[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]






                                     

                         [H.A.S.C. No. 112-29]

 
                      LAW OF WAR DETENTION AND THE
                      PRESIDENT'S EXECUTIVE ORDER
                      ESTABLISHING PERIODIC REVIEW
                    BOARDS FOR GUANTANAMO DETAINEES

                               __________

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD

                             MARCH 17, 2011


                                     
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                   HOUSE COMMITTEE ON ARMED SERVICES
                      One Hundred Twelfth Congress

            HOWARD P. ``BUCK'' McKEON, California, Chairman
ROSCOE G. BARTLETT, Maryland         ADAM SMITH, Washington
MAC THORNBERRY, Texas                SILVESTRE REYES, Texas
WALTER B. JONES, North Carolina      LORETTA SANCHEZ, California
W. TODD AKIN, Missouri               MIKE McINTYRE, North Carolina
J. RANDY FORBES, Virginia            ROBERT A. BRADY, Pennsylvania
JEFF MILLER, Florida                 ROBERT ANDREWS, New Jersey
JOE WILSON, South Carolina           SUSAN A. DAVIS, California
FRANK A. LoBIONDO, New Jersey        JAMES R. LANGEVIN, Rhode Island
MICHAEL TURNER, Ohio                 RICK LARSEN, Washington
JOHN KLINE, Minnesota                JIM COOPER, Tennessee
MIKE ROGERS, Alabama                 MADELEINE Z. BORDALLO, Guam
TRENT FRANKS, Arizona                JOE COURTNEY, Connecticut
BILL SHUSTER, Pennsylvania           DAVE LOEBSACK, Iowa
K. MICHAEL CONAWAY, Texas            GABRIELLE GIFFORDS, Arizona
DOUG LAMBORN, Colorado               NIKI TSONGAS, Massachusetts
ROB WITTMAN, Virginia                CHELLIE PINGREE, Maine
DUNCAN HUNTER, California            LARRY KISSELL, North Carolina
JOHN C. FLEMING, M.D., Louisiana     MARTIN HEINRICH, New Mexico
MIKE COFFMAN, Colorado               BILL OWENS, New York
TOM ROONEY, Florida                  JOHN R. GARAMENDI, California
TODD RUSSELL PLATTS, Pennsylvania    MARK S. CRITZ, Pennsylvania
SCOTT RIGELL, Virginia               TIM RYAN, Ohio
CHRIS GIBSON, New York               C.A. DUTCH RUPPERSBERGER, Maryland
VICKY HARTZLER, Missouri             HANK JOHNSON, Georgia
JOE HECK, Nevada                     KATHY CASTOR, Florida
BOBBY SCHILLING, Illinois            BETTY SUTTON, Ohio
JON RUNYAN, New Jersey               COLLEEN HANABUSA, Hawaii
AUSTIN SCOTT, Georgia
TIM GRIFFIN, Arkansas
STEVEN PALAZZO, Mississippi
ALLEN B. WEST, Florida
MARTHA ROBY, Alabama
MO BROOKS, Alabama
TODD YOUNG, Indiana
                  Robert L. Simmons II, Staff Director
              Catherine McElroy, Professional Staff Member
                 Paul Lewis, Professional Staff Member
                    Lauren Hauhn, Research Assistant


                            C O N T E N T S

                              ----------                              

                     CHRONOLOGICAL LIST OF HEARINGS
                                  2011

                                                                   Page

Hearing:

Thursday, March 17, 2011, Law of War Detention and the 
  President's Executive Order Establishing Periodic Review Boards 
  for Guantanamo Detainees.......................................     1

Appendix:

Thursday, March 17, 2011.........................................    31
                              ----------                              

                        THURSDAY, MARCH 17, 2011
 LAW OF WAR DETENTION AND THE PRESIDENT'S EXECUTIVE ORDER ESTABLISHING 
            PERIODIC REVIEW BOARDS FOR GUANTANAMO DETAINEES
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

McKeon, Hon. Howard P. ``Buck,'' a Representative from 
  California, Chairman, Committee on Armed Services..............     1
Smith, Hon. Adam, a Representative from Washington, Ranking 
  Member, Committee on Armed Services............................     2

                               WITNESSES

Lynn, Hon. William J., III, Deputy Secretary, U.S. Department of 
  Defense; and Hon. Jeh Johnson, General Counsel, U.S. Department 
  of Defense.....................................................     4

                                APPENDIX

Prepared Statements:

    Lynn, Hon. William J., III, joint with Hon. Jeh Johnson......    35

Documents Submitted for the Record:

    [There were no Documents submitted.]

Witness Responses to Questions Asked During the Hearing:

    Mr. Andrews..................................................    43
    Mr. Forbes...................................................    43

Questions Submitted by Members Post Hearing:

    Mr. Cooper...................................................    50
    Mrs. Davis...................................................    48
    Mr. Franks...................................................    49
    Ms. Hanabusa.................................................    50
    Mr. Langevin.................................................    49
    Mr. McKeon...................................................    47
 LAW OF WAR DETENTION AND THE PRESIDENT'S EXECUTIVE ORDER ESTABLISHING 
            PERIODIC REVIEW BOARDS FOR GUANTANAMO DETAINEES

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                          Washington, DC, Thursday, March 17, 2011.
    The committee met, pursuant to call, at 1:02 p.m., in room 
2118, Rayburn House Office Building, Hon. Howard P. ``Buck'' 
McKeon (chairman of the committee) presiding.

    OPENING STATEMENT OF HON. HOWARD P. ``BUCK'' MCKEON, A 
 REPRESENTATIVE FROM CALIFORNIA, CHAIRMAN, COMMITTEE ON ARMED 
                            SERVICES

    The Chairman. The committee will come to order.
    Good afternoon. The House Armed Services Committee meets 
this afternoon to receive testimony on law of war detention and 
the President's recent executive order.
    Before we begin, I want to provide notice to all members 
that I will be departing with the regular order of questioning 
by Republican members. Consistent with committee rule 11, 
Ranking Member Smith has provided his concurrence for us to 
proceed in this manner.
    As you all know, we are approaching the 10-year anniversary 
of the devastating attacks of September 11th, 2001. It has also 
been nearly 10 years since Congress authorized the war in 
response to those attacks. As we approach that solemn marker, 
we need to ensure that our men and women in uniform have the 
legal authorities necessary to target and detain those who seek 
to harm us.
    It is time for Congress to show leadership in this area and 
not continue to leave it to the courts to define our enemies 
and circumscribe the parameters of war. While I support an 
administrative review process designed to ensure the continued 
detention of each Guantanamo detainee as necessary, I have 
significant concerns about the review process established 
pursuant to the President's executive order issued last week.
    Detainees currently have nearly unlimited access to lawyers 
for their habeas cases in Federal court. According to personnel 
at Guantanamo, there were over 1,400 legal visits to detainees 
in 2010. These cases are taking years to resolve, involve 
intense resources, and necessitate hard questions regarding how 
to protect sensitive intelligence sources and methods.
    I am concerned that by involving lawyers in the 
administrative review process, what is supposed to be an 
administrative evaluation of the threat posed by the detainees 
will turn into yet another opportunity for lawyers to embroil 
our military in endless litigation.
    I also fear that because of our concerns related to 
potential litigation, we are not capturing terrorists whom we 
need to neutralize and question for intelligence purposes. 
Without a comprehensive approach to detention, we will continue 
to lose out on opportunities for critical intelligence 
gathering.
    This is also true at home, where we lack the flexibility 
needed to conduct extensive intelligence interviews of 
terrorists like the Christmas Day and Times Square bombers. 
There may be a number of different solutions to this problem 
and I am open to all of them, but something has to change.
    I was heartened by the President's speech at the National 
Archives in May of 2009 when he said that he was committed to 
working with Congress to tackle these challenging questions. I 
have been very disappointed that those have turned out to be 
empty words and that the President has decided instead to go it 
alone.
    I hope in the coming days and weeks, we will see a reversal 
of this trend. I look forward to addressing those challenging 
issues with the administration, my distinguished colleague, 
Ranking Member Smith, and all members of the committee.
    Lastly, we cannot allow ourselves to become so caught up in 
the details of these issues that we neglect our fellow 
citizens, who lost so much nearly 10 years ago. Missing from 
the President's announcement last week was a commitment to move 
forward with the prosecution of those responsible for 9/11 
attacks and provide a full and fair airing of the war crimes 
they committed. We cannot forget about the justice that the 
victims, their families and the American people deserve.
    To address these issues, we are joined today by the deputy 
secretary of defense, William Lynn, and the general counsel of 
the Department of Defense, Jeh Johnson.
    Gentlemen, thank you for appearing before us today, and I 
look forward to hearing your testimony.
    Ranking Member Smith.

STATEMENT OF HON. ADAM SMITH, A REPRESENTATIVE FROM WASHINGTON, 
          RANKING MEMBER, COMMITTEE ON ARMED SERVICES

    Mr. Smith. Thank you, Mr. Chairman. I appreciate you 
holding this hearing on this critically important issue. And I 
certainly agree that we need a better and clearer process for 
how to detain and interrogate those terrorists that plan 
attacks or commit attacks or threaten us. It is a very 
difficult area of the law to strike the balance.
    I think the President's speech that the chairman referenced 
from a couple of years did a good job of doing that. It 
acknowledged the fact that we were going to need military 
commissions, and even acknowledged the fact that there were 
going to be some people that we were going to have to hold 
without trial.
    But the President also very much emphasized that in doing 
that, we need to follow the law. We need to have a clear 
process in place for doing that. And I agree that that needs to 
be an executive and legislative branch priority and that the 
two of us have to work together. The two groups have to work 
together to make that happen.
    I also want to thank the chairman. He and I have had a 
number of discussions on this issue in terms of how we work it 
out going forward, and I appreciate that bipartisan approach. 
And I agree that we need to improve the process we have now.
    I do want to point out that the legislation that the 
majority introduced last week I feel actually moves us in an 
even more dangerous direction and did not address those issues, 
and that there is another side to these concerns. And that is, 
we have to have a legal framework in place that upholds our 
Constitution, that upholds our values.
    I mean, I think we have to do that for two reasons. One, it 
is part of the broader message in our struggle against Al Qaeda 
and their ideology to say that what we do here is superior to 
what they want to do, that freedom, opportunity, respect for 
individual rights is a critical piece of what makes our country 
great.
    We cannot broadcast that message broadly to the world and 
then contradict it in our very own policies. And I think even 
the majority would agree, we have paid a price in some of the 
early ways that Guantanamo Bay was set up and what happened in 
Abu Ghraib for not doing that.
    And the legislation that was introduced last week, I feel, 
pushes us back in that direction. It gives too much power, 
ironically, to the executive branch and too much power to the 
military to decide who to hold, by what standards, and then to 
have very little process in place for that to be reviewed by 
anyone outside of the military.
    We need to make sure that there is a fair process in place 
for the reasons I stated before, but also to make sure that we 
can hold these people.
    The courts will step in, if they feel that there is not a 
fair and constitutional process in place. We saw that happen in 
Guantanamo in the first place, where they stepped in and said 
habeas corpus is going to apply and began having review 
processes based on that that have led to the release of some 
inmates there. So we need to have that process for our national 
security as well.
    And the final piece of this that I want to make everyone 
aware of, that is contained in the legislation that was 
introduced by the majority last week, is the fact that it turns 
Guantanamo Bay into, if you will, the Hotel California. You can 
check out anytime you want, but you can never leave.
    That is not a sustainable situation. It makes it clear that 
nobody in Guantanamo, and that includes not just the people who 
are there now, but the people that certainly we are going to 
bring there in the future under the majority's piece of 
legislation because we are far, far from done with this issue, 
cannot be transferred to the United States at all, ever.
    But it also sets up a series of restrictions for 
transferring any of these people back to their home country 
that are impossible to meet. You can read through the 
requirements that are there, but the Secretary of Defense 
himself has said he would never certify a transfer back to the 
home country based on the requirements that are in there.
    And think about that for a minute. If we pick up somebody 
by mistake and take them to Guantanamo, we are still in no 
position under this legislation to ever let them out. That is 
extraordinarily problematic from a policy standpoint.
    And beyond that, even if you have people who you pick up 
and convict and serve a certain sentence, when they are done 
serving their sentence, the legislation again has no 
contemplation whatsoever for how to ever let that person out.
    So I do agree with the majority that we need to do better 
than we have done. I will even agree with the majority that 
there have been some missteps by this administration in how 
they handle this process. But I hope going forward we will work 
together to come up with a reasonable solution that balances 
all of our interests.
    And I think this hearing is meant to begin that process. I 
applaud the chairman for doing that. I look forward to 
continuing to working with him and the Administration to get us 
the right solution on this very important public policy matter.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    We have been told, I think, that we could be having votes 
any time, which is unfortunate, but why don't we get right into 
your testimony, Secretary Lynn.

