[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
DEMANDING ACCOUNTABILITY:
THE ADMINISTRATION'S RECKLESS RELEASE OF TERRORISTS FROM GUANTANAMO
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
JULY 7, 2016
__________
Serial No. 114-203
__________
Printed for the use of the Committee on Foreign Affairs
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COMMITTEE ON FOREIGN AFFAIRS
EDWARD R. ROYCE, California, Chairman
CHRISTOPHER H. SMITH, New Jersey ELIOT L. ENGEL, New York
ILEANA ROS-LEHTINEN, Florida BRAD SHERMAN, California
DANA ROHRABACHER, California GREGORY W. MEEKS, New York
STEVE CHABOT, Ohio ALBIO SIRES, New Jersey
JOE WILSON, South Carolina GERALD E. CONNOLLY, Virginia
MICHAEL T. McCAUL, Texas THEODORE E. DEUTCH, Florida
TED POE, Texas BRIAN HIGGINS, New York
MATT SALMON, Arizona KAREN BASS, California
DARRELL E. ISSA, California WILLIAM KEATING, Massachusetts
TOM MARINO, Pennsylvania DAVID CICILLINE, Rhode Island
JEFF DUNCAN, South Carolina ALAN GRAYSON, Florida
MO BROOKS, Alabama AMI BERA, California
PAUL COOK, California ALAN S. LOWENTHAL, California
RANDY K. WEBER SR., Texas GRACE MENG, New York
SCOTT PERRY, Pennsylvania LOIS FRANKEL, Florida
RON DeSANTIS, Florida TULSI GABBARD, Hawaii
MARK MEADOWS, North Carolina JOAQUIN CASTRO, Texas
TED S. YOHO, Florida ROBIN L. KELLY, Illinois
CURT CLAWSON, Florida BRENDAN F. BOYLE, Pennsylvania
SCOTT DesJARLAIS, Tennessee
REID J. RIBBLE, Wisconsin
DAVID A. TROTT, Michigan
LEE M. ZELDIN, New York
DANIEL DONOVAN, New York
Amy Porter, Chief of Staff Thomas Sheehy, Staff Director
Jason Steinbaum, Democratic Staff Director
C O N T E N T S
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Page
WITNESSES
Mr. Lee Wolosky, Special Envoy for Guantanamo Closure, U.S.
Department of State............................................ 5
Mr. Paul M. Lewis, Special Envoy for Guantanamo Detention
Closure, U.S. Department of Defense............................ 13
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Mr. Lee Wolosky: Prepared statement.............................. 8
Mr. Paul M. Lewis: Prepared statement............................ 15
APPENDIX
Hearing notice................................................... 48
Hearing minutes.................................................. 49
The Honorable Eliot L. Engel, a Representative in Congress from
the State of New York: Material submitted for the record....... 51
Written responses from Mr. Lee Wolosky to questions submitted for
the record by:
The Honorable Edward R. Royce, a Representative in Congress
from the State of California, and chairman, Committee on
Foreign Affairs.............................................. 55
The Honorable Christopher H. Smith, a Representative in
Congress from the State of New Jersey........................ 56
DEMANDING ACCOUNTABILITY:
THE ADMINISTRATION'S RECKLESS
RELEASE OF TERRORISTS FROM GUANTANAMO
----------
THURSDAY, JULY 7, 2016
House of Representatives,
Committee on Foreign Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10 o'clock a.m.,
in room 2172 Rayburn House Office Building, Hon. Edward Royce
(chairman of the committee) presiding.
Chairman Royce. This hearing will come to order.
Today we welcome back the Obama administration's top
officials for closing the detention center at Guantanamo Bay.
In March, these two gentlemen appeared before the committee to
discuss the administration's proposal to relocate the prison
and its detainees to the continental United States, as well as
the process of releasing individuals to foreign countries.
Much of the news from that hearing surrounded Mr. Lewis'
revelation that, in his words, ``unfortunately, there have been
Americans that have died because of Guantanamo detainees.''
And, indeed, last month the Washington Post reported that the
administration believes that at least 12 detainees released
from the Guantanamo facility have since attacked U.S. or allied
forces in Afghanistan, killing about a half dozen Americans.
That was startling enough. But it is particularly
disturbing that--upon close examination--these witnesses made
statements to the committee that are inconsistent with the
documents and inconsistent with information that the
administration has supplied the committee under the law.
Specifically, the committee asked whether the Department of
Defense ever knowingly transferred a detainee to a country that
did not exhibit an ability to substantially mitigate the risk
of recidivism or maintain custody or control of that
individual. Mr. Lewis and Mr. Wolosky assured committee members
that it had not. Yet numerous intelligence reports provided by
the administration suggest that their answers were inaccurate:
In fact, the Defense Department had done so on numerous
occasions.
The Secretary of State has the sole responsibility to
negotiate transfers, including agreements to monitor released
detainees. Under the law, Congress regularly receives
information from the intelligence community on the return to
terrorism rate of individuals released to foreign countries as
well as assessments of a country's ability to prevent
terrorists from returning to the fight.
Simply put, many countries just aren't up to the job. And a
diplomatic agreement to do the job isn't worth the paper it is
written on if a country does not have the resources, does not
have the training to keep committed terrorists from returning
to the battlefield.
Yet the administration has sent Guantanamo terrorists to
these countries anyway. To then deceive this committee and the
American people is deeply disturbing, and when given the
opportunity to correct the record for the committee, they
ignored us.
I appreciate that the administration finally responded on
Tuesday. But it shouldn't take the calling of a hearing to
elicit a return letter, especially on something as
consequential as this. This committee has an obligation to
conduct oversight. While we have differences of opinion over
Guantanamo policy, I don't think anyone here finds the
administration's dismissiveness acceptable.
And should anyone think the committee's concerns are
theoretical, and specifically I was pressing on these
terrorists who had been transferred to Uruguay, it is not
theoretical because now Jihad Diyab, who is an al-Qaeda-linked
terrorist, was sent from Guantanamo to Uruguay in December
2014.
We sounded the alarm about Uruguay's lack of legal
framework. We explained to you about the critical resources to
prevent travel outside the country--that that was lacking in
the case of Uruguay. And so what is the result?
The result is last month, Jihad Diyab disappeared from
Uruguay. His current whereabouts are unknown, and this was
after Mr. Wolosky testified to us in March that ``we are
confident that the Government of Uruguay is taking appropriate
steps to substantially mitigate the risk'' of this former
detainee and others sent to Uruguay. Yesterday, CNN, citing
U.S. officials, reported that this terrorist was last spotted
in Venezuela. He is believed to be headed back to Syria or
Yemen.
We have been awaiting answers to the committee's inquiry.
But while I've been patient, the President has been in a rush,
seemingly willing to release Guantanamo terrorists to wherever
he can.
I wish we were not here today. Holding another Guantanamo
hearing this week was not my intention. But he is loose and my
patience has run out.
And I now turn to the ranking member.
Mr. Engel. Thank you, Mr. Chairman, and Mr. Wolosky and Mr.
Lewis, welcome back and thank you for your service.
Last time you gentlemen were here I made my views on the
Guantanamo Prison pretty clear and I would ask that my opening
statement from that hearing be included as part of the record
of this hearing.
Chairman Royce. Without objection.
Mr. Engel. To recap, the prison should be closed. National
security experts of both parties agree with me. In fact, I have
a letter here from 36 retired generals and admirals calling for
the prison's closure and I ask that it be included in the
record.
The prison is a waste of money and a propaganda tool for
terrorists. End of story, as far as the prison goes. There
were, however, some issues raised about transferred detainees
at the last hearing that deserve some follow up and I say
transferred rather than released because there's an extensive
process that goes into removing a detainee from the prison and
sending him to another country.
It's not as though they are just set loose. But it is
important to know how exactly are we monitoring transferred
detainees and assessing the risk they pose. Those are good
questions.
But because they deal with intelligence methods we can only
discuss them in a closed classified setting. My understanding
is that the administration offered to do just that and that
offer was rebuffed.
I hope that after this hearing in a few weeks or so we can
have a closed classified setting to get answers to some
questions that you are not really allowed to say here in open
session.
So why are we here? The title of today's hearing is
demanding accountability of the administration's reckless
release of terrorists from Guantanamo.
Since we say reckless release, it sounds like people's
minds are made up and I want to make sure all the facts are on
the table because I think there's plenty of blame to go all
around. I think the chairman raises legitimate issues but I do
think there's plenty of blame to go around.
First, the vast majority of Guantanamo detainees were
transferred out of the prison before President Obama took
office. A total of 780 detainees have been held in Guantanamo.
During the Bush administration, 500 were transferred out,
compared to 159 detainees under President Obama. Secondly,
let's look at the number of transferred detainees who returned
to the battlefield. The figure 30 percent gets thrown around a
lot but what goes into that number?
Turns out it includes the total number of transferred
detainees that we know for sure have returned to the fight as
well as those suspected of re-engagement over the entire life
of the Guantanamo Prison 2001 to present.
During the Bush years, 2001 to 2008, the rate of suspected
and confirmed cases of re-engagement was actually higher than
that, 35 percent, with 21 percent of the cases confirmed and 14
percent suspected.
So let me say that again. More than one-third of the
terrorists that President Bush's administration transferred may
have returned to the fight. Now let's contrast that with the
Obama administration.
Under President Obama, that number, again, totaling
suspected and confirmed cases, drops to 13 percent. Eight
percent suspected and just 5 percent confirmed. That 5 percent
represents seven people.
Now, I know one person escaping this is one person too
much. But I just want to have a balanced hearing here because
if we've already made up our minds and talking about the
administration being reckless, it doesn't seem to me like we
are really here to learn anything more.
I reiterate at most 13 percent of those transfers since
January 2009 have re-engaged compared to as much as 35 percent
during the previous administration. The contrast is striking.
But let's not get lost in the numbers because this is perhaps
the most important point.
The transferred detainees who returned to the battlefield
and killed Americans were let out during the Bush
administration, not during the Obama administration.
So if we are going to paint with a broad brush and say 30
percent of transferred detainees may be going back to the fight
and killing Americans, we need to take the whole story and put
it into perspective. The Bush administration racked up that
average and then some.
The Obama administration has helped to bring it back down.
