[House Report 111-242]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-242

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


 
RESOLUTION OF INQUIRY DIRECTING THE ATTORNEY GENERAL TO TRANSMIT TO THE 
  HOUSE OF REPRESENTATIVES ALL INFORMATION IN THE ATTORNEY GENERAL'S 
  POSSESSION RELATING TO THE TRANSFER OR RELEASE OF DETAINEES HELD AT 
      NAVAL STATION, GUANTANAMO BAY, CUBA, INTO THE UNITED STATES

                                _______
                                

   July 31, 2009.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                             MINORITY VIEWS

                       [To accompany H. Res. 636]

  The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 636) directing the Attorney General to 
transmit to the House of Representatives all information in the 
Attorney General's possession relating to the transfer or 
release of detainees held at Naval Station, Guantanamo Bay, 
Cuba, into the United States, having considered the same, 
reports unfavorably thereon without amendment and recommends 
that the resolution not be agreed to.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background.......................................................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     4
Committee Cost Estimate..........................................     4
Performance Goals and Objectives.................................     5
Constitutional Authority Statement...............................     5
Advisory on Earmarks.............................................     5
Section-by-Section Analysis......................................     5
Minority Views...................................................     5

                          Purpose and Summary

    On July 13, 2009, Congressman Frank Wolf (R-VA) introduced 
H. Res. 636, a resolution of inquiry. The resolution directs 
the Attorney General to transmit to the House of 
Representatives, not later than 14 days after the date of 
adoption of the resolution, copies of any document, memo, or 
correspondence of the Department of Justice, including the 
Federal Bureau of Investigation and United States Marshal 
Service, or any portion of any such document, memo, or 
correspondence, that refers or relates to (1) any guidance, 
recommendations, or logistical preparations made since January 
20, 2009, for the transfer or release of the detainees held at 
Naval Station, Guantanamo Bay, Cuba (hereinafter ``Naval 
Station''), into the United States; (2) the identities of any 
detainees that have been cleared for release into the United 
States and any information about the capture, detention, and 
threat assessment of such detainees; (3) the countries that 
have been contacted by Government officials to request their 
acceptance of detainees currently held at Naval Station; and 
(4) the legal guidance regarding the transfer, detention, or 
release of detainees held at Naval Station into the United 
States.

                               Background

    Under the rules and precedents of the House of 
Representatives, a resolution of inquiry is one of the methods 
that the House can use to obtain information from the Executive 
Branch.\1\ It ``is a simple resolution making a direct request 
or demand of the President or the head of an executive 
department to furnish the House of Representatives with 
specific factual information in the possession of the executive 
branch.''\2\ The typical practice has been to use the verb 
``request'' when asking for information from the President, and 
``direct'' when addressing Executive department heads.\3\ 
Clause 7 of Rule XIII of the Rules of the House of 
Representatives provides that if the committee to which the 
resolution is referred does not act on it within 14 legislative 
days, a privileged motion to discharge the resolution from the 
committee is in order on the House floor.
---------------------------------------------------------------------------
    \1\Christopher Davis, House Resolutions of Inquiry, CRS Report, 
November 25, 2008, at 1 (quoting U.S. Congress, House, Deschler's 
Precedents of the United States House of Representatives, H. Doc. 94-
661, 94th Cong., 2nd sess., vol. 7, ch. 24, Sec. 8.
    \2\Id.
    \3\Id.
---------------------------------------------------------------------------
    While appreciative of Representative Wolf's interest in the 
issues surrounding the closure of Guantanamo, the Committee 
nonetheless believes that, for the reasons summarized below, 
the resolution is unwarranted.
    As to requests for information on the alleged release into 
the United States of Guantanamo detainees, the recently enacted 
Defense supplemental appropriations resolution (P.L. 111-32) 
mandates that no such detainee may be released into the United 
States.
    As to the names of countries that have been contacted by 
U.S. Government officials to request their acceptance of 
detainees currently held at Guantanamo, insisting that this 
information be divulged would, in the Committee's view, 
inappropriately interfere with the constitutional 
responsibility of the Executive to conduct foreign policy, 
including holding sensitive preliminary discussions on a 
confidential basis. In this particular instance, it could be 
expected to materially interfere with efforts to close 
Guantanamo, by prematurely disclosing the name of any country 
even contemplating accepting detainees.
    Moreover, the Defense supplemental appropriations 
resolution already requires that information on the name of 
each detainee, risk assessment, and terms of any agreement with 
any country be provided to Congress 15 days before any transfer 
to another country occurs.
    And as to information regarding any Guantanamo detainee to 
be transferred to the U.S. for detention or trial, the Defense 
supplemental appropriations resolution already requires that 
information on risk assessment, costs, legal rationale, 
associated court demands, plans for risk mitigation, and 
notification to State officials be provided to Congress 45 days 
before any such transfer occurs.
    Additional information regarding this matter is being 
provided through regular Committee oversight, and from 
briefings and reports from the Administration's Guantanamo-
related task forces. The Defense supplemental appropriations 
resolution also requires that, before Guantanamo is closed, the 
President is to submit to Congress a report describing the 
disposition or legal status of each detainee.
    In light of these facts, the Committee is adversely 
reporting H. Res. 636 to the House, without amendment.

