek to detain 
additional combatants.
    Other benefits become clear in light of the alternatives. 
If standards for detention are increased or if detention were 
abandoned or restricted, at least three consequences would 
follow:
    First, detention would be outsourced. U.S. officials would 
rely on foreign allies to capture, interrogate, and detain 
enemy combatants, and recent reporting shows that this is 
already occurring. Detainees are less likely to be captured, 
more likely to be released prematurely, and less likely to be 
treated well. We should worry that the administration may be 
failing to detain newly discovered al Qaeda members and 
supporters in certain circumstances, but having other nations 
do so instead.
    Second, mistaken release of detainees would occur more 
frequently. Even under the current standard, many detainees 
released by the U.S. have gone on to become al Qaeda and 
Taliban leaders, a suicide bomber, and combatants against our 
troops. This administration's Defense Department recently 
detailed the significant breadth of the problem. Even so, none 
of the detainees released from Guantanamo has attacked citizens 
in the United States--yet.
    Third, detention would be sidestepped. Enemy combatants may 
be left in the field because criminal standards of proof have 
not been satisfied, placing our troops and citizens at risk. 
This was the principal flaw in our pre-9/11 counterterrorism 
policy. Or the military may choose instead to use the force of 
arms against a combatant when capture may prove pointless or 
risky.
    Some suggest that we can avoid these tough choices by 
relying exclusively on criminal proceedings. The President has 
largely mooted that argument by stating that ``[w]e're going to 
exhaust every avenue that we have to prosecute those at 
Guantanamo who pose a danger to our country.'' Even so, he 
concludes that there will still be detainees who cannot be 
prosecuted, ``who, in effect, remain at war with the United 
States.''
    The President is clearly right, all the more so for 
detainees in Afghanistan. Just because we can prosecute some 
terrorists in Federal court does not mean that we can prosecute 
all those who would attack our troops and citizens. And we do 
not want to blur the line between the legal protections 
afforded to U.S. citizens and lawful permanent residents on the 
one hand and those suitable for foreigners abroad whom the 
military has concluded would do us harm.
    We should resist the return to pre-9/11 practice that 
exclusive reliance on criminal proceedings would reflect. We do 
not want to leave terrorists in the field or send them there 
simply because U.S. forces have not gathered evidence of past 
evidence of past wrongdoing, admissible in court and provable 
beyond a reasonable doubt. We want them off the battlefield 
sooner and to stay off longer. As the President says, we need 
tools to allow us to prevent attacks.
    Thank you.
    [The prepared statement of Mr. Klingler appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Klingler.
    Our last witness this morning is Sarah Cleveland, the Louis 
Henkin Professor of Human and Constitutional Rights and the Co-
Director of the Human Rights Institute at Columbia Law School. 
A Rhodes scholar and Yale Law School graduate, Professor 
Cleveland clerked for Judge Louis Oberdorfer on the D.C. 
District Court and for the great Supreme Court Justice Harry 
Blackmun. She is a renowned authority on international human 
rights and labor rights, constitutional law, U.S. foreign 
relations, and the interaction between human rights and 
international trade. Professor Cleveland is also an experienced 
human rights litigator in the United States and international 
courts, and in 2003, she helped draft a labor code for post-
Taliban Afghanistan.
    We appreciate your presence today, Professor. Please 
proceed.

  STATEMENT OF SARAH H. CLEVELAND, LOUIS HENKIN PROFESSOR OF 
HUMAN AND CONSTITUTIONAL RIGHTS AND FACULTY CO-DIRECTOR, HUMAN 
   RIGHTS INSTITUTE, COLUMBIA LAW SCHOOL, NEW YORK, NEW YORK

    Ms. Cleveland. Thank you, Chairman Feingold, and thank you, 
Ranking Member Coburn, for including me in the testimony on 
this pressing issue.
    I am a scholar of U.S. constitutional law and international 
human rights law, and also co-coordinator of a Working Group on 
Detention Without Trial, whose draft report on comparative 
detention practices I would like to submit for the record 
today, along with my written testimony, and an excerpt of State 
Department country reports on preventive detention practices 
abroad.
    I would like to start out by responding to David Rivkin's 
assertion that these are not ordinary criminal suspects and 
that the United States possesses under the laws of war a roving 
authority to seize and detain indefinitely persons suspected of 
being members of al Qaeda or its affiliates around the world.
    I agree with other witnesses today who have said that 
persons who are seized in Afghanistan on a conventional 
battlefield while taking up arms against the United States may 
be detained for the length of that conflict. This power was 
acknowledged by the Supreme Court in Hamdi. Appropriate rules 
urgently need to be put in place to regulate the grounds and 
procedures for such detention, but it falls well within long-
accepted international standards.
    I part company from Mr. Rivkin and Mr. Klingler, however, 
in the claim that wartime detention authority allows the United 
States to indefinitely detain al Qaeda or Taliban affiliates 
seized from any non-battlefield location, wherever they may be 
found. It is this claimed roving detention power that has 
brought the U.S. widespread international condemnation, eroded 
our moral authority, and brought new converts to terrorism.
