[Senate Hearing 113-872]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-872

                        CLOSING GUANTANAMO: THE
                       NATIONAL SECURITY, FISCAL,
                     AND HUMAN RIGHTS IMPLICATIONS

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION,
                     CIVIL RIGHTS AND HUMAN RIGHTS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                             JULY 24, 2013

                               ----------                              

                           Serial No. J-113-22

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
           Kristine Lucius, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

    Subcommittee on the Constitution, Civil Rights and Human Rights

                    DICK DURBIN, Illinois, Chairman
AL FRANKEN, Minnesota                TED CRUZ, Texas, Ranking Member
CHRISTOPHER A. COONS, Delaware       LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut      JOHN CORNYN, Texas
MAZIE HIRONO, Hawaii                 ORRIN G. HATCH, Utah
                 Joseph Zogby, Democratic Chief Counsel
                 Scott Keller, Republican Chief Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                        JULY 24, 2013, 2:02 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cruz, Hon. Ted, a U.S. Senator from the State of Texas...........     4
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois.....     1
    prepared statement...........................................    90
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     6
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
    prepared statement...........................................    93
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................     7

                               WITNESSES

Witness List.....................................................    33
Eaton, Paul D., Major General, U.S. Army, Retired, Fox Island, 
  Washington.....................................................     9
    prepared statement...........................................    46
Fryday, Joshua M., Lieutenant, Judge Advocate General's Corps, 
  U.S. Navy, Washington, DC......................................    14
    prepared statement...........................................    67
Gaffney, Frank J., Jr., President, Center for Security Policy, 
  Washington, DC.................................................    12
    prepared statement...........................................    72
Massimino, Elisa, President and Chief Executive Officer, Human 
  Rights First, Washington, DC...................................    16
    prepared statement...........................................    76
Pompeo, Hon. Mike, a Representative in Congress from the State of 
  Kansas.........................................................    28
    prepared statement...........................................    39
Smith, Hon. Adam, a Representative in Congress from the State of 
  Washington.....................................................    26
    prepared statement...........................................    34
Xenakis, Stephen N., Brigadier General, M.D., U.S. Army, Retired, 
  Arlington, Virginia............................................    10
    prepared statement...........................................    51

                               QUESTIONS

Questions submitted to Paul D. Eaton by Senator Klobuchar........    95
Questions submitted to Joshua M. Fryday by Senator Klobuchar.....    96
Questions submitted to Frank J. Gaffney, Jr., by Senator 
  Klobuchar......................................................    97
Questions submitted to Elisa Massimino by Senator Klobuchar......    98
Questions submitted to Stephen N. Xenakis by Senator Klobuchar...    99

                                ANSWERS

Responses of Paul D. Eaton to questions submitted by Senator 
  Klobuchar......................................................   100
Responses of Joshua M. Fryday to questions submitted by Senator 
  Klobuchar......................................................   109
Responses of Frank J. Gaffney, Jr., to questions submitted by 
  Senator Klobuchar..............................................   108
Responses of Elisa Massimino to questions submitted by Senator 
  Klobuchar......................................................   102
Responses of Stephen N. Xenakis to questions submitted by Senator 
  Klobuchar......................................................   105

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

American-Arab Anti-Discrimination Committee (ADC), Washington, 
  DC, statement..................................................   144
Amnesty International USA, New York, New York, statement.........   208
Association of the Bar of the City of New York, New York, 
  statement......................................................   183
Cabot, Howard Ross, et al., on behalf of detainee Noor Uthman 
  Muhammed, statement............................................   191
Center for Victims of Torture, The (CVT), St. Paul, Minnesota, 
  statement......................................................   153
Coalition for Security, Liberty and the Law, Washington, DC, 
  October 7, 2009, letter........................................   289
Coalition for Security, Liberty and the Law, Washington, DC, 
  December 20, 2012, letter......................................   287
CODEPINK: Women For Peace, Washington, DC, July 16, 2013, letter.   160
Council on American-Islamic Relations (CAIR), Washington, DC, 
  statement......................................................   146
Ellis, Peter, on behalf of detainees Walid Zaid and Mohammed 
  Haidar, statement..............................................   201
Friends Committee on National Legislation (FCNL), Washington, DC, 
  statement......................................................   159
Hetrick, Joseph K., Esq., on behalf of detainee Mohammad Zahir, 
  statement......................................................   139
Hoar, Joseph P., Gen., U.S. Marine Corps, retired, et al., July 
  24, 2013, letter...............................................   166
Irvine, David R., Brig. Gen., U.S. Army, retired, Salt Lake City, 
  Utah, statement................................................   223
Jacob, Beth D., et al., on behalf of detainee Mohammed al-
  Zarnouqi, statement............................................   142
Lehnert, Michael, Maj. Gen., U.S. Marine Corps, retired, 
  statement......................................................   214
Lincoln Square Legal Services, Inc., on behalf of detainee Sanad 
  al-Kazimi, July 22, 2013, letter...............................   136
Malone, Daniel C., on behalf of detainee Haji Wali Mohammed, 
  statement......................................................   221
Marshall, David, Seattle, Washington, on behalf of detainee Ahmed 
  Adnan Ajam, statement..........................................   207
Muslim Public Affairs Council (MPAC), Washington, DC, statement..   172
Nashiri family on behalf of detainee Abdel Rahim, July 16, 2013, 
  letter.........................................................   182
National Association of Criminal Defense Lawyers (NACDL), 
  Washington, DC, statement......................................   177
National Religious Campaign Against Torture (NRCAT), Washington, 
  DC, statement..................................................   264
O'Hara, Matthew J., Chicago, Illinois, on behalf of detainee Umar 
  Abdulayev, statement...........................................   169
Reprieve, London, England, United Kingdom, July 24, 2013, 
  introduction letter............................................   111
    Aamer, Michael, and Johina Aamer, on behalf of detainee 
      Shaker Aamer, letters......................................   118
    Al Hajj, Mohamed Sami, on behalf of detainee Sami Al Hajj, 
      released, letter...........................................   122
    Al-Hakimi, Emad, on behalf of detainee Adel Al-Hakimi, letter   113
    Barka, Abd Alhaq, on behalf of detainee Younous Chekkouri, 
      letter.....................................................   120
    Belbacha, Mohammed, on behalf of detainee Ahmed Belbacha, 
      letter.....................................................   121
    Hadjarab, Ahmed, on behalf of detainee Nabil Hadjarab, letter   114
    Massaud, Kamal, on behalf of detainee Abu Wa'el Dihab, letter   117
    Sliti, Maherzia, on behalf of detainee Hisham Sliti, letter..   116
Spaulding, Douglas K., Reed Smith, LLP, on behalf of detainee 
  Ravil Mingazov, July 18, 2013, introduction letter.............   131
    Mingazov, Yusuf, on behalf of detainee Ravil Mingazov, letter   132
    Mingazov, Yusuf, addressed to detainee Ravil Mingazov, letter   133
    Valiullina, Zukhra, on behalf of detainee Ravil Mingazov, 
      letter--Redacted...........................................   134
    Valiullina, Zukhra, addressed to detainee Ravil Mingazov, 
      letter.....................................................   135
Sullivan, Thomas P., on behalf of detainee Abdulrahman Suleiman,
  July 22, 2013, introduction letter--Redacted...................   123
    Mother of Abdulrahman Suleiman, on behalf of detainee 
      Abdulrahman Suleiman, letter...............................   130
Thomson, Gerald E., M.D., statement..............................   150
T'ruah: The Rabbinic Call for Human Rights, New York, New York, 
  statement......................................................   266
Vladeck, Stephen I., Professor of Law, American University 
  Washington College of Law, Washington, DC, statement...........   269
Willett, Sabin, statement--Redacted..............................   197
Wilner, Thomas, Shearman and Sterling, Washington, DC, statement.   255
Witness Against Torture, New York, New York, statement...........   279

 
                        CLOSING GUANTANAMO: 
                     THE NATIONAL SECURITY, FISCAL,
                     AND HUMAN RIGHTS IMPLICATIONS

                              ----------                              


                        WEDNESDAY, JULY 24, 2013

                       United States Senate
Subcommittee on the Constitution, Civil Rights and 
                                       Human Rights
                                 Committee on the Judiciary
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:02 p.m., in 
Room SH-216, Hart Senate Office Building, Hon. Dick Durbin, 
Chairman of the Subcommittee, presiding.
    Present: Senators Durbin, Leahy, Feinstein, Whitehouse, 
Klobuchar, Hirono, and Cruz.

