S. HRG. 113–872 

CLOSING GUANTANAMO: THE 

NATIONAL SECURITY, FISCAL, 

AND HUMAN RIGHTS IMPLICATIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 24, 2013 

Serial No. J–113–22 

Printed for the use of the Committee on the Judiciary 

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CLOSING GUANTANAMO: THE NATIONAL SECURITY, 

FISCAL, AND HUMAN RIGHTS IMPLICATIONS 
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26–148 PDF 2018

S. HRG. 113–872 

CLOSING GUANTANAMO: THE 

NATIONAL SECURITY, FISCAL, 

AND HUMAN RIGHTS IMPLICATIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 24, 2013 

Serial No. J–113–22 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS

DICK DURBIN, Illinois, Chairman 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

TED CRUZ, Texas, Ranking Member 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ORRIN G. HATCH, Utah 

JOSEPH ZOGBY, Democratic Chief Counsel 

SCOTT KELLER, Republican Chief Counsel 
(III) 

C O N T E N T S 

JULY 24, 2013, 2:02 P.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cruz, Hon. Ted, a U.S. Senator from the State of Texas ..................................... 4 

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois .............................. 1 

prepared statement .......................................................................................... 90 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 6 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 5 

prepared statement .......................................................................................... 93 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 7 

WITNESSES 

Witness List ............................................................................................................. 33 

Eaton, Paul D., Major General, U.S. Army, Retired, Fox Island, Washington .. 9 

prepared statement .......................................................................................... 46 

Fryday, Joshua M., Lieutenant, Judge Advocate General’s Corps, U.S. Navy, 

Washington, DC ................................................................................................... 14 

prepared statement .......................................................................................... 67 

Gaffney, Frank J., Jr., President, Center for Security Policy, Washington, 

DC .......................................................................................................................... 12

prepared statement .......................................................................................... 72 

Massimino, Elisa, President and Chief Executive Officer, Human Rights First, 

Washington, DC ................................................................................................... 16 

prepared statement .......................................................................................... 76 

Pompeo, Hon. Mike, a Representative in Congress from the State of Kansas ... 28 

prepared statement .......................................................................................... 39 

Smith, Hon. Adam, a Representative in Congress from the State of Washington .................................................................................................................... 26 

prepared statement .......................................................................................... 34 

Xenakis, Stephen N., Brigadier General, M.D., U.S. Army, Retired, Arlington, 

Virginia ................................................................................................................. 10 

prepared statement .......................................................................................... 51 

QUESTIONS 

Questions submitted to Paul D. Eaton by Senator Klobuchar ............................ 95 

Questions submitted to Joshua M. Fryday by Senator Klobuchar ...................... 96 

Questions submitted to Frank J. Gaffney, Jr., by Senator Klobuchar ................ 97 

Questions submitted to Elisa Massimino by Senator Klobuchar ........................ 98 

Questions submitted to Stephen N. Xenakis by Senator Klobuchar ................... 99 

ANSWERS 

Responses of Paul D. Eaton to questions submitted by Senator Klobuchar ....... 100 

Responses of Joshua M. Fryday to questions submitted by Senator Klobuchar 109 

Responses of Frank J. Gaffney, Jr., to questions submitted by Senator 

Klobuchar .............................................................................................................. 108 

Responses of Elisa Massimino to questions submitted by Senator Klobuchar ... 102 

Responses of Stephen N. Xenakis to questions submitted by Senator 

Klobuchar .............................................................................................................. 105 
Page

IV 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American-Arab Anti-Discrimination Committee (ADC), Washington, DC, 

statement .............................................................................................................. 144 

Amnesty International USA, New York, New York, statement .......................... 208 

Association of the Bar of the City of New York, New York, statement .............. 183 

Cabot, Howard Ross, et al., on behalf of detainee Noor Uthman Muhammed, 

statement .............................................................................................................. 191 

Center for Victims of Torture, The (CVT), St. Paul, Minnesota, statement ....... 153 

Coalition for Security, Liberty and the Law, Washington, DC, October 7, 

2009, letter ............................................................................................................ 289 

Coalition for Security, Liberty and the Law, Washington, DC, December 20, 

2012, letter ............................................................................................................ 287 

CODEPINK: Women For Peace, Washington, DC, July 16, 2013, letter ............ 160 

Council on American-Islamic Relations (CAIR), Washington, DC, statement ... 146 

Ellis, Peter, on behalf of detainees Walid Zaid and Mohammed Haidar, statement ...................................................................................................................... 201 

Friends Committee on National Legislation (FCNL), Washington, DC, statement ...................................................................................................................... 159 

Hetrick, Joseph K., Esq., on behalf of detainee Mohammad Zahir, statement .. 139 

Hoar, Joseph P., Gen., U.S. Marine Corps, retired, et al., July 24, 2013, 

letter ...................................................................................................................... 166 

Irvine, David R., Brig. Gen., U.S. Army, retired, Salt Lake City, Utah, statement ...................................................................................................................... 223 

Jacob, Beth D., et al., on behalf of detainee Mohammed al-Zarnouqi, statement ...................................................................................................................... 142 

Lehnert, Michael, Maj. Gen., U.S. Marine Corps, retired, statement ................. 214 

Lincoln Square Legal Services, Inc., on behalf of detainee Sanad al-Kazimi, 

July 22, 2013, letter ............................................................................................. 136 

Malone, Daniel C., on behalf of detainee Haji Wali Mohammed, statement ...... 221 

Marshall, David, Seattle, Washington, on behalf of detainee Ahmed Adnan 

Ajam, statement ................................................................................................... 207 

Muslim Public Affairs Council (MPAC), Washington, DC, statement ................ 172 

Nashiri family on behalf of detainee Abdel Rahim, July 16, 2013, letter ........... 182 

National Association of Criminal Defense Lawyers (NACDL), Washington, 

DC, statement ...................................................................................................... 177 

National Religious Campaign Against Torture (NRCAT), Washington, DC, 

statement .............................................................................................................. 264 

O’Hara, Matthew J., Chicago, Illinois, on behalf of detainee Umar Abdulayev, 

statement .............................................................................................................. 169 

Reprieve, London, England, United Kingdom, July 24, 2013, introduction 

letter ...................................................................................................................... 111 

Aamer, Michael, and Johina Aamer, on behalf of detainee Shaker Aamer, 

letters ............................................................................................................. 118 

Al Hajj, Mohamed Sami, on behalf of detainee Sami Al Hajj, released, 

letter ............................................................................................................... 122 

Al-Hakimi, Emad, on behalf of detainee Adel Al-Hakimi, letter .................. 113 

Barka, Abd Alhaq, on behalf of detainee Younous Chekkouri, letter .......... 120 

Belbacha, Mohammed, on behalf of detainee Ahmed Belbacha, letter ........ 121 

Hadjarab, Ahmed, on behalf of detainee Nabil Hadjarab, letter .................. 114 

Massaud, Kamal, on behalf of detainee Abu Wa’el Dihab, letter ................. 117 

Sliti, Maherzia, on behalf of detainee Hisham Sliti, letter ........................... 116 

Spaulding, Douglas K., Reed Smith, LLP, on behalf of detainee Ravil 

Mingazov, July 18, 2013, introduction letter ..................................................... 131 