    The subject of this hearing is the legal, moral, and 
national security consequences of prolonged detention, and my 
remarks are organized around three premises: that prolonged 
detention of non-battlefield detainees is unlawful, that it is 
immoral, and that it has dire national security consequences 
for our country.
    First, prolonged detention is wrong as a matter of law 
because it offends our most fundamental constitutional values. 
Protection of personal liberty against arbitrary confinement is 
one of the hallmarks of our legal tradition. Our Constitution 
narrowly circumscribes the conditions under which a person may 
be incarcerated through the criminal justice system. It does 
not recognize a roving power to detain dangerous persons. As 
Federal Judge Jack Coughenour has observed, there is no ``bad 
guy'' amendment to the U.S. Constitution.
    The Government does have authority to detain people outside 
the criminal justice system under a very few narrow and 
historically confined exceptions, such as quarantine for public 
health purposes. One of those exceptions is the power to detain 
fighters of a foreign state in an international armed conflict. 
But as Tom Malinowski has testified, this exception exists for 
extremely specific purposes and is narrowed by well-defined 
parameters. Those purposes and parameters are not present when 
suspected al Qaeda members are seized and detained far outside 
the battlefield. In those circumstances, there are no objective 
indicia of combatency. The obligation to detain in preference 
to killing a fighter is not present. The choice is between 
detention or criminal prosecution. None of the battlefield 
exigencies that make preservation of evidence or criminal 
prosecution difficult in a wartime context are present when 
someone is seized in a hotel in Thailand.
    But even if the detention of such persons could be 
contemplated under international humanitarian law, it would 
fall so far outside any traditional exception to our own 
criminal justice system as to be unconstitutional, as Justice 
O'Connor recognized in her plurality opinion in Hamdi.
    Second, prolonged detention is immoral. Prolonged detention 
without a proven crime offends the world's most basic sense of 
fairness. It is the hallmark of repressive regimes that the 
United States historically has condemned around the globe. Our 
adoption of prolonged detention on Guantanamo has undermined 
our moral authority in promoting improved human rights 
conditions abroad, and it has alienated the United States as a 
leader in counterterrorism efforts. Our annual State Department 
country reports on human rights practices devote extensive 
scrutiny to the short- and long-term detention practices of 
other States. They demonstrate that none of our North American 
or European allies engages in the kind of detention practices 
that the U.S. has claimed in the recent past.
    Third, prolonged detention harms our national security. It 
does so for four reasons. It recruits people to terrorism, as 
Elisa Massimino has said. It discourages cooperation in 
counterterrorism. It diminishes our soft power to lead on 
national security issues. And by condoning similar abuses, we 
embolden other states to take actions contrary to global 
security interests around the world.
    In closing, I would like to note that this Subcommittee is 
one of the guardians of our Constitution. For the United States 
to ratify the principle that our Government may hold people 
indefinitely based on the claim that they cannot be tried, but 
are too dangerous to be released, forgets our constitutional 
past, distorts our constitutional present, and jeopardizes our 
constitutional future. It forgets our past, in which some of 
our worst historical episodes have involved indefinite 
detention, such as the Japanese interment. It distorts our 
present because to bring Guantanamo onshore and perpetuate it 
would do permanent damage to our constitutional traditions and 
make the cure far worse than the disease. Finally, it 
jeopardizes our future for, as Justice Robert Jackson warned in 
his dissent in Korematsu, if we accept the principle that we 
may detain those who cannot be tried but are too dangerous to 
be released, that principle will lie around like a loaded 
weapon ready to be picked up and used by any future government 
at home or around the globe.
    Thank you. I look forward to your questions.
    [The prepared statement of Ms. Cleveland appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Professor Cleveland, and all 
the witnesses for your testimony. I ask unanimous consent that 
the statement of the Chairman of the full Committee, Senator 
Leahy, be placed in the record, without objection. And we will 
begin with 7-minute rounds for the panel.
    Ms. Massimino, I understand that Human Rights First has 
conducted extensive research into the 120-plus terrorism cases 
prosecuted in Federal court over the past 15 years, and your 
organization, I am told, has concluded that bringing such cases 
has ``contributed significantly to the gathering of 
intelligence of terrorist plots and networks.''
    Can you provide some specific details about how our 
criminal justice system actually provides these national 
security benefits? And how have criminals trials helped to 
unravel some future terrorist plots?
    Ms. Massimino. Sure. Thank you. Human Rights First, when 
the Bush administration started to discuss the need for an 
alternative system, we wanted to examine the sufficiency of the 
current criminal justice system, the regular criminal justice 
system, for dealing with these cases. And so we asked two 
former Federal prosecutors to look at all the terrorism cases 
over the last 15 years that have been brought in the Federal 
courts. And this report, ``In Pursuit of Justice,'' is the 
result of that effort.