             OPENING STATEMENT OF HON. DICK DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chairman Durbin. Good afternoon. This hearing of the 
Subcommittee on the Constitution, Civil Rights and Human Rights 
will come to order. I understand Senator Cruz, my Ranking 
Member, is going to be here very briefly.
    Today's hearing is entitled, ``Closing Guantanamo: The 
National Security, Fiscal, and Human Rights Implications.'' We 
are pleased to have a large audience. That demonstrates the 
importance and timeliness of this discussion.
    Thanks to those of you who are here in person and those 
following the hearing on Twitter and Facebook using the hashtag 
#closegitmo.
    At the outset, I want to note that the rules of the Senate 
prohibit outbursts, clapping, or demonstrations of any kind. 
There was so much interest in today's hearing that we moved to 
a larger room to accommodate everyone. Anyone who could not get 
a seat is welcome to go to the overflow room for a live video 
feed, 226 of Dirksen, the same floor.
    I will begin by providing some opening remarks. Then I will 
turn to Senator Ted Cruz and Senator Leahy, our Chairman of the 
Full Committee, who has now joined us, for opening statements 
before we turn to witnesses.
    Well, it has been more than 11 years since the Bush 
administration established the detention center at Guantanamo 
Bay. In that time I have spoken on the Senate floor more than 
65 times about the need to close this prison. I never imagined 
that in 2013 not only would Guantanamo still be open, but some 
would be arguing that we keep it open indefinitely.
    The reality is that every day it remains open, Guantanamo 
prison weakens our alliances, inspires our enemies, and calls 
into question our commitment to human rights. Time and again, 
our most senior national security and military leaders have 
called for the closure of Guantanamo.
    Listen to retired Air Force Major Matthew Alexander. He led 
the interrogation team that tracked down al-Zarqawi, the leader 
of Al-Qaeda in Iraq. Here is what the major said: ``I listened 
time and again to foreign fighters and Sunni Iraqis state that 
the number one reason they decided to pick up arms and join Al-
Qaeda were the abuses at Abu Ghraib and the authorized torture 
and abuse at Guantanamo Bay.''
    ``It is no exaggeration,'' the major said, ``to say that at 
least half of our losses and casualties in that country have 
come at the hands of foreigners who joined the fray because of 
our program of detainee abuse.''
    In addition to the national security cost, every day that 
Guantanamo remains open, we are wasting taxpayer dollars. 
According to updated information I received from the Department 
of Defense just yesterday, Guantanamo Bay detention costs for 
Fiscal Year 2012 are $448 million and for Fiscal Year 2013 
estimated at $454 million.
    Do the math: 166 prisoners, $454 million. We are spending 
$2.7 million per year for each detainee held at Guantanamo Bay. 
What does it cost to incarcerate a prisoner and keep them in 
the safest and most secure prison in America in Florence, 
Colorado: $78,000 a year against $2.7 million that we are 
spending in Guantanamo.
    This would be fiscally irresponsible during ordinary 
economic times, but it is even worse when the Department of 
Defense is struggling to deal with the impact of sequestration, 
including the furloughs and cutbacks in training for our 
troops.
    Every day the soldiers and sailors serving at Guantanamo 
are doing a magnificent job under difficult circumstances. I 
went to the Southern Command in Miami, and I met with the men 
who were in charge of this responsibility. I can tell you that 
they are saddened by this assignment, but they are doing 
exactly what they are supposed to do. At great risk and at 
great separation from their family and personal challenge, they 
are accepting this assignment. And they look to us as to 
whether this assignment still makes sense.
    Every day at Guantanamo Bay, dozens of detainees are being 
force-fed, a practice the American Medical Association and the 
International Red Cross condemn and that a Federal judge in 
Washington recently found to be ``painful, humiliating, and 
degrading.''
    As President Obama asked in his May 23rd national security 
speech, ``Is this who we are? Is that something our Founding 
Fathers foresaw? Is that the America we want to leave our 
children? Our sense of justice is stronger than that,'' the 
President said.
    It is worth taking a moment to recall the history of 
Guantanamo Bay. After 9/11, the Bush administration decided to 
set aside the Geneva Conventions, which have served us well in 
past conflicts, and set up an offshore prison in Guantanamo in 
order to evade the requirements of those treaties and our 
Constitution. John Yoo, working in that White House, wrote on 
December 28, 2001, an Office of Legal Counsel memo to Jim 
Haynes and said that Guantanamo was ``the legal equivalent of 
outer space,'' a perfect place to escape the law. But others, 
others even within the Bush administration, disagreed.
    General Colin Powell, then the Secretary of State, 
objected. He said disregarding our treaty obligations ``will 
reverse over a century of U.S. policy and practice and 
undermine the protections of the law of war for our own troops. 
It will undermine public support among critical allies, making 
military cooperation more difficult to sustain.''
    Then-Defense Secretary Rumsfeld approved the use of abusive 
interrogation techniques at Guantanamo. These techniques became 
the bedrock for interrogation policy in Iraq. According to a 
Defense Department investigation, the horrible images that 
emerged from Abu Ghraib have seared into our memory some of the 
most outrageous and extreme techniques. Guantanamo became an 
international embarrassment and an international controversy.
    The Supreme Court repeatedly struck down the 
administration's detention policies. Justice Sandra Day 
O'Connor famously wrote for the majority in the Hamdi case, ``A 
state of war is not a blank check for a President.''
    By 2006, even President Bush--President Bush--said he 
wanted to close Guantanamo. In 2008, the presidential 
candidates of both major parties supported closing Guantanamo. 
Within 48 hours of his inauguration, President Obama issued an 
Executive Order prohibiting torture and setting up a review 
process for all Guantanamo detainees.
    I will be first to acknowledge that the administration 
could be doing more to close Guantanamo. Last week, Senator 
Feinstein and I met with senior White House officials to 
discuss what they are doing under existing law to transfer 
detainees out of Guantanamo. But let us be clear. The 
President's authority has been limited by Congress. We have 
enacted restrictions on detainee transfers, including a ban on 
transfers to the United States from Guantanamo, that make it 
very difficult if not impossible to actually close the 
facility. It is time to lift those restrictions and move 
forward with shutting down Guantanamo. We can transfer most of 
the detainees safely to foreign countries, and we can bring the 
others to the United States where they can be tried in Federal 
court or held under the law of war until the end of 
hostilities.
    Let us look at the track record. Since 9/11--since 9/11--
nearly 500 terrorists have been tried and convicted in our 
Federal courts and are now being safely held in Federal 
prisons. No one--no one--has ever escaped from a Federal 
supermax prison or a military prison.
    In contrast, only six individuals have been convicted by 
military commissions. Two of those convictions have been 
overturned by the courts.
    Today, nearly 12 years after 9/11, the architects of the 9/
11 attacks are still awaiting trial in Guantanamo.
    During his confirmation hearing, I discussed with Jim 
Comey, who was Deputy Attorney General in the Bush 
administration and is the nominee for FBI Director, this whole 
case. Here is what he told me: ``We have about a 20-year track 
record in handling particularly Al-Qaeda cases in Federal 
courts . . . the Federal courts and Federal prosecutors are 
effective at accomplishing two goals in every one of these 
situations,'' Comey said, ``getting information and 
incapacitating the terrorist.''
    Some may argue we cannot close Guantanamo because of the 
risk some detainees may join and engage in terrorist 
activities. But studies show that even in our Federal prisons, 
the recidivism rate is more than 40 percent, far higher than 
the rate of any of those released from Guantanamo. And the 
often quoted recidivism estimate includes hundreds of detainees 
transferred under the Bush administration when the standards 
for release were much more lax.
    No one is suggesting that closing Guantanamo is risk free 
or that no detainees will ever engage in terrorist activities 
if they are transferred. But if a former detainee does return 
to terrorism, he will likely meet the fate of Said al-Shihri, 
the number two official in Al-Qaeda in the Arabian Peninsula, 
who was recently killed in a drone strike.
    The bottom line is our national security and military 
leaders have concluded that the risk of keeping Guantanamo open 
far outweighs the risk of closing it because the facility 
continues to harm our alliances and serve as a recruitment tool 
for terrorists. It is time to end this sad chapter of our 
history. Eleven years is far too long. We need to close 
Guantanamo.
    I will now recognize Senator Cruz, the Ranking Member.

              OPENING STATEMENT OF HON. TED CRUZ,
             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cruz. Thank you, Mr. Chairman.
    President Obama tells us the war on terror is over, that 
Al-Qaeda has been decimated, and that we can now take a holiday 
from the long, difficult task of combating radical Islamic 
terrorism. I do not believe the facts justify that rosy 
assessment.
    Five years ago, the President campaigned on closing 
Guantanamo, and yet Guantanamo remains open as a detention 
facility for those deemed to be the most dangerous terrorists 
that have been apprehended. And, to date, the administration's 
position seems to be to continue apologizing for the existence 
of Guantanamo, to continue apologizing for our detaining 
terrorists, and standing up to defend ourselves, but to do 
nothing affirmatively to address the problem.
    In particular, if Guantanamo is closed, it raises the 
fundamental question of where these terrorists will be sent. 
Now, we can embrace a utopian fiction that they will be sent to 
their home nations and somehow lay down their arms and embrace 
a global view of peace. I do not think that utopian fiction has 
any basis in reality. We have seen, whether it was in Boston or 
Benghazi or Fort Hood, that radical terrorism remains a real 
and live threat.
    Now, I have significant concerns about the Obama 
administration's overbroad incursions into the civil rights of 
law-abiding Americans. But at the same time, I have concerns 
about their unwillingness or inability to connect the dots and 
to prevent violent acts of terrorism. And until we are 
presented with a good, viable strategy for what to do with 
terrorists who would work night and day to murder innocent 
Americans, I have a hard time seeing how it is responsible to 
shut down our detention facilities and send these individuals 
home where they almost surely would be released and almost 
surely would return to threaten and kill more Americans.
    That is a question I hope this panel sheds some light on, 
how we can responsibly proceed in protecting the national 
security of this country, protecting the men and women of this 
country who expect, as the first responsibility of the Federal 
Government, that we will keep the Nation secure. And I look 
forward to the testimony today on that question.
    Chairman Durbin. Thank you, Senator Cruz.
    Senator Leahy.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Chairman Leahy. Well, thank you, and I do want to thank 
Senator Durbin for holding this hearing. I think it is long 
past time that we take action and end this unfortunate chapter 
in our Nation's history. You can do that and still fight 
terrorism as it threatens us. It is nice to make up quotes and 
pretend the President said something about taking a holiday 
from terrorism, but, of course, he never said any such thing. 
But I do know that, for over a decade, the indefinite detention 
of prisoners at Guantanamo has contradicted our most basic 
principles of justice; it has degraded our international 
standing; and by itself it has harmed our national security. I 
think it is shameful that we are still even debating this 
issue.
    As long as we keep this detention center open at 
Guantanamo, it will continue to serve as a recruiting tool for 
terrorists, just as the photographs after Abu Ghraib did. It 
will discredit America's historic role as a leader in human 
rights. Countries that champion the rule of law and human 
rights do not lock away prisoners indefinitely without charge 
or trial. Countries that champion the rule of law and human 
rights do not strap prisoners down and forcibly feed them 
against their will. We condemn authoritarian states when they 
do this--and we should--but we should not tolerate the same 
thing in our country.
    As Senator Durbin points out, at a time of sequestration, 
to be spending as much as $2.5 to $2.7 million per prisoner to 
hold them in Guantanamo--because if we are going to hold these 
people, we could do it for far, far less at our supermax 
prisons, if that is the issue. I mean, how can we talk about 
all the things we have to take out of our budget because there 
are things that actually benefit Americans and yet we can spend 
this kind of a fortune down there and talk about spending 
hundreds of millions of dollars more to overhaul the compound. 
That is what has been requested. For more than a decade, we 
have seen precious manpower, resources, and money squandered on 
this long-failed experiment instead of being directed to 
important national security missions at home and abroad. I 
think the waste has to end.
    Furthermore, again, as Senator Durbin pointed out, the 
military commission system for trying these detainees is not 
working. It is a tiny handful that have been prosecuted there 
as compared to the hundreds in our Federal courts. We have 
already seen Federal courts overturn two convictions at 
Guantanamo in opinions that will prevent the military from 
bringing conspiracy and material support charges against 
detainees--something that even the lead military prosecutor at 
Guantanamo himself acknowledged.
    These same charges, though, can be pursued in Federal 
courts where our prosecutors do have a strong track record of 
obtaining long prison sentences against those who seek to do us 
harm. We are the most powerful Nation on Earth. Why do we act 
afraid to use the best Federal court system we have ever seen, 
probably the best court system in the world, and we act like we 
are afraid to use it? We have convicted nearly 500 terrorism 
suspects since 9/11 in these Federal courts.
    So the status quo at Guantanamo is untenable, and I 
appreciate the President's renewed vow to shutter this 
unnecessary, expensive, and inefficient prison. His decision in 
June to appoint a new special envoy at the State Department to 
coordinate efforts to repatriate detainees is a positive step 
toward closing the facility. So too are reports that the 
Periodic Review Boards will soon begin reviewing cases.
    Now, I am glad to see that commonsense provisions were 
included in this year's National Defense Authorization Act that 
was recently reported by the Senate Armed Services Committee. 
It will be incremental, but it will help, and I look forward to 
working with Members of Congress to bring this about.
    I will put my full statement--I know you have witnesses 
waiting, Mr. Chairman. I will put my full statement in the 
record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Durbin. Mr. Chairman, thank you for being here, 
and thank you for the support you have given to this 
Subcommittee.
    We want to welcome one of the fellow Members of the Senate 
Judiciary Committee, not a Member of this Subcommittee, but 
today she is more than honorary. She is going to be welcome to 
participate. You even can come down the line if you would like 
and sit a little closer.
    Senator Feinstein. A little later.
    Chairman Durbin. Okay, good. Senator Dianne Feinstein.