Mingazov, Yusuf, on behalf of detainee Ravil Mingazov, letter ................... 132 

Mingazov, Yusuf, addressed to detainee Ravil Mingazov, letter .................. 133 

Valiullina, Zukhra, on behalf of detainee Ravil Mingazov, letter—Redacted ............................................................................................................. 134 

Valiullina, Zukhra, addressed to detainee Ravil Mingazov, letter ............... 135 

Sullivan, Thomas P., on behalf of detainee Abdulrahman Suleiman, 

July 22, 2013, introduction letter—Redacted .................................................... 123 

Mother of Abdulrahman Suleiman, on behalf of detainee Abdulrahman 

Suleiman, letter ............................................................................................ 130 

Thomson, Gerald E., M.D., statement ................................................................... 150 

T’ruah: The Rabbinic Call for Human Rights, New York, New York, statement ...................................................................................................................... 266 
Page

V 

Vladeck, Stephen I., Professor of Law, American University Washington College of Law, Washington, DC, statement ........................................................... 269 

Willett, Sabin, statement—Redacted ..................................................................... 197 

Wilner, Thomas, Shearman and Sterling, Washington, DC, statement ............. 255 

Witness Against Torture, New York, New York, statement ................................ 279 

(1) 

CLOSING GUANTANAMO: THE 

NATIONAL SECURITY, FISCAL, 

AND HUMAN RIGHTS IMPLICATIONS 

WEDNESDAY, JULY 24, 2013 

UNITED STATES SENATE

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS

AND HUMAN RIGHTS

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:02 p.m., in Room 

SH–216, Hart Senate Office Building, Hon. Dick Durbin, Chairman 

of the Subcommittee, presiding. 

Present: Senators Durbin, Leahy, Feinstein, Whitehouse, 

Klobuchar, Hirono, and Cruz. 

OPENING STATEMENT OF HON. DICK DURBIN, 

A U.S. SENATOR FROM THE STATE OF ILLINOIS 

Chairman DURBIN. Good afternoon. This hearing of the Subcommittee on the Constitution, Civil Rights and Human Rights will 

come to order. I understand Senator Cruz, my Ranking Member, is 

going to be here very briefly. 

Today’s hearing is entitled, ‘‘Closing Guantanamo: The National 

Security, Fiscal, and Human Rights Implications.’’ We are pleased 

to have a large audience. That demonstrates the importance and 

timeliness of this discussion. 

Thanks to those of you who are here in person and those following the hearing on Twitter and Facebook using the hashtag 

#closegitmo. 

At the outset, I want to note that the rules of the Senate prohibit 

outbursts, clapping, or demonstrations of any kind. There was so 

much interest in today’s hearing that we moved to a larger room 

to accommodate everyone. Anyone who could not get a seat is welcome to go to the overflow room for a live video feed, 226 of Dirksen, the same floor. 

I will begin by providing some opening remarks. Then I will turn 

to Senator Ted Cruz and Senator Leahy, our Chairman of the Full 

Committee, who has now joined us, for opening statements before 

we turn to witnesses. 

Well, it has been more than 11 years since the Bush administration established the detention center at Guantanamo Bay. In that 

time I have spoken on the Senate floor more than 65 times about 

the need to close this prison. I never imagined that in 2013 not 
2 

only would Guantanamo still be open, but some would be arguing 

that we keep it open indefinitely. 

The reality is that every day it remains open, Guantanamo prison weakens our alliances, inspires our enemies, and calls into question our commitment to human rights. Time and again, our most 

senior national security and military leaders have called for the 

closure of Guantanamo. 

Listen to retired Air Force Major Matthew Alexander. He led the 

interrogation team that tracked down al-Zarqawi, the leader of AlQaeda in Iraq. Here is what the major said: ‘‘I listened time and 

again to foreign fighters and Sunni Iraqis state that the number 

one reason they decided to pick up arms and join Al-Qaeda were 

the abuses at Abu Ghraib and the authorized torture and abuse at 

Guantanamo Bay.’’ 

‘‘It is no exaggeration,’’ the major said, ‘‘to say that at least half 

of our losses and casualties in that country have come at the hands 

of foreigners who joined the fray because of our program of detainee abuse.’’ 

In addition to the national security cost, every day that Guantanamo remains open, we are wasting taxpayer dollars. According to 

updated information I received from the Department of Defense 

just yesterday, Guantanamo Bay detention costs for Fiscal Year 

2012 are $448 million and for Fiscal Year 2013 estimated at $454 

million. 

Do the math: 166 prisoners, $454 million. We are spending $2.7 

million per year for each detainee held at Guantanamo Bay. What 

does it cost to incarcerate a prisoner and keep them in the safest 

and most secure prison in America in Florence, Colorado: $78,000 

a year against $2.7 million that we are spending in Guantanamo. 

This would be fiscally irresponsible during ordinary economic 

times, but it is even worse when the Department of Defense is 

struggling to deal with the impact of sequestration, including the 

furloughs and cutbacks in training for our troops. 

Every day the soldiers and sailors serving at Guantanamo are 

doing a magnificent job under difficult circumstances. I went to the 

Southern Command in Miami, and I met with the men who were 

in charge of this responsibility. I can tell you that they are saddened by this assignment, but they are doing exactly what they are 

supposed to do. At great risk and at great separation from their 

family and personal challenge, they are accepting this assignment. 

And they look to us as to whether this assignment still makes 

sense. 

Every day at Guantanamo Bay, dozens of detainees are being 

force-fed, a practice the American Medical Association and the 

International Red Cross condemn and that a Federal judge in 

Washington recently found to be ‘‘painful, humiliating, and degrading.’’ 

As President Obama asked in his May 23rd national security 

speech, ‘‘Is this who we are? Is that something our Founding Fathers foresaw? Is that the America we want to leave our children? 

Our sense of justice is stronger than that,’’ the President said. 

It is worth taking a moment to recall the history of Guantanamo 

Bay. After 9/11, the Bush administration decided to set aside the 

Geneva Conventions, which have served us well in past conflicts, 
3 

and set up an offshore prison in Guantanamo in order to evade the 

requirements of those treaties and our Constitution. John Yoo, 

working in that White House, wrote on December 28, 2001, an Office of Legal Counsel memo to Jim Haynes and said that Guantanamo was ‘‘the legal equivalent of outer space,’’ a perfect place to 

escape the law. But others, others even within the Bush administration, disagreed. 

General Colin Powell, then the Secretary of State, objected. He 

said disregarding our treaty obligations ‘‘will reverse over a century 

of U.S. policy and practice and undermine the protections of the 

law of war for our own troops. It will undermine public support 

among critical allies, making military cooperation more difficult to 

sustain.’’ 

Then-Defense Secretary Rumsfeld approved the use of abusive 

interrogation techniques at Guantanamo. These techniques became 

the bedrock for interrogation policy in Iraq. According to a Defense 

Department investigation, the horrible images that emerged from 

Abu Ghraib have seared into our memory some of the most outrageous and extreme techniques. Guantanamo became an international embarrassment and an international controversy. 

The Supreme Court repeatedly struck down the administration’s 

detention policies. Justice Sandra Day O’Connor famously wrote for 

the majority in the Hamdi case, ‘‘A state of war is not a blank 

check for a President.’’ 