    We looked in great detail at the materials, the background 
materials, the filings in all of these cases, and what we found 
was that the United States has captured, both in the United 
States and overseas, some of the most dangerous terrorists the 
world has ever known and has prosecuted them successfully in 
U.S. courts and incarcerated in U.S. jails.
    And what we did in the report was to look at all of the 
claims that have been raised about the insufficiency, alleged 
insufficiency of the criminal justice system in dealing with 
these cases, and what we found is that the Federal courts are 
adaptable and flexible in dealing with the many challenges that 
these cases pose. And they do pose challenges, as Mr. Laufman 
knows probably better than any of us here.
    But what we found is that the law has evolved, and so 
prosecutors have been able to invoke a host of specially 
tailored anti-terrorism laws and generally applicable criminal 
statutes--in fact, some that provide greater flexibility than 
the substantive laws that we were saddled with in the misguided 
military commissions that would enable us to obtain 
convictions, that there has been no serious problem with 
obtaining jurisdiction over those defendants, even when they 
have been apprehended by unconventional or forceful means; 
that, as David Laufman suggested, the existing criminal 
statutes and immigration laws give us an adequate basis to 
detain and monitor suspects in the vast majority of these cases 
that we know, that the Classified Information Procedures Act, 
that CIPA has successfully balanced the need to protect 
national security information, including the sources and 
methods of intelligence; that Miranda warnings have not posed a 
barrier to prosecution in these cases because they are not 
required on the battlefield or in non-custodial interrogations 
or interrogations that are conducted primarily for 
intelligence-gathering purposes; that the Federal Rules of 
Evidence, including the rules of authentication of evidence 
collected abroad, give the courts a flexible framework for 
dealing with these issues; and that the Sentencing Guidelines 
and other sentencing laws give us severe sentencing options for 
many terrorist offenses.
    Also, we looked at the very real prospect of the danger 
posed by having terrorist suspects to the participants in these 
trials--the judges, the juries, the court officers--and found 
that the United States court system has been able to deal with 
those challenges successfully.
    Just this morning, we saw that the Obama administration has 
moved a Guantanamo detainee, Ahmed Ghailani, to New York to 
stand trial for his role in the embassy bombings, and I think 
that and the al-Marri case, the moving of the al-Marri case 
into the Federal justice system has the potential to really 
demonstrate what the President talked about in terms of faith 
in our institutions and the ability to change the perception 
that we have promulgated through our past actions of al Qaeda 
as combatant warriors against us into a more effective tool in 
the broader counterterrorism struggle pursuant to the theory in 
the Counterinsurgency Manual.
    Chairman Feingold. I thank you for your answer.
    Professor Cleveland, you make the very practical point in 
your testimony that there is no evidence that preventative 
detention works in the context of terrorism. You cite the fact 
that the U.K. renounced its prolonged detention of terrorism 
suspects in Northern Ireland in 1975, and a former British 
intelligence officer, Frank Steele, concluded, ``Internment 
barely damaged the IRA's command structure and led to a flood 
of recruits, money, and weapons.'' So it seems to me we have 
strong evidence that prolonged detention actually can make us 
less safe. Can you speak about any additional evidence for this 
conclusion?
    Ms. Cleveland. Yes, thank you. The Northern Ireland example 
is well-known and has been carefully scrutinized. There are 
numerous studies that indicate that not only were the 
detentions ineffective in that they did not successfully 
incapacitate IRA terrorists, but instead they inflamed 
hostility to the U.K. regime and inspired people to join the 
IRA. There are a number of studies of this phenomenon, and this 
was a reason that the U.K. finally abandoned the detention 
policy in the 1970s.
    In India, studies of India's detention practices also 
indicate that long-term detention without trial contributes to 
a cycle of violence and abuse, which in turn inflames unrest 
and provides recruitment tools for terrorist organizations.
    With respect to Israel, Lisa Hajjar's book, ``Courting 
Conflict,'' on the West Bank military tribunals, shows that 
Palestinians were mobilized to fight Israelis by the system of 
preventive detention and military tribunals, particularly by 
the ``natural deaths,'' quote-unquote, of Palestinians in 
Israeli custody.
    There have also been more recent studies of combatants in 
Iraq demonstrating that people who come from countries with 
abusive civil rights systems are much more likely to join the 
fight against the United States than those from countries that 
respect the rule of law.
    Chairman Feingold. Thank you, Professor.
    Senator Coburn.
    Senator Coburn. Well, thank you, each of you, for your 
testimony. I would like for you all to just answer this in the 
briefest form possible.
    Are we, the United States, under any international 
obligation which would require us to try or release the 
detainees that we have?
    Mr. Rivkin. If I might start, Senator Coburn, the short 
answer is no. The slightly longer answer is that, with respect 
to my distinguished colleagues, all the caveats and all the 
qualifications that they spoke about--namely, combatants 
fighting on behalf of states, combatants being picked up on the 
battlefield, roving commission to capture people anywhere--are 
not supported by the existing body of international law.