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

    Senator Feinstein. Thank you, Senator. Thank you for your 
comments and thank you for allowing me to sit with your 
Subcommittee.
    As you mentioned, I believe, when I came in the room, I was 
at Guantanamo about a month ago with John McCain and the 
President's Chief of Staff. We have been looking at the figures 
of cost, and apparently they are much higher than we thought. 
If the new costs are correct, the cost of the facility is 
$554.1 million in 2013, and as Senator Leahy said, that is 
$2.67 million per detainee. I want to point out that to keep a 
prisoner in maximum security in our Federal system is $78,000. 
So this is a massive waste of money.
    A month ago, when I was there, there were 166 inmates. Most 
have been there for a decade or more--10 years with no hope, no 
trial, no charge. These 166 detainees are slated for trial 
while 46 others will be held without trial until the war 
against terror is over, whenever that may be. Eighty-six of 
them, more than half, have been cleared for transfer by either 
the Bush or the Obama administration. Nonetheless, they remain 
in dismal conditions and legal limbo.
    By the end of President Obama's second term, the majority 
of Guantanamo detainees there today will have been held without 
trial for almost 15 years. I would submit that this is not the 
American way, and I would submit that Guantanamo has been a 
recruiting tool for terrorists. It makes a myth out of our 
legal system, and it really ought to be closed.
    We saw the hopelessness. We saw when we were there 70 
detainees were undergoing a hunger strike. Twice a day, 
American military personnel restrains the detainee in a chair 
by his arms, torso, and feet. A tube inserted through the nose 
and into the stomach, and for some detainees, this has been 
going on for 5 months twice a day.
    I am very pleased that you have some medical testimony here 
today, and I look forward to hearing it. But this large-scale 
force feeding and this behavior is a form of protest. It is not 
an attempt at suicide. I believe it violates international 
norms and medical ethics. And at Guantanamo it happens day 
after day and week after week.
    So I find this unacceptable. I believe the facility should 
be closed. I believe all of these people can be transferred to 
high-security facilities in this country and that that is the 
proper thing to do.
    So I thank you for this opportunity.
    Chairman Durbin. Thank you, Senator Feinstein.
    Senator Whitehouse, do you have any opening comments?

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Very briefly, because I want to get to 
the witnesses, but I do want to thank you, Chairman Durbin, for 
holding this hearing. I think it is really important.
    I have been around long enough to have been through several 
stages on Guantanamo. There was the stage where it was the 
worst of the worst, and they were too dangerous to release. And 
then the Bush administration released a huge chunk of them and 
then said, okay, now we are really down to the worst of the 
worst. And then they released another huge chunk of them. Now 
we have I think 86 of 166 slated for release, and we simply 
have not been able to find places for them to go.
    So we were kind of fed a bill of goods about who was there 
along the road and about how dangerous they were, because over 
and over again they have either been released in these waves or 
slated for release. And in my time on the Intelligence 
Committee, both under Chairman Rockefeller and under Chairman 
Feinstein, we heard over and over again from our national 
security officials about the value of Guantanamo as a 
recruiting tool for our enemies.
    So this is a very timely hearing, and I am grateful to the 
leadership of you, Senator Durbin, of the Chairman of our 
Judiciary Committee, Patrick Leahy, who is here, and of 
Chairman Feinstein as the Chairman of the Intelligence 
Committee.
    Thank you.
    Chairman Durbin. Thank you, Senator Whitehouse.
    It is the custom of the Committee to swear in the 
witnesses, and I would ask the first panel to please rise. 
Raise your right hand. Do you affirm the testimony you are 
about to give before the Subcommittee will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    General Eaton. I do.
    General Xenakis. I do.
    Lieutenant Fryday. I do.
    Mr. Gaffney. I do.
    Ms. Massimino. I do.
    Chairman Durbin. Thank you. Let the record reflect that all 
of the witnesses on this panel answered in the affirmative. And 
before I recognize the first witness, I ask consent to enter 
into the record a statement from Retired Major General Michael 
Lehnert, who served in the Marine Corps for 37 years. General 
Lehnert led the first Joint Task Force Guantanamo, which 
established the detention facility in 2002. He could not be 
here today, but we wanted to make sure his views were in the 
record. We will circulate his statement to the whole Committee, 
and I commend it to my colleagues. As he details in his 
statement, General Lehnert tried to comply with the Geneva 
Conventions and asked to bring in the Red Cross to inspect this 
facility. He was rebuked by civilian political appointees. Here 
is what he says:
    ``We squandered the good will of the world after we were 
attacked by our actions in Guantanamo. Our decision to keep 
Guantanamo open has actually helped our enemies,'' the general 
writes, ``because it validated every negative perception of the 
United States. To argue we cannot transfer detainees to a 
secure facility in the United States because it would be a 
threat to public security is ludicrous.''
    We are pleased to be joined here today by Retired Major 
General Paul Eaton. Major General, it is good to see you again. 
He is currently a senior advisor to the National Security 
Network. He retired from active duty after more than 30 years 
in the United States Army. From 2003 to 2004, General Eaton 
served in Iraq as the commanding general of the Coalition 
Military Assistance Training Team. Prior to serving in Iraq, 
General Eaton commanded the Army's Infantry Center and was 
Chief of Infantry for the Army. He studied at West Point, 
earned a master's degree in political science from Middlebury 
College.
    General Eaton, thank you for your service. You have 5 
minutes, and your entire statement will be made part of the 
record and then open to questions. Please proceed.

           STATEMENT OF MAJOR GENERAL PAUL D. EATON,
           U.S. ARMY, RETIRED, FOX ISLAND, WASHINGTON

    General Eaton. Chairman Durbin, thank you very much. 
Ranking Member Cruz and Members of the Subcommittee, thank you 
very much for inviting me here to share my views on closing the 
Guantanamo Bay Detention Center.
    You mentioned that I had the last operational mission to 
create the Iraqi armed forces. My biggest challenge when I did 
that was to overcome over 30 years of despotism and its impact 
on the society in Iraq. So we worked very hard to develop what 
the Brits call ``the moral component,'' to instill the 
adherence to the rule of law. We drilled daily the notion of 
civilian control of the military, military justice, prisoner 
management, and battlefield discipline. We stressed 
accountability.
    Then Abu Ghraib blew up on us. The day that happened, the 
day it hit the press, my senior Iraqi advisor, an Air Force 
general under Saddam, retired, came into my office and said, 
``General, you cannot understand how badly this is going to 
play on the Arab street.'' We lost the moral high ground.
    The investigation of Abu Ghraib by Major General Tony 
Taguba, a great American hero, found that torture implemented 
at Guantanamo was exported to detainee operations in Iraq. Abu 
Ghraib was a logical outcome of our Guantanamo experience. Men 
who had served in Guantanamo during the worst days of enhanced 
interrogation techniques were deployed to Iraq to ``Gitmo-ize 
interrogations.'' Not my words. Borrowed from testimony. Abu 
Ghraib was the spawn of Guantanamo, and it is one reason why I 
am convinced that we have got to close down this detention 
center.
    You cannot buff Guantanamo enough to make it shine again 
after the sins of the past. Improvements in detainee treatment 
and new military commission rules will not change the belief in 
the minds of our allies and our enemies that Guantanamo is a 
significant problem to the prosecution of the U.S. national 
security agenda in general and the U.S. military in particular.
    The argument that the Guantanamo facility represents a 
valuable intelligence tool is simply wrong. The shelf life 
intelligence has and particularly the people who have the 
potential intelligence is very short. The argument that the 
Guantanamo facility is necessary to hold dangerous men is 
simply wrong. As Senator Durbin mentioned, our supermax prisons 
do this quite well.
    We have a great many allies and alliances created for many 
reasons, most providing for the mutual defense. My team in Iraq 
was composed of nine nations, military and civilian. In late-
night discussions, our Guantanamo problem would come up from 
time to time, and after Abu Ghraib, often. Some of our closest 
allies have refused to send up detainees because of Guantanamo, 
and we are losing intelligence opportunities every time this 
happens.
    Releasing any individual Guantanamo detainee does not 
change our national security posture. To this soldier, the 
fear-based argument to keep the Guantanamo Bay detention 
facility open is hard to understand. If brought to the U.S. for 
prosecution, incarceration, or medical treatment, the detainees 
will pose no threat to our national security. The 86 men who 
have been cleared for transfer should be transferred. We must 
find lawful dispositions for all law of war detainees as we 
have done in every conflict.
    Further, Guantanamo places our soldiers and Nation at risk 
not only because it makes America look hypocritical as we 
promote the rule of law but because it makes the detainees look 
like the warriors that they are not. Our leaders in Iraq would 
pose the question early and often: ``Did we create more 
terrorists today than we managed to take off the street?'' 
Guantanamo is a terrorist-creating institution and is a direct 
facilitator in filling out the ranks of Al-Qaeda and other 
terror organizations that would attack our country and our 
interests. Guantanamo, in military terms, is a combat power 
generator for the enemy.
    We as a Nation are strongest when we uphold the 
Constitution, the Bill of Rights, the Geneva Conventions, and 
the other laws and treaties and conventions to which we 
subscribe. We are weakest when we stray from the rule of law. 
We have an opportunity and an imperative to close Guantanamo 
now as we wind down combat operations in Afghanistan.
    There is no national security reason to keep Guantanamo 
open. In the words of one of my colleagues, they do not win 
unless they change us. And we have got to resist that attempt 
at change.
    Thank you very much, Mr. Chairman.
    [The prepared statement of General Eaton appears as a 
submission for the record.]
    Chairman Durbin. Thank you, General Eaton.
    Brigadier General Stephen Xenakis served in the U.S. Army 
as a medical corps officer for 28 years before retiring. A 
psychiatrist with an active clinical and consulting practice, 
General Xenakis is an adjunct professor at the Uniformed 
Services University of Health Sciences in the Military Medical 
Department. He is the founder of the Center for Translational 
Medicine, a research organization developing treatments and 
conducting tests on brain-related conditions affecting soldiers 
and veterans. General Xenakis previously served as senior 
advisor to the Department of Defense on issues relating to the 
care and support of servicemembers and their families, 
graduated from Princeton University and the University of 
Maryland School of Medicine.
    General Xenakis, thank you for your service to our country, 
and please proceed.