Thirdly, the administration's closure plan would not transfer
any person who does not meet the most stringent criteria.
I've heard claims that the remaining detainees are the
worst of the worst and the administration simply wants to turn
them loose. That's false.
Twenty-nine of 79 remaining detainees are cleared for
transfer. Among them are 22 Yemenis. The administration isn't
transferring them yet. As a matter of policy we transfer
detainees to their home countries. But in the case of Yemen the
government cannot provide adequate security assurances.
So the administration has pumped the brakes out of an
abundance of caution. We need to find countries that can
provide adequate assurances before those 22 are transferred.
That leaves 50. Some of these are really bad guys. Ten of
them will stand trial. Another 40 are being legitimately held
as prisoners of war. But under no circumstances, in my opinion,
is the Obama administration simply opening the gate and
releasing dangerous terrorists onto the street.
Look, Guantanamo is a mess and it always has been. No one
is blameless. Anyone can cherry pick single cases to paint a
picture big or small, good or bad. But I think the facts and
the statistics speak for themselves.
And I think what we should do after this, instead of having
the witnesses come and tell us that they can only tell us
things in a classified briefing, is to spend our time with them
after this hearing in a few weeks where we could be in a closed
setting getting to the bottom of this matter.
Now, the Foreign Affairs Committee obviously has oversight
on this issue. The hearing last March and today's hearing are
the only two times that the committee has taken up this issue
in the nearly 15 years that Guantanamo Prison has been open. So
since we have our top Guantanamo experts with us today, I hope
you can give us your opinions on some interesting ideas we've
recently heard about that prison. I am going to read you a few
quotes.
You may recognize them. I'll give you a hint. It's one of
the candidates running for President. Here's the first:
``This morning I watched President Obama talking about
Gitmo, Guantanamo Bay, which by the way we are keeping
open and we are going to load it up with some bad
dudes. We're going to load it up.''
And the second quote:
``Torture works, okay, folks. Believe me, it works, and
water boarding is your minor form. Some people say it
is not actually torture. Let's assume it is. But they
ask me the question, what do you think of water
boarding? Absolutely fine, but we should go much
stronger than waterboarding. We should go much stronger
because our country is in trouble.''
So I just want to say that I read that because, you know,
some people say they want to expand the Guantanamo Prison and
torture. I can't think of a worse proposal for our national
security. These schemes would only harm us with their allies
and provide ammunition to our adversaries. Mr. Wolosky, Mr.
Lewis, at some point today maybe we can hear your views on what
would happen if we went in that direction.
Again, I hate doing tit for tats but I do think it is not
really fair to blame the administration for all the
frustrations we have about Guantanamo when we see that there
were problems and wrong things done in the previous
administration as well. So I look forward to listening to you
and hearing your thoughts and thank you, Mr. Chairman.
Chairman Royce. Thank you, Mr. Engel.
This morning we are pleased to be joined by Special Envoy
Lee Wolosky, Special Envoy for Guantanamo Closure at the U.S.
Department of State. Previously, Mr. Wolosky served as the
Director for Transnational Threats on the National Security
Council under President Clinton.
And Mr. Paul Lewis is joining us. We are pleased that he is
here, Special Envoy for Guantanamo Detention Closure at the
U.S. Department of Defense. Previously, Mr. Lewis served as
both the general counsel and the minority general counsel on
the U.S. Armed Services Committee. Without objection, the
witnesses' full prepared statements will be made part of the
record.
Members will have 5 calendar days to submit any statements
or questions or any extraneous material they might want to
submit for the record and I'd like to remind everyone including
our witnesses that willful misrepresentation or false
statements by a witness is a criminal offense under 18 U.S.
Code Sec. 1001.Listened to video--was cut off deg.
Indeed, that is the case for all of our hearings and
Special Envoy Wolosky, please summarize your remarks.
STATEMENT OF MR. LEE WOLOSKY, SPECIAL ENVOY FOR GUANTANAMO
CLOSURE, U.S. DEPARTMENT OF STATE
Mr. Wolosky. Thank you very much, Mr. Chairman, Ranking
Member Engel, distinguished members of the committee. Good
morning.
I appreciate your inviting me once again to appear before
this committee. I look forward to continuing our discussion in
closed session either later today as we have offered or as soon
as possible so that we can have a fuller discussion of some of
the classified topics we know are of interest to the committee.
Altogether, a total of 779 detainees have passed through
Guantanamo and of those 700 have departed. The vast majority of
detainees transferred out of Guantanamo to other countries--
some 532--were transferred by the administration of George W.
Bush. Under President Obama, a total of 159 detainees have been
transferred. Today, 79 remain.
President Bush acted to whittle the detainee population
because he understood that, and I quote, ``the detention
facility had become a propaganda tool for our enemies and a
distraction for our allies.'' President Obama has continued
detainee transfers for many of the same reasons. Of the 79
detainees detained at Guantanamo today, 29 are currently
approved for transfer. Detainees have been designated as
approved for transfer during this administration through one of
two rigorous interagency processes.
First, soon after taking office, President Obama ordered
the first ever comprehensive interagency review of all of the
242 detainees then in U.S. custody.
In 2009 and 2010, the Guantanamo Review Task Force,
sometimes also called the Executive Order Task Force, which was
comprised of more than 60 national security professionals from
across the government, assembled all reasonable available
information relevant to determining an appropriate disposition
for each detainee.
Then, based on the task force's recommendations, the
Departments of Defense, State, Justice and Homeland Security,
the Office of the Director for National Intelligence and the
Joint Chiefs of Staff unanimously determined the appropriate
disposition for each detainee: Transfer, referral for
prosecution or continued law of war detention.
Second, pursuant to Executive Order 13567, detainees who
are not--who were not approved for transfer in 2009 and 2010
could be subject to additional review by the Periodic Review
Board.
The PRB is comprised of senior representatives from six
agencies and departments. None of the PRB representatives are
political appointees.
Having described how Guantanamo detainees have been
approved for transfer, I would now like to briefly describe the
process for transferring detainees.
Decisions regarding whether, when and where to transfer a
detainee are the culmination of another rigorous interagency
process. The Department of State leads diplomatic negotiations
with foreign governments regarding the transfer of Guantanamo
detainees.
But we are typically joined in our discussions by senior
career officials from the Departments of Defense, Justice and
Homeland Security as well as those in the intelligence
community and on the joint staff. Generally, transfer
negotiations occur in two steps.
First, the U.S. Government obtains or reconfirms a
political commitment that the potential receiving country is
willing in principle to resettle or repatriate detainees and to
impose various measures that will substantially mitigate the
threat the detainees may pose after transfer.
Second, we engage in technical discussions with foreign
officials responsible for implementing these measures. These
technical discussions offer the opportunity to tailor the
integration and security measures to specific circumstances
under consideration, to share best practices from previous
detainee transfers and perhaps most importantly to determine
based on an individualized assessment of these specific
circumstances whether the statutory standard in the NDAA
governing the foreign transfer of Guantanamo detainees can be
met.
Once we conclude that our diplomatic negotiations will
result in a security framework that we assess will
substantially mitigate the threat a detainee may pose after
transfer, the Secretary of Defense consults with the
Secretaries of State, Homeland Security and the Attorney
General, the Director of National Intelligence and the Chairman
of the Joint Chiefs of Staff on the transfer.
Only after the Secretary of Defense receives the views of
those principals and only if he is satisfied that the
requirements of the NDAA are satisfied does the Secretary of
Defense sign and transmit a certification to the Congress
conveying his intention to transfer detainees.
Ladies and gentlemen of the committee, let me close by
saying that although we would obviously prefer that no former
detainees engage in terrorist or insurgent activity following
his transfer, we believe that the low rate of confirmed re-
engagement for detainees transferred since January 2009, under
5 percent, is testament to the rigorous interagency approach
the administration has taken to both approving detainees for
transfer and to negotiating and vetting detainee transfer
frameworks.
I look forward to your questions.
[The prepared statement of Mr. Wolosky follows:]
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Chairman Royce. Thank you.
Mr. Lewis.
STATEMENT OF MR. PAUL M. LEWIS, SPECIAL ENVOY FOR GUANTANAMO
DETENTION CLOSURE, U.S. DEPARTMENT OF DEFENSE
Mr. Lewis. Chairman Royce, Ranking Member Engel,
distinguished members of the committee, Representative Donovan,
thank you for the opportunity to testify again regarding the
administration's Guantanamo detainee transfer process.
Secretary Carter has approved the transfer of 43 detainees,
28 of whom have been transferred this year. Secretary Hagel
approved the transfer of 44 detainees. Secretary Panetta, 7,
and Secretary Gates, 65.
During this administration, 159 detainees have been
transferred. Mr. Chairman, we understand the importance of this
issue to you and this committee and we appreciate the attention
you have given to it.
As I stated in March at the outset, I'd like to reiterate
one continuing fundamental point regarding this detention
facility. The President and his National Security Committee
have determined that closing this detention facility is a
national security imperative.
Imperative is a strong term. The President in his
leadership of the national security team believe that the
continued operation of the detention facility weakens our
national security.
Closing Guantanamo is about protecting the country, not
weakening it. As you know, the importance in closing this
detention facility is echoed by former President George W. Bush
and a long list of former Secretaries of State, Secretaries of
Defense, Joint Staff Chairmen, and other former military
leaders.
As Representative Engel noted, a letter was provided to the
committee by former flag officers, including a former
commandant of the Marine Corps. Transfers from Gitmo are in the
national security interest of the United States and are
conducted in a safe and responsible manner.
On March 23, 2016, I testified before this committee.
During that hearing, as the chairman noted, I was asked whether
the Department of Defense had ever knowingly transferred a
detainee to a country that did not exhibit an ability to
substantially mitigate the risk or control the individual.
In response to that question, I stated that the Department
of Defense had not conducted such a transfer. I stand by my
response.
We have addressed your concerns, Mr. Chairman, in the
letter that we sent to you this week and I, again, apologize
for the late response. But I want to briefly highlight several
points.
Here's our statutory framework: The 2016 NDAA requires that
at least 30 days prior to any transfer and in addition to other
requirements the Secretary of Defense certify to Congress that
the receiving country has taken or agreed to take steps to
substantially mitigate any risk that the individual could
attempt to re-engage or otherwise threaten the United States.