    If you are fighting on behalf of an entity which is in the 
state of armed conflict with the United States, which is an 
objective test under international law as to what an armed 
conflict is, if you fight on behalf of a private entity, a 
state entity is irrelevant, whether you were captured on a 
battlefield or 500 miles away from it is irrelevant in terms of 
our ability to be able to detain such a person. I do not have 
time to get into the historical examples, but does anybody 
seriously believe that if we launched a commando raid as we did 
in World War II to capture some Wehrmacht officers 500 miles 
away behind the front line, or perhaps in Switzerland, that 
they would not be detainable under the laws of armed conflict?
    The problem you have is that international law provides for 
the widest latitude, and all the caveats and all the 
restrictions that are being introduced by my colleagues drive 
toward one purpose only, which is eviscerate and de-legitimize 
the international law architecture. And with respect, you 
cannot fight a war by using laws as a war architecture. It is 
not only about detention.
    Let me just close by pointing out the absurdity of the 
proposition that you can use a Predator to launch a missile to 
kill somebody in a Jeep in Yemen because you believe a person 
an enemy combatant. You can use deadly force, which you cannot 
do with a criminal suspect. That is okay. But if you happen to 
have a commando unit grabbing this person, that person cannot 
be detained as a combatant under the laws of armed conflict. 
That distinction is absurd.
    And what we are going down the path is not just not being 
able to detain people like that, not being able to use deadly 
force, not being able to fight a war against the people who are 
very much fighting a war against us. That way lies defeat and 
disaster.
    Senator Coburn. Mr. Malinowski.
    Mr. Malinowski.. Sure. This is not the war of Wehrmacht. 
This is not a conventional army of a state that has declared 
war against the United States with which we are engaged on a 
conventional battlefield. This is an entity that kills 
civilians. That is its reason for existence. This is an entity 
that blows up buildings. This is an entity that blows up 
children. This is an entity that killed 3,000 people in New 
York City on September 11th and has done similar things all 
around the world.
    This is the kind of entity that throughout history has been 
treated as the lowest form of criminal life, whose members have 
not been accorded the honor of being treated as warriors, but 
have been put away in the darkest prisons that we have for such 
people. That is what this entity is, and that is how this 
entity should be treated.
    And, yes, absolutely, if the members of this entity are 
holed away in a place where we cannot send the NYPD to put 
handcuffs on them because they are protected by a lot of 
weaponry and it is a lawless area, like Yemen or Somalia, then, 
of course, we can use deadly force. You can use deadly force in 
a lot of situations when you are trying to bring people in.
    That does not, therefore, lead to the conclusion that 
because you can use deadly force in those situations you have 
to then treat them as soldiers and detain them without charge. 
You still do what is in the national interest in that 
situation, and what is in the national interest is not to treat 
these people as warriors. It is not just a matter of law. It is 
a matter of what is best for this country.
    Senator Coburn. Others?
    Ms. Massimino. Well, if I could just add briefly, you know, 
the fact is that al Qaeda declared war on us several times 
before 9/11, and, again, there is--as we have discussed this 
morning, they see it very much in their interest to promote 
that framework onto our response to them. And I think it is 
quite important for us to take notice of that.
    And with respect to my colleague Mr. Rivkin, you know, we 
seem to be under the misimpression that the only way to take 
the threat of al Qaeda seriously is to shoe-horn all of our 
response into a military framework. And while absolutely it is 
clear--I would be the first to say that the criminal justice 
system is not the solution to the terrorist problem, nor, I 
think, is it smart for us to ignore the advice in the 
Counterinsurgency Manual that General Petraeus put together, or 
the advice of Federal prosecutors who have successfully put 
away dangerous criminals through that system. I think it would 
be a mistake to treat those people as the warriors that Mr. 
Rivkin would have us think they are.
    Senator Coburn. I noted that, Mr. Laufman, in your 
testimony about Article III courts, you had a caveat that not 
all of these could be tried in an Article III court. Would you 
expand on that?
    Mr. Laufman. Senator, I think there is a menu of variables 
that complicate the ability to try some of these cases in 
Article III courts, both for policy reasons and pragmatic 
reasons. From a policy standpoint, it is not clear to me that 
an individual who had committed crimes against humanity or 
crimes of that kind of atrocity belongs in a criminal court as 
opposed to some other forum with international and domestic 
legal standing. If individuals have been subjected to coercive 
interrogation, it severely complicates if not cripples the 
ability of prosecutors to build a case in the absence of 
external corroborating evidence.
    There is just a host of potential issues that complicate 
the ability to bring all of these cases before Article III 
courts.
    Senator Coburn. Thank you.
    Mr. Klingler, how would the legal and constitutional rights 
of detainees currently held at Guantanamo Bay change if they 
were brought to the United States?
    Mr. Klingler. Under the Hamdan decision, there is a broad 
range of treatment-related rights extended to detainees in 
Guantanamo, and others to the extent that they are necessarily 
implicated by the right to have habeas review. There is some 
sort of due process right that under Boumediene did not get 
defined. Chief Justice Roberts criticized the Court for 
providing a right under Boumediene without defining the scope 
of that.