 STATEMENT OF HON. WILLIAM J. LYNN III, DEPUTY SECRETARY, U.S. 
 DEPARTMENT OF DEFENSE; AND HON. JEH JOHNSON, GENERAL COUNSEL, 
                   U.S. DEPARTMENT OF DEFENSE

    Secretary Lynn. Thank you very much, Mr. Chairman.
    We have a longer written statement that I propose that you 
put in the record, and I would summarize it for you here.
    The Chairman. Without objection, so ordered. Thank you.
    Secretary Lynn. Then we will just turn to your questions.
    First, I want to thank you, Mr. Chairman and Congressman 
Smith, for holding the hearing and giving us the opportunity to 
testify. I also appreciate the courtesy your staff availed us 
of in scheduling the hearing so that we could do it as the 
Administration has announced some important policies that you 
referred to.
    The major announcement there was on March 7th, 2011, where 
the President announced several initiatives related to the 
legal framework for detention of detainees, including the 
detainees at Guantanamo Bay. We are here today to discuss those 
initiatives and any other questions that you might have.
    As a preliminary matter, I need to note that President 
Obama remains committed to closing the detention facility at 
Guantanamo Bay. But regardless of where the detainees are 
located, we would be pursuing the initiatives that he just 
announced.
    We in the Department share the President's view that these 
initiatives will strengthen our national security and at the 
same time promote the rule of law. Our goal is to ensure a 
system of detention that is balanced and fair with respect to 
the detainees and is sustainable and credible with the U.S. 
courts, Congress, the American people and our allies.
    First, Secretary Gates has lifted the suspensions on new 
charges in military commission. The suspension was issued by 
the Secretary in January of 2009 to permit the new 
Administration time to review the status of each detainee at 
Guantanamo pursuant to Executive Order 13492.
    That review is now complete. We have also worked with 
Congress to reform military commissions, most notably through 
the Military Commissions Act of 2009, which was passed with 
bipartisan congressional support.
    With that piece of legislation and other reforms, we 
believe that the military commissions, along with Federal 
civilian courts, are an important tool to bring detainees to 
justice.
    At the same time, we respectfully disagree with the 
restrictions that Congress has imposed on transferring 
Guantanamo detainees to the United States in order to prosecute 
them in Federal court.
    As the President has made clear and as the Secretary of 
Defense has stated publicly, we must have available to us all 
tools that exist for preventing and combating international 
terrorist activity and protecting our Nation, including the 
option of prosecuting terrorists in Federal court.
    Second, the President signed an executive order that 
provides for the periodic review of those Guantanamo detainees 
who will be held in long-term detention.
    As the President recognized in his National Archives 
address that you both cited, there are certain Guantanamo 
detainees who in effect remain at war with the United States 
and thereby pose a continuing threat to the security of the 
United States, but who have not been charged, convicted or 
designated for transfer.
    For this group, the President said we must have a thorough 
process of periodic review so that any prolonged detention is 
carefully evaluated and justified.
    The new periodic review process announced earlier this 
month satisfies that directive. It strengthens our national 
security by providing a solid and sustainable system for the 
review of individuals who have been designated for law of war 
detention or who have been designated for prosecution, but 
against whom no charges have yet been brought.
    Third, the President announced that the administration will 
seek Senate advice and consent to ratification of Additional 
Protocol II to the 1949 Geneva Conventions. This treaty is 
applicable in non-international armed conflicts, such as our 
conflict against Al Qaeda.
    The President also announced that he will follow, out of a 
sense of legal obligation, Article 75 of Additional Protocol I 
of the Geneva Conventions in international armed conflicts.
    Over the years, international legal experts from across the 
political spectrum have called upon our Government to embrace 
these provisions. After careful analysis, we have concluded 
that the practices of our military are already consistent with 
them.
    By embracing these two sets of safeguards, we promote the 
international law of armed conflict, including in our current 
conflict against Al Qaeda and its affiliates. We also send the 
message that we expect others to adhere to the same standards.
    Overall, we believe these initiatives will promote clear, 
credible and lawful standards for the detention and prosecution 
of those who remain at Guantanamo. This in turn benefits our 
national security as well as the safety of the American people.
    With that brief opening, Mr. Chairman, I would be happy to 
take your questions.
    [The joint prepared statement of Secretary Lynn and Mr. 
Johnson can be found in the Appendix on page 35.]
    The Chairman. Thank you.
    Mr. Johnson.
    Mr. Johnson. Mr. Chairman, Mr. Smith, I am happy to defer 
to my colleague and his remarks, and I look forward to your 
questions.
    The Chairman. Thank you very much.
    I am going to defer my questions until later, so I will ask 
Mr. Thornberry. I yield 5 minutes to him.
    Mr. Thornberry. Thank you, Mr. Chairman.
    And, Mr. Johnson, I would like to start out on the 
authorization for the use of military force, because I think 
that is a basis upon which a lot of the rest of this depends.
    The resolution, which was passed September 14, 2001, talks 
about those who planned, authorized, committed or aided the 
terrorist attacks that occurred on September 11, 2001, or 
harbored such organizations or persons.
    Surely, as 10 years have passed and Al Qaeda and other 
groups have evolved, it becomes increasingly difficult for you 
to authorize various actions that most of us agree need to be 
taken to protect the country and relating it all back to the 
attack of September 11. Is that true?
    Mr. Johnson. Congressman, that is a very good question. 
Thank you for that question.
    When I assess the legality of our operations against Al 
Qaeda and its affiliates, I look to the language you read as 
well as our definition of detention authority that we put out 
March 13, 2009, which I think is useful in informing our 
military activities and operations generally.
    That definition refers to associated forces, which is a 
well-accepted, recognized interpretation in the law of war.
    That said, I will agree with you that the conflict against 
Al Qaeda is evolving, because that organization is evolving. It 
is more decentralized now than it was 10 years ago.
    I think that the current legal interpretations of the AUMF 
[Authorization for Use of Military Force] that we have and that 
we have used, which are solid, are sufficient to address the 
existing threats that I have certainly seen and that I have 
evaluated, so I think it has worked so far.
    I believe, however, that we should carefully look at the 
language in the chairman's bill and in the Senate bill, which 
in effect, you know, reauthorizes military action, and evaluate 
it and have a serious discussion about it.
    I am inclined to say that the existing authority is 
sufficient, but I think this is a serious discussion to have.
    Mr. Thornberry. Well, as you well know, the D.C. Circuit in 
the Bahani case was looking for statutes to help scope the 
executive's detention authority.
    And they looked at the Military Commissions Act, but as 
they recognized, we have the legal authority to detail under 
AUMF greater than those individuals that we can prosecute under 
the Military Commissions Act.
    And so I guess the obvious question--you just mentioned the 
policy you use includes the word ``associated forces.'' Would 
it not be a good thing to put ``associated forces'' into a 
renewal of the authorization for the military force?
    And doesn't that give you and the courts a stronger basis 
upon which to make decisions rather than a policy, to have it 
actually in statute?
    Mr. Johnson. Congressman, I don't have an administration 
position for you on that. But I think that that is something 
that we should seriously think about.
    Mr. Thornberry. Well, I hope we can do more than seriously 
think about it because it concerns me that, as we go further 
and further from 9/11, that the stretch back to those who 
planned, authorized, committed or aided in those particular 
attacks on that particular day is going to be more challenging.
    And as I mentioned, the way that Al Qaeda and other groups 
are moving around the world and evolving is going to require 
either that we stretch language beyond real meaning or that we 
try to update our laws to keep track of the changes that are 
happening in the world. And I hope we can come to agreement on 
that.
    Mr. Chairman, I yield back.
    The Chairman. Thank you.
    Ranking Member Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    I want to try to focus on the legislative proposals that 
the majority has put forward, because I agree, and I think you 
would as well, that we need legislation on this.
    The executive order is helpful, moves us forward, but to 
have, you know, Congress present a clear set of policies for 
how to proceed with the military commissions, how we are going 
to handle these people, would be helpful. But I am concerned by 
a number of aspects of that legislation and want to explore 
them and get your concerns.
    And the first area has to do with the complete turning over 
of this process to the military under the majority bill. Now, 
we have successfully tried many terrorists affiliated with Al 
Qaeda in Article III courts and incarcerated them right here in 
the United States of America, Ramzi Yousef perhaps being the 
most prominent, Zacarias Moussaoui and others as well.
    But this piece of legislation would preclude that and it 
would require, if I read it correctly, even those who would be 
arrested attempting attacks here in the United States and even 
if they are U.S. citizens, to be removed to Guantanamo and go 
through a strictly military process.
    There are, I believe, both legal and policy ramifications 
of that. It certainly empowers the military in a way over U.S. 
citizens that I think should be alarming to anyone who is 
concerned about giving the Government too much power.
    I mean, the Government in this situation would be able to 
pick anyone they wanted and, if the military says you have 
committed a terrorist act or even assisted in a terrorist act, 
you would then have virtually no rights, other than the basic 
habeas corpus right, whatsoever. And I think that expansion of 
power is problematic, certainly for the broader policy 
argument.
    But let us talk about the legal piece of it and the 
concerns that, if we were to do that, decisions to try or 
incarcerate would be subject to constitutional challenge and 
that the courts might once again step into this process and 
force us to release people we would rather not release because 
we are not following a proper process.
    Can you talk about that piece of it and why, in some 
instances, it still makes sense to have Article III courts as 
an option?
    Mr. Johnson. Yes. I have looked at the bill that was 
offered last week pretty carefully at this stage. One of the 
things that I had concerns about when I read it was the 
provision that said that anyone who was eligible for detention 
under the AUMF must be put in military custody, unless the 
Secretary of Defense agrees to give him up.
    And just the phrase ``eligible for detention under the 
AUMF,'' and there was another piece of the bill that included 
in that definition supporters, people who are not part of the 
enemy, but supporters of the enemy, would be swept up by that 
provision.
    So I have some concerns about the breadth of that language. 
I suspect that it would give us litigation risk, without a 
doubt.
    And my more general comment is you know, there are a number 
of provisions in the bill that I think are things that we ought 
to take very seriously and think about and carefully consider. 
And I think it was a very thoughtful piece of work.
    The two other comments that I have, though, as this 
conflict evolves the way it is evolving, is let us not take 
options away from the military and our national security 
apparatus to meet those threats. Let us not take away the 
Article III option. Let us not take away the ability to 
transfer somebody to a particular place for reasons of national 
security. Don't restrict the military's options, as we deal 
with this evolving threat.
    And the other comment I would make is I think we need to be 
careful about--I think in terms of the controversy surrounding 
our detention, we are moving in a good direction. We are doing 
better in the courts. I think we have had seven consecutive 
decisions in habeas where the Government has prevailed. We are 
doing better. And I actually believe we are winning back some 
credibility in the courts.
    I think we took some hits, and we are winning back 
credibility. And so I think we need to be careful about 
provisions in legislation that will only make our detention 
practices more controversial and engender more litigation.
    Mr. Smith. And in winning back credibility, what that means 
is winning back the ability to withstand court challenge and be 
able to hold the people that we want to hold.
    You know, I think a lot of times in this debate we have 
gotten lost in some of the broader arguments about, you know, 
the messaging issues. And I think it is very real and certainly 
Al Qaeda has used Guantanamo, Abu Ghraib, as I mentioned, 
against us. But forget about that for a moment. I mean, they 
are going to use a lot of very creative things against us.
    But if we don't have that credibility with the courts, what 
that means is it will hamper our ability to hold who we need to 
hold for national security reasons.
    So I hope we understand that as we get into some of the 
other peripheral arguments about what is right or wrong, this 
is about, you know, being able to uphold national security and 
be able to hold the people we need to hold to protect us.
    You know, the President has acknowledged that we need to do 
that. And in many cases, we will have to hold people without 
trial, because they, as you mentioned in your opening remarks, 
Mr. Secretary, that, you know, they are a clear threat to us, 
and they still are at war with us. So I hope we will keep that 
in mind.
    I have other questions, but I will hold them to the end.
    The Chairman. Thank you.
    Let me just say something about the bill that we introduced 
last week. That was a start of a process. I mentioned in my 
opening statement that the President had talked to me earlier 
and talked to me about working together. I had hoped that that 
would happen before the executive order was issued. It kind of 
moved up the process on our bill.
    I would have loved to have had us all sit down together and 
come out right out of the chute with a bipartisan bill. But we 
are just starting the process.
    So we will have lots more discussion. And I don't think 
this is probably even the point to go into great depth on the 
