[Senate Hearing 114-396]
[From the U.S. Government Publishing Office]









                                                        S. Hrg. 114-396

  THE GUANTANAMO DETENTION FACILITY AND THE FUTURE OF U.S. DETENTION 
                                 POLICY

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

                                HEARING

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 5, 2015

                               __________

         Printed for the use of the Committee on Armed Services




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                      COMMITTEE ON ARMED SERVICES

                     JOHN McCAIN, Arizona, Chairman

JAMES M. INHOFE, Oklahoma            JACK REED, Rhode Island
JEFF SESSIONS, Alabama               BILL NELSON, Florida
ROGER F. WICKER, Mississippi         CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire          JOE MANCHIN III, West Virginia
DEB FISCHER, Nebraska                JEANNE SHAHEEN, New Hampshire
TOM COTTON, Arkansas                 KIRSTEN E. GILLIBRAND, New York
MIKE ROUNDS, South Dakota            RICHARD BLUMENTHAL, Connecticut
JONI ERNST, Iowa                     JOE DONNELLY, Indiana
THOM TILLIS, North Carolina          MAZIE K. HIRONO, Hawaii
DAN SULLIVAN, Alaska                 TIM KAINE, Virginia
MIKE LEE, Utah                       ANGUS S. KING, JR., Maine
LINDSEY GRAHAM, South Carolina       MARTIN HEINRICH, New Mexico
TED CRUZ, Texas

                   Christian D. Brose, Staff Director

               Elizabeth L. King, Minority Staff Director

                                  (ii)

















                            C O N T E N T S

                               __________

                            february 5, 2015

                                                                   Page

The Guantanamo Detention Facility and the Future of U.S. 
  Detention Policy...............................................     1

McKeon, Hon. Brian P., Principal Deputy Under Secretary of 
  Defense for Policy, Department of Defense......................     4
Rasmussen, Nicholas J., Director, National Counterterrorism 
  Center, Office of the Director of National Intelligence........    13
Myers, RADM Ross A., Vice Deputy Director for Nuclear, Homeland 
  Defense, and Current Operations, Joint Staff...................    16

Questions for the Record.........................................    48

Appendix A.......................................................    57

                                 (iii)

 
  THE GUANTANAMO DETENTION FACILITY AND THE FUTURE OF U.S. DETENTION 
                                 POLICY

                              ----------                              


                       THURSDAY, FEBRUARY 5, 2015

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:50 a.m. in room 
SD-G50, Dirksen Senate Office Building, Senator John McCain 
(chairman) presiding.
    Committee members present: Senators McCain, Sessions, 
Ayotte, Cotton, Rounds, Ernst, Tillis, Sullivan, Graham, Reed, 
Manchin, Shaheen, Gillibrand, Blumenthal, Donnelly, Kaine, 
King, and Heinrich.

             OPENING STATEMENT OF SENATOR JACK REED

    Senator Reed. Senator McCain, the chairman, has asked me to 
call the hearing to order. He is currently, along with many of 
our colleagues, at the National Prayer Breakfast, and that is 
not finishing as promptly as they anticipated.
    As such, what I am going to do is ask unanimous consent 
that Senator McCain's opening statement be submitted for the 
record, that my opening statement be submitted for the record.
    [The prepared statements of Senators McCain and Reed 
follow:]

               Prepared Statement by Senator John McCain
    This committee meets today to review U.S. detention policy and the 
President's ongoing efforts to close the detention facility at 
Guantanamo Bay (GTMO), Cuba.
    For many years, I have believed that it would further U.S. national 
security interests to close the Guantanamo detention facility. I still 
do. In no way is that a criticism of the honorable service and 
professionalism of our men and women in uniform, who ensure that our 
detention operations at Guantanamo are conducted responsibly and 
consistent with our Nation's values.
    Let me also say that the recent successes of radical groups like 
ISIL, al-Qaeda, and Boko Haram, as well as our lack of a strategy to 
counter them, are a far more powerful source of radicalization and 
terrorist recruitment today than anything happening at GTMO. All of 
that said, I still believe we can, and should, look beyond the 
detention facility at Guantanamo Bay.
    The problem is that, for more than 6 years now, the Obama 
administration has offered no comprehensive plan to responsibly close 
the Guantanamo detention facility. It has not provided Congress with 
clear, compelling, and specific answers to the many challenging 
questions that must be resolved if the American people, and their 
elected representatives, are to have confidence that closing Guantanamo 
can be done in a way that supports our national security, rather than 
undermine it. Such questions include:

         How, and in what kind of venue, will we bring charges 
        against those detainees who can and should be tried for their 
        crimes?
         What are the specific conditions that must be put in 
        place in order to ensure that the foreign transfer or 
        repatriation of those Guantanamo detainees who have been 
        cleared for release by our military and intelligence 
        professionals can be done in a way that is secure, responsible, 
        and sustainable?
         What will be done with those detainees who could be 
        responsibly transferred but whose countries of origin are 
        governed by state sponsors of terrorism or are currently beset 
        by chronic instability, insurgency, or large-scale and growing 
        presences of violent Islamist groups like al-Qaeda or ISIL?
         More specifically, what is to be done with the dozens 
        of Guantanamo detainees who come from Yemen--a country that is 
        collapsing into chaos as al-Qaeda fighters and an Iranian-
        backed insurgency battle for control?
         And perhaps the most difficult question of all: What 
        is the plan for the dozens of detainees that the 
        Administration's own internal review categorized as those that 
        we are incapable of trying but who are too dangerous for 
        release? How would the long-term detention of these individuals 
        occur? Would it occur inside the United States? If so, how, 
        where, at what cost, and pursuant to what legal authority? 
        Would there be mechanisms for periodic judicial review, such as 
        a habeas proceeding or something like it? How could we ensure 
        that there will not be a court-ordered release of a dangerous 
        terrorist that is in long-term detention inside the United 
        States? What would we do if that happened?

    I could go on.
    Instead of providing answers to these and other questions, which we 
have consistently sought, and which is difficult but not impossible, 
what we now have instead is the perception of a President rushing to 
fulfill a political promise, including through reported efforts to 
pressure the Secretary and the Department of Defense to move faster, 
without having explained whether these recent foreign transfers are 
being done responsibly and in furtherance of a comprehensive plan to 
close the Guantanamo detention facility.
    What's equally troubling is that, in the absence of resolution to 
Guantanamo, our Nation continues to lack a clear policy to detain and 
humanely interrogate terrorist detainees for the purpose of 
intelligence gathering in what is a rapidly expanding conflict against 
violent extremist enemies.
    The simple question is: If we were to capture a high-value 
terrorist today, where would he be detained and for how long? Would he 
be interrogated as long as necessary to exploit his full intelligence 
value, or would that important process be cut short when he is read his 
Miranda rights and sent into the criminal justice system? What signal 
does this send to our young men and women in uniform, who may feel that 
they are left with an unsettling choice: whether killing our enemies is 
preferable to detaining them, watching them released, and having to 
face them another day on the battlefield?
    This is not an unfair question. Especially in the absence of a 
clear detention and interrogation policy. Especially when 30 percent of 
former Guantanamo detainees are either known to, or suspected to have, 
returned to the fight. And especially when one of the five Taliban 
detainees who were sent to Qatar last year in a prisoner swap is 
already suspected, according to published media reports, of re-engaging 
in the fight.
    As these questions remain unanswered, this committee intends to 
mark up legislation introduced by Senator Ayotte concerning U.S. 
detention policy and the Guantanamo Bay detention facility. We will do 
this through regular order with fulsome debate and amendments. And this 
committee will continue to press for a coherent detention policy.
    As General James Mattis testified before this committee, the 
implication of a perplexing lack of detention policy is that we are not 
even certain of ourselves enough to hold as prisoners those we have 
captured in the fight. This confusion must end. Our Armed Forces 
deserve a comprehensive detention strategy that allows them to fight 
this metastasizing, global, and brutal enemy without their eyes closed.
                Prepared Statement by Senator Jack Reed
    Welcome to our witnesses this morning. This morning's hearing is an 
opportunity to hear from the administration on its policy relating to 
the Guantanamo (GTMO) detention facility and the recent progress in 
transferring detainees out of that facility.
    Senior government officials, both Democrats and Republicans, have 
called for closing the Guantanamo detention facility because of the 
harm its continued operation causes for U.S. national security 
interests. President Bush set the goal of closing GTMO because he said 
``the detention facility had become a propaganda tool for our enemies 
and a distraction for our allies.'' Former Secretary of Defense Bob 
Gates called GTMO a ``taint'' on the United States' international 
standing, and former Chairman of the Joint Chiefs Admiral Mike Mullen 
said he was concerned that GITMO's continued existence because it has 
been ``a recruiting symbol for those extremists and jihadists who would 
fight us.'' I have a recent letter to Chairman McCain and myself from 
42 general and flag officers calling for the closure of Guantanamo, and 
I would ask that it be submitted for the record.
    This committee has played an instrumental role in setting the U.S. 
detention policy at Guantanamo. We have required the Department of 
Defense to assess and address risks before transferring any GTMO 
detainee, but we have never prohibited such transfers. Two years ago, 
in fact, we modified the law to ensure that the Department had greater 
flexibility in balancing and addressing risks. The result of this 
legislation has been that the Department has had a dramatically better 
record on recidivism under the Obama administration than it did under 
his predecessor.
    However, other legislative provisions have significantly restricted 
the transfer of GTMO detainees. In particular, Congress has imposed a 
prohibition on modifying or constructing any facility in the United 
States to hold GTMO detainees. Congress has also imposed a ban on 
bringing GTMO detainees to the United States for any reason. The effect 
of these prohibitions has been to deprive the President of a critical 
and successful tool in the fight against terrorism, the ability to try 
suspected terrorists in Federal courts, where hundreds of dangerous 
individuals have been convicted on terrorism-related charges or to hold 
enemy combatants in the United States subject to the
    due process requirements acknowledged in Hamdan v. Rumsfeld. These 
congressionally-imposed restrictions also interfere with our military 
leaders' ability to manage detainees as part of the armed conflict with 
al-Qaeda and associated forces.
    In the last Congress, under the leadership of Senator Levin and 
Senator McCain, this committee and the Senate sought to ease these 
restrictions. In 2013, the Senate voted 55 to 43 to authorize the 
transfer of GTMO detainees to the United States, subject to stringent 
conditions. In 2014, the version of the National Defense Authorization 
Act that was overwhelmingly approved by this committee included a 
similar provision, after the committee voted 26-0 in favor of an 
amendment offered by Senator Graham to require expedited congressional 
review of the administration's plan to implement such transfers. 
Unfortunately, neither provision was enacted into law.
    Now, legislation introduced in the Senate would take a dramatic 
step, blocking all transfers of GITMO detainees for any reason, based 
on some judgments about risk that were made as much as a decade ago. 
Administration critics have cited the figure that around 30 percent of 
GTMO detainees are suspected or confirmed of returning to the fight. 
But the fact is that most of these detainees were released during the 
Bush administration, not the Obama administration. Under the Obama-era 
review procedures, my understanding is that fewer than 10 percent of 
transferred GTMO detainees are even suspected, never mind confirmed, of 
having re-engaged in terrorist activities. I hope our witnesses this 
morning will provide us the latest recidivism numbers and help us 
better understanding exactly what those numbers mean.
    The blanket prohibition in the proposed legislation would negate 
our military's ability to evaluate and mitigate risks, and transfer 
detainees consistent with the best judgments of our senior-most 
military leaders. It would also render meaningless the administrative 
review boards, known as Periodic Review Boards, which regularly review 
individual detainee cases to determine whether they continue to pose a 
threat to U.S. national security interests. Under this proposed 
legislation, even if a board found that a detainee no longer posed a 
threat to the United States, the Department would be legally prohibited 
from transferring that individual out of detention at Guantanamo.
    I hope you will address how the detention of terrorist suspects 
will be handled in the future. In recent years, a number of suspected 
terrorists captured overseas have been subject to interrogation for 
national security and intelligence purposes, then brought to custody in 
the United States, and tried in court. These include Ahmed Warsame; Abu 
Gaith, who was Osama bin Laden's son-in-law; and al-Libi, captured in 
Libya and brought to New York for trial. These cases demonstrate 
alternatives to GTMO that result in terrorist suspects being brought to 
justice.
    I thank the witnesses and look forward to their testimony.

    Senator Reed. And, at this time, I'll call on the panel for 
their testimony. When the testimony is concluded, we will begin 
a round of questioning.
    With that, Mr. Rasmussen, are you prepared to go first, or 
is it Secretary McKeon?
    Mr. Rasmussen. I believe it's----
    Mr. McKeon. It's up to you, sir.
    Senator Reed. Secretary McKeon, please. You go right ahead, 
Mr. Secretary.

   STATEMENT OF HON. BRIAN P. McKEON, PRINCIPAL DEPUTY UNDER 
     SECRETARY OF DEFENSE FOR POLICY, DEPARTMENT OF DEFENSE

    Mr. McKeon. Okay. Thank you very much, Senator Reed.
    Members of the committee, thank you for the opportunity to 
testify today on the Detention Center at Guantanamo Bay, our 
policies on transferring detainees, and related issues.
    On January 22, 2009, President Obama signed Executive Order 
13492, which ordered the closure of the Detention Center at 
Guantanamo Bay, Cuba. Pursuant to that order, a special task 
force was established to broadly review information in the 
possession of the U.S. Government about the detainees, and 
determine the possibility of their release. Through that 
rigorous interagency effort, a certain number of detainees were 
approved for transfer, a certain number were referred for 
prosecution or further review, and a certain number were 
designated for continued Law of War detention.
    Since then, pursuant to Executive Order 13567, signed in 
March of 2011, and consistent with Section 10-23 of the 
National Defense Authorization Act (NDAA) for fiscal 2012, a 
Periodic Review Board has begun to review the status of those 
detainees not currently eligible for transfer, except for those 
detainees against whom charges are pending or a judgment of 
conviction has been entered.
    When the President came into office 6 years ago, there were 
242 detainees at Guantanamo Bay. Today, because of the work of 
the task force and subsequent efforts, 122 detainees remain. Of 
these, 54 are eligible for transfer, 10 are being prosecuted or 
have been sentenced, and 58 are being reviewed by the periodic 
review process.
    In his nearly 2 years as Secretary, Secretary Hagel has 
approved the transfer of 44 detainees, 11 of whom were 
transferred in 2013, 28 of whom were transferred last year, and 
5 of whom have been transferred this year. The great majority 
of these transfers authorized by the Secretary occurred under 
the authorities of Section 10-35 of the NDAA for fiscal '14. We 
urge you to maintain these authorities.
    Mr. Chairman, members of the committee, I want to make a 
fundamental point regarding the Detention Facility at 
Guantanamo. The President has determined that closing it is a 
national security imperative. The President and his national 
security team believe that the continued operation of the 
facility weakens our national security by draining resources, 
damaging our relationships with key allies, and is used by 
violent extremists to incite local populations. It is no 
coincidence that the recent ISIS videos showing the barbaric 
burning of a Jordanian pilot and the savage execution of a 
Japanese hostage each showed the victims clothed in an orange 
jumpsuit believed by many to be the symbol of the Guantanamo 
Detention Facility.
    Forty retired military leaders, all retired general or flag 
officers, wrote this committee last week and stated, ``It is 
hard to overstate how damaging the continued existence of the 
Detention Facility at Guantanamo has been and continues to be. 
It is a critical national security issue. Many of us have been 
told on repeated occasions by our friends and countries around 
the world that the greatest single action the United States can 
take to fight terrorism is to close Guantanamo.''
    This letter is signed by General Charles Krulak, retired 
Commandant of the Marine Corps; Major General Michael Lehnert, 
the first commanding general of the Joint Task Force at 
Guantanamo; General Joseph Hoar, former head of CENTCOM; and 37 
other retired senior military leaders. Many other military 
leaders acknowledged the need to close the facility, including 
the current and former Chairman of the Joint Chiefs, General 
Dempsey, and Admiral Mullen.
    In 2010, General Petraeus, then Commander of CENTCOM, 
stated, ``I've been on the record for well over a year, saying 
that Guantanamo should be closed. I think whenever we have 
perhaps taken expedient measures, they have turned around and 
bitten us on the backside.''
    Senior figures across the political spectrum have made 
clear that Guantanamo poses risks to our National security and 
should be closed. Former Secretaries Gates and Panetta, and the 
current Secretary, Secretary Hagel, all support closure of 
Guantanamo.
    Finally, President George W. Bush concluded that the 
Guantanamo Detention Facility was, quote, ``a propaganda tool 
for our enemies and a distraction for our allies,'' end quote.
    I will now briefly address some of the issues that were 
raised by the committee's letter of invitation:
    Twenty-seven detainees have been transferred since November 
2014. These detainees have been transferred to nine different 
countries. Key features of the process that leads to a decision 
to transfer include: a comprehensive interagency review and 
rigorous examination of information regarding the detainee; the 
security situation in the potential host country; and the 
willingness and capability of the potential country to 
implement and maintain appropriate compliance with security 
measures. Those initial reviews were conducted by career 
professionals from across the government.
    Next, any transfer decision requires an assessment by the 
special envoys of the security situation in the receiving 
country, and the willingness and capability of that country to 
comply with security assurances. We also have the Intelligence 
Community (IC) look at that issue.
    Finally, each decision to transfer has been subject to 
unanimous agreement of six principals: the Secretary of State, 
the Secretary of Homeland Security, the Director of National 
Intelligence, the Attorney General, the Chairman of the Joint 
Chiefs, and, finally, the Secretary of Defense. Under Section 
10-35 of the NDAA, the Secretary may approve the transfer if he 
determines that it is in the National security interests of the 
United States and that actions have been, or are planned to be, 
taken that will substantially mitigate the risk of the detainee 
engaging in terrorist or other hostile activity that threatens 
the United States or U.S. persons or interests.
    A primary concern that we have regarding a potential 
transfer is whether the detainee will return to the fight or 
otherwise reengage in acts of terrorism or acts that threaten 
U.S. persons. We take the possibility of a reengagement very 
seriously.
    The most recent public data on reengagement of former 
detainees was released last September, and the data are current 
as of July 15, 2014. There is a significant lag in the public 
reporting, and I know you may have seen a more recent 
classified report on this matter.
    The Office of the Director of National Intelligence 
categorizes the figures in three ways: the totals, the totals 
for before 22nd January 2009, when President Obama signed the 
Executive Order, and the total after 22nd January 2009, which 
refers to former detainees who departed Guantanamo after that 
date.
    This is how the data breaks down:
    The total number is 17.3 percent confirmed of reengaging, 
12.4 percent suspected of reengagement, for a total of 29.7 
percent confirmed or suspected.
    Before January 2009--that is, those transferred in the last 
administration--the numbers showed 19 percent confirmed and 
14.3 percent suspected reengaging, for a total of 33 percent.
    The data after January 2009 shows that 6.8 percent 
confirmed of reengaging, 6 out of 88 transfers; 1.1 percent 
suspected; for a total of 7.9.
    In other words, the rate of reengagement has been much 
lower for those transferred since 2009, which attests to the 
rigor of this new process. Of the detainees transferred during 
this administration, over 90 percent are neither confirmed nor 
suspected of having reengaged. This speaks to the careful 
scrutiny given to each transfer in this review process and the 
negotiation of agreements regarding security measures the 
receiving government intends to take pursuant to its own 
domestic laws and independent determinations that will mitigate 
the threat.
    One additional point about the data. Of the 107 confirmed 
of reengaging, the vast majority of them transferred before 
2009; 48 are either dead or in custody. Reengagement is not a 
free pass. We take any reports of suspected or confirmed 
reengagement very seriously and work in close coordination with 
our partners to mitigate reengagement or take follow-on action.
    I cannot discuss the specific security assurances we 
receive from foreign governments with any specificity in an 
open session. I can tell that, among the types of measures we 
seek are the ability to restrict travel, monitor, provide 
information, and reintegration or rehabilitation programs.
    Before a transfer, we have detailed, specific conversations 
with the receiving country about the potential threat the 
detainee may pose after transfer, and the agreement about 
measures the receiving country will take in order to mitigate 
the risk. We also review the capability of that country and its 
security establishment, and its track record in adhering to 
prior agreements.
    Let me talk about the Periodic Review Board (PRB) process 
briefly. The PRB process is an interagency process established 
to review whether continued detention of detainees at 
Guantanamo remains necessary to protect against a continuing 
significant threat to U.S. national security. We will provide 
your staff more information about the process and the PRB 
conduct of detainee risk assessments.
    To date, the results of 10 full hearings for nine detainees 
have been made public. Six detainees have been made eligible 
for transfer, with appropriate security assurances, pursuant to 
this process. Two of the detainees made eligible by the process 
have already been transferred, one to Kuwait and one to Saudi 
Arabia. The other three detainees remain subject to Law of War 
detention. Efforts are being made to expedite this process and 
prioritize hearings.
    You have asked us to address the legislation, recently 
introduced by Senator Ayotte and several members, which I 
understand may be marked up by the committee next week. In our 
view, this legislation would effectively ban most transfers 
from Guantanamo for 2 years. It reverts to the previous 
certification regime under the NDAA for fiscals '13 and '14--
excuse me--fiscal '12 and '13--which resulted only in court-
ordered transfers, transfers pursuant to plea agreements, and 
the use of only a few national security waivers. In addition, 
it adds a proposal to limit transfers based on Joint Task Force 
Guantanamo (JTF-GTMO) threat assessments that may be outdated 
or not include all available information. We believe that any 
decisions on transfers should be based on current information 
and individual assessments of detainees. Because this 
legislation, if enacted, would effectively block progress 
toward the goal of closing the Guantanamo Bay Detention Center, 
the administration will oppose it.
    The proposed legislation bars transfers of any detainees to 
Yemen for 2 years. Seventy-six Yemeni nationals remain at 
Guantanamo; 47 are eligible for transfer, 26 for PRB review, 
and 2 have charges referred, and 1 is serving pre-sentence 
confinement. A ban on transfers to Yemen is unnecessary, 
because we are not, at the present time, seeking to transfer 
any of them to Yemen, especially in light of the recent further 
deterioration in the security situation there.
    Since the President's moratorium on detainee transfers to 
Yemen was lifted nearly 2 years ago in favor of a case-by-case 
analysis, not a single detainee has been transferred to Yemen. 
The 12 Yemenis who have been transferred recently have been 
transferred to five other countries. We are currently seeking 
to find other third countries to take additional Yemenis.
    Let me briefly talk about, in summary, what our plan is. 
Our plan to close Guantanamo has three main elements:
    First, we will continue the process of responsibly 
transferring the 54 detainees eligible for transfer.
    Second, we will continue the prosecution of detainees in 
the military commissions process and, if possible, in Federal 
court.
    Third, we will continue and expedite the PRB process.
    When we have concluded these three lines of effort, it is 
likely that several detainees cannot be prosecuted because they 
are too dangerous to transfer, even with security assurances, 
and they will remain in our custody.
    Ultimately, closing the Detention Center at Guantanamo Bay 
will require us to consider additional options, including the 
possibility of transferring some detainees to a secure facility 
in the United States. The Department of Justice has concluded 
that, in the event detainees are located to the United States, 
existing statutory safeguards and executive and congressional 
authorities provide robust protection of national security. We 
understand that such transfers are currently barred by statute. 
As a result, the Government is prohibited from prosecuting any 
detainees in the United States, even if it represents the best 
or only option for bringing the detainee to justice. The 
President has consistently opposed these restrictions, which 
curtail options for reducing the detainee population.
    You asked us to address what happens if someone is captured 
on the battlefield. The disposition of an individual captured 
in the future will be handled on a case-by-case basis and by a 
process that is principled, credible, and sustainable. When a 
nation is engaged in hostilities, as we are, detaining the 
enemy to keep them off the battlefield is permissible and is 
the humanitarian alternative to lethal action. In some cases, 
those detained will be transferred to third countries. In 
others, they will be transferred to the United States for 
Federal prosecution after appropriate interrogation, as 
occurred in the case of Ahmed Warsame. Some cases may be 
appropriate for Law of War detention. The President has made 
clear we will not add to the population of the Detention Center 
at Guantanamo Bay.
    In closing, I would note that President Bush worked toward 
closing Guantanamo, and many officials in his administration 
worked hard to achieve that objective. We are closer to this 
goal than many people may think. Of the nearly 800 detainees to 
have been held at Guantanamo since it opened in 2002, the vast 
majority have already been transferred, including more than 500 
detainees transferred by the previous administration. The 
President and the National security experts of this 
administration believe it should be closed, as do the senior 
military leaders and civilian leadership of the Department of 
Defense. We believe the issue is not whether to close 
Guantanamo, the issue is how to do it.
    Thank you very much for listening. I look forward to your 
questions.
    [The prepared statement of Mr. McKeon follows:]