    If the detainees got brought to the United States, they 
would have a stronger set of arguments that they are entitled 
to the full range of rights that are accorded to federal court 
defendants. If they are criminally prosecuted, they clearly 
have the absolutely full range of rights that would be given to 
U.S. citizens, lawful permanent residents, or anyone else who 
is brought before the criminal justice system. Everything that 
is in our Constitution that would apply if you or I were 
prosecuted would apply to a detainee in a criminal prosecution.
    So that is where the difference between the two sets of 
rights comes. On the one hand, if they are left in Guantanamo 
right now, they have some set of rights, undefined but quite 
limited, but clearly with some due process rights associated 
with habeas proceeding in the United States, under a criminal 
prosecution, the full range of rights.
    Ms. Cleveland. Senator Coburn, would you mind if I----
    Chairman Feingold. Professor, you can briefly respond. Then 
we will start another round.
    Ms. Cleveland. Thank you. I just wanted to note that the 
Supreme Court twice now has held that Guantanamo is essentially 
United States soil for the purposes of the application of U.S. 
statutory law and U.S. constitutional law. They did so in the 
Rasul case in 2004 and again in the Boumediene case last 
summer. And in Boumediene, they were quite forceful in noting 
that because of the complete jurisdiction and control that the 
United States exercises over Guantanamo, there is very little 
justification, under the type of functional approach to 
application of the Constitution that the Court employed, for 
concluding that constitutional protections would be 
significantly different on Guantanamo than in the United 
States.
    So I would suggest that whether or not the detainees are 
held in Guantanamo or in the United States, they are entitled 
to quite robust constitutional protections under the Supreme 
Court's decisions.
    Mr. Rivkin. May I----
    Chairman Feingold. Go ahead, Mr. Rivkin.
    Mr. Rivkin. With respect, that may be where the Supreme 
Court or a portion of the Supreme Court would go. That is not 
the holding of Boumediene. Therefore, in one instance you have 
uncertainty in litigating it. In another instance, if you bring 
people here, you have absolute and utter certainty that they 
have a full panoply of constitutional rights.
    But there is one other important issue. What happens to 
individuals like the Uyghurs who are being ordered released by 
the Court, despite Judge Urbina's opinion? If you look at what 
this administration has continued to do in this area, they are 
arguing quite vigorously, but the Federal courts, despite the 
existence of constitutional habeas, lack the power to compel 
the political branches--the executive in this instance--to 
bring an alien from outside the United States to be released.
    If you bring people here, there is no doubt in my mind that 
anybody who prevails in this habeas case would be released, 
possibly held a few months under the teaching of Zadvydas and 
immigration detention, but basically if you start bringing 
people here, you better be prepared, despite everything that is 
said at the political level, that dozens and dozens of 
individuals, if you look at the odds so far in the habeas 
process in the district court for the District of Columbia, the 
Government has not done very well--in my view not because they 
are innocent, but because the evidence is not there.
    So we are going to have hundreds of terrorists walking 
around this country whom we cannot deport, by the way, back to 
their home countries because of concerns about torture. 
Aggregating the world's worst terrorists on American soil for 
years to come is not a very smart way to wage a wary.
    Chairman Feingold. Let me start another round relating to 
this. Mr. Malinowski, you noted that the Bush administration 
sent hundreds of former Guantanamo detainees back to their home 
countries, and the Pentagon believes that some of these men 
have engaged in terrorist activities. What do we know about 
these people? Do you believe that some of them would have been 
safely locked up in Federal prison if the United States had 
brought them to trial?
    Mr. Malinowski.. We actually know very little about most of 
them. I would start by suggesting that we all need to be 
cautious about the numbers that have been put out. You know, 
one in seven have gone back to the fight, one in ten. The 
numbers keep changing. The evidence behind those numbers is 
lacking, to say the least. You know, there have been guys put 
on that list because they gave an interview or wrote a book 
criticizing their treatment in Guantanamo, and that was deemed 
being part of the propaganda war against us.
    There was a guy put on the list who went back to Russia and 
was picked up by the Russian authorities for allegedly 
committing a violent act, and the only evidence against him in 
trial was a confession that was tortured out of him by the 
Russian interior police. And we believe that is probably not 
something that we should be putting out as information with the 
U.S. seal of approval.
    That said, there are some number of people, we all have to 
acknowledge, who have gone back, of the 500-some who were 
released, who did commit violent acts. And that is something 
everyone has every right to be concerned about. I would say two 
things about that group of people.
    First, if they had engaged in terrorist acts or supported 
terrorism before they reached Guantanamo, then the best option 
that the Bush administration had was to prosecute them for 
those crimes, as it did with Moussaoui, as it did with Padilla, 
as it did with Richard Reid, as we have done with a lot of 
people who have done nothing more than spend time in a training 
camp or give money to the enemy, not particularly dramatic acts 
and yet they have been prosecuted. And had that been done, 
these people would be in a super max somewhere today and not 
creating a problem for us somewhere in Saudi Arabia or Yemen.