                                Hearings

    No hearings were held in the Committee on H. Res. 636.

                        Committee Consideration

    On July 29, 2009, the Committee met in open session and 
ordered H. Res. 636 adversely reported, without amendment, by a 
rollcall vote of 14 yeas to 12 nays, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall vote occurred during the Committee's 
consideration of H. Res. 636:
    H. Res. 636 was ordered reported unfavorably by a vote of 
14 to 12.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Delahunt....................................................              X
Mr. Wexler......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................              X
Mr. Gonzalez....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei......................................................              X
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................                              X
Mr. Issa........................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................                              X
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             14              12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this resolution does 
not provide new budgetary authority or increased tax 
expenditures.

                        Committee Cost Estimate

    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee estimates that 
implementing the resolution would not result in any significant 
costs. The Congressional Budget Office did not provide a cost 
estimate for the resolution.

                    Performance Goals and Objectives

    Clause 3(c)(4) of rule XIII of the Rules of the House of 
Representatives is inapplicable, because H. Res. 636 does not 
authorize funding.

                   Constitutional Authority Statement

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives is inapplicable, because H. Res. 636 is not a 
bill or a joint resolution that may be enacted into law.

                          Advisory on Earmarks

    Clause 9 of rule XXI of the Rules of the House of 
Representatives is inapplicable, because H. Res. 636 is not a 
bill or a joint resolution.

                      Section-by-Section Analysis

    H. Res. 636 directs the Attorney General to transmit to the 
House of Representatives not later than 14 days after the date 
of adoption of the resolution, copies of any document, memo, or 
correspondence of the Department of Justice, including the 
Federal Bureau of Investigation and United States Marshal 
Service, or any portion of any such document, memo, or 
correspondence, that refers or relates to (1) any guidance, 
recommendations, or logistical preparations made since January 
20, 2009, for the transfer or release of the detainees held at 
Naval Station, Guantanamo Bay, Cuba (hereinafter ``Naval 
Station''), into the United States; (2) the identities of any 
detainees that have been cleared for release into the United 
States and any information about the capture, detention, and 
threat assessment of such detainees; (3) the countries that 
have been contacted by Government officials to request their 
acceptance of detainees currently held at Naval Station; and 
(4) the legal guidance regarding the transfer, detention or 
release of detainees held at Naval Station into the United 
States.