We have met that statutory requirement with each of our
transfers.
Prior to the transfer of any detainee to a foreign country,
the United States Government receives security assurances from
the receiving country regarding the actions that the receiving
country has taken or agrees to take to substantially mitigate
the risk.
After the assurances are negotiated, the Secretary of
Defense and his senior staff engage in a robust review process
that considers many factors, including all of the intelligence
that the government has regarding the threat posed by the
individual detainee and the security assurances.
Importantly, updated intelligence, medical, and compliance
information is provided to each country regarding the detainees
under consideration for the transfer. Many countries also take
the opportunity to travel to Gitmo to interview transfer
candidates.
After full consideration of all this information, including
a full and updated assessment from the intelligence community,
the Secretary makes the determination to that I told you about
earlier.
As Secretary Carter has testified and Secretary Hagel
testified, they take this responsibility very seriously.
Secretary Carter has said he will not transfer a detainee that
he does not believe is in the security interests of the United
States to do so.
These transfers have not been conducted in a vacuum, sir.
Each transfer is formally notified to Congress and we regularly
brief members and staff on transfers.
With the notice of each transfer we offer to brief
congressional leadership and members and staff of all the
national security committees. I appreciate the opportunity we
have had to regularly brief you and your staff regarding these
transfers.
Briefly, I think it is important to put these recent
transfer decisions on foreign policy context for this
committee. Many countries in the international community want
to close Gitmo and have stepped up to help us.
Specifically, over 30 countries since 2009 have accepted
for resettlement Guantanamo detainees that are not nationals of
their country.
Additionally, there is sustained support for our closure
efforts from civil society organizations, both domestic and
abroad, including the Organization for American States. Even
the Vatican has expressed the support for our closure efforts.
In summary, each transfer is only approved after careful
scrutiny by the intensive interagency review process and the
negotiation of the security assurances sufficient to
substantially mitigate any threat.
Finally, I'd like to take a moment to again recognize the
military service members who conduct detention operations at
Guantanamo. These men and women continue to have our deepest
appreciation for their service and the professionalism they
display each and every day on behalf of our Nation.
Thank you, Mr. Chairman. I look forward to your questions.
[The prepared statement of Mr. Lewis follows:]
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----------
Chairman Royce. Thank you, Mr. Lewis.
The last time you appeared before this committee we asked
specific questions about the transfer of detainees to countries
ill equipped to handle them.
Specifically, we asked whether the Department of Defense
ever transferred a detainee to a country that it knew was
incapable of maintaining control of that individual and keeping
him from returning to the battlefield. Mr. Lewis responded no,
Mr. Wolosky stated that he was not aware of such an instance.
Upon further review of your own intelligence assessments,
those answers appear to be false. In fact, it appears that the
administration has released dangerous terrorists to ill-
equipped countries on numerous occasions.
On May 16, I wrote to your departments asking you to
correct the record. You did not. The committee asked the
administration to halt all transfers until you explained your
testimony. You did not.
In fact, you completely ignored the letter until we called
this hearing and that is why we are here today. And I am going
to ask you several simple questions and I'd appreciate a simple
yes or no answer.
Mr. Lewis, Mr. Wolosky, in your roles do you have access to
intelligence assessments of detainees and transfer countries?
Mr. Lewis. Yes.
Chairman Royce. Do you review those intelligence
assessments prior to the transfer of detainees to the custody
of foreign governments?
Mr. Lewis. Yes, sir.
Mr. Wolosky. We review the intelligence assessments that
are material to the issue before us, which is whether to
transfer a detainee to a specific country under certain
circumstances in order to be able to meet the statutory
standard.
Chairman Royce. Right. And in my May 16th letter I
referenced three intelligence reports submitted to Congress
pursuant to Section 1023 of the National Defense Authorization
Act, those reports are dated May 31, 2013, July 15, 2014,
August 6, 2015. Are you familiar with the content of those
reports?
Mr. Wolosky. Yes.
Mr. Lewis. Yes.
Chairman Royce. Are you aware that those reports contains
assessments of each country to which the Defense Department has
transferred detainees?
Mr. Wolosky. Yes.
Mr. Lewis. Yes.
Chairman Royce. And are you aware that those assessments
indicate that some countries lack the ability to control those
terrorists?
Mr. Wolosky. We cannot by law discuss classified Defense
Intelligence Agency assessments in this session, Mr. Chairman.
We're happy to do that in closed session.
What I would point out to the committee is that in
connection with each transfer we do rely on intelligence
reporting that is broader than just DIA reporting and as I said
it is tailored specifically to the issue of a transfer to a
certain country at a particular point in time and is geared
toward a determination or an analysis of whether the relevant
statutory standard for transfers can be met.
Mr. Lewis. Mr. Chairman, the reports you refer to are one
of many reports we look at. We look at all source information
from the intelligence community and as the Envoy has stated,
the Secretary makes his determination looking at all the
evidence that is available, the updated evidence, and in
particular he makes his assessment after we overlay the
security assurances to that country.
So if the intelligence tells us that there may be a gap in
capabilities that is what we negotiate the assurances for. So
again, we look at those records, Mr. Chairman. But we look at a
much broader array of records.
Chairman Royce. I am going to explain to you, Mr. Lewis,
that is not what you said here in March, all right. And in
light of your familiarity with the intelligence reports and
what is in those reports, I am just going to ask you again: Has
the administration ever transferred a detainee to a country it
knew was incapable of monitoring that individual or preventing
him from traveling outside the country or otherwise keeping him
from returning to the battlefield?
Mr. Lewis. Sir, since I've worked for Secretary Hagel and
Secretary Carter, every transfer has met the statutory
requirement and it is my understanding that the administration,
prior to my coming, transfer pursuant to the process that Envoy
Wolosky indicated and there are no transfers that I am aware of
that did not meet the statutory requirement.
Chairman Royce. I don't think you can just wish away
intelligence reports that raise grave concerns, reports that
you chose to deny when asked about them in our last hearing.
But if you're now saying that the intelligence reports
are--I assume the implication here--incomplete, then I have to
say from what we can tell the President has made a political
decision to close Guantanamo no matter what the cost to
national security based upon our experience, based upon our
discussions which go on for some considerable time now in terms
of the warnings from us on this committee about the five
individuals who were transferred to Uruguay and their
subsequent conduct and now the fact that one of them has been
released.
That can be the only reason why these intelligence
assessments are being pushed aside, in my judgement. And it
appears that the assurances that you got from Uruguay didn't
account for anything.
This fellow, Jihad Diyab, walked right out of Uruguay. We
have no idea where he is, and if that country is telling you
that they won't prevent their travel, which is what I pointed
out to you, then we'd better listen.
If they are not going to prevent their travel then it is
not a surprise what subsequently has occurred. So Mr. Wolosky,
you have briefed this committee several times about Uruguay.
You have told us repeatedly that the Government of Uruguay was
capable of handling these terrorists.
In fact, you testified on March 23rd that ``we are
confident, to your question, that the Government of Uruguay is
taking appropriate steps to substantially mitigate the risk
associated with each of the six detainees that have been
transferred to its custody.'' That turned out to be wrong, as
I've pointed out.
Jihad Diyab has now escaped. Now, the other point I would
make out may make to you, and this also goes to some of the
conversations he's had, is that I am aware this was the third
time he left Uruguay and nobody knows where he is.
The media is reporting that he could be on his way to Syria
or Yemen. And I would just like to ask: Why did you provide
false assurances to Congress? Why did you mislead us about
Uruguay's capabilities? Because I made it very clear to you our
concerns about Uruguay's capabilities. They were pretty up
front.
Mr. Wolosky. Mr. Chairman, I strongly disagree with any
suggestion that I misled this committee. In fact, I stand by my
testimony from March in which I affirmed that Uruguay had
committed to and is in fact taking steps to substantially
mitigate the risk of the six detainees that were transferred to
its custody in December 2014.
While we would have preferred that Mr. Diyab remained in
Uruguay, if in fact he is not in Uruguay currently, until the
expiration of the 2-year resettlement program that was the
subject of the agreement reached with Uruguay and reached with
him, frankly, the fact is is that the standard is not
elimination of risk.
It is mitigation of risk, and we never represented to this
committee that there was a travel prohibition.
What the President's closure plan describes generally, and
I cannot get into this forum--into the specific assurances
provided by the Government of Uruguay, but what the President's
plan describes are travel restrictions.
The President's plan describes specifically the withholding
of international travel documents.
Now, there are a number of additional steps that we take
and our partners take to restrict travel and to monitor travel.
I cannot go into those in an open session.
I am happy to describe them to you even in this specific
context of Uruguay in a closed session. But I cannot do it
here.
Chairman Royce. But let me explain this simple fact to you.
When a country tells you that they won't prevent a terrorist
from traveling then you had better listen if your intention is
to release that terrorist into that country.
But my time has expired. I will go to Mr. Eliot Engel of
New York.
Mr. Engel. Thank you, Mr. Chairman.
Mr. Lewis, let me start with you. In a hearing before this
committee in March you discussed the issue of former Guantanamo
detainees killing Americans.
According to White House Press Secretary Josh Earnest, none
of the former detainees who have gone through a screening
process implemented by this administration in the 2009 have
harmed Americans.
To quote Mr. Earnest, from March of this year, and I quote
him, ``No one who's been released from prison at Guantanamo Bay
on President Obama's watch has been implicated in violence
against Americans.''
So I would like to ask both of you: How has the Obama
administration changed the detainee transfer process from the
process used before President Obama took office, or has he not
changed it?
I understand it is been changed. How have these changes
helped prevent former detainees from harming Americans? So why
don't we start with you, Mr. Wolosky?
Mr. Wolosky. Sure. Thank you, Congressman Engel. Five
hundred and thirty-two detainees from Guantanamo were released
under the administration of George W. Bush. The fact is that we
can't tell you much about the circumstances under which they
were released.
We can speak to what our administration has done and what
we understand to have been the process in the previous
administration.
So first, we engage in a rigorous interagency evidence-
based process reliant predominantly on career government
officials to determine first if a detainee may in principle be
designated as approved for transfer.
That's the first step. This is an interagency process that
includes many career professionals throughout the government
and as I describe in my testimony in this administration there
are actually two separate processes at various points in the
administration to first determine whether in principle a
detainee may be safely transferred, subject to security
assurances.
