[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
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JULY 24, 2013
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Serial No. J-113-22
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Printed for the use of the Committee on the Judiciary
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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
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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
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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.]
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