bill, because we will have opportunity to do that, and we will 
do it on a bipartisan basis. And it is far from--this is not a 
markup. And that will come somewhere down the road.
    But I am totally truthful in saying that we will work on it 
in a bipartisan way.
    Now----
    Mr. Smith. Mr. Chairman, if I may, let me acknowledge that. 
I think that is very true. You know, once we get started, I 
think we do need to look at the language to make sure it 
doesn't get moving too far down the track before we understand 
the limitations.
    But I clearly acknowledge that you have reached out to me, 
and we are going to, you know, go forward and work together on 
this in a bipartisan way.
    The Chairman. Thank you. And the reason I even bring it up 
right now is I don't want us to get hardened on any positions 
before we have a chance to sit down and understand each other's 
positions. I do not want this to become, you know, get on a 
partisan track or anything else. That is not the purpose.
    Okay.
    Mr. Forbes.
    Mr. Forbes. Thank you, Mr. Chairman.
    Mr. Johnson, thank you for your service and the work that 
you do.
    Mr. Secretary, thank you for all that you are doing.
    And I heard the word today ``credibility with the courts.'' 
You know, one of the things we have got to be concerned about 
too is the loss of credibility we have with our citizens across 
the country.
    Mr. Secretary, what would you tell them if they were to ask 
you what is the worst act of terrorism that has ever hit the 
United States soil? What would your answer be?
    Secretary Lynn. The attacks on 9/11.
    Mr. Forbes. And of the individuals that we at least view as 
defendants, how many of them are there, and where are they 
currently being detained?
    Secretary Lynn. Several of the defendants are being 
detained at the Guantanamo Bay facility.
    Mr. Forbes. Do you know how many?
    Secretary Lynn. Five, I believe.
    Mr. Forbes. You believe, you don't know right now, for 
certain How many----
    Secretary Lynn. Five.
    Mr. Forbes. Five defendants.
    We are now almost 10 years out. The charges that were sworn 
against them were sworn on February 8th, 2008. They continued 
prosecution. They had 134 motions that the prosecutorial team 
was pushing against those defendants, the worst of the worst 
that, according to you, that have hit the United States.
    And Mr. Johnson correctly states that we shouldn't take 
away options. And yet, you took away the major option that they 
had. The prosecutor said that he would have had guilty pleas 
and convictions within 6 months, and yet the administration 
came down and said no, and dismissed, without prejudice, all 
that work that had been done on January 21, 2010.
    We are now past 2 years from that. Can you tell me, almost 
10 years out, the five defendants, all of whom acknowledge that 
they did it, the prosecutor that said we would have had them 
with guilty pleas and guilty convictions, when are they going 
to be prosecuted? Can you tell me the day that we are going to 
file charges against them at this particular moment in time?
    Secretary Lynn. As you know, Congressman, the attorney 
general proposed that these charges be brought in an Article 
III court. He felt that given that the location of the attacks 
that you cited were in the United States, given that the vast 
majority of the victims were American citizens, were civilians, 
not military, that it was more appropriate to try them in an 
Article III court.
    That has been blocked by congressional action. And the 
Attorney General is now considering how to respond to that 
action and proceed from there.
    Mr. Forbes. And it was blocked by a majority of his own 
party in the action that took place. So then right now, we 
don't know when those prosecutions are going to begin.
    One of the things that is going to be important is that 
when they do begin, that we have the most experienced 
prosecutors that are prosecuting that case and these terrorist 
activities. What assurances can you give this committee, 
objectively, that you and the Secretary will make sure that we 
have the most experienced prosecutorial teams that are 
prosecuting these cases?
    Secretary Lynn. Well, if the cases--I think you are talking 
about the case that if the cases were returned to the military 
commission----
    Mr. Forbes. That is correct.
    Secretary Lynn [continuing]. Which has not been decided. 
But if that were to be the case, we have kept the prosecution 
teams together in the military commission process. And we have 
ensured that we are able to utilize not just DOD [Department of 
Defense] prosecutors, but to tap the great expertise in the 
Department of Justice----
    Mr. Forbes. Are you telling me that you have the same team 
completely together that was prosecuting these 9/11 defendants 
before those charges were dismissed?
    Secretary Lynn. I don't think we have kept every 
individual, but we have kept the core of the teams together, 
and we would be prepared to act if that were the decision.
    Mr. Forbes. Who do you have together on that team on the 9/
11 defendants now, that you kept together?
    Secretary Lynn. I can't give you by name.
    Mr. Forbes. Would you follow up with me, please, and give 
me what part of that core team that you have still kept 
together?
    Secretary Lynn. I am happy to do so, sir.
    [The information referred to can be found in the Appendix 
on page 43.]
    Mr. Forbes. Mr. Johnson.
    Mr. Johnson. Sure. I could be wrong, but I believe it is 
the case that the prosecution team that was in place a year ago 
is still in place. I could be wrong about that----
    Mr. Forbes. Just follow up with me, if you don't mind. I 
don't expect you to have the answer.
    And the only other two questions I would have, and you may 
need to take these and get back to me, but what are the 
consequences of this delay? You know, we start having problems 
with evidence, problems with witnesses as it continues on--if 
you could give me an assessment, either you or Mr. Johnson, for 
the record and, also, the consequences of doing this two-track 
system, which seems to me to be a very convoluted, difficult 
system for us to do.
    [The information referred to can be found in the Appendix 
on page 43.]
    Mr. Forbes. And, Mr. Chairman, my time is up, so I will 
yield back.
    The Chairman. Thank you.
    Mr. Andrews.
    Mr. Andrews. Thank you, Mr. Chairman.
    We are very heartened by your very sincere words about a 
joint effort to try to address this very important problem. 
Thank you. And I know that we are going to take full advantage 
of that.
    I thank the witnesses for their testimony.
    I was looking at the testimony about the disposition of 
individuals under Executive Order 13492, the review process at 
Guantanamo. And I just wanted to walk through and make sure 
that we understood it.
    There were 67 individuals as a result of that process 
transferred out of Guantanamo. Is that correct?
    Secretary Lynn. Sixty-seven since January of 2009, which is 
when the Obama process started. There were about 540 or so 
prior to that.
    Mr. Andrews. Where were they transferred to?
    Secretary Lynn. A variety of different nations. Some were 
repatriated to their home nation, others were transferred to 
third countries where we got security assurances. In both 
cases----
    Mr. Andrews. How many were still incarcerated?
    Secretary Lynn. How many of the 67?
    Mr. Andrews. Yes.
    Secretary Lynn. I would have to get that for the record.
    [The information referred to can be found in the Appendix 
on page 43.]
    Mr. Andrews. Do that for the record for us--and, obviously, 
the other half of that coin being how many are not 
incarcerated, or are free.
    Second, on the 36 who were referred for prosecution, how 
many of the 36 have been referred for prosecution in the 
Article III courts?
    Mr. Johnson. There were the five 9/11 defendants. And I 
believe that--I can't remember whether the 36 includes--I know 
the five. There might be one other in that category. I can't 
remember offhand.
    Mr. Andrews. Is it fair to say that the others are in a 
position where there is a decision being made about whether to 
prosecute them under a commission or an Article III court?
    Mr. Johnson. Well, there were the five or six who have 
already been referred to military commissions.
    Mr. Andrews. Right.
    Mr. Johnson. And the remainder we have to still divvy up.
    Mr. Andrews. Do you have some sense of when you are going 
to make the decision as to whether to prosecute them in a 
commission or an Article III court?
    Mr. Johnson. We are working that right now.
    Mr. Andrews. Okay. And then there was the--48, my 
understanding, are still detained under war authority. This is 
not meant to be a rhetorical question, but do we know how old 
the--all of these are not related to 9/11, correct? They are 
not all authorization of force of 9/11, is that correct?
    Mr. Johnson. They are all detained under that authority.
    Mr. Andrews. Okay.
    Mr. Johnson. But they are not all squarely----
    Mr. Andrews. What is the latest date of a material fact for 
one of those detainees? In other words, some of the facts are 
on 9/11, some of the facts are pre-9/11. What is the latest 
date for a material fact for any of the detainees?
    Secretary Lynn. I think the last detainee was transferred 
into Guantanamo in about 2006.
    Mr. Andrews. Let me ask a question that I think common-
sense Americans would ask, and this is not a rhetorical 
question.
    Since many of these people are detained because of their 
alleged conduct on or prior to September 11th, 2001, why hasn't 
there been some prosecution of them in the nearly 10 years that 
have taken place since then?
    Mr. Johnson. As you know, Congressman, we are making 
efforts in that regard.
    Mr. Andrews. I appreciate that, although I think--and I am 
fully aware we wouldn't want you ever to speculate in a way 
that would undermine your case--but it is a pretty good rule of 
thumb that the older evidence is, the more difficult it is to 
present to a finder of fact, isn't it?
    Mr. Johnson. That is correct.
    Mr. Andrews. So, I mean, I am a little troubled that I 
don't hear a sense of urgency about moving the prosecutions 
more quickly, because the older these things get, the staler 
they get. Am I wrong about that or----
    Mr. Johnson. You are generally correct that the older the 
facts get, the harder they are to prove up in a trial.
    The commission's case against the five alleged 9/11 
conspirators was dismissed without prejudice in January 2010, 
and figuring out the forum for that is under review right now.
    Mr. Andrews. We would never want you to take a position 
contrary to your good judgment or the law, and I know that you 
won't. But we would also want some sense that, you know, the 
earlier resolution of these cases is better on any number of 
scores. I think I would personally urge you to give whatever 
urgency you could to that process.
    I will yield back.
    The Chairman. Thank you.
    Mr. Wittman.
    Mr. Wittman. Thank you, Mr. Chairman.
    Secretary Lynn and General Counsel Johnson, thank you so 
much for joining us today, and thank you for your service to 
our country.
    I wanted to talk a little bit. There were some assertions 
earlier on about the bill and about detainees going to 
Guantanamo and then staying there.
    I wanted to talk a little bit about recidivism, because 
there is an element in the bill that talks about certification 
of countries where these detainees would go and making sure 
they were looking at ways to reduce recidivism.
    So I wanted to look at the unclassified DIA [Defense 
Intelligence Agency] reports, and specifically looking at 
recidivism from 2004 through 2008, the rate varied between 5 
and 8 percent. But if you look at the recidivism rate since 
2008, we see that it is at about 25 percent. So there has been 
an increase.
    And the question then becomes, what has caused this 
increase? And it has been fairly dramatic in recent years. So 
my question is, are those increases--is it due to a release at 
a higher rate of those detainees, or is it a change in 
reporting criteria, or is it improved monitoring? Or is there 
something else?
    I really want to try to get at what is the cause behind 
this recent rise in recidivism since 2008.
    Secretary Lynn. It is always hard to assess, but it takes a 
while to just understand the evidence of who is a recidivist. 
So in some cases what you are seeing is not an increase in 
recidivism, it is an increase in our understanding of 
recidivism, because in some cases the reentry process takes a 
while, and then it takes a while for us to gather the evidence 
to find that.
    As I said, the numbers before is that there were about 540 
detainees released 2008 and prior, and there have been 67 
since. I don't think it is an increase in the rate in the 67, 
it is a discovery of the recidivism rate of that total of a 
little over 600.
    Mr. Wittman. So if we are talking about the rate then, and 
looking at what may or may not be the cause behind that, let me 
ask a little bit about pre-transfer security assurances. I 
know, obviously, the countries that they are going to, we want 
to make sure that those countries are doing everything they 
can, practicing their due diligence to make sure that those 
detainees don't make their way back to the battlefield.
    Are you confident in the pre-transfer security assurances 
that those countries are providing us when we enter into an 
agreement to transfer a detainee there? Do you think that they 
are putting in place the proper controls to make sure that 
those detainees don't end up back on the battlefield?
    Secretary Lynn. We have negotiated very seriously through 
the State Department those security assurances. We take them 
very seriously. We ask for very stringent security assurances. 
We have tried to improve the process based on just the 
recidivism, recognizing that rate that you have said.
    We have moved away from block transfers that were done 
before, and we only do transfers now on an individual basis, so 
we have assurances for each individual detainee, as opposed to 
a block.
    We have been working with the individual countries, and, 
frankly, where we find some backsliding by individual 
countries, we tend not to pursue further transfers with those 
countries. So we are conscious of the process and what you are 
talking about.
    Mr. Wittman. You talk about making sure that you are 
diligent with those countries in making sure that they are 
properly practicing due diligence and keeping up with those 
detainees and making sure there is no backsliding. I am 
assuming in those instances you mean that you won't pursue 
agreements in the future, if those countries are backsliding.
    But let me move on to another area, and that is 
rehabilitation and really being aggressive with countries in 
rehabilitation programs.
    So the ones that do have detainees that haven't backslid, 
is there an effort there to make sure that they have programs 
to rehabilitate these detainees to, again, make sure that they 
are not going back to the battlefield--not only making sure 
that they keep up with them, but making sure that they are 
engaging them in ways that don't have or don't create 
opportunities or incentives for them to go back to the 
battlefield?
    Secretary Lynn. We have engaged in those discussions. The 
major rehabilitation program is in Saudi Arabia. It is a very 