Second thing we do, very carefully, is we negotiate for
detainees who have been approved for transfer specific security
assurance packages consistent with local law in the places that
we transfer these detainees to and after obtaining a political
commitment from the country in question that under the
circumstances in question the measures to be put in place by
the country--monitoring, travel restrictions, information
sharing, integration planning--will mitigate substantially the
risk that that particular detainee may pose.
That's what we do, and what we have done, as I said in my
opening statement, has reduced the re-engagement rate, the
confirmed rate to under 5 percent. It's much higher in the
previous administration.
We believe that that reflects the fact that the things that
I just described simply weren't done in the previous
administration. But that is what we have done. Thank you.
Mr. Lewis. Mr. Engel, it is a more rigorous process. The
process in the previous administration was only DoD--primarily
only DoD, as Envoy Wolosky has said, this is interagency.
When the Obama administration took office there were about
240 detainees at Gitmo. We took a fresh look for over a year at
all those detainees and decided three categories--those that
could be eligible for transfer with appropriate security
assurances to the proper country, those that they wanted to
refer for prosecution to take a look at prosecution, and those
that merited continued law of war detention.
I say it is more rigorous because as Lee said, there's a
broader group of career professionals and some political but
primarily career professionals, intelligence folks, career
prosecutors, who looked at these cases.
They also looked at a broader array of evidence. They
looked at all the evidence that the USG possessed whereas the
previous process was primarily DoD evidence.
And then as we know, Congress weighed in. We now have the
statutory overlay for all transfers. So the bottom line is, as
Lee said, it is a much more rigorous and intensive process.
Mr. Engel. Thank you. You know, I think it is important to
put it into context because, look, even one prisoner escaping
is one prisoner too much. So we are not going to say that
anything is foolproof.
Nothing is foolproof. But I think that if we look and see
what the administration has done and the safeguards that they
have tried to put in, I feel that we are absolutely doing our
best and in fact it is a big improvement than the previous
administration.
So let me ask you this. We've heard a lot about the
challenges of closing Guantanamo. It is true that some former
detainees have re-engaged. I know the chairman is very upset
about it and so am I.
But can you help put those cases into context? What are the
costs of keeping this facility open and how would halting the
transfer of cleared detainees affect terrorist recruitment and
propaganda and coalition efforts to degrade and defeat
terrorist organizations?
Mr. Lewis. Sir, there are three costs. It's primarily--it
drains our expenses, it is wildly, wildly expensive. We can do
it cheaper in the United States.
More importantly, for this committee, our allies want us to
closed deg. Gitmo. It hurts us with the international
community. In my previous testimony and in my opening statement
I outlined indications in which members of the previous
administration at the Department of State said Gitmo hurt us
and I believe it is a propaganda and recruiting tool. President
Bush said that. Many others have said that.
The bottom fundamental point is we want to protect the
country and the national security leadership of this
administration, President Bush and many people in his
administration, numerous Secretaries of Defense, numerous
Secretaries of State, the prior military officials that we
talked about including a commandant in the Marine Corps, have
said the cost of Gitmo outweighs the benefit.
It hurts us. It hurts us with the international community.
It hurts us with our taxpayer money and it is a recruiting
tool. The President has made this decision and the national
security community leadership has made this decision. Lee?
Mr. Wolosky. Sure. Thank you. First, I agree with the
Special Envoy's comments and I do feel compelled just to
address this notion of terrorists escaping and prisoners
escaping and things of that sort.
Just to remind the committee that the individuals that we
are talking about were held in law-of-war detention by the
United States. They were lawfully held under law-of-war
detention.
But they weren't convicted of crimes. When we transfer them
to foreign countries we transfer them subject to security
assurances such as travel restrictions. This is what this
administration does. The previous administration did not do
this.
There are a large number of detainees of the 532
transferred in the previous administration, certainly, that
weren't even subject to the travel restrictions that we put in
place on these individuals.
But, again, just want to make sure that we are getting the
terminology right because escaping connotes incarceration. When
we transfer individuals who the U.S. Government writ large has
concluded may be transferred subject to security assurances
they are transferred subject to those security assurances and
at that point they are not prisoners. They are former detainees
under supervision.
Mr. Engel. I will stop now because I know my time has run
out. But I wanted to--you know, the thing that irks the
chairman and, in fact, frankly, irks all of us is the fact that
this person was sent to Uruguay, and Uruguay, apparently
doesn't have the ability to monitor this person who now has
left the country. Just briefly, could you talk a little bit
about the case or do you need to do it in a classified setting?
Mr. Wolosky. On the issue of foreign countries'
surveillance capabilities, I would need to discuss that with
you in closed session and I welcome the opportunity to do so so
that you may be informed about what those capabilities are and
what they aren't and how they were used and applied in this
instance.
Mr. Lewis. I echo the Envoy's comments. We would appreciate
the opportunity to discuss this in detail. What I can tell you
is we talked to the Uruguayan authorities on a regular basis.
We regularly review intelligence. We regularly look at this and
Secretary Hagel, who you know is a very forceful, careful,
deliberate person, signed the congressional notification saying
he felt that Uruguay could substantially mitigate any threat by
this detainee. Again, we are happy to discuss this in closed
session.
Mr. Engel. I would like to do that in closed session. So I
am sure we'll make arrangements to do that. Thank you, Mr.
Chairman.
Chairman Royce. We'll make arrangements to do that. At the
same time, at the end of the day, the Uruguayans gave them the
travel cards. Gave them the travel card to travel. At the end
of the day, he walked right out of there three times and this
time nobody can locate him to get him back into custody and
he's an al-Qaeda-linked terrorist. Anyway, I'll go to Ileana
Ros-Lehtinen of Florida.
Ms. Ros-Lehtinen. Thank you so much, Chairman Royce, for
calling this hearing and for continuing to demand transparency
and accountability from the administration regarding its plans
for naval station Guantanamo Bay and the detention center.
As you point out, Mr. Chairman, the administration has not
been forthcoming with the American people about the release of
dangerous terrorists to various nations. The reality is that
the situation is far different than what we've been told.
So I continue to ask myself why does a nation like Uruguay,
why does a nation like Ghana, why does a nation like Senegal,
as so many others, why would they want to take in these
dangerous terrorists unless they believe that the benefits
outweigh the risk? Unless the administration convinced them
that the benefits outweighed the risk.
And not only that, we are talking about a high-risk, high-
threat individual and that person has experience in evading
authorities, will conduct operations, going to nations that
have limited intelligence that do not possess the most
sophisticated monitoring system.
That was obvious with the Uruguay transfer. And we are to
believe that the terrorists will not use that to their
advantage? That they will be properly overseen? It would
probably take them just 1 day to realize how lax the security
is in Uruguay, for example.
So it is not a surprise, I think, to any of us that one of
these individuals managed to flee Uruguay, where we now know
that his movement was not required to be restricted, to Brazil
and from there from who knows.
As the chairman said, he may be en route to Syria or there
already. So I would ask you if it is possible to get a yes or
no answer, has the administration promised any of these
countries, whether it is Uruguay, Ghana, Senegal, whatever,
cash for taking in these individuals and if so how much, how
often, and to which countries?
Mr. Wolosky. Congresswoman, we have provided de minimis
resettlement assistance to certain countries to support
expenditures such as language training, vocational training,
things of that sort.
That is fully disclosed to the Congress in the
congressional notifications that you receive.
Ms. Ros-Lehtinen. And if you could refresh my memory for
Uruguay, for example, how much would that country have gotten
for language and to the other----
Mr. Wolosky. I can't tell you off the top of my head but we
are happy to provide that information to you supplementally.
Ms. Ros-Lehtinen. I will get the notification--refresh my
memory. Has the administration offered any other favorable
agreements or offered to support these countries on other
related matters in exchange and if so what kind of exchanges?
Mr. Wolosky. Nothing financial beyond what is in the
congressional notifications. Anything related is a broad
category.
I can say generally in open session that many of our
partners do view a detainee transfer as an opportunity to
deepen security and counterterrorism and intelligence
cooperation with the United States. We generally welcome that
and we look to facilitate that interest where it exists.
Ms. Ros-Lehtinen. And has the administration provided
military equipment or military training in exchange for taking
in a detainee and if so to what extent and to which
governments?
Mr. Wolosky. No, not to my knowledge. Paul?
Mr. Lewis. Ma'am, that is something we'd have to talk about
in a closed session.
Ms. Ros-Lehtinen. Like night vision goggles or something
like that?
Mr. Lewis. Again, the negotiation of the security
assurances is very detailed and complex and to discuss any
specifics I'd have to talk to you about that in a closed
session and we are happy to do so.
Ms. Ros-Lehtinen. Has the administration provided
intelligence equipment or training or promised or offered
intelligence sharing to any government in exchange for
accepting a detainee and if so to what extent and which
governments?
Mr. Wolosky. We would have to talk about intelligence
matters in closed session.
Ms. Ros-Lehtinen. So it seems to me that the absence of any
of these agreements wouldn't need to be discussed in a
classified setting. So, I mean, unless you say no to these
questions I think it would be fair to assume that at least some
of this has been happening, is happening.
Is it the intent of the Obama administration to continue to
release all but a handful of the most dangerous detainees in
order to then say to Congress, well, why keep Gitmo open when
we have such few detainees there? As if President Obama had not
had anything to do with clearing out the number of detainees in
the first place.
Mr. Wolosky. We intend to continue essentially the policy
of the previous administration to transfer detainees that we
conclude may be safely and responsibly transferred outside the
custody of the United States in accordance with applicable law.
Ms. Ros-Lehtinen. Would it be fair to say that from now
until the end of this Presidency that we would be seeing more
and more detainees being released--five, 12, two--until there's
just a handful and say hey, look at all this wasted money for
just a handful of folks, when you're the ones pushing them out?
Mr. Wolosky. We have 29 detainees who are approved for
transfer and our intention is to work to transfer those
individuals subject to security assurances.
Ms. Ros-Lehtinen. Thank you. Well, as you know, there's a
great deal of resistance about having them come to the United
States. Thank you so much, Mr. Chairman.
Chairman Royce. Thank you, Ileana Ros-Lehtinen.
We go to Mr. Brad Sherman of California.