                             Minority Views

    We support House Resolution 636 because the President made 
a rash decision, after only one day in office, to close the 
Guantanamo Bay terrorist detention facility within one year. 
After six months, the Administration still hasn't produced a 
plan to do so.
    And the absence of a clear reason to close Gitmo proves the 
President's decision was premature at best and dangerous at 
worst.
    On Wednesday, July 29, we considered H. Res. 636, a 
resolution of inquiry introduced by Representative Frank Wolf 
of Virginia, which would require the Justice Department to give 
basic information to Congress regarding its Gitmo plans.
    This information includes documents that relate to any 
preparations for the transfer or release into the U.S. of the 
detainees held at Gitmo; the identities of any detainees who 
have been cleared for release into the U.S.; any information 
about the capture, detention, and threat assessment of those 
detainees; and relevant guidelines regarding the transfer, 
detention or release of Gitmo detainees.
    We would have expected this resolution to be reported out 
favorably so the full House could vote on it, because 
Democratic leaders themselves have chided the Administration 
for its failure to produce this and other information related 
to its plans to close Gitmo.
    According to Roll Call, ``Democratic leaders are . . . 
indignant that the President has asked for money before 
presenting a plan. . . . In anticipation of receiving a plan 
for the prison's closure this month, House and Senate leaders 
had already delayed consideration of their Defense 
appropriations bills--traditionally one of the first spending 
measures to see action.''\1\
---------------------------------------------------------------------------
    \1\Emily Pierce and Jennifer Bendery, ``Democrats Demand Gitmo 
Plan,'' Roll Call (July 22, 2009).
---------------------------------------------------------------------------
    According to the Democratic Chairman of the House Defense 
Appropriations Subcommittee, the Administration ``will have no 
money available until we get a plan. It's that simple.''\2\ 
Speaker Pelosi herself said, ``We'll wait for a plan.''\3\
---------------------------------------------------------------------------
    \2\Id.
    \3\Id.
---------------------------------------------------------------------------
    And House Appropriations Chairman David Obey said ``so far 
as we can tell there is yet no concrete program for [closing 
Gitmo] . . . I'm not much interested in wasting my energy 
defending a theoretical program.''\4\
---------------------------------------------------------------------------
    \4\Megan Scully, ``Obey Rejects Obama's Request for Funds to 
Shutter Guantanamo Detention Center,'' CongressDaily (May 5, 2009).
---------------------------------------------------------------------------
    Clearly, the Administration's program will remain 
theoretical until we get answers to the basic questions posed 
in H. Res. 636.
    The recent experiment in Bermuda makes clear the need for 
transparency. After the Department of Justice announced that 
four detainees had been resettled in Bermuda, the shocked 
Police Commissioner there said a preliminary threat assessment 
of the men found them to be ``high risk.''\5\
---------------------------------------------------------------------------
    \5\``Police Commissioner Only Knew of Detainees' Arrival on 
Thursday,'' The (Bermuda) Royal Gazette (June 17, 2009).
---------------------------------------------------------------------------
    And according to ABC News, ``The Obama administration put 
out some seemingly mixed messages on the . . . transfer, saying 
that their release to Bermuda would make the U.S. safer, while 
insisting the government would guard against their travel to 
the U.S.''\6\
---------------------------------------------------------------------------
    \6\Jake Tapper, ``Four Uighurs Resettled in Bermuda,'' ABC News 
Political Punch (June 11, 2009), available at http://blogs.abcnews.com/
politicalpunch/2009/06/four-uighurs-settled-in-bermuda.html.
---------------------------------------------------------------------------
    What sense does it make to say detainees are not a threat, 
when at the same time we take precautions to ensure that those 
same detainees are prohibited from entering the United States?
    Who are the people at Gitmo? They are al-Qaeda financial 
specialists, organizational experts, bomb-makers, and 
recruiters. In camp inspections, it has been discovered that 
detainees were being trained by other detainees in bomb-making, 
weapons handling, and tactics. Serious plots to kill guards 
emerged from even medium-security cell blocks.\7\
---------------------------------------------------------------------------
    \7\Lt. Col. Gordon Cucullu, Inside GITMO: The True Story Behind the 
Myths of Guantanamo Bay (HarperCollins 2009), at 102.
---------------------------------------------------------------------------
    Ever wonder what it's like to be a guard at Guantanamo Bay? 
They receive, on average, 450 assaults annually.\8\ More than 
half the assaults require some sort of medical attention.\9\ 
Detainees tell guards they'll have al-Qaeda members rape and 
murder their families.\10\
---------------------------------------------------------------------------
    \8\Id. at 177.
    \9\Id. at 177.
    \10\Id. at 121.
---------------------------------------------------------------------------
    Amazingly, the Administration has now delayed the deadline 
to develop a plan for closing Gitmo to just days before the 
final deadline for shutting it down.\11\ As the Democrats on 
the committee reported H. Res. 636 unfavorably, the full House 
of Representatives will not be able to require the disclosure 
of this basic information. Consequently, there will be 
insufficient time for the American people to voice their 
opinions, and for Congress to provide the necessary review, to 
ensure the Administration's decisions will not endanger 
American lives before it's too late. This result is 
unfortunate, given that members of the Democratic majority 
were, until last January, demanding at least this level of 
congressional involvement in these important decisions.
---------------------------------------------------------------------------
    \11\Emily Pierce and Jennifer Bendery, ``Democrats Demand Gitmo 
Plan,'' Roll Call (July 22, 2009).

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Howard Coble.
                                   Elton Gallegly.
                                   Bob Goodlatte.
                                   Daniel E. Lungren.
                                   Darrell E. Issa.
                                   J. Randy Forbes.
                                   Steve King.
                                   Trent Franks.
                                   Louie Gohmert.
                                   Jim Jordan.
                                   Ted Poe.
                                   Jason Chaffetz.
                                   Tom Rooney.
                                   Gregg Harper.

                                  
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