[Senate Hearing 117-870]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-870

                          CLOSING GUANTANAMO:
                      ENDING 20 YEARS OF INJUSTICE

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION
                               __________

                            DECEMBER 7, 2021
                               __________

                          Serial No. J-117-46
                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                        www.judiciary.senate.gov
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                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
56-184                    WASHINGTON : 2024                               

                       COMMITTEE ON THE JUDICIARY

                   RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                     THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee
             Joseph Zogby, Chief Counsel and Staff Director
      Kolan L. Davis, Republican Chief Counsel and Staff Director

                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page

Durbin, Hon. Richard J...........................................     1
Grassley, Hon. Charles E.........................................     3
Feinstein, Hon. Dianne...........................................     4

                               WITNESSES

Baker, Brigadier General John G..................................     6
    Prepared statement...........................................    40
Jaffer, Jamil N..................................................    13
    Prepared statement...........................................    51
    Responses to written questions...............................   176
Jestin, Katya....................................................    15
    Prepared statement...........................................    60
Kelly, Colleen...................................................     8
    Prepared statement...........................................   113
Khan, Majid
    Prepared statement...........................................    70
Lehnert, Major General Michael (Ret.)............................    11
    Prepared statement...........................................   156
Stimson, Charles "Cully".........................................    10
    Prepared statement...........................................   158
    Responses to written questions...............................   186

                                APPENDIX

Additional materials submitted for the record....................   194

 
                          CLOSING GUANTANAMO:
                      ENDING 20 YEARS OF INJUSTICE

                              ----------                              


                       TUESDAY, DECEMBER 7, 2021

                               United States Senate
                                 Committee on the Judiciary
                                                    Washington, DC.
    The Committee met, pursuant to notice at 10 a.m., in Room 
216, Hart Senate Office Building, Hon. Richard J. Durbin, 
Chairman of the Committee, presiding.
    Present: Senators Durbin [presiding], Feinstein, 
Whitehouse, Klobuchar, Blumenthal, Hirono, Booker, Ossoff, 
Grassley, Graham, Cornyn, Cruz, Hawley, Tillis, and Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,

            U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. This hearing of the Senate Judiciary 
Committee will come to order. Fyodor Dostoevsky is often quoted 
as saying that the degree of civilization in a society can be 
judged by entering its prisons. For the last two decades, the 
most notorious prison in America has been Guantanamo. We know 
it today, and we knew it when the Senate Judiciary Committee 
held its first hearing on closing the detention center at 
Guantanamo in 2013, eight years and three administrations ago.
    I chaired that hearing as Chairman of the Subcommittee on 
Constitution, Civil Rights, and Human Rights. At the time, many 
senior military officials, national security experts, and 
lawmakers on both sides of the aisles agreed that it was far 
past time to close Guantanamo Bay. It saddens me that this 
hearing today is even necessary.
    The story of Guantanamo is a story of a nation that lost 
its way. It is a story of unspeakable abuse and indefinite 
detention without charge or trial, elements that are just 
counterintuitive when you consider our constitutional values, 
and it's a story of justice delayed and denied again and again 
and again, not only for detainees but also for the victims of 
9/11 and their loved ones. Before we get started, I'd like to 
share some of these stories, with the following video.
    [Video presentation.]
    Chair Durbin. The stories of torture that have come out of 
Guantanamo and CIA black sites around the world are shocking 
and shameful. One detainee, whom we saw in the video, Majid 
Khan, recently testified during his sentencing hearing before a 
jury of high-ranking active-duty U.S. military officials. 
During his testimony, Mr. Khan detailed the torture that he 
suffered at the hands of the U.S. Government, including 
waterboarding and sexual abuse. When Mr. Khan's testimony 
concluded, seven of the eight jurors signed a handwritten 
letter recommending clemency.
    Make no mistake. Mr. Khan should be held accountable for 
his actions. As the members of the jury wrote eloquently, and I 
quote, ``Mr. Khan has been held without the basic due process 
under the U.S. Constitution. He was subjected to physical and 
psychological abuse well beyond approved enhanced interrogation 
techniques, instead being closer to torture performed by the 
most abusive regimes in modern history. This abuse was of no 
practical value in terms of intelligence or any other tangible 
benefit to U.S. interests.'' I might note, as I said earlier, 
seven of eight jurors wrote this handwritten letter to the 
court. All of them were career U.S. military officials.
    For nearly 20 years--20 years--the detention facility at 
Guantanamo has defied our constitutional values and the rule of 
law. Today, we live in a world in which the war in Afghanistan, 
our Nation's longest war, has finally come to a close, and yet 
Guantanamo remains open. Thirty-nine detainees remain, and more 
than two-thirds of them have never been charged with a crime. 
Let that sink in. Two-thirds have never been charged, in 20 
years. How can that possibly be justice?
    The other 12 detainees are in a military commission system 
that has failed time and again, in sharp contrast to our 
criminal justice system. For instance, the case against alleged 
9/11 co-conspirators who are detained in Guantanamo has never 
gone to trial, more than 20 years after the attack. There is no 
end in sight for these military commissions. They will not 
provide justice or closure that the families of those who died 
on 9/11 deserve. At the same time, since 9/11 the Department of 
Justice has successfully prosecuted nearly 1,000 individuals on 
terrorism-related charges, and they have been securely detained 
by the Federal Bureau of Prisons.
    We can, and we must, do better. President Biden transferred 
his first detainee in July, but at that pace, one detainee 
every 10 months, there will be dozens of detainees at 
Guantanamo, even if President Biden is elected to a second 
term. To finally close this facility, we need to take a new 
approach.
    Senator Leahy and I sent a letter to President Biden in 
April with 22 of our colleagues, including 8 members of this 
Committee, laying out the key steps the administration should 
take to close the prison. Getting this done will demand strong 
and effective leadership from the White House, as well as the 
special envoy at the State Department, to negotiate transfer 
agreements for the detainees who are not charged with crimes. 
It will demand swift and decisive action from the Justice 
Department, which has yet to bring its legal positions in line 
with the President's goal of closing Guantanamo.
    In July, I sent a letter to Attorney General Garland, 
urging him to revisit the Justice Department's defense of the 
Government's authority to indefinitely hold detainees without 
charge or trial and without due process at Guantanamo. I'm 
disappointed--disappointed that the President and Attorney 
General have yet to respond to my letters, and I'm disappointed 
the administration declined to send a witness to testify at 
today's hearing on how they're working to close Guantanamo. I'm 
going to continue to press this administration to take action 
and to end this injustice.
    The delays in closing this facility are not cheap, in terms 
of our reputation and in terms of our treasury. Every day 
Guantanamo remains open damages our moral standing and 
credibility, weakens our national security, and wastes 
taxpayers' dollars. How much does Guantanamo cost us? $540 
million every year, to keep it open. $540 million, for 39 
detainees.
    Worse yet, as I mentioned earlier, Guantanamo has failed to 
deliver justice to families who deserve it the most. One of 
those family members is with us today. I want to thank Ms. 
Colleen Kelly. I want to thank her because she's here today, 
making a sacrifice to appear, and of course she comes to us as 
a person who lost her younger brother Bill in the 9/11 attack. 
Thanks for your courage and your willingness to speak before 
the Committee. Families like yours deserve better.
    It's time for us to live up to the ideals our troops risk 
their lives to defend every day. It's time, at long last, to 
set partisanship aside and work together to close the detention 
facility at Guantanamo. I'll now turn to Senator Grassley for 
his opening remarks.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,

              U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Yes. Thank you, Mr. Chairman, and thank 
you to all the witnesses that have come. We know that you have 
to put in a lot of extra time to get ready for these things, 
and thank you for doing that.
    Today we have 39 men in the Guantanamo Bay. They include 
the mastermind of September 11th attack, Khalid Sheik Mohammed, 
and the mastermind of the attack on the USS Cole, Al-Nashiri. 
KSM and Nashiri are being prosecuted for their crimes in front 
of a military commission.
    In 2010, under President Obama, the current National 
Security Division Assistant Attorney General Matt Olsen led a 
review of the 240 detainees still in Guantanamo at that 
particular time. Only a small portion could be prosecuted, due 
to legal and evidentiary challenges. Some were set for transfer 
to other countries, and some were so dangerous that the task 
force recommended continued detention.
    President Biden has committed to closing Guantanamo by the 
end of his term. He is not the first President to attempt to do 
so. As the task force report explains, simply prosecuting or 
transferring a detainee is not an option in every case. 
Assistant Attorney General Olsen is not here to say whether he 
has changed his conclusions about continuing law-of-war 
detention at Guantanamo. There is no representative from the 
State Department to say what countries are newly able to 
provide adequate security for a transfer detainee.
    No one is here from the intelligence community, which has 
assessed that nearly 32 percent of the Guantanamo detainees are 
believed to have rejoined their war on the United States. The 
intelligence community isn't here to say that the top-tier 
leaders still at Guantanamo are safe for release. No one from 
the administration has come to defend the President's plan to 
close Guantanamo, and I'm not sure that there is a plan. 
Setting a goal, a policy goal, with no plan only invites 
disaster.
    Over the summer, we watched a no-plan approach unfold in 
Afghanistan. To meet a deadline by the end of August, President 
Biden ordered an American withdrawal over warnings from his own 
senior advisors. I fear that his plan to withdraw from 
Guantanamo detention facility might be no different.
    In making decisions on matters of national security, we 
must ask if a course of action make Americans more safe or less 
safe. Are we protecting the American people? Creating a 
potential safe haven for Al-Qaeda and ISIS in Afghanistan 
doesn't protect the American people. Bringing terrorists to the 
United States doesn't protect the American people. Releasing 
terrorists who will only seek to attack us again doesn't 
protect the American people.
    The safety of Americans is not the only question, though it 
is a top priority. Another question is that of accountability. 
I'd like to enter into the record a letter from Terry Strada.
    [The information appears as a submission for the record.]
    Terry is a mother of three who lost her husband, Tom, on 9/
11. Today, she's an active member of the 9/11 Families United, 
which serves thousands of families and survivors of the 9/11 
terrorist attack. She states that she and her family, and all 
of us, deserve justice for what happened. Like many victims' 
family members, she believes that means staying the course at 
Guantanamo.
    I'd like to read from her letter. Quote, ``That the war in 
Afghanistan has ended or that the new administration is in 
charge, none of that changes our need for prompt justice. None 
of that changes our need for an accounting based on the 
evidence collected over the years, evidence that may not be 
available anywhere else. Rather than lose the opportunity to 
obtain a modicum of justice for all those lost and all of us 
left behind, the military trial should continue to proceed 
under the guidelines of a military tribunal, uninterrupted and 
as swiftly as possible. The evidence amassed needs to be heard, 
for justice to be served and this dreadful chapter of our lives 
to close.'', end of quote.
    The victims of terrorism are not just those we lost on 9/
11, like Terry's husband, Tom. Over 4,000 service members have 
given their lives in the war on terror in Iraq and Afghanistan. 
The veterans of those wars have given life and limb to protect 
Americans from terrorists like those at Guantanamo Bay. I hope 
we will honor that sacrifice. I yield.
    Chair Durbin. Thanks, Senator Grassley.
    Senator Feinstein. Mr. Chairman. Oh, excuse me.
    Chair Durbin. Yes, Senator.
    Senator Feinstein. Do you need to call on others?
    Chair Durbin. I would be happy to defer to you, if you'd 
like to make a----
    Senator Feinstein. Thank you very much.
    Chair Durbin. Yes.