Mr. Sherman. Okay. I would like to comment on this over the
next 5 minutes and I'll probably offend both political parties.
The prior administration did release more terrorists than the
current administration.
More of those released by the prior administration have
been caught fighting us on the battlefield. The fact is, much
as we like to fight as Democrats and Republicans, the policy
has been the same in both administrations.
House them only in Guantanamo because we don't have the
political guts to house them here in the United States and
release as many as possible--far too many, far too quickly, and
massively understate the costs of the release.
We are told that it is wrong to keep them there for the
duration of the war because the war has lasted too long. That
is their fault. They waged war against America and no, we never
guaranteed them that the war would be short. The purpose of
incarcerating POWs is not only to keep them off the battlefield
but to deter their comrades.
When we tell the terrorists around the world if you get
caught you'll get released while the war is still going on, we
encourage their recruitment.
Now, we are told that there are only 12 identified
circumstances when Americans have died because of this release.
That is such a massive undercount. First of all, when we
release somebody and they rejoin the battlefield, do they send
us a report?
Are they listed on LinkedIn? New status, rejoined the
terrorist movement? And then when one of them at least--when an
American dies on the battlefield do we get a report from the
terrorists, here's a list of the people who killed him--here's
a list of the people who provided them with logistics--here are
the people that provided the recruiting--here are the people
that provided the financing?
So I would--unless we are certain that one of these
released people is being monitored and is not doing anything to
help the terrorists we have to assume that they are waging war
against us as they did before and the cost of release is also
the incredible concessions--Ileana Ros-Lehtinen brought this to
our attention.
All the winks, all the nods. Every country in the world,
especially small countries, no. Take one detainee. The
President of the United States is personally indebted to you
and when you've got a fishing concern or if you're seeking
something from the United States now or later, the answer is
yes. We'll never get an accounting of that because you can't
account for the winks and the nods.
Now, we are told that Gitmo is a--that we get a tremendous
propaganda advantage if Gitmo is closed. Of course, we only
partially closed it.
We have no propaganda advantage. It's still a symbol the
other side can use as long as it is open with one detainee. But
we could bring these prisoners to the United States. That does
not enhance their legal status.
The Supreme Court has ruled in the Boumediene case and the
Hamdan case that they have just as many legal rights there as
they would here.
But we--here's an America where we accepted nuclear bases
in our States knowing that they were targets for the Soviet
Union and now we can't even accept a prisoner and we whip up
all this fury.
We have 443 convicted terrorists in American prisons right
now. I'll ask our witnesses to raise their hands if they are
aware of any of those that escaped. I see no hands going up. I
am not aware and I've researched this.
We've got Moussaoui, we've got Tsarnaev, we got the shoe
bomber, the underwear bomber, the World Trade Center in 1993
bombers, the Oklahoma City bomber, and the Unabomber, and we
are trying to bring to the United States El Chapo, who escaped
Mexican prisons twice.
We can incarcerate people here and obtain the political
advantage that we are told can be achieved by shutting down
Gitmo. But instead we constantly vote on ways to not do it. If
the legal rights of these POWs in the United States is too
great if they are on U.S. soil, that is the fault of Congress.
We can pass laws identifying that these are POWs.
They're nonuniformed enemy combatants and entitled to less
protection than those who would wear uniforms fighting against
us. So we've got a lot of dead Americans as a result of this
catch and release program.
We've got one party who says we can't house them here,
although we are able to house terrorists here in our prisons,
and we've got another political party so anxious to shut things
down that we massively understate the cost of releasing, and I
yield back.
Ms. Ros-Lehtinen. Thank you very much, Mr. Sherman.
Mr. Issa of California.
Mr. Issa. Thank you, Madam Chair.
I would just like to bring us up to speed in one area. Is
it true that under current law, closing Guantanamo is
prohibited? This isn't a trick question.
Mr. Wolosky. I don't think that current law prohibits
closing Guantanamo. I think that what current law prohibits is
the expenditure of money to move detainees at Guantanamo into
the United States.
Mr. Issa. Okay. So under current law you can close
Guantanamo by releasing the prisoners. You just can't bring
them here. That's your assessment?
Mr. Wolosky. I believe the current law prohibits detainees
from being brought into the United States.
Mr. Issa. Okay. So the reason that you both have titles
that say Special Envoy for Guantanamo Closure is because your
job is to close Guantanamo. Is that right?
Mr. Wolosky. Sir, that is correct.
Mr. Issa. Okay. So now I just--I got a yes and that is far
enough.
Mr. Lewis. Sir, my title is Guantanamo Detention Closure.
We're not closing the naval facility.
Mr. Issa. No, I understand that the President who loves
Chavez--or loves the Castros enough to open up relations--has
not decided to give back what we have in perpetuity. So we'll
leave that aside.
Your job is to close the detention. You are working toward
that. I just want to ask one or two fairly simple questions.
It's been said many times on both sides of the dais that
President George W. Bush's administration released more
prisoners actually than you inherited, right? He released more
than you have?
Mr. Lewis. Yes.
Mr. Issa. Okay. And during that time it has been discovered
and during this administration it has been discovered and made
public that in fact some released by the Bush administration
went back and killed Americans on the battlefield in
Afghanistan and other places. Is that correct?
Mr. Lewis. Yes, sir.
Mr. Issa. So George W. Bush released more prisoners,
attempted to vet them, was wrong. They went back, they killed
Americans on the battlefield and we know it and the public
knows it, right?
Mr. Lewis. Yes, sir.
Mr. Issa. Okay. So George W. Bush's failures are now very
public. They released people who went back and killed Americans
on the battlefield. Okay. Like Mr. Sherman, that is not
necessarily with my party.
This President has released many additional people who have
returned to Afghanistan. Are you prepared to say that none of
them killed Americans?
Mr. Wolosky. You're talking about Guantanamo detainees----
Mr. Issa. Guantanamo.
Mr. Wolosky [continuing]. Returned to Afghanistan in 2009?
Mr. Issa. Guantanamo detainees released after 2009 who in
fact went back and killed Americans.
Mr. Wolosky. The assessment of the intelligence community
is that no detainees released since 2009 during this
administration are responsible for the deaths of Americans.
Mr. Issa. So your public statement is that no detainees
released by this administration have killed Americans on the
battlefield as of today?
Mr. Wolosky. Correct.
Mr. Issa. Okay. I just want to make sure I have it on the
record because I don't believe it. But you can say it and
you're under oath and I believe it that you believe it.
So I just want to make sure we understand. We're sitting
here and somehow President George W. Bush early on, releasing
the less dangerous, the easier to vet, the less likely to be a
hardened criminal terrorist--terrorists, not criminals--they
were released. They killed Americans. You're releasing people,
they are not killing Americans. How do you account for that? Is
this rehabilitation that you've done?
Mr. Wolosky. Sir, there are a lot of factual predicates
embodied in your question that would require some correction.
Mr. Issa. Well, President Bush released people. They killed
Americans. You released people. They didn't kill Americans on
the battlefield. How do you account for that difference that
you've said under oath?
Mr. Wolosky. As I indicated in my testimony submitted for
the record, we have put in place procedures that are
comprehensive, they are rigorous, they are interagency in
nature and we believe that, as a result, those procedures have
contributed to the very substantial reduction in the re-
engagement rates seen between both administrations.
Mr. Issa. Okay. Well, let's do that. You've used procedures
that have limited re-engagement. But it hasn't eliminated re-
engagement, correct?
Mr. Wolosky. That's correct.
Mr. Issa. So you've released people after 2009. They have
re-engaged. They're back on the battlefield attempting to kill
Americans, right?
Mr. Wolosky. It is not correct to say that anyone who has
re-engaged under the definitions used by the intelligence
community for confirmed or suspected re-engagement is back on
the battlefield.
Again, I am happy to talk or, better yet, the intelligence
community can speak to the committee about the standards that
are used. But it is an overstatement to say that an individual,
for instance, who has been suspected of re-engagement is on the
battlefield seeking to do harm to coalition forces.
Mr. Issa. Okay. But I just--you know, it is just one of
these things that I think in a very public--it is not--this is
not something that needs to be privately discussed. It's
something--now, Madam Chair, if I can have 30 more seconds. My
predecessors did.
People that were released under Bush re-engaged and killed
Americans. You'll have us believe in a public environment that
although people released under this administration were more
hardened criminals--these were the people that were in fact not
released under Bush because he thought they were too dangerous.
They've been released. You're saying in a public forum that
they re-engaged but you're saying nobody died.
Mr. Wolosky. Sir, again, it is incorrect to assume that
individuals released under Bush are less dangerous or more
dangerous than released during this administration.
Again, this would require a rather long discussion about
why, for instance, the overwhelming preponderance of the
detainees who were approved for transfer or who remain in
Guantanamo today are from Yemen.
So it is just simply not correct to make blanket
assessments about who is more or who is less dangerous or,
frankly, what the procedures--you keep talking about vetting
done by the Bush administration.
Again, we are not aware of the type of vetting that was
done in that administration. So, again, there are a lot of
premises embedded in your question.
Mr. Issa. Thank you, Madam Chair.
Ms. Ros-Lehtinen. Thank you. Thank you, Mr. Issa.
Mr. Duncan of South Carolina I am sure will follow through.
Mr. Duncan. Do you need some more time, the gentleman from
California?
Mr. Issa. Thirty more seconds.
Mr. Duncan. You're yielded 30 seconds.
Mr. Issa. Thank you. I just want to understand. We have
heard endlessly that the Bush administration released people
and they went back on the battlefield and President George W.
Bush and his administration have to live with the fact that
they thought these people could be safely released back to
Qatar and to other countries and in some cases they were wrong.
But you continued to work toward closure by release back to
these countries, Yemen being a particular area of concern, and
I just want to make sure the American public hears in an open
session that you believe that you have been flawless in that no
Americans have died because of people released on this
President's watch and you've said that.
So I want to thank the gentleman that was very kind to let
me recap.
Mr. Duncan. Thank you, and thanks for your approach to
everything, Chairman Issa.
I first off want to apologize to the lady with the
Department of State for coming across abrasive about another
issue and I thank you for your help on that other matter.
We have established the fact that one of the Uruguayan Six
has disappeared. We've also established the fact, I think, that
there are certain requirements and parameters that must be met
before detainees are transferred to a third country.