    Second, if these people did not engage in acts of terrorism 
or violence before coming to Guantanamo, then it is not correct 
to say that they returned to the fight. It would be more 
correct to say that we recruited them to the fight, which 
brings out once again the fundamental damage that this system 
has caused us and our national security.
    I think we need to remember, Mr. Chairman, that even as we 
sit here and focus on these 241 detainees in Guantanamo, what 
to do about them, there is a much larger problem out there. It 
is much larger than the number 241. It is the thousands upon 
thousands of young men who are virtually identical in their 
profiles to these men who are at large in the world, who pass 
through these camps in Afghanistan, who read the websites, who 
harbor the same views, who are potential recruits to this 
cause. But we win this fight by diminishing that pool, and what 
Guantanamo and the system have done is to increase that pool of 
potential terrorists. And that is why even as we struggle with 
the few dozen that we have to find some solution for, we have 
got to keep our eyes on that larger challenge.
    Chairman Feingold. I appreciate that point very much.
    Professor Cleveland, yesterday ABC released a lengthy 
interview with Lakhdar Boumediene, who spent 7\1/2\ years 
enduring harsh treatment at Guantanamo until he was finally 
released by an order of a Bush-appointed Federal judge for lack 
of any credible evidence to justify his detention.
    What lessons do we draw from Mr. Boumediene's experience? 
And do we know how many innocent, non-dangerous false 
positives, if you will, have been imprisoned in Guantanamo?
    Ms. Cleveland. I think that Mr. Boumediene's experience 
underscores precisely the infirmity of the idea that we can 
seize people far away from the battlefield, designate them as 
enemy combatants, and purport to lawfully detain them under the 
laws of war.
    Mr. Boumediene was working for the Red Crescent in Bosnia 
when he was arrested in October of 2001 and charged with 
conspiring to blow up the U.S. and British embassies. The 
Bosnian officials and a Bosnian court found that the 
allegations were not supported, and he was ordered released. 
But then the U.S. Government insisted that he be transferred to 
U.S. custody, and he was ultimately taken to Guantanamo and put 
into detention and coercive interrogation to try to extract 
from him information about his knowledge of al Qaeda, which he 
did not possess.
    So he, as you said, remained there for 7\1/2\ years. The 
Combatant Status Review Tribunal process did not release him. 
He was only released after the Supreme Court ruled in the 
decision bearing his name that habeas jurisdiction applied to 
Guantanamo.
    So I think the lessons to be drawn are three: First, that 
this underscores the high risk of false positives for seizures 
outside the battlefield.
    Second, that prolonged detention often goes hand in hand 
with torture and abusive treatment. This is the experience in 
other countries around the world that employ preventive 
detention, and it was the experience in this case.
    And then, third, that robust legal process protects our 
Government. It does not just protect people like Boumediene. If 
he had been arrested with the expectation that he would be 
criminally prosecuted initially, evidence would have been 
maintained; he would have been put into a regular legal 
process. A court would have come to the conclusion much earlier 
that the wrong person was being held. And the Government would 
have been saved the embarrassment in this case.
    Chairman Feingold. Mr. Laufman, you highlighted the public 
benefit of Federal criminal proceedings and educating the 
American people and the world about the nature of the terrorist 
threats that we all face. I would like to hear a little bit 
more about that. Would you provide some further details of this 
public benefit from your own experience?
    Mr. Laufman. Well, probably the most signal experience I 
had was in the Abu Ali case, which has some resonance with 
respect to concerns today about whether the United States, like 
Britain, will become a target of homegrown radicalism. Abu Ali 
was a resident of Falls Church, Virginia, not far from where we 
are sitting here today, born in Houston, Texas, a very bright 
young man, went to Maryland as an engineering student, but 
became enthralled by Islamic radicalism through trips to Saudi 
Arabia to pursue religious study, and wound up joining an al 
Qaeda cell at the height of al Qaeda's prominence on the 
Arabian peninsula, and somehow transformed from this young man 
with an extremely promising future into someone committed to 
waging acts of violence against the highest levels of the 
United States Government.
    All that information came out through a criminal trial, but 
it was a criminal trial that resulted from a lot of pulling and 
hauling with the U.S. Government about what to do. Abu Ali, it 
may not be well understood, almost became an enemy combatant 
and hung in the balance for some period of months before the 
Bush administration decided upon reviewing assessments by 
prosecutors that a case could be mounted in criminal court. But 
it hung in the balance for a while.
    And our ability to bring a criminal case--and this ought to 
be brought out in this hearing as well--depended to a large 
extent on the cooperation of the intelligence community. My 
biggest struggles as a prosecutor, Mr. Chairman, were not 
against al Qaeda. They were with the general counsel's office 
of the CIA. And they have a legitimate interest, as we all do, 
in protecting against the disclosure of classified information 
improperly. But there is sometimes an unduly reflexive response 
to guard against the sharing of information that could be used 
in a criminal case even if by any objective standard no harm 
would truly come to the U.S. national security interest.