              STATEMENT OF HON. DIANNE FEINSTEIN,

           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. I care a great deal about this issue. I 
have visited Guantanamo. When I was Chairman of Intelligence, 
we released a report, which was a study of the detention and 
interrogation program, and this report detailed the enhanced 
interrogation techniques used against Guantanamo detainees at 
that time. It has changed since, but there are still real 
problems.
    In 2021, I introduced the bipartisan Due Process Guarantee 
Act, which would clarify that a generalized authorization for 
use of military force cannot, by itself, authorize detention 
without charge of a United States citizen or lawful permanent 
resident. I believe then, and I believe now, that this bill 
would help ensure the rule of law by preventing the indefinite 
military detention of U.S. persons without cause. Senators 
Whitehouse, Cruz, Lee, and Collins are co-sponsors of the bill.
    I am really concerned about having an offshore detention 
facility, which is subject to a consequential day trip to get 
there, and probably does not receive many visitors in a given 
year. In October 2021, seven of eight U.S. military officers 
serving on Mr. Khan's military commission jury wrote a letter 
recommending that he receive clemency. And I just want to read 
what they wrote. ``Mr. Khan's abuse was of no practical value 
in terms of intelligence or any other tangible benefit to U.S. 
interests. Instead, it is a stain on the moral fiber of 
America. The treatment of Mr. Khan in the hands of U.S. 
personnel should be a source of shame for the U.S. 
Government.''
    I am very concerned that things like this have, in the 
past, happened. I know firsthand about the isolation of the 
facility, and they can happen at any time. To me, it makes no 
sense to house our prisoners there whatsoever. One of the 
things that I hoped, many years ago when I went there, was that 
we would have the ability to close down that facility. I hope 
that this hearing may lead to that. Thank you very much.
    Chair Durbin. Thank you very much, Senator Feinstein. We're 
now going to turn to our panel of witnesses. Today we welcome 
six witnesses. I'll introduce the Government majority 
witnesses, then turn to the Ranking Member, Senator Grassley, 
to introduce the minority witnesses.
    We are pleased to be joined today by Brigadier General John 
D. Baker, the chief defense counsel for the Military 
Commissions Defense Organization. General Baker is going to be 
retiring at the end of this year after more than 32 years of 
service to our country. Thank you very much, General, for 
caring for America that way.
    Our first majority witness is Major General Michael 
Lehnert, who served on active duty in the Marine Corps for 37 
years. After 9/11, he served as the first joint task force 
commander at Guantanamo, where he was tasked with preparing the 
base to receive the first detainees, who arrived on January 
11th, 2002.
    We will also hear from Colleen Kelly. Ms. Kelly is a family 
nurse practitioner from the Bronx, New York; the mother of 
three kids; co-founder of 9/11 Families for Peaceful Tomorrows. 
Ms. Kelly's brother Bill Kelly lost his life in the North Tower 
on September 11th, 2001.
    Last but certainly not least, Katiya--did I--is it Katiya 
or Katiya?
    Ms. Jestin. It's Katya.
    Chair Durbin. Katya. Katya Jestin is co-managing partner at 
Jenner & Block and a former assistant U.S. attorney for the 
Eastern District of New York. Ms. Jestin has represented Majid 
Khan, a detainee at Guantanamo Bay, for over a decade.
    Ranking Member Grassley, would you like to introduce the 
minority witnesses.
    Senator Grassley. Yes. Professor Jamil Jaffer----
    Chair Durbin. Can you turn your button on?
    Senator Grassley. What? I'm sorry. I didn't turn on my 
microphone. Professor Jaffer currently serves as founder and 
executive director of the National Security Institute and is an 
assistant professor of law and director at the National 
Security Law and Policy Program at the Scalia Law School, 
George Mason University. Professor Jaffer previously served as 
chief counsel and senior advisor to the Senate Foreign 
Relations Committee, senior counsel to the House Intelligence 
Committee, associate counsel to President George W. Bush, and 
counsel to Assistant Attorney General for National Security at 
the U.S. Department of Justice.
    Mr. Charles Stimson is a deputy director at the Edwin Meese 
Center for Legal and Judicial Studies and manager of the 
National Security Law Program at The Heritage Foundation. 
Before joining the Foundation in 2007, Mr. Stimson served as 
Deputy Assistant Attorney--Assistant Secretary of Defense for 
Detainee Affairs. He advised then-Secretaries of Defense Donald 
Rumsfeld and Robert Gates and coordinated the Pentagon's global 
detention policy operations, including at Guantanamo Bay and 
Iraq and Afghanistan. Mr. Stimson has also served as a military 
prosecutor, defense counsel, and recently served as deputy 
chief judge, Navy-Marine Corps Trial Judiciary. He continues to 
serve, with the rank of captain, as commanding officer of the 
preliminary hearing unit. Thank you both for coming.
    Chair Durbin. Thanks, Senator Grassley. After we swear in 
the witnesses, each witness will have five minutes to provide 
opening statements, and then rounds of questions, each senator 
having five minutes. Please try to remain within your allotted 
time. First, could all the witnesses please stand to be sworn 
in? Kind enough to raise your right hand.
    [Witnesses are sworn in.]
    Chair Durbin. Let the record reflect that the witnesses 
have all answered in the affirmative. General Baker, will you 
proceed with your opening statement, please?

             STATEMENT OF BRIGADIER GENERAL JOHN D.

                BAKER, CHIEF DEFENSE COUNSEL FOR

              MILITARY COMMISSIONS, UNITED STATES

             DEPARTMENT OF DEFENSE, WASHINGTON, DC

    Brigadier General Baker. I thank Chairman Durbin and the 
members of the Senate Judiciary Committee for inviting me to 
testify today. I'd like to emphasize at the outset that I'm 
testifying solely as the chief defense counsel for the Military 
Commissions Defense Organization and not on behalf of any 
accused. Moreover, to be clear, the views that I am about to 
express do not reflect the views of the United States, the 
Department of Defense, or any Defense Department agency other 
than my own.
    My views do reflect, however, 32 years of service in the 
United States Marine Corps as a supply officer and as a judge 
advocate, including as a prosecutor and as a military judge. As 
you noted, I retire at the end of this year after six and a 
half years as the chief defense counsel for the Military 
Commissions.
    The title of this hearing is ``Closing Guantanamo: Ending 
20 Years of Injustice.'' Because my authority is limited to 
oversight of the Military Commissions' defense function and not 
on other detention operations, I will not address the issue of 
closing Guantanamo. However, I can and I will speak to ending 
20 years of injustice.
    The only path to ending injustice in the military 
commissions for the defendants, for the country, and, above 
all, for the victims is to bring these military commissions to 
as rapid a conclusion as possible. Notice I don't say ``as just 
a conclusion as possible.'' It is too late in the process for 
the current military commissions to do justice for anyone.
    The best that can be hoped, more than 20 years after the 
crimes were committed, is to bring this sordid chapter of 
American history to an end, and that end can only come through 
resolutions negotiated in good faith by the parties. Whatever 
the intentions, no one today can seriously argue that the 
military commissions in Guantanamo have been anything but a 
failed experiment.
    In their almost 20 years of existence, under four different 
presidents, the military commissions have produced one final 
conviction. To be sure, there have been seven other 
convictions, but three were overturned in their entirety, and 
the other four have not completed the appeals process.
    The victims have waited 20 years in vain to see justice 
done. The 9/11 conspiracy was originally charged in 2008, 
almost 14 years ago, and there is no date set for trial. The 
fact that the military commissions have been unable to bring 
the men charged with the worst criminal act in United States 
history to trial, 20 years after the fact, is alone enough to 
indict the system as a failure. In fact, none of the active 
cases have a trial date set.
    These delays are a direct result of the Government's 
decisions that have corrupted the process from the outset and 
have made legitimate convictions and fair sentences virtually 
impossible. The ultimate source of the commissions' problem is 
their original sin: torture. The United States chose to 
secretly detain and torture the men it now seeks to punish. 
This torture impacts and undermines every aspect of these 
prosecutions.
    More specifically, the Government's fear that the truth 
will become public is what has been the most destructive to a 
fair process. The Government has effectively refused even to 
disavow its use of torture, by adopting morally indefensible 
positions, like arguing for the admissibility of torture-
derived evidence in pretrial proceedings. As I discuss in my 
written testimony, there are a multitude of flagrant and 
potentially reversible legal violations infecting the 
commissions' cases that I don't have time to discuss here. But 
it is on the basis of this record, with these sorts of due 
process errors baked in, that Federal appeals courts will 
decide whether the military commissions' defendants received a 
fair trial and whether their sentences, including any death 
sentence, can be allowed to stand.
    Even if these proceedings were otherwise fair, which they 
manifestly have not been, or if the defendants had not been 
tortured cruelly by the United States, which they were, it is 
unconscionable that the Government is gambling closure for the 
victims, along with extraordinary resources and endless delays, 
in an attempt to attain such fragile verdicts and dubious death 
sentences. The more humane route, for all parties, is 
negotiating resolutions that give the victims at least a 
modicum of justice and the closure they deserve, now.
    I will conclude on a more optimistic note, by assuring you 
that as long as the military commissions remain open, the 
Military Commissions Defense Organization's defense teams will 
continue to be the voice for justice at Guantanamo Bay. I thank 
you again for your invitation and for your time and attention.
    [The prepared statement of General Baker appears as a 
submission for the record.]
    Chair Durbin. Thank you, General. Ms. Colleen Kelly.

                  STATEMENT OF COLLEEN KELLY,

                 CO-FOUNDER, 9/11 FAMILIES FOR

              PEACEFUL TOMORROWS, BRONX, NEW YORK

    Ms. Kelly. Thank you. Good morning, Chairman Durbin, 
Ranking Member Grassley, Members of the Committee. Thank you 
for this opportunity to share my story.
    I'm a family nurse practitioner in the Bronx, New York, and 
the mother of three grown children. My younger brother, Bill, 
was killed in the North Tower of the World Trade Center on 
September 11th.
    Bill was 30 years old and starting to really come into his 
own. He was a decent chef, bartender, an ever-hopeful duck 
hunter, and a guy as comfortable in surfing shorts as in a 
business suit. Bill worked at Bloomberg Tradebook, and his four 
sisters would fight over who got to be Bill's date at the 
annual holiday party.
    Bill didn't work at the Trade Center. He happened to be 
there for a conference that he had repeatedly asked his boss 
for permission to attend. Bill's boss acquiesced, so in a twist 
of fate, Bill was in the wrong place at the wrong time. Bill 
sent messages to his co-workers, saying he was trapped, and at 
first he was hopeful that the fire department would save him. 
Three hundred forty-three firefighters lost their lives that 
day, attempting to do just that.
    I tell you this to emphasize that each of the 2,977 people 
murdered on September 11th has a family, has co-workers and 
friends. For all of us in this country, there's been no justice 
or no accountability as yet.
    Bill, my sisters, and I grew up in a divided household of 
sorts. My mom is a Democrat, and my dad's a Republican. I feel 
pretty comfortable sitting here today in another divided 
household. This feels like my family dinner table with a few 
extra friends.
    Last week, I asked my 84-year-old father for his thoughts 
about the 9/11 military commissions. His reply? ``This is not 
justice.'' After 9/11, I co-founded September 11th Families for 
Peaceful Tomorrows. Each of our 260 members lost a relative on 
9/11. We believe that the rule of law is a bedrock principle of 
our Nation, and after 9/11 we expected our Government to uphold 
the rule of law in seeking accountability for our relatives' 
deaths, yet this has failed to happen.
    Peaceful Tomorrows obtained official observer status in the 
commissions because we felt it was important to bear witness 
not only for our loved ones but for the outside world. I come 
to the following conclusions having observed the commissions 
both firsthand at Guantanamo and at family viewing sites. Five 
men in Guantanamo stand accused of planning and supporting the 
9/11 attacks. A trial has not begun. Instead, we have heard 
nine and a half years of argument in pretrial hearings, and 
instead of learning how and why the attacks that killed our 
family members were carried out, we have listened to seemingly 
endless litigation largely concerned with obtaining classified 
information about the defendants' torture.
    Families have watched in frustration as one judge after 
another has been replaced. There is a new acting chief 
prosecutor, a soon-to-be-new chief defense counsel, a new 
learned counsel for one of the five defendants, and numerous 
other changes. I've lost count of the number of convening 
authorities, but I know it's more than 10.
    In May 2012, I sat with my dear friend Rita Lasar, watching 
the arraignment of the 9/11 accused. Rita's brother, Abe, died 
when he stayed behind to assist a disabled co-worker on the 
27th floor of the North Tower. Rita is now deceased. In 2017, I 
was on the plane to Guantanamo with Lee Hanson, the only 9/11 
family member to be deposed in the pretrial hearings. Lee 
Hanson lost his son, his daughter-in-law, and his granddaughter 
on Flight 175. Mr. Hanson is now deceased. In 2019, I was on a 
boat crossing Guantanamo Bay with Alice Hoagland, mother of 
Flight 93 hero Mark Bingham. Alice Hoagland is now deceased.
    The point is that family members want a measure of 
accountability and justice before our deaths. Today, I'm asking 
this commission to acknowledge that the military commissions 
have failed and to help us gain some form of resolution through 
plea agreements in the 9/11 case. We understand that, in 
exchange for guilty pleas, the Government would likely drop the 
death penalty. What we would hope to finally get, however, is 
answers to our questions about 9/11, information we've been 
denied for two decades.
    Some may not see this as justice. Indeed, it is not the 
outcome that our organization advocated for at our founding, 
but it is a way forward. Twenty years ago, while people around 
the globe watched the towers burn, I watched my brother Bill 
being murdered, one agonizing moment after another. My family 
still does not have any of my brother's remains.
    I'm asking this Committee to deliver the next best thing: a 
resolution to the 9/11 cases that provides justice for the 
deaths of our family members, answers to our questions, 
accountability for unlawful acts, and a path to closing 
Guantanamo. Perhaps then this long-festering collective 
national wound can finally begin to heal. Thank you, and I look 
forward to discussing further.
    [The prepared statement of Ms. Kelly appears as a 
submission for the record.]
    Chair Durbin. Thank you, Ms. Kelly. Mr. Stimson.