               Prepared Statement by Hon. Brian P. McKeon
    Mr. Chairman, Ranking Member Reed, distinguished members of this 
committee, thank you for the opportunity to testify today on the 
detention center at Guantanamo Bay, our policies on transferring 
detainees, and related issues.
    On January 22, 2009, President Obama signed Executive Order 13492, 
which ordered the closure of the detention center at Guantanamo Bay, 
Cuba. Pursuant to that order, a special task force was established to 
broadly review information in the possession of the U.S. Government 
about the detainees, and to determine the possibility of their release. 
Through that rigorous interagency effort, which continued for several 
months into 2010, a certain number of detainees were approved for 
transfer, a certain number of detainees were referred for prosecution 
or further review, and a certain number were designated for continued 
law of war detention.
    Since then, pursuant to Executive Order 13567, signed on March 7, 
2011, and consistent with section 1023 of the National Defense 
Authorization Act (NDAA) for Fiscal Year 2012, a Periodic Review Board 
has begun to review the status of those detainees not currently 
eligible for transfer except for those detainees against whom charges 
are pending or a judgment of conviction has been entered.
    When President Obama came into office in January 2009, there were 
242 detainees at Guantanamo Bay. Today, because of the work of the task 
force and subsequent efforts, 122 detainees remain. Of these, 54 are 
eligible for transfer, 10 are being prosecuted or have been sentenced, 
and 58 are being reviewed by the Periodic Review Process (PRB). In his 
nearly 2 years as Secretary of Defense, Secretary Hagel has approved 
the transfer of 44 detainees--11 of whom were transferred in 2013, 28 
of whom were transferred last year, and 5 of whom have been transferred 
this year. The great majority of these transfers occurred under the 
authorities in section 1035 of the NDAA for Fiscal Year 2014. I urge 
you to maintain these authorities.
               closure is a national security imperative
    Mr. Chairman and members of the committee, I want to make a 
fundamental point regarding the detention facility at Guantanamo Bay. 
The President has determined that closing this detention facility is a 
national security imperative. The President and his national security 
team all believe that the continued operation of the detention facility 
at Guantanamo weakens our national security by draining resources, 
damaging our relationships with key allies, and is used by violent 
extremists to incite local populations. It is no coincidence that the 
recent Islamic State of Iraq and al-Sham (ISIS) videos showing the 
barbaric burning of a Jordanian pilot and the savage execution of a 
Japanese hostage each showed the victim clothed in an orange jumpsuit, 
believed by many to be the symbol of the Guantanamo detention facility.
    Forty retired military leaders--all retired general officers or 
flag officers--wrote the chairman and ranking member of this committee 
on January 28, 2015 and stated, ``[I]t is hard to overstate how 
damaging the continued existence of the detention facility at 
Guantanamo has been and continues to be. It is a critical national 
security issue.'' The letter continued, ``[M]any of us have been told 
on repeated occasions by our friends in countries around the world that 
the greatest single action the United States can take to fight 
terrorism is to close Guantanamo.''
    This letter is signed by General Charles C. Krulak, a retired 
Commandant of the Marine Corps, Major General Michael R. Lehnert, the 
first commanding general of the joint detention task force at 
Guantanamo, General Joseph Hoar, the former head of U.S. Central 
Command (CENTCOM), General David M. Maddox, the former head of the U.S. 
Army in Europe, and 36 other retired senior military leaders.
    Many other military leaders acknowledge the need to close this 
detention facility. Admiral Michael Mullen and General Martin Dempsey, 
the former and current Chairman of the Joint Chiefs of Staff, support 
Guantanamo closure. In 2010, General David Petraeus, then the commander 
of CENTCOM stated, ``I've been on the record on that for well over a 
year as well, saying that it [Guantanamo] should be closed. . . . And I 
think that whenever we have, perhaps, taken expedient measures, they 
have turned around and bitten us in the backside. . . . Abu Ghraib and 
other situations like that are nonbiodegradables. They don't go away. 
The enemy continues to beat you with them like a stick.''
    Senior figures across the political spectrum have made clear that 
Guantanamo poses profound risks to our National security and should be 
closed. Former Secretaries of Defense Robert Gates and Leon Panetta, 
and the current Secretary of Defense, Chuck Hagel, all support 
Guantanamo closure.
    Finally, President George W. Bush concluded that the Guantanamo 
detention facility was ``a propaganda tool for our enemies and a 
distraction for our allies.''
    I will now briefly address the remaining specific issues addressed 
by the committee's letter of invitation.
 recent decisions to transfer detainees held at the detention facility 
 at guantanamo bay, cuba, by the department of defense and explain how 
             detainees are designated as ready for transfer
    Twenty-seven detainees have been transferred since November 2014. 
These detainees have been transferred to nine different countries.
    Key features of the process that leads to a decision to transfer 
include a comprehensive interagency review and rigorous examination of 
information regarding the detainee, the security situation in the 
potential host country, and the willingness and capability of the 
potential host country to implement and maintain appropriate compliance 
with security measures. Those initial reviews were conducted by career 
professionals, including intelligence analysts, law enforcement agents, 
and attorneys, drawn from the Department of Justice, Department of 
Defense, Department of State, Department of Homeland Security, Office 
of the Director of National Intelligence, and other agencies within the 
intelligence community. Next, any transfer decision requires an 
assessment by the Special Envoys of the security situation in the 
receiving country, and of the willingness and capability of the country 
to comply with security assurances. Finally, each decision to transfer 
has been subject to the unanimous agreement of six Principals--the 
Secretary of State, the Secretary of Homeland Security, the Director of 
National Intelligence, the Attorney General, the Chairman of the Joint 
Chiefs, and finally, the Secretary of Defense. Under section 1035 of 
the NDAA, the Secretary may approve the transfer if he determines that 
the transfer is in the national security interests of the United States 
and that actions have been or are planned to be taken that will 
substantially mitigate the risk of the detainee engaging in terrorist 
or other hostile activity that threatens the United States or U.S. 
persons or interests. The factors considered in making this 
determination include:

         The security situation in the foreign country to which 
        the detainee is to be transferred;
         Confirmed past activities by individuals transferred 
        to the foreign country to which the detainee is to be 
        transferred;
         Actions taken by the United States or the foreign 
        country to reduce the risk the individual will engage in 
        terrorist or hostile activity;
         Security assurances provided by the foreign 
        government; and
         An assessment of the willingness and capabilities of 
        the foreign government to meet those security assurances.

    A primary concern we have regarding a potential transfer is whether 
a detainee will ``return to the fight'' or otherwise reengage in acts 
that threaten the United States or U.S. persons. We take the 
possibility of reengagement very seriously. The most recent public data 
on reengagement of former Guantanamo detainees was released in 
September 2014 and are current as of July 15, 2014. There is a lag in 
the public reporting and I know you may have seen a more recent 
classified report on this matter. I can address updated classified 
statistics in a closed setting.
    The Office of the Director of National Intelligence categorizes the 
figures in three ways: (1) Total; (2) Pre-22 January 2009, which refers 
to former detainees who departed Guantanamo prior to January 22, 2009; 
and (3) Post-22 January 2009, which refers to former detainees who 
departed Guantanamo after January 22, 2009, as follows:

         Total: 17.3 percent confirmed of reengaging (107 of 
        620); 12.4 percent suspected of reengaging (77 of 620), for a 
        total of 29.7 percent confirmed or suspected of reengagement.
         Pre-22 January 2009: 19 percent confirmed of 
        reengaging (101 of 532); 14.3 percent suspected of reengaging 
        (76 of 532), for a total of 33.3 percent confirmed or suspected 
        of reengagement.
         Post-22 January 2009: 6.8 percent confirmed of 
        reengaging (6 of 88); 1.1 percent suspected of reengaging (1 of 
        88) for a total of 7.9 percent confirmed or suspected of 
        reengagement.

    In other words, the rate of reengagement has been much lower for 
those transferred since 2009, which attests to the rigor of this new 
process. Of the detainees transferred under this administration, over 
90 percent are neither confirmed nor suspected of having reengaged. 
This statistic speaks to the result of the careful scrutiny given to 
each transfer in the intensive interagency review process, and the 
negotiation of agreements regarding security measures the receiving 
government intends to take pursuant to its own domestic laws and 
independent determinations that will mitigate the threat that the 
detainees will not pose a continuing threat to the United States and 
its allies after they have been transferred.
    An additional point about the data: of the 107 confirmed of 
reengaging (the vast majority of them transferred prior to 2009), 48 
are either dead or in custody.
    Reengagement also does not equate to a free pass. We take any 
indications of suspected or confirmed reengagement very seriously, and 
we work in close coordination with our partners to mitigate 
reengagement and to take follow-on action when necessary.
 explain how security arrangements are determined to be sufficient to 
               transfer detainees to receiving countries
    I cannot discuss the specific security assurances we receive from 
foreign governments with any degree of specificity in open testimony. 
However, among the types of security measures that we seek are the 
ability to restrict travel, monitor, provide information, and 
reintegration/rehabilitation programs.
    The decision to transfer is made only after detailed, specific 
conversations with the receiving country about the potential threat a 
detainee may pose after transfer and the agreement about the measures 
the receiving country will take in order to sufficiently mitigate that 
potential threat. We also review the capability of the receiving 
country and its security establishment, and its track record in 
adhering to prior agreements in this regard.
provide a detailed explanation of the procedures of the periodic review 
                  board (prb) and prb risk assessment
    The PRB process is an interagency process established to review 
whether continued detention of detainees held at Guantanamo Bay remains 
necessary to protect against a continuing significant threat to U.S. 
national security. We will be providing your staff information 
detailing the process and the PRB conduct of detainee risk assessments.
    To date, the results of 10 full hearings, for 9 detainees, have 
been made public. Six detainees have been made eligible for transfer 
with appropriate security assurances, pursuant to the PRB process. Two 
of these detainees made eligible by the PRB process have been 
transferred, one to Kuwait and one to Saudi Arabia. The other three 
detainees remain subject to law of war detention. Efforts are being 
made to expedite the PRB process and prioritize hearings.
    PRB panels are made up of senior representatives from the 
Departments of Defense, Homeland Security, Justice, and State; the 
Joint Staff; and the Office of the Director of National Intelligence. 
Pursuant to the Executive Order, and consistent with section 1023 of 
the NDAA for Fiscal year 2012, the Department of Defense established 
the Periodic Review Secretariat (PRS) to administer the PRB review and 
hearing process. The PRS is responsible for overseeing the 
implementation of the process and coordinates with the agencies 
involved. It is headed by a retired admiral.
    The PRB process makes an important contribution toward the 
administration's goal of closing Guantanamo Bay by ensuring a 
principled and sustainable process for reviewing and revisiting prior 
disposition determinations in light of the current circumstances and 
intelligence, and identifying whether additional detainees may be 
designated for transfer.
    By necessity, detainee reviews involve consideration of highly 
classified intelligence in addition to information that can be made 
public. To enhance the transparency of these reviews, the Department of 
Defense operates a website sharing unclassified information with the 
public. Postings include milestones in each detainee's case, 
unclassified information associated with the PRB hearings, and the 
results of the detainee reviews. In addition, a portion of the PRB 
process is open to the press and representatives of NGOs.
    The PRB process does not address the legality of any individual's 
detention under the authority of the Authorization for Use of Military 
Force, as informed by the laws of war. Detainees have the 
constitutional privilege of the writ of habeas corpus to challenge the 
legality of their detention, and nothing in Executive Order 13567 or 
its implementing guidelines is intended to affect the jurisdiction of 
Federal courts to determine the legality of their detention. If, at any 
time during the PRB process, material information calls into question 
the legality of detention, the matter is referred immediately to the 
Secretary of Defense and the Attorney General for appropriate action.
                          proposed legislation
    The recent legislation proposed by Senator Ayotte and several 
members of this committee would effectively ban most transfers from 
Guantanamo for 2 years. It reverts to the previous certification regime 
under the NDAA for Fiscal Year 2012 and the NDAA for Fiscal Year 2013, 
which resulted only in court-ordered transfers, transfers pursuant to 
pleas agreements and only a few national security waivers. In addition, 
it adds a proposal to limit transfers based on Joint Task Force-GTMO 
threat assessments that may be outdated or not include all of the 
available information. We believe that any decisions regarding 
transfers should be based on current information and individual 
assessments of detainees.
    Because this legislation, if enacted, would effectively block 
progress toward the goal of closing the Guantanamo Bay detention 
center, the administration opposes it.
                                 yemen
    The proposed legislation bars transfer of any detainees to Yemen 
for 2 years. Seventy-six Yemenis remain at Guantanamo Bay: 47 are 
eligible for transfer, 26 are eligible for PRB review, 2 have charges 
referred, and 1 is serving pre-sentence confinement.
    A ban on transfers to Yemen is unnecessary because we are not, at 
the present time, seeking to transfer any of them in Yemen, especially 
in light of the recent further deterioration in the security situation. 
Since the President's moratorium on detainee transfers to Yemen was 
lifted nearly 2 years ago in favor of a case-by-case analysis, not a 
single detainee has been transferred to Yemen. The 12 Yemenis who have 
been transferred recently have been transferred to five countries: 
Slovakia, Georgia, Kazakhstan, Estonia, and Oman. We are currently 
seeking to find other third countries to take additional Yemenis.
              plan to close guantanamo detention facility
    Our plan has three main elements.
    First, we will continue the process of responsibly transferring the 
54 detainees eligible for transfer.
    Second, we will continue the prosecution of detainees in the 
military commissions process, and if possible, in the Federal courts. 
Currently 7 detainees are being actively prosecuted under the military 
commission process; 5 accused of the September 11 attacks, 1 charged 
with the bombing of the USS Cole, and 1 charged with actions as a 
senior al Qaeda commander; and 3 are in the sentencing phase or are 
serving sentences.
    Third, we will continue and expedite the PRB process.
    When we have concluded these three lines of effort, it is likely 
that several detainees cannot be prosecuted but who are too dangerous 
to transfer, even with security assurances, will remain in our custody.
    Ultimately, closing the detention center at Guantanamo Bay will 
require us to consider additional options, including the possibility of 
transferring some detainees to a secure facility in the United States. 
The Department of Justice has concluded that in the event detainees 
were relocated to the United States, existing statutory safeguards and 
executive and congressional authorities provide robust protection of 
national security. We understand that such transfers are currently 
barred by statute. As a result, the Government is prohibited from 
prosecuting any detainees in the United States, even if it represents 
the best--or only--option for bringing a detainee to justice. The 
President has consistently opposed these restrictions, which curtail 
options for managing the detainee population. We understand the 
committee has a continuing request for more information. We understand 
we need to work with Congress on this and I pledge to you we will do 
so.
 explain the administration's policy regarding the detention of future 
                 combatants captured on the battlefield
    The disposition of an individual captured in the future will be 
handled on a case-by-case basis and by a process that is principled, 
credible and sustainable. When a nation is engaged in hostilities, 
detaining the enemy to keep him off the battlefield is permissible and 
is a humanitarian alternative to lethal action. In some cases, those 
detained will be transferred to third countries. In other cases, they 
will be transferred to the United States for Federal prosecution, after 
appropriate interrogation, as occurred in the case of Ahmed Warsame. 
Some cases may be appropriate for law of war detention. But the 
President has made clear that we will not add to the population of the 
detention center at Guantanamo Bay.
                               conclusion
    President Bush worked towards closing Guantanamo, and many 
officials in his administration worked hard towards that objective. We 
are closer to this goal than many people may realize. Of the nearly 800 
detainees to have been held at Guantanamo since the facility opened in 
2002, the vast majority have already been transferred, including more 
than 500 detainees transferred by the previous administration. The 
President and the national security experts of this administration 
believe it should be closed. The senior military leaders of the country 
and the leaders of the Department of Defense concur. We believe the 
issue is not whether to close Guantanamo; the issue is how to do it.
    Thank you and I look forward to your questions.