Uruguay told us--well, first off, Uruguayan law prevented
intelligence monitoring and mitigation and former President
Mutica said publicly that his government would place no
restrictions on the movements of the six detainees that were
released to Uruguay.
Later, we had their chief intelligence officer proudly
inform the U.S. Embassy that these Uruguayan Six--the Gitmo
Six--would not be restricted in any way and that he was not
authorized to conduct monitoring or surveillance.
But if we go back to the requirements that have been talked
about numerous times here this morning, surveillance and
monitoring and some assurances were part of the deal.
So America needs to understand that one of the six
detainees captured on the battlefield, al-Qaeda operatives
captured either in Tora Bora or Afghanistan, has disappeared.
Uruguay, Brazil, United States at this point have no idea where
this individual is.
Now, this individual that we are talking about, Jihad
Diyab, is a forger. He was responsible for forging documents,
passports, travel documents for al-Qaeda terrorists. He's now
disappeared into Brazil.
So let's take it to the 30,000-foot level and think about
Brazil in general. We've got an area in Brazil and Paraguay
known as the tri-border region. A lot of folks are transiting
through Latin America through an area known as the tri-border
region.
They're coming to South America, to that area, often times
on fake passports--not necessarily forged passports, they are
just passports that don't belong to them. And they are
exchanging those documents in that region for other false
documents and trying to transit through Latin America to get to
America, to get to the United States.
Case in point--five Syrians traveled to the tri-border
region in Brazil on fake Israeli passports. The hypocrisy of
that, I think is alarming, that Syrians traveled to the tri-
border region on fake Israeli passports, exchanged those
documents for somewhere around $25,000 for fake Greek passports
that they used to travel to Honduras.
Apprehended in an airport in Honduras trying to come to the
United States on fake Greek passports. So now we have a Gitmo
detainee forger for al-Qaeda has escaped, disappeared, whatever
you want to call it, into Brazil possibly to the tri-border
region to assist others from the battlefield.
ISIS operatives, possibly, coming to that area, exchanging
documents, getting new forged documents or fake documents to
possibly travel to the United States of America. But let's take
it another step. There's a huge event getting ready to happen
in Brazil known as the Olympics and that is a heck of a
terrorist target, folks.
So we've got an al-Qaeda operative who is a forger, who has
escaped in Brazil or disappeared in Brazil who has the ability
to forge documents and he's in a country that is getting ready
to host the Olympics.
I hope our counterterrorism efforts in Brazil, working with
our allies there, are full bore.
So I am going to ask, now that this gentleman has escaped--
he's gone missing, rather--is the Obama administration
concerned about that?
Mr. Wolosky. Sir, as I indicated previously, it would have
been our preference that all six of the detainees transferred
to Uruguay, stayed in Uruguay.
Mr. Duncan. You've stated that. I asked you a question. Is
the Obama administration concerned over Jihad Diyab's
disappearance? Yes or no.
Mr. Wolosky. As I said, I would have preferred that he
stayed in Uruguay with the five other detainees through the end
of the program, which was for another few months until December
2014.
If you're asking me what concerns me, frankly, it is the
532 who were transferred during the previous administration.
Without the----
Mr. Duncan. We have established the fact that we all wished
he would have stayed in Uruguay and would be right there with
the other five. What I am asking you is the Obama
administration concerned that he has disappeared?
Mr. Wolosky. And I believe I've answered your question.
Mr. Duncan. Mr. Lewis.
Mr. Lewis. Sir, we are closely----
Mr. Duncan. Okay. Knowing what you know now, will you
publicly repudiate the Sloan letter about the Uruguayan
concerns so the Uruguayan Government, who this administration
tricked, I think, about these people, can finally begin
monitoring and controlling the remaining five detainees? Will
you repudiate the Sloan letter?
Mr. Wolosky. We stand by the Sloan letter and we stand by
the representations that we made to the Government of Uruguay
at the time of the transfer.
In fact, I believe that the Uruguayans told you,
Congressman, when you visited, that they believed the United
States had provided accurate information about each of the
detainees transferred to their custody.
Mr. Duncan. They did, and that contradicted some previous
statements they had made publicly. So----
Mr. Wolosky. Why do you think that is?
Mr. Duncan. I am sorry?
Mr. Wolosky. Why do you think that is?
Mr. Duncan. We can go back through all of this.
Mr. Wolosky. Why would they say one thing to you and
another thing privately?
Chairman Royce. Mr. Duncan, could you yield for a minute?
Mr. Duncan. I can.
Chairman Royce. I did want to put something in perspective
for our witnesses here and it has to do with why the chairman
of the Western Subcommittee would be upset here. And the fact
is that the chief of intelligence in Uruguay explained to our
committee, gave us the information that they were not allowed
to monitor or surveille these six terrorists and the decision
you made was to transfer them anyway.
He made that observation to this committee prior to the
transfer. You made the decision to transfer these six despite
our warnings.
The second point that is upsetting to him is that the
intelligence chief was then dismissed from his position after
warning us of that and subsequently warning us that they were
casing--that they were outside our Embassy after their release
and, again, that they were not allowed to monitor or surveille.
Now we find ourselves in the situation--despite Jeff
Duncan's admonitions and concerns and despite what we brought
up at the prior hearing--we find ourselves in the situation
where one of these six terrorists has indeed been able to walk
out of Uruguay and no one knows where he is but we do know his
attitude and this is the reason for our concern.
But I thank Mr. Duncan for his trips and his work on behalf
of the committee.
Mr. Duncan. I want to thank the chairman for helping
clarify that. The pattern is clear. We have been asking about
these Gitmo Six and about the Uruguayans' ability to monitor
them for a long time now and we have raised concern about
events such as what we've witnessed in the last 60 days where
one of the six has just disappeared who was an al-Qaeda
terrorist.
There's no doubt about it. He was a forger. And we are
supposed to tell these countries that these weren't terrorists,
they weren't engaged in attacking or hurting our allies or our
United States military in any way. Very clear that he was.
Thank you, Mr. Chairman. I yield back.
Chairman Royce. We go to Mr. Matt Salmon of Arizona.
Mr. Salmon. Thank you, Mr. Chairman.
Last time you were here, Mr. Lewis, you testified that
Americans have been killed and I am going to piggyback on Mr.
Issa and Mr. Duncan's questions.
You subsequently notified the committee that those deaths
occurred in Afghanistan by as many as 14 former detainees all
who were released by the Bush administration and I'd just like
to ask a few questions about that.
How many Americans were killed? Were they U.S. servicemen
and -women, civilians or both? What are their names and where
are they from?
Mr. Lewis. Sir, it is our understanding that there are 14
and I can get you the specifics on that. I believe we've--the
intelligence community can get you those specific details. But
the number is 14. Many of the incidents were in large-scale
firefights in a war zone.
So we can't always distinguish whether Americans were
killed by former detainees or other participants. But the
intelligence community can get you the specific details that
you asked for, sir.
Mr. Salmon. Okay. And just to recap the specifics, I'd like
to know whether they were servicemen or servicewomen or
civilians or both and I'd like to know what their names are and
where they are from. Those are the things I'd like and you can
provide or get me all of that?
Mr. Lewis. Yes, sir.
Mr. Salmon. That'll be very, very helpful. And then just to
piggyback on some of the other questions, knowing that there
were casualties associated with those detainees to Afghanistan,
you then as an administration decided then it was okay to still
release detainees to Afghanistan? Is that correct?
Mr. Wolosky. It may have been correct at the moment. I can
assure you that each detainee transferred to Afghanistan or,
frankly, anywhere else is subject to the review of the Chairman
of the Joint Chiefs of Staff and I can tell you that the State
Department would not concur in any transfer of a detainee to
Afghanistan over the objection of the Chairman of the Joint
Chiefs of Staff.
Mr. Salmon. Well, prior to releasing detainees to
Afghanistan, did the intelligence community assess that the
Government of Afghanistan was incapable of maintaining custody
and control of these individuals?
Mr. Wolosky. The standard isn't maintaining custody and
control because they are not transferred into custody. The
standard is substantially mitigating the threat that they may
pose and, again, these are determinations that would have been
made in conjunction with and subject to the consultation with
the Chairman of the Joint Chiefs of Staff if in fact they
occurred in this administration. I believe that there have
been.
Mr. Lewis. Yes, Congressman, there have been transfers to
Afghanistan and as Envoy Wolosky says, we do consult with the
field commanders in Afghanistan prior to any transfer and,
again, those transfers have been made under the statutory
standard that any threat is going to be substantially mitigated
by the host nation. So it is better to talk about this in a
closed setting, sir.
Mr. Salmon. But you did state for the record that one of
your criteria for releasing them to Afghanistan was not
monitoring. That's not a concern. You didn't care whether they
were able to monitor or not?
Mr. Wolosky. We can't speak to specific security assurances
with specific countries in an open session. But what I can say
is that any transfer to Afghanistan would have involved the
consultation and concurrence of the Chairman of the Joint
Chiefs of Staff.
That's certainly what we do in all transfers, particularly
in a place like Afghanistan. We at the State Department
currently would not consent to any transfer to a place like
Afghanistan unless the Chairman of the Joint Chiefs of Staff
concurs in the transfer.
Mr. Salmon. Well, Afghanistan is an active war zone and it
is also one of the most corrupt countries in the world, and so
I guess what a lot of us would like to better understand is if
monitoring isn't part of the decision and making sure that
their whereabouts are readily ascertained, I guess a lot of us
wonder why that isn't one of the criteria.
Thank you, Mr. Chairman. Yield back.
Mr. Rohrabacher. The Chair now recognizes Mr. Weber.
Mr. Weber. Thank you, Mr. Chair.
Envoy Wolosky, is that how you're saying that?
Mr. Wolosky. Yes, sir.
Mr. Weber. Okay. You said that the standard was not the
elimination of risk but a mitigation of risk in your earlier
comments. Was that true under the prior administration as well?
Mr. Wolosky. I don't believe so.
Mr. Weber. So you all came in--the current administration
came in with that in 2009, basically?
Mr. Wolosky. Actually, the Congress came in with that. It's
written into the NDAA. It's a piece of legislation passed by
the Congress and signed into law by President Obama.