            STATEMENT OF CHARLES ``CULLY'' STIMSON,

                DEPUTY DIRECTOR, EDWIN MEESE III

             CENTER FOR LEGAL AND JUDICIAL STUDIES;

            MANAGER, NATIONAL SECURITY LAW PROGRAM,

            THE HERITAGE FOUNDATION, WASHINGTON, DC

    Mr. Stimson. Mr. Chairman, Mr. Ranking Member, and Members 
of the Committee, thank you for the opportunity to testify 
today. My name is Charles Stimson. I'm a senior legal fellow at 
The Heritage Foundation, but I am testifying in my own behalf 
and not that of the The Heritage Foundation or the Navy or the 
Department of Defense or any other organization, although my 
views do reflect my 29 years in uniform as a defense counsel, 
prosecutor, and military judge, as an assistant U.S. attorney, 
and my time at the Pentagon as the head of detainee policy 
during the Bush administration.
    Let me say what a privilege it is to be testifying with 
each of the panelists here today, each of whom I hold in the 
highest esteem, especially my friend John Baker, who has given 
32 years of distinguished service to this country, and whose 
written testimony I would like to associate myself with. I'd 
like to make five quick points.
    First, the United States remains in a state of armed 
conflict, and as such, we are entitled under domestic and 
international law to detain opposing enemy forces for the 
duration of the hostilities, including the terrorists currently 
at Guantanamo Bay. This is the first war in history, as we 
celebrate the 80th anniversary of the bombing of Pearl Harbor, 
where we've let the enemy go during the war. Because of the 
hard work by the Bush and Obama administrations, we know who 
each of the 39 detainees are, the threat that they pose, and 
the risk that we would need to accept if we decided to 
transport any more of them before the conflict ends.
    Second, since at least 2005, the detention facility at 
GITMO has been a safe, secure, and humane detention facility 
for law-of-war detainees, and it complied with the Common 
Article 3 to the Geneva Conventions. That's not my opinion. 
That's the opinion and findings of both the Bush and Obama 
administrations. In fact, after the deputy head of the 
Organization for Security and Co-operation in Europe, Alain 
Grignard, visited Guantanamo in 2006, he told a newspaper in 
Belgium the following, quote, ``At the level of the detention 
facilities, it is a model prison where people are better 
treated than in Belgian prisons.''
    Now, there was, as is well documented, detainee 
mistreatment when the facility was first opened. That was 
inexcusable. It was unacceptable and not consistent with our 
values as Americans. Since then, detainee care and treatment 
has been improved, and since President Bush's second term and 
beyond, detainee care and treatment, including medical and 
dental care, nutrition, and the like, have far exceeded that 
required by law.
    Third, the President has wide discretion, as the Commander-
in-Chief, to decide where to detain opposing enemy forces, how 
long to detain them, and whether and when to release or 
transfer them during an ongoing armed conflict. It's ironic, on 
this 80th anniversary of the attacks at Pearl Harbor, that we 
are debating the location of where to keep enemies of the 
United States or whether we should even consider detaining them 
during an ongoing armed conflict. Twenty-one percent of the 
detainees transferred during the Bush administration are 
confirmed to have reengaged in terrorist activity, according to 
the DNI.
    Fourth, the debate over closing Guantanamo has been overtly 
political. The year 2009 was the most opportune time for an 
administration to close Guantanamo. President Obama won the 
White House promising to close GITMO. Democrats held a 57-to-41 
majority in the U.S. Senate. Similarly, in the House of 
Representatives, the Democrats enjoyed a 257-to-178 advantage.
    If the President needed any legislation to close 
Guantanamo, which is debatable, or simply the political backing 
of the parties--of the majorities of both houses of Congress, 
the stars were aligned for him to do so. He failed, in large 
part because some Members of Congress failed to show the 
political courage of their own convictions, as I detailed in my 
written testimony.
    Finally, I conducted the first classified study of how to 
close GITMO back in 2006, when I ran detainee policy in the 
Bush administration. I was prepared to help close the facility 
then, if ordered to do so, and I would've supported its closure 
in a responsible way. In fact, I spoke to the Obama detainee 
policy task force when they took office, early on, and advised 
them how to close it responsibly. As I detailed in my written 
remarks, to close Guantanamo in a responsible manner, an 
administration must focus on the legal, logistical, political, 
and diplomatic challenges, as I detailed in my testimony, and 
then spend the political capital and show courage to get it 
done.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Stimson appears as a 
submission for the record.]
    Chair Durbin. Thank you very much, Mr. Stimson. Major 
General Michael Lehnert.

               STATEMENT OF MAJOR GENERAL MICHAEL

              LEHNERT [RET.], UNITED STATES MARINE

                 CORPS, WILLIAMSBURG, MICHIGAN

    Major General Lehnert. Chairman Durbin, Ranking Member 
Grassley, Members of the Committee, thank you for the 
opportunity to appear before you.
    The goal of terrorists is to change our behavior and make 
us live in fear. By that metric, they have accomplished their 
mission. Each of you will recall those terrible days after 9/
11. Some of you were here. Others among you wore the uniform of 
your nation's military, as I did. All of us felt an incredible 
responsibility to the American people we'd sworn to protect. 
Constituents demanded answers and action.
    I was a newly appointed brigadier general assigned to 
command a force of 8,000 Marines and sailors at Camp Lejeune, 
North Carolina when the world changed. As we began to take 
captives in Afghanistan, the question about what to do with 
them became imperative. The Bush administration settled on 
Guantanamo.
    I had previously commanded a force charged with securing 
18,000 Cuban and Haitian migrants at Guantanamo. Because of 
this background, the urgency of the situation, and the Marine 
Corps' ability to deploy rapidly, I was chosen to lead a joint 
task force to build secure facilities to hold the first 100 
detainees. We received our deployment order on Friday, January 
4th, 2002. We were given 96 hours to deploy to Cuba and build 
the first 100 cells.
    My mission to set up GITMO and run it until the Army could 
take over lasted about 100 days. The speed of Guantanamo's 
creation and the urgency to gain information had bad 
consequences. The legal ambiguities that make Guantanamo an 
attractive choice for some policymakers sets up extraordinary 
challenges for soldiers, sailors, airmen, and Marines who must 
execute these policies. We do not shed our oath to the 
Constitution or responsibility to adhere to U.S. laws and the 
international norms when we deploy.
    The subsequent decision to subject detainees to enhanced 
interrogation techniques, and to avoid application of the 
Geneva Conventions except when it suited us, cost us 
international support and aided the cause of our enemies. 
Speaking plainly, we are where we are today because of those 
misguided policy decisions to cast aside our values and the 
rule of law. I am not an attorney, but even I know that when 
you forgo generations of legal thought and precedent, bad 
things happen.
    The vast majority of the 780 men sent to Guantanamo never 
should have been there. Among the 39 prisoners who remain in 
Guantanamo, there are some who need to pay the price for their 
crimes, but what we have now is not justice. There is no 
justice for the detainees. More importantly, the relatives of 
the victims of 9/11 and of other terror attacks deserve 
justice, and they deserve closure, and they aren't getting it.
    Who gains by keeping Guantanamo open? Not America. Those 
who would harm us are the ones who gain. They point to the 
existence of Guantanamo as proof that America is not a nation 
of laws. They use Guantanamo as a recruiting tool. They do not 
want us to close Guantanamo. Some of you might be thinking, 
``My constituents don't ever ask me about Guantanamo,'' and 
you'd be correct. Most of America has forgotten about 
Guantanamo. Hear me when I tell you that our enemies have not.
    Closing Guantanamo responsibly restores the reputation of 
America, ensures accountability for those who have committed 
crimes against us, and provides closure for the families of 
those they have harmed. The issue isn't whether to close 
Guantanamo, but how. How do we close it? Here are some 
suggestions.
    First, make someone in the White House clearly responsible 
for closure and give them a finite period of time to make it 
happen. I was given 96 hours to open it. Ninety-six days to 
close it seems reasonable. Whoever gets this thankless job 
needs to have the authority to direct the necessary elements of 
our Government to make it happen.
    Second, there also needs to be a senior official at the 
State Department in charge of negotiating transfer. More than 
two-thirds of the remaining detainees, 27 of them, have not 
been charged with any crime. These detainees must be 
transferred either to their country of origin or a willing host 
nation. Thirteen have already been approved by transfer by our 
defense and intelligence agencies. Continuing to hold these 
uncharged detainees costs the U.S. taxpayer $13 million 
annually per detainee, ties up troops that could be used 
elsewhere, and makes a mockery of our system of justice. Let's 
stop admiring the problem and transfer these detainees out of 
GITMO without further delay.
    For the remaining 12 who have been charged, it is time that 
we recognize that the commissions have failed. I have little 
sympathy for these men and a great deal of empathy for their 
victims, but by any objective standard, the military 
commissions have failed, while our Federal courts have been 
remarkably successful, holding our enemies responsible and 
securing significant sentences for terrorists. The victims of 
these men deserve justice. They deserve closure. They do not 
find it through military commissions, even though some very 
good people have tried to make them work.
    At this point, we must bring these cases to close through 
negotiated plea agreements even if we want to see resolution in 
our lifetimes. It may require taking the death penalty off the 
table. If that is the case, so be it. The death penalty serves 
no useful purpose other than providing martyrs for our enemies.
    Again, I am not a lawyer, but I understand that plea deals 
could be reached within the commissions themselves or by video 
in Federal court. In those agreements, the parties can make 
arrangements for where convicted defendants will serve out 
their sentence.
    Some of you are going to worry that the detainees who are 
released might turn around and try to harm us. The question of 
risk is real, and I acknowledge it. My life as a Marine 
involved managing risks, but in my view, the damage caused by 
continuing to ignore the rule of law and gifting a recruitment 
tool to our enemies far outweighs the risk that some of these 
aging and sickly detainees might one day reengage in terrorism.
    It is hard to overstate how damaging the continued 
existence of Guantanamo has been to our national security and 
the fundamental values we stand for as a Nation. Who we are 
cannot be separated from what we do. It is past time to close 
Guantanamo and reaffirm who we are as a Nation. Thank you.
    [The prepared statement of Major General Lehnert appears as 
a submission for the record.]
    Chair Durbin. Thank you, General. Mr. Jamil Jaffer. I hope 
I pronounced it correctly.

             STATEMENT OF JAMIL N. JAFFER, FOUNDER

           AND EXECUTIVE DIRECTOR, NATIONAL SECURITY

              INSTITUTE AND ASSISTANT PROFESSOR OF

            LAW AND DIRECTOR, NATIONAL SECURITY LAW

             AND POLICY PROGRAM, ANTONIN SCALIA LAW

                SCHOOL, GEORGE MASON UNIVERSITY,

                       FAIRFAX, VIRGINIA

    Professor Jaffer. Thank you, Chairman Durbin, Ranking 
Member Grassley, and Members of the Committee. I appreciate the 
opportunity to testify today and discuss the detention of 
terrorists at Guantanamo Bay, Cuba and the current threat 
facing our Nation from terrorists.
    Members of the Committee, the fact of the matter is, the 
war on terror is not over. The Director of the FBI, the 
Director of the National Counterterrorism Center, the Director 
of National Intelligence, our Chairman of the Joint Chiefs of 
Staff, and the Commander of U.S. CENTCOM have all made that 
abundantly clear. Worse still, our enemies have made that 
abundantly clear. They continue today to plot terrorist attacks 
both here in the United States as well as abroad.
    It is in that context that we are discussing the question 
of what to do about the detainees remaining at Guantanamo Bay. 
We know today that ISIS and Al-Qaeda continue to aspire to 
conduct major terrorist attacks here in the homeland. To be 
sure, their capacity to conduct such attacks has been reduced, 
including, over the last two years, by the sustained 
counterterrorism pressure that has been brought to bear by this 
administration and the prior administrations before it. That 
being said, new ungoverned spaces continue to arise in places 
like Afghanistan, where our precipitous withdrawal has allowed 
the Taliban to return to power, terrorist supporters of the Al-
Qaeda network to remain members of the government in the 
Taliban government, and ISIS-K, ISIS-Khorasan, to continue to 
plot terrorist attacks, including the deadly attack killing 13 
American soldiers at Hamid Karzai International Airport earlier 
this year.
    We know that our enemies continue to target us. We know 
that the war on terror continues. The question, then, is, what 
do we do about these detainees? We know also that these 
detainees currently remaining at Guantanamo Bay--some of them 
represent the most hard-core, the most committed of the 
terrorists we've captured in this conflict. To be sure, these 
individuals have aged with time. They've been out of the fight, 
some for two decades. That doesn't change the fact that they 
represent some of the most committed terrorists out there.
    This takes place, also, in the context of the fact that we 
know that individual terrorists and their release and their 
return to the fight can have a huge impact on the operations of 
terrorist networks. One need only look at Al-Qaeda in the 
Peninsula, which began as a cavalcade of small groups that came 
together under the leadership of Anwar al-Awlaki and the 
inspiration of Samir Khan, both Americans, who took to the 
fight there in Yemen and made Al-Qaeda in the Arabian Peninsula 
one of the most threatening terrorist groups to Americans here 
at home.
    The number of attacks that AQAP conducted, both in Yemen 
and threatened against the United States, in the aftermath of 
just two Americans joining the fight, was significant. And so 
when we consider what to do with these detainees--continue to 
detain them, transfer them, plead them out, or the like--the 
question must become, ``What happens if, eventually, they do 
return to the battlefield?''
    This is not a theoretical threat. We know, because of what 
the Office of International Intelligence has told us, that over 
the 800 detainees that have been--the 700-plus detainees that 
have been released from Guantanamo Bay, one-third, fully one-
third, have returned to the fight or are suspected to have 
returned to the fight. These are not theoretical questions we 
face. These are very real questions.
    To be sure, the situation at Guantanamo Bay is not ideal. 
It has not been ideal since the beginning, and the things that 
have taken place both at Guantanamo Bay and at other places 
during the capture, rendition, and detention of terror suspects 
have been a challenge to our Nation and its character. At the 
same time, when we consider what to do with the remaining 39 
individuals, we must ensure that the American people are fully 
and adequately protected.
    If we think about bringing these detainees to the United 
States, we must ask ourselves, ``What rights will they gain 
under our laws? What opportunities will they have that they 
don't have today?'' We know that, at Guantanamo Bay, the 
Supreme Court has said these detainees have the right to habeas 
corpus, but they have no other rights under our Constitution.
    They are foreign nationals held during an ongoing conflict. 
If we bring them voluntarily to the United States, there is a 
possibility that they'll receive significantly more rights and 
significantly more opportunities under our own laws. As a 
result, as we think about these very hard and difficult 
questions, we have to consider both the individuals at 
Guantanamo Bay, their status, and the continued ongoing war on 
terror.
    Thank you for the opportunity to present my views. I look 
forward to your questions and ideas.
    [The prepared statement of Professor Jaffer appears as a 
submission for the record.]
    Chair Durbin. Thank you very much. Ms. Jestin.