By 2006, even President Bush—President Bush—said he wanted 

to close Guantanamo. In 2008, the presidential candidates of both 

major parties supported closing Guantanamo. Within 48 hours of 

his inauguration, President Obama issued an Executive Order prohibiting torture and setting up a review process for all Guantanamo detainees. 

I will be first to acknowledge that the administration could be 

doing more to close Guantanamo. Last week, Senator Feinstein and 

I met with senior White House officials to discuss what they are 

doing under existing law to transfer detainees out of Guantanamo. 

But let us be clear. The President’s authority has been limited by 

Congress. We have enacted restrictions on detainee transfers, including a ban on transfers to the United States from Guantanamo, 

that make it very difficult if not impossible to actually close the facility. It is time to lift those restrictions and move forward with 

shutting down Guantanamo. We can transfer most of the detainees 

safely to foreign countries, and we can bring the others to the 

United States where they can be tried in Federal court or held 

under the law of war until the end of hostilities. 

Let us look at the track record. Since 9/11—since 9/11—nearly 

500 terrorists have been tried and convicted in our Federal courts 

and are now being safely held in Federal prisons. No one—no one— 

has ever escaped from a Federal supermax prison or a military 

prison. 

In contrast, only six individuals have been convicted by military 

commissions. Two of those convictions have been overturned by the 

courts. 

Today, nearly 12 years after 9/11, the architects of the 9/11 attacks are still awaiting trial in Guantanamo. 
4 

During his confirmation hearing, I discussed with Jim Comey, 

who was Deputy Attorney General in the Bush administration and 

is the nominee for FBI Director, this whole case. Here is what he 

told me: ‘‘We have about a 20-year track record in handling particularly Al-Qaeda cases in Federal courts . . . the Federal courts 

and Federal prosecutors are effective at accomplishing two goals in 

every one of these situations,’’ Comey said, ‘‘getting information 

and incapacitating the terrorist.’’ 

Some may argue we cannot close Guantanamo because of the 

risk some detainees may join and engage in terrorist activities. But 

studies show that even in our Federal prisons, the recidivism rate 

is more than 40 percent, far higher than the rate of any of those 

released from Guantanamo. And the often quoted recidivism estimate includes hundreds of detainees transferred under the Bush 

administration when the standards for release were much more 

lax. 

No one is suggesting that closing Guantanamo is risk free or that 

no detainees will ever engage in terrorist activities if they are 

transferred. But if a former detainee does return to terrorism, he 

will likely meet the fate of Said al-Shihri, the number two official 

in Al-Qaeda in the Arabian Peninsula, who was recently killed in 

a drone strike. 

The bottom line is our national security and military leaders 

have concluded that the risk of keeping Guantanamo open far outweighs the risk of closing it because the facility continues to harm 

our alliances and serve as a recruitment tool for terrorists. It is 

time to end this sad chapter of our history. Eleven years is far too 

long. We need to close Guantanamo. 

I will now recognize Senator Cruz, the Ranking Member. 

OPENING STATEMENT OF HON. TED CRUZ, 

A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CRUZ. Thank you, Mr. Chairman. 

President Obama tells us the war on terror is over, that AlQaeda has been decimated, and that we can now take a holiday 

from the long, difficult task of combating radical Islamic terrorism. 

I do not believe the facts justify that rosy assessment. 

Five years ago, the President campaigned on closing Guantanamo, and yet Guantanamo remains open as a detention facility for 

those deemed to be the most dangerous terrorists that have been 

apprehended. And, to date, the administration’s position seems to 

be to continue apologizing for the existence of Guantanamo, to continue apologizing for our detaining terrorists, and standing up to 

defend ourselves, but to do nothing affirmatively to address the 

problem. 

In particular, if Guantanamo is closed, it raises the fundamental 

question of where these terrorists will be sent. Now, we can embrace a utopian fiction that they will be sent to their home nations 

and somehow lay down their arms and embrace a global view of 

peace. I do not think that utopian fiction has any basis in reality. 

We have seen, whether it was in Boston or Benghazi or Fort Hood, 

that radical terrorism remains a real and live threat. 

Now, I have significant concerns about the Obama administration’s overbroad incursions into the civil rights of law-abiding 
5 

Americans. But at the same time, I have concerns about their unwillingness or inability to connect the dots and to prevent violent 

acts of terrorism. And until we are presented with a good, viable 

strategy for what to do with terrorists who would work night and 

day to murder innocent Americans, I have a hard time seeing how 

it is responsible to shut down our detention facilities and send 

these individuals home where they almost surely would be released 

and almost surely would return to threaten and kill more Americans. 

That is a question I hope this panel sheds some light on, how we 

can responsibly proceed in protecting the national security of this 

country, protecting the men and women of this country who expect, 

as the first responsibility of the Federal Government, that we will 

keep the Nation secure. And I look forward to the testimony today 

on that question. 

Chairman DURBIN. Thank you, Senator Cruz. 

Senator Leahy. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Well, thank you, and I do want to thank Senator Durbin for holding this hearing. I think it is long past time 

that we take action and end this unfortunate chapter in our Nation’s history. You can do that and still fight terrorism as it threatens us. It is nice to make up quotes and pretend the President said 

something about taking a holiday from terrorism, but, of course, he 

never said any such thing. But I do know that, for over a decade, 

the indefinite detention of prisoners at Guantanamo has contradicted our most basic principles of justice; it has degraded our 

international standing; and by itself it has harmed our national security. I think it is shameful that we are still even debating this 

issue. 

As long as we keep this detention center open at Guantanamo, 

it will continue to serve as a recruiting tool for terrorists, just as 

the photographs after Abu Ghraib did. It will discredit America’s 

historic role as a leader in human rights. Countries that champion 

the rule of law and human rights do not lock away prisoners indefinitely without charge or trial. Countries that champion the rule of 

law and human rights do not strap prisoners down and forcibly 

feed them against their will. We condemn authoritarian states 

when they do this—and we should—but we should not tolerate the 

same thing in our country. 

As Senator Durbin points out, at a time of sequestration, to be 

spending as much as $2.5 to $2.7 million per prisoner to hold them 

in Guantanamo—because if we are going to hold these people, we 

could do it for far, far less at our supermax prisons, if that is the 

issue. I mean, how can we talk about all the things we have to take 

out of our budget because there are things that actually benefit 

Americans and yet we can spend this kind of a fortune down there 

and talk about spending hundreds of millions of dollars more to 

overhaul the compound. That is what has been requested. For more 

than a decade, we have seen precious manpower, resources, and 

money squandered on this long-failed experiment instead of being 
6 

directed to important national security missions at home and 

abroad. I think the waste has to end. 

Furthermore, again, as Senator Durbin pointed out, the military 

commission system for trying these detainees is not working. It is 

a tiny handful that have been prosecuted there as compared to the 

hundreds in our Federal courts. We have already seen Federal 

courts overturn two convictions at Guantanamo in opinions that 

will prevent the military from bringing conspiracy and material 

support charges against detainees—something that even the lead 

military prosecutor at Guantanamo himself acknowledged. 