    Senator Reed. Well, thank you very much, Mr. Secretary.
    And let me do something I neglected to do prior to asking 
for your testimony, that is to introduce the witnesses. I'm a 
little rusty at this.
    Secretary McKeon, who just presented testimony, is 
Principal Deputy Under Secretary of Defense for Policy, 
Department of Defense. Mr. Nicholas Rasmussen is the Director 
of the National Counterintelligence Center, Office of the 
Director of National Intelligence; and Admiral Ross Myers is 
the Vice Deputy Director for Nuclear, Homeland Defense, and 
Current Operations, Joint Staff.
    Mr. Rasmussen or Admiral Myers, do you have a statement?
    Mr. Rasmussen. I believe I'm next----
    Senator Reed. Mr. Rasmussen, please.
    Mr. Rasmussen.--Mr. Ranking Member.

    STATEMENT OF NICHOLAS J. RASMUSSEN, DIRECTOR, NATIONAL 
  COUNTERTERRORISM CENTER, OFFICE OF THE DIRECTOR OF NATIONAL 
                          INTELLIGENCE

    Mr. Rasmussen. And thank you for the opportunity to appear 
before the committee today for this discussion concerning 
Guantanamo detainees.
    And I'll begin by discussing the intelligence community's 
support to the transfer process that Brian outlined in some 
detail; specifically, the analysis that the intelligence 
community provides.
    The community provides a range of tailored intelligence 
assessments aimed at helping policymakers----
    Senator Reed. Could you adjust your mic, Mr. Rasmussen?
    Mr. Rasmussen. I'm sorry.
    Senator Reed. Thank you.
    Mr. Rasmussen. The intelligence community produces a range 
of tailored intelligence assessments aimed at helping 
policymakers make decisions about the potential transfer of 
detainees from the Guantanamo Detention Facility. These 
assessments include profiles that examine factors relevant to 
whether individual detainees pose continuing threats to the 
United States or to our allies. And, to echo Brian's remarks, 
we take the risk of reengagement very seriously. The community 
is continuously evaluating the global threat environment, and 
works to keep decisionmakers, including the Congress, informed 
of developments, especially with respect to threats to the 
United States.
    As you know, we continue to face threats from a wide range 
of actors, from al-Qaeda and its affiliates, as well as from 
ISIL and those inspired by violent extremist messaging. The 
full force of brutality of these groups, such as ISIL, and ISIL 
in particular, is felt most acutely in Iraq, in Syria, and 
regionally in the Middle East and North Africa. Today's threat 
environment in Western countries is largely characterized by 
smaller-scale attacks. It's noteworthy that the majority of 
attacks conducted in the West in the last 8 months were, in 
fact, conducted by individual terrorists.
    Accordingly, the IC's analysis on current Guantanamo 
detainees focuses most intently, most closely, on the potential 
for these detainees to threaten the U.S. and its interests 
overseas after they leave Guantanamo. These assessments aim to 
provide a comprehensive understanding of the detainee's 
background, the current mindset, and any links to individuals 
or groups that pose a terrorist threat to our interests. Those 
assessments also take into account the evolving terrorist 
threat to the United States, as well as security developments 
overseas, including in the detainee's home country, in conflict 
zones, and potential transfer destinations.
    Intelligence community products do not state whether a 
detainee poses a high, medium, or low risk of reengagement, 
because we assess that the likelihood for a detainee to 
reengage is shaped by a combination or a synthesis of a number 
of personal and environmental factors. And, in addition to this 
individually focused analysis, the IC also provides assessments 
about potential destination countries, their capabilities, and 
their willingness to mitigate the potential detainee's threat.
    Now, Brian also mentioned reengagement, so I'd like to 
discuss our role in monitoring individuals in the intelligence 
community for possible reengagement in terrorism.
    Once a detainee is transferred from Guantanamo, the IC 
continuously monitors for indications of reengagement, and we 
work very closely with liaison partners to ensure the fullest 
understanding of a former detainee's activities. Through a 
formal and structured intelligence community coordination 
process that draws on the assessments of eight different 
intelligence agencies, we determine whether to designate a 
former detainee as reengaged.
    Now, we determine that a former detainee is, you know, 
confirmed as having reengaged in terrorism when a preponderance 
of information identifies that individual as directly involved 
in terrorist or insurgent activities. We determine that a 
former detainee is suspected of reengaging in terrorism when we 
assess that plausible, but unverified, or even, in some cases, 
single-source reporting, indicates an individual is directly 
involved in such activities.
    But, it's important to note, for the purpose of these 
definitions, engagement in anti-U.S. statements or engagement 
in propaganda activities does not, by itself, qualify as 
terrorist or insurgent activity. And it's also the case that 
some former detainees have been added to this list of suspected 
reengagement candidates and then later removed after 
information came to light suggesting that the individual had 
not, after all, reengaged.
    And just to quickly run through the numbers that Brian 
cited again: 107, or 17.3 percent, of the 620 detainees who 
have been transferred from Guantanamo have been confirmed of 
reengagement in terrorist activities as of September 2014. And, 
at the same time, the IC assessed that an additional 77 former 
detainees, approximately 12 percent, were suspected of 
reengagement. Of the 88 transfers that have occurred since the 
interagency process that the Director of National Intelligence 
participates in was implemented in 2009, 6.8 percent of those 
transferred during that time have been confirmed of 
reengagement, with another 1 percent suspected of reengagement.
    The next unclassified report that the intelligence 
community will put out on these reengagement numbers is 
expected in early March, and we will update those numbers, and 
they will reflect the most recent transfer activity. I can't 
say where those--where that will report will come out, but I 
would expect that those numbers will largely be in line with 
the trends I have just outlined.
    And I'll stop there, Senator Reed, and I look forward to 
your questions.
    [The prepared statement of Mr. Rasmussen follows:]

              Prepared Statement by Nicholas J. Rasmussen
    Good morning Chairman McCain, Ranking Member Reed, and members of 
the committee. Thank you for the opportunity to appear before you 
today.
           intelligence community support to transfer process
    The Intelligence Community (IC) produces a range of tailored 
analysis aimed at helping policymakers make decisions regarding the 
potential transfer of detainees from the Guantanamo Bay detention 
facility. These assessments include profiles that examine factors 
relevant to whether individual detainees pose continuing threats to the 
United States and its allies.
    To echo Principal Deputy Under Secretary McKeon's statement, we 
take the risk of reengagement very seriously. The IC is continuously 
evaluating the global threat environment and works to keep 
decisionmakers informed of developments, especially with respect to 
threats to the United States. Those assessments inform a range of 
national security policy decisions, including transfer considerations.
    Accordingly, the IC's analysis on current Guantanamo detainees 
focuses on the potential for those detainees to threaten the United 
States and its interests overseas after they leave Guantanamo. These 
rigorous assessments aim to provide a comprehensive understanding of 
the detainee's background, current mindset, and any links to 
individuals or groups that pose a terrorist threat to U.S. interests. 
They also take into account the evolving terrorism threat to the United 
States, as well as security developments overseas, including in the 
detainee's home country and in conflict zones. IC products do not state 
whether a detainee poses a high, medium, or low risk of reengagement 
because we assess that likelihood to reengage is shaped by a synthesis 
of personal and environmental factors. In addition to the individually 
focused analysis, the IC also provides assessments about potential 
destination countries' capabilities and willingness to mitigate a 
detainee's threat.
                      monitoring for reengagement
    Once a detainee is transferred from Guantanamo, the IC continuously 
monitors for indications of reengagement and works closely with liaison 
partners to ensure the fullest understanding of a former detainee's 
activities. Through a rigorous IC coordination process that draws on 
the assessments of eight IC agencies, we determine whether to designate 
a former detainee as reengaged. We say that a former detainee is 
``confirmed'' as re-engaging in terrorism when a preponderance of 
information identifies that individual as directly involved in 
terrorist or insurgent activities. We say that a former detainee is 
``suspected'' of re-engaging in terrorism when plausible but unverified 
or single-source reporting indicates that the individual is directly 
involved in terrorist or insurgent activities. For the purposes of 
these definitions, engagement in anti-U.S. statements or propaganda 
does not qualify as terrorist or insurgent activity. Moreover, a 
detainee may be confirmed as having reengaged in the absence of 
information that the detainee has engaged in conduct that poses a near-
term threat to the United States or to U.S. persons or interests. Some 
former detainees have been added to the suspected list and later 
removed after information came to light suggesting that the individual 
had not reengaged, after all.
    As Brian stated, 107 or 17.3 percent of the 620 detainees who had 
been transferred from Guantanamo had been confirmed of reengagement in 
terrorist or insurgent activities as of September 2014, and the IC 
assessed that an additional 77 former detainees, or 12.4 percent, were 
suspected of reengagement. Of the 88 transfers that occurred since the 
interagency process the DNI participates in was implemented in 2009, 6 
or 6.8 percent were confirmed of reengagement in terrorist or insurgent 
activities, and 1 or 1.1 percent was suspected. The next unclassified 
report on reengagement, expected in early March, will update those 
numbers and reflect the most recent transfers.
    Mr. Chairman, Mr. Ranking Member, this concludes my testimony. I 
look forward to your questions.

    Senator Reed. Thank you very much.
    Admiral Myers, do you have comments?

   STATEMENT OF RADM ROSS A. MYERS, VICE DEPUTY DIRECTOR FOR 
 NUCLEAR, HOMELAND DEFENSE, AND CURRENT OPERATIONS, JOINT STAFF

    Admiral Myers. Ranking Member Reed, distinguished members 
of the committee, thank you for having me here today to discuss 
this important topic.
    As the Joint Staff's representative in the capacity of 
Current Operations, I appreciate all your efforts and focus on 
this matter. May I also extend my personal thanks for your 
unwavering dedication and support to the men and women of the 
Armed Forces.
    I look forward to answering your questions.
    Thank you very much.
    Senator Reed. Thank you for your statement, Admiral. It was 
succinct and to the point.
    Let me first ask--there was a letter reference from 42 
general officers addressed to Senator McCain and myself, and I 
would ask unanimous consent that it be made part of the record. 
And, hearing no objections, so ordered.
    [The information referred to follows:]
    See Appendix A.
    Senator Reed. With the presumption that the Chairman, when 
he arrives, will be immediately recognized, let me ask a few 
questions and then begin to recognize my colleagues.
    You've both--you've all testified that the trend line is 
going down significantly. And, Secretary McKeon, your--you see 
this continuing, in terms of recidivism, which is a critical 
issue. Is that your conclusion?
    Mr. McKeon. Senator Reed, that's certainly what we're 
seeing in the data. We've transferred a number of people 
recently. It's probably too soon to say whether they've 
reengaged or not, because they're still getting settled, but we 
don't have any indications for--we feel good about the--where 
we are with those. That's correct.
    Senator Reed. Let me also ask both you and Mr. Rasmussen, 
is--as you analyze these individual cases of recidivism, are 
you using it to inform your judgments, going forward; i.e., the 
circumstances of the individual, the country to which he or--
presumably he, but, in some cases, perhaps she--goes back to, 
anything like that? So, this is a continuing learning 
experience, and you feel you're getting more capable of making 
judgments about the usefulness of returning the individual.
    Mr. McKeon. The answer to that is yes, sir. And we take a 
very close look, not just at the individual who may be 
transferred, but the assurances that the country agrees to sign 
up to, and the capability of its own security services to 
uphold the agreement. And the IC and the embassy help us with 
that kind of assessment.
    Senator Reed. And there is a check on the assurances that 
are given by these various countries so that we are confident 
that they have the--both the capacity and the will, and are 
actually keeping up their end of the bargain. Is that accurate?
    Mr. McKeon. We continue to monitor compliance with 
agreements, through various means, including the U.S. Embassy 
and, where appropriate, liaison services, and our own 
capabilities.
    Senator Reed. Let me go to one of the major points that you 
made, that is the--and specifically to Mr. Rasmussen--that the 
continued operation of Guantanamo gives some of our adversaries 
a--propaganda points with respect to recruitment, retention, 
magnifying their operations. Is that your--the assessment of 
the intelligence community?
    Mr. Rasmussen. Yes, Senator. From the Director of National 
Intelligence's perspective, who is asked to weigh in on these 
transfer decisions from the perspective of intelligence, what 
underpins all of his decisionmaking in this regard is an 
analytical judgment that he has made, that the community has 
made, that the benefits to national security from closing 
Guantanamo, in some cases, in many cases, outweigh the risks 
that are incurred by releasing individual detainees. And it's 
precisely because of that continued featuring of Guantanamo in 
the terrorist narrative that he's made that calculation, the 
fact that Guantanamo features in terrorist propaganda, it 
features in terrorist recruitment, and we assess that it has 
continued significant resonance in the population that our 
terrorist adversaries are trying to recruit among. ISIL has 
used Guantanamo in its English-language propaganda, including 
their online English-language magazine. AQAP, al-Qaeda in the 
Arabian Peninsula, the al-Qaeda affiliate operating in Yemen, 
has used Guantanamo in their propaganda. And it's also 
noteworthy that the al-Qaeda's senior leader, Ayman al-
Zawahiri, continues to reference Guantanamo in his 
communications with al-Qaeda members around the world. So, yes, 
Senator.
    Senator Reed. Thank you.
    This is a specific issue which we're going to have to face. 
General Kelly, who is the Commander of U.S. South Command, has 
voiced concern about the medical facilities there. You have an 
aging population of individuals. And last year, in the Senate 
version of the defense authorization bill, we put in language 
that will allow for a temporary transfer, because of a medical 
condition, of an individual to a more appropriate facility for 
care, on a temporary basis, in the United States. This was not 
ultimately adopted. But, is that something that concerns you, 
going forward, just in terms of a population that obviously is 
going to be in--if this closure is delayed, more and more in 
need of socialized care?
    Mr. McKeon. It does, Senator. There are a certain number of 
members of the population who have acute healthcare issues. 
And, as they get older, those will continue to get worse. And 
so, I was down to visit, a couple of months ago, and had a 
conversation with the Joint Task Force (JTF) Commander, Admiral 
Cozad, about this. And his concern is, it's quite expensive. 
They have to bring in specialists to treat these individual 
matters, from the States. And I think we would prefer if we 
could, on a short-term basis, as you indicated in your 
legislation, bring them to the United States for such 
specialist care, as needed.
    Senator Reed. Thank you very much.
    Senator Tillis, please.
    Senator Tillis. Thank you, Senator Reed.
    Gentlemen, thank you for being here today.
    I have a question about the five Talibanis who were 
released. I think we got notified through the press, back in 
May of last year. And my question for anyone on the panel would 
be, Would the--were the five Talibanis who were released 
subject to a PB---or the periodic review?
    Mr. McKeon. They were not, sir.
    Senator Tillis. They were not. And if not, why?
    Mr. McKeon. I was not in the Department at that time, sir. 
I would have to go back and ask that question. As you know, it 
was part of a--an exchange for Sergeant Bergdahl.
    Senator Tillis. So, the assessment of their risk level 
didn't go through the processes that were established?
    Mr. McKeon. No, I didn't want to leave you with that 
impression. The--so, the Periodic Review Board process makes a 
determination of whether Law of War detention of the individual 
is still permissible. The statute that you have given us 
requires the Secretary still to make the determination, prior 
to any transfer, of the National security interests and the 
substantial mitigation of the risk. And that, sir, was--that 
was undertaken.
    Senator Tillis. I know--I don't believe you were there at 
the time, but why do you think the Department decided not to 
notify Congress, as per the statutes?
    Mr. McKeon. Sir, I believe the Secretary----
    Senator Tillis. And perhaps, what's the legal basis for 
that, as well?
    Mr. McKeon. Yeah. Sir, I used to be a--well, I'm still a 
lawyer, technically, and I was the counsel on the Senate 
Foreign Relations Committee for 12 years, but they've stopped 
paying me to give legal judgments, and it would be malpractice 
for me to try to opine on it.
    What--my understanding is, the Department of Justice and 
Mr. Preston, the general counsel of the Department, interpreted 
the President's powers, because of the security risk and safety 
of Sergeant Bergdahl, necessitated proceeding without the 30-
day notice. But, I--I'm happy to get you the more refined legal 
answer, because I'm not the person to do that for the 
Department.
    [The information referred to follows:]

    The Department of Defense previously provided this information to 
the Committee in December 2014. Please see the attached letter to the 
Committee Chairman and its attachment. See Appendix A.

    Senator Tillis. Thank you.
    Another release of four Afghanistan nationals, I believe 
back in December. Why did the administration not require 
continued detention of these four detainees?
    Mr. McKeon. Sir, these individuals had been, I believe, 
cleared for transfer, back in--approved for transfer in 2009 
by----
    Senator Tillis. Did they go through the Periodic Review----
    Mr. McKeon.--by the task force.
    Senator Tillis. Did they go----
    Mr. McKeon. No, they were already cleared--approved for 
transfer by the 2009 task force, sir.
    Senator Tillis. Another question I had is with respect to 
the process. The--I noted that the--a detainee is entitled to 
having counsel, which presumably means that the information 
that the Periodic Review Board uses to determine--or to make a 
determination is available to that counsel. Is that same 
information available to the public or to the Congress, on the 
Periodic Review cases that have gone through?
    Mr. McKeon. Sir, the--with the Periodic Review Board, the 
detainee has a right to a personal representative who is a 
military officer. He can employ private counsel. And if that 
person is given a clearance, we can share certain classified 
information. We have tried to have some measure of transparency 
with the PRB process in releasing information about the 
hearings on the Department Web site. We are not able to share 
everything that's available to the PRB, because some of the 
information is classified.
    Senator Tillis. Thank you.
    Thank you, Senator Reed.
    Senator Reed. Thank you very much.
    Senator King, please.
    Senator King. Thank you.
    Mr. Rasmussen, it seems to me the key question here is 
weighing the risk of individual recidivism versus what I would 
call a reputational risk, or the recruiting risk, of the 
facility itself. Could you elaborate on what the Director of 
National Intelligence--I mean, that's what's--that's what this 
is all about, it seems to me. Is it more dangerous for the 
National interest to keep Guantanamo open, because of its use 
as recruiting tool, or is there a greater risk of the people 
being released reengaging? Give me your thinking on that. Is 
that the question?
    Mr. Rasmussen. Sure. Happy to answer that, Senator King.
    Because the Director of National Intelligence does have a 
voice in the process to approve a transfer, he does look at, as 
I said earlier, all of the relevant information related to the 
detainee's specific background--background before going to 
Guantanamo, background while--during the course of detention at 
Guantanamo, and anything we know, as I said, about the 
environment into which he might be transferred.
    At the same time, though, as he--as I said earlier, he has 
that underlying analytic judgment that the Director of National 
Intelligence has made very--has been very clear about, that 
there is a cost, in terms of our National security, that we're 
bearing because of the continued operation of Guantanamo, in 
the context of recruitment and potential radicalization of 
future terrorist adversaries.
    So, I--so, the weighing process that he goes through looks 
at both factors. That does not mean, in all cases, he will look 
at detainees and say, ``Ah, operating--continuing to operating 
Guantanamo creates too big an obstacle for him to oppose a 
transfer.'' It is still the case that there are some detainees 
that he would consider too dangerous to return in a transfer, 
almost--unless there were extraordinary arrangements made for 
their monitoring and disposition overseas.
    So, that calculus that has been made is not a single 
cookie-cutter calculus that's made in every case, but it is 
informed by this underlying assessment, as I've said----
    Senator King. Well----
    Mr. Rasmussen.--about the continued----
    Senator King.--if this is the--one of the key questions--
and it sounds like that it is--I would appreciate it if you or 
some of the witnesses could supply to this committee data 
supporting evidence of this recruiting factor, just--rather 
than a reference to what al-Baghdadi said or something, but a 
real set of materials--written materials, the way it's being 
used. Because it seems to me that's one of the most important 
questions we have. And if we're going to decide to close the 
facility and--or if, collectively, the United States 
Government's going to decide to close the facility based upon 
that, we'd better know that it's real, and not just a perceived 
threat.
    [The information referred to follows:]

    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.