             STATEMENT OF KATYA JESTIN, CO-MANAGING

        PARTNER, JENNER & BLOCK, NEW YORK CITY, NEW YORK

    Ms. Jestin. Chairman Durbin, Ranking Member Grassley, 
Members of the Committee, thank you very much for the 
opportunity to address you here today. My name is Katya Jestin, 
and I'm a lawyer at Jenner & Block in New York.
    I've spent my career practicing criminal law, both on the 
defense side and as a Federal prosecutor. Through my experience 
as a prosecutor, I developed a deep respect for the rule of 
law. There can be no serious dispute, in 2021, that Guantanamo 
is a failure. It harms our national security, undermines the 
rule of law, and weakens our international standing.
    As the title of today's hearing correctly states, 
Guantanamo has produced 20 years of injustice. The military 
commission system is a glaring example of that injustice. The 
system has failed in virtually every respect. It has shamefully 
failed the victims of terrorism and their families. It has been 
20 years since 9/11, and this chapter needs to be closed.
    I have spent months in the detention facility in 
Guantanamo. For over 10 years, I have represented Majid Khan, a 
man who committed serious crimes. Majid also spent years in CIA 
black sites and suffered unspeakable acts of violence and 
abuse, torture; but notwithstanding the very un-American 
treatment that he received at the hands of U.S. personnel, 
Majid determined to resolve his case in the military 
commissions.
    He took responsibility for his crimes, and he pled guilty. 
He became a cooperator, and he has been assisting the United 
States for decades. Given his cooperation, he is to complete 
his military commission sentence in February 2022, and will 
need to be transferred then from Guantanamo to a place and in a 
manner consistent with the way the Government treats 
cooperators in important cases.
    Majid's case charts a course here about how the Government 
can and should resolve the remaining military commissions 
cases, which is a critical part of fulfilling the Government's 
policy objective of closing Guantanamo. The remaining contested 
cases currently pending in the commissions system are going 
nowhere. Let's be honest. These cases are as far from a trial 
now as they were when they began, most many years ago. Put 
bluntly, the contested proceedings in the military commissions, 
as opposed to negotiated guilty pleas, are doomed to fail for 
at least two reasons.
    First, the commissions lack legal clarity. They are 
perpetually mired in unsettled, complex legal issues that 
scuttle any effort to conduct trials apace. Second, there is 
the issue of torture and the cloak of secrecy surrounding it 
that the executive branch still fights to maintain. Torture 
infects almost every aspect of a commission's proceeding. It is 
the third rail in the system.
    The quagmire of the commissions is a miscarriage of justice 
for the victims of terrorism and their families, like my co-
panelist Colleen Kelly, who lost her brother on 9/11. And 
Colleen deserves better from our Government. The victims and 
their families deserve transparency about what happened and who 
was involved in 9/11, for a modicum of closure.
    Make no mistake, unless the White House proceeds with a 
comprehensive Guantanamo closure policy, this quagmire will 
remain, and the shameful status quo will continue. The 
commissions is merely a thin veneer of a legal process that 
serves one objective, and that is to keep the detainees under 
wraps so that they cannot describe what happened to them in CIA 
detention.
    That, above all else, appears to be the goal of the 
military commissions. Not truth, not justice, not 
accountability. They exist merely to keep the dark chapters of 
our recent history in the shadows, and continuing to litigate 
the contested cases is the legal equivalent of a road to 
nowhere.
    What of the 27 other men there who have not been charged 
with any crime? They need to be transferred. How can we, as a 
Nation, indefinitely charge human beings, with no charge and no 
trial, for 20 years, without any foreseeable end? What does 
this say about our adherence to democratic principles and the 
rule of law?
    In closing, I want to remember the words of Senator John 
McCain, in 2008, when he asked a question that I ask each of 
you today: ``What is the moral superiority of the United States 
of America if we torture prisoners?'' What makes this country 
great, what makes me proud to be an American, is what we aspire 
to be, and Guantanamo falls far short of those aspirations. 
Thank you.
    [The prepared statement of Ms. Jestin appears as a 
submission for the record.]
    Chair Durbin. Thanks so much for your testimony. I'll begin 
the questioning. Let me say at the outset, General Baker and 
General Lehnert, and to all the members of the panel, this is 
some of the most powerful testimony I've heard, and the 
credibility that General Baker and retired General Lehnert 
bring to this issue really makes it even more powerful and 
forceful. Both of you have enjoyed responsibilities commanding 
our men and women in uniform and also accepting assignments. As 
you mentioned, General Lehnert, 96 hours to set up something 
like a Guantanamo detention facility is an incredible 
assignment.
    In reading your testimony, particularly General Baker, it's 
very clear to me what's happened. You say, at one point, ``The 
military commissions have been unable to bring the men charged 
with the worst criminal act in United States history to trial, 
20 years after the fact, and 14 years after they were first 
charged. This, alone, is enough to prove that the system has 
failed.''
    It seems to me that we put these prisoners, these 
detainees, in a black hole on an island which we could claim is 
not part of the territory of the United States, and decided we 
would treat them in some kind of unusual legal manner, with 
these military commissions. As the testimony has made clear, 
that experiment failed, and you said as much, General Baker, in 
your opening statement.
    General Lehnert has suggested there come a point where the 
best we can hope for, to finally put an end to this chapter, is 
some sort of plea negotiation in terms of the outcome and where 
these prisoners are held, if they're held, from this point 
forward. General Baker, would you like to comment on that 
suggestion?
    Brigadier General Baker. Yes, sir. I would agree that plea 
negotiation resolution is the only way out. I became the chief 
defense counsel in 2015. We're further from trial today than we 
were when I started. This legal quagmire--I just--I don't see a 
way out. The status quo is not working.
    Chair Durbin. I'd like to ask you and General Lehnert to 
respond to Mr. Jaffer. Is any type of resolution for these 
detainees being held going to give aid and comfort to the enemy 
and put America at risk?
    Brigadier General Baker. I think that what's putting 
America at risk is the status quo, is continuing down this 
road.
    Chair Durbin. General Lehnert.
    Major General Lehnert. Senator Durbin, I agree with General 
Baker. I'd also add the point--and with respect to our minority 
witnesses, who I thought did a remarkable job--you know, I had 
held 13 separate commands in 37 years. With command comes a 
remarkable power and authority, and one of the questions I 
would always ask myself is not ``can we'' do something, but 
``should we'' do something?
    I think, in this particular case, we have a responsibility 
here today to ask ourselves how history is going to judge the 
United States in the long term. In my view, it is time to close 
Guantanamo, sir.
    Chair Durbin. Ms. Jestin, it was an extraordinary thing 
when seven of the eight jurors in your client's case created 
this handwritten letter, which we have a copy of. Can you 
explain the circumstances behind that?
    Ms. Jestin. Thank you, Senator. Yes. At Mr. Khan's 
sentencing hearing that occurred this year, at the end of 
October, Mr. Khan, through agreement with the Government, was 
given the opportunity to speak for about two hours about what 
happened to him while he was in CIA custody. He did so, and it 
described in a fair amount of detail what he was subjected to 
while in the black sites.
    At the end of the proceedings, the military panel of jurors 
was given the opportunity to not only render a decision on his 
sentencing, but to suggest clemency, should they wish to do so. 
They made the decision to do so and supplied that written 
clemency letter, that you quoted from at the beginning of these 
proceedings, at Mr. Khan's sentencing.
    It was remarkable to us, Senator, given their position in 
the military, and given the fact that they had had an 
opportunity to hear everything at the sentencing hearing, 
including the entire stipulation of facts to which Mr. Khan 
pled guilty to and took responsibility for. The clemency letter 
was delivered in the context of full information about the 
seriousness of his crimes, his contrition, his guilty plea, and 
then what happened to him in the CIA while he was in the black 
sites.
    Chair Durbin. Thanks, Ms. Jestin. I might say, Ms. Kelly, 
I'm going to remember for a long time as you recounted all of 
the survivors' families who passed away, waiting for a moment 
of resolution or some sort of explanation of what happened to 
their loved one. It is, I think, stark testimony as to why we 
finally have to bring this to a close. Thank you for your 
testimony today. Senator Grassley.
    Senator Grassley. My first point will be directed to 
Professor Jaffer. In light of the poorly planned withdrawal 
from Afghanistan, administration officials have testified that 
a strengthened Al-Qaeda or ISIS could launch attacks against us 
from in Afghanistan as soon as six months. It's particularly 
important to ensure that the worst of the worst at GITMO do not 
rejoin those efforts.
    The Office of the Director of National Intelligence has 
reported that nearly a third of GITMO detainees reengaged in 
terrorism. At least a dozen have launched attacks against the 
United States or U.S. forces in Afghanistan, killing at least a 
half a dozen Americans. What is the effect of Afghanistan fall 
to the Taliban and the creation of a safe haven in Afghanistan 
on the dangers of releasing these detainees?
    Professor Jaffer. Thank you, Ranking Member Grassley. I 
think the situation in Afghanistan and our precipitous 
withdrawal--the detriment of that cannot be understated. The 
Taliban, who hosted Osama bin Laden on the day of the attacks, 
the day of the 9/11 attacks, have now returned to power. Within 
their ranks, the Haqqani Network, the leader of the Haqqani 
Network, is a senior minister in their government, is the 
deputy head of the Taliban. They have refused to comply with 
all but one of the conditions of the Doha Agreement, reached in 
order to facilitate the withdrawal of the United States from 
Afghanistan, including the condition requiring them to renounce 
and reject Al-Qaeda. They have not done so.
    Worse still, ISIS-Khorasan is now present. No doubt they 
are fighting with the Taliban for primacy within Afghanistan, 
but they are a serious terrorist group, and they are 
responsible for the deaths of 13 Americans at Hamid Karzai 
Airport. Other terrorist groups, too, are returning to 
Afghanistan as they seize ungoverned spaces and opportunity to 
once again consolidate their efforts and fight against the 
West. They seek to conduct attacks in the United States, in 
Europe, and against Americans around the globe. The terrorist 
threat today is worse specifically because we withdrew from 
Afghanistan in the way and the manner which we did.
    Senator Grassley. To Mr. Stimson, the final report of 
Obama's review task force, which was completed under the 
direction of Assistant Attorney General Matt Olsen, notes that 
there are many challenges to prosecuting GITMO detainees in 
Article III courts. These include statutes of limitation and 
lack of jurisdiction at the time the offenses were committed.
    Of the 240 cases that the task force reviewed, only 36 were 
deemed suitable to investigate further for charging, and only 
12 were recommended for charging in either our court system or 
the military commissions. To you, sir, for the remaining GITMO 
detainees, is prosecution of the United States civilian court 
there an option?
    Mr. Stimson. Thank you, Senator Grassley, for your 
question. The answer really is, it's hard to tell from where I 
sit today. I mean, as Ms. Jestin and I both have had the 
privilege of being Federal prosecutors, I'm clearly a fan of 
the use of Federal courts in appropriate cases. To your 
question, Matt Olsen and his team scrubbed the evidence 
available in the GITMO detainee files, to assess whether, one, 
they were law-of-war detainees; two, whether or not the 
appropriate disposition of them would better be done in Federal 
district court or in military commissions. They recommended, 
you know, some for one and some for the other.
    The problem, Senator, is that these detainees were not 
captured in a place like, in a city, where there was crime 
scene tape and preservation of evidence and the rest of it. And 
so, it's very likely that the evidence may not even exist to be 
able to prove the case beyond a reasonable doubt in Federal 
district court under the statutes available to even prosecute 
them. Although they may be, and are, law-of-war detainees, I 
think that the chances of their being able to be prosecuted in 
Federal district court are low.
    Senator Grassley. Professor Jaffer, what are some of the 
risks of bringing GITMO detainees to the United States? What 
could happen, for example, to their immigration status? Is 
release in the United States even a possibility?
    Professor Jaffer. Senator Grassley, I think these are very 
serious questions. We don't know, today, what the Supreme Court 
would do if we were to voluntarily bring these detainees into 
the United States and hold them here, try them here, whether in 
law-of-war detention or otherwise. We know that in a limited 
fashion, at Guantanamo Bay, the Supreme Court has afforded 
certain rights to these detainees, again, foreign nationals 
captured in an ongoing conflict. They may get additional 
rights.
    If we bring them to trial in Federal court, as Mr. Stimson 
correctly pointed out, what about the Fourth Amendment? What 
about chain of custody? What about the rules of evidence? There 
are dozens and dozens of questions that attach to bringing 
these detainees into the United States, even in law-of-war 
detention, that are unanswered.
    We don't know what will happen, and it raises the question 
of, if these detainees are tried and exonerated, what will 
happen to them? Will they be held, then, in immigration 
detention because they are in the U.S.'s custody, but aren't 
entitled to stay in the United States?
    If so, what happens if, like at GITMO, they're ineligible 
for transfer, we can't get the right security assurances, and 
they remain in immigration detention for a long period? Then we 
have the potential for the Supreme Court, prior precedent, to 
suggest they may have to be released into the United States.
    The odds of that, to be sure, are quite low. That being 
said, they are not zero, given the Supreme Court's precedent on 
the question of detention in the United States, rights for 
detainees, and immigration detention. And so, we have to 
consider those facts, also, as we think about what to do with 
these detainees and whether bringing them to the United States 
at this point makes good sense.
    Senator Grassley. Thank you.