These same charges, though, can be pursued in Federal courts 

where our prosecutors do have a strong track record of obtaining 

long prison sentences against those who seek to do us harm. We 

are the most powerful Nation on Earth. Why do we act afraid to 

use the best Federal court system we have ever seen, probably the 

best court system in the world, and we act like we are afraid to 

use it? We have convicted nearly 500 terrorism suspects since 9/11 

in these Federal courts. 

So the status quo at Guantanamo is untenable, and I appreciate 

the President’s renewed vow to shutter this unnecessary, expensive, and inefficient prison. His decision in June to appoint a new 

special envoy at the State Department to coordinate efforts to repatriate detainees is a positive step toward closing the facility. So too 

are reports that the Periodic Review Boards will soon begin reviewing cases. 

Now, I am glad to see that commonsense provisions were included in this year’s National Defense Authorization Act that was 

recently reported by the Senate Armed Services Committee. It will 

be incremental, but it will help, and I look forward to working with 

Members of Congress to bring this about. 

I will put my full statement—I know you have witnesses waiting, 

Mr. Chairman. I will put my full statement in the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman DURBIN. Mr. Chairman, thank you for being here, and 

thank you for the support you have given to this Subcommittee. 

We want to welcome one of the fellow Members of the Senate Judiciary Committee, not a Member of this Subcommittee, but today 

she is more than honorary. She is going to be welcome to participate. You even can come down the line if you would like and sit 

a little closer. 

Senator FEINSTEIN. A little later. 

Chairman DURBIN. Okay, good. Senator Dianne Feinstein. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, 

A U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you, Senator. Thank you for your comments and thank you for allowing me to sit with your Subcommittee. 

As you mentioned, I believe, when I came in the room, I was at 

Guantanamo about a month ago with John McCain and the President’s Chief of Staff. We have been looking at the figures of cost, 

and apparently they are much higher than we thought. If the new 

costs are correct, the cost of the facility is $554.1 million in 2013, 
7 

and as Senator Leahy said, that is $2.67 million per detainee. I 

want to point out that to keep a prisoner in maximum security in 

our Federal system is $78,000. So this is a massive waste of money. 

A month ago, when I was there, there were 166 inmates. Most 

have been there for a decade or more—10 years with no hope, no 

trial, no charge. These 166 detainees are slated for trial while 46 

others will be held without trial until the war against terror is 

over, whenever that may be. Eighty-six of them, more than half, 

have been cleared for transfer by either the Bush or the Obama administration. Nonetheless, they remain in dismal conditions and 

legal limbo. 

By the end of President Obama’s second term, the majority of 

Guantanamo detainees there today will have been held without 

trial for almost 15 years. I would submit that this is not the American way, and I would submit that Guantanamo has been a recruiting tool for terrorists. It makes a myth out of our legal system, and 

it really ought to be closed. 

We saw the hopelessness. We saw when we were there 70 detainees were undergoing a hunger strike. Twice a day, American military personnel restrains the detainee in a chair by his arms, torso, 

and feet. A tube inserted through the nose and into the stomach, 

and for some detainees, this has been going on for 5 months twice 

a day. 

I am very pleased that you have some medical testimony here 

today, and I look forward to hearing it. But this large-scale force 

feeding and this behavior is a form of protest. It is not an attempt 

at suicide. I believe it violates international norms and medical 

ethics. And at Guantanamo it happens day after day and week 

after week. 

So I find this unacceptable. I believe the facility should be closed. 

I believe all of these people can be transferred to high-security facilities in this country and that that is the proper thing to do. 

So I thank you for this opportunity. 

Chairman DURBIN. Thank you, Senator Feinstein. 

Senator Whitehouse, do you have any opening comments? 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

A U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Very briefly, because I want to get to the 

witnesses, but I do want to thank you, Chairman Durbin, for holding this hearing. I think it is really important. 

I have been around long enough to have been through several 

stages on Guantanamo. There was the stage where it was the 

worst of the worst, and they were too dangerous to release. And 

then the Bush administration released a huge chunk of them and 

then said, okay, now we are really down to the worst of the worst. 

And then they released another huge chunk of them. Now we have 

I think 86 of 166 slated for release, and we simply have not been 

able to find places for them to go. 

So we were kind of fed a bill of goods about who was there along 

the road and about how dangerous they were, because over and 

over again they have either been released in these waves or slated 

for release. And in my time on the Intelligence Committee, both 

under Chairman Rockefeller and under Chairman Feinstein, we 
8 

heard over and over again from our national security officials about 

the value of Guantanamo as a recruiting tool for our enemies. 

So this is a very timely hearing, and I am grateful to the leadership of you, Senator Durbin, of the Chairman of our Judiciary Committee, Patrick Leahy, who is here, and of Chairman Feinstein as 

the Chairman of the Intelligence Committee. 

Thank you. 

Chairman DURBIN. Thank you, Senator Whitehouse. 

It is the custom of the Committee to swear in the witnesses, and 

I would ask the first panel to please rise. Raise your right hand. 

Do you affirm the testimony you are about to give before the Subcommittee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

General EATON. I do. 

General XENAKIS. I do. 

Lieutenant FRYDAY. I do. 

Mr. GAFFNEY. I do. 

Ms. MASSIMINO. I do. 

Chairman DURBIN. Thank you. Let the record reflect that all of 

the witnesses on this panel answered in the affirmative. And before 

I recognize the first witness, I ask consent to enter into the record 

a statement from Retired Major General Michael Lehnert, who 

served in the Marine Corps for 37 years. General Lehnert led the 

first Joint Task Force Guantanamo, which established the detention facility in 2002. He could not be here today, but we wanted 

to make sure his views were in the record. We will circulate his 

statement to the whole Committee, and I commend it to my colleagues. As he details in his statement, General Lehnert tried to 

comply with the Geneva Conventions and asked to bring in the Red 

Cross to inspect this facility. He was rebuked by civilian political 

appointees. Here is what he says: 

‘‘We squandered the good will of the world after we were attacked by our actions in Guantanamo. Our decision to keep Guantanamo open has actually helped our enemies,’’ the general writes, 

‘‘because it validated every negative perception of the United 

States. To argue we cannot transfer detainees to a secure facility 

in the United States because it would be a threat to public security 

is ludicrous.’’ 

We are pleased to be joined here today by Retired Major General 

Paul Eaton. Major General, it is good to see you again. He is currently a senior advisor to the National Security Network. He retired from active duty after more than 30 years in the United 

States Army. From 2003 to 2004, General Eaton served in Iraq as 

the commanding general of the Coalition Military Assistance Training Team. Prior to serving in Iraq, General Eaton commanded the 

Army’s Infantry Center and was Chief of Infantry for the Army. He 

studied at West Point, earned a master’s degree in political science 

from Middlebury College. 

General Eaton, thank you for your service. You have 5 minutes, 

and your entire statement will be made part of the record and then 

open to questions. Please proceed. 
9 

STATEMENT OF MAJOR GENERAL PAUL D. EATON, 

U.S. ARMY, RETIRED, FOX ISLAND, WASHINGTON 

General EATON. Chairman Durbin, thank you very much. Ranking Member Cruz and Members of the Subcommittee, thank you 

very much for inviting me here to share my views on closing the 

Guantanamo Bay Detention Center. 