    Senator King. Mr. McKeon, is the administration 
contemplating a further executive order to close the facility, 
beyond what the current process is--how the current process 
operates?
    Mr. McKeon. I'm unaware of any contemplation of an 
additional executive order. As I said in my statement, Senator, 
we're working on the three lines of effort: transfers, the PRB 
process, and--I'm blanking out on the third one.
    Senator King. But, there's no further--you don't know of 
any other contemplation of additional executive--exercise of 
executive authority to simply close the facility.
    Mr. McKeon. I am not, sir. We are operating under the 
President's executive order from 2009.
    Senator King. The question that bothers me is, okay, if we 
decide it's been in the National interest to close it, there 
still are some people there that are very dangerous. Can we 
hold these people in the United States, under the Law of War? 
And the second question is, How does the Law of War analysis 
work if the war, which was the war in Afghanistan, is 
officially over? Does that undermine the legal analysis? In 
other words, we could bring some very bad guys here, put them 
in maximum security prisons, on the assumption that they're Law 
of War detainees, and then suddenly find that they're subject 
to habeas and we don't have enough evidence to convict them in 
a Federal court. In other words, that--you understand where I'm 
going with the legal question.
    Mr. McKeon. I do, sir. On your second question, the 
detainees are already subject to habeas, or they can file 
habeas petitions, in the D.C. Circuit, pursuant to Supreme 
Court rulings, so that wouldn't be a----
    Senator King. So, there's no difference between----
    Mr. McKeon.--that would not be a change.
    Senator King.--between Guantanamo and someplace in the 
United States, in that regard--in that legal regard.
    Mr. McKeon. That's correct.
    As to the question of the legal authority to continue to 
hold them, the--we are relying on the 2001 Authorization for 
Use of Military Force (AUMF), and it's informed by the Law of 
War. So, if we did reach a point where the 2001 AUMF is either 
repealed by the Congress or we've decided it was no longer 
sustainable, based on the situation in Afghanistan, then we 
would have an authority issue to wrestle with. There's no 
question about that.
    Senator King. Thank you, gentlemen. Thank you for your 
testimony.
    Thank you.
    Mr. Chairman, welcome back.
    Chairman McCain [presiding]. Thank you. The--your other 
members that were in attendance at the National Prayer Day 
Breakfast will be coming in, and that obviously is the reason 
for me being late.
    I want to thank the witnesses.
    Thank you, Senator Reed, for proceeding.
    And I'll withhold my questioning until Senator--Senator 
Sullivan.
    Senator Sullivan. Thank you, Mr. Chair.
    And thank you, gentlemen.
    Mr. Rasmussen, congratulations on your recent appointment.
    So, I wanted to follow up on Senator King's questions. You 
know, there's a lot of discussion here about how Guantanamo 
potentially weakens national security, that you made in your 
testimony. At the same time, I think we would all agree that 
allowing known terrorists back on the battlefield to engage our 
troops, our citizens, also weakens our National security. And I 
think that that is one of the big concerns, certainly of the--
this committee and Members of the Congress, and, I'm certain, 
also members of the administration.
    So, from a broad perspective, of the remaining GTMO 
detainees, how many are currently assessed to be high- or 
medium-risk?
    Mr. McKeon. Senator, I don't have those numbers at my 
fingertips. And if you're referring to the assessments that 
were done by JTF-GTMO, back in the last decade, my impression 
is, knowing the population of that which we've already 
transferred using those categories, I think we have transferred 
most of those who were low-risk, but I don't know the precise 
data. We'll have to get that to you, sir.
    [The information referred to follows:]

    [Deleted.]

    Senator Sullivan. But, I mean, of the current remaining 
detainees, we don't have a handle on what's--who's high- or 
medium-risk right now?
    Mr. McKeon. I don't have that at my fingertips. As we--both 
I and Nick Rasmussen explained, sir, when we bring forward a 
case for possible transfer, we look at the totality of the 
evidence, what the detainee had done on the battlefield, how 
they've behaved at Guantanamo, what their current--what our 
assessment is of their intentions. So, it's not just to look at 
the assessments that were done----
    Chairman McCain. Mr. Secretary, you're not answering the 
question. If you don't have the information, then submit it. nt 
to this committee to know who's low-risk, medium-risk, and 
high-risk. I would have expected you to come to this hearing 
with that information.
    Mr. McKeon. Yes, Mr. Chairman.
    I should add that these risk levels, in terms of who's in 
what category, is classified. So, we'd be happy to have that 
conversation with you in a classified session, as well.
    I just don't have those numbers at my fingertips. I think 
it's safe to say many of them are in the medium- or high-risk 
category.
    Senator Sullivan. Well, it would be very important for us 
to know that as we move forward.
    Mr. McKeon. Yes, sir.
    Senator Sullivan. Let me just--Senator Tillis touched on 
this issue of the notification of Congress. And I think a lot 
of people were very disturbed by that, just by reading it in 
the paper. Can you, again--and if you don't have it here, 
perhaps with the Attorney General's help, provide a detailed--
detailed legal reasoning of why a very simple statutory 
requirement for notification of Congress on the release of the 
Taliban five was not undertaken?
    [The information referred to follows:]

    [Deleted.]

    Senator Sullivan. Because I think one of the things that is 
troubling is, there's a lack of trust, here. There's a lack of 
trust on the numbers, there's not certainty on what the end 
game is. And when a simple request--it's not a request, it's 
the law. And one of the things that I'm--been concerned, more 
broadly with the administration, is, they've used certain 
statutes as advisory. Maybe they need to do them, maybe they 
don't. This was a clear directive, from the Congress, in the 
law, that this administration violated. And, as far as I can 
tell, there's been no good explanation. I read about them in 
the press, they seem to change. It would be very important to 
get a definitive explanation from this administration on why 
they violated that statute. To me, it seems like a clear 
violation of that statute. Can we get that?
    Mr. McKeon. Certainly. And you may already have it, sir. I 
believe the Government Accountability Office (GAO) did a review 
on the legal issue, in the Department. And probably the 
Department of Justice provided a detailed explanation of our 
position. And I think we have provided it to the committee, 
but, if we have not, we will submit it.
    [The information referred to follows:]

    The Department of Defense previously provided this information to 
the Committee in December 2014. Please see the attached letter to the 
Committee Chairman and its attachment. See Appendix A.

    Senator Sullivan. And one other thing. I know that--I 
understand there was an Memorandum of Understanding (MOU) 
between--with--regarding the Taliban five, that they have a--my 
understanding is, a 1-year restriction with regard to their 
activities and movements. After a year, are they free to go and 
do whatever they want, return back to Afghanistan? I think, 
again, that's a concern, not only for this committee, but for 
the American people.
    Mr. McKeon. You're correct about the 1-year matter, sir. 
We--the agreement between our two governments is classified, 
and we've briefed it to your staff and, I think, some of the 
members, in closed session. And I'd want to get into that in a 
closed session, about what happens after 1 year.
    Senator Sullivan. Okay.
    Thank you, Mr. Chairman.
    Chairman McCain. Senator Donnelly.
    Senator Donnelly. Thank you, Mr. Chairman.
    A recent Department of Justice report noted there are a 
number of statutory provisions that should render Guantanamo 
detainees relocated to the U.S. inadmissible under immigration 
laws, but one of the most difficult scenarios hinted at in the 
report involves what happens if a judge orders the release of a 
detainee because the Laws of War no longer permit their 
detention. In that case, if a detainee cannot be repatriated to 
their home country or a third country, the U.S. could face the 
need to keep that detainee in the U.S. So, where does that 
individual go?
    Mr. McKeon. Sir, if we come to that position, which I think 
we're some ways away from that day, we will have--it's a very 
good question, and we will have to plan for that possibility. 
We don't expect that would happen if we brought the detainees 
here, but----
    Senator Donnelly. But, it can. I mean, it's--we don't 
expect it, but we can. So, what do we do with that person? It 
has been suggested, I've heard some say, ``Well, an immigration 
detention center.'' You know, I think the people of the country 
want a better answer than that when you're talking about the 
people we're dealing with.
    Mr. McKeon. If we were to bring them to the United States, 
we would make sure that we had some continuing authority to 
keep them. I don't think we would roll the dice on losing the 
authority to detain them.
    Senator Donnelly. And then, additionally, what's your 
assessment of the risks involved in this situation? I mean, 
that's, I think--you know, as we look through this whole 
process, this is one of those conundrums that we have to have 
an answer to. What's your assessment of the risks on that, sir?
    Mr. McKeon. I'm not an immigration lawyer, sir. I'm 
probably not qualified to give you an answer on that. I do 
know, and I believe the Department of Justice report speaks in 
some--and the Homeland Security Department analyzed all these 
issues in some detail. We are, of course, currently barred from 
bringing the detainees to the United States.
    Senator Donnelly. No, I understand. But, if they do----
    Mr. McKeon. So, we are not----
    Senator Donnelly.--come here--that's--I was on a trip to 
Guantanamo recently, and this is one of the subjects that we 
talked about and said, you know, I think before you get all the 
answers on this, you need an answer on this, where, if they're 
in the U.S. and this happens, what do you do with the person at 
that point?
    Mr. McKeon. Yeah, I understand. And if--if and when we get 
to that point, where we propose an option to bring them to the 
United States, we will have an answer.
    Senator Donnelly. I think we need an answer at that point, 
thank you.
    In terms of--you know, other than the Taliban-five piece, 
how many 30-day congressional notifications meeting the 
requirements of the FY-14 NDAA has been sent to the committee 
in the past year?
    Mr. McKeon. I don't know the number. All other cases, the 
30-day notification was provided.
    Senator Donnelly. Okay.
    And then, you know, there's some concern that the detainees 
that are being transferred, it's on an assessment from more 
than 4 years ago by the review--the Guantanamo Review Task 
Force. As we look at this, the Periodic Review Board process 
was created, in part, to regularly update this. Do you know 
what has caused the slowness of this? Is that--do you find that 
to be true? And do you know what has caused the slowness of 
this?
    Mr. McKeon. Sir, I want to separate two things, here, sir.
    Senator Donnelly. Okay.
    Mr. McKeon. If somebody has already been cleared by the 
2009 task force, and we find a place to which we can transfer 
them, and a package is brought to the Secretary to make the 
determination, we have an updated assessment on the individual. 
We're not relying solely on the 2009 task force work.
    The PRB is looking at people who were not previously 
cleared, taking another look at whether we should continue to 
hold them under Law of War detention or they can be approved 
for transfer. We had--it took some time to stand up the PRB 
process. And it's gone a little bit slowly, but we're trying to 
pick up the pace.
    Senator Donnelly. Okay.
    And, you know, just to--as I wrap, here--from that trip, 
which was a little bit ago--I mean, that's--the question that I 
asked is--the question that has stuck with me is, What are we 
going to do with this person? Would we--we hope for the best, 
but we plan for the worst. And so, I think that's something 
that has to be answered.
    And, by the way, Mr. Secretary, I think you showed great 
wisdom in your choice of colleges when you were younger, as 
well.
    Thank you, Mr. Chairman.
    Chairman McCain. Senator Graham.
    Senator Graham. Thank you.
    Thank you, all three, for dealing with what I think is a 
very difficult issue, issue of great national security 
importance. And so--I know you've got a tough portfolio to deal 
with, so I want to go into the questioning with that 
understanding.
    To Senator Donnelly, I had this very conversation with 
President Obama probably 3 years ago. I was supporting 
transferring the prisoners from Guantanamo Bay back to 
Illinois, in a maximum security setting controlled by the 
military. And we worked through what would happen. All these 
people have had habeas hearings, are entitled to that habeas 
hearing. No one's at Guantanamo Bay today without a Federal 
judge finding that the Government's evidence is sufficient to 
hold them as an enemy combatant. So, if you transfer them back 
to the United States, do you create new legal rights?
    We had a Law of War statute that would govern that to make 
sure they just wouldn't walk out the door. And we actually went 
through that process. But, the problem is, you've got to admit 
that we're at war. You've got to tell our friends on the left 
that these are not just common criminals, and they will be 
governed by the Law of War, not common criminal concepts. So, 
I--it's unfortunate we could not close that discussion, because 
I think it would have been better for all of us.
    My goal is to keep people in jail that represent a national 
security threat to the United States. Common sense would tell 
us that, if you're still in Guantanamo Bay after all of these 
years, you're probably a high risk threat----
    [A disturbance in the audience.]
    Senator Graham. I think he may get his wish.
    I'm a military lawyer, served with this man behind you. I 
really want to conduct the war within the values of our 
country. I want to be tough on the enemy, but also follow 
principles that have guided us well, like the Geneva Convention 
and treating people under the Law of War consistent with the 
requirements of the Law of War.
    But, would you agree with me that anybody left in 
Guantanamo Bay today is probably a high-risk threat--that we 
wouldn't have kept them that long? Just common sense tells you, 
if you're still in jail after all these years, you've had 
numerous review boards, that you're probably dangerous, in the 
eyes of the people who say you still should be there.
    Mr. McKeon. I would agree that all of them in--pose some 
risk. There are, however, many----
    Senator Graham. No, no, I'm not talking about some risk, 
I'm talking about obvious common sense, here.
    Mr. McKeon. Well, but I would say, Senator, several of 
these people remaining were cleared, approved for transfer 6 
years ago. We just have not found a place to send them.
    Senator Graham. Well, is that the--what percentage of the 
population falls in that category?
    Mr. McKeon. It's around----
    Senator Graham. Previously cleared.
    Mr. McKeon. It's around 50.
    Senator Graham. Okay, so what percentage--they were cleared 
6 years ago.
    Mr. McKeon. There's----
    Senator Graham. We're holding 50 people----
    Mr. McKeon. It's 54----
    Senator Graham.--because we can't find a place to put them.
    Mr. McKeon. It's 54, sir.
    Senator Graham. Fifty-four out of how many?
    Mr. McKeon. 122 remain.
    Senator Graham. Okay. So, the rest of them, would you agree 
that they are high-risk?
    Mr. McKeon. Well, several of them are under prosecution, so 
definitely in those cases----
    Senator Graham. Okay, so take them off the table. Right?
    Mr. McKeon. And the remainder are--have previously been 
determined to be held, and should be held, under Law of War 
detention, and we didn't have a prosecution option.
    Senator Graham. Right.
    Mr. McKeon. But, those are going through the PRB process--
--
    Senator Graham. Right.
    Mr. McKeon.--to take another look.
    Senator Graham. Okay. So, we've got 50 people, we've got no 
place to send them. And the rest of them are either going to be 
prosecuted or represent a high risk to the country.
    Mr. McKeon. Well, as I said, we're taking a new look, 
through the PRB process at the----
    Senator Graham. The previous PRBs----
    Mr. McKeon.--group that was in Law of War----
    Senator Graham.--concluded they had a high risk, right? 
They wouldn't still be there.
    Mr. McKeon. The----
    Senator Graham. So, the only thing is, are you going to 
create a new review process that's politically motivated to 
find a reason to let these guys out, or are you going to go 
with the past judgments? Because I don't think these guys are 
getting any better.
    Do you agree that, with the Obama administration, that 
we're at the end of hostilities and that justified the release 
of the Taliban five?
    Mr. McKeon. We're not at the end of hostilities in 
Afghanistan.
    Senator Graham. Well, they said that the reason we 
transferred the Taliban five is because you traditionally swap 
prisoners when hostilities are over. Therefore, we get our guy 
back, because the war is basically over, and we release five of 
the commanders of the Taliban.
    I agree with you, the concept that the end of hostilities 
justifies the transfers of these five is ridiculous. So, I 
don't know why the administration would say that. Do you?
    Mr. McKeon. Well, I said--I agree with you, sir, that 
hostilities are not over. I didn't----
    Senator Graham. Or--great.
    Mr. McKeon.--agree with your other----
    Senator Graham. So, let's just----
    Mr. McKeon.--assertion.
    Senator Graham. Okay, let's go forward as a committee. No 
one should be transferred because of the concept of end of 
hostilities.
    Second, if you have any deficiency in legal authority to 
hold these people, would you please inform the Congress of what 
you need that you don't have? And I'd bet you, in a bipartisan 
fashion, we can provide it to you.
    Mr. McKeon. Yes.
    Senator Graham. Do you feel like you have a deficiency 
today?
    Mr. McKeon. Not today.
    Senator Graham. Okay. Do you feel like you will have a 
deficiency in the near future?
    Mr. McKeon. In Afghanistan, not in the near future. In a 
couple of years, we may.
    Senator Graham. Well, the couple of years is in the near 
future. So, I challenge----
    Mr. McKeon. Oh.
    Senator Graham.--you to send to us legislation that would 
deal with a problem that's 2 years away, because I finally want 
to get ahead of the war on terror and not always play catchup.
    Thank you very much for your service.
    Chairman McCain. Senator Heinrich.
    Senator Heinrich. Thank you, Chairman.
    And I actually want to return to this point, return to the 
point that I think not only Senator Graham made, but Senator 
Donnelly made.
    There are some of these folks, who will never be 
transferred, never be released, that are clearly a real risk. 
And, at some point, if we're going to close Guantanamo, we need 
to do something with them. And so, I would suggest to you that, 
if you don't have adequate statutory authority to ensure their 
detention, should they be transferred to some sort of a high-
security facility in the continental United States, I would 
suggest that you spell out what kind of authority you need and 
ask this body for that authority. Because, at some point, we're 
going to have to deal with that situation.
    I want to return to the statistics quickly, the data, and 
make sure I understand those correctly. I have heard 
repeatedly, again and again, from not only colleagues, but in 
the press, of 30 percent, 33 percent recidivism. I want to make 
sure I understand and that you're very clear about the data. If 
I understand your testimony, that, since the interagency review 
process was put in place, that, since that time, the recidivism 
data suggests we're--you've reduced that from 33 percent in the 
previous administration to now 6.8 percent, with another 1.1 
percent potentially suspected. Is that an accurate trend? Is 
that what your testimony speaks to?
    Mr. McKeon. Sir, I'll let Mr. Rasmussen speak to this, 
because the data is owned by the intelligence community.
    Senator Heinrich. Mr. Rasmussen.
    Mr. Rasmussen. Senator, I think the 30-percent number comes 
from the two numbers both Brian and I cited in our prepared 
remarks, and that is the assessment of the community that, of 
the 620 overall detainees, regardless of when, who have been 
transferred from Guantanamo, a little over 17 percent of them 
have been confirmed by the intelligence community of having 
reengaged in terrorist or insurgent activities. So, that's 17 
percent confirmed.
    Senator Heinrich. Right.
    Mr. Rasmussen. Another 12 percent, a little over 12 
percent----
    Senator Heinrich. Suspected.
    Mr. Rasmussen.--fall into the ``suspected of reengagement'' 
category that I mentioned earlier. So, in aggregate----
    Senator Heinrich. And----
    Mr. Rasmussen.--that would be 30 percent of the total 
population----
    Senator Heinrich. Okay.
    Mr. Rasmussen.--of folks who have----
    Senator Heinrich. And if you just look at----
    Mr. Rasmussen.--became----
    Senator Heinrich.--post-interagency review----
    Mr. Rasmussen. If you break out just the number of 
detainees who have been transferred since the 2009 interagency 
process in which the DNI, the Director of National 
Intelligence, has played a role, that number is 6.8 percent 
confirmed, with 1.1 percent, or one detainee, suspected. And 
again, that's an ongoing number, and we owe you and the rest of 
the Congress a March update on that as a--in our next report.
    Senator Heinrich. We very much look forward to that. 
Obviously, any level of recidivism is unacceptable, but that is 
immense progress.
    I want to touch on the cost of this facility again, the 
fiscal cost. We have spent about $5 billion on this facility 
since it opened in 2002; on average, about $493 million each 
year for the last 5 years. And in 2014, the American taxpayer 
spent more than 3 million per Guantanamo detainee. And compare 
that with about $78,000 it costs to house a prisoner at 
Colorado supermax prison. So, I would ask either of you, given 
the austere budget environment we are in today--and I hope we 
do something on this committee about that--and the myriad of 
very real threats, are we spending those tax dollars in a way 
that gives us the maximum security return for our investment?
    And, Mr. Rasmussen, I would ask your opinion on that, as 
well.
    Mr. Rasmussen. I think I'm probably better deferring to my 
Defense Department colleagues on that, because it--again, in 
terms of operation of the facility and the costs associated, 
that falls squarely in DOD's budget lane.
    Senator Heinrich. I mean, it goes back to the relative 
risks that we were talking about before, that Senator King 
brought up.
    Mr. McKeon. Senator, the numbers sound right. The number I 
have for fiscal '14 is about $400 million on Guantanamo. And 
the number I've always heard about the cost of one person at 
supermax is around 80,000.
    No, the President has taken the view that this drains our 
resources and is a--we could secure these prisoners for much 
less. We're not focused primarily on the cost, we're focused 
more on the National security view that it's a risk to our 
security to keep Guantanamo open, but that--the cost issue is 
accurate.
    Senator Heinrich. Okay.
    Thank you.
    Chairman McCain. Senator Cotton.
    Senator Cotton. Mr. McKeon, in early December, the members 
of the Senate Intelligence Community sent Secretary Hagel a 
classified letter about the Guantanamo five. I can't discuss 
the contents of that letter here, but it's been almost 2 months 
now. We would like to receive a response to that letter before 
proceeding with Mr. Carter's confirmation. Can you talk to the 
Secretary and see about getting us a prompt response to that 
letter?
    Mr. McKeon. Sir, certainly. And I know the answer should be 
coming shortly. For reasons that are not clear to me, although 
the letter was dated in early December, I think we only 
received it in the Department about 3 and a half weeks ago.
    Senator Cotton. Okay.
    Mr. Rasmussen, you said, in your opening statement, that 
anti-American incitement or statements does not necessarily 
equal recidivism or reengagement. Does it violate the 
memorandum of understandings, however, that we have with the 
receiving countries?
    Mr. Rasmussen. I can't speak, in this session, about the 
specific understandings we have with our--with the partners 
with whom--the countries with whom we have worked to transfer 
detainees. But, one of the key features of any of those 
agreements is, of course, monitoring ongoing activity by the 
detainees, which covers a wide range of factors and would 
certainly include, you know, all manner of their activities. My 
comments in my prepared statement just spoke to kind of a 
definitional threshold for what would constitute reengagement, 
for the purposes of an--of a threat assessment.
    Senator Cotton. We consider anti-American incitement by 
Islamic terrorists pretty serious business, don't we?
    Mr. Rasmussen. Absolutely. And I----
    Senator Cotton. Anwar al-Awlaki would say that we consider 
it very serious business, wouldn't he?
    Mr. Rasmussen. Absolutely.
    Senator Cotton. Mr. McKeon, you said, earlier to Senator 
Graham, that the United States--the administration is barred 
from bringing Guantanamo detainees to the United States 
mainland. It's also barred from releasing detainees without 30 
days' congressional notification. Why should the American 
people believe that that obligation will be any more respected 
than the prior notification obligation was last year?
    Mr. McKeon. Sir, the lack of notification in the Bergdahl 
case has not been repeated. I don't expect it to be repeated. 
And----
    Senator Cotton. But, my point is that all laws are created 
equal. There was a law that required prior notification. It was 
not followed. There is a law that prohibits detainees from 
coming to Guantanamo Bay. This administration has a habit of 
surprising the American people on national security matters. 
What assurance can we receive that there will not be a 
Guantanamo detainee on our shores tomorrow morning?
    Mr. McKeon. Senator, what I can say is, as to the 30-day-
notice issue, our lawyers believed we had a valid legal reason 
for the action we took. And we'll get you that explanation.