 STATEMENT OF BRIGADIER GENERAL STEPHEN N. XENAKIS, M.D., U.S. 
               ARMY, RETIRED, ARLINGTON, VIRGINIA

    General Xenakis. Thank you, sir, and thank you, Ranking 
Member Cruz and Members of the Subcommittee, Senator Feinstein. 
I appreciate the opportunity to testify today.
    As you said, I am board-certified in general psychiatry and 
child and adolescent psychiatry. I have extensive experience in 
treatment, research, teaching, and administration, commanded--
retired at the rank of Brigadier General, commanded medical 
activities, medical centers, and medical regions.
    The Federal courts and the Office of the Military 
Commissions have qualified me as a psychiatric and medical 
expert. I have had multiple interviews--multiple interviews--
with detainees, advised attorneys, and spent cumulatively 
nearly 3 months at Guantanamo over the past 4\1/2\ years. I 
currently provide consultation and expert testimony as needed 
on seven current or former detainees. I have reviewed medical, 
intelligence, and military files of nearly 50.
    The treatment of hunger strikers at Guantanamo compromises 
the core ethical values of our medical profession. The AMA has 
long endorsed the principle that every competent patient has 
the right to refuse medical intervention.
    The World Medical Association and the International Red 
Cross have determined that force feeding through the use of 
restraints is not only an ethical violation but contravenes 
Common Article 3 of the Geneva Conventions. Force feeding 
completely undermines the physician-patient relationship by 
destroying the trust that is essential for all clinical 
treatment, including medical issues unrelated to force feeding. 
It engages physicians in the use of force against detainees. At 
Guantanamo, physicians and nurses have become part of the 
command apparatus that uses punitive and painful methods to 
break the hunger strikes, and the use of restraint chairs, dry 
cells, forced cell extractions, and denial of communal 
privileges.
    The plain truth is that force feeding violates medical 
ethics and international legal obligations, and nothing claimed 
in the name of defending our country can justify cruel, 
inhumane, and degrading treatment of another man or woman. The 
detention facilities at Guantanamo diminish America's standing 
among our allies and put at question our true values.
    The underlying issues that contributed to the hunger strike 
must be addressed, including ending the harsh conditions of 
confinement that have been put into place this year.
    Statements in the media leave the impression that the 
detainees are highly trained soldiers eager to get back on the 
battlefield. The vast majority of these men do not fit the 
picture of the worst of the worst. These detainees pale in 
comparison to violent prisoners accused of serious felonies or 
murders that I have seen and evaluated in this country.
    To be clear, if any detainee has committed a crime, I 
strongly believe that they should be charged, prosecuted, and 
convicted, punished accordingly. The fact is, however, that 
most of these detainees have not been charged. The restrictive 
and oppressive conditions undermine our national security 
objectives. Force feeding must end. It is unethical, an affront 
to human dignity, a form of cruel, inhumane, and degrading 
treatment in violation of our Geneva Convention obligations.
    My recommendations include:
    First, the underlying issues that contributed to the hunger 
strike must be resolved, including expeditious release.
    Second, detainees should not be punished for engaging in 
hunger strikes.
    Third, all directives, orders, and protocols that provide, 
explicitly or implicitly, that health professionals act as 
adjuncts of security officials must be rescinded. Trust in the 
medical staff by detainees has been so deeply compromised. 
Independent doctors and nurses should be brought in.
    Fourth, aging detainees require more complicated and 
sophisticated medical care. The regular rotation of clinical 
staff impedes continuity of care, diagnosis, and treatment. It 
places dedicated and professional military clinicians in 
untenable circumstances of providing suboptimal treatment to an 
increasingly ill population. It is not fair to the doctors, 
nurses, or detainees.
    Thank you for the privilege of speaking to you.
    [The prepared statement of General Xenakis appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Dr. Xenakis.
    We will now hear from our next witness, Frank Gaffney. Mr. 
Gaffney is founder and president of the Center for Security 
Policy, a think tank in Washington. He is a weekly columnist 
for the Washington Times, Townhall, and Newsmax.com. He is the 
host of ``Secure Freedom Radio,'' a syndicated radio program. 
In the 1980s, Mr. Gaffney served in the Reagan Administration 
as Assistant Secretary of Defense for International Security 
Policy and Deputy Assistant Secretary for Nuclear Forces and 
Arms Control Policy. Prior to his work in the Department of 
Defense, he was a professional staff member on the Senate Armed 
Services Committee. He received a bachelor's degree from 
Georgetown University and a master's in international studies 
from Johns Hopkins School of Advanced International Studies. 
Mr. Gaffney, the floor is yours.

         STATEMENT OF FRANK J. GAFFNEY, JR., PRESIDENT,
           CENTER FOR SECURITY POLICY, WASHINGTON, DC

    Mr. Gaffney. Thank you, Mr. Chairman. One small addendum. I 
also had the privilege of serving in this body for Senator 
Scoop Jackson, who many of you have a long and wonderful memory 
of, I am sure.
    I appreciate the chance to testify on this issue. I 
recognize that I am in the distinct minority on this panel, but 
I take comfort from the fact that I think I represent the vast 
majority of Americans and certainly the vast majority of those 
of you in Congress on this question: Should Gitmo be closed? 
And I think the answer is resoundingly no, unless there is a 
better alternative available to us.
    I would like to describe why I think there is not a better 
alternative available by putting this into context, if I may, 
and that is to describe why we have Gitmo in the first place. 
It is because we are at war. This is a point that is seemingly 
lost on a lot of us who talk about this in sort of an abstract 
concept that somehow this detention facility can be removed 
from that overarching problem.
    We are not just at war. We are at war because others 
attacked us. And in your wisdom, you here in the Congress gave 
the authority to fight back. I am afraid that increasingly, 
however, we have lost sight as to who it is we are fighting 
with. And, again, I think that bears directly on the question 
before you all today.
    We are fighting, I would suggest, against people who adhere 
to a doctrine they call ``Shariah.'' Not all Muslims do, but 
those that are engaged at this point in----
    [Audience outburst.]
    Mr. Gaffney. Excuse me.
    Chairman Durbin. Please. No outburst of approbation or 
disapprobation. Thank you.
    Mr. Gaffney. Those that do adhere to this doctrine believe 
that it is their obligation to destroy us, to force us to 
submit to their will.
    That bears directly upon this question of what happens if 
they are allowed to return to the battlefield, and I think we 
all agree recidivism among those who are released from Gitmo is 
a problem. Perhaps, as you said yourself, I think, Mr. 
Chairman, it is not as bad as recidivism in the Federal prison 
system. That is a sobering thought, which, again, I would argue 
suggests we do not want to put these prisoners into the Federal 
prison system if it is even worse than it is at Gitmo.
    The main point, though, is if the commitment these 
prisoners have, should they be allowed out, is to wage this 
jihad, as they call it, against us until we submit, it adds 
urgency to the question that Senator Cruz asked, which is, how 
do you prevent that from happening? And I would, with the 
greatest of respect, say I find unconvincing the idea that any 
of these problems are made more tractable by simply moving 
these people into the United States.
    For one thing, it does raise a question as to whether the 
costs that we are paying--and several of you have alluded to 
this excessive, wasteful, inefficient cost. But how much has it 
meant that not a single one of these people or any of their 
friends have been able to attack us because of their proximity 
to a Federal detention facility inside the United States? How 
many Americans' lives have been spared as a result? There is no 
way to know for sure. But are you feeling lucky? Do you want to 
take a chance?
    My guess is you will find much more violence inside the 
Federal prison system, not the least because these individuals 
will be engaged in proselytizing their form of Islam, Shariah, 
inside the prison system. But beyond that, you will have almost 
certainly their colleagues trying to do what was done in Iraq 
yesterday by Al-Qaeda, which is to try to spring them, or at 
the least, inflict harm on an American community that has the 
misfortune--perhaps the Thompson Correctional Facility 
community as an example, has the misfortune of incarcerating 
these people.
    Let us just set aside the numbers that you might or might 
not feel you can safely push out. There are a number, an 
unknown number--but the President has apparently said it is 
46--that you can never try. Do you honestly think that the 
people behind me and the people who are impelling this hearing 
will stop cavilling for the release of those prisoners just 
because they are now in the United States?
    And, finally, I would just say to you, as you know better 
than I, Federal judges inside this country will almost 
certainly look, at least some of them, with sympathy on the 
claim that these prisoners_once they are inside the United 
States, once they are entitled to all kinds of constitutional 
rights they might not otherwise have in places like Gitmo_and 
that would perhaps result in their release inside the United 
States.
    I find that it would be beyond malfeasance were we to go 
down that road. It is dereliction of duty. I pray you will not 
close Gitmo, and I hope that my testimony will encourage you 
not to do that.
    Thank you.
    [The prepared statement of Mr. Gaffney appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Mr. Gaffney.
    Our next witness is Lieutenant Josh Fryday. Lieutenant 
Fryday is a member of the Judge Advocate General Corps in the 
United States Navy. He is currently stationed in Washington, 
DC, at the Office of the Chief Defense Counsel for Military 
Commissions. In addition to his legal duties, Lieutenant Fryday 
served in the Navy's humanitarian aid and disaster relief 
effort following the tsunami and nuclear disaster in Japan. 
Prior to joining the Navy, Lieutenant Fryday worked in the San 
Francisco District Attorney's Office and the U.S. Attorney's 
Office for the Northern District of Illinois. He received his 
B.A. in political science and philosophy from the University of 
California at Berkeley where he graduated Phi Beta Kappa. He 
received his J.D. from the University of California Berkeley 
School of Law.
    Lieutenant Fryday, thank you for being here today, and 
please proceed.

 STATEMENT OF LIEUTENANT JOSH FRYDAY, JUDGE ADVOCATE GENERAL'S 
                CORPS, U.S. NAVY, WASHINGTON, DC

    Lieutenant Fryday. Thank you, Chairman Durbin, Ranking 
Member Cruz, and Members of the Committee, for inviting me 
today to testify. I am grateful for the opportunity to share my 
experiences with you.
    While the Office of the Chief Defense Counsel for the 
Military Commissions is aware that I am testifying today, my 
statement is based on my own personal experience and knowledge 
and does not reflect the views of my office, the Navy, or the 
Department of Defense.
    Over the past year, I have been assigned under military 
orders to serve as military defense counsel for individuals 
detained in Guantanamo Bay, Cuba. As you know, there are 166 
remaining. I represent one of them, and his name is Mohammed 
Khameen.
    People often ask me if it is difficult representing a 
detainee in Guantanamo. I am proud to live in a country where 
my Commander-in-Chief can order me to perform such a 
challenging mission. My colleagues, prosecutors, and defense 
lawyers alike are patriots who love their country. We are 
taught in the military to perform our duties with honor, 
courage, and commitment. And I am here today doing my duty to 
talk to you about my client's indefinite detention in 
Guantanamo Bay.
    My client has now been detained by our Government for over 
10 years. After 5 years of detention, in 2008 he was charged 
with material support for terrorism. In 2009, the military 
commission process halted, and the charges against him were 
dismissed.
    A recent D.C. Circuit Court decision, Hamdan v. United 
States, held that material support for terrorism is now no 
longer a crime that he or anyone detained prior to 2006 can 
ever be tried for in a military commission.
    I am not here today to ask for sympathy for a man I was 
ordered to represent, but I would like to tell you a little bit 
about him.
    He is an Afghan citizen with a third grade education 
received in a Pakistani refugee camp his family went to after 
fleeing the Russian invasion. He was roughly 22 years old when 
he was detained, although he does not know his exact age. He 
has a son who was 6 months old when he last saw him in 2003, 
and he has never been charged with harming anyone, either 
Afghan or American.
    Had my client been brought to Federal court instead of 
Guantanamo, he could have and would have been tried years ago. 
Since 9/11, nearly 500 terrorists have been convicted in 
Federal courts; in the Guantanamo military commissions, six. 
Now, after a decade of detention with no crime he can be 
charged of, he sits in Guantanamo, imprisoned indefinitely.
    My client has asked me how it is possible for my Government 
to detain him for over 10 years without proving he committed a 
crime. I try my best to explain that there are people in our 
Government who believe under the laws of war we are allowed to 
detain people indefinitely until the war is over. He then asks 
me, ``You will no longer be at war with Afghanistan after 2014. 
Can I go home then? Or does this war never end?''
    As a servicemember and an attorney sworn to uphold the 
Constitution and our strong legal traditions, I do not have 
good answers for him.
    If my client is guilty of a crime, he should be tried and 
given his day in court. So I thank this Committee for your 
willingness to listen to a story today. For as long as he is in 
Guantanamo, no judge or jury ever will.
    We are a Nation of laws and a people of principle. Denying 
my client a trial and detaining him indefinitely is at odds 
with our oldest values.
    On the eve of our Revolutionary War, we held trials for 
British soldiers responsible for the Boston Massacre. Our 
founding father John Adams served as one of the British 
soldier's defense lawyers. But today even basic due process in 
Guantanamo is denied, including the opportunity to confront 
your accusers, be presented with evidence against you, and have 
access to counsel.
    Our threats are real. Criminals and terrorists should be 
prosecuted and jailed. Our enemies must know that we will bring 
them to justice, no matter what. But as a people guided by 
principle and the rule of law, we can do better than indefinite 
detention.
    For centuries, American servicemembers have fought and paid 
the ultimate sacrifice to protect the fundamental values that 
define our Nation. We should strive to always be faithful to 
those values, especially when it is most challenging to do so.
    [The prepared statement of Lieutenant Fryday appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Lieutenant.
    The last witness on the panel is Elisa Massimino. She is 
the President and CEO of Human Rights First and an adjunct 
professor at Georgetown University Law Center. Human Rights 
First is one of the Nation's leading human rights advocacy 
groups, and Ms. Massimino and Human Rights First have been 
great partners with this Subcommittee working on our human 
rights agenda. Before joining Human Rights First, Ms. Massimino 
was a litigator in private practice and taught philosophy, 
earned her J.D. from the University of Michigan, master of arts 
in philosophy from Johns Hopkins, and graduated Phi Beta Kappa 
from Trinity University in San Antonio.
    Ms. Massimino, you have testified before the Subcommittee 
before, and I welcome you back. Please proceed.

