[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
__________
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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.
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