You mentioned that I had the last operational mission to create 

the Iraqi armed forces. My biggest challenge when I did that was 

to overcome over 30 years of despotism and its impact on the society in Iraq. So we worked very hard to develop what the Brits call 

‘‘the moral component,’’ to instill the adherence to the rule of law. 

We drilled daily the notion of civilian control of the military, military justice, prisoner management, and battlefield discipline. We 

stressed accountability. 

Then Abu Ghraib blew up on us. The day that happened, the day 

it hit the press, my senior Iraqi advisor, an Air Force general 

under Saddam, retired, came into my office and said, ‘‘General, you 

cannot understand how badly this is going to play on the Arab 

street.’’ We lost the moral high ground. 

The investigation of Abu Ghraib by Major General Tony Taguba, 

a great American hero, found that torture implemented at Guantanamo was exported to detainee operations in Iraq. Abu Ghraib was 

a logical outcome of our Guantanamo experience. Men who had 

served in Guantanamo during the worst days of enhanced interrogation techniques were deployed to Iraq to ‘‘Gitmo-ize interrogations.’’ Not my words. Borrowed from testimony. Abu Ghraib was 

the spawn of Guantanamo, and it is one reason why I am convinced that we have got to close down this detention center. 

You cannot buff Guantanamo enough to make it shine again 

after the sins of the past. Improvements in detainee treatment and 

new military commission rules will not change the belief in the 

minds of our allies and our enemies that Guantanamo is a significant problem to the prosecution of the U.S. national security agenda in general and the U.S. military in particular. 

The argument that the Guantanamo facility represents a valuable intelligence tool is simply wrong. The shelf life intelligence has 

and particularly the people who have the potential intelligence is 

very short. The argument that the Guantanamo facility is necessary to hold dangerous men is simply wrong. As Senator Durbin 

mentioned, our supermax prisons do this quite well. 

We have a great many allies and alliances created for many reasons, most providing for the mutual defense. My team in Iraq was 

composed of nine nations, military and civilian. In late-night discussions, our Guantanamo problem would come up from time to 

time, and after Abu Ghraib, often. Some of our closest allies have 

refused to send up detainees because of Guantanamo, and we are 

losing intelligence opportunities every time this happens. 

Releasing any individual Guantanamo detainee does not change 

our national security posture. To this soldier, the fear-based argument to keep the Guantanamo Bay detention facility open is hard 

to understand. If brought to the U.S. for prosecution, incarceration, 

or medical treatment, the detainees will pose no threat to our national security. The 86 men who have been cleared for transfer 
10 

should be transferred. We must find lawful dispositions for all law 

of war detainees as we have done in every conflict. 

Further, Guantanamo places our soldiers and Nation at risk not 

only because it makes America look hypocritical as we promote the 

rule of law but because it makes the detainees look like the warriors that they are not. Our leaders in Iraq would pose the question 

early and often: ‘‘Did we create more terrorists today than we managed to take off the street?’’ Guantanamo is a terrorist-creating institution and is a direct facilitator in filling out the ranks of AlQaeda and other terror organizations that would attack our country and our interests. Guantanamo, in military terms, is a combat 

power generator for the enemy. 

We as a Nation are strongest when we uphold the Constitution, 

the Bill of Rights, the Geneva Conventions, and the other laws and 

treaties and conventions to which we subscribe. We are weakest 

when we stray from the rule of law. We have an opportunity and 

an imperative to close Guantanamo now as we wind down combat 

operations in Afghanistan. 

There is no national security reason to keep Guantanamo open. 

In the words of one of my colleagues, they do not win unless they 

change us. And we have got to resist that attempt at change. 

Thank you very much, Mr. Chairman. 

[The prepared statement of General Eaton appears as a submission for the record.] 

Chairman DURBIN. Thank you, General Eaton. 

Brigadier General Stephen Xenakis served in the U.S. Army as 

a medical corps officer for 28 years before retiring. A psychiatrist 

with an active clinical and consulting practice, General Xenakis is 

an adjunct professor at the Uniformed Services University of 

Health Sciences in the Military Medical Department. He is the 

founder of the Center for Translational Medicine, a research organization developing treatments and conducting tests on brain-related conditions affecting soldiers and veterans. General Xenakis 

previously served as senior advisor to the Department of Defense 

on issues relating to the care and support of servicemembers and 

their families, graduated from Princeton University and the University of Maryland School of Medicine. 

General Xenakis, thank you for your service to our country, and 

please proceed. 

STATEMENT OF BRIGADIER GENERAL STEPHEN N. XENAKIS, 

M.D., U.S. ARMY, RETIRED, ARLINGTON, VIRGINIA 

General XENAKIS. Thank you, sir, and thank you, Ranking Member Cruz and Members of the Subcommittee, Senator Feinstein. I 

appreciate the opportunity to testify today. 

As you said, I am board-certified in general psychiatry and child 

and adolescent psychiatry. I have extensive experience in treatment, research, teaching, and administration, commanded—retired 

at the rank of Brigadier General, commanded medical activities, 

medical centers, and medical regions. 

The Federal courts and the Office of the Military Commissions 

have qualified me as a psychiatric and medical expert. I have had 

multiple interviews—multiple interviews—with detainees, advised 

attorneys, and spent cumulatively nearly 3 months at Guantanamo 
11 

over the past 41⁄2 years. I currently provide consultation and expert 

testimony as needed on seven current or former detainees. I have 

reviewed medical, intelligence, and military files of nearly 50. 

The treatment of hunger strikers at Guantanamo compromises 

the core ethical values of our medical profession. The AMA has 

long endorsed the principle that every competent patient has the 

right to refuse medical intervention. 

The World Medical Association and the International Red Cross 

have determined that force feeding through the use of restraints is 

not only an ethical violation but contravenes Common Article 3 of 

the Geneva Conventions. Force feeding completely undermines the 

physician-patient relationship by destroying the trust that is essential for all clinical treatment, including medical issues unrelated to 

force feeding. It engages physicians in the use of force against detainees. At Guantanamo, physicians and nurses have become part 

of the command apparatus that uses punitive and painful methods 

to break the hunger strikes, and the use of restraint chairs, dry 

cells, forced cell extractions, and denial of communal privileges. 

The plain truth is that force feeding violates medical ethics and 

international legal obligations, and nothing claimed in the name of 

defending our country can justify cruel, inhumane, and degrading 

treatment of another man or woman. The detention facilities at 

Guantanamo diminish America’s standing among our allies and 

put at question our true values. 

The underlying issues that contributed to the hunger strike must 

be addressed, including ending the harsh conditions of confinement 

that have been put into place this year. 

Statements in the media leave the impression that the detainees 

are highly trained soldiers eager to get back on the battlefield. The 

vast majority of these men do not fit the picture of the worst of the 

worst. These detainees pale in comparison to violent prisoners accused of serious felonies or murders that I have seen and evaluated 

in this country. 

To be clear, if any detainee has committed a crime, I strongly believe that they should be charged, prosecuted, and convicted, punished accordingly. The fact is, however, that most of these detainees have not been charged. The restrictive and oppressive conditions undermine our national security objectives. Force feeding 

must end. It is unethical, an affront to human dignity, a form of 

cruel, inhumane, and degrading treatment in violation of our Geneva Convention obligations. 