    Chairman Feingold. Thank you, Mr. Laufman. I will do a 
third round here, a final round.
    Mr. Malinowski., as you know, any Federal criminal 
proceeding could conceivably end with an acquittal. How would 
you respond to those who would say this would be an 
unacceptable outcome in a terrorist case? And, of course, 
alluding to the comments of Mr. Rivkin, would an acquittal mean 
the release of an individual on American soil?
    Mr. Malinowski.. No, I believe if it is an alien, not 
talking about an American citizen here, if it is an alien that 
we brought here, an acquittal would not result in the release 
of that person on American soil because we have all kinds of 
other legal mechanisms to detain and deport such people if the 
Government feels that they pose a continuing threat.
    But here is a bigger concern. Let us say we start with this 
proposition that we cannot afford an acquittal, and so we 
create a system that provides near certainty that someone who 
we believe is dangerous can be detained on an ongoing basis. If 
we have that option, that vastly easier option, my fear is that 
the government will always be tempted to use that option first, 
even for terrorist suspects against whom there is a pretty good 
likelihood of conviction. And so people who could be convicted, 
who could be put away for years and years and years, for life, 
then get put into this easier box, because in the short term it 
is more expedient.
    And then that box comes under challenge. It comes under 
legal challenge. Detainees get to argue that they should be 
released based on the illegitimacy of the system, not on the 
basis of their innocence. It comes under political challenge. 
It comes under international challenge. And it is not stable, 
and eventually we come under great pressure, legally and 
politically, to release these people.
    So, in the short term, it is expedient. In the long term, I 
think the danger of dangerous people being released is greater 
if we use a system that lacks stability.
    Chairman Feingold. Thank you.
    Professor Cleveland, as you eloquently noted, the Bush 
administration's failed experiment at Guantanamo has made it 
all the more difficult for America to promote the rule of law 
abroad. Could you give some examples of other countries that 
have used the prolonged detention regime at Guantanamo as a 
justification for their own human rights abuses?
    Ms. Cleveland. In Egypt, for example, the Prime Minister 
pointed to U.S. post-9/11 security measures as a justification 
for renewing the emergency in Egypt.
    Perhaps the most disturbing example was in 2002, in his 
speech to the nation, When Muammar Qaddafi of Libya bragged to 
the Libyan public that he was treating terrorism suspects just 
like America does.
    In December of 2007, when U.S. officials tried to criticize 
Malaysia for its preventive detention of five Hindu rights 
activists, the response of the Deputy Prime Minister was, 
``Well, you clean up Guantanamo, and until you clean up 
Guantanamo, we don't want to talk to you about having to 
justify our detention practices.''
    So there is an extremely corrosive impact on the rule of 
law in other countries, and many of these are countries where 
the rule of law is extremely fragile. We cannot afford to have 
the rule of law in countries like Egypt and Pakistan 
deteriorate, particularly not in response to the model that we 
have put out.
    Chairman Feingold. Thank you, Professor.
    Mr. Malinowski.. If I could maybe add one point to that. 
There are dozens of examples like that, but I think we also--
when we put forward these theoretical arguments, we need to ask 
ourselves: Would we be comfortable if other countries applied 
similar theoretical arguments to their own conflicts and wars 
on terror? There are a lot of countries around the world that 
claim to be engaged in their own wars on terror--Russia, for 
example, which, you know, sees virtually anybody who stands up 
to its rule in the Caucasus and Chechnya, et cetera, to be a 
terrorist engaged in a war against the Russian state.
    Would we be comfortable if Russia started making the 
argument that, well, that is part of the global war, anybody 
who supports the Chechen cause in any way around the world is a 
combatant in that cause and, therefore, can be detained or 
killed as a combatant wherever they may be found? Not exactly a 
theoretical notion, as the Helsinki Commission knows quite 
well, given what has been happening to Russian dissidents in 
places like London and other places around the world.
    Would we be comfortable if the Chinese were going around 
the world rounding up Uyghurs because they were suspected of 
being part of a war on terror that China is waging? These are 
dangerous things.
    Chairman Feingold. Thank you, Mr. Malinowski.
    I want Mr. Rivkin to have a quick chance to respond.
    Mr. Rivkin. Mr. Chairman, I appreciate your indulgence, and 
I will be brief. I just want to say two things.
    First of all, there is an enormous difference in causation 
and correlation. Just because a bunch of hypocritical 
politicians in Russia or China or Malaysia or Egypt claim to be 
inspired by our example does not make it so. I think even a 
casual reader of newspapers would acknowledge that there was 
plenty of torture and horrible misbehavior by Egyptian 
authorities long before Guantanamo, by Libyan authorities, by 
Russian authorities, and the Chinese authorities. I mean, the 
notion that we caused those things just does not hold true. And 
just because an Egyptian official claims to be inspired by it, 
it does not make it so.