    Chair Durbin. Thanks, Senator Grassley. Senator Feinstein?
    Senator Feinstein. Thank you, Mr. Chairman. I've thought a 
lot about Guantanamo, from the time I visited. I've served, in 
my past, on boards that sentenced women convicted of felonies 
in the State of California, did that for more than five years, 
and sentenced a lot of people. I know prisons. When I saw 
Guantanamo, and realized its isolation, and came on the small 
boat to where it was, I began to understand that this was a 
facility that is really almost designated--and I have no proof 
of abuse, I know the statistics, but--for abuse and does not 
really belong in the modern-day criminal justice system.
    I think the detention at Guantanamo was not thought 
through. It's been subject to major legal challenges, and it 
has ultimately served as a rallying cry and recruitment tool 
for our adversaries. Nearly 15 years ago, I introduced the 
legislation calling for its closure, and it went nowhere. I've 
watched it, since then.
    The annual cost is $540 million. It's $13 million per 
detainee, each year, and there are 39 detainees remaining. 
That's what this is all about today. For this modern body to 
support an isolated ``criminal justice system'' is just plain 
wrong. I would hope that the votes are here, finally, to change 
it. I just wanted to say that, because this is an aberration on 
the United States of America. It's not what we represent. We 
don't support this kind of isolation in criminal justice, and 
I'm grateful for the people that had the courage to come here 
and, in many different ways, say the same thing. That's all my 
comment. Thank you.
    Chair Durbin. Thank you, Senator Feinstein. Senator Graham?
    Senator Graham. Thank you, Mr. Chairman. Let me set the 
stage, as I see it. Twenty years after 9/11, the Taliban are 
back in charge. Does everybody agree with that, on the panel, 
that Afghanistan--the Taliban now are in charge of Afghanistan? 
Everybody agrees.
    Five of the people in the Taliban government are former 
GITMO detainees. The deputy minister of defense, the acting 
minister of borders and travel affairs, the acting intelligence 
director, the acting minister of information and culture, the 
new governor of the southeastern province of Khost are all 
former GITMO detainees, and we're talking about releasing 
people.
    Two hundred twenty-nine of the 729 people released from 
GITMO have gone back to the fight, and we're talking about 
releasing people. This is nuts. One thing I can say about the 
39 that are at GITMO, not one of them has attacked the United 
States. And if I have my way, none of them ever will.
    Bringing them to justice, I understand that very, very 
much. Here's what I have been fighting for 20 years now, 
almost. I don't want anybody to be tortured by American 
military personnel or Government officials or contractors, 
because that makes the war harder to win. That's why I, along 
with Senator McCain, myself, and me and my colleagues, we 
fought hard to hold those accountable who lost their way.
    Having said that, I've never accepted the false choice of 
``try them or release them.'' We're at war, General Baker. 
We're not fighting a crime. Do you agree with that? This is not 
a criminal enterprise. This is a war, and we're applying the 
law of war. Is that correct?
    Brigadier General Baker. Sir, what I--you know, my sphere 
of influence is overseeing the military defense function.
    Senator Graham. Yes.
    Brigadier General Baker. Policy decisions are decisions 
by----
    Senator Graham. Well, let me----
    Brigadier General Baker [continuing]. Others.
    Senator Graham [continuing]. Just ask you this.
    Brigadier General Baker. But----
    Senator Graham. As a military lawyer, does the United 
States have the ability to hold a member of the enemy forces as 
an enemy combatant under the laws of war?
    Brigadier General Baker. In certain circumstances, yes, 
sir. That's not what we're talking about here today.
    Senator Graham. Everybody at GITMO went through a combat 
status review tribunal hearing. Is that correct?
    Brigadier General Baker. Yes, sir, but what we're talking 
about----
    Senator Graham. What did--no, no.
    Brigadier General Baker [continuing]. But----
    Senator Feinstein. Let him finish.
    Senator Graham [continuing]. What we----
    Brigadier General Baker [continuing]. But----
    Senator Graham [continuing]. Are talking about here is that 
these people have been determined, by a process consistent with 
a Supreme Court determination, that they are, in fact, part of 
the enemy force. There was a hearing held for all 39, combat 
status review tribunal, under the law of war, required by the 
Supreme Court, and everybody was found to be a part of the 
enemy force. Is that true or not, General Baker?
    Brigadier General Baker. What we're talking about today, 
sir----
    Senator Graham. That's----
    Brigadier General Baker [continuing]. Is the--no, but----
    Senator Graham [continuing]. My question is simple.
    Brigadier General Baker [continuing]. We're talking----
    Senator Graham [continuing]. Are the people at GITMO--have 
they gone through a process and been determined to be part of 
the enemy force?
    Brigadier General Baker. Not a process that is fair, no, 
sir.
    Senator Graham. That's your opinion.
    Brigadier General Baker. Yes, sir, it is.
    Senator Graham. That's an opinion. You're the defense guy, 
and I admire the hell out of you. This is a hard job. You're 
doing the Government or American people a great service by 
being willing to defend these folks. You're doing a fine job. 
We're here as policymakers to make a decision on what we should 
do.
    I think it's absurd to criminalize a war. You can hold 
somebody until they die, as an enemy combatant, if it's unsafe 
to release them, if the war's not over. Does anybody doubt we 
have the ability today to kill somebody who's part of Al-Qaeda, 
if they're up to no good? Can we kill them? Mr. Stimpson, can 
we kill them?
    Mr. Stimson. We can use deadly force under the two thousand 
----
    Senator Graham. We did it last week.
    Mr. Stimson. Yes.
    Senator Graham. What absurd conclusion would there be, that 
you can kill somebody, but you can't capture them? And once 
you've captured them, you have to let them go if you don't have 
the evidence necessary to prosecute them at a criminal venue? 
No war has ever been conducted that way for a reason. The 
reason we've never done war that way--because it's stupid.
    We're not fighting a crime. We're fighting a war. I don't 
want to torture anybody, I want to give them due process 
consistent with being at war, and, if necessary, I want to hold 
them as long as it takes to keep us safe, or we believe that 
they're no longer a threat.
    To the 39 at GITMO, I believe all of them are a threat. If 
we can try them, great. If we can't, let's hold them. This idea 
of closing GITMO, I embraced it with President Obama. Here's 
the problem. I couldn't get the administration to agree that if 
you moved them back to the United States, indefinite detention 
would still be available.
    I don't care where you house them, you can house them in 
Illinois, as long as you don't let them go, if the 
circumstances under the law of war prevent them from being let 
go. We can never cross that bridge.
    There's not one member of the Biden administration on this 
panel. All of you are great Americans. Thank you for giving 
your opinions and your counsel to the committee. But I find it 
stunning that not one member of the administration would come 
before this Committee to talk about closing GITMO.
    Chair Durbin. Thank you, Senator Graham. Senator 
Whitehouse?
    Senator Whitehouse. Thank you, Chairman. The torture 
program that was run by the CIA has left a lasting stain. I 
want to recognize, while we're discussing it, the work that 
Chairman Rockefeller and Chairman Feinstein did on the 
Intelligence Committee, which was persistent and determined 
work against considerable executive opposition in both the Bush 
and Obama administrations.
    I want to also recognize the work the Judiciary Committee 
did. We had the hearing, in this Committee, with the FBI 
interrogator who was extracted by the FBI and the Department of 
Justice when the FBI and Department of Justice got wind of the 
abuse that incompetent CIA contractors were applying in an 
effort to extract intelligence when they were, in fact, 
interrupting successful intelligence-gathering by trained 
professionals. Senator McCain has been mentioned, and I want to 
thank, particularly, the Armed Services Committee under 
Chairman Levin and Senator McCain, who gave us--on 
Intelligence, where Levin and McCain sat as the Chair and 
Ranking Members, and us, in Judiciary--considerable support, 
moral and political support, for getting to the bottom of the 
torture program.
    What we're hearing now is that the torture program bedevils 
our ability to resolve the remaining detainees. This was always 
a problem. I believe that the Bush administration, itself, 
released more than 500 GITMO detainees. It's hard to say that 
this was a seamless, successful project of identifying and 
collecting really dangerous people, when the people behind 
that, the Bush administration, who set this up in the first 
place, released more than 500 out of Guantanamo. Now we're down 
to these last 39, and maybe our solution is like the Man in the 
Iron Mask. We put them in dungeons forever, de-identify them, 
and hope that they all just go away. That would be dramatically 
inconsistent with American values.
    My question to our two members in uniform is, describe what 
symbolic significance Guantanamo now has, as a tool for our 
enemies and adversaries.
    Major General Lehnert. Thank you, Senator Whitehouse. I 
think the best way to describe it to you is a conversation I 
had with a young soldier when I was down there at Guantanamo. I 
would show up in the middle of the night, because I wanted to 
make sure that we were treating the detainees properly, we did 
not indulge in enhanced interrogation techniques during that 
short period of time I was there, and I would not allow it. 
This soldier asked me--a young, 19-year-old kid. He says, 
``Sir, why are we treating them so well? They wouldn't treat us 
that way.''
    I said, ``Soldier, you are exactly right, but if we treat 
them as they would treat us, we become them.'' I would offer 
that we have, during this period of 20 years, surrendered our 
moral authority.
    Brigadier General Baker. Sir, I agree with everything that 
General Lehnert just said. There is one point that you raised 
that I would like to address, and that's this myth out there 
that the FBI engaged in these clean team statements. The FBI 
and the CIA were involved, hand and fist, throughout all this 
intelligence-gathering that we're learning through these 
hearings down at Guantanamo Bay. You know, we're hiding all of 
that behind the secrecy of classified information.
    Senator Whitehouse. I think the key problem here--I think 
Ms. Jestin described it--is that the continuing effort to keep 
this horrible secret is interfering with our ability to process 
these cases, because we don't want the information to come out. 
In return for hiding the horrible secret, we have to cut deals 
with the detainees. If we simply came clean about what was 
done, Ms. Jestin, what would that do to the process, going 
forward, in terms of speeding things up and allowing greater 
clarity?
    Ms. Jestin. Thank you, Senator. In the case of my client, 
Mr. Khan, we were able to negotiate a guilty plea, whereby he 
agreed to enter his plea pursuant to a long stipulation of 
facts that provided the clarity and the modicum of closure that 
we think is appropriate for the victims of these terrorist 
acts. In that respect, through negotiating a guilty plea, we 
were able to achieve some measure of clarity and closure for 
the victims.
    In terms of his torture, it was years of negotiation with 
the Government, at its height this year preceding his 
sentencing, to enable him to give an unsworn statement that 
described what he was subjected to at the hands of the CIA. And 
for him, that was very important. For the country, it's very 
important to have the measure of accountability that that can 
bring about.
    Senator Whitehouse. Mr. Chairman, I'm over my time, but I 
want to thank you for holding this hearing and for the 
attention that you're giving to the Department of Justice. A 
lot of this began, as you know, with completely inappropriate 
opinions offered by the Office of Legal Counsel. How do we know 
they were inappropriate? Because once they were public, the 
Department of Justice itself, under the same administration, 
disavowed them.
    That was, in some respects, the original sin, and I don't 
think we've yet solved the problems at OLC that keep that 
original sin from repeating itself, and we're in active 
conversation about that, as you know. Thank you for your 
leadership, making sure that the Department of Justice doesn't 
get abused that way again.
    Chair Durbin. I don't know if I'll be here eight years from 
now. Maybe somebody else can take on that responsibility. Eight 
years ago, we raised this question, and had we closed 
Guantanamo at that point, we, I think, would be better off as a 
Nation. Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. Obviously, if this 
were easy, four presidents, 20 years, we would've figured this 
out. What was unprecedented was the terrorist attack that 
occurred on our soil that took the lives of 3,000 Americans, 
and the American people demanded a response, and the American 
people demanded that we stop future terrorist attacks.
    I think part and parcel of the confusion here is we still 
have people arguing that this should be subject to the usual 
rules in a criminal trial. For obvious reasons, that's not 
possible for many of them. Don't take my word for it. It's what 
the Obama commission concluded in 2010.
    Mr. Jaffer, you alluded to this, but can you talk about 
what--we all agree that the rule of law should apply here, but 
can you talk about why the rule of law applies differently to a 
non-citizen captured in the battlefield during a war?
    Professor Jaffer. Absolutely. Thank you, Senator Cornyn. 
The Supreme Court has held that in an ongoing conflict, the 
United States can hold enemy combatants for the duration of the 
conflict. There are debates today about what the--with the war, 
the battlefield in Afghanistan having come to an end, with our 
precipitous withdrawal--does that change things? The answer 
clearly is no.
    Joint Chiefs Chairman Mark Milley and CENTCOM Commander 
General McKenzie, both testified here in the Senate, less than 
two months ago, that, in fact, the war on terror continues. Our 
enemies believe the war on terror continues. They continue to 
plot attacks, both here in the United States and against us and 
our allies around the globe. The war continues, and therefore, 
the ability to detain continues.
    As Senator Graham correctly pointed out, if we have the 
ability to kill an enemy on the battlefield, is it not more 
humane to actually capture them and detain them, even though 
that detention may be indefinite? How can it be that we have 
the authority, in an ongoing conflict, to kill an enemy but not 
detain them for any amount of time? It simply doesn't make 
sense to me, and as a result, we have to assess these GITMO 
detainees in the context of whether we're going to be able to 
detain them for a long period.
    Senator Cornyn. That's essentially the ruling of the U.S. 
Supreme Court in the Hamdi cases and in other cases. Is that 