    The Department of Defense previously provided this information to 
the Committee in December 2014. Please see the attached letter to the 
Committee Chairman and its attachment. See Appendix A.

    Mr. McKeon. On the issue that you're asking, we are focused 
on transfers in the PRB process. I'm not aware of any 
conversations not to follow the current statutory bar.
    Senator Cotton. Okay. Now I want to explore the so-called 
risk balance between recidivism of released terrorists and the 
propaganda value that terrorists get from Guantanamo Bay. How 
many recidivists are there at Guantanamo Bay right now?
    Mr. McKeon. I'm not sure I follow the question. We think 
we--we don't have any----
    Senator Cotton. How many detainees at Guantanamo Bay are 
engaging in terrorism or anti-American excitement?
    Mr. McKeon. They're pretty locked down.
    Senator Cotton. There are none----
    Mr. McKeon. I don't think there----
    Senator Cotton.--because they're detained, because they 
only engage in that kind of recidivism overseas.
    Now, let's look at the propaganda value. How many detainees 
were at Guantanamo Bay on September 11, 2001?
    Mr. McKeon. Zero.
    Senator Cotton. How many were there in October 2000, when 
al-Qaeda bombed the USS Cole?
    Mr. McKeon. Zero.
    Senator Cotton. What about in 1998, when they bombed our 
embassies?
    Mr. McKeon. The facility was not opened before 2002, 
Senator.
    Senator Cotton. 1993 and the first World Trade Center 
bombing?
    Mr. McKeon. Same answer.
    Senator Cotton. 1979, when Iran took over our embassy? 
1983, when Hezbollah bombed our embassy and our marine barracks 
in Lebanon? The answer is zero.
    Mr. McKeon. Correct.
    Senator Cotton. Islamic terrorists don't need an excuse to 
attack the United States. They don't attack us for what they 
do. They attack us for who we are. It is not a security 
decision. It is a political decision based on a promise the 
President made on his campaign. To say that it is a security 
decision based on propaganda value that our enemies get from it 
is a pretext to justify a political decision.
    In my opinion, the only problem with Guantanamo Bay is, 
there are too many empty beds and cells there right now. We 
should be sending more terrorists there for further 
interrogation to keep this country safe. As far as I'm 
concerned, every last one of them can rot in hell. But, as long 
as they don't do that, then they can rot in Guantanamo Bay.
    Chairman McCain. Senator Manchin.
    Senator Manchin. Thank you, Mr. Chairman.
    And, on that happy note----
    [Laughter.]
    Senator Manchin.--let's--I had, really, the same feeling 
that Senator Cotton had, for a lot, a lot of years. Then I went 
to Guantanamo with some other Senators. And I came back 
changed. And I asked my Chairman, here, and he gave me some 
insight that he had. And I know everybody's trying to form 
their own direction and their own thought process on this. I 
can only tell you what I saw, I would not ask--if your child 
was in the military and a guard in that detail, I would not ask 
anybody's children to be in that position, guarding in that 
type of a condition there, because I'm seeing the abuse that 
the prisoners have on our guards. I couldn't believe it. And 
I'd like to see a few of them in a United States hardened 
prison, to see if they changed their attitude just a little 
bit. I know we could do a little different job on them here 
than they're doing over there.
    So, all I've heard about propaganda, I have to agree with 
Senator Cotton on that--I don't think they need an excuse to 
attack America. That's--to me, that doesn't hold water. What 
does is $3 million per detainee and $80,000 to the hardened 
prisons we have. We have nobody escaping, we don't have any 
ones who have escaped from America.
    I'm understanding--and you all maybe can help me with this, 
because I'm--I have to from my own opinion of where I would be 
on this if we had a vote. Do you close it? Do you keep it? What 
do you do with the prisoners? What do you do with the 
detainees? What do you do with the ones who are held for crimes 
and trials and things of this sort? I know there's a lot of 
legal things that are making--formulating these decisions. But, 
there's got to be a way to do it to where you don't have them 
all in a cluster, to where they can scheme and talk and plan 
and plot and then go right back into the fight.
    So, have you all looked at--could we house them here? Could 
we imprison them here? And do it and feel secured and safe? 
Because a lot of West Virginians and a lot of Americans think, 
``Oh, out of sight, out of mind. Keep them on the island in 
prison, that's fine.'' But, what I saw there, them not--it's 
not an atmosphere that our guards should be in, or our military 
people should--with their talents, should be used and wasted 
along those lines, is what I saw.
    So, if someone can comment to that. Do we--could we do it 
here? Have you spoken in detail--I'm sorry, I was at other 
committee meetings--can it be done safely? And what do you do 
with the detainees? Because right now, we're just putting them 
back over in that part of the world, we're paying somebody else 
to take care them. And a lot of them are going back into the 
fight. I think that's the problem. If one goes back into the 
fight, that's one too many if we could have kept them off the 
battlefield, endangering any of our soldiers or anybody else 
over there.
    So, any comment on that?
    [Disturbance in the audience.]
    Senator Manchin. We're going to give you your time to 
speak, too, honey. We're just--I've got to get to this first. 
If you can----
    Admiral Myers or--I'm sorry----
    Mr. McKeon. Senator----
    Senator Manchin.--McKeon?
    Mr. McKeon. Senator, I'm happy to respond, first on the 
Guard force, as I've seen them in action, as well, and I just--
--
    Senator Manchin. I just want to say that I think their 
attack on this country, they lost their rights, as far as their 
attacking this country. So, with that being said, I would--
that's how I feel about it.
    Mr. McKeon.--the men and women of the Guard force, who, as 
you know, many of them are National Guard MP specialists, do a 
terrific job under very difficult and challenging----
    Senator Manchin. Horrible conditions.
    Mr. McKeon.--conditions.
    On the issue of ``could we do it in the United States,'' 
yes, we could. In the first term--Senator Graham made some 
reference to it--there was an effort underway to explore the 
possibility of the Government purchasing a State prison in 
Illinois that was underutilized, and using one part of it for 
the Bureau of Prisons and another part for detainees that the 
United States military would hold. We would still have military 
guards, because we are holding them under Law of War 
detention----
    Senator Manchin. That's the----
    Mr. McKeon.--authority, not----
    Senator Manchin. That's the detainees.
    Mr. McKeon. Yes, sir. So, we would still hold them under 
some kind of military guard, were we to bring them in the 
United States, unless we were able to prosecute all of them in 
Federal court and put them into the Bureau of Prisons system. 
But, there are a number of detainees that we've already 
determined we will not be able--very unlikely we will be able 
to prosecute in Federal court.
    Senator Manchin. How about the ones that are waiting for--
or that we have charges against, waiting for prosecution? Could 
they be dispersed in the prison systems that we have, our 
maximum security prison systems?
    Mr. McKeon. Well, sir, the ones that are currently facing 
charges and trial are in the Office of Military Commission 
system, which we have a courtroom set up there in----
    Senator Manchin. I saw it.
    Mr. McKeon.--Guantanamo that you----
    Senator Manchin. I saw that.
    Mr. McKeon.--when you were there. So, it would be the same 
situation, in the sense that, if they were still on trial and 
that's----
    Senator Manchin. But, it's been 13 years, the Guantanamo 
five haven't been.
    Mr. McKeon. The 9/11 trial will probably go on for quite 
some time. If they are convicted and sentenced, they would 
still be in the military system.
    But, the short answer is yes, we could do it here. It would 
still be a military guard system. They would not be in the 
Bureau of Prisons.
    Senator Manchin. My time has expired. Thank you very much.
    Chairman McCain. Senator Ayotte.
    Senator Ayotte. Thank you, Chairman.
    My question would be, yes or no, has any suspected or 
confirmed detainee that's been released from Guantanamo been 
involved in an attack that has killed a United States, NATO, or 
coalition servicemember?
    Mr. McKeon. Senator, I don't know the data by heart of all 
the--those who have reengaged, of--there are over 100. We'll 
have to get you that answer.
    [The information referred to follows:]

    The Department of Defense defers to the Office of the Director of 
National Intelligence and the National Counterterrorism Center 
regarding information about former detainees who were allegedly 
involved in attacks that resulted in the deaths of U.S. citizens or 
members of U.S., coalition, or allied forces.

    Senator Ayotte. Well, I think that's very important for 
people to understand. If any of these detainees have been--are 
suspected or confirmed for having been involved in killing us, 
our NATO allies, or a coalition servicemember, I--I'm actually 
surprised you don't know the answer to that.
    One thing that has been reported. I'd--it was reported in 
the Washington Post that Abu Sufian bin Qumu, who is alleged to 
have been involved in the attack on our consulate in Benghazi, 
former Guantanamo detainee. But, I'd like to get your answer to 
that.
    What I would like to understand is the 6.8 percent that the 
administration is touting that they're doing so well. Those are 
only the cases of confirmed detainees that have reengaged. Does 
that number include the Taliban-five member that has now been 
reported to have engaged in additional activity that would be 
reengagement for terrorism?
    Mr. Rasmussen. The number you're referring to, Senator, the 
6.8-percent number, predates any consideration of the 
reengagement status of the Taliban members you're talking 
about. As I mentioned, the next report due out on that, 
updating the numbers on this, is due out in early March. We 
should be in a position then to assess, as an intelligence 
matter, whether reengagement has, in fact, taken place.
    Senator Ayotte. Well--and, of course, on May 31st, the 
administration transferred--of the five that they transferred, 
they transferred Mohammed Fazul, a member of the Taliban five. 
Fazul commanded main force opposing the U.S.-backed Northern 
Alliance in 2001. He served as chief of staff of the army under 
the Taliban and is accused of war crimes. One of the things 
that shocked me most about it is that one of the Taliban 
commanders on the ground in Helmand Province said it's the best 
news he had heard in 12 years. He said, ``Fazul's return is 
like pouring 10,000 Taliban fighters into the battle on the 
side of the jihad. Now the Taliban have the right lion to lead 
them in the final moment before victory in Afghanistan.''
    So, I think we--I think the American people deserve to know 
whether any of the Taliban five have reengaged. I'm glad that, 
as I understand you've confirmed today, that there are no 
conditions on them returning, after the year, to Afghanistan. 
In other words, there aren't additional conditions on their 
release, unless you're telling me that there are.
    And that's my question I have for the people who have been 
released in the last months by the administration. And I would 
just like to ask you, with some of them:
    So, on November 5th of 2014, one of the detainees was 
transferred to Kuwait. What we know about him publicly that I 
can speak about is that he was arrested in 2002 for being a 
member of al-Qaeda, accused of participating in several 
militant trainings, and of being an affiliate of Abu Qatada, 
who was the most infamous jihadi recruiter in the U.K. He was a 
member of al-Qaeda, a recruiter, and a courier. Were there any 
conditions put on this individual's release? In other words, 
was he transferred to Kuwait to another prison, or was he let 
go?
    Mr. McKeon. Senator, there are security assurances provided 
with every transfer. I can't get into the specifics of those in 
this setting. We could do it with you in closed session.
    Senator Ayotte. I think the American people have a right to 
know----
    Chairman McCain. Why is it----
    Senator Ayotte.--whether someone----
    Chairman McCain. Why is this information classified, Mr. 
Secretary? Why shouldn't the American people know the 
conditions under which people are released?
    Senator Ayotte. Within our own criminal justice system, if 
we release someone from one facility to another, and we were 
releasing someone who was accused out in the public, why can't 
we know if they're being held again or if they're out where 
they can pose risks to other individuals?
    And I'm going to go--I won't go--my time will go through on 
all this, but if I went through, again in November, four 
transfers to Georgia, and just some of the background, 
publicly, of these individuals that have been transferred, one 
was assessed as a ``likely pose threat to the United States,'' 
one was assessed to be--have involved in IED attacks against 
the U.S. and coalition forces, one is believed to have been 
affiliated with al-Qaeda at a high level, and, in fact, one is 
described, by the Defense Intelligence Agency (DIA) previously, 
as among the top 52 enemy combatants at JTF-GTMO who posed the 
most significant threat of reengagement in acts of terrorism if 
released.
    And I could go on and on about each of the backgrounds of 
the individuals that you've just released since November. And, 
in each of them, I would like to know, were they transferred to 
other jails, where they can't get back out, or were they just 
transferred to their families so that they can reengage in 
terrorism? I think that we deserve to know, from the 
administration when they release someone, are they just 
releasing them back, where it makes it very easy for them to 
reengage in terrorism activity, or are they putting them in 
another prison? Because the public reports about each of these 
individuals have been that they've been released, not to other 
prisons, but to their families.
    Mr. McKeon. Senator, on your question and the Chairman's 
question, many of the agreements that we have with foreign 
governments are classified. So, that's the short answer, sir, 
on why we can't get into details in this session, although we 
can certainly brief you on----
    Senator Ayotte. Well----
    Mr. McKeon. They are somewhere in between open release and 
a prison. The kind of assurances that we generally get are 
travel restrictions, some kind of monitoring, information-
sharing from the government on what they are seeing, and 
monitoring the detainees themselves.
    In terms of the five transferred to Qatar, what I can say 
is, none of them have returned to the battlefield, they are all 
still in Qatar, they're under a travel restriction. And what I 
said about--I think it may have been before you came in, 
Senator. After 1 year--we have said publicly that the 
restrictions are in place for 1 year. After--what happens after 
1 year, we'd like to talk to you about in a classified setting.
    Senator Ayotte. So--I know my time is up, but I do not 
understand why the American people can't be told a basic 
question, when you're transferring someone who's been 
previously designated as one of the top enemy combatants, who 
was posing risk to the United States of America, members of al-
Qaeda, when they're being transferred, how do you assure the 
American people, if they're not be incarcerated again, that 
they won't reengage? And I think that's basic information that 
the American people deserve to know.
    Thank you.
    Chairman McCain. Well, Senator, since we are going to mark 
up legislation on this issue next week, declassification of 
that information, I think, could be a part of that legislation. 
The American people need to know the conditions under which 
avowed enemies of the United States of America are--the 
conditions and restraints that may or may not be placed on 
them.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chairman.
    And, like you, I agree, the American people knowing more is 
a helpful thing.
    This is a balancing-act question. I take seriously the 
recidivism danger. And I'm going to get to that in a minute. 
But, I think to say that the concern about the propaganda value 
of Guantanamo is just a political argument that the President 
has cooked up ignores an awful lot of facts and an awful lot of 
opinions by very talented national security individuals. A CIA 
Open Source Center study in January--released in January, says 
that there have been at least 30 occasions since 2010 in which 
al-Qaeda and affiliates have referred to GTMO as justification 
for recruitment and violent jihad. DNI Clapper sent us a note, 
to the Intelligence Committee, November 2013, arguing that 
closing GTMO would, quote, ``deny al-Qaeda leaders of the 
ability to use the alleged ongoing mistreatment of detainees to 
further their global jihadist narrative.'' And he cited the al-
Qaeda magazine's Inspire promoting the Boston bombing and 
highlighting the ongoing detention of prisoners at GTMO as a 
reason to engage in jihad. Forty-two former generals and 
admirals signed a letter, on January 29 to this committee, 
stating that the abuses that occurred at Guantanamo have made 
the facility a symbol to the world of the United States that is 
unconstrained by constitutional values.
    It strikes me that the propaganda value of Guantanamo is 
not something that the President cooked up out of thin air, 
it's something that our security professionals are telling us. 
And they're telling us loud and clear. So, we have to balance a 
recidivism risk against that propaganda value.
    On recidivism, let me ask you this. Federal courts have 
convicted 556 people on terrorism or terrorism-related charges 
from September 2001 to December of 2013. Forty-four of those 
cases were tried in my State. Has anyone convicted of a 
terrorism charge in a Federal court in the United States ever 
escaped?
    Mr. McKeon. Sir, I'm not the expert on that, but I do 
believe nobody ever escapes from supermax prisons.
    Senator Kaine. Let me submit that to the question. If we're 
concerned about recidivism, I would like to know, for the 
record, whether anyone convicted--of the 556 terrorism 
convictions since 9/11 that have been done in the Federal court 
system of the United States, has anyone ever escaped? I'll 
submit that one for the record.
    [The information referred to follows:]

    Although that is a question best answered by the Justice 
Department, in our interactions with the Justice Department, we have 
been informed several times that no one convicted of terrorism charges 
since 9/11 has ever escaped from Bureau of Prisons maximum security 
facilities.

    Senator Kaine. Let me ask another question. There's been--
--
    Mr. McKeon. Senator Kaine, I'm told by somebody with more 
knowledge, the answer is no.
    Senator Kaine. Okay. But, I want it for the record, because 
I want it answered in writing, and I want all committee members 
to have it.
    With respect to the Taliban five, we were briefed, in a 
classified setting, about some information. I then saw this 
information in public, stated by the Secretary of Defense in 
newspapers. He was quoted. But, I want to ask this question for 
the record. Was there any evidence that any member of the 
Taliban five had ever been engaged in violent activity against 
the United States or any U.S. personnel when they were 
imprisoned at Guantanamo?
    Secretary Hagel has said that there is no--do you know, 
Secretary McKeon?
    Mr. McKeon. Not while they were at Guantanamo. No, sir.
    Senator Kaine. No, prior to their imprisonment at 
Guantanamo, when they were in prison, was their any evidence 
that any of the Taliban five had been engaged in any activity 
or planning to target U.S. or U.S. personnel?
    Mr. McKeon. Sir, I'm told that information on this--
classified, and we'd have to talk to you about it in that 
setting or provide you a classified answer.
    Senator Kaine. Well, I--I'm upset about this, for the same 
reason the Chairman said. We need information. I was told this 
in a setting that was classified, and then I saw Secretary 
Hagel talking about it publicly. So, I'm assuming him talking 
about it publicly means it's no longer classified. But, I want 
to submit that question for the record.
    Mr. McKeon. Let me double check that for you, sir. I'm not 
aware of the quotation from the Secretary.
    [The information referred to follows:]

    [Deleted.]