strong program. It is a lengthy program. It involves spiritual 
advice. It has family engagement. Nothing is going to be 100 
percent effective, but we think that they have put in place a 
logical, sensible and a strong system.
    Mr. Wittman. Okay.
    Thank you, Mr. Chairman. I see my time is up. I will yield 
back.
    The Chairman. Thank you.
    Mr. Cooper.
    Mr. Cooper. Thank you, Mr. Chairman. I have no questions at 
this time.
    Mr. Kissell. Thank you, Mr. Chairman.
    First of all, I would like to thank the chairman and 
ranking member for working together on this. I think it is such 
an important issue of national significance that needs to be a 
nonpartisan way of approaching this, and I would really like to 
thank them at leading our committee forward this way.
    Just a couple of questions, then.
    I appreciate our witnesses being here.
    The 168, I think, remaining detainees, is that about the 
right number?
    Secretary Lynn. I think it is a couple more than that.
    Mr. Kissell. Is there an assumption that should be made of 
the--being that we have released, I think the number is 500 and 
some prior to 2008, 60-some since, almost 600 then have been 
released. Is there any assumption should be made that--I know 
that some of the ones remaining are still in the fight, that 
there really is little hope, I would think, that we will ever 
change their minds.
    But the rest of those guys there, is there any assumption 
that should be made that these are more dangerous than perhaps 
the ones that have been released? Are they just unfortunate 
they got caught and the process has kind of stopped?
    Secretary Lynn. I think you should assume that the 48 that 
we have determined should be in long-term detention, that that 
determination was based on a review of the threat that they 
pose and that those are the ones that I used the President's 
description that they continue to be at war at us and they 
continue to pose a significant threat to our national security.
    So I think you should assume those are indeed more 
dangerous than the ones that we have released.
    Mr. Kissell. And then the 100 and some that aren't that 48, 
once again, is it just a matter of the process has failed to 
move forward for whatever reason and they just got caught 
there?
    Secretary Lynn. There are three principal groups in there. 
There are some that we plan to prosecute. I think the number is 
36 that we are looking to prosecute and we are proceeding on 
that process, either in an Article III or a military commission 
forum.
    The remainder, then, are detainees from other nations where 
we have not been able to find an appropriate transfer location 
where we get the appropriate security assurances, and we are 
continuing to review that.
    And then there is a large population of Yemenis, and the 
President has determined that given the situation in Yemen and 
the fluid situation and the strong presence of Al Qaeda, that 
is not a nation that we can send detainees back to.
    Mr. Kissell. And one time before----
    Secretary Lynn. At this time.
    Mr. Kissell [continuing]. In hearings--and, Mr. Johnson, it 
might have been you that I asked the question to--at the time I 
was told that there is nothing that we are considering that 
should be any influence to the people in the battlefield in 
terms of how they fight their fight, how they take care of 
their business.
    They look after themselves and defeat their enemy without 
having to worry about, you know, Miranda rights or anything 
like that. So there is nothing that is going to back up to the 
battlefield that we are talking about now. Is that correct?
    Mr. Johnson. That is correct. I don't believe that it is 
the job of a soldier or a Marine at the point of capture to be 
reading somebody their Miranda rights. They are not in the 
business of evidence collection or arresting people. They are 
in the business of engaging the enemy on the battlefield.
    Mr. Kissell. Well, and I would just like to conclude by 
agreeing with my colleague, Mr. Andrews, and the sentiment of 
others that have been expressed here. You know, this 10 years 
time has drug on. It is time to make this process start 
working. And I appreciate you all's effort to do this.
    And once again I appreciate the chairman and ranking member 
for working together to move this process forward, too.
    Thank you.
    The Chairman. Thank you.
    We not only have to work together. There is another body 
also. So there are a lot of us that need to work together, and 
I think it is a very important issue, and we will continue 
doing so.
    Mr. Rooney.
    Mr. Rooney. Thank you, Mr. Chairman.
    You know, Mr. Chairman, I think somebody said that this 
isn't a markup, but to me it is kind of feeling that way, 
especially when the ranking member said something about what 
our bill could or might do. And I jumped up and asked staff and 
said, ``Wait a minute, that is not correct.'' And they said, 
``No, that is not correct.''
    And you know, I think that it is also kind of interesting 
that Mr. Andrews' line of questioning, which I usually wouldn't 
agree with 99 percent of the time, I completely agree with.
    I just think I feel like we are--hopefully, this is an 
opportunity and it is not something that we are missing by 
talking about this in a way that you are starting to see kind 
of a unified front up here in what we should be doing after 10 
years, versus, you know, what we have done.
    And whether it is Article III or military commission, we 
have worked together with the administration. We have worked 
together as a Congress to get military commissions where they 
are.
    And, you know, as a former judge advocate, you know, and 
somebody who has talked to defense counsels and members of the 
JAG [Judge Advocate General] Corps, I kind of feel like we have 
the system in place we need. And the problems with Article III 
and evidence and intelligence and that kind of thing, and cost, 
really, really are pushing us in the direction of just let us 
get something done here.
    With that, I want to ask, really quickly--I have a lot of 
questions here, so I want to try to get as many in as I can.
    Mr. Secretary, just generally speaking, philosophically, do 
you believe that the military commission system represents the 
values of our judicial system?
    Secretary Lynn. Yes, I do.
    Mr. Rooney. Do you think that the military lawyers, both 
defense and prosecution, are generally capable and fair?
    Secretary Lynn. We have superb lawyers on both sides.
    Mr. Rooney. Do you see intelligence problems and the 
divulgence thereof either with sources or methods or gaining 
evidence and using that to prosecute in an Article III court?
    Secretary Lynn. I think that is one of the considerations 
as you decide which is the better forum between Article III and 
a military commission is how best to protect the sources and 
methods in gathering intelligence.
    Mr. Rooney. I guess what I am getting at is, if we have got 
military commissions that we think represent our values--and 
you yourself said a lot of these guys down there are still at 
war with us; the Department of Justice wanted to try to move 
some of these guys to New York because they attacked civilians, 
but it was an act of war--if military commissions represent who 
we are and our values and the lawyers and the prosecutors and 
defense counsels are people that we can all be proud of and 
that due process can move forward and protect our intelligence 
and our evidence, why aren't we doing it?
    I mean, why aren't we doing it and just forget about 
Article III when it comes to the people we have at Gitmo?
    Secretary Lynn. We think that would be a one-size-fits-all 
approach. We think the better approach would be to use all of 
the tools we have in our judicial system--the Article III 
approach, the military commission approach. Take the approach 
that best fits the circumstances of the crime and proceed down 
that.
    As you said, both reflect our values, but in some cases we 
are better able to proceed down an Article III path, where we 
have had considerable success prosecuting and convicting 
terrorists--several hundred in the last decade alone--or in 
some cases, the military commission path is the better, given 
the way the evidence was collected given the location of the 
alleged crime.
    And what we think we ought to do is to decide which is the 
better forum based on the circumstances of the case.
    Mr. Rooney. Do you think the Administration should do that 
unilaterally without Congress?
    Secretary Lynn. I think the decision on prosecution is an 
executive branch decision, yes, sir.
    Mr. Rooney. Okay, let me move on because I am running out 
of time.
    Mr. Johnson, if we could move into the executive order 
specifically with regard to the periodic review board, which is 
another level of review, which may not be a bad thing--I am not 
saying that, but it is something that the President decided 
unilaterally--when the President's executive order contemplates 
that the Government will need to turn over vast numbers of 
documents, here again discovery, including all relevant 
mitigating information, that is a broader standard that is even 
used in our habeas cases in Federal court.
    Are you concerned about the breadth of information that we 
would be potentially turning over in discovery?
    Mr. Johnson. Without a doubt, we are going to have to put 
in place a system and personnel to deal with this review 
process that has been established.
    I do think it is appropriate for a law of war detainee to 
have the opportunity to see the evidence, consistent with 
national security. If there are circumstances where for 
classification, we can't share it, we won't share it. But I do 
think it is appropriate that the detainees have the opportunity 
to see what the Government has, and for the board to as well.
    Mr. Rooney. And if I could real quick just, also in the 
executive order the detainee qualifies for continued detention 
whether or not they constitute a significant threat to the 
United States. Could you try to explain to us in as easy terms 
as possible what does a ``significant threat'' mean?
    Mr. Johnson. I think that the term will likely be better 
addressed in the implementing guidelines. I also believe that 
the term will develop some meaning as we go forward in the 
actual evaluations. I can tell you that that term in the 
drafting, there was no conscious effort to in some way raise 
the bar so that we would be releasing more people. So that was 
not the intent behind that phrase.
    Mr. Rooney. Mr. Chairman, I am over time.
    I appreciate your answers. Thank you.
    I yield back.
    The Chairman. Thank you.
    Mrs. Davis.
    Mrs. Davis. Thank you, Mr. Chairman.
    And thank you both for being here and for your service.
    How do you plan to deal with those prisoners that have been 
detained at the detention facility in Parwan on classified 
evidence alone and evidence that we cannot turn over to the 
Afghan Government?
    Is there a plan for how these prisoners will be tried? And 
are there plans to move them anywhere else? And what is the 
percentage, really, of detainees at the DFIP [Detention 
Facility in Parwan] who can be turned over to the Afghan 
Government for court trial? Are there any who can be?
    Secretary Lynn. As we go through the detainee review boards 
in Afghanistan at Parwan, I think we find generally between a 
third and a half of the detainees could be referred for 
prosecution. And I think, if I remember correctly, that the 
Afghans are preparing about 400 cases pursuant to those 
referrals.
    Mrs. Davis. On that issue of information that we can share 
or in many cases not share, how do you deal with that?
    Secretary Lynn. Well, it has to be done on a case-by-case 
basis. I don't think as a broad matter that it has posed a 
problem in terms of prosecutions. There are probably 
individuals where we have had to withhold, but in most of the 
cases, we have been able to share the appropriate information 
to allow the Afghan Government to proceed.
    Mrs. Davis. Is there anything about the facility that is an 
issue in terms of Parwan's reintegration program? What kind of 
success or lack thereof have we seen? Have any of those 
detainees been released by the review boards and have they come 
back in in any cases? What do we know about that?
    Secretary Lynn. One of the reasons that we constructed the 
facility at Parwan is that we found that the old facility, 
which was basically an old airplane hangar that had been 
converted into a detention facility, actually promoted more 
increasing radicalization of the population.
    And by having a more modern facility with appropriate 
security safeguards, but better conditions for the detainees 
and a better ability for the guard force to monitor them, I 
think we have been able to address that issue of increasing 
radicalization.
    Mrs. Davis. Do we have any numbers in that regard in terms 
of the number of successful individuals who have been 
reintroduced back into society? And how do you determine 
success? Is that basically----
    Secretary Lynn. I do not have numbers for the releases from 
Parwan as to where they have gone in society and what the 
success rate is.
    Mrs. Davis. All right. Thank you.
    I yield back my time.
    The Chairman. Thank you.
    Mr. Schilling.
    Mr. Schilling. Good evening, fellows.
    There are a couple of questions I want to get to. In fiscal 
year 2011, the defense authorization bill, Congress prohibited 
the transfer and release of the Guantanamo detainees to or 
within the United States. President Obama signed this bill into 
law, and then a week ago this past Monday the White House 
announced that it would seek repeal of the restrictions imposed 
by Congress.
    Which aspect of the prohibition are you seeking to repeal? 
Are you seeking to move Gitmo detainees to the United States 
for detention or prosecution? Or are you seeking to release the 
detainees into the United States? Or all of the above?
    Secretary Lynn. The President, I think, has been clear that 
he thinks that we should pursue Article III prosecutions in the 
United States, and he would certainly want to see that 
repealed. He has been equally clear that we were not going to 
release detainees into the United States.
    Mr. Schilling. Is the Administration still considering 
opening the Thomson, Illinois, prison as a possible detention 
site for the detainees?
    Secretary Lynn. We would certainly like to close 
Guantanamo. Thomson was the location that we had identified to 
move the remaining detainees to. Obviously, we haven't 
succeeded in that--in Congress at this point. I don't think we 
have changed course, but we recognize that we have quite a bit 
of persuading to do.
    Mr. Schilling. So basically, Thomson, Illinois, is still on 
the table?
    Secretary Lynn. To the extent there is a table.
    Mr. Schilling. Okay. And then, have you looked at what the 
cost would be of relocating the detainees to the United States 
for detention and then, if so, how much would it cost?
    Secretary Lynn. At one point, I had all these costs in my 
head. I am afraid I don't right now. But I can tell you the 
overall assumption, when we were doing the analysis 12 or 18 
months ago, where there was an initial cost to moving to 
Thomson, but the cost of Thomson operations were lower than 
Guantanamo, and so the initial costs were paid back in, I 
think, a period of 2 or 3 years.
    Mr. Schilling. Very good, thank you. And I yield back my 
time.