correct?
    Professor Jaffer. That's correct: the plurality in Hamdi, 
plus Justice Thomas's view in Hamdi. Yes, sir.
    Senator Cornyn. What I'm trying to understand is what is 
being asked for here when people say they want to close 
Guantanamo, in terms of the outcome for the families who lost 
loved ones on 9/11, because I heard, Mr. Stimson, you and Mr. 
Jaffer talk about the difficulties of prosecuting these 
individuals in a court of law, assuming you chose to do that, 
could do that, even though clearly the law of war allows 
indefinite detention, as Mr. Jaffer said, for the duration of 
hostilities. It seems to me that there are insurmountable 
problems with trying to try these detainees in an Article III 
court.
    Can you explain, Mr. Stimson, your thinking about that? 
Also, would simply an acquittal, and letting these detainees go 
and avoid any sort of consequences for their terrorist acts--
would that be justice, in your opinion?
    Mr. Stimson. Senator Cornyn, thank you for your question. 
The argument about closing Guantanamo, among the moral 
arguments, is that if you change the zip code and move them to 
the United States or elsewhere, it eliminates the ``original 
sin.''
    As Senator Graham pointed out--that if you don't deal 
legislatively with the issue of whether they can be detained 
under law of war detention and nothing more in the United 
States, you really don't change anything but the zip code, 
because it's clear that our enemy is on the march. They're 
clearly in power in Afghanistan, and if you change the zip code 
only and change nothing more and prosecute those who you can in 
court, then our enemy will simply turn their ire and proxy to 
the new zip code.
    You know, to close Guantanamo in a responsible way, you 
have to deal with the fact that we are at war and that law of 
war detention is the guiding principle, and that if you can 
prosecute some that can be prosecuted, do that, too, and then 
transfer the remaining, if you can get adequate security 
assurances from the receiving country, which we haven't really 
gotten the best security assurances from some of the countries 
where we sent detainees to. That's the conundrum.
    Senator Cornyn. Thank you.
    Chair Durbin. Thanks, Senator Cornyn. Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. Thank you for 
holding this hearing. Ms. Kelly, I want to thank you for being 
here today and sharing your really powerful testimony about 
your personal experience and about the 9/11 families' quest for 
basic justice and accountability, as you say. I've worked with 
a number of the 9/11 families. You make reference to one of 
them, Lee Hanson, in your testimony, who was from Connecticut. 
Connecticut was particularly affected because we're close to 
New York, and many of our family members were there, as was 
your brother Bill.
    I've been so deeply moved and impressed by the efforts of 
9/11 families to seek the truth about what happened on that 
day, as you put it, to seek answers to the questions that 
you've raised. A number of the families have sued Saudi Arabia, 
as you know. The Congress, in a very bipartisan way--Senator 
Cornyn and I have helped to lead efforts through JASTA to 
enable those families to seek their justice. You've done it 
very heroically through Peaceful Tomorrows.
    I was struck by the reference in your testimony to the 
concealment, in effect, through the State secrets privilege, 
through classification of information that really belongs in 
the public realm, and this point has been a continuing one that 
I've tried to make. I wonder if you could elaborate a little 
bit on what kind of answers you're seeking and how the over-
classification, and maybe the unnecessary and sometimes 
irresponsible use of State secrets privilege, has contributed 
to the concealment that has really aggravated the injustice to 
your family.
    Ms. Kelly. Sure. Thank you for the question. I want to 
start by saying that the common ground that I've been hearing 
so far, and I've been listening very carefully, is adherence to 
the rule of law. The common ground that I've been hearing about 
rule of law is that the military commissions, the rules for 
military commissions, do allow for pretrial agreements.
    One way to get to many of the answers that we're seeking 
and one way to get to information would be a pretrial 
agreement, not where people are released but a stipulation of 
facts to actually what occurred, and perhaps the ability of 
family members to ask questions. Could that be written into a 
pretrial agreement, so we could have our questions answered?
    The defendants would have to admit to what exactly happened 
and what their role was in the attacks. I think there's a lot 
of large, complex questions before this Committee, but I also 
think that there's a simple solution for the 9/11 case, and 
that would be pretrial agreements, understanding secrets that 
are long hidden, and gaining information.
    Senator Blumenthal. I think that point is so powerful, 
because any of us who have been involved in trials or 
litigation or law enforcement know that one of the purposes of 
a trial, of any legal proceeding, is to get to the truth.
    Ms. Kelly. The truth.
    Senator Blumenthal. To get to the truth of what happened in 
any kind of action that may give rise to legal responsibility. 
What you're asking for is really one of the core functions of 
the rule of law, to seek answers about what happened and who 
was responsible for it, without the overlay of Government 
censorship, in effect. That kind of pretrial agreement, as 
you've said, would be a way to do it. Do you think that that 
kind of information or answers would be a source of relief to 
the families?
    Ms. Kelly. It's hard to imagine what the source of relief 
will be, at this moment in time, but I would imagine feeling 
that I did right by my brother. I would imagine that there'd be 
some resolution for my mother and father and for my children 
and, importantly, that there would be some sense of ending and 
resolution for this country, which I really believe we so 
desperately need.
    Senator Blumenthal. Because you spoke to your dad before 
you----
    Ms. Kelly. Yes.
    Senator Blumenthal [continuing]. Came here.
    Ms. Kelly. Always----
    Senator Blumenthal. Maybe you could----
    Ms. Kelly [continuing]. An interesting conversation.
    Senator Blumenthal [continuing]. Tell us a little bit more 
about what he said.
    Ms. Kelly. Yes. I mean, my family is probably very exemplar 
of what most families in this country are about. You know, we 
have differing opinions and lots of different viewpoints, and 
some are quite loud and--but this is who we are. This is what 
this country is. What we did agree on is that there's a better 
way. There's a better way to get to some sense of resolution, 
and it's gone on too long. We all agree on that, here in this 
hearing, as well.
    Senator Blumenthal. I was also struck by your reference to 
your family as a divided one----
    Ms. Kelly. Yes.
    Senator Blumenthal [continuing]. Between Democrats and 
Republicans and the reference to feeling right at home here, 
because we're divided, too. I wish we were a little more like 
your family, rather than what we sometimes are.
    Ms. Kelly. I won the family lotto. I come from the greatest 
family in the world.
    Senator Blumenthal. Thank you very much, Ms. Kelly.
    Ms. Kelly. Thanks.
    Chair Durbin. Thanks, Senator Blumenthal. Senator Tillis?
    Senator Tillis. Thank you, Mr. Chairman. Thank you all for 
being here. Generals, thank you for your service. Ms. Jestin, 
what crimes did Mr. Khan plead guilty to?
    Ms. Jestin. Thank you, Senator. Mr. Khan pled guilty to 
several law of war crimes, including murder, spying, 
conspiracy.
    Senator Tillis. Mr. Stimson and Mr. Jaffer. Mr. Jaffer, I 
was the person in the Senate Armed Services Committee that 
asked General Milley and General McKenzie if the war on terror 
was over, and they both gave a categorical ``no'' as an answer. 
It was either in that hearing or a subsequent hearing that we 
also assessed that, with the precipitous withdrawal from 
Afghanistan, that the United States is likely to suffer an 
attack from ISIS-K over the next 6 to 12 months, either on the 
homeland or against U.S. assets worldwide, and Al-Qaeda 
probably following behind them between 1 to 2 years. There's a 
real serious threat to future detainees, and I happen to agree 
with Senator Graham. There's a great incentive to simply kill 
them on the battlefield and not detain them, and that seems 
like a perverse incentive.
    Mr. Stimson, I think you mentioned when you were in the 
Bush administration you were tasked with looking at the 
possible closure, responsible closure of Guantanamo Bay. What 
was the ultimate conclusion there?
    Mr. Stimson. Thank you for the question, Senator Tillis. 
The hearing--well, the study is classified, but I categorized 
it, in an unclassed format, in my written testimony, and it 
fell into four categories: that, number, one, it can be done--
and the four categories are legal, logistical, political, 
diplomatic. Each of the four, you have to work on 
simultaneously. The logistical is the easiest part. With 39 
people, one planeload would do it, if you were to take them 
together to one place.
    The legal part, you've heard several of my colleagues talk 
about some of the conundrums there and the difficult aspects, 
especially if you brought them to the United States. Many of 
those answers haven't been put forth in OLC or other opinions.
    Political's tough. That has been the long pole in the tent, 
as far as I'm concerned, because I think the table was set, 
back in the Obama administration, to get it done. People were 
for closing it, until they were against it, when it turned out 
that some of those----
    Senator Tillis. Isn't it also true the table is more or 
less set the same way, right now? The President has the 
authority to do it, and there's no way that those of us who 
would oppose closing it could stop it, here in Congress?
    Mr. Stimson. As I detailed in my written testimony, 
Senator, things have changed somewhat because, since 2009, this 
body and the other body across the Hill have put forth into law 
certain notification and other requirements before you transfer 
somebody off of the island. There're spending limitations, et 
cetera. Those would have to be adhered to, before it was 
closed, but, yes, it's always been the prerogative of the 
President, whether it's President Bush or any President, to 
close Guantanamo in a responsible way, but Congress plays an 
important part in that and would have to join in on that.
    Senator Tillis. I'm wondering, when we're talking about a 
responsible transfer to another jurisdiction--we're not being 
particularly successful with doing that, so isn't that a kind 
of a global acknowledgment? I know on the one hand we say we're 
suffering reputational damage for having GITMO open, but the 
fact that we can't find other jurisdictions to responsibly 
relocate them almost seems like a de facto approval. This is 
the worst option except for all the other options that we've 
tried to pursue. Am I wrong about that? Mr. Jaffer?
    Professor Jaffer. Senator, I think you're right in the 
sense that we can't get the right security assurances. A third 
of the detainees currently at Guantanamo Bay are designated for 
transfer, but we can't get countries to take them and give us 
assurances that they'll keep an eye on them and make sure they 
don't return to the fight. Given that we know that 30 percent, 
roughly, have either returned to or are suspected of returning 
to the fight----
    Senator Tillis. There are----
    Professor Jaffer [continuing]. We want----
    Senator Tillis [continuing]. Five are actually in the 
Taliban administration.
    Professor Jaffer. Exactly right. One point on that. You 
know, those detainees who are in the Taliban administration 
were actually transferred in violation, GAO found, of the 
congressional prohibition on transfer notification under the 
Obama administration. They were transferred in violation of the 
law.
    Then the one last thing I'd say, Senator, to your question, 
is, you know, we've talked a lot about the reputational effects 
of GITMO, and there's no question that there have been 
significant reputational effects. Other things have also had 
significant reputational effects. The way we've handled our 
withdrawal from Afghanistan, the abandoning of our Afghan 
allies who fought alongside us, right? Those have had massive 
reputational effects today in that ongoing ungoverned space in 
that battlefield, and you can be assured that our terrorist 
adversaries are using those facts against us today, also, in 
their recruitment efforts.
    Senator Tillis. Thank you all.
    Ms. Jestin. Senator, could I add something to my answer 
that you asked me about earlier?
    Senator Tillis. Yes.
    Ms. Jestin. You asked me what Mr. Khan pled to, and while 
he pled to very serious crimes, I just think it's important to 
note that he took responsibility for his actions, and he's been 
cooperating with the United States of America for over a decade 
and has done everything they've asked in assistance of 
investigations and prosecutions of folks who have been charged 
with terrorism.
    Senator Tillis. I think that's a fair point, in 
representing your client, but the fact of the matter is, he was 
responsible for murder and pled to those crimes. We're not 
talking about potentially innocent people, of the 39 down 
there. We're talking about people who have done grave damage to 
human life, engaged in the battlefield, and we can't forget 
that that's the nature of the people that are down there and 
why we have to be very careful. If Guantanamo Bay is closed, it 
has to be done in a responsible way. There's four 
administrations that haven't figured it out yet.
    Chair Durbin. Thank you, Senator Tillis. Senator Hirono?
    Senator Hirono. Thank you, Mr. Chairman. I thank all of the 
witnesses, and especially I would like to thank Ms. Kelly for 
your years of commitment to obtaining justice for your family 
and that of the other 9/11 families.
    I look at the numbers. You know, it's not that there are 39 
people who have even been charged. You have 39 who remain at 
Guantanamo. Thirteen have been approved for transfer. Fourteen 
continue to be held without charge. We haven't even managed to 
charge these people, in decades.
    We're left with our 12, who are currently in the military 
commissions system, which witnesses have testified does not 
work. Out of the 39 who remain at Guantanamo, 27 should be 
transferred. Seven hundred eighty men were detained since 
September 11th. Five hundred thirty-two were released by 
President Bush. One hundred ninety-seven were released during 
the Obama administration.
    The bottom line is, we have 12 people who are in the 
commissions system, costing the American taxpayers almost $14 
million per detainee, per year, compared to about $78,000 per 
year for prisoners in a super max prison in the United States. 
I don't see how you can escape the conclusion that there has 
got to be a better way. I know that President Bush wanted to 
close Guantanamo Bay. We've had different administrations 
wanting to do that. We talk about responsibly closing 
Guantanamo, and one of the suggestions made by Ms. Kelly and 
others is that we pursue plea agreements.
    I have a question for General Baker. Would a plea agreement 
be a feasible alternative for the 12 detainees who are in the 
commission system?
    Brigadier General Baker. Thank you for your question, 