My recommendations include: 

First, the underlying issues that contributed to the hunger strike 

must be resolved, including expeditious release. 

Second, detainees should not be punished for engaging in hunger 

strikes. 

Third, all directives, orders, and protocols that provide, explicitly 

or implicitly, that health professionals act as adjuncts of security 

officials must be rescinded. Trust in the medical staff by detainees 

has been so deeply compromised. Independent doctors and nurses 

should be brought in. 

Fourth, aging detainees require more complicated and sophisticated medical care. The regular rotation of clinical staff impedes 

continuity of care, diagnosis, and treatment. It places dedicated 
12 

and professional military clinicians in untenable circumstances of 

providing suboptimal treatment to an increasingly ill population. It 

is not fair to the doctors, nurses, or detainees. 

Thank you for the privilege of speaking to you. 

[The prepared statement of General Xenakis appears as a submission for the record.] 

Chairman DURBIN. Thank you, Dr. Xenakis. 

We will now hear from our next witness, Frank Gaffney. Mr. 

Gaffney is founder and president of the Center for Security Policy, 

a think tank in Washington. He is a weekly columnist for the 

Washington Times, Townhall, and Newsmax.com. He is the host of 

‘‘Secure Freedom Radio,’’ a syndicated radio program. In the 1980s, 

Mr. Gaffney served in the Reagan Administration as Assistant Secretary of Defense for International Security Policy and Deputy Assistant Secretary for Nuclear Forces and Arms Control Policy. Prior 

to his work in the Department of Defense, he was a professional 

staff member on the Senate Armed Services Committee. He received a bachelor’s degree from Georgetown University and a master’s in international studies from Johns Hopkins School of Advanced International Studies. Mr. Gaffney, the floor is yours. 

STATEMENT OF FRANK J. GAFFNEY, JR., PRESIDENT, 

CENTER FOR SECURITY POLICY, WASHINGTON, DC 

Mr. GAFFNEY. Thank you, Mr. Chairman. One small addendum. 

I also had the privilege of serving in this body for Senator Scoop 

Jackson, who many of you have a long and wonderful memory of, 

I am sure. 

I appreciate the chance to testify on this issue. I recognize that 

I am in the distinct minority on this panel, but I take comfort from 

the fact that I think I represent the vast majority of Americans and 

certainly the vast majority of those of you in Congress on this question: Should Gitmo be closed? And I think the answer is resoundingly no, unless there is a better alternative available to us. 

I would like to describe why I think there is not a better alternative available by putting this into context, if I may, and that is 

to describe why we have Gitmo in the first place. It is because we 

are at war. This is a point that is seemingly lost on a lot of us who 

talk about this in sort of an abstract concept that somehow this detention facility can be removed from that overarching problem. 

We are not just at war. We are at war because others attacked 

us. And in your wisdom, you here in the Congress gave the authority to fight back. I am afraid that increasingly, however, we have 

lost sight as to who it is we are fighting with. And, again, I think 

that bears directly on the question before you all today. 

We are fighting, I would suggest, against people who adhere to 

a doctrine they call ‘‘Shariah.’’ Not all Muslims do, but those that 

are engaged at this point in—— 

[Audience outburst.] 

Mr. GAFFNEY. Excuse me. 

Chairman DURBIN. Please. No outburst of approbation or disapprobation. Thank you. 

Mr. GAFFNEY. Those that do adhere to this doctrine believe that 

it is their obligation to destroy us, to force us to submit to their 

will. 
13 

That bears directly upon this question of what happens if they 

are allowed to return to the battlefield, and I think we all agree 

recidivism among those who are released from Gitmo is a problem. 

Perhaps, as you said yourself, I think, Mr. Chairman, it is not as 

bad as recidivism in the Federal prison system. That is a sobering 

thought, which, again, I would argue suggests we do not want to 

put these prisoners into the Federal prison system if it is even 

worse than it is at Gitmo. 

The main point, though, is if the commitment these prisoners 

have, should they be allowed out, is to wage this jihad, as they call 

it, against us until we submit, it adds urgency to the question that 

Senator Cruz asked, which is, how do you prevent that from happening? And I would, with the greatest of respect, say I find unconvincing the idea that any of these problems are made more tractable by simply moving these people into the United States. 

For one thing, it does raise a question as to whether the costs 

that we are paying—and several of you have alluded to this excessive, wasteful, inefficient cost. But how much has it meant that not 

a single one of these people or any of their friends have been able 

to attack us because of their proximity to a Federal detention facility inside the United States? How many Americans’ lives have been 

spared as a result? There is no way to know for sure. But are you 

feeling lucky? Do you want to take a chance? 

My guess is you will find much more violence inside the Federal 

prison system, not the least because these individuals will be engaged in proselytizing their form of Islam, Shariah, inside the prison system. But beyond that, you will have almost certainly their 

colleagues trying to do what was done in Iraq yesterday by AlQaeda, which is to try to spring them, or at the least, inflict harm 

on an American community that has the misfortune—perhaps the 

Thompson Correctional Facility community as an example, has the 

misfortune of incarcerating these people. 

Let us just set aside the numbers that you might or might not 

feel you can safely push out. There are a number, an unknown 

number—but the President has apparently said it is 46—that you 

can never try. Do you honestly think that the people behind me 

and the people who are impelling this hearing will stop cavilling 

for the release of those prisoners just because they are now in the 

United States? 

And, finally, I would just say to you, as you know better than I, 

Federal judges inside this country will almost certainly look, at 

least some of them, with sympathy on the claim that these prisoners—once they are inside the United States, once they are entitled to all kinds of constitutional rights they might not otherwise 

have in places like Gitmo—and that would perhaps result in their 

release inside the United States. 

I find that it would be beyond malfeasance were we to go down 

that road. It is dereliction of duty. I pray you will not close Gitmo, 

and I hope that my testimony will encourage you not to do that. 

Thank you. 

[The prepared statement of Mr. Gaffney appears as a submission 

for the record.] 

Chairman DURBIN. Thank you, Mr. Gaffney. 
14 

Our next witness is Lieutenant Josh Fryday. Lieutenant Fryday 

is a member of the Judge Advocate General Corps in the United 

States Navy. He is currently stationed in Washington, DC, at the 

Office of the Chief Defense Counsel for Military Commissions. In 

addition to his legal duties, Lieutenant Fryday served in the Navy’s 

humanitarian aid and disaster relief effort following the tsunami 

and nuclear disaster in Japan. Prior to joining the Navy, Lieutenant Fryday worked in the San Francisco District Attorney’s Office 

and the U.S. Attorney’s Office for the Northern District of Illinois. 

He received his B.A. in political science and philosophy from the 

University of California at Berkeley where he graduated Phi Beta 

Kappa. He received his J.D. from the University of California 

Berkeley School of Law. 

Lieutenant Fryday, thank you for being here today, and please 

proceed. 

STATEMENT OF LIEUTENANT JOSH FRYDAY, JUDGE 

ADVOCATE GENERAL’S CORPS, U.S. NAVY, WASHINGTON, DC 

Lieutenant FRYDAY. Thank you, Chairman Durbin, Ranking 

Member Cruz, and Members of the Committee, for inviting me 

today to testify. I am grateful for the opportunity to share my experiences with you. 