    Senator Kaine. Finally, with--an important point for all of 
us--we're all concerned about the ongoing viability of the 2001 
AUMF, and there's efforts and dialogue with the White House to 
determine whether that should be revised in some way. And I 
just wanted to underline--I think testimony was given earlier 
that the continued legal ability to detain at Guantanamo does 
hinge upon the continuing viability of that AUMF. And so, if it 
were to--for example, to sunset or be repealed, the legal 
status of the Guantanamo detainees would be at least 
questionable. Am I correct about that?
    Mr. McKeon. That's correct.
    Senator Kaine. So, in terms of our own work or the Foreign 
Relations Committee's work on that AUMF, it's pretty important. 
As we look at that, we need to take into account the effect on 
remaining Guantanamo detainees.
    The last thing, I just want to--on the numbers. I mentioned 
that 556 people had been tried on terrorism or terrorism-
related charges in the Federal courts of this country since 
September 2001. And not a single individual so convicted has 
escaped. Am I correct that the military commissions have only 
conducted eight trials since 2001?
    Mr. McKeon. That number sounds right, but we can confirm 
that for you. It's been very few.
    [The information referred to follows:]

    Regarding the questions related to terrorism-related charges in 
Federal courts, those questions are best answered by the Justice 
Department. However, in our interactions with the Justice Department we 
have been informed several times that no one convicted of terrorism 
charges since 9/11 has ever escaped from Bureau of Prisons maximum 
security facilities. And you are correct that military commissions have 
only conducted eight trials since 2001.

    Senator Kaine. Those who would argue that this is something 
that cannot be dealt with through the Article 3 courts of the 
United States that have withstood the test of time since 1787 
are clearly, in my view, not looking at this data.
    Thank you, Mr. Chairman.
    Chairman McCain. Senator Ernst.
    Senator Ernst. Thank you, Mr. Chairman.
    Thank you, gentlemen, for being here today.
    This is a very, very tough issue, and I would like to 
commend Senator Cotton for his passion on this subject. There 
are a number of members of this committee that have served this 
Nation, as you do. And Senator Cotton has been a warrior. He 
has been a warrior on the ground in Iraq. I have been a 
logistician on the ground in Iraq. And all of us face 
uncertainty when we serve our country. Senator Cotton, most 
certainly, deserves kudos for serving his Nation in a very 
difficult time and in a very difficult situation, when we are 
looking at terrorists. So, his perspective is slightly 
different than my own, but I think we feel the same way, that, 
whether it's someone who is kicking in doors and looking for 
terrorists, and facing the threat of the enemy at close range 
or whether it's somebody that's driving trucks up and down the 
roads, delivering supplies and worrying about IEDs that are 
planted by these terrorists--drivers just driving by, doing 
what they can do to support our warriors, taken out by 
terrorists--whether it's innocent civilians here in the United 
States.
    Al-Baghdadi, before he was released at Camp Bucca in Iraq, 
had stated, ``I'll see you guys in New York.'' And, you know, I 
don't have a doubt that either al-Baghdadi or one of his 
extreme terrorists will find their way back to New York or 
somewhere in this great country. They have an amazing network 
that reaches all around the globe.
    And what I do not want to see--and all of us should be able 
to agree on this--that we do not want to see detainees from 
GTMO being released and returning to the fight. And my 
sentiments are exactly like Senator Cotton's. I could care 
less. They really should not be out there, where they can 
threaten American lives or our NATO allies, their lives.
    So, I would like to hear from you, generally, the types of 
activities that our detainees--just so everybody understands, 
the types of activities our GTMO detainees were involved in 
before they were taken to Guantanamo. Please explain to me, 
so--I know many people will watch this testimony today, they 
will hear the testimony. I would like to know what types of 
activities they were engaged in before they were detained.
    And anybody, please.
    Mr. McKeon. Senator, of the detainees remaining at 
Guantanamo, they've been involved in a range of terrorist 
activities. The worst of them are the names that you would 
know, like Khalid Sheikh Mohammed, who planned several attacks, 
including the 9/11 attacks, and is--that's the trial he is 
facing at the military commission. The--one of the protagonists 
in the bombing of the U.S.S. Cole is also under trial in the 
military commission. The terrorists--or the people who are at 
Guantanamo have engaged in a range of activities, from being 
active on the battlefield to providing support functions to 
terrorist leadership. It's--it runs the gamut.
    Nick may have more detail.
    Mr. Rasmussen. I think Brian characterized it just right. 
It runs the gamut from known senior-leader terrorist figures 
exercising leadership positions in terrorist organizations--
some of the names, Under Secretary McKeon mentioned--but, then 
also including the full range of individuals who have played a 
role in al-Qaeda plotting or in providing support activities or 
in providing support to the Taliban, as well.
    Senator Ernst. So, these are individuals who have murdered 
thousands of Americans, been involved with the planning of 
murdering of thousands of American servicemembers, whether 
they're here on United States soil, as with the 9/11 attacks, 
the U.S.S. Cole, where they killed many of our servicemembers, 
whether it's innocent civilians in Syria and Iraq. They did not 
need Guantanamo Bay to be emboldened to do those activities.
    So, I push back on the President and this administration, 
in that they will kill, regardless of whether they are at 
Guantanamo, or not, that they are driven, they are terrorists, 
they will do that. Do you agree with that?
    Mr. McKeon. Senator, I agree that terrorists are driven. 
What I would say about Guantanamo, in general, in the view of 
the administration, is, there is certainly a risk to release. 
And we try to substantially mitigate the risk. And I think 
we've had some success in doing that. But, we believe there's a 
risk in keeping Guantanamo open. The military leadership of the 
country has said that. You have the letter from three dozen 
former military leaders who think it is a propaganda tool that 
inspires recruitment of additional terrorists.
    I agree with Senator Cotton, there's plenty of terrorists 
out there who don't need Guantanamo to want to attack the 
United States or U.S. interests. But, we do think that it does 
serve as a propaganda tool that leads to greater recruitment of 
the terrorist organizations.
    Senator Ernst. Well, I--that is the administration's point 
of view. I would beg to differ. I think they are going to do 
what they are going to do, regardless of Guantanamo Bay and 
their imprisonment there.
    My time is expired. Thank you, gentlemen, very much.
    Thank you, Mr. Chairman.
    Chairman McCain. Senator Reed.
    Senator Reed. Three quick questions.
    First, following up this discussion of the Guantanamo as a 
accelerator of terrorist activity or deterrence, et cetera. Mr. 
Rasmussen, you've mentioned, in your testimony, that the--
Guantanamo is consciously used by a host of terrorist 
organizations to recruit, to propagandize. That is a fact. Is 
that correct?
    Mr. Rasmussen. Well, we certainly just--purely just judging 
by anecdotal evidence and looking at the material that the 
terrorist organizations put out, much of it in English 
language, which, when we see something in English language, we 
assess that they are trying to reach potential terrorists or 
extremists here in the United States or in Western Europe--or 
Western European countries. And we certainly see the issue of 
Guantanamo feature in that propaganda.
    Senator King asked a very good question, though. We need to 
draw the line a little more tightly and a little more 
concretely between anecdotal evidence of the way terrorists use 
this information and what we can say with more precision about 
recruitment efforts.
    But, I would say this. The terrorist landscape we face 
right now is increasingly characterized by actors who are not 
necessarily affiliated or tied to a terrorist hierarchy or 
leadership. They operate on their own, in many cases. In many 
cases, they radicalize and mobilize themselves to violence on 
their own. So, that particular type of messaging activity that 
goes on from terrorist organizations uses many, many factors. 
And Guantanamo is one of them, not the--certainly not the only 
one. Other aspects of U.S. foreign policy feature in that, as 
well. But, I just would have to--it's indisputable that this 
does--that this material does not feature in terrorist 
propaganda. We do owe the committee a better understanding, 
though, of the direct connection, the causality.
    Senator Reed. Thank you. And, very quickly, because I--Mr. 
Secretary, there's a discussion of the classification of some 
of these arrangements with other countries. Is it fair to say 
that it's the other country that might insist much more on the 
classification, for their own purposes, on--as a condition of 
cooperation, than the United States? Is that a fair judgment?
    Mr. McKeon. That's a fair statement, yes, sir.
    Senator Reed. Thank you.
    And then, finally, Mr. Secretary, the issue which is--this 
has been a very useful hearing--about the status of enemy 
combatants at the cessation of hostilities, that would affect 
Guantanamo and any other place that a individual is being held. 
If hostilities come to an end legally, then our ability to hold 
enemy combatants, as I understand, will--ceases. So, we will 
have to address this question, regardless of whether Guantanamo 
is open or closed. Is that fair?
    Mr. McKeon. That's correct.
    Senator Reed. Thank you.
    Chairman McCain. Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman.
    Senator Reed hits exactly on the question that I was going 
to ask. And my question would have been--and if you've answered 
it already, I'll defer--but, what happens at the end of 
hostilities? What is the plan for taking care of the issues, 
resolving these individuals, who may very well still be there, 
combatants, individuals who are being held as enemy 
belligerents and who, as we understand right now, may very well 
have to be released once hostilities cease? What is the plan to 
take care of the issue?
    Mr. McKeon. What we're working on now, Senator, as I went 
through in my opening statement, but you all were still at the 
Prayer Breakfast, is to try to transfer those who have already 
been approved for transfer. It's about 50 or so. We have a 
number of prosecutions underway in the military commissions. 
Those will take some time. And we have a Periodic Review Board 
process that is reexamining several who were first looked at 
and determined to be held under Law of War detention authority.
    There is some number--I can't tell you what that will be--
that we are unlikely to be able to release, at the end of the 
day, as we run through this process. And, following the 
President's charge that he wants to close Guantanamo, we've got 
to look at all options. One of the options would be possibility 
of bringing the remaining detainees back to the United States. 
We can't do that now, because of the statutory ban. So, we 
would have to come to the Congress to talk to you about that, 
and repeal that statutory ban. And if we were at the end of 
hostilities and the question of our authority--our ability to 
hold them was in question, we would--part of that conversation 
would be, What is the authority we need from the Congress to 
continue to hold those people?
    Senator Rounds. Can you give us some kind of a timeframe as 
to when you would be making those requests?
    Mr. McKeon. I cannot give you a timeframe right now, sir, 
no.
    Senator Rounds. Thank you.
    That's all I have, Mr. Chairman.
    Chairman McCain. I thank the witnesses for being here 
today.
    For the record, in 2009 the then legal counsel of the White 
House came to my office and met with me and Senator Graham, 
said they wanted to close Guantanamo. And I said, ``Fine. I do, 
too. Give us a plan.'' In the intervening years, there has 
never been a plan forthcoming from the White House, and there 
obviously isn't, today.
    Yemen is descending into chaos. We don't know what to do 
with the present population. How many are capability? What are 
we going to do with the remaining 70? How many of the remaining 
detainees are assessed to be high- or medium-risk? We couldn't 
be told that today. Where will we send the detainees in these 
countries of origin that are governed by state sponsors of 
terrorism or are currently beset by instability, insurgency, or 
growing extremist groups, like al-Qaeda or ISIL? Of the 
detainees assessed to be too dangerous to release, but 
incapable of prosecution, we have no plan for that. The 
administration, we hope, will seek additional authorities to 
detain elsewhere, such as the United States. And we don't know 
how we ensure that there will not be a court-martial release of 
a dangerous terrorist that is in long-term detention inside the 
United States, which is the reason why we need legislation.
    So, here we are, 6 years into the Obama administration, and 
we still haven't complied with the requirements of the NDAA, 
nor do we have a concrete plan as to how to address the issues 
that I just described. That's why, 6 years later, we are having 
this hearing. And I, again, urge the administration--you just 
responded to Senator Rounds, you don't know when we are going 
to come forth with a proposal--we need a proposal. And, in its 
absence over 6 years, Congress has acted. And we will continue 
to act unless we can work in close coordination with the 
administration to come up with a plan. And one of those plans 
that is--is for us to make sure that these individuals, who are 
judged too dangerous to return, are not allowed to, and 
accommodation is made for the continued incarceration of those 
individuals.
    I thank the witnesses for being here today.
    And Senator Ayotte, I think, would like to make a final 
comment.
    Senator Ayotte. Mr. Chairman, with permission, can I have 
a--followup questions? I don't know if anyone else is, but I'm 
happy to direct that if you--I know you have to go.
    Chairman McCain. Oh, I'm----
    Senator Manchin, did you want to--I'm sorry.
    Senator Manchin. Go ahead, Senator. I'll go after Senator 
Ayotte.
    Chairman McCain. Go ahead.
    Senator Ayotte. Oh, thank you.
    I wanted to ask about this. First of all, let me just make 
the point. As we--as you look at the Taliban five, I just think 
the point needs to be made, very clearly. They were top 
commanders in the Taliban. I read you the quote about what one 
of the commanders on the ground said in Helmand Province about, 
``It's like pouring 10,000 jihadists back into the fight.'' So, 
you can't say that they weren't directly involved. So--because 
they, themselves, only issued the commands to kill Americans, 
and didn't kill the Americans, themselves, the leaders are 
often more important than the foot soldiers asked to carry this 
out. And so, I don't understand the argument made from--with 
all respect to my colleague from Virginia, but these were--the 
American people need to understand, these were top Taliban 
leaders, who themselves made many orders that were involved in 
killing us and our allies in Afghanistan.
    I would like to ask Admiral Myers--we had General Mattis 
before the committee the other day, former Commander of 
CENTCOM. I'm sure you know the general. And one thing he said, 
when he talked about our detention policy, and he said that he 
did not understand--he was perplexed by our lack of detention 
policy. And, in fact, when I asked him about it, he said that, 
``Ma'am, first and foremost, I believe this. We go into a fight 
we've not seemed certain of, ourselves, enough to hold 
prisoners. The people who we've taken in the fight--for 
example, in 1944, did we take Rommel's troops who were in POW 
camps in Texas and let them go back and get another shot at us 
at Normandy? We kept them until the war was over. We didn't 
start this war. And if an enemy wants to fight or be a 
truckdriver, we didn't say to--his radio operators could be 
released because they didn't have a significant role. If you 
sign up with the enemy, they should know, we're coming after 
you. If the President, the Commander in Chief, sends us out 
there, and if you're taken prisoner, you'll be prisoner until 
the war is over. I mean, this is pretty much warfighting 301 or 
advanced warfight--this is not advanced warfighting, not 
warfighting 301 or advanced warfare, this is kind of 101, 
ma'am. And my biggest concern I have, then, having been in the 
infantry for years, is, if our troops find that they are taking 
someone prisoner a second time, they will just--and they have 
just scraped one of their buddies off the pavement and zipped 
him into a bag, the potential for maintaining the ethical 
imperative we expect of our Armed Forces is going to be 
undercut if, in fact, the integrity of our war effort does not 
take these people off the battlefield permanently if taken 
prisoner. In other words, they will take things into their own 
hands and under the pressures of warfare.''
    Admiral, do you share General Mattis's concerns? If 
you've--if we've captured someone on the battlefield, and then 
our men and women in uniform encounter them again after having 
seen, obviously, their brothers and sisters in arms killed by 
this enemy, don't you think that's a real concern and that our 
men and women in uniform should never be forced to confront 
someone that we had previously captured?
    Admiral Myers. Well, Senator, I do have the utmost respect 
for General Mattis. I do not believe that the current policy, 
which I cannot necessarily speak to the policy, but I do not 
believe the morale of the men and women of the Armed Forces on 
the combat field have any impact--whether it's the same person 
the first time, second time, whatever. A combatant is a 
combatant. I do not believe it is impacting the morale, as far 
as those actually engaging in combat operations.
    Senator Ayotte. Okay. But, let me ask you this. If we 
captured someone in battle, do you think our men and women in 
uniform should ever have to confront them again? Yes or no? We 
had them. We had them captured, we had them incarcerated, we 
release them. Do you believe they should ever have to confront 
them again?
    Admiral Myers. I do not believe anyone should ever have to 
confront them. However, as you have seen through history, 
through various reasons, that's not always the case, and people 
have reentered the battlefield through the history of time.
    Senator Ayotte. Well, they're going to reenter the 
battlefield when they're being transferred to third-party 
countries, where they're not even being incarcerated again, and 
where there are very few conditions on their confinement, if 
any. And I think this is something that is atrocious, that one 
of our men and women in uniform, or any of our allies or anyone 
working with us, should ever be forced--when we had someone 
captured as a prisoner of war, we had them taken from the 
battlefield, that they would ever confront them again. And I--
it seems to me that is one of the fundamental problems we face, 
here.
    And the other question I would like to ask Secretary 
McKeon. If we get Ayman al-Zawahiri tomorrow, the head of al-
Qaeda, or al-Baghdadi, the head of ISIS, where--what will we do 
with them? Where will we put them? I understand what my 
colleague from Virginia said about Article 3 courts. Will they 
be told they have a right to remain silent? Will they be 
Mirandized? Or will we interrogate them and find out what 
they're planning, in terms of killing us and our allies?
    Mr. McKeon. Senator Ayotte, our policy, if we detain new 
people on the battlefield, is to examine them on a--and follow 
a case-by-case basis, depending on all the circumstances. We 
would certainly interrogate them. If we had an Article 3 case 
that we could build against them, we would pursue that.
    Senator Ayotte. So----
    Mr. McKeon. We----
    Senator Ayotte. So, I guess where--where--where would you 
put al-Baghdadi? Where would you put Ayman al-Zawahiri? Do you 
know the answer to that----
    Mr. McKeon. In the first----
    Senator Ayotte.--Secretary McKeon? Do you know----
    Mr. McKeon. In the first----
    Senator Ayotte.--where we would put them?
    Mr. McKeon. In the first instance, we would interrogate 
them----
    Senator Ayotte. Where would you interrogate them?
    Mr. McKeon.--in situ, where we pick them up. If we pick 
up----
    Senator Ayotte. Okay. But, after that----
    Mr. McKeon.--or we could do it in another place. We've done 
it with Mr. Warsame on a U.S. ship.
    Senator Ayotte. Right. So, ship. And you can only keep 
someone on a ship for so long, because it's temporary. When we 
get the leaders of these terrorist groups--this is the problem 
I've been asking since I got in this Senate, and I've been 
asking top levels of this administration for years--if we catch 
the head of al-Qaeda tomorrow, what do we do with them? And you 
know what I've heard, time and time and again? ``We're working 
on our detention policy. We'll get back to you.'' It's been 
years. And what worries me is, as we sit here, to the 
Chairman's point, so many questions remain unanswered, 
including--having Baghdadi or Zawahiri on a ship for a 
temporary basis is not long enough to interrogate them to find 
out what they know about al-Qaeda, about ISIS, to protect 
Americans. And there seems to be no plan for that.
    Mr. McKeon. Senator, if we were to get one of these people 
that you mentioned, and we could build an Article 3 case, we 
would ultimately bring them to the United States for 
prosecution, probably in New York or Virginia, where these 
kinds of national security cases are usually prosecuted. If we 
can't build an Article 3 case, we would look at whether we 
could prosecute them through the military commissions process. 
We would look at all options, but we would certainly 
interrogate them for some time before we put them into any 
prosecution lane.
    Senator Ayotte. Well, except you know, of course, once they 
go into an Article 3 court, they're entitled to Miranda, 
they're told they have the right to remain silent, they're 
entitled to rights to speedy trial. And so, we, at that point, 
aren't going to get a chance to fully interrogate someone.
    Mr. McKeon. Well, but, Senator, we would do the 
interrogation at the front end, with an interrogation team. And 
then, if there was an option for Federal court prosecution, we 
would bring in a separate FBI team that had not been--what we 
call a ``clean team,'' that had not been privy to the prior 
military or IC interrogation, to then build the case. So, it 
would be a separate interrogation. We would be able to get the 
intelligence value, which we did in----
    Senator Ayotte. How long would you hold----
    Mr. McKeon.--which we did in the case of Mr. Warsame, we 
did it in the case of Mr. al-Libi.
    Senator Ayotte. And in both of al-Libi and Warsame 
situations, you held them for, I would say, far too 
insufficient of a time, because you had them on ships because 
this administration is so adverse to putting anyone in 
Guantanamo. They'd rather hold someone who's a terrorist on a 
temporary basis on a ship rather than make sure that we can 
have the opportunity for a lengthy investigate--interrogation. 
As you know, sometimes it takes a long time to gather all the 
information that someone like the head of al-Qaeda or the head 
of ISIS would know.
    Mr. McKeon. Senator----
    Chairman McCain. Go ahead, please answer.
    Mr. McKeon. Yes.
    Senator, I don't think there have been any pressure on the 
intelligence professionals who do these interrogations to speed 
it up. And I believe, although I would double check this for 
the record, that, even after he went into the Federal court 
system, Mr. Warsame gave us quite a bit of information.
    Mr. McKeon. Federal prosecutors have quite a lot of tools, 
in terms of encouraging cooperation as they bring a case. So, 
we are not without tools to get the proper information.
    Senator Ayotte. So, Mr.----
    Chairman McCain. The Senator's time really has expired.
    Senator Ayotte. Thank you.
    Chairman McCain. Senator Sessions. And if you'll close it 
down, Senator Sessions, thank you.
    Senator Sessions. All right, thank you.
    While--Senator Ayotte, thank you for those questions. It 
goes to what I believe we need to think about, here.
    Mr. Rasmussen, was it al-Libi that was captured by a 
commando team in Libya and taken to a ship?
    Mr. Rasmussen. That's correct.
    Senator Sessions. And wasn't that a high-risk thing for 
American soldiers? And they were sent in to capture him alive 
so that he could be interrogated, because I believe the New 
York Times referred to him as ``the mother load of intelligence 
possibilities,'' since he was involved all the way back to the 
Khobar Towers activities of al-Qaeda?
    Mr. Rasmussen. I'd certainly defer to my Pentagon 
colleagues to talk about the level of risk that our forces 
experienced in trying to carry out that operation.
    What we assessed, from an intelligence perspective, was 
that a figure like al-Libi would have a tremendous amount of 
historical knowledge about al-Qaeda and whether it----
    Senator Sessions. Well, thank you.
    Mr. Rasmussen.--was associated----
    Senator Sessions. And I think that's why we put our people 
at risk to capture him.
    Mr. McKeon, isn't it true--and I'll just try to be brief 
and we'll wrap up--but, isn't it true that a person connected 
with al-Qaeda, a person connected with ISIL and other 
terrorist--I'll just say those two--can--if captured, they 
qualify as prisoners of war?
    Mr. McKeon. If they meet the standard for Law of War 
detention under the AUMF and Laws of War, yes, sir.
    Senator Sessions. And certainly, Mr. al-Libi would have 
qualified. Is that--we've issued authorization of--of force 
against al-Qaeda.
    Mr. McKeon. Sir, I would say, in the case of Mr. al-Libi, 
and in all cases, there is a preference to capture, if 
possible, for the intelligence gain, but the judgment is made 
primarily by----
    Senator Sessions. Well, I know----
    Mr. McKeon.--our military colleagues, of whether that is 
feasible. And if it's----
    Senator Sessions. I'm just trying to wrap up.
    Mr. McKeon. No, I understand, sir. I just wanted to give 
you the whole picture----
    Senator Sessions. I understand what the----
    Mr. McKeon. Yes.
    Senator Sessions. We all know that.
    So, the question--so, under the laws of war, a person who's 
an unlawful--who is a prisoner of war can be detained until the 
conflict is over, on the general principles of war. And----
    Mr. McKeon. Technically, sir, they're unlawful enemy 
combatants, typically, if they're not considered POWs, at 
Guantanamo.
    Senator Sessions. Well, they could be both, could they not?
    Mr. McKeon. Conceivably.
    Senator Sessions. Conceivably? I don't know why there would 
be any difficulty in having them qualify as both.
    Mr. McKeon. Sir, this is where I'm getting out of my lane 
with the legal question and I ask somebody from our General 
Counsel's Office. Generally, we don't consider them POWs.
    Senator Sessions. Well, you also don't consider there's a 
difference between civilian prosecution and military detention 
and military commission trials, either, in which case, as 
Senator Ayotte said, you're dead wrong.
    So, if a person is then captured, if they're taken for 
military trial--civilian trial--as I understood your testimony, 
if they can be prosecuted in an Article 3 civilian court, they 
will be. Is that the policy we're now operating under?
    Mr. McKeon. No, sir. What I was saying is that all options 
are on the table, and we would look at prosecution in both 
Article 3 court or military commissions. But, if owe can do it 
in the Article 3 process, I wouldn't say there's a preference, 
but we have a good ability to do that.
    Senator Sessions. Well, you almost----
    Mr. McKeon. With some----
    Senator Sessions.--repeated what you said before----
    Mr. McKeon. With----
    Senator Sessions.--which was, if we can prosecute them in 
Article 3 court, we will. And that is what you are doing today, 
in reality, is it not?
    Mr. McKeon. Well, we have done it in some of the select 
cases, and we've done it with considerable success and a lot 
faster pace than the military commissions. So, I----
    Senator Sessions. If--and I've prosecuted in Federal 
court----
    Mr. McKeon. Yes, I'm aware of that, sir.
    Senator Sessions.--civilian court. Senator Ayotte is 
correct, a person is brought into Federal civilian court, they 
are immediately appointed a lawyer, or, if they or their allies 
or conspirators have money, they can hire their own lawyer. 
Isn't that correct?
    Mr. McKeon. That's correct.
    Senator Sessions. And, before they can be asked any 
questions, they are given their Miranda rights and told not to 
answer questions, correct? And----
    Mr. McKeon. Once they are in that system. But, we've done 
the interrogations with our IC and military professionals 
before we put them into that system.
    Senator Sessions. And if they----
    Mr. McKeon. And they're not----
    Senator Sessions.--have a----
    Mr. McKeon.--they are not Mirandized in that context.
    Senator Sessions. And if they have a lawyer, the lawyer is 
going to tell them not to cooperate unless he tells them to for 
some other--for some reason. Isn't that correct? That's what 
good lawyers do.
    Mr. McKeon. That's what good----
    Senator Sessions. ``Don't talk to the police until I--you 
and I talk and I approve of it.''
    Mr. McKeon. That's what a good lawyer would do----
    Senator Sessions. That's what goes on----
    Mr. McKeon.--that's correct.
    Senator Sessions.--in the real world. Then the person 
charged in civilian court has a right to demand a speedy trial, 
he has a right to demand discovery of the government's case, he 
has a right to documents that could be relevant to his case, 
and he can ask for information that frequently, in my 
experience, implicates the issues of national security and 
intelligence and how it's gathered, and that kind of thing. I'm 
sure Mr. al-Libi is going to demand information about how he 
was captured and how you had information about him, some of 
which----
    Mr. McKeon. Well, we----
    Senator Sessions.--we don't want to give up.
    Mr. McKeon. He's deceased, sir. He died before trial.
    Senator Sessions. He was taken from the ship after how many 
days?
    Mr. McKeon. I don't know how long he was on the ship.
    Senator Sessions. Mr. Rasmussen, how many days?
    Mr. Rasmussen. I think it was a small number of days, but 
it--driven, in this particular case, by his rapidly 
deteriorating health status----
    Senator Sessions. And--well, he could have been taken to 
any doctor, or any doctor could have been flown to Guantanamo 
to treat him. But, instead, when he was taken to a doctor, he 
didn't--in Maryland, as I recall--he didn't have to be put in 
civilian court; he could still be maintained in military 
custody.
    So, if the person is taken to military custody and treated 
as an unlawful combatant or as a--certainly as a prisoner of 
war, then they could be detained, and they could be interviewed 
over a period of months.
    And isn't it true, Mr. McKeon, that a person held in that 
condition is not entitled to a lawyer? Just like German 
prisoners of war and Japanese prisoners of war and American 
prisoners of war were not provided lawyers.
    Mr. McKeon. Well, if we put them in the military 
commissions process, they would have a lawyer.
    Senator Sessions. If you'd move them to a trial, I 
understand that. If you move them to a trial, and actually put 
them in a status of being an--prosecuting for unlawful acts 
against the laws of war, then they do have to have a--an 
attorney. But, you can hold them for months, could you not, and 
gradually build up a relationship with them in an attempt to 
obtain more information over time?
    Mr. McKeon. That's correct, but that's not precluded in the 
criminal system. And, as you know, as a prosecutor, sir, the 
Federal prosecutors have a lot of powers to encourage 
cooperation.
    Senator Sessions. They don't have any more powers than the 
military prosecutors would have. That's just a myth you guys 
have been talking about. All the powers they have is a plea 
bargain. They can be plea-bargained in military commissions, 
too. If any of you don't know that, I'll tell you that.
    Mr. McKeon. I'm----
    Senator Sessions. So, to me--I'll just wrap up. The vote is 
ongoing. There is absolutely no way that you can contend over a 
number of cases, as a matter of policy, it's better for the 
National security of the United States that people be promptly 
taken to civilian court to be tried in civilian court rather 
than be tried in--held in military commissions and tried at our 
will. And, as I understand it, if, even after being detained in 
military detention, over a period of a year or more, they could 
still be sent to civilian court for trial. But, I would think 
we'd want to try them in military court.
    Mr. McKeon. Well, sir, I think we would look at all 
options. And if I--I didn't----
    Senator Sessions. Have you--in the last number of years, 
how many have been sent for trial in military commission?
    Mr. McKeon. Well, we have military commissions ongoing at 
Guantanamo. And what I would say, in terms of----
    Senator Sessions. Well, under this President, in the recent 
months, the years that people have been captured, have any been 
sent to trial there?
    Mr. McKeon. We have not added----
    Senator Sessions. If so, how----
    Mr. McKeon. We have not added to the population at 
Guantanamo Bay, that's correct.
    What I would say, sir, in terms of the efficacy of the two 
systems, because the military commission system is essentially 
new, because of the new statutory framework, lawyers are 
litigating to death every new issue, and these cases are 
dragging on for quite some time. Whereas, in the civilian court 
system, because of the speedy trial and the efficiency of our 
courts, we're getting convictions and putting these people in 
prison fairly quickly.
    Senator Sessions. Well, they can be done that way in 
military commissions. The problems will be worked out. The 
judge is taking everything as a first impression, so I'm sure 
they take a little more time at it. But, had we been moving 
these cases forward for a long time, those issues would have 
been decided, I'm sure, by now, and the cases could probably 
move faster. And they have different issues.
    So, I'll wrap up. My time is up.
    I just want you to know, I appreciate that you're 
advocating for the President's policies, that we 
improvidently--they were a product of an improvident campaign 
promise, based on lack of understanding of the reality at 
Guantanamo. Why it is a perfectly humane and good place to keep 
people, why it provides and we set up procedures to try them 
fairly, and it gave us maximum ability to take people, like al-
Libi and others, and keep them, over time, to develop 
intelligence, over time, and in a way that we are in control of 
the situation, rather than a Federal judge, whose duty is to 
respond to case management, moving cases, who has not a duty to 
try to assist the Government in obtaining intelligence.
    Senator Graham and others, and Ayotte, who have been 
prosecutors, see it as I do and are more knowledgeable than I, 
but I really strongly feel this a mistake and it's not helpful 
to the national security of the United States.
    Thank you all.
    And the meeting is adjourned.
    [Whereupon, at 11:46 a.m., the committee adjourned.]
             Questions Submitted by Senator James M. Inhofe
                  detention facility at guantanamo bay
    1. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, do you believe the detention facility at Guantanamo Bay (GTMO) 
is a state-of-the-art facility that provides humane treatment for all 
detainees?
    Mr. McKeon. Yes. All detainees are housed in state-of-the-art, 
climate controlled facilities that are modeled after county prisons in 
the United States. This is consistent with the Convention Against 
Torture and Common Article 3 of the Geneva Conventions of 1949, as well 
as U.S. law.
    In a 2009 review of the facility, Admiral Patrick Walsh concluded 
``that the conditions of confinement in Guantanamo are in conformity 
with Common Article 3 of the Geneva Conventions.'' The Secretary of 
Defense endorsed those findings and passed them to the President. 
Regular visits by Department of Defense (DOD) personnel continue to 
affirm that all detainees at Guantanamo Bay, Cuba, are treated humanely 
in modern, secure facilities.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. Yes.