  STATEMENT OF ELISA MASSIMINO, PRESIDENT AND CHIEF EXECUTIVE 
          OFFICER, HUMAN RIGHTS FIRST, WASHINGTON, DC

    Ms. Massimino. Thank you. Chairman Durbin, Ranking Member 
Cruz, and Members of the Committee, thank you for the 
opportunity to testify today about the importance of closing 
Guantanamo and how we can do so in a way that protects our 
country, our national security, and our values.
    As the president of an organization whose central mission 
is to advance American global leadership on human rights, I 
focus on ensuring that our country remains a beacon to freedom-
seeking people around the world and that it can continue to 
lead by the power of example. That is why, after the terrorist 
attacks on our country, we joined forces with more than 50 
retired generals and admirals, led by former Marine Corps 
Commandant Chuck Krulak and former CENTCOM Commander Joe Hoar 
who believed that our values and institutions are assets in the 
fight against terrorism, not liabilities.
    I have been to Guantanamo and met the dedicated people 
serving there under difficult circumstances. We have been 
official observers to every military commission convened at 
Guantanamo since its inception. We know and have great respect 
for the servicemembers and civilian defense lawyers who are 
struggling to navigate this untested and jerry-rigged system to 
wring some form of justice from it.
    Some would have you believe that Guantanamo's critics are a 
handful of human rights activists, some foreigners, and defense 
lawyers for detainees. That is not true. The loudest and most 
persistent calls to close the prison come from our own senior 
defense, law enforcement, intelligence, and diplomatic 
officials, people with a 360-view of the costs and benefits of 
Guantanamo who have concluded that our national security is 
best served by closing it.
    President Bush said he wanted to close Guantanamo. Henry 
Kissinger called Guantanamo ``a blot on our national 
reputation.'' Jim Baker said it has given America a very, very 
bad name. Admiral Dennis Blair, former Director of National 
Intelligence, called Guantanamo ``a rallying cry for terrorist 
recruitment and harmful to our national security.'' Secretary 
Gates told President Bush that Guantanamo was a national 
security liability and advised him to close it down. Major 
General Michael Lehnert, as you have said, who was in charge of 
standing up Guantanamo in 2002, said it cost us the moral high 
ground. Former Chairman of the Joint Chiefs Admiral Mullen said 
that Guantanamo has been ``a recruiting symbol for our 
enemies.'' General Colin Powell said he would close it ``not 
tomorrow; this afternoon.'' And Senator McCain has suggested 
that it would be an act of moral courage to find a way to 
shutter the prison.
    Whatever one thinks about the initial benefits of detaining 
prisoners at Guantanamo, there is growing bipartisan consensus 
that we no longer need it. Today's hearing catalogs the reasons 
why it is imperative to transform this consensus into action. 
We heard about the astronomical costs of Guantanamo at a time 
when the Pentagon is furloughing more than half a million 
employees. General Eaton reminded us that the impeding end of 
combat operations in Afghanistan will require a change in 
detention authorities. General Xenakis described the 
deterioration of morale at Guantanamo and the degraded mental 
state of many of the prisoners, a combination that is leading 
to a tipping point. And Lieutenant Fryday told us how 
Guantanamo has warped our system of justice.
    In many ways, the struggle with Al-Qaeda is a war of 
ideals. That is the battleground on which our country should 
have the greatest advantage. Sometimes when we lose our way, 
outsiders who admire our values can remind us of who we are and 
what we stand for. Some family members of Guantanamo detainees 
have written letters to you in advance of this hearing, and I 
want to quote from them.
    Ahmed Hadjarab, the uncle of an Algerian who has been 
detained for more than a decade without charge and has been 
cleared for released, wrote, ``When in 2002 I was told that 
Nabil was detained by the Americans, I thought that at least he 
would have a right to a fair trial. I thought his rights would 
be respected and that justice would prevail. What I feel today 
is mostly incomprehension. How can this Nation, one that prides 
itself on defending human rights, close its eyes to these 
violations of its founding principles?''
    Hisham Sliti from Tunisia has been held for more than a 
decade without charge. He, too, has been cleared for transfer. 
His mother wrote, ``I do not understand why my son is still in 
Guantanamo after all these years when we know he has been 
cleared. We never thought the United States was the kind of 
place where people could be held like this.''
    We have often talked about who we are as a Nation, but 
sooner or later who we are cannot be separated from what we do. 
As we wind down the war in Afghanistan, we must expunge the 
legacy of Guantanamo and restore America's reputation for 
justice and the rule of law. The question is not why or if, but 
how.
    Today Human Rights First has published a comprehensive exit 
strategy with a detailed plan for closing the prison. Among the 
challenges facing our country today, closing Guantanamo is far 
from the most complex. While it may be politically complicated, 
as Senator McCain recently said, it is not rocket science. It 
is a risk management exercise, and the risk is manageable. With 
leadership from the President and Congress we can get this 
done.
    Thank you again for convening this hearing and soliciting 
our views. We are deeply grateful for your leadership, Mr. 
Chairman, on this and so many other human rights issues. I look 
forward to your questions.
    [The prepared statement of Ms. Massimino appears as a 
submission for the record.]
    Chairman Durbin. Thanks, Ms. Massimino.
    Now we are going to have rounds of questioning of 7 minutes 
per Senator, and I ask that each Senator try to stick with 
those time limits, if they can. And, again, I thank the panel.
    Let me start at the beginning. Marion, Illinois, is a small 
town, small city in southern Illinois. It is a great town, and 
in a rural setting, and it has a Federal prison, the Marion 
Federal prison. Incarcerated in that Federal prison are 
convicted terrorists. I have never heard one word from a person 
living in Marion, Illinois, about a fear associated with those 
terrorists being in that prison. The notion at Marion and at 
other places where Federal prisons exist is that our Federal 
prisons are pretty good. People do not escape from them. And 
the community around them feels pretty safe.
    So, Mr. Gaffney, the notion of sending the worst of the 
worst to the Florence supermax prison 30 miles away from any 
city in the middle of nowhere, where they can have little or no 
communication with the outside world, why does that frighten 
you?
    Mr. Gaffney. Senator, I am concerned, as I said in my 
testimony, about several things. One is I think there will be 
more violence inside the prisons. Second, I think that we 
cannot be sure, but I think it is a safe bet on the basis of 
experience elsewhere that when----
    Chairman Durbin. Excuse me. Have you been inside a supermax 
prison?
    Mr. Gaffney. I have not personally had the privilege of 
being inside a supermax prison.
    [Laughter.]
    Chairman Durbin. Please. I have visited a similar facility, 
and most of them are in a very restricted, lock-down condition. 
It is rare for them----
    Mr. Gaffney. As they should be.
    Chairman Durbin [continuing]. To have more than 1 hour a 
day outside of the detention facility and then usually by 
themselves. So how do you believe that they will be able to 
incite problems within the Florence supermax prison?
    Mr. Gaffney. I am so glad you asked that, sir. One of the 
things that is concerning me is what we are seeing done in the 
prisons writ large now, not just the supermax, but I think it 
includes the supermax, and that is this proselytization, the 
fact that we have imams who are brought in for the purpose of, 
I believe, catering, of course, to the Muslim population but in 
the process also converting and promoting this doctrine, which 
does conduce to violence. There is no getting around it. It is 
supremacist in character.
    So you have to assume that there will be opportunity, 
especially if we start, as we have done with the Shoe Bomber, 
relieving them of some of the limitations on their freedom of 
movement----
    Chairman Durbin. Mr. Gaffney----
    Mr. Gaffney. Then you will get, I think, more violence. But 
if I may come to the question of the community----
    Chairman Durbin. I am sorry, but I have a limited amount of 
time. I just want to say----
    Mr. Gaffney. May I just say on the community, sir?
    Chairman Durbin [continuing]. We have now incarcerated in 
Federal prisons Moussaoui, a person we suspected to be part of 
9/11, being held with no hint of problems within the prison or 
outside of it. I also want to make something very clear for the 
record. There are some very patriotic Muslim Americans who do 
not want to be characterized as part of an extremist movement. 
They are people who we have met and worked with every day----
    [Applause.]
    Chairman Durbin [continuing]. And the notion that bringing 
in an imam or someone associated with their religion is an 
invitation to violence and extremism presumes the prison 
authorities will pay no attention, number one, and presumes 
perhaps that everyone brought in is a danger. And I think that 
is----
    Mr. Gaffney. May I very quickly respond, sir?
    Chairman Durbin. Of course.
    Mr. Gaffney. One is that the fellow who started the Muslim 
chaplains in the Federal prison is now in the Federal prison 
himself, Abdul Rahman al-Amoudi. He is a terrorist. He is a man 
who created, among other things, an infrastructure inside the 
United States for promoting Shariah through the Muslim 
Brotherhood.
    But on your question is critically important: Will Marion 
be at risk if they take prisoners from Gitmo? I am concerned 
that they might be, not least because, quite apart from whether 
they could ever spring people from the supermax facility, it 
makes it a target for terrorism. It is an opportunity to----
    Chairman Durbin. Mister----
    Mr. Gaffney. Create----
    Chairman Durbin [continuing]. Mr. Gaffney----
    Mr. Gaffney. A spectacular incident, and that is what these 
guys are about.
    Chairman Durbin. Mr. Gaffney, there are domestic gang 
members and leaders of extremist groups from all over the 
United States incarcerated in these prisons, and they are 
handled very professionally and securely so that communities 
beg for the opportunity to have a Federal prison constructed 
near them.
    Let me move to the question, Ms. Massimino. I believe the 
President should move, according to his promise, to close 
Guantanamo. But I also believe that Congress has made that 
exceedingly difficult with restrictions that we have put in 
place in terms of the transfer of these detainees. Would you 
comment on those restrictions?
    Ms. Massimino. Yes, I would be happy to do that. I also 
would like to say one word about the Federal prisons, because I 
had some of the same questions, and I understand that many 
people have these anxieties. So I reached out to the American 
Correctional Association and asked them what they thought about 
whether they could handle these kinds of prisoners, and they 
asked me, ``Do you know who is in there now? These are not nice 
people. But we know how to handle this. We have got this.'' As 
Senator Graham said, it is absurd to think that our corrections 
officials cannot handle this population.
    You are absolutely right, Senator, that Congress has made 
closing Guantanamo more difficult because of these transfer 
restrictions, and I was happy to see that the Senate defense 
authorization bill has included some provisions that would give 
greater authority to the Commander-in-Chief to dispose of the 
prisoners at Guantanamo in the way that he thinks best fits our 
national security. And I hope those provisions become law.
    We also, in our exit strategy document that we released 
today, break down the population at Guantanamo. It is 
essentially about the math. We have 166 people. The majority of 
those have been cleared for transfer. The President has now 
appointed a leader at the State Department to take on this 
challenge, and we are awaiting the appointment of a leader at 
the Defense Department to do the same. There is renewed urgency 
about this, as you heard from Senator Feinstein about what is 
going on down there with the hunger strikes.
    So this is something on which the President and Congress 
have to work together. Presidential leadership is essential, 
but Congress needs to trust the Commander-in-Chief to make 
these decisions.
    Chairman Durbin. Lieutenant Fryday, thank you for your 
compelling testimony. Thank you for your service to our 
country, and thanks for reminding us what we are all about in 
this country when it comes to the rule of law. That reference 
to John Adams is one that just stands out in this man's 
biography. Before he was elected President, he was assigned to 
defend British soldiers who were accused of massacring American 
colonists. It is an indication of where we started as a Nation 
and where we need to continue.
    You have had a foot in both camps. You have been a 
prosecutor in our criminal justice system at the Federal level, 
and now you have been a defense counsel when it comes to 
military commissions. Some in Congress argue we just cannot 
trust Article III courts. If we give somebody a Miranda 
warning, they are going to clam up and will not even talk or 
cooperate, while others point to the record that over 500 
accused terrorists have been successfully prosecuted in Article 
III courts and six before military commissions.
    What is your view about the proper place, the proper 
tribunal for these trials?
    Lieutenant Fryday. Thank you, sir, very much for the 
question and your comments. I do not believe it is my job to 
provide a recommendation to this body or this Committee. It is 
not what I have been assigned to do and ordered to do.
    I can say, having been in Guantanamo and seeing the 
commissions up close, it has been 12 years since 9/11, and we 
are still litigating what kind of clothes people can wear in 
court, what kind of notes lawyers can take in meetings, and 
what rights apply. It is a very confusing system. It is a very 
slow, inefficient system. It is obviously--as the numbers you 
indicated, it is a much slower system than Federal courts.
    There are still a lot of barriers in place in the military 
commission system, barriers for counsel, issues of attorney-
client privilege, issues of classification that are confusing, 
hearsay rules that are relaxed in the military commission 
system that is different. So there are lot of differences that 
still need to be worked out as we move forward.
    Chairman Durbin. Thank you very much.
    Senator Cruz. Thank you, Mr. Chairman. I would like to 
thank each of the witnesses for coming here and for your 
testimony.
    It seems to me this is an issue that inspires a great deal 
of passion, a great deal of emotion. And it also seems to me 
that our national security policy should not be derived simply 
from bumper-sticker ideology but, rather, from careful, hard 
decisions about how to protect the national security of the 
United States.
    There are two facts in particular that I think are hard 
facts that I heard very little discussion of from the panel 
today. The first is, as of January 2013, the Director of 
National Intelligence in the Obama administration has confirmed 
or suspects that 28 percent of former Guantanamo detainees re-
engaged in terrorism. Now, that is a very inconvenient fact for 
any argument that would leave a substantial risk of these 
individuals that are currently in Guantanamo being released.
    The second fact is underscored by timing this week, which 
is on Monday of this week, about 500 prisoners, including 
senior members of Al-Qaeda, escaped from the Abu Ghraib prison, 
which is now controlled by the Iraqi security forces. I think 