While the Office of the Chief Defense Counsel for the Military 

Commissions is aware that I am testifying today, my statement is 

based on my own personal experience and knowledge and does not 

reflect the views of my office, the Navy, or the Department of Defense. 

Over the past year, I have been assigned under military orders 

to serve as military defense counsel for individuals detained in 

Guantanamo Bay, Cuba. As you know, there are 166 remaining. I 

represent one of them, and his name is Mohammed Khameen. 

People often ask me if it is difficult representing a detainee in 

Guantanamo. I am proud to live in a country where my Commander-in-Chief can order me to perform such a challenging mission. My colleagues, prosecutors, and defense lawyers alike are patriots who love their country. We are taught in the military to perform our duties with honor, courage, and commitment. And I am 

here today doing my duty to talk to you about my client’s indefinite 

detention in Guantanamo Bay. 

My client has now been detained by our Government for over 10 

years. After 5 years of detention, in 2008 he was charged with material support for terrorism. In 2009, the military commission process halted, and the charges against him were dismissed. 

A recent D.C. Circuit Court decision, Hamdan v. United States, 

held that material support for terrorism is now no longer a crime 

that he or anyone detained prior to 2006 can ever be tried for in 

a military commission. 

I am not here today to ask for sympathy for a man I was ordered 

to represent, but I would like to tell you a little bit about him. 

He is an Afghan citizen with a third grade education received in 

a Pakistani refugee camp his family went to after fleeing the Russian invasion. He was roughly 22 years old when he was detained, 

although he does not know his exact age. He has a son who was 
15 

6 months old when he last saw him in 2003, and he has never been 

charged with harming anyone, either Afghan or American. 

Had my client been brought to Federal court instead of Guantanamo, he could have and would have been tried years ago. Since 

9/11, nearly 500 terrorists have been convicted in Federal courts; 

in the Guantanamo military commissions, six. Now, after a decade 

of detention with no crime he can be charged of, he sits in Guantanamo, imprisoned indefinitely. 

My client has asked me how it is possible for my Government to 

detain him for over 10 years without proving he committed a crime. 

I try my best to explain that there are people in our Government 

who believe under the laws of war we are allowed to detain people 

indefinitely until the war is over. He then asks me, ‘‘You will no 

longer be at war with Afghanistan after 2014. Can I go home then? 

Or does this war never end?’’ 

As a servicemember and an attorney sworn to uphold the Constitution and our strong legal traditions, I do not have good answers for him. 

If my client is guilty of a crime, he should be tried and given his 

day in court. So I thank this Committee for your willingness to listen to a story today. For as long as he is in Guantanamo, no judge 

or jury ever will. 

We are a Nation of laws and a people of principle. Denying my 

client a trial and detaining him indefinitely is at odds with our oldest values. 

On the eve of our Revolutionary War, we held trials for British 

soldiers responsible for the Boston Massacre. Our founding father 

John Adams served as one of the British soldier’s defense lawyers. 

But today even basic due process in Guantanamo is denied, including the opportunity to confront your accusers, be presented with 

evidence against you, and have access to counsel. 

Our threats are real. Criminals and terrorists should be prosecuted and jailed. Our enemies must know that we will bring them 

to justice, no matter what. But as a people guided by principle and 

the rule of law, we can do better than indefinite detention. 

For centuries, American servicemembers have fought and paid 

the ultimate sacrifice to protect the fundamental values that define 

our Nation. We should strive to always be faithful to those values, 

especially when it is most challenging to do so. 

[The prepared statement of Lieutenant Fryday appears as a submission for the record.] 

Chairman DURBIN. Thank you, Lieutenant. 

The last witness on the panel is Elisa Massimino. She is the 

President and CEO of Human Rights First and an adjunct professor at Georgetown University Law Center. Human Rights First 

is one of the Nation’s leading human rights advocacy groups, and 

Ms. Massimino and Human Rights First have been great partners 

with this Subcommittee working on our human rights agenda. Before joining Human Rights First, Ms. Massimino was a litigator in 

private practice and taught philosophy, earned her J.D. from the 

University of Michigan, master of arts in philosophy from Johns 

Hopkins, and graduated Phi Beta Kappa from Trinity University in 

San Antonio. 
16 

Ms. Massimino, you have testified before the Subcommittee before, and I welcome you back. Please proceed. 

STATEMENT OF ELISA MASSIMINO, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, HUMAN RIGHTS FIRST, WASHINGTON, DC 

Ms. MASSIMINO. Thank you. Chairman Durbin, Ranking Member 

Cruz, and Members of the Committee, thank you for the opportunity to testify today about the importance of closing Guantanamo 

and how we can do so in a way that protects our country, our national security, and our values. 

As the president of an organization whose central mission is to 

advance American global leadership on human rights, I focus on 

ensuring that our country remains a beacon to freedom-seeking 

people around the world and that it can continue to lead by the 

power of example. That is why, after the terrorist attacks on our 

country, we joined forces with more than 50 retired generals and 

admirals, led by former Marine Corps Commandant Chuck Krulak 

and former CENTCOM Commander Joe Hoar who believed that 

our values and institutions are assets in the fight against terrorism, not liabilities. 

I have been to Guantanamo and met the dedicated people serving there under difficult circumstances. We have been official observers to every military commission convened at Guantanamo 

since its inception. We know and have great respect for the 

servicemembers and civilian defense lawyers who are struggling to 

navigate this untested and jerry-rigged system to wring some form 

of justice from it. 

Some would have you believe that Guantanamo’s critics are a 

handful of human rights activists, some foreigners, and defense 

lawyers for detainees. That is not true. The loudest and most persistent calls to close the prison come from our own senior defense, 

law enforcement, intelligence, and diplomatic officials, people with 

a 360-view of the costs and benefits of Guantanamo who have concluded that our national security is best served by closing it. 

President Bush said he wanted to close Guantanamo. Henry Kissinger called Guantanamo ‘‘a blot on our national reputation.’’ Jim 

Baker said it has given America a very, very bad name. Admiral 

Dennis Blair, former Director of National Intelligence, called Guantanamo ‘‘a rallying cry for terrorist recruitment and harmful to our 

national security.’’ Secretary Gates told President Bush that Guantanamo was a national security liability and advised him to close 

it down. Major General Michael Lehnert, as you have said, who 

was in charge of standing up Guantanamo in 2002, said it cost us 

the moral high ground. Former Chairman of the Joint Chiefs Admiral Mullen said that Guantanamo has been ‘‘a recruiting symbol for 

our enemies.’’ General Colin Powell said he would close it ‘‘not tomorrow; this afternoon.’’ And Senator McCain has suggested that 

it would be an act of moral courage to find a way to shutter the 

prison. 

Whatever one thinks about the initial benefits of detaining prisoners at Guantanamo, there is growing bipartisan consensus that 

we no longer need it. Today’s hearing catalogs the reasons why it 

is imperative to transform this consensus into action. We heard 

about the astronomical costs of Guantanamo at a time when the 
17 

Pentagon is furloughing more than half a million employees. General Eaton reminded us that the impeding end of combat operations in Afghanistan will require a change in detention authorities. General Xenakis described the deterioration of morale at 

Guantanamo and the degraded mental state of many of the prisoners, a combination that is leading to a tipping point. And Lieutenant Fryday told us how Guantanamo has warped our system of 

justice. 