    The Chairman. Thank you.
    Mrs. Hanabusa.
    Ms. Hanabusa. Thank you, Mr. Chairman.
    Mr. Secretary, in the final report on Guantanamo, we have, 
of course, 126 who have been approved for transfer, 44 referred 
to military commissions, 48 considered to be basically too 
dangerous and 30 who are detainees who are in conditional 
detention.
    Who made the decision as to who would fit in each one of 
these categories?
    Secretary Lynn. There was an interagency review process 
that started with a task force that assessed all the 
intelligence, the legal, all of the information available on 
each of the detainees. That was reviewed by a deputy's 
committee and ultimately by the principal's committee of the 
National Security Council.
    Ms. Hanabusa. So it wasn't any kind of trial or any kind of 
a legal proceeding where whoever may be falling in whichever 
category had some kind of rights to either contest or to have a 
say?
    Secretary Lynn. This wasn't a legal proceeding. This was a 
review process. Most of these detainees have been pursuing 
habeas actions, and that has been their legal avenue.
    Ms. Hanabusa. That brings for me a question to Mr. Johnson.
    Of the habeas corpus petitions, I think 57 were filed and 
37 actually prevailed. So they were released in some form or 
another.
    Now, my question is, when you think of habeas corpus, you 
think about it in terms of our legal system and the criminal 
rights associated with it. Now, do those same laws apply when a 
detainee avails himself of habeas corpus?
    Mr. Johnson. A habeas proceeding is a civil proceeding, not 
a criminal proceeding. And in the habeas cases that are in 
Federal court here in Washington, as the practice has evolved, 
we see that detainees' discovery rights have been expanding 
over time.
    In limited instances, I think it is the case that the 
district courts wanted to hear from live witnesses. That 
happens once in a while. The practice has evolved, but it is 
fundamentally a civil proceeding with a different burden of 
proof. It is not proof beyond a reasonable doubt.
    Ms. Hanabusa. No, I understand that. But I am saying that 
they avail themselves of the same rights that you and I might 
have, if we were filing a habeas corpus proceeding? Would that 
be a correct statement?
    Mr. Johnson. Generally, yes, in the Federal courts in the 
United States, yes.
    Ms. Hanabusa. And in that light, how many of these habeas 
corpus proceedings that they have prevailed on have resulted 
with civil litigation against the United States for either 
improper detaining, civil rights--maybe not civil rights in the 
classic sense, but have we had those kinds of basically 
liability exposure as a result of us losing the habeas corpus 
proceedings?
    Mr. Johnson. No, not really. There have been some cases 
brought by former detainees, who were released or transferred 
back to their home country who then brought up litigation as a 
former detainee. Detainees have not had a lot of success in 
those cases.
    Ms. Hanabusa. But they have been brought?
    Mr. Johnson. There have been a few of them, yes, by former 
detainees.
    Ms. Hanabusa. Now, my other question to you is now the 
proceeding here is you want all the different rights available. 
Now, if you go to an Article III proceeding, which, of course, 
is our Federal court system--and you touched upon the fact 
that, when they are--I guess, they are not arrested, but they 
are picked up in a war situation, you don't have Miranda--so 
how and what set of laws are going to govern in a Federal court 
proceeding under Article III? What kind of laws?
    Mr. Johnson. Basically, what the courts are doing is trying 
to evaluate whether the detainee fits within our definition of 
unprivileged enemy belligerent, the AUMF, as informed by our 
definition of who we say we can detain.
    And that is not the application of any particular state or 
Federal Law. It is the application of the habeas remedy, and 
the courts are trying to assess whether the detainee fits 
within the AUMF authority that the Congress gave us.
    And in the cases where the Government has not prevailed, it 
has been not through any, you know, unorthodox legal 
interpretation. It is because there simply was not the 
intelligence and the evidence that we were able to put together 
to justify continuing holding that person.
    There were some decisions that we disagree with, obviously, 
and we have appealed those. But it is not the application of 
any particular body of law except for the habeas law that is 
developing now in these cases.
    Ms. Hanabusa. Thank you.
    The Chairman. Thank you.
    Mr. Griffin.
    Mr. Griffin. Thank you, Mr. Chairman.
    Thank you all for your testimony today.
    I would like to start just by clarifying something. I heard 
a reference earlier to the bill. I think someone indicated that 
an Abdulmutallab situation, where someone has picked up in the 
United States, would have to be sent to Gitmo under the bill.
    That is not the case. They would just simply be detained by 
DOD, and they would not necessarily have to go to Gitmo. But I 
just wanted to clarify that.
    Mr. Secretary, I want to talk a little bit about the 
Abdulmutallab situation. If that sort of incident, Christmas 
Day incident, were to happen today, would DOD be consulted in 
any way? Is there a role for DOD to play in that process if it 
were to happen today?
    And both of you?
    Mr. Johnson. Yes.
    Secretary Lynn. Yes.
    Mr. Griffin. Could you elaborate on that?
    Mr. Johnson. I believe----
    Mr. Griffin. Part of written protocol, or is this just----
    Mr. Johnson. No, it is not part of a written protocol, 
but--and I hesitate on hypotheticals--but if an individual who 
had attempted to commit a terrorist act, and it appeared that 
he was part of A.Q. [Al Qaeda] or an affiliate--in other words, 
he had trained at a camp, an A.Q.-run camp--were arrested here 
in the United States in the process of trying to commit a 
terrorist act as part of the ongoing conflict, I believe it is 
the case that we, along with the intelligence community, the 
interagency would be consulted about the disposition of that 
individual, yes.
    Mr. Griffin. Okay. If there is any doubt, would you confirm 
that and maybe get back to us on that, just if there is any 
doubt?
    Mr. Johnson. Okay.
    Mr. Griffin. I mean, if the answer is yes, the answer is 
yes.
    Secondly, Mr. Secretary and Mr. Johnson--this may be better 
suited to you, Mr. Johnson. Many members I have talked with 
here have had serious concerns about allegations that sensitive 
materials have been provided to detainees, potentially, through 
their attorneys.
    And my understanding is there is a security protocol in 
place for Federal habeas corpus cases that provides, sort of, a 
walled-off privilege team to ensure that the classified 
information is not passed.
    My understanding is there is not such a privilege team in 
the military context. And so if you could comment on that 
generally and let me know whether we plan to keep things as 
they are or possibly have something like that enacted?
    Mr. Johnson. One of the things I discovered is that we do 
not have a similar protocol in place for commissions cases like 
the one we have in habeas cases. And so the convening authority 
has developed one. He recently settled on the document, and he 
put it out to the defense counsel for comment.
    I imagine the defense counsel is not too happy with it. And 
so the convening authority and the defense counsel will consult 
each other on the document that the convening authority 
proposes to put in place, which is modeled after the privilege 
team protocol for the habeas cases.
    And there are a number of other reforms that I think we put 
in place over the last 12 months or so to deal with the 
situation that you have described.
    Mr. Griffin. Okay, great. And I assume, at the appropriate 
point, we could get a briefing on that, maybe.
    And lastly--I have got just a short amount of time here--in 
response to one of the three executive orders that President 
Obama issued in January 2009, my understanding is the White 
House established an interagency team to question terrorists 
known as the high-value interrogation group.
    DOD was involved in the creation of this group--that is my 
understanding--and plays a role in its operations.
    I don't want you to disclose anything that you shouldn't. I 
understand you can't share, maybe, specific details, but could 
you give us an idea about how well this group is functioning, 
whether this has been a good development?
    Mr. Johnson. I haven't heard of any issues.
    Secretary Lynn. I think it has only been used in a couple 
of instances, and I don't think I can go further than that 
here.
    I think we have set up the processes. And the intent here 
was that we would have the ability to fly subject matter 
experts to a potential capture so that we had people who had a 
base of knowledge involved in the questioning, rather than just 
who happened to be there.
    And so I think the principle is right. I think we put the 
procedures in place to exercise it where necessary.
    Mr. Griffin. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman.
    Gentlemen, thank you for your appearance today. And I had 
the occasion to visit Guantanamo, the facility in which the 
enemy combatants are being held. And I was impressed with the 
conditions that I could see under which they are being held. 
And I didn't see the particular cells that they are in, but is 
it 6 feet by 12 feet, something like that--cells, you know?
    Secretary Lynn. I think they vary. Some cells are that 
size, some that there is more of a community-based process. So 
it is a variety. There is not a single cell size.
    Mr. Johnson of Georgia. And with the high-value detainees, 
they are held in individual cells. Correct?
    Secretary Lynn. I don't think in an open forum I can go 
very far on that.
    Mr. Johnson of Georgia. Okay. Well, they are not shackled 
while they are in their cells, are they?
    Secretary Lynn. I think what I would assure you, 
Congressman, is that with all of the detainees at Guantanamo, 
we are following very strictly the provisions of the Geneva 
Convention.
    Mr. Johnson of Georgia. Well, I will tell you, I didn't see 
any prisoners that were shackled in their cells, while we were 
there. And what time do they get up in the morning?
    Secretary Lynn. I am not sure.
    Mr. Johnson of Georgia. Are they forcibly kept awake until 
a certain hour of the day before they can go back to sleep?
    Secretary Lynn. No.
    Mr. Johnson of Georgia. And they are not forced to sleep 
naked?
    Secretary Lynn. No.
    Mr. Johnson of Georgia. Not forced to undergo a strip 
search every morning?
    Secretary Lynn. No.
    Mr. Johnson of Georgia. And but now yet, a gentleman is 
being held in U.S. custody. It is Private 1st Class Bradley 
Manning, being currently held at Quantico, charged with serious 
offenses. And let me state clearly and forcibly that if he is 
convicted of those charges, then he should be severely 
punished.
    But from what I have seen down at Guantanamo and what I 
have heard about the conditions of confinement for Private 
Manning, it seems to me that the enemy combatants are being 
treated better than he. And he is just simply an accused. He 
has not been convicted of anything. And I am concerned about 
that.
    Mr. Johnson. Congressman, Private Manning is in pre-trial 
confinement, which is a common thing in the military justice 
system and in our civilian criminal justice system. And there 
are a variety of reasons why somebody is in pre-trial 
confinement before their trial.
    I think, frankly, that there has been a fair amount of 
misinformation.
    Mr. Johnson of Georgia. So he is not being held in a 6-by-
12-foot cell with 1 hour per day outside of the cell, and he is 
shackled while he is in the cell? And it is not true that he is 
awakened at 5 a.m., 7 a.m. on the weekends, and forcibly kept 
awake until 8 p.m. and routinely awakened in the middle of the 
night? That is not true?
    And it is not true that he is forced to sleep naked and 
subjected to naked examination every morning? Those things are 
not true?
    Mr. Johnson. Private Manning is, first of all, not in 
solitary confinement. He has never been in solitary 
confinement. That is a piece of public misinformation.
    It is public that he currently is in a classification 
status called maximum security. However, someone in maximum 
security at Quantico occupies the same type of cell, which is a 
single-occupancy cell--I don't know the dimensions--that a 
medium security pre-trial detainee at Guantanamo would occupy, 
the very same type of cell.
    And you could have a maximum security confinee and a medium 
security confinee there in the same row of cells, and they can, 
in fact, converse with each other. The difference in----
    Mr. Johnson of Georgia. But no one else is held under those 
same conditions of confinement, though, that Private Manning is 
being held under?
    The Chairman. Mr. Johnson, your time has expired.
    And perhaps Mr. Johnson can follow back with you off the 
record.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Johnson of Georgia. And thank you for your answers.
    The Chairman. Thank you.
    Mr. Bartlett.
    Mr. Bartlett. Thank you very much.
    I am genuinely conflicted. With one person out of 22 in the 
world, and we have a fourth of all the good things in the 
world, and I ask myself, how come?
    It is not because we no longer have the world's best work 
ethic. It is not because we have the most respect for technical 
education. This year, the Chinese will graduate seven times as 
many engineers as we graduate. It is not because we have the 
most respect for the nuclear family, because nearly 50 percent 
of our kids are now born out of wedlock.
    Why is it then, that we are so darn fortunate?
    I think a major reason is the enormous respect that we have 
for civil liberties. There is no other constitution, there is 
no other bill of rights that so defines and protects these God-
given civil liberties. I think we put at risk who we are as the 
world's only economic and military superpower if we permit any 
corrosion of these civil liberties.
    I note in the Constitution that it is people that are 
protected, not just citizens. I read it over and over again, in 
the Bill of Rights.
    The expediency of the moment to enhance national security 
has resulted in indefinite detention of individuals, some of 
them even U.S. citizens, without any charges. And the President 
has made an incredible public statement that even if tried in 
court and found innocent, we are going to detain them 
indefinitely, because we know they are guilty and are a threat 
to our country.
    If the expediency of the moment permits these bizarre 
rationalizations, Mr. Lynn and Mr. Johnson, I am concerned that 
future rationalizations for national security could target you 
and me for indefinite detention and denial of our civil 
liberties.
    I have 10 kids and 17 grandkids and 2 great-grandkids. I, 
obviously, have a lot of reasons for maximum national security. 
But at what price? Dissuade me, please, from my concerns and 
free me from the torment of my confliction.
    Secretary Lynn. Congressman, I think you are right to be 
conflicted. I think with these detainees, we are in a difficult 
situation, in particular with the ones that I think you are 
focused on, which are the 48 that we have done, frankly, a 