that likewise underscores the inherent risk in relying on 
foreign facilities to detain known terrorists, particularly 
terrorists for whom there is a substantial risk of their re-
engaging in terrorism if they find themselves at large.
    The first question I would like to ask is to General Eaton. 
General Eaton, I thank you for your many years of service and 
leadership. There are, as of November 2012, 166 detainees in 
Guantanamo. Is there any reason to believe that if those 
individuals were released, their recidivism rate would be any 
less than the Guantanamo detainees who have already been 
released who have re-engaged in terrorism at a rate of 28 
percent, according to the head of the DNI?
    General Eaton. Senator Cruz, thank you for the question. I 
spent a career managing risk. Soldiers never get all the assets 
they need to buy risk down to zero. The question, I believe, 
could also be posed: Is the existence of Guantanamo a higher 
risk than the release of the prisoners we have there now?
    We have a terrific judicial system. Our intelligence 
architecture reveals a 28 percent recidivism rate. If we accept 
28 percent, then we have that same intelligence architecture 
that will help us buy down the risk of placing those 
individuals back in the care of countries that will take care 
of them, which is a requirement that this body has imposed upon 
the Secretary of Defense, a certification process.
    So when we talk about releasing the 86 that are cleared for 
release under conditions that meet the expectations that the 
Secretary of Defense has to certify, then I think it is 
appropriate, and I think that the risk associated with that is 
indeed relatively low. It is not zero. But I live in a world, a 
military world, that accounts for risk, and you buy the risk 
down with every factor available to you, and America has a 
great deal to help buy down that risk.
    Senator Cruz. General Eaton, if I understood your answer 
correctly, it was that if detainees are released, we can act to 
mitigate the risk of their re-engaging in terrorism. I would 
note that it seems to me you did not dispute the premise of my 
question that these individuals, if released, we could expect 
to re-engage in terrorism at at least the same rate. And, in 
fact, I would suggest to you surely it was not the case that 
the people we released initially were the most dangerous. Under 
any rational system, presumably the first people released were 
those we deemed to be the least dangerous. And so the rational 
inference would be those remaining would, if anything, return 
to terrorism at a higher rate not a lower rate than 28 percent.
    General Eaton. Senator, as Yogi said, predictions are 
really hard, especially if it is about the future. And we have 
got a population that is unknowable to 100-percent prediction 
rate. So, again, we mitigate risk. We buy it down. It will not 
go to zero. But I cannot put a figure on it.
    Senator Cruz. Well, with respect, General, it will go to 
zero with respect to those detainees if they remain detained. I 
mean, we are talking about the risk of future acts of 
terrorism. And let me say more broadly to the panel, at the 
outset I noted what I thought was the most difficult question, 
which is, it is easy to say close Guantanamo and get an 
applause from various audiences. The harder question then is 
what do you do with these terrorists. And it seems to me there 
are one of two options. You either send them to U.S. detention 
facilities--now the Chairman has generously volunteered Marion, 
Illinois, to host these terrorists. I do not know what the 
citizens of Illinois would think of that. I feel confident I 
know what the citizens of Texas would think about their coming 
to Texas.
    I would note we have had multiple instances of individuals 
in Federal prisons engaging in terrorism, directing terrorist 
acts from Federal prisons, including the Blind Sheikh; Lynne 
Stewart was convicted for aiding terrorism for individuals in 
Federal prison. Or the alternative is to send it to foreign 
locations, whether it is nations like Yemen, with enormous 
instability, or other allies. And given the escape we just saw 
in Abu Ghraib, it is hard to have any confidence that if these 
individuals are sent to a foreign facility that they will not 
in due course be released and in due course commit future acts 
of terrorism, taking the lives of innocent Americans.
    I want to close with a final question, which is, Mr. 
Gaffney, it has been reported that the President--under the 
Obama administration, approximately 395 people have been killed 
by drone strokes. Are you aware of any reasonable argument that 
it is somehow more protective of human rights, more protective 
of civil liberties, to fire a missile at someone from a drone 
and kill them than it would be to detain them and interrogate 
them, determine their guilt or innocence, and determine what 
intelligence might be derived from that individual?
    Mr. Gaffney. Mr. Chairman, one housekeeping item. I think I 
neglected to ask if my entire statement could be put in the 
record.
    Chairman Durbin. It certainly will be.
    Mr. Gaffney. And there is also a short letter from a number 
of distinguished military officers that I would like to have in 
the record as well.
    Chairman Durbin. Without objection.
    [The letter appears as a submission for the record.]
    Mr. Gaffney. Senator Cruz, look, I am probably not the best 
arbiter of what is humane. You have people on this panel who 
spend a lot of their time dwelling on that. I kind of focus on 
national security. But just as a human being, I will tell you I 
think if you kill people, that typically is less humane than 
incarcerating them. Letting them starve to death is, in my 
judgment, less humane than feeding them, involuntarily if 
necessary. But this is not my specialty, and I would defer to 
others who may have a higher claim on knowledge in this area.
    Senator Cruz. And we get no actionable intelligence from 
someone who has been killed by----
    Mr. Gaffney. And that is where the national security piece 
comes in. Foreclosing the option to detain and interrogate 
people is, I would suggest, as I am sure Senator Feinstein 
knows, a real impediment to our ability to prosecute a war like 
the one that has been thrust upon us by people who operate with 
a very high regard for operational security.
    To the extent that we deny ourselves unilaterally this 
ability by essentially foreclosing putting them anyplace where 
we can have those kinds of interrogations I think is--well, I 
said earlier, strong words, but I think it is a dereliction of 
duty on the part of the Commander-in-Chief.
    Senator Cruz. Thank you, Mr. Gaffney. Thank you, General 
and the panel.
    Ms. Massimino. Mr. Chairman, I wonder if I might respond to 
this question about recidivism that Senator Cruz raised.
    Chairman Durbin. Please proceed.
    Ms. Massimino. Because it is certainly a reasonable 
concern, as it is in the criminal context, as you heard. But 
the claim that 28 percent of Guantanamo detainees have 
``rejoined the fight'' is highly misleading, and Defense 
Department officials have said that many detainees included in 
that category are merely suspected of having some associations 
with terrorist groups and may very well have not engaged in any 
activities that threaten our national security. But that does 
not mean that all the prisoners at Gitmo are somehow innocent 
farmers and that there is no risk.
    I really think this question about recidivism has to relate 
to what is our overall objective. You know, a lot of the people 
at Guantanamo are precisely the kinds of targets that Al-Qaeda 
looks to for cannon fodder, and some of them could cause harm 
if they are released. But that does not make them any different 
from the hundreds of thousands of other angry young men 
throughout the Muslim world who believe in the same case. And 
there is, sadly, no shortage of potential suicide bombers.
    Guantanamo does nothing to solve that problem. In fact, it 
probably makes it worse.
    Chairman Durbin. Okay. Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I want to ask a question of Lieutenant Fryday, about in 
your past, did you serve as an intern in my San Francisco 
office, per chance?
    [Laughter.]
    Lieutenant Fryday. Proudly, ma'am.
    Senator Feinstein. Well, I am very proud of you, so that is 
what I wanted to say.
    [Laughter.]
    Senator Feinstein. Isn't it true that some of the 80 Gitmo 
detainees who have not been cleared for transfer now, as you 
have spoken, can only be prosecuted in a Federal criminal court 
because the charges of conspiracy and material support to 
terrorism are no longer available in the military commission? 
Is that not correct?
    Lieutenant Fryday. That is correct, ma'am.
    Senator Feinstein. So what we are saying is for those, if 
there is no alternative prosecution in a Federal court, they 
remain without charge or trial until the end of time.
    Lieutenant Fryday. Let me clarify, ma'am. Material support 
for terrorism and conspiracy is a charge that can be charged in 
Federal crime. So it is not something that can be charged in a 
military commission, but is a charge that is available to the 
Federal court.
    Senator Feinstein. But if you are going to keep them in 
Guantanamo, they cannot be tried by a military commission. Is 
that not correct?
    Lieutenant Fryday. That is correct, ma'am. They cannot be 
tried.
    Senator Feinstein. So the only hope would be they would 
have to be transferred out to be tried in a Federal court.
    Lieutenant Fryday. Either that or go through a meaningful 
process like the PRBs that have just been set up where our 
country determines that at some point they are no longer a 
threat, in which case they could be transferred if they meet 
the restrictions that have been----
    Senator Feinstein. Let us talk. See, I have believed from 
the days of Colonel Davis down there that the military 
commission is an ineffective instrument. How many cases have 
they actually tried?
    Lieutenant Fryday. There have been six convictions in the 
military commissions.
    Senator Feinstein. And explain to us exactly what those six 
convictions are and who is still serving?
    Lieutenant Fryday. So the six convictions were for--the 
names are Hicks, Hamdan, al Bahlul, Khadr, al Qosi, Noor--and 
Majid Khan. Because I did not serve on those trials, I do not 
know all the details of each case. We do know that Hamdan has 
since been overturned by the D.C. Circuit court for saying, as 
I described in my testimony, the charge that he was charged 
with, material support for terrorism----
    Senator Feinstein. Well, maybe I could give them to you 
then.
    Hamdan received a 5-month sentence. He was sent back to his 
home in Yemen to serve the time before being released in 2009. 
In October 2012, the D.C. Circuit vacated his conviction for 
material support because the charge was not recognized as a 
violation of the international law of war.
    Hicks was the first person convicted in a military 
commission. When he entered into a plea agreement on material 
support on terrorism charges in March 2007, he was given a 9-
month sentence, which he mostly served back home in Australia.
    Al Qosi pled guilty to conspiracy and material support. A 
military jury delivered a 14-year sentence, but the final 
sentence handed down in February 2011 was 2 years, pursuant to 
his plea agreement. He has returned to Sudan at the conclusion 
of his sentence in July 2012.
    Noor Muhammed pled guilty to conspiracy and material 
support. A judge delivered a 14-year sentence, but the sentence 
will be less than 3 years pursuant to his plea agreement. 
Because of credit for time served, he could be eligible for 
release to Sudan in December of this year.
    One last one, and there is a point. Omar Khadr pled guilty 
in a military commission to murder, material support to 
terrorism, and spying. He was sentenced to 8 years, but was 
transferred to a Canadian prison where he will serve out his 
remaining sentence and be eligible for parole after he serves a 
third of the sentence.
    Now, there are a couple more here, and one of them is your 
client.
    Here is my point: The sentences were very few and very low, 
essentially, from the military commission. And I have sat here 
over the years and wondered: What are we doing? Why are we 
maintaining this farce of a military commission which really 
does not work? And we have had different people down there 
trying to make it work, but to the best of my knowledge, no one 
has been successful.
    Last month, when I was down there, I saw a very spanking 
new courtroom with nothing scheduled to go forward. And it just 
seems to me that everything down there is so deceiving and is 
really a kind of untruth about the American way, about the 
American judicial system, about America's humanitarian 
treatment of prisoners. Force feeding is not humanitarian, and 
yet it goes on and on and on. There is no end to this war yet 
that we know of. So unless the facility is closed, it will 
continue to go on.
    Do you have any other comment you would like to make, or 
General Eaton?
    Mr. Gaffney. Senator, could I just make a quick comment, if 
I may?
    Senator Feinstein. Sure.
    Mr. Gaffney. I think this question of whether it is going 
to go on and on goes back to the point that I was trying to 
make earlier. That is not entirely up to us. The President's 
saying that it has to end is only possible if we surrender, if 
we submit. And, specifically, this question of will there be 
more of this, you know, recruiting if we leave it open I think 
begs the question: Compared to what?
    Senator Feinstein. Sir----
    Mr. Gaffney. Does it--does it get worse if you actually 
have more of these jihadists inspired by our submission? And 
that is what I am concerned about, ma'am.
    Senator Feinstein. I read the intelligence daily. I know 
what is happening. I also know that Guantanamo contributes 
nothing positively. It contributes nothing that a Federal 
prison could not do better. It contributes nothing that a 
Federal court could not do better. So----
    Mr. Gaffney. But if we close it, that may contribute quite 
negatively, is my concern, to inspiring our enemy.
    Senator Feinstein. I profoundly disagree with you.
    Mr. Gaffney. Understood.
    Senator Feinstein. I think it will send a signal that 
finally we have learned something. I saw the people there. The 
doctor is right. These are not robust specimens any longer. It 
is a very different picture, I think, than people imagine.
    Doctor, do you not agree?
    General Xenakis. Yes, ma'am.
    Senator Feinstein. So----
    Mr. Gaffney. Look at the prisoners coming out of Israel, 
ma'am, and how they are regarded and how they inspire jihadism.
    Senator Feinstein. We are not----
    Mr. Gaffney. No, but it is a similar phenomenon, and that 
is why I call to your attention this Shariah underpinning of 
the war we are engaged in.
    Senator Feinstein. I hope someday you go take a look. In 
any event, I want to say thank you, Mr. Chairman. I appreciate 
being here.
    Chairman Durbin. Thank you very much, Senator Feinstein.
    We have two House Members who were, unfortunately, delayed 
by votes, and I have never seen this happen in the Senate 
before. We are going to let House Members testify. How about 
that? This may bring this institution down, if nothing else 
has.
    [Laughter.]
    Chairman Durbin. I am sure it will not, having served in 
the House.
    We are honored to have Congressman Adam Smith in his ninth 
term, Ranking Member of the House Armed Services Committee. He 
has a very lengthy and impressive bio, which I am not going to 
read. I hope you understand. And Congressman Mike Pompeo, who 
is--he enrolled at West Point and graduated first in his class. 
I do not know how long you have been in Congress, Mike. How 
long?
    Representative Pompeo. Thirty months.
    Chairman Durbin. Thirty months. So we are going to ask each 
of them to make a statement, and if the panel would not mind 
staying for just a few moments, so each of them would speak for 
5 minutes, and then if there are any further questions from 
Senator Cruz or myself or Senator Feinstein.
    Congressman Smith.