    Chairman Feingold. Ms. Massimino, I will let you do a very 
brief response.
    Ms. Massimino. Very brief.
    Chairman Feingold. But I do want Senator Cardin to have----
    Ms. Massimino. Absolutely, and I just want to distinguish. 
I think that the view that was just put forward by Mr. Rivkin 
devalues what I believe is the incredible force of the United 
States as an example for good in the world and the ability of 
the United States to challenge those policies. It is not that 
we are saying that the Russians or the Chinese are doing this 
because of the U.S. example but, rather, that our doing those 
things deprives us of the moral authority and standing to stand 
up for those people who are suffering in those countries. And 
the world very much needs that.
    Chairman Feingold. Thank you.
    Senator Cardin?
    Senator Cardin. Well, thank you, Mr. Chairman. First, I 
want to thank you very much for holding this hearing. I 
apologize for not being here to listen to your testimonies. I 
can assure you that I will read them. This is an area of great 
interest, and as it has been pointed out, the Helsinki 
Commission that I chair--and Senator Feingold is a 
Commissioner--it is probably the No. 1 issue we hear about as 
we travel around Europe, around Asia. We hear more about the 
detainee issue than any other single issue for America.
    There is no one who challenges us, a country that is under 
attack by terrorists, for detaining suspected terrorists. They 
expect us to detain and try to get information to protect our 
Nation. But the fatal mistake that the United States made in 
this effort--and has caused significant damage to America--from 
my point of view, I think, of our national security as well as 
our international reputation, was the fact that we said we 
could do this alone, we did not need the understanding or 
support of the international community in the way that we were 
going to detain individuals, question them, and hold them 
accountable.
    The danger here is what I think some of you have already 
alluded to. How do you distinguish that from another country 
which is a threat, as they see it, an autocratic society that 
sees the free press as a threat to their way of life? So, 
therefore, isn't it fair game to detain individuals that are 
proposing a free press or free expression and not have to deal 
with the international community because the United States did 
not have to deal with the international community and took 
steps in order to protect its society?
    So I think that is where we put our Nation at severe risk 
by what we did. And, obviously, the motivation is not being 
questioned here. We were under a severe threat. So this country 
developed policies on its own, did not encourage the 
international community's participation. Worse than that, we 
were very secretive about it. There was no transparency. There 
was no effort to include the international community.
    And then we went one step further by the use of torture, 
which is unacceptable under any scenario, counterproductive to 
U.S. values and to the pragmatic way of trying to get 
information.
    So for all those reasons, we are now in a place that we 
have to repair the damage that has been done. And I think this 
hearing is particularly important because we talk about those 
categories of detainees that are very dangerous. They are very 
dangerous. And no one wants them released into the community 
where they can go back and do their damage. But we do have a 
rule of law that we have to figure out how we are going to deal 
with this.
    There are no easy answers here, but we certainly are going 
to have a better chance to get it right if we have open 
hearings and discussion and debate on this subject. And that is 
why I wanted to particularly thank Senator Feingold for 
convening this hearing so that we can have a discussion about 
these issues and try to figure out what is the best way to 
carry out U.S. interests.
    But I must tell you what I will be recommending is that we 
involve the international community in making these decisions, 
that it should not just be a U.S. policy. The threat of 
terrorism is global. There is a need for the United States to 
lead internationally to develop the appropriate way that 
individuals should be treated who are suspected terrorists, and 
it involves getting information to keep us safe. It involves 
holding terrorists accountable for their criminal actions. But 
it also involves respecting the rule of law. And it is not the 
U.S. rule of law. It is the international accepted standards 
that the United States has helped develop over the years.
    And I think we will get back to that. I do not really have 
any specific questions, Mr. Chairman, because some of these 
questions have already been asked, and I really will read the 
record very carefully. But I just thank our panel for being 
engaged in this discussion. Sometimes it is a little painful, 
but it is something that we need to do, and a great democracy 
is prepared to take on these types of challenges.
    Chairman Feingold. Thank you, Senator Cardin. I appreciate 
your comments very much, and your presence, of course.
    I want to once again thank all of our witnesses for being 
here today and for their testimony. This is obviously a very 
important issue, and I believe that the insights you have 
shared today will be very useful to the Senate as it considers 
any legislative proposal that comes before it. They will also 
be helpful to the administration as it weighs the costs and 
benefits of creating a new regime of prolonged detention.
    Our discussion today poses very difficult questions for an 
administration that, of course, seeks to be devoted to 
restoring the rule of law and trust in our values and our 
institutions. I plan to closely monitor the issue.
    The record of this hearing will remain open for one week to 
allow our witnesses and any interested individual or group to 
submit supplemental materials. In addition, members of the 
Subcommittee have 1 week to submit written follow-up questions 
for the witnesses. We will ask the witnesses to answer any such 
questions promptly so we can complete the record.
    With that, the hearing is adjourned.
    [Whereupon, at 11:41 a.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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