comprehensive review, and we have determined that they, as I 
said, continue to be at war with the United States and continue 
to pose a threat.
    And we have the legal authority to hold them, as they have 
gone through their habeas proceedings and the court has held, 
indeed, that there is a legal basis for holding them.
    But I think the significance of the executive order--I am 
not sure it is going to make you rest completely easy, and 
maybe you shouldn't, but I think it should ease you some--the 
significance of this most recent order is one part of it was to 
set up a process which is a continual review process of these 
48.
    It allows for an initial review after 1 year, and then file 
reviews every 6 months, to ensure that we continue to believe 
these individuals pose a significant threat, that there has 
been no change in circumstances, no additional information has 
been found.
    We give the detainees a robust process to bring forward any 
information that they think is relevant. And then we have 
another comprehensive review every 3 years. This is, I think 
intended to be a protection against exactly what you fear, that 
this is somehow an indefinite detention authority without 
recourse.
    Mr. Bartlett. What about the President's incredible 
statement, that even if found innocent, we know they are 
guilty, and we will keep them detained indefinitely?
    Secretary Lynn. That is not a statement I have ever heard.
    Mr. Bartlett. It is a statement I have heard widely 
reported, sir.
    Thank you very much, Mr. Chairman. I yield back.
    The Chairman. Thank you.
    Mr. Larsen.
    Mr. Larsen. Mr. Chairman, I just would alert anyone who 
wants to be next to go ahead and be next. Most of the 
information I need to get from the hearing is in the testimony 
and just to be sure I am understanding the process that the 
Administration's executive order is laying out. I will do any 
follow-up questions based on that at a later time.
    Thank you. I yield back.
    The Chairman. Thank you.
    The gentleman yields back.
    Mr. Wilson.
    Mr. Wilson. Thank you, Mr. Chairman.
    And thank you, Secretary Lynn, for being here.
    And, Mr. Johnson, as a fellow former JAG officer, I 
appreciate your service.
    I have had the privilege of actually visiting Guantanamo 
Bay three different times. Each time I go, with my background 
in the state senate on the corrections and penology committee, 
I am very familiar with detention facilities. It is a world-
class facility.
    It is a facility where we have young people who are truly 
serving our country well. It was extraordinary to me to see the 
young National Guard members from Puerto Rico, who were serving 
on my last visit.
    And it is so encouraging because to me illegal enemy 
combatants should be held in accordance with international law, 
as we did in World War II, even, beginning further, during the 
American Civil War it was understood by President Abraham 
Lincoln that our Constitution is not a suicide pact.
    Keeping that in mind, a lot of American citizens don't 
understand, you correctly identified, that persons being 
detained there are a threat to the security of the American 
people, American families.
    But also, there are a number of people being held who 
cannot be released back to their home country for different 
reasons, such as their own security. Could each of you comment 
on the different reasons why we would hold people for an 
indefinite period?
    Secretary Lynn. Well, as I indicated earlier, there are 
several different groups that make up the bulk of the detainees 
in Guantanamo. There are the 48 where we have done this 
comprehensive review, and those are the ones that remain a 
continuing threat.
    There are the 36 who we are looking at the opportunities or 
the options for prosecution. There are a smaller group that we 
are continuing to look at transfer options, if we can find the 
appropriate security assurances.
    And then there is a fairly large group of Yemenis, who many 
of which we think pose a relatively modest risk, except for 
where they would return to, Yemen, because of the situation in 
Yemen and the strong Al Qaeda presence. These are not--I 
wouldn't call this indefinite detention in the same way as with 
the 48, but we don't have any options right now that would 
allow us to transfer them with appropriate security assurances.
    Mr. Wilson. And----
    Excuse me. Go ahead, please.
    Mr. Johnson. Sorry, Congressman Wilson. I was with you on 
your last trip to Guantanamo. And you are absolutely correct 
that we have got a professional and a professionally run 
facility down there. The guard force, as you know, is first-
rate.
    The point I would like to make is that law of war detention 
of a congressionally declared enemy is not new. It is a very 
traditional concept. In a congressionally declared conflict, 
armies are supposed to capture and kill the enemy. And when we 
capture the enemy, we don't capture them with the purpose of 
releasing them, and we don't capture them for the purposes of 
all of them being prosecuted.
    So the concept of holding onto your enemy once you capture 
them is not new. It is very traditional. And it is an authority 
that the Supreme Court has said that we have.
    Mr. Wilson. Another thing that I learned that was so 
interesting, that the American people can understand. Some of 
these were detained on the battlefield in the middle of 
Afghanistan. They were from, say, Uighurs from China. They were 
Chechnians from Russia.
    On their person, they would have, say, $500 in U.S. 
currency or they would have a particular Citizen watch. It may 
seem very peculiar for somebody in the middle of Afghanistan to 
have, except for one thing. That particular watch had a timer. 
That meant that they were a graduate of bomb school.
    And so I truly support both of your efforts, and I am glad 
I believe the President has now determined that Guantanamo Bay 
is a proper location for people who are truly a threat to the 
people of the United States.
    Thank you very much.
    The Chairman. Thank you.
    Mr. West.
    Mr. West. Thank you, Mr. Chairman and Mr. Ranking Member.
    And gentlemen, thank you for being here today.
    I, too, had the opportunity a couple weeks ago to go visit 
Guantanamo. And of course, I have had in a previous life some 
trips over to various vacation spots, being in Iraq and 
Afghanistan.
    I think one of the things we have to come to grips with and 
what causes us so much consternation is really to understand 
are we dealing with criminals or are we dealing with enemy 
combatants. And if we are dealing with enemy combatants, are 
they legal or illegal enemy combatants?
    And so I would like to ask a series of questions. The 
gentleman who shot our four airmen, killing two of those airmen 
in Frankfurt, Germany, do you consider that a criminal or an 
enemy combatant?
    Mr. Johnson. Congressman, I hesitate to comment on a 
particular case. I will say this, that the first thing I would 
ask myself is, is this person part of the congressionally 
declared enemy in the congressionally declared armed conflict? 
That is the--that is the question I think we have to ask.
    If the person who commits a violent act against our 
military is part of Al Qaeda or an associated force, then that 
is something that may well be a matter for our military versus 
law enforcement. But, you know, it is hard to generalize here.
    Mr. West. Well, see, I think one of the problems is if you 
go back and you look at World War II, I mean, in World War II 
we did not go to fight the 12th Panzer Battalion or the 55th 
Japanese Infantry regiment.
    So, I mean, we are going to see more of these incidents 
where our men and women in uniform are being attacked, and I 
think that one of the critical things that we have to do in 
this Nation is really defining this enemy and defining the 
battlefield so we don't have these moments of indecision.
    I look at what just happened recently with the Somali 
pirates. I mean, we have 15 of them that we have now brought to 
the Norfolk courthouse for doing something where they basically 
commandeered a U.S.-flag vessel, being a civilian vessel, and 
executed four Americans.
    Now, history will tell me that back in the early 1800s, we 
had something similar to that happening and we sent the 
Marines. Do you believe that these Somali pirates should be 
entered into our U.S. civilian court system? Or should they be 
brought down to Guantanamo Bay?
    Mr. Johnson. Guantanamo Bay is intended for enemy 
combatants, the enemy being the congressionally declared enemy. 
I think we have to be careful--and I am sure you appreciate 
this--we have to be careful about the slippery slope. Not every 
action of our Government against a bad person or even a 
terrorist should necessarily be a military action. We have to 
be careful not to over-militarize our approach to acts of 
terrorism.
    I think there is a place for law enforcement, not 
necessarily U.S. law enforcement, law enforcement of other 
well-developed nations. But I think that given this 
unconventional conflict we are in against a non-state actor, we 
have to be vigilant not to let the slippery slope creep into 
our thinking about who our congressionally declared enemy is in 
this armed conflict. And that is something that I have to 
assess almost daily in my job.
    Mr. West. So if Al Qaeda were tomorrow to change their name 
to the Bombay Bicycle Boys Club, would they not be a 
congressionally termed enemy? I mean, would we treat them 
different?
    Mr. Johnson. If they changed their name, hopefully our 
intelligence would be able to figure that out and we would 
realize that it is still Al Qaeda.
    Mr. West. I think the most important thing that we have to 
do is to not constrain ourselves in understanding this modern 
21st-century battlefield and it is only this named enemy or 
that named enemy, because what is Hamas? And of course, before 
there was Al Qaeda, the number one terrorist organization that 
killed the most amount of Americans was Hezbollah. So do we not 
see Hezbollah as an enemy force?
    I will finish up on this last question. Twenty-four years 
of age, Omar Khadr, who is guilty of five war crimes, to 
include killing a U.S. serviceman, will be released out of 
Guantanamo Bay next year and sent back to his native country of 
Canada. What was the genesis of coming forth with this deal? 
And how can you explain that to the parents of that American 
serviceman who was killed?
    Mr. Johnson. That was an arrangement reached between the 
prosecutors, the defense counsel, ultimately endorsed by the 
convening authority. As general counsel of the Department of 
Defense, I don't make prosecution judgments or plea 
arrangements. I am not supposed to.
    I am satisfied that the parties collectively did what they 
needed to do. And I also know that the victim's family was 
consulted throughout the process.
    Mr. West. Well, I know that we talked about credibility. 
And I think the most important credibility we must maintain is 
the credibility we have with our men and women in uniform.
    Thank you very much.
    And I yield back, Mr. Chairman.
    The Chairman. Thank you.
    Ranking Member Smith.
    Mr. Smith. Thank you, Mr. Chair.
    Just a couple of closing comments on our side. I don't 
really have any additional questions.
    The biggest thing is that I want to agree with the 
chairman. There is a very strong need for the executive branch 
and the legislative branch to work together on this, and I 
don't think we have done a good enough job on that to this 
point.
    And I would strongly encourage the executive branch and the 
White House to work directly with Mr. McKeon and with the 
Republicans as we craft this legislation, because part of my 
concern is that, you know, absent that sort of collaborative 
process--I mean, at this point we both sort of agree that we 
don't want to talk to any--both sides don't want to talk to 
each other about what they are actually doing until they 
present it, and then we will fight about it.
    There is a real danger in that if the legislation gets 
moving in a direction that is not properly reined in. I think 
that was one of my comments earlier about the legislation that 
was released last week, both by Senator McCain on the Senate 
side and here in the House by the chairman.
    You know, we do need the advice of the executive branch. 
And frankly, it has been there on and off, but I don't think it 
has been as active as it should have been, working with 
Congress either, you know, Republican or Democrat, to say, 
``Hey, what are you talking about? Here is what we are talking 
about. Let us try to work this out.''
    You know, and I think the, you know, the question of the 
militarization of this is one of my concerns. And it may be 
true that under this legislation, they would not be required to 
take them to Guantanamo. If they are doing military tribunals 
and that is where they are doing military tribunals, I would 
suspect that would be the outcome.
    But it is absolutely true that the legislation would put 
the military in charge of essentially U.S. prosecutions. If you 
had, you know, crimes like the attempted bombing in Times 
Square, under the new legislation it would be the military that 
would be responsible for holding, trying and interrogating that 
person right here on U.S. soil. That is extremely problematic 
to give the military that amount of power.
    And then you can ask the question if you were trying to 
find collaborators who worked with them, who would be subject 
to this as well, who is doing that investigation? If the 
military is ultimately responsible for holding, interrogating 
and trying these people, wouldn't the military then be involved 
in a domestic U.S. investigation to try to find who it is that 
they are supposed to grab?
    Those sorts of implications, I think, are alarming and I 
think they would be alarming to the majority party as well, 
once we played it out. But absent a collaborative process 
between the executive branch and the legislative branch, you 
wind up with that.
    And I think, you know, many of us would agree that the 
prohibitions contained in the National Defense Authorization 
Act from last year had consequences that we would rather not 
have seen that came about because there was a battle and one 
side won, and that is where we wound up, instead of a 
collaborative process.
    So I, you know, applaud the chairman for holding this 
hearing and would encourage greater collaboration between the 
executive and the legislative branches as we move forward with 
this process.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, and I appreciate your comments.
    There is a reason for that. None of us has all the 
brainpower to make all the best decisions, and I think the more 
all of us are involved in the process, the more chance we have 
of getting a better product and not making mistakes. And that 
is my whole purpose in this. And I am sure we will work 
together. And I know that we are not far from the Senate in 
this.
    My goal is to have legislation come out that will be 
helpful in the war that we are engaged in.
    With that, thank you very much. The votes were postponed, 
so we were able to get through the hearing. I appreciate your 
patience. I appreciate all the members being here.
    And with that, this hearing will be adjourned. Thank you.
    [Whereupon, at 2:36 p.m., the committee was adjourned.]
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                            A P P E N D I X