Senator. I want to preface my answer with--I don't represent 
any of the 12 that are charged.
    Senator Hirono. Could you speak----
    Brigadier General Baker. But--but----
    Senator Hirono [continuing]. Into your mic, please?
    Brigadier General Baker. Yes. I want to clarify that I 
don't speak for any of the 12 that are charged. They have their 
own defense counsel. To answer your question, ``Could a plea 
agreement resolve these cases?'' Yes.
    Senator Hirono. Could you talk about, with the experience 
you've had, the time that would be needed to reach a possible 
plea agreement, versus the time that would be needed to 
complete the military commissions proceedings?
    Brigadier General Baker. I'm sorry to laugh, but that's a 
great question, because we don't know how long it's going to 
take to finish these cases. You know, a lot of focus is on, you 
know, when are the trials going to be over? That's just stage 
one. There's an appellate process, too, so you can add, you 
know, 15 to 20 years. I think Ms. Jestin is actually probably 
better positioned to answer how quickly you can reach a plea 
agreement, because she successfully did so, almost 10 years 
ago.
    Senator Hirono. Would you like to add to this conversation, 
Ms. Jestin.
    Ms. Jestin. Thank you, Senator. It really is something that 
is possible to be accomplished if there's the will to do it. In 
our case, the military prosecutor with whom we worked was a 
detailed Department of Justice national security prosecutor who 
had a lot of experience in Article III courts prosecuting 
terrorists.
    One thing that we've heard a lot about during this hearing 
is Federal court prosecution of people charged with terrorism 
crimes, and I'd like to just note for the record that, since 9/
11, almost 1,000 cases have been indicted in the Federal 
courts. These prosecutors are experienced, and they know how to 
handle these cases. It is a very effective system, and it is a 
system that is in conformance with the Constitution and follows 
the rule of law.
    In the military commissions system, if there is a will to 
accomplish this, I would recommend to the administration that 
they involve DOJ and get DOJ prosecutors involved to negotiate 
these dispositions, because I think it will move more quickly. 
But the bottom line, Senator, is that if there is a will, this 
can be done, and it can be done quickly. There has to be the 
will.
    Senator Hirono. What you're describing is the better way. 
By the way, is there anything that currently prohibits the 
Government or defense counsel from reaching a negotiated plea 
agreement? General Baker.
    Brigadier General Baker. Absolutely not.
    Senator Hirono. Nothing?
    Brigadier General Baker. Nothing.
    Senator Hirono. Thank you very much, Mr. Chairman. There is 
a better way. I think it is time for us to get our heads out of 
the sand regarding Guantanamo and close Guantanamo. Thank you.
    Chair Durbin. Thanks, Senator Hirono. We understand that 
two Republican senators are on their--three of them are on 
their way. Does anybody want to volunteer what ``on their way'' 
means? Have they all voted? I'd ask the panel, if you don't 
mind, to just stand--sit at ease for a moment. We'll see how we 
can catch up with our colleagues.
    Just in time, from the State of Missouri, Senator Hawley.
    Senator Hawley. Thank you very much, Mr. Chairman. Thanks 
for your patience. Thanks to the witnesses for being here.
    Let me just start, if I could, with a question for Mr. 
Stimson or Mr. Jaffer. Either of you can answer this. I wanted 
to go back to something I think Senator Grassley asked you 
about. I was just rereading, this morning, some of the Supreme 
Court's cases regarding Guantanamo Bay, back to the Boumediene 
case, which was the 2007 term, October term 2007, if memory 
serves.
    In that case in particular, the Court noted that Guantanamo 
Bay has a unique status, jurisdictional status, in American 
law. The Court also noted that when you move aliens, enemy 
alien combatants, in this case, to American soil, to territory 
that is indisputably part of the sovereign territory of the 
United States, that constitutional rights increase. There's a 
long line of cases dealing with this.
    Can I just ask you for your view? I mean, one of the 
consequences of closing Guantanamo Bay and moving enemy 
combatants to the United States--and I realize that the Court, 
the Supreme Court found, of course, that GITMO itself, the 
prisoners' presence at GITMO, does confer certain rights on 
them, particularly in the habeas context. Moving them to the 
United States, where you don't need to have a functional 
balancing test, you know, it's not a sort of halfway U.S. 
territory, halfway not--if you moved them to this country, what 
would the effect be on their constitutional rights, 
particularly if you involve them in traditional court 
proceedings in the criminal justice system, and that is not in 
the enemy combatant system?
    Maybe both of you can answer, but go ahead, Mr. Jaffer. 
We'll start with you.
    Professor Jaffer. Now, Senator Hawley, that's a great 
question. We don't know the exact answer. What we do know, I 
think, as you've correctly described, is that there's likely to 
be significantly more rights that the detainees would have, if 
they were brought here, even under law of war detention, than 
being held at Guantanamo Bay, because Boumediene turned on the 
fact and the unique status of Guantanamo Bay, even given that 
limited right to habeas.
    It's highly likely that if the U.S. Government were 
voluntarily to bring these individuals into the United States, 
even admitting them for limited purposes, paroling them in for 
the purposes of a trial or detention, they're going to get a 
certain number of rights that they wouldn't have otherwise had 
at Guantanamo Bay. The question is, then, what scope and how 
broad? Does the Fourth Amendment attach? Does the Fifth 
Amendment attach? How much of it? In what context? What about 
the right to confront witnesses? What about the evidence 
brought at trial?
    Remember, as Mr. Stimson correctly described, a lot of this 
evidence was gathered--to the extent there is evidence--on the 
battlefield. There's no chain of custody. There's not the usual 
things you would need in a Federal trial, or even in a 
commissions trial or other alternate procedure that has some 
additional constitutional protections, and that's what's 
particularly problematic about bringing these detainees to the 
United States at this point in the ball game.
    Senator Hawley. Very good. Mr. Stimson.
    Mr. Stimson. The only thing I would add, Senator, is that 
you recall, since you waded through the Boumediene decision, 
which was handed down in 2008, I recall, was the whole 
discussion by Justice Kennedy on de jure versus de facto 
jurisdiction. There's no doubt that once they're here in terra 
firma that anyone will challenge all sorts of other aspects to 
their law of war detention, including probably bringing torts 
suits against people in their personal capacity.
    I don't think anyone wants to see those types of things 
happen. Unless and until, for example, this body and the body 
across the Hill came together and passed legislation to cabin 
the rights that they would have if they were brought to the 
United States and reaffirm the fact that they are in law of war 
detention and that's the applicable law only, I think, to 
Professor Jaffer's point, it's really an open question as to 
whether the rights would accrue to them.
    Senator Hawley. Just to put a fine point on that, unless 
Congress acted, there would be, at the very least, an argument 
to be made that, were detainees moved to United States soil, to 
what is indisputably the sovereign territory of the United 
States, we could be looking at all kinds of new legal rights 
and legal proceedings. Your point, Mr. Stimson, about torts 
suits that they could then bring, have the capacity to bring--I 
mean, we could be looking at a whole different set of legal 
rights and outcomes that are currently not even imaginable, 
considerable, in GITMO.
    Let me ask you this, Professor Jaffer. You testified, I 
think, before the House Judiciary Committee Subcommittee on 
Constitution, Civil Rights, and Civil Liberties that other 
concerns with civilian trials included--and I'm quoting you 
here, this is from about 10 years ago, ``the physical security 
of civilians living in the area, the judges and staff working 
on those cases, and the jurors selected for trial.'' Those 
concerns, those security concerns, is that something that we 
should still be concerned about, in your view?
    Professor Jaffer. Absolutely, and it's not just my view. It 
was actually Majority Leader Schumer's view, at the time that 
the Obama administration was interested in bringing some of the 
9/11 plotters, including Khalid Sheikh Mohammed, to New York to 
try them. It was an issue hotly discussed and debated in 
public, and ultimately the Obama administration decided not to 
do that, but these concerns about the security of individuals 
if the detainees are brought to the United States, not of the 
detainees themselves--they're well secured--but of those that 
support them and their supporters in the United States--could 
be hugely problematic.
    Remember, the biggest threat to the United States today 
from international terrorists is homegrown violent extremists 
who are inspired by Al-Qaeda and ISIS. Imagine if we brought 
their inspiration to the United States and tried them here. It 
could be hugely problematic.
    Senator Hawley. Very good. My time has expired. Thanks to 
the witnesses for being here, and thank you for waiting for me, 
Mr. Chairman.
    Chair Durbin. Thank you, Senator Hawley. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman, and thank you 
to you all. I've been monitoring and listening to this hearing 
online, up in my office, and it is so interesting to me to get 
your different perspectives on this. I really appreciate that.
    A couple of times there's been mention of President Obama's 
efforts to close this, but as I was sitting there thinking 
through this and listening to your responses, my question is 
simply this. It's 39 detainees that are left there. Since that 
effort was made to close it, what has changed in regard to the 
danger that these 39 individuals pose to the United States? 
What has changed that would say, ``Yes, we can let these people 
go. We can do something different''?
    Professor Jaffer. Senator Blackburn, certainly there is a 
process for reviewing all the detainees that the Obama 
administration set up to the periodic review boards, and at 
least 13 of these detainees have been determined qualified for 
transfer. The issue, of course, is when you transfer them, you 
want to ensure that they're properly secured, wherever they go.
    Knowing that a third of the detainees have either returned 
to or are suspected of having returned to the fight, we want to 
make sure that these particular ones, if they do get released 
somewhere, are held under appropriate security assurances. All 
of these 39 have been determined by the Obama administration to 
be continued to be held or tried at military commission.
    Senator Blackburn. Nothing has made them less dangerous?
    Professor Jaffer. That's right. Some may be eligible for 
transfer----
    Senator Blackburn. See, and I think that gets lost in this 
discussion. There is nothing that says they have been 
rehabilitated, but there is evidence that shows that many go 
back----
    Professor Jaffer. That's right.
    Senator Blackburn [continuing]. To creating terror. The 
withdrawal from Afghanistan, and then the Taliban takeover, how 
does that affect these detainees, and what does that do to, if 
they were released, their probable future?
    Professor Jaffer. Senator, I think it's hard to understate 
the creation of this new ungoverned space in Afghanistan, where 
new terrorists are returning to the fight, are now encouraging 
others to come there. You've got Al-Qaeda returning there. You 
have the Taliban government, the same government that supported 
and hosted Osama bin Laden the day of the 9/11 attacks. You 
have the Haqqani Network. You have ISIS-K.
    You have a very detrimental and problematic mix of 
terrorists in the Afghanistan region, and you have additional 
inspiration coming from the way in which we withdrew from 
Afghanistan, the fact that we abandoned our allies, the fact 
that we have not brought out the SIVs and the like, that we 
made commitments to. All of that contributes to the fact that 
Afghanistan is----
    Senator Blackburn. So, the----
    Professor Jaffer [continuing]. A terrible----
    Senator Blackburn [continuing]. Environment that we have 
created, post the Afghanistan withdrawal, actually encourages 
activity from terrorists?
    Professor Jaffer. Absolutely.
    Senator Blackburn. If we release the--OK, let me ask you 
this. The countries that have accepted transfer of some of 
these in the past--and, Mr. Stimson, I think this is--I'm going 
to direct this to you. Have they been able to ensure that these 
individuals do not return to terrorist activity? What kind of 
agreement did we have with them, to get that insurance that 
they won't go back to creating these attacks?
    Mr. Stimson. Senator, to my recollection, we've transferred 
detainees or released detainees--two different processes--from 
Guantanamo to 39 different countries. I could be wrong, but I 
think it's somewhere around that. The big three populations are 
the Afghans, the Saudis, and the Yemenis, but dozens of other 
countries, too.
    In each one of those transfers, except for the Afghans, we 
had negotiated on a detainee-by-detainee basis with the 
receiving country and sought assurances that they would 
mitigate the threat that that particular detainee would pose. 
And I think we've had----
    Senator Blackburn. I think it's important to note this is 
done on an individual----
    Mr. Stimson. It is.
    Senator Blackburn [continuing]. Basis.
    Mr. Stimson. It is.
    Senator Blackburn. One at a time.
    Mr. Stimson. Right. We were doing that in the Bush 
administration. Of course, the Obama administration did that, 
as well. The Bush administration transferred or released 532 
detainees. The Obama administration transferred 197 detainees. 
And each one of those transfer negotiations is a laborious, 
sometimes yearslong process. Some countries are very frank with 
us, saying, you know, ``We can only detain this person for 
about X period of time, and then we can't assure you that they 
will be held, under our domestic law.''
    To Professor Jaffer's point, the DNI, under two successive 
administrations, has tracked the number of detainees who are 
confirmed to have reengaged and who have been suspected of 
reengaging. I can tell you, as a former prosecutor, I think the 
number's got to be higher, because you only know what you know, 
and you don't know what you don't know. There are people who--
--
    Senator Blackburn. These countries----
    Mr. Stimson [continuing]. Slip through the cracks.
    Senator Blackburn [continuing]. That agree to take these 
detainees, they make a best effort, and they are not always 
successful in that effort, and the data that you have shows 
that. Correct?
    Mr. Stimson. Yes. The data that the DNI has----
    Senator Blackburn. All right.
    Mr. Stimson [continuing]. Shows that.
    Senator Blackburn. All right. Releasing these, just like 
the 5,000 that got released from Bagram Airfield, makes the 
world more contentious and more dangerous, and enables the 
Taliban or other terrorist organizations to fill their ranks, 