    2. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, the detention facility at GTMO has been visited by many 
organizations to include multiple human rights organizations, the 
International Committee of the Red Cross (ICRC), Attorney General 
Holder, and independent commission led by Admiral Walsh. What was their 
assessment of the facility and care of the detainees?
    Mr. McKeon. Department guidance and policies direct that DOD 
components ensure that all personnel adhere to the standards of Common 
Article 3 of the Geneva Conventions when it comes to detention, 
treatment, and interrogation of detainees, this includes prohibitions 
against cruel treatment and torture and that care is provided to 
wounded and sick detainees.
    In February 2009, Admiral Patrick Walsh, upon completion of a 
review of detention conditions at the facilities at Guantanamo Bay, 
Cuba, found that the conditions of detention in Guantanamo are in 
conformity with Common Article 3. In addition, Admiral Walsh reported 
that the chain of command responsible for the Guantanamo detention 
mission consistently seeks to go beyond a minimalist approach to 
compliance with Common Article 3, and endeavors to enhance conditions 
in a manner as humane as possible consistent with security concerns.
    Since the detention facility opened in January 2002, the ICRC has 
visited over 100 times. We continue to engage regularly with the ICRC, 
and it reports to us after each visit about detainee and detention 
concerns and observations.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. Although I do not know which ``multiple human rights 
organizations'' you are referencing, I can assure you that Joint Task 
Force Guantanamo takes seriously the input provided on the facility and 
care of detainees, including input from the ICRC. In 2009, Admiral 
Walsh told the press: ``After considerable deliberation and a 
comprehensive review, it is our judgment that the conditions of 
confinement, in Guantanamo, are in conformity with Common Article 3 of 
the Geneva Conventions . . . it was apparent that the chain of command 
responsible for the detention mission at Guantanamo consistently seeks 
to go beyond the minimum standard in complying with Common Article 3.''

    3. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, is the detention facility at GTMO fully compliant with Geneva 
Convention?
    Mr. McKeon. Yes. The Geneva Conventions of 1949, and specifically 
Common Article 3, require parties to an armed conflict to treat 
detainees humanely and prohibit cruel treatment and torture. Admiral 
Walsh's report of February 2009 confirmed that the detention facility 
at Guantanamo Bay, Cuba, was in conformity with Common Article 3 of the 
Geneva Conventions. Regular visits by U.S. Southern Command, as well as 
other DOD officials, continue to confirm that the detention conditions 
remain fully compliant with Common Article 3.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. In my opinion it is fully compliant, but I must 
defer legal conclusions and compliance to DOD General Counsel.

    4. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, how many detainees have been charged and how many have been 
tried in the Expeditionary Legal Complex at GTMO? Why?
    Mr. McKeon. Military commission trials have resulted in eight 
convictions, seven pursuant to guilty pleas. In addition, two other 
individuals pleaded guilty pursuant to pretrial agreements, which 
include cooperating with the United States, and are awaiting their 
respective sentencing hearings. Appellate rulings have vacated two of 
the convictions and this has shaped the charging options available to 
the prosecution for future and ongoing cases.
    Seven individuals are currently facing prosecution in active 
military commission proceedings at the Expeditionary Legal Complex at 
GTMO.
    The three cases (one of which is a joint trial for five 
individuals) are in the pre-trial motions phase and will enter the 
merits phase once each accused has had a full opportunity to raise and 
litigate his pre-trial motions.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. Military Commission trials have resulted in eight 
convictions, seven of which were pursuant to guilty pleas. Appellate 
courts have vacated two of the convictions. Currently seven detainees 
are facing trial for: the September 11 attacks, the bombing of the USS 
Cole, and for committing attacks on coalition forces in Afghanistan. I 
must defer to the Office of Military Commissions to explain why they 
were charged and tried.

    5. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, what is your position with regard to the President's policy of 
trying detainees in civilian courts versus military commissions?
    Mr. McKeon. In our efforts to protect U.S. national security, both 
military commissions and Federal courts can be appropriate, depending 
on the circumstances of the specific case, and both provide tools that 
are effective and legitimate.
    Although I would defer to the Department of Justice for the 
statistics, numerous terrorism prosecutions in Federal court have 
resulted in convictions, both before and after September 11, 2001.
    To date, only a few prosecutions in the military commissions system 
operating today have resulted in convictions. Despite the low number, 
military commissions remain a viable tool to handle cases that cannot 
be prosecuted in Federal courts or that are not appropriate to be 
prosecuted in Federal courts, such as for violations of the laws of 
war.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. I believe it is important to our national security 
to remove combatants from the battlefield and to prosecute them when 
appropriate. I defer to Secretary McKeon on the related policy 
positions.
              president obama's catch and release program
    6. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, of the remaining GTMO detainees, how many are currently assessed 
to be high or medium risk?
    Mr. McKeon. [Deleted.]
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. The risk classification numbers of detainees who 
remain at GTMO can be provided in a classified format.

    7. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, how many have ever been assessed to be high or medium risk?
    Mr. McKeon. [Deleted.]
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. I defer to the Intelligence Community for an 
intelligence assessment/statement on how many detainees have ever been 
assessed to be in the high and medium risk categories.

    8. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, in general, what is the basis of those assessments and why might 
they change?
    Mr. McKeon. The current process involves a comprehensive review of 
each detainee by an interagency group that looks at information on the 
detainee, including the factors that influenced the detainee pre-
capture, the detainee's behavior and actions while in detention, 
intelligence and information collected since capture, and the 
detainee's potential actions post-transfer. Assessments could change or 
be updated based on new information/intelligence or detainee behavior/
actions and any such new information or behavior would be assessed by 
the Intelligence Community or the Periodic Review Board.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. In general, intelligence assessments consider all of 
the information that we know about a detainee at that time. I defer to 
Mr. Rasmussen and the Intelligence Community on what could cause an 
assessment to change.
                               recidivism
    9. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, of the GTMO detainees that the United States has confirmed 
returned to the fight, can you assure this committee that none of them 
have been responsible for the deaths of additional United States or 
coalition personnel after their release from GTMO?
    Mr. McKeon. Unfortunately, former GTMO detainees have been 
responsible for or have contributed to the deaths of U.S. and coalition 
personnel since their transfer from GTMO. The Intelligence Community 
may be able to provide further information in a classified setting as 
to the details.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. I do not personally know of any U.S. servicemember 
deaths that have occurred due to the actions of detainees released from 
GTMO. I defer to the Intelligence Community for an intelligence 
assessment/statement.
             returning naval station guantanamo bay to cuba
    10. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, are you aware of any administration or DOD plans to close Naval 
Station Guantanamo Bay over the next 2 years?
    Mr. McKeon. No.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. I am not aware of any such plans.

    11. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, is it administration and DOD policy that Guantanamo will remain 
in the possession of the United States during this administration?
    Mr. McKeon. Yes.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. I am not personally aware of any plans to transfer 
possession of Guantanamo.

    12. Senator Inhofe. Secretary McKeon, Mr. Rasmussen, Rear Admiral 
Myers, are any of you aware of Naval Station Guantanamo Bay being used 
as a bargaining chip in this administration's quest for full diplomatic 
relations with Cuba?
    Mr. McKeon. No. Assistant Secretary of State Roberta Jacobson 
recently testified to Congress that the issue of the Guantanamo Naval 
Station closure is not on the table during discussions with Cuban 
officials.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. No.
                                 ______
                                 
              Questions Submitted by Senator Kelly Ayotte
                    guantanamo as a propaganda tool
    13. Senator Ayotte. Secretary McKeon, a recurrent theme during the 
hearing and from the administration officials is that Guantanamo should 
be closed because it is a propaganda tool for our enemies. Do you agree 
that the facility is lawful and humane?
    Mr. McKeon. Yes. The detainees who remain at the Guantanamo Bay 
detention facility continue to be detained lawfully, both as a matter 
of international law and U.S. domestic law. All U.S. military detention 
operations conducted in connection with armed conflict, including those 
at Guantanamo Bay, are carried out in accordance with the law of armed 
conflict, also known as the law of war or international humanitarian 
law, including Common Article 3 of the Geneva Conventions of 1949, and 
all other applicable international and domestic laws.
    The continued operation, however, of the facility damages our 
relationships with key allies and is used by violent extremists to 
incite local populations. As a result, while the facility is lawful and 
humane, closing it is still a national security imperative.