                             March 17, 2011

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              WITNESS RESPONSES TO QUESTIONS ASKED DURING

                              THE HEARING

                             March 17, 2011

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             RESPONSES TO QUESTIONS SUBMITTED BY MR. FORBES

    Secretary Lynn. [The information was not available at the time of 
printing.] [See page 11.]
    Secretary Lynn. [The information was not available at the time of 
printing.] [See page 11.]
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             RESPONSE TO QUESTION SUBMITTED BY MR. ANDREWS

    Secretary Lynn. [The information was not available at the time of 
printing.] [See page 12.]
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              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             March 17, 2011

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                   QUESTIONS SUBMITTED BY MR. MCKEON

    Mr. McKeon. 1. Please describe the manner in which prosecutors and 
defense attorneys are selected to serve in the Office of Military 
Commissions Prosecution and Defense, including any particular expertise 
or criteria required for such service.
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mr. McKeon. 2. Please provide the number of military or DOD 
prosecutors currently assigned to the Office of Military Commissions 
Prosecution, whether they are active duty or reservists, the numbers of 
years they've been assigned to the office, and a general description of 
how many of these prosecutors have experience in counterterrorism or 
other national-security related cases.
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mr. McKeon. 3. Please provide the number of prosecutors the 
Department of Justice has assigned to the Office of Military 
Commissions Prosecution, the numbers of years they've been assigned to 
the office, and a general description of how many of these prosecutors 
have experience in counterterrorism or other national-security related 
cases.
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mr. McKeon. 4. How is the Department ensuring that the military's 
most experienced trial attorneys are being assigned to the Office of 
Military Commissions?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mr. McKeon. 5. Please provide the FY12 funding request for the 
Office of Military Commissions.
    Secretary Lynn. [The information was not available at the time of 
printing.]