STATEMENT OF HON. ADAM SMITH, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF WASHINGTON

    Representative Smith. Thank you, Mr. Chairman, and I am 
honored that the Senate would have us over here. We should work 
together more often, I think all would agree.
    I am just here to argue that we should close Guantanamo 
Bay, and a number of issues have been raised which are separate 
from that question. I am not here to argue that we should stop 
detaining and interrogating suspects or that we should even 
necessarily release any number of the suspects that are at 
Guantanamo. Those are difficult questions, and do not get me 
wrong, I have positions on that. I certainly think that the 84 
inmates that we have designated for release as being acceptable 
risks should be released. But that is an entirely separate 
question from where we hold them. And the argument that I make 
is that Guantanamo Bay, you have to balance the cost and the 
benefit, and there is literally no benefit to keep Guantanamo 
Bay open. All of the arguments that I have heard about the 
necessity to detain and interrogate, the necessity to continue 
to fight the war, which I agree with completely, you know, the 
necessity to protect ourselves from our enemies, all of that 
can be accomplished by holding them within the United States. 
And it has just been stupefying to me the last several years 
the degree to which people seem to have become unaware of the 
fact that we already hold hundreds of terrorists in United 
States supermax prisons, including Ramzi Yousef, the Blind 
Sheikh, Abdulmutallab, many notorious Al-Qaeda operatives. We 
continue to do that right here in the U.S., safely, 
efficiently, and, I might add, very much more cost-effectively.
    Number one, the average cost of an inmate is estimated at 
$1.5 million a year in Guantanamo. Now, there will be 
transition costs to shut down Guantanamo and open up here. But 
in the long run, there is no question that it is cheaper to 
hold them here in the U.S. than it is in Guantanamo.
    So the question is: What is the benefit of keeping that 
prison open? There is absolutely none. There has been spurious 
arguments made about somehow more constitutional rights will 
apply if they come to the U.S., when the Supreme Court has 
already ruled that Guantanamo is treated like the U.S., that is 
why they granted habeas under the people in Guantanamo. There 
are no greater constitutional rights here in the U.S. than out 
there. There is no benefit.
    So what is the cost? The cost I think is, well, number one, 
the cost, the sheer amount of money that we have to spend to 
maintain this facility. But understand how the international 
community looks at Guantanamo. It was opened in the first place 
as an effort to get around the United States Constitution. It 
was the hope that if we held them outside of the territorial 
United States, we would not have to abide by those pesky 
constitutional values and rules that we hold so dear in this 
country. And the world knows that, and it is an international 
eyesore as a result.
    Now, as it turns out, as I said, the Supreme Court said, 
``Nice try, but you are effectively in control of them, so the 
Constitution does, in fact, apply.''
    But Secretary Gates, George W. Bush, John McCain, many 
hard-core Republicans, who I think would take a back seat to no 
one in prosecuting this war, have said that we need to close 
this prison because it is hurting us with our allies and is 
inspiring our enemies.
    Now, I am not naive. I am not going to tell you that the 
only reason Al-Qaeda attacks us is because of Guantanamo Bay. 
Far from it. But it certainly stands out there as one 
recruiting tool that, again, is wholly unnecessary.
    So what I propose--and I proposed an amendment on the House 
side--is for an orderly way to close the prison. The President 
has also put out a plan--I know he has occasionally been 
accused of not having one, but I actually have it in my file 
folder right next to me--for how we should go about Guantanamo 
Bay. And, again, it is not even about recidivism or any of 
these other--those are arguments that you can have separate. 
This argument is not about whether or not we should hold them. 
It is about where we should hold them. And holding them in 
Guantanamo Bay hampers our efforts to successfully prosecute 
the war against Al-Qaeda. It continues to be a piece of 
evidence that our allies use to say, well, we do not want to 
cooperate with the U.S. because we do not like the way they 
implement their Constitution, we do not like the way they treat 
prisoners. That hampers our ability to successfully prosecute 
this war.
    And the only argument that is left hanging out there is 
somehow we cannot safely hold these people in the U.S. And, 
again, I find that argument to be patently ridiculous because 
we are safely holding hundreds of terrorists, not to mention 
mass murderers and pedophiles and some of the most dangerous 
people in the world.
    If the United States of America is incapable of 
successfully holding a dangerous inmate, then we are all in a 
world of hurt, Guantanamo or no Guantanamo. And I hope we 
understand that.
    And, also, the notion that this will somehow inspire Al-
Qaeda more, I hate to tell you, but Al-Qaeda is sufficiently 
inspired right now. They are doing everything they can to 
attack us. And I applaud the various efforts that we have put 
forth to stop them. But the idea that instead of having 400 
terrorists inmates we have maybe 484 in the U.S. is going to 
somehow massively increase the threat, well, it is just 
ridiculous on its face.
    There is no benefit. The cost is great. Let us get around 
to closing Guantanamo as soon as we can.
    [The prepared statement of Representative Smith appears as 
a submission for the record.]
    Chairman Durbin. Thanks, Congressman Smith.
    Congressman Pompeo.