Mr. Weber. So that was the standard that you used? That's
pretty shocking what Congressman Duncan revealed, that we were
told that Uruguay was not going to be able to monitor these
guys' travel. There were six terrorists and I am not
knowledgeable or privy to who they were. These were not the
five that was released in exchange for Bergdahl. Is that
correct?
Mr. Wolosky. Correct.
Mr. Weber. Is it fair to say that in the Bush
administration didn't they attempt to try to release what was
assessed to be the lower level risk combatants at first?
Mr. Wolosky. I can't speak to that. I don't know what their
process was.
Mr. Weber. Is it fair to say in the current administration,
that you chose to release the lower risk first and held the
worse to the last?
Mr. Wolosky. The worst we are not releasing. We're only
releasing or transferring subject to security assurances those
individuals who have been designated as approved for transfer
by the six agencies and departments of the government that are
responsible for those decisions.
Mr. Weber. But common sense would probably dictate that the
Bush administration followed those same guidelines?
Mr. Wolosky. I don't think that that is a fair assumption,
respectfully. One reason why it is not a fair assumption is for
years we haven't released Yemeni detainees who in many cases
are low-level fighters, if that, because of the circumstances
in Yemen.
So currently many of the detainees who remain in Guantanamo
and who are approved for transfer are from Yemen and that could
reflect more their nationality than their risk profile.
Mr. Weber. That goes to the risk profile and I am sure,
too. Now, the five that were exchanged for Bergdahl are they--
any of those back on the battlefield?
Mr. Wolosky. No. I am just going to defer to my colleague
from the DoD to speak to that transfer because it was an
anomalous transfer, as you know, negotiated by the Department
of Defense as a prisoner exchange.
Mr. Weber. Okay.
Mr. Wolosky. I am confident he will say no when he turns
around.
Mr. Weber. All right. Well, his time has passed. I am going
to move to the next question. So there are countries who take--
who the administration negotiates with and we have a
disagreement about whether or not they actually will monitor
them or not.
What number of countries do we look at for transferring
these combatants to? Is it 6, 8, 26? How many countries are
involved?
Mr. Wolosky. We can get you the numbers but I believe we've
transferred detainees in this administration to, what, 30 or 40
countries?
Mr. Lewis. We've resettled to 30 and then 9 repatriations
back to their own country.
Mr. Weber. Okay. So 30 countries. Are you monitoring? Are
you able to track? You talked about--earlier in your comments
you spoke with career government officials in making those
assessments and those determinations. Career government
officials on the United States side or on the prospective
country side or both?
Mr. Wolosky. I was referring to the U.S. side.
Mr. Weber. U.S. side. Okay. So of those 30 countries where
we are sending people whether or not they can monitor them
effectively or not and you said you're getting feedback--we
called it--I think it was information sharing. Is that in real
time?
Mr. Wolosky. It can be.
Mr. Weber. It can be. But is it?
Mr. Wolosky. In some circumstances that I am aware of it is
in basically real time.
Mr. Weber. Was it in real time on the guy from Uruguay that
got loose?
Mr. Wolosky. We can discuss that in closed session. I would
welcome the opportunity to do that today if you would like to,
sir.
Mr. Weber. Okay. Okay. Of those 30 countries are you able
to track in real time and even in retrospect are you able to
track and say okay, this country did a good job of keeping up
with their combatants, this country didn't, this country was
okay, this country was lousy? Is there a scale of rating those
countries and their abilities?
Mr. Wolosky. I am not aware of a scale. Certainly, the
case----
Mr. Weber. So how do you know going forward in the future?
If a country doesn't do a good job, how do you say well, we'll
give that country another one or two or three? How do you
determine that?
Mr. Wolosky. By their record.
Mr. Weber. Well, that would be a scale, wouldn't it?
Mr. Wolosky. I don't think so. It would be specific to the
performance of a particular country--their monitoring, their
information sharing with the United States. If we are not
satisfied with the results on a previous transfer we wouldn't
transfer a new one to that same place.
Mr. Weber. Okay. Well, that makes sense. And then of the
discussion you had with Mr. Duncan and Mr. Issa, you talked
about the--those released under the previous administration,
Bush, and there was 530, I think, released, and how many is
under the current administration?
Mr. Lewis. 159.
Mr. Weber. 159. So I don't think that you and Issa agreed
on the fact that somehow Bush released the good ones and Obama
released the bad ones. Is that a fair statement?
Mr. Wolosky. That's correct.
Mr. Weber. Okay. Would you say they were roughly equal?
Mr. Wolosky. It's impossible to generalize. Each case is
different.
Mr. Weber. Well, that----
Mr. Wolosky. What I was trying to do was to push back
against the suggestion that Bush released the easy ones and we
only have the hard ones.
Mr. Weber. Right. But it is safe to say without----
Mr. Wolosky. It is not an accurate characterization.
Mr. Weber. Well, without the specifics you can't accurately
know that. But in general, a reasonable person might make that
kind of assumption?
Mr. Wolosky. We are all about talking about specifics, not
generalizations.
Mr. Weber. Okay. Fair enough.
Mr. Wolosky. That is why we are here. It is why we have
requested the opportunity----
Mr. Weber. Okay.
Mr. Wolosky [continuing]. To speak with you in closed
session because, frankly, a lot of what is said----
Mr. Weber. Okay. Well, I am running out of time.
Mr. Wolosky [continuing]. Including about Uruguay is just
inaccurate and I am happy to tell you if you're interested in
learning the facts about why some of what was said----
Mr. Weber. Let me--let me--we'll come back to that, Mr.
Wolosky.
Mr. Wolosky [continuing]. In this hearing was inaccurate.
Mr. Weber. Mr. Wolosky, I am out of time.
Mr. Wolosky. I am happy to speak to it.
Mr. Weber. Mr. Wolosky, I am out of time. Let me just say
thank you for being forthright but we are on a time limit. I've
got two quick questions.
Mr. Lewis. Sir, can I make--can I make comment, though?
Mr. Weber. Yes, sir. You may.
Mr. Lewis. Thank you, Mr. Chairman. There are 29 detainees
that are currently eligible for transfer who we believe we can
transfer safely and responsibly if we get security assurances--
--
Mr. Weber. Can I make a suggestion?
Mr. Lewis. Yes, sir.
Mr. Weber. Don't send them to Uruguay.
Mr. Lewis. Sir, many of them are Yemenis. That's why they
are there.
Mr. Weber. Mr. Wolosky, back to you.
Mr. Wolosky. Thank you, sir.
Mr. Weber. You're welcome. At the end of the Uruguay
program, you mentioned earlier that the guy got 3--2 months----
Mr. Rohrabacher [continuing]. Your last question.
Mr. Weber. All right. Two months early. Tell, for the
committee's sake, what would an additional 2 months have done,
in your opinion? Would it have rehabilitated that combatant?
What would that have done?
Mr. Wolosky. This individual, Diyab, frankly, was a problem
from the moment he landed in Uruguay and I'll tell you that and
be up front about it. His resettlement was difficult.
He did not seem to want to participate in the opportunities
that were being afforded to him by the government.
Mr. Weber. Should we have had snap back sanctions in place,
to use another term bantered around?
Mr. Wolosky. We are not repopulating Guantanamo.
Mr. Weber. Thank you. Mr. Chairman, I yield back.
Chairman Royce. We go to Mr. Joe Wilson of South Carolina.
Mr. Wilson. Thank you, Chairman Royce, and thank you for
your leadership on this issue, and it is so important. I've had
the opportunity to visit Guantanamo twice to see the personnel
there, the professionalism of our military. And it is the place
where terrorists should be.
In my home State of South Carolina, we've learned a lesson.
There was one terrorist at the Navy brig in Charleston. He's
had a consequence.
He's attracted more terrorists to come to the community and
threaten attacks on the facility, putting schools at risk,
neighborhoods in the immediate neighborhood at risk. It's
utterly absurd the thought of bringing them to the United
States in any way or releasing them, and it is interesting you
say Yemen.
You release people to Yemen, which was supposed to be an
example of great success by this administration of establishing
a stable country and within days of releasing and pardoning
terrorists the country collapsed.
And it would be interesting to know, what did happen to the
persons who have been released to Yemen previously?
Mr. Wolosky. We do not release individuals to Yemen.
Mr. Wilson. Well, you had previously released before the
collapse of the country. But there is a consistency here which
is not good and the consistency is we have an administration
that has dismissed ISIS as a JV--junior varsity.
These are the same people after the announcement of junior
varsity they committed mass murder in Jakarta, in Brussels, in
Paris, in Orlando, in San Bernardino. We know the mass murder,
this week, in Baghdad and in Kabul.
Over and over again, there's been a dismissal of threats to
American families. Additionally, it is incredible too this
administration is very consistent by reaching a dangerous
Iranian nuclear deal, providing tens of billions of dollars to
a state sponsor of terrorism.
Just last week, the funding that has been provided by Iran
to Hamas there have been rocket attacks on Sderot in Israel.
Again, it is extraordinary to ignore this.
And then we come to pardoning and returning terrorists to
go back on the battlefield. This is inconceivable and it is
also quite illogical.
As you talk about a recruiting tool, a recruiting tool is
releasing people--not being serious about detaining people who
have every intent to kill American families.
And it is really interesting to me that they don't use the
argument that it is a deterrent or it is a recruiting tool to
have prisons within the United States. Of course, it is a
deterrent.
If people know they are going to be incarcerated they are
less likely to commit a crime or kill American families. And I
am really grateful that even CNN yesterday reported that U.S.
officials have said the 44-year-old Abu Wa'el Diyab, a Syrian
national, went off the radar several weeks ago in Uruguay where
he was resettled in 2014, not prior to 2009.
And so Uruguay's Interior Minister told CNN that Diyab was
considered a refugee by the government and as such he would not
need permission from Uruguayan authorities to leave the
country.
They said he would only need permission from the foreign
country he wished to enter per an agreement with U.S. that
enabled the release of Gitmo detainees to Uruguay.
And there is a truth from CNN that I hope you look at and
will reconsider that you are doing and that is that the
disappearance could provide fuel for opponents of efforts to
close the detention facility at Guantanamo, especially if Diyab
is found to be attempting to join a terrorist group.