correct?
    Mr. Stimson. Yes. The purpose of the wartime detention is 
to shorten the war and deprive the opposing enemy forces of 
fighters. By resupplying them with their own fighters, the war 
gets worse.
    Senator Blackburn. The war continues.
    Mr. Stimson. Yes.
    Senator Blackburn. Yield back.
    Senator Klobuchar. [Presiding]. Thank you very much. Ms. 
Kelly, I understand that your brother Bill was killed in the 
North Tower on September 11th. I'm so sorry for your loss. 
Thank you for taking the time to appear before us today. I 
understand that, in memory of your brother, you've spent the 
last 20 years trying to get justice for him and all those lost 
on 9/11.
    Can you speak about your experience, having watched over a 
dozen military commission proceedings, whether justice is being 
done, and what's the best thing we can do to ensure justice for 
Bill and those lost on 9/11?
    Ms. Kelly. Thank you for the question. The arraignment of 
the 9/11 accused happened in May 2012, and family members were 
permitted to watch these hearings from several sites on the 
Northeast, or five members, five family members, are chosen by 
lottery to travel to Guantanamo to observe the hearings that 
way. Our organization applied for NGO observer status, in 2015, 
specifically so we could send one family member to each 
hearing, to closely observe what was happening.
    Through our time there--and we're now the high 30's, maybe 
even into the 40's, now, of how many hearings have occurred--
we've watched delay after delay after delay, then a COVID delay 
and more delays. In 2017, we began exploring seriously what a 
pretrial agreement may mean. We talked to legal advisors, we 
talked to Federal prosecutors, we've talked to people with 
legal expertise, and it seems at this stage in time we are not 
really closer in the commissions. We're still in pretrial 
hearings. At this moment in time, pretrial agreement could make 
things happen and could bring some resolution----
    Senator Klobuchar. That would----
    Ms. Kelly [continuing]. To the families.
    Senator Klobuchar [continuing]. Bring some resolution?
    Ms. Kelly. Absolutely.
    Senator Klobuchar. All right. Okay. Thank you. Brigadier 
General Baker, thank you for your 32 years of service in the 
U.S. Marine Corps. Can you speak to how concluding the military 
commission proceedings can be done in a way that protects the 
security of the American people? And do you agree with 
President Bush's assessment that the detention facility became 
a propaganda tool for our enemies?
    Brigadier General Baker. Thank you for the question, and 
thank you for thanking me for my service. The negotiations of 
the pretrial agreements that have been talked about would be--
you know, needed to be done in good faith by all the parties, 
and there's been a demonstration that that can be done. Not 
doing that seems to be the worst possible option.
    I want to talk a little tiny bit about the delay that you 
asked Ms. Kelly about. There really are three aspects that are 
causing the delay in these proceedings. The first--and I use 
the acronym ``DID.'' The first is the death penalty. The death 
penalty is just keeping these cases going on, in what seems to 
be in perpetuity.
    The second is intrusion. There's just been a history of 
Government intrusions into the attorney-client relationship. 
The third is the discovery. The over-classification and hiding 
of information that we can read about in the newspapers has 
just put these cases--you know, it's really kind of stopped 
them in their tracks. We can overcome the DID acronym through 
negotiated plea agreements.
    Senator Klobuchar. In your testimony, you actually describe 
several violations of attorney-client privilege, including the 
seizure of documents clearly marked as privileged, the 
placement of hidden recording devices in rooms where detainees 
conferred with their attorneys. What effect did these 
attempts--you mentioned it briefly--to violate attorney-client 
privilege have on your staff and other attorneys serving as 
counsel for the detainees?
    Brigadier General Baker. I mean, these intrusions have set 
the hearings back literally years at a time. There was a 
hearing last month that was a closed, classified hearing that 
looked at and looked into intrusions that occurred in 2017. 
It's delaying the procedures, and we're hiding secrets that we 
read about in the newspaper.
    Senator Klobuchar. Last question. Major General Lehnert, 
thank you for your 37 years of service, my staff just told me. 
Since the Bush administration, Presidents have expressed their 
intent to close the detention facility at Guantanamo Bay, with 
President Biden being the latest to state his intent to do so.
    Yet, as we just discussed, despite the efforts of multiple 
administrations, the facility remains open. Can you please talk 
to us about the steps that need to occur to finally close the 
facility and how we, as a Congress, can act to ensure that it 
is closed in a way that maintains the security of the American 
people?
    Major General Lehnert. I'll be brief, Senator, but first, 
put somebody in charge with the authorities to work with all of 
the various government agencies who have actually done a pretty 
credible job. There needs to be somebody within either the NSC 
or the White House that can do this.
    The second part, and obviously I think General Baker and 
Ms. Jestin have discussed this, is the piece of bringing in the 
Federal courts and negotiating plea agreements. I do believe--I 
am not an attorney, but I have been told that those Federal 
courts can still operate on Guantanamo Bay's soil through video 
teleconferences and things of this nature, once we've taken the 
death penalty off the table.
    It seems to me that the desired outcome here, particularly 
for the families of individuals like Ms. Kelly, here, is to get 
closure. I would offer that once we have convictions and 
sentences--and, by the way, I have no empathy for those 
individuals that committed these horrendous crimes. If they are 
locked up for the rest of their lives, so be it. Let's give the 
families closure, and let's demonstrate to the rest of the 
world that we use the laws to hold our criminals accountable. 
Thank you.
    Senator Klobuchar. Thank you very much. Thank you all, and 
I also--I wish I had more time, I'd ask the other witnesses 
questions, but for those that I spoke to, thank you for your 
clear and measured response. This is not easy, especially for 
you, Ms. Kelly, but for anyone. I appreciate how you've thought 
this through as a way to protect security but do this in a way 
that gives the families the closure that they need. Thank you. 
Senator Cruz?
    Senator Cruz. Thank you, Madame Chair. For more than a 
decade, there has been a focus by Barack Obama and Joe Biden 
and their administrations, a focus that I find as inexplicable 
as it has been catastrophic, on freeing terrorists from 
American detention.
    In 2009, the Obama-Biden foreign policy team decided to 
close the detention facility at Camp Bucca in Iraq. By 2014, as 
ISIS was forming, it became clear that over a dozen of the 
group's top leaders had been freed from Camp Bucca. Those 
included Abu Bakr al-Baghdadi, his deputy, and Abu Mohammad al-
Julani, the founder of Al-Nusra Front. Having learned nothing, 
that same team repeated the exact same mistakes, this time with 
the Bagram prison in Afghanistan, as part of the 
administration's catastrophic withdrawal.
    The images that Americans remember of that catastrophe are 
of chaos and carnage: over 100,000 Afghans, many of them 
unvetted and unvettable, loaded onto airplanes to be deposited 
into the United States; Taliban terrorists overrunning U.S. and 
Afghan army positions, seizing unaccountable numbers of 
advanced weapons and technology and parading them for global 
audiences; and, of course, the August 26th terrorist attack on 
the Kabul airport, in which an ISIS-K bomber killed 13 American 
service members.
    What is less well known is that that bomber had been 
imprisoned in the Bagram prison, which until that summer had 
been under American control. The Biden administration made a 
conscious decision, again, inexplicably, to abandon that 
critical position and, with it, the high-security prisoners 
housed there.
    Having still apparently learned nothing, releasing 
terrorists, seeing them killing Americans, releasing more 
terrorists, seeing them killing more Americans, the Biden 
administration is talking about doing it again. They're talking 
about closing the facility at Guantanamo Bay. I think before 
that's even contemplated, we should have some sense of the toll 
that these catastrophic decisions have had.
    For instance, The Washington Post, hardly a right-wing 
organ, has reported, ``At least 12 detainees released from the 
detention camp at Guantanamo Bay, Cuba have launched attacks 
against U.S. or allied forces in Afghanistan, killing about a 
half dozen Americans.'' You have terrorists freed at Camp 
Bucca. Americans murdered. You have terrorists freed from 
Guantanamo. Americans murdered. You have terrorists freed from 
Bagram. Americans murdered.
    Now the Biden administration wants to free more terrorists. 
We know, to an absolute metaphysical certainty, the result of 
that will be more Americans murdered.
    I want to ask the witnesses--I recognize that the Biden 
administration declined to send a Government official charged 
with explaining the administration's policy, but let me ask all 
the witnesses assembled here, does anyone on the panel know a 
full account of the number of terrorists who were released from 
Camp Bucca that went on to fight for ISIS or the Al-Nusra 
Front?
    We don't have that information. All right. How about this? 
Does anyone know an accurate count of the number of U.S. 
servicemen and women that have been murdered by individuals 
we've set free from Camp Bucca, from Bagram, or from 
Guantanamo?
    We don't know how many servicemen and women have been 
murdered, but yet the Biden administration is preparing to go 
down this road once again. It's worth noting that the 
terrorists we find returning to the battlefield are just some 
of the ones we've released. There's good reason to suspect 
they're not the only ones who've returned to violence and 
terrorism.
    Before we free more terrorists, we should get to know where 
the past ones have gone and where future ones are likely to go. 
Professor Jaffer, is there a rough estimate of where the 
terrorists freed from U.S.-run facilities have gone, and to 
what extent and at what level are those numbers tracked?
    Professor Jaffer. Senator Cruz, I think the answer is that 
with respect to the terrorists that we transfer to other 
countries, we have security assurances from those countries for 
some period of time. Those security assurances are not forever, 
as Mr. Stimpson correctly laid out. They're negotiated 
typically on a one-to-one or one-to-few basis. But those, we 
have a sense of. Once they go out from those security 
assurances, we don't know where they are.
    The others that we've released, we don't necessarily know 
where everyone ends up. What we do know to a certainty is that 
33 percent, roughly, 32 percent, 31 and a half, have either 
returned to the fight, are known to have returned to the fight, 
or are suspected of it. Those statistics are from the Director 
of National Intelligence, so we know that. That's a real 
problem. If you think about the 700 and whatever odd number of 
people that have been released from GITMO, 229 have either 
returned to the fight or are suspected to have returned to the 
fight somewhere on the globe.
    Senator Cruz. Wow. Okay. Final question. Of the 39 
detainees that remain at Guantanamo Bay, roughly 20 are from 
nations without a fully functioning government. Fourteen of 
them are from Yemen, where enormous swaths of the country are 
ruled by terrorists. To what extent, Professor Jaffer, are such 
countries able to track and secure terrorists and prevent them 
from murdering Americans?
    Professor Jaffer. They are not able, which is exactly why 
we cannot transfer them to those countries.
    Senator Cruz. Thank you.
    Chair Durbin. [Presiding.] Thank you, Senator. The DNI, 
Director of National Intelligence, assesses that only five 
percent--five--of detainees transferred since 2009, when 
current rules and processes for transfers were put in place, 
are ``confirmed of reengaging'' in terrorist activities. That's 
ten persons, total, two of whom are now deceased. Five percent, 
not 30 percent. Even that number is misleading, because it only 
takes 51 percent likelihood that a detainee is subsequently 
engaged in terrorist activity to count them as confirmed.
    The claim that there's 30 percent--and I've heard it 
attributed to the DNI, which is inaccurate. The claim that 
there is 30 percent recidivism rate among former Guantanamo 
detainees is misleading. That number includes individuals that 
are merely suspected of engaging in terrorist activities, 
including based on a single source or hearsay, and it includes 
transfers that occurred before the current security 
arrangements used today were in place.
    The most recent DNI report showed that 729 detainees have 
been transferred out of Guantanamo since its opening. According 
to the DNI, 125 of them were confirmed of reengaging in 
terrorist activities, but the vast majority of those, 115 of 
125, were transferred during the President Bush administration, 
before today's processes were put in place.
    I'd like to say a word about the Taliban in Afghanistan. If 
I recall correctly, the negotiations with the Taliban for the 
final withdrawal of American troops began under the previous 
administration. It was President Trump who was negotiating with 
the Taliban and reached an agreement, which would protect the 
Americans and forces left in Afghanistan until a certain date. 
It was President Biden who inherited that negotiation. To say 
that there was no plan in place is to misstate the situation as 
it occurred.
    If I remember correctly, they were going through a process 
of discussing the evacuation of Americans and American troops 
when the government of Afghanistan left the premises, and their 
departure created an emergency situation. What the Biden 
administration did do was execute a plan for evacuating 130,000 
evacuees from Afghanistan in a very brief period of time. To 
put that in comparison, the total number of evacuees in 
Vietnam--50,000. President Biden evacuated some 130,000. So 
that, I hope, will clear up the record a little bit in that 
regard.
    I want to thank the entire panel, witnesses for both sides, 
for a good hearing, bringing out the major issues that most 
Americans would ask about in the course of considering this 
same question, if they do. I sincerely hope they do. My 
feelings on the Guantanamo situation are well known.
    Particular thanks to Ms. Kelly. Appreciate you coming. You 
speak----
    Ms. Kelly. Thank you.
    Chair Durbin. You speak for a lot of people who 
unfortunately were victimized by that horrible day we'll never 
forget. I hope we can bring this to closure for you and your 
family and all others likely situated. I'm going to do 
everything in my power, as Chairman of this Committee, to put 
this dark chapter behind us, but with some truth and some 
light, as we bring it to conclusion.
    Thank you all very much for joining us today. The Committee 
stands adjourned.
    [Whereupon, at 12:14 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

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