    14. Senator Ayotte. Secretary McKeon, the administration has 
options in the face of this false propaganda: it can fight it by 
exposing the lies suggesting that we do not treat detainees in 
accordance with the law, or it can reinforce it by insisting that the 
correct response is simply to close the facility. Will you detail what 
steps the United States has taken to counter the terrorists' false 
narrative and emphasize to the world that Guantanamo detainees are held 
lawfully, safely, and humanely?
    Mr. McKeon. Closing the detention facilities at Guantanamo Bay, 
Cuba, is a national security imperative; it drains resources and hurts 
relations with key allies, in addition to being a propaganda tool.
    The Department, in partnership with the State Department, regularly 
participates in international fora in which we make it clear that we 
are fully committed to ensuring that individuals we detain in any armed 
conflict are treated humanely in all circumstances, consistent with 
applicable U.S. treaty obligations, U.S. domestic law, and U.S. policy.
    Our Department hosts a number of international groups as they visit 
the detention facilities at Guantanamo Bay, Cuba. We use these 
opportunities to allow these international groups, ranging from foreign 
government parliamentarians to senior ranking foreign diplomatic 
personnel, to view all the detention facilities within appropriate 
security guidelines and to engage directly and have discussions with 
the commander and staff of the detention facilities. These engagements 
help to dispel the myths often associated with the detention facilities 
at Guantanamo Bay, Cuba.

    15. Senator Ayotte. Secretary McKeon, if the use of the Guantanamo 
facility as a propaganda tool is a key problem that makes keeping the 
facility problematic for the administration, why hasn't more been done 
to expose the fact that this is a hollow symbol for our enemies?
    Mr. McKeon. We have undertaken efforts to engage with other nations 
and the media on the facts concerning the detention operations at 
Guantanamo Bay, Cuba. Yet the facility itself remains a powerful symbol 
used by violent extremists. Videos put out by the Islamic State of Iraq 
and the Levant (ISIL) regularly show their victims dressed in orange 
jumpsuits, a clear reference to the dress of detainees at Guantanamo 
Bay, Cuba.
    While the Department remains committed to closing the detention 
facility we also continue to engage publicly with those who question 
the safe, legal, and humane care and custody of the detainees at 
Guantanamo Bay, Cuba.
                        third-country oversight
    16. Senator Ayotte. Secretary McKeon, recently, President Jose 
Mujica of Uruguay has made statements suggesting that Uruguayan 
authorities may not be doing the best job monitoring the six Guantanamo 
detainees recently transferred there. Will DOD provide the committee 
with the Memorandum of Understanding between the Department and 
Uruguay? When you provide the Memorandum, please highlight the 
commitments made by Uruguay to monitor these detainees.
    Mr. McKeon. The resettlement conditions for the transfer of six 
Guantanamo detainees to Uruguay were documented in an exchange of 
diplomatic notes between the Department of State and the Government of 
Uruguay. I refer you to the Department of State regarding access to 
these diplomatic notes.

    17. Senator Ayotte. Mr. Rasmussen, how confident are you that the 
Uruguayan government actively is monitoring these detainees and knows 
precisely where they are?
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.

    18. Senator Ayotte. Secretary McKeon, what steps would you 
recommend the President take should Uruguay fail to live up to its 
monitoring commitments?
    Mr. McKeon. DOD works closely with the Department of State and the 
Intelligence Community to continually monitor and assess the Government 
of Uruguay's adherence to its commitments regarding the resettlement of 
the six Guantanamo detainees. Additionally, the U.S. Embassy in 
Montevideo remains engaged on a regular basis with Government of 
Uruguay on the resettlement of the detainees. In instances where a 
government fails to live up to its commitments, DOD works with the 
Department of State on appropriate actions, such as demarches, high-
level leadership engagement, intelligence sharing, and counterterrorism 
support.

    19. Senator Ayotte. Secretary McKeon, under what circumstances 
would you recommend that the President request a foreign country, who 
has agreed to accept a detainee, return that individual to the 
detention facility at Guantanamo Bay?
    Mr. McKeon. I cannot speculate on such hypotheticals. To date, we 
have not had such a case arise.
                      national security interests
    20. Senator Ayotte. Secretary McKeon, of the remaining 122 
detainees at Guantanamo how many of the 122 have ever been designated 
or assessed as high, medium, and low risk. Provide a number for each 
category adding up to 122.
    Mr. McKeon. [Deleted.]

    21. Senator Ayotte. Secretary McKeon, of the 33 Guantanamo 
detainees released/transferred in 2014 and 2015, please list what each 
detainee's highest assessed or designated risk level was by Joint Task 
Force Guantanamo: high, medium, or low risk to the United States, its 
interests, or its allies. If their risk rating was lowered, please 
provide the date that occurred, and the risk rating to which the 
detainee was redesignated.
    Mr. McKeon. [Deleted.]

    22. Senator Ayotte. Secretary McKeon, for each of the 33 Guantanamo 
detainees released/transferred in 2014 and 2015, are these detainees 
being held in prison or are they free to roam in the country or even 
leave the country?
    Mr. McKeon. DOD has no information indicating that detainees 
transferred in 2014 and 2015 are held in prison. I refer you to the 
State Department or to the latest edition of the classified report 
provided to this committee in accordance with section 319 of the 
Supplemental Appropriations Act of 2009 (Public Law 111-32) for further 
information. The assurances that we negotiate with receiving countries 
generally call for a range of measures, including restrictions on 
foreign travel for a period of time.

    23. Senator Ayotte. Secretary McKeon, what kind of surveillance, if 
any, are they under?
    Mr. McKeon. The security assurances negotiated with other countries 
to receive detainees from Guantanamo are classified by the Department 
of State. DOD defers to the Department of State on providing additional 
information to the committee regarding those assurances.

    24. Senator Ayotte. Secretary McKeon, what agreements do we have 
with the respective government (be prepared to discuss the specific 
terms of each agreement)?
    Mr. McKeon. The security assurances negotiated with other countries 
to receive detainees from Guantanamo are classified by the Department 
of State. DOD defers to the Department of State on providing additional 
information to the committee regarding those assurances.

    25. Senator Ayotte. Secretary McKeon, when does that agreement 
sunset?
    Mr. McKeon. The security assurances negotiated with other countries 
to receive detainees from Guantanamo are classified by the Department 
of State. DOD defers to the Department of State on providing additional 
information to the committee regarding those assurances.

    26. Senator Ayotte. Secretary McKeon, what will be the status of 
the detainee after that sunset?
    Mr. McKeon. The security assurances negotiated with other countries 
to receive detainees from Guantanamo are classified by the Department 
of State. DOD defers to the Department of State on providing additional 
information to the committee regarding those assurances.

    27. Senator Ayotte. Secretary McKeon, how do we monitor whether 
each country is fulfilling its agreement?
    Mr. McKeon. DOD works closely with the Department of State and the 
Intelligence Community to continually monitor and assess a foreign 
government's adherence to its commitments regarding the resettlement of 
Guantanamo detainees. We do so through a variety of means, including 
diplomatic engagement and, where appropriate, through liaison services.

    28. Senator Ayotte. Secretary McKeon, is each country fulfilling 
its agreement?
    Mr. McKeon. The U.S. Government has regular conversations with 
foreign governments regarding the implementation of security measures 
following the transfer of individuals from Guantanamo to those foreign 
governments. In instances in which DOD receives information that 
suggests that a lapse has occurred, we work with the Department of 
State and other departments and agencies to take appropriate action 
commensurate with the nature of the occurrence. DOD defers to the 
Department of State on providing additional information to the 
committee regarding foreign governments' adherence to agreements.

    29. Senator Ayotte. Secretary McKeon, which one(s)?
    Mr. McKeon. The security assurances negotiated with other countries 
to receive detainees from Guantanamo are classified by the Department 
of State. DOD defers to the Department of State on providing additional 
information to the Committee regarding those assurances.

    30. Senator Ayotte. Secretary McKeon, what action was taken?
    Mr. McKeon. The U.S. Government has regular conversations with 
foreign governments regarding the implementation of security measures 
following the transfer of individuals from Guantanamo to those foreign 
governments. In instances in which DOD receives information that 
suggests that a lapse has occurred, we work with the Department of 
State and other departments and agencies to take appropriate action 
commensurate with the nature of the occurrence. DOD defers to the 
Department of State on providing additional information to the 
committee regarding specific actions taken.

    31. Senator Ayotte. Secretary McKeon, were detainees later 
transferred to any country that failed to fulfill an agreement?
    Mr. McKeon. DOD defers to the Department of State on providing 
information to the committee regarding foreign governments' adherence 
to agreements. DOD reviews previously negotiated security assurances 
and the status of prior detainee transfers when assessing whether to 
transfer additional detainees to a country. As required by the National 
Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66), the 
Secretary of Defense evaluates and takes into consideration any 
confirmed cases of former detainee reengagement when considering 
detainees for transfer to a particular country.

    32. Senator Ayotte. Mr. Rasmussen, of the 33 released/transferred, 
to what degree do U.S. intelligence officials have the ability to go 
back to ask the former detainees questions?
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.

    33. Senator Ayotte. Mr. Rasmussen, has the United States done that?
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.

    34. Senator Ayotte. Secretary McKeon, can the Taliban 5 go back to 
Afghanistan this summer?
    Mr. McKeon. The detainees transferred to Qatar do not currently 
possess travel documents that would permit their travel to Afghanistan. 
We remain in continuous communication with the Qatari and Afghan 
governments regarding the former detainees and their disposition 
following the expiration of the Memorandum of Understanding regarding 
their transfer on May 31, 2015.

    35. Senator Ayotte. Secretary McKeon, to be clear, if a released 
detainee generates terrorist propaganda, this is not technically 
considered reengagement, correct?
    Mr. McKeon. The Intelligence Community (IC) is responsible for 
assessments regarding former detainee reengagement in terrorist or 
insurgent activities and should be consulted for a definitive response 
to this question. The definition of terrorist or insurgent activities 
published by the IC includes: planning terrorist operations, conducting 
a terrorist or insurgent attack against Coalition or host-nation forces 
or civilians, conducting a suicide bombing, financing terrorist 
operations, recruiting others for terrorist operations, and arranging 
for movement of individuals involved in terrorist operations.

    36. Senator Ayotte. Secretary McKeon, can a member of al Qaeda or 
the Taliban play a significant role in terrorist planning and 
leadership without being in the respective country?
    Mr. McKeon. If left alone, it is possible that a member of al Qaeda 
or the Taliban can play such a role. It is for that reason that the 
Department of State works with a country that agreed to accept a 
detainee on provisions to ensure this doesn't happen. It is also the 
reason the intelligence community continues to focus on threats and the 
United States continues to work closely with allies and partners on 
shared security concerns.

    37. Senator Ayotte. Secretary McKeon, have any of the other 28 
detainees (not including the Taliban 5) transferred in 2014 or 2015 
reengaged in terrorism?
    Mr. McKeon. DOD defers to the Office of the Director of National 
Intelligence on information about former detainees who are confirmed or 
suspected of reengaging in terrorist activities. On February 27, 2015, 
the Department of Justice and the Office of the Director of National 
Intelligence submitted the latest edition of a classified report to 
this committee in accordance with section 319 of the Supplemental 
Appropriations Act of 2009 (Public Law 111-32). That report provides a 
description of the number of individuals released or transferred from 
Guantanamo who are confirmed or suspected of returning to terrorist 
activities.

    38. Senator Ayotte. Secretary McKeon, if yes, how so?
    Mr. McKeon. DOD defers to the Office of the Director of National 
Intelligence on information about former detainees who are confirmed or 
suspected of reengaging in terrorist activities.

    39. Senator Ayotte. Secretary McKeon, of the 107 detainees who are 
confirmed as reengaging in terrorism, which countries were they 
transferred to?
    Mr. McKeon. DOD defers to the Office of the Director of National 
Intelligence on information about former detainees who are confirmed or 
suspected of reengaging in terrorist activities.

    40. Senator Ayotte. Secretary McKeon, what kind of terrorist 
activities did they participate in?
    Mr. McKeon. DOD defers to the Office of the Director of National 
Intelligence on information about former detainees who are confirmed or 
suspected of reengaging in terrorist activities.

    41. Senator Ayotte. Secretary McKeon, of the 77 detainees who are 
suspected of reengaging in terrorism, which countries were they 
transferred to?
    Mr. McKeon. DOD defers to the Office of the Director of National 
Intelligence on information about former detainees who are confirmed or 
suspected of reengaging in terrorist activities.

    42. Senator Ayotte. Secretary McKeon, what kind of terrorist 
activity are they suspected of participating in?
    Mr. McKeon. DOD defers to the Office of the Director of National 
Intelligence on information about former detainees who are confirmed or 
suspected of reengaging in terrorist activities.

    43. Senator Ayotte. Secretary McKeon, have any former Guantanamo 
detainees been directly/indirectly involved in attacks against 
Americans or U.S. or coalition forces?
    Mr. McKeon. Unfortunately, former GTMO detainees have been 
responsible for or have contributed to the deaths of U.S. and coalition 
personnel since their transfer from GTMO. The Intelligence Community 
may be able to provide further information in a classified setting as 
to the details.

    44. Senator Ayotte. Secretary McKeon, have any of these attacks 
resulted in U.S. or coalition/allied deaths?
    Mr. McKeon. Unfortunately, former GTMO detainees have been 
responsible for or have contributed to the deaths of U.S. and coalition 
personnel since their transfer from GTMO. The Intelligence Community 
may be able to provide further information in a classified setting as 
to the details.
                                 ______
                                 
             Questions Submitted by Senator Jeanne Shaheen
                    guantanamo detainee assessments
    45. Senator Shaheen. Secretary McKeon, Mr. Rasmussen, Admiral 
Myers, can you explain in detail why the administration considers the 
assessments conducted by the Guantanamo Review Task Force and the 
Periodic Review Board to be superior to the assessments conducted 
previously?
    Mr. McKeon. The GTMO Review Task Force (EOTF) was an exhaustive 
interagency effort that took into account earlier assessments in the 
course of a more comprehensive review of U.S. intelligence and other 
information with respect to each detainee.

         The Task Force consisted of more than 60 career 
        professionals, including intelligence analysts, law enforcement 
        agents, and attorneys, drawn from the Department of Justice, 
        DOD, Department of State, Department of Homeland Security, 
        Central Intelligence Agency, Federal Bureau of Investigation, 
        and other agencies within the Intelligence Community.
         The Task Force assembled large volumes of information 
        from across the government relevant to determining the proper 
        disposition of each detainee. Task Force members examined this 
        information critically, giving careful consideration to the 
        threat posed by the detainee, the reliability of the underlying 
        information, and the interests of national security.
         Based on the Task Force's evaluations and 
        recommendations, senior officials representing each agency 
        responsible for the review reached unanimous determinations on 
        the appropriate disposition for all detainees. In the large 
        majority of cases, the Review Panel was able to reach a 
        consensus. Where the Review Panel was not able to reach a 
        unanimous decision--or when additional review was appropriate--
        the Principals met to determine the proper disposition.

    Similarly, the interagency Periodic Review Board consists of senior 
officials from the Departments of State, Defense, Justice, and Homeland 
Security, as well as the Offices of the Director of National 
Intelligence, and the Chairman of the Joint Chiefs of Staff. The 
Periodic Review Board's decisions are based on more current information 
than the EOTF determinations. Additionally, Principals from the 
agencies represented on the Periodic Review Board have the ability to 
request a review of decisions made by the Periodic Review Board and the 
Principals must review the decisions if the Periodic Review Board is 
not able to reach a consensus.
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
    Admiral Myers. Any decisions regarding detainee transfers should be 
based on all current information. The EOTF was an exhaustive 
interagency effort which took into account earlier assessments in the 
course of a more comprehensive review of U.S. intelligence and other 
information with respect to each detainee. Similarly, the interagency 
Periodic Review Board's decisions are based on even more current and 
comprehensive information than the EOTF determinations.

    46. Senator Shaheen. Mr. Rasmussen, in judging the continued risk 
posed by individual Guantanamo detainees, does the Intelligence 
Community believe that more recent risk assessments considered by the 
Guantanamo Review Task Force and Periodic Review Board offer a better 
picture of a detainee's risk profile compared to more dated 
assessments?
    Mr. Rasmussen did not respond in time for printing. When received, 
answer will be retained in committee files.
                           transfers to yemen
    47. Senator Shaheen. Secretary McKeon, a majority of those 
Guantanamo detainees who have been cleared for transfer are citizens of 
Yemen, a country that in just the past few weeks has experienced a 
total collapse of its government. Does the administration have any 
plans to transfer Yemeni detainees back to their home country as long 
as the security situation there is so precarious?
    Mr. McKeon. No. DOD is not aware of any plans to transfer 
Guantanamo detainees to Yemen given the current security situation 
there.
                                 ______
                                 
              Questions Submitted by Senator Joe Donnelly
                  stability of the guantanamo bay site
    48. Senator Donnelly. Secretary McKeon, in January 2015, Cuban 
President Raul Castro demanded that the United States return the 
Guantanamo Naval Base to Cuba as a part of normalizing diplomatic 
relations between our countries. I would not support such a concession 
given the strategic value of the base. What is DOD's position on that 
demand?
    Mr. McKeon. No. Assistant Secretary of State Roberta Jacobson 
recently testified to Congress that the issue of the Guantanamo Naval 
Station closure is not on the table during discussions with Cuban 
officials.

    49. Senator Donnelly. Secretary McKeon, whether through a political 
dispute, natural disaster or other circumstances, if the United States 
were to lose the ability to detain enemy combatants at Guantanamo Bay 
Naval Base and transfers to the United States remained prohibited, what 
is the back-up plan for housing the Guantanamo detainees?
    Mr. McKeon. I do not foresee a political dispute causing us to lose 
our ability to detain enemy combatants at Guantanamo Bay. The President 
as directed the closure of the detention center, and we are working 
toward that objective. As you note, transfers to the United States are 
currently prohibited. DOD has no other detention facility outside the 
United States. There are a number of potential locations in the United 
States that could safely and securely house detainees should transfers 
to the United States be permitted.
                                 ______
                                 
                Questions Submitted by Senator Tim Kaine
                        escapees and recidivism
    50. Senator Kaine. Secretary McKeon, of the 556 individuals tried 
and convicted of terrorism related charges in the Federal court system 
since September 11 has anyone ever escaped?
    Mr. McKeon. Although that is a question best answered by the 
Justice Department, in our interactions with the Justice Department, we 
have been informed several times that no one convicted of terrorism 
charges since September 11 has ever escaped from Bureau of Prisons 
maximum security facilities.
                               taliban 5
    51. Senator Kaine. Secretary McKeon, is there any evidence that any 
member of the Taliban 5 had ever engaged in violent activity against 
the United States, or any U.S. personnel, prior to or during the time 
they were in imprisoned at Guantanamo?
    Mr. McKeon. [Deleted.]
                                 trials
    52. Senator Kaine. Secretary McKeon, 556 individuals have been 
tried on terrorism or related charges in Federal court since September 
2001. Is it correct that military commissions have only conducted eight 
terrorism trials during this same period?
    Mr. McKeon. Military commission trials have resulted in eight 
convictions since September 2001. There are currently commissions cases 
ongoing involving seven other unprivileged enemy belligerents detained 
at Guantanamo Bay, Cuba. Military commissions are courts of limited 
jurisdiction created to try unprivileged enemy belligerents in cases 
that have very unique evidentiary challenges. These are factually and 
legally complex cases. As various appellate courts reviewed those 
cases, appellate rulings vacated two convictions and limited the 
charging options available to the prosecution for future and ongoing 
cases.
                           APPENDIX A


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