Of the 676 detainees released from the detention facility
as of January, 118 have returned to the fight. An additional 86
are suspected of returning.
A recidivism rate of nearly one out of three released,
according to a recent report from the administration's Office
of Director of National Intelligence.
By releasing and pardoning these people, American families
are at risk around the world and I just hope that you will
reconsider what you're doing.
And then I am really grateful, in the Washington Post,
Gordon England, the former Secretary of the Navy--and he's an
extraordinary public servant. He is a person of the highest
integrity.
He has warned that the process of releasing--the early
process did work but that what's being done is that there were
200 detainees when he departed, none have been approved for
release. Under the President, more than half have been
released.
None of the low-risk, according to vigorous vetting, he has
conducted during the Bush administration--statements by the
country or the White House are misleading at best. And so I
hope you will really reconsider and understand that we are in a
global war on terrorism.
This is not an academic exercise of deterrence or
incarceration, and I yield my time.
Chairman Royce. Okay. We go to Mr. Dana Rohrabacher of
California.
Mr. Rohrabacher. Thank you. Do any of you, either of you,
know of cases--do you believe that Americans at Gitmo were
involved with criminal mistreatment of the detainees?
Mr. Wolosky. I am not aware of that.
Mr. Rohrabacher. Okay. So but the President has made it a
national security imperative that we close Gitmo and this, we
are told, that he has to close Gitmo because it has such a bad
reputation. But yet from what you just said we know that those
charges are not true. Is that right?
We have a propaganda campaign going on by the enemies of
the United States and detractors of the United States against
us, claiming that there was some kind of major criminal
mistreatment of prisoners in Guantanamo and neither one of you
know of an example of that or the fact is if there was one or
two instances it certainly didn't reflect what was going on in
Guantanamo, correct?
Mr. Lewis. Sir, the issue is wrongfully so. There are many
people around the world in many countries who think that there
were things that went wrong at Gitmo.
Mr. Rohrabacher. Right.
Mr. Lewis. We don't believe that there were but they
perceive that it happened.
Mr. Rohrabacher. Well, let me correct it. Not only did a
lot of people think that but there are people who hate our
country who are promoting that knowing it is not true.
Let's get this in your mind. This isn't nice American
politics. This isn't a criminal matter, although the President
would like to think of these terrorists as being American
criminals, Americans who have made a criminal act.
This is people who hate our way of life, they are engaged
in an organized effort to terrorize Western civilization by
murdering large numbers of noncombatants.
Mr. Lewis. Sir, many of our----
Mr. Rohrabacher. This is what we are trying to do. We are
trying to handle this and what we get is a President who makes
a national security imperative to give in to those people who
propagandize and by doing that add some sort of credibility to
whom?
To the charge that our people who are working in Guantanamo
are a bunch of ghouls who are torturing these people. I
totally--yeah, there may be one or two instances where somebody
lost their temper or did something wrong.
But by and large, you know and we know that the prisoners
in Guantanamo have been treated extraordinarily well. The
President, by making it a national security imperative, has
basically demonstrated that the propaganda, by people who hate
us, will succeed and it will be seen and is seen as a sign of
weakness by terrorists all over the world.
This very act that we are talking about is encouraging
those people who will murder noncombatants, especially
Americans. Let's get back to the number of 532 released by
Bush.
Now, among those I know, for example, a lot of people were
picked up. The Uighurs from Afghanistan had been picked up.
They were in Afghanistan at the time of our operations. There
were a lot of situations like that.
Obama has released 159. I think it is a bit disconcerting,
again, when this administration insists on treating these
terrorists and those involved in terrorist activities as
nothing more than criminals.
You know, they are nothing more than like criminals would
be in the United States. That's why, perhaps, the President
finds it impossible to say the words ``radical Islamic
terrorist'' because that is different than just some criminal
who had committed an act of violence or murder in the United
States.
And by doing so, again, seeing as a weakness, the President
is actually encouraging terrorists around the world to take
advantage of this weakness, take advantage of the fact we are
willing to retreat if you just have a propaganda campaign.
I am glad to hear that we actually are suggesting that our
guys didn't commit all sorts of horrible acts against these
people. But of the 159 that were released--that have been
released, what is disconcerting is when I hear that we don't
have proof and it is been determined that this number of people
have not--these people haven't committed any of these other
acts after they've been released.
I, like Mr. Issa, find that totally--it is absurd, it is so
bad. The fact is that we--if we are waiting for evidence to
prove before we can say well, we think it is probable that they
have been involved because we know what kind of people they
are, that is one thing.
But what we are being told is unless we have overwhelming
evidence that they have killed Americans or killed other
innocent people, we are going to assume that they haven't.
Well, this is a way--this is not watching out for the
security interests of the people of the United States. This is
projecting weakness. This is going to make sure that more
Americans die if by nothing else giving in and having the
President of the United States insisting on treating terrorists
as if they are American criminals, which will do nothing but
encourage terrorism overseas. Thank you very much.
Chairman Royce. I thank the gentleman. We go to Mike
McCaul, chairman of the Homeland Security Committee. Mike
McCaul of Texas.
Mr. McCaul. Thank you, Mr. Chairman.
You know, the President campaigned on a promise to close
Guantanamo. Is it fair to say that that campaign promise will
not be fulfilled?
Mr. Wolosky. It's difficult to say. As you know, we are
asking the Congress to reconsider its position on bringing a
small number of detainees into the United States where, as you
know, our Federal--as you know, better than most, Congressman,
our Federal prison system has a 100-percent success rate in
safely incarcerating over 400 convicted terrorists.
Mr. McCaul. So but the current plan is to process 29
transfers out of Gitmo, which would leave--I think there are 79
detainees. That would leave 50, I guess, at Guantanamo, right?
Mr. Wolosky. That's correct. You know, there are 10 that
are in some phase of the military commission process and are
being prosecuted or serving sentences.
The Periodic Review Board process is ongoing so it is
possible that the number of detainees who were approved for
transfer will increase. But your round numbers are generally
correct.
Mr. McCaul. I've been down there. I saw Khalid Sheikh
Mohammed, evil incarnate. So the 50 remaining--is it your
intention to--we passed in the Congress under the National
Defense Authorization bill an express prohibition against
bringing these detainees into the United States.
This administration will honor that legal restraint,
correct? It will follow the law.
Mr. Wolosky. As the President has said, his intention right
now--his goal is to work with the Congress to change the law.
Mr. McCaul. Okay. What is the status of the trial of Khalid
Sheikh Mohammed?
Mr. Lewis. It's in the motions phase, sir.
Mr. McCaul. Why is this taking so long? I was a Federal
prosecutor. This has been, you know, since 9/11.
Mr. Lewis. Sir, I am a former Federal prosecutor as well.
Other people are better placed to answer your question. But
broadly, what I'll tell you is it is a new process so
everything is new.
There's no precedent. There are a bunch of very good
defense counsels and the judge is being careful and
deliberative. We have a very good chief prosecutor, General
Martins, who's trying very hard. But it is just, you know, the
law--to do the law carefully, as you know, sir, is a careful
process.
Mr. McCaul. Right. And I know defense counsel is filing a
lot of motions. Pretty nice courtroom down there. There are 50
detainees that will be left. How many of those will be facing
military trials?
Mr. Lewis. Right now, as Envoy Wolosky said, there are
seven that are in the motions phase. The 9/11 five, the alleged
Cole bomber and then one more al-Qaeda leader. There are three
in the sentencing phase, and we are continually looking at the
others to see if there can be a case. But I am not in best
place to tell you where we'd be.
Mr. McCaul. Getting back to those who you plan to release,
we know 13 released have been implicated in attacks against the
United States or coalition forces in Afghanistan, not a good
number.
Let me ask you this question. Has the administration ever
refused to send detainees to a country because it could not
provide adequate security?
Mr. Wolosky. Absolutely. There are many countries that we
look at that we ultimately determined are not suitable for
this.
Mr. McCaul. You mentioned a lot of these detainees you want
to transfer out are Yemenis. Yemen is a failed state, in my
judgement, and it is in a really bad state of affairs.
You have the Houthis down there, Iranian forces. You have
al-Qaeda in the Arabian Peninsula still plotting external
operations against the United States. Can you tell me
definitively you'll not be sending these detainees to Yemen?
Mr. Wolosky. Yes.
Mr. McCaul. Okay. That's a very good answer. What country
would most likely receive them?
Mr. Wolosky. I'd prefer to talk to you in closed session
about that. I mean, what I will say, as you know, generally we
prefer repatriations to resettlements because of cultural
affinities, language skills, family connections. In this case,
you know, that is not going to be possible for Yemen. So we are
looking at other alternatives.
Mr. McCaul. The last question--the Saudis have a pretty
good deradicalization program. Have you considered that?
Mr. Wolosky. Yes. In fact, we transferred a number of
Yemenis, I believe, nine to Saudi Arabia in April.
Mr. McCaul. Okay. I see my time has expired. Thank you.
Chairman Royce. Thank you. Thank you.
I want to get back to the issue of what you told this
committee in March, just in closing here. We asked specific
questions about the transfer of detainees to countries ill-
equipped to handle them and specifically we asked whether the
Department of Defense ever transferred a detainee to a country
that it knew was incapable of maintaining control of that
individual and keeping him from returning to the battlefield.
And Mr. Lewis responded no and Mr. Wolosky stated that he
was not aware of such an instance. Your written response to the
committee's letter, though, sent just this week states that the
law doesn't prohibit us from sending detainees to countries
that have partially derogatory intelligence assessments.
Now, partially derogatory in common terms means can't
contain or at least are seriously challenged in containing
those terrorists. So why didn't you cite the law instead of
suggesting to the committee that detainees were not being
transferred to countries that were incapable of maintaining
control of them when it is so clear that they are?
That's the point I wanted to make. That is why this seemed
to me like misleading the committee. And while I appreciate the
witnesses' willingness to speak to us in a classified setting,
which we'll take advantage of, that can't hide the fact that
these issues can and have been discussed very productively here
today.
As you can see, we have serious concerns about this policy
and we'll continue the conversation.
But I do want to thank the witnesses and thank the members
of the committee. The committee is adjourned.
Mr. Engel. Thank you, Mr. Chairman.
[Whereupon, at 12:06 p.m., the committee was adjourned.]
A P P E N D I X
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