  STATEMENT OF HON. MIKE POMPEO, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF KANSAS

    Representative Pompeo. Thank you, Chairman Durbin, thank 
you, Ranking Member Cruz. It is an honor as a Member of the 
House to be here with you today. I agree with Mr. Smith only so 
far as that Al-Qaeda is absolutely very much inspired.
    I was at Guantanamo Bay this past May, and I want to dispel 
a couple of facts right up front about the situation on the 
ground.
    First, every American should be proud of the integrity 
shown by those U.S. military personnel caring for these 
detainees. Their work is difficult, but they bring the highest 
honor and care to the work they do there with the members of 
Joint Task Force Gitmo.
    Second, there are no human rights violations occurring at 
Guantanamo Bay. There is no doubt that the detainees are held 
in conditions----
    [Audience outburst.]
    Representative Pompeo. That meet or surpass the standards--
--
    [Chairman gavels to order.]
    Representative Pompeo. Thank you. There is no doubt that 
the detainees are held in conditions that meet or surpass the 
standards provided for under the Geneva Conventions. In fact, 
given the safe and secure environment that Gitmo provides, most 
detainees maintain significantly more freedom of movement and 
activity than they would in a maximum security U.S. prison. 
They have access to gym equipment, educational materials, 
entertainment, and top-rate medical and dental care. The health 
care matches the level of the care received by our U.S. 
military personnel.
    I would be remiss, given the situation, if I did not talk a 
little bit about the current hunger strike there. This is a 
political stunt. It is orchestrated or encouraged at least in 
part by counsel for the detainees and should not be rewarded. 
Claims that the efforts by our guards to force-feed those Gitmo 
detainees currently refusing nutrition are inhumane and should 
be ceased are simply wrong. The methods used by military 
personnel to feed those detainees who wish not to feed 
themselves meet court-approved standards and are carefully 
monitored by medical personnel and those in command. It is 
right to continue to provide these detainees nutrition.
    I want to talk about the constitutionality of Gitmo. Some 
folks continue to question it. We have to start with the basic 
fact. We continue to be at war with Al-Qaeda and associated 
extremist groups who daily seek to kill Americans. As long as 
these groups fight us, we remain at war. And as the Supreme 
Court made clear in Hamdi and as courts have confirmed many 
times since, the capture and detention of enemy combatants is a 
necessary incident to the conduct of this war. There is no 
question about the constitutionality of the detention at 
Guantanamo Bay.
    Let us talk about the merits, the policy concerns 
surrounding it. First of all, current detainees have been off 
the battlefield for some time, yet they may well continue to 
provide valuable intelligence to U.S. intelligence collectors. 
But we should not focus just on those who are there today. As I 
said, we are still engaged in a counterterrorism battle all 
around the globe. The continued need to have a secure location 
in which to detain captured enemy combatants remains. The 
intelligence collection that can occur at these locations is 
enormous and central to our efforts to continue to identify, 
capture additional enemy combatants, and, in fact, defeat our 
enemy.
    I just returned from a trip to Afghanistan as well, and I 
can assure you that there are many folks there that the options 
would either be to kill or capture, and we will serve our 
national security interests far better if we are able to 
capture them.
    We talk about options. What are the alternatives? We could 
release Gitmo detainees to third-party countries. But as I 
heard Senator Cruz speak about, we have a very high recidivism 
rate. Whether it is 10 percent or 15 percent or, as the studies 
have shown, one-quarter of those detainees, I can assure you 
that we will have American servicemembers killed as a result of 
releasing detainees from Guantanamo Bay.
    Indeed, just within this past week, Al-Qaeda conducted a 
major attack on two facilities in Iraq, releasing 500, some of 
whom were senior Al-Qaeda warriors. The transfer to third 
parties is simply not a reasonable solution to keeping America 
safe.
    Moreover, transfer to third parties also presents another 
risk, a human rights risk, namely, that the nation to which we 
send those detainees will torture those folks. We cannot permit 
that.
    Second, the other option is to bring them back to the 
United States. Twice within the last 48 hours in the U.S. House 
of Representatives, Members have offered amendments to the 
defense appropriations bill. Twice those bills have been 
defeated. The American people and their House of 
Representatives understand that bringing these detainees back 
to the United States is not a workable solution.
    Last, I want to talk about the damage that has been done to 
national security as a result of this administration's policies 
and rhetoric surrounding Guantanamo Bay.
    After over 4 years in office, the President continues to 
insist that we pursue a political goal and then, later, figure 
out a way to meet the real mission. The President knows, he 
knows full well--indeed, he has spoken about it--that not all 
of those prisoners are in any way, shape, or form transferable 
or returnable, including the 9/11 five. No one believes they 
are going to come back, including this President, yet he 
continues to use the rhetoric of Guantanamo Bay closure.
    You know, the President seems far more concerned in my 
judgment with mollifying the grievances of Al-Qaeda than 
defending against the real dangers these enemy combatants pose 
to the American people. By insisting on a catch-and-release 
counterterrorism strategy or a kill terrorism strategy, the 
President continues to do great harm to America's national 
security interests.
    Thank you for the time today. I yield back.
    [The prepared statement of Representative Pompeo appears as 
a submission for the record.]
    Chairman Durbin. Thank you very much, Congressman.
    Senator Whitehouse, do you have any questions of the panel 
or Congressmen?
    Senator Whitehouse. I had a question for the panel. Just a 
moment of background on it. I grew up the son of a Foreign 
Service family and spent a certain amount of time in Africa and 
Southeast Asia and was, I felt, the beneficiary of the good 
will and good example that my country represented around the 
world. I never was able to articulate it very clearly until I 
heard President Clinton, who is a master articulator, say that 
the power of our example as Americans has always been more 
important in the world than any example of our power. And I 
recently ran across Daniel Webster's first Bunker Hill Memorial 
oration from 1825, where he said, ``The last hopes of mankind 
therefore rest with us''--meaning Americans. ``And if it should 
be proclaimed that our example had become an argument against 
the experiment''--the ``experiment'' being our experiment in 
democracy--he continued, ``the knell of popular liberty would 
be sounded throughout the Earth.''
    So I would just like those of you who represent our country 
overseas to react to those thoughts and explain where in the 
range of hard military power, soft economic power, and 
diplomatic persuasion you think the example that America 
presents to the world stands in the assets that we bring to 
bear to support and defend our interests around the world.
    General Eaton. Senator, my name is Paul Eaton, and thank 
you very much. Human Rights First has stenciled on their wall a 
quote from one of my favorite Presidents, Dwight Eisenhower: 
``Whatever America hopes to bring to pass in the world must 
first come to pass in the heart of America.''
    Do we want America to be represented by a young man with an 
M4 carbine? Or do we want America to be represented by a man 
who flew back with me from Africa who had just built a very 
large industrial chicken farm in an African country?
    And I will tell you that as a soldier, I would far better 
want representation by a man who knows how to bring 
agricultural expertise than my sons and daughter with rifles 
overseas.
    So we are far better served by our economic prowess and by 
our diplomatic prowess than by our extraordinarily fine 
military. Thank you.
    Mr. Gaffney. Senator, I am not sure whether I qualify as 
one of your candidates for answering this, but if I may----
    Senator Whitehouse. You are on the panel. You can.
    Mr. Gaffney. I am. Thank you. I would just offer that the 
idealism that you have described and that the general has just 
referred to is certainly commendable, and I think it is 
something that we should strive for. And yet it has to be 
tempered by a certain realism, and that is, when you are 
confronting people who are not moved by our example and may be 
affected by our power, I think you need to be able to bring 
both to bear. And in this case, I had a colloquy--I think you 
were out of the room--with Senator Feinstein about this. I just 
have to return to it, if I may.
    To the extent that an enemy like the one we confront today 
actually perceives weakness not as dissuasive or exemplary or 
desirable but as an inducement to violence against us, the 
dangers of making a miscalculation here, not because it is the 
way we would like things to be, but because it is the way our 
enemy perceives and responds to these things, submission is 
their goal. Our submission is their goal, and I guarantee you 
they will perceive the closure of Gitmo as evidence of 
accomplishing it.
    Senator Whitehouse. I just have to react to that because I 
have to disagree. George Washington led armies that left bloody 
footprints in the snows of Valley Forge with no certainty that 
their enterprise would succeed and that pledging their lives 
and fortunes and sacred honor would not put them at the end of 
a rope. And yet they did not torture Hessians when they caught 
them. They did not force-feed them. You can go on and on, 
through World War II, the example of Britain in the shadow of 
Hitler's Nazism, throwing out of their secure intelligence 
facility somebody who had the nerve to lay hands on one of 
their prisoners, partly because they knew it was bad practice 
in intelligence gathering, partly because it was not who they 
were. And we are still proud of the way Britain stood up 
against the Nazi menace even before we got into the war, when 
they stood alone, and Winston Churchill is going to be a figure 
in history because of that. And I think the fact that over and 
over again they refused to use those techniques is actually a 
measure of their strength. And you could just as easily make 
the argument that we are strengthening Al-Qaeda and our enemies 
by treating them as if they were more dangerous than Nazi 
Germany, more dangerous than the opponents of our American 
Revolution, and require us to veer from standards of decency 
and conduct that have characterized this Nation since its 
inception.
    Chairman Durbin. Senator Whitehouse, are you finished?
    Senator Whitehouse. I am.
    Chairman Durbin. Thank you. Before we adjourn this 
meeting--and I thank the panel and my colleagues--I would like 
to ask you to note one particular thing. Fifteen years ago 
today, at this moment, at 3:40 p.m., two of the officers of the 
Capitol Police were shot down and killed in the Capitol by a 
madman with a gun. They were Officer Jacob Chestnut and 
Detective John Gibson. And each year at this time, when the 
Senate and House are in session, we have a moment of silence in 
their memory, and I would like to ask all those who are in 
attendance to please join me, if you can, and stand for a 
moment of silence in their memory.
    [Moment of silence.]
    Chairman Durbin. Thank you very much.
    If there are no further questions, I have a script to read. 
Thanks again to my colleagues from the House for joining us 
here today.
    There has been a great deal of interest in today's hearing. 
Many individuals and organizations submitted testimony, 
including Retired Brigadier General David Irvine, 26 retired 
admirals and generals supporting the closure of Guantanamo--the 
full list is going to be added in the record--Amnesty 
International, the Constitution Project, the National Religious 
Campaign Against Torture, the Center for Victims of Torture, 
Reprieve, Air Force Captain Daphne LaSalle Jackson, Tom Wilner, 
and my friend Tom Sullivan, the former U.S. Attorney for the 
Northern District of Illinois.
    I would also like to note that two other attorneys, close 
friends of mine in Chicago, in addition to Tom Sullivan, Lowell 
Sachnoff and Jeff Coleman, are volunteer attorneys lieutenant 
representing detainees as well. They give extraordinary amounts 
of time in help bringing justice to this situation.
    We also received more than a dozen statements from family 
members of those detained in Guantanamo Bay. I particularly 
want to thank the human rights organization Reprieve for their 
assistance in ensuring these individuals were allowed to share 
their perspective.
    Without objection, I would like to place these statements 
in the record.
    [The information referred to appears as submissions for the 
record.]
    Chairman Durbin. The hearing record is going to be open for 
a week to accept additional statements. Written questions for 
the witnesses will also be submitted by the close of business 1 
week from today, no later. And we will ask the witnesses to 
respond promptly if they can.
    If there are no further comments from our panel or 
colleagues, I want to thank the witnesses for attending and my 
colleagues for participating.
    There is difference of opinion, obviously expressed today, 
and that is what this system of Government is all about, that 
we would come together with differences of opinion in a 
peaceful gathering and debate an important policy relative to 
our values and our security. And I think this Subcommittee, 
which has a responsibility to deal with issues involving the 
Constitution, human rights, and civil rights, has a particular 
responsibility to raise even these controversial issues on a 
regular basis. I am sorry that it has been 5 years since we 
have had a hearing on Guantanamo. I can guarantee you that, if 
it continues to be open, there will be another hearing very, 
very soon.
    At this point this meeting of the Subcommittee stands 
adjourned.
    [Applause.]
    [Whereupon, at 3:44 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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