    Mr. McKeon. 1. Please respond to the following questions regarding 
the President's executive establishing Periodic Review Boards (PRB) for 
Guantanamo detainees:
    a) The standard described in the executive order for whether a 
detainee qualifies for continued detention is whether they constitute a 
``significant threat'' to the United States. What constitutes a 
``significant threat?'' Is this the same standard that was used by the 
Guantanamo Review Task Force? If not, how does it differ?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. b) What role will a detainee's counsel play in the PRB 
process? What kinds of filings will be allowed? What appearances will 
they be able to make? Will there be oral arguments presented to the 
PRB?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. c) What role will the detainee's counsel play during 
file reviews? Will the detainee's personal representative or counsel be 
entitled to any discovery during file reviews?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. d) The executive order states that the Government will 
need to turn over all relevant ``mitigating information.'' What 
standard will be used to determine if information is ``mitigating?'' 
Will this obligation be narrowed in the implementing guidelines? If so, 
how?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. e) How will relevancy be determined by the PRB? Is this 
is an issue to be litigated by the detainee's counsel?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. f) How will the reliability of materials be determined 
by the PRB? Will the detainee's counsel be entitled to discovery on the 
issue of reliability of information before the PRB?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. g) How long is each PRB expected to take and how many 
personnel will be needed to implement them?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. h) The executive order contemplates that ``all 
information in the detainee disposition recommendations produced by the 
Task Force established under Executive Order 13492 that is relevant to 
the determination'' shall be provided to the PRB, the detainee's 
personal representative, and the detainee's counsel. Please describe 
what types of information are contained within each ``recommendation.'' 
Do they include supporting intelligence information? Approximately how 
much information is contained within each set of recommendations?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. i) When will the implementing guidance be issued? Will 
the Committee be consulted prior to its release?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. 2. You mentioned that the Department would be consulted 
regarding how to handle and interrogate a suspected terrorist if an 
incident similar to the Christmas Day bombing attempt were to happen 
today. Are other agencies required to consult with DOD? Has this 
consultation been formalized in any way? What role would DOD play?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. 3. Please list the Guantanamo detainee cases that have 
been designated for prosecution in the military commission system.
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. 4. Please list the Guantanamo detainee cases that have 
been designated for prosecution in U.S. federal court.
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. 5. In the Ghailani case in New York, Judge Kaplan held 
that testimony from one of the Government's key witnesses was 
inadmissible because the Government learned of the existence of the 
witness from involuntary statements of the defendant. The new Manual 
for Military Commissions includes a new rule known as the ``derivative 
evidence rule.'' In a footnote to his opinion, Judge Kaplan noted that 
this rule could lead to the same kind of results in a military 
commission.
    a) What will the impact of this rule be and why was it incorporated 
into the new manual?
    b) What impact will this rule have on military commission cases?
    c) Is it possible to still revise the Manual?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. 6. Does the Administration's announcement on March 7, 
2011 regarding Additional Protocols I and II have any effect on the 
targeting, detention, or prosecution of al Qaeda, the Taliban, or 
associated forces?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. 7. During the Guantanamo Review Task Force's 
evaluations, for how many detainees was the Task Force unable to reach 
a unanimous decision?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mr. McKeon. 8. Has the Administration undergone any internal 
reviews to determine if there are any lessons to be learned or policies 
that should be changed from detainees who have returned to the fight?
    Mr. Johnson. [The information was not available at the time of 
printing.]
                                 ______
                                 
                   QUESTIONS SUBMITTED BY MRS. DAVIS

    Mrs. Davis. 1. How do you plan to deal with those prisoners 
detained at the DFIP (Detention Facility in Parwan) on classified 
evidence alone, evidence that cannot be turned over to the Afghan 
government?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mrs. Davis. 2. Are there plans to move those prisoners somewhere 
else when we leave?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mrs. Davis. 3. What is the percentage of detainees at the DFIP who 
can be turned over to the Afghan government for court trial?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mrs. Davis. 4. How many detainees have been released by the review 
boards?
    a) Of those, how many have gone back to fight against us?
    b) How many have been rehabilitated and reintroduced successfully 
back into Afghan society?
    c) How are you measuring the effectiveness of these efforts?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mrs. Davis. 5. US forces were scheduled to begin transitioning 
detention operations at the DFIP in Parwan to the Government of 
Afghanistan in January 2011. Why didn't this occur on time?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Mrs. Davis. 6. Could you please explain the criteria used for 
determining whether a case is best suited for a military commission or 
federal court? Is this based on classified evidence?
    Secretary Lynn. [The information was not available at the time of 
printing.]

    Mrs. Davis. 1. How do you plan to deal with those prisoners 
detained at the DFIP (Detention Facility in Parwan) on classified 
evidence alone, evidence that cannot be turned over to the Afghan 
government?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mrs. Davis. 2. Are there plans to move those prisoners somewhere 
else when we leave?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mrs. Davis. 3. What is the percentage of detainees at the DFIP who 
can be turned over to the Afghan government for court trial?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mrs. Davis. 4. How many detainees have been released by the review 
boards?
    a) Of those, how many have gone back to fight against us?
    b) How many have been rehabilitated and reintroduced successfully 
back into Afghan society?
    c) How are you measuring the effectiveness of these efforts?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mrs. Davis. 5. US forces were scheduled to begin transitioning 
detention operations at the DFIP in Parwan to the Government of 
Afghanistan in January 2011. Why didn't this occur on time?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Mrs. Davis. 6. Could you please explain the criteria used for 
determining whether a case is best suited for a military commission or 
federal court? Is this based on classified evidence?
    Mr. Johnson. [The information was not available at the time of 
printing.]
                                 ______
                                 
                   QUESTIONS SUBMITTED BY MR. FRANKS

    Mr. Franks. 1. A recent report by the Director of National 
Intelligence stated that, ``Of the 150 former GTMO detainees assessed 
as confirmed or suspected of reengaging in terrorist or insurgent 
activities, the Intelligence Community assesses that 13 are dead, 54 
are in custody, and 83 remain at large, and based on trends identified 
during the past 6 years, the Intelligence Community further assesses 
that if additional detainees are transferred from GTMO, some of them 
will reengage in terrorist or insurgent activities.'' These numbers 
trouble me and I am concerned with the efficacy of reengagement of GTMO 
detainees. What is being done to decrease this number from 83 to zero 
at large detainees suspect or confirmed as reengaging in terrorist or 
insurgent activities and once at zero, what must be done to keep it 
there? I need not remind anyone what just a handful of terrorists have 
done and can do to terrorize our nation and its people.
    Secretary Lynn. [The information was not available at the time of 
printing.]

    Mr. Franks. 1. A recent report by the Director of National 
Intelligence stated that, ``Of the 150 former GTMO detainees assessed 
as confirmed or suspected of reengaging in terrorist or insurgent 
activities, the Intelligence Community assesses that 13 are dead, 54 
are in custody, and 83 remain at large, and based on trends identified 
during the past 6 years, the Intelligence Community further assesses 
that if additional detainees are transferred from GTMO, some of them 
will reengage in terrorist or insurgent activities.'' These numbers 
trouble me and I am concerned with the efficacy of reengagement of GTMO 
detainees. What is being done to decrease this number from 83 to zero 
at large detainees suspect or confirmed as reengaging in terrorist or 
insurgent activities and once at zero, what must be done to keep it 
there? I need not remind anyone what just a handful of terrorists have 
done and can do to terrorize our nation and its people.
    Mr. Johnson. [The information was not available at the time of 
printing.]
                                 ______
                                 
                   QUESTION SUBMITTED BY MR. LANGEVIN

    Mr. Langevin. 1. During the recent hearing before the full 
committee, you testified that any Bills introduced regarding Guantanamo 
Bay should not ``limit options available to the military'' in dealing 
with the facility, detentions and the Authorization for Use of Military 
Force (AUMF).
    A recent Bill introduced by Chairman McKeon on this topic appears 
to give the military broad powers to detain any members of Al Qaeda, 
the Taliban and associated forces subject to the AUMF. This portion of 
the legislation is the subject of much debate in Congress about how 
much power to give the military.
    a) Where does the military feel the line should be drawn? On the 
one hand, we hear it is unwise to ``limit military options'' in the 
ongoing conflict and detention efforts. On the other hand, giving the 
military free reign to round up any of the above participants on US 
soil (instead of having law enforcement and US Criminal Court 
involvement) appears to raise the possibility of a conflict with the 
Posse Comitatus Act.
    b) Can you please provide further clarification on your statement 
above?
    Mr. Johnson. [The information was not available at the time of 
printing.]
                                 ______
                                 
                   QUESTIONS SUBMITTED BY MR. COOPER

    Mr. Cooper. 1. It was mentioned that between 2004 and 2008 there 
were approximately 500 prisoners released from GTMO. Since 2009 there 
have been 67 releases. How many of the 67 releases were due to habeas 
proceedings vs. releases from habeas proceedings for the period from 
2004-2008?
    Secretary Lynn. [The information was not available at the time of 
printing.]

    Mr. Cooper. 1. It was mentioned that between 2004 and 2008 there 
were approximately 500 prisoners released from GTMO. Since 2009 there 
have been 67 releases. How many of the 67 releases were due to habeas 
proceedings vs. releases from habeas proceedings for the period from 
2004-2008?
    Mr. Johnson. [The information was not available at the time of 
printing.]
                                 ______
                                 
                  QUESTIONS SUBMITTED BY MS. HANABUSA

    Ms. Hanabusa. 1. When a detainee is ``transferred'' do they sign a 
``waiver of rights'' against the United States? The assumption is that 
a detainee who qualifies for transfer is not a detainee who, in effect, 
remains at war with the United States.
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 2. In anticipation of a non-Miranda situation, will 
it cause problems in light of the fact that the developing law in 
habeas corpus case is expanding rights of the detainees per your 
testimony?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 3. Who and or what is the procedure to be followed 
will that determine forum choice for a detainee?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 4. Can the lessons of Foreign Intelligence 
Surveillance Act (FISA) be applicable?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 5. How many enemy combatants are in Afghanistan and/
or other non-US areas who are to be tried in US Courts?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 6. The Executive Order of March 7, 2011 states that 
the review of detainees is limited to continued law of war detentions. 
Does this mean if you are in the ``approval for transfer'' or 
``continued detention'' you are not entitled to review if they do not 
transfer after a year?
    Secretary Lynn. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 7. For Yemenis and ``approved for transfer'' if no 
country takes them or if Yemen is not quite ready does the United 
States continue the detention?
    Secretary Lynn. [The information was not available at the time of 
printing.]

    Ms. Hanabusa. 1. When a detainee is ``transferred'' do they sign a 
``waiver of rights'' against the United States? The assumption is that 
a detainee who qualifies for transfer is not a detainee who, in effect, 
remains at war with the United States.
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 2. In anticipation of a non-Miranda situation, will 
it cause problems in light of the fact that the developing law in 
habeas corpus case is expanding rights of the detainees per your 
testimony?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 3. Who and or what is the procedure to be followed 
will that determine forum choice for a detainee?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 4. Can the lessons of Foreign Intelligence 
Surveillance Act (FISA) be applicable?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 5. How many enemy combatants are in Afghanistan and/
or other non-US areas who are to be tried in US Courts?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 6. The Executive Order of March 7, 2011 states that 
the review of detainees is limited to continued law of war detentions. 
Does this mean if you are in the ``approval for transfer'' or 
``continued detention'' you are not entitled to review if they do not 
transfer after a year?
    Mr. Johnson. [The information was not available at the time of 
printing.]
    Ms. Hanabusa. 7. For Yemenis and ``approved for transfer'' if no 
country takes them or if Yemen is not quite ready does the United 
States continue the detention?
    Mr. Johnson. [The information was not available at the time of 
printing.]

                                  
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