In many ways, the struggle with Al-Qaeda is a war of ideals. 

That is the battleground on which our country should have the 

greatest advantage. Sometimes when we lose our way, outsiders 

who admire our values can remind us of who we are and what we 

stand for. Some family members of Guantanamo detainees have 

written letters to you in advance of this hearing, and I want to 

quote from them. 

Ahmed Hadjarab, the uncle of an Algerian who has been detained for more than a decade without charge and has been cleared 

for released, wrote, ‘‘When in 2002 I was told that Nabil was detained by the Americans, I thought that at least he would have a 

right to a fair trial. I thought his rights would be respected and 

that justice would prevail. What I feel today is mostly incomprehension. How can this Nation, one that prides itself on defending 

human rights, close its eyes to these violations of its founding principles?’’ 

Hisham Sliti from Tunisia has been held for more than a decade 

without charge. He, too, has been cleared for transfer. His mother 

wrote, ‘‘I do not understand why my son is still in Guantanamo 

after all these years when we know he has been cleared. We never 

thought the United States was the kind of place where people could 

be held like this.’’ 

We have often talked about who we are as a Nation, but sooner 

or later who we are cannot be separated from what we do. As we 

wind down the war in Afghanistan, we must expunge the legacy of 

Guantanamo and restore America’s reputation for justice and the 

rule of law. The question is not why or if, but how. 

Today Human Rights First has published a comprehensive exit 

strategy with a detailed plan for closing the prison. Among the 

challenges facing our country today, closing Guantanamo is far 

from the most complex. While it may be politically complicated, as 

Senator McCain recently said, it is not rocket science. It is a risk 

management exercise, and the risk is manageable. With leadership 

from the President and Congress we can get this done. 

Thank you again for convening this hearing and soliciting our 

views. We are deeply grateful for your leadership, Mr. Chairman, 

on this and so many other human rights issues. I look forward to 

your questions. 

[The prepared statement of Ms. Massimino appears as a submission for the record.] 

Chairman DURBIN. Thanks, Ms. Massimino. 

Now we are going to have rounds of questioning of 7 minutes per 

Senator, and I ask that each Senator try to stick with those time 

limits, if they can. And, again, I thank the panel. 

Let me start at the beginning. Marion, Illinois, is a small town, 

small city in southern Illinois. It is a great town, and in a rural 
18 

setting, and it has a Federal prison, the Marion Federal prison. Incarcerated in that Federal prison are convicted terrorists. I have 

never heard one word from a person living in Marion, Illinois, 

about a fear associated with those terrorists being in that prison. 

The notion at Marion and at other places where Federal prisons 

exist is that our Federal prisons are pretty good. People do not escape from them. And the community around them feels pretty safe. 

So, Mr. Gaffney, the notion of sending the worst of the worst to 

the Florence supermax prison 30 miles away from any city in the 

middle of nowhere, where they can have little or no communication 

with the outside world, why does that frighten you? 

Mr. GAFFNEY. Senator, I am concerned, as I said in my testimony, about several things. One is I think there will be more violence inside the prisons. Second, I think that we cannot be sure, 

but I think it is a safe bet on the basis of experience elsewhere that 

when—— 

Chairman DURBIN. Excuse me. Have you been inside a supermax 

prison? 

Mr. GAFFNEY. I have not personally had the privilege of being inside a supermax prison. 

[Laughter.] 

Chairman DURBIN. Please. I have visited a similar facility, and 

most of them are in a very restricted, lock-down condition. It is 

rare for them—— 

Mr. GAFFNEY. As they should be. 

Chairman DURBIN [continuing]. To have more than 1 hour a day 

outside of the detention facility and then usually by themselves. So 

how do you believe that they will be able to incite problems within 

the Florence supermax prison? 

Mr. GAFFNEY. I am so glad you asked that, sir. One of the things 

that is concerning me is what we are seeing done in the prisons 

writ large now, not just the supermax, but I think it includes the 

supermax, and that is this proselytization, the fact that we have 

imams who are brought in for the purpose of, I believe, catering, 

of course, to the Muslim population but in the process also converting and promoting this doctrine, which does conduce to violence. There is no getting around it. It is supremacist in character. 

So you have to assume that there will be opportunity, especially 

if we start, as we have done with the Shoe Bomber, relieving them 

of some of the limitations on their freedom of movement—— 

Chairman DURBIN. Mr. Gaffney—— 

Mr. GAFFNEY. Then you will get, I think, more violence. But if 

I may come to the question of the community—— 

Chairman DURBIN. I am sorry, but I have a limited amount of 

time. I just want to say—— 

Mr. GAFFNEY. May I just say on the community, sir? 

Chairman DURBIN [continuing]. We have now incarcerated in 

Federal prisons Moussaoui, a person we suspected to be part of 

9/11, being held with no hint of problems within the prison or outside of it. I also want to make something very clear for the record. 

There are some very patriotic Muslim Americans who do not want 

to be characterized as part of an extremist movement. They are 

people who we have met and worked with every day—— 

[Applause.] 
19 

Chairman DURBIN [continuing]. And the notion that bringing in 

an imam or someone associated with their religion is an invitation 

to violence and extremism presumes the prison authorities will pay 

no attention, number one, and presumes perhaps that everyone 

brought in is a danger. And I think that is—— 

Mr. GAFFNEY. May I very quickly respond, sir? 

Chairman DURBIN. Of course. 

Mr. GAFFNEY. One is that the fellow who started the Muslim 

chaplains in the Federal prison is now in the Federal prison himself, Abdul Rahman al-Amoudi. He is a terrorist. He is a man who 

created, among other things, an infrastructure inside the United 

States for promoting Shariah through the Muslim Brotherhood. 

But on your question is critically important: Will Marion be at 

risk if they take prisoners from Gitmo? I am concerned that they 

might be, not least because, quite apart from whether they could 

ever spring people from the supermax facility, it makes it a target 

for terrorism. It is an opportunity to—— 

Chairman DURBIN. Mister—— 

Mr. GAFFNEY. Create—— 

Chairman DURBIN [continuing]. Mr. Gaffney—— 

Mr. GAFFNEY. A spectacular incident, and that is what these 

guys are about. 

Chairman DURBIN. Mr. Gaffney, there are domestic gang members and leaders of extremist groups from all over the United 

States incarcerated in these prisons, and they are handled very 

professionally and securely so that communities beg for the opportunity to have a Federal prison constructed near them. 

Let me move to the question, Ms. Massimino. I believe the President should move, according to his promise, to close Guantanamo. 

But I also believe that Congress has made that exceedingly difficult 

with restrictions that we have put in place in terms of the transfer 

of these detainees. Would you comment on those restrictions? 

Ms. MASSIMINO. Yes, I would be happy to do that. I also would 

like to say one word about the Federal prisons, because I had some 

of the same questions, and I understand that many people have 

these anxieties. So I reached out to the American Correctional Association and asked them what they thought about whether they 

could handle these kinds of prisoners, and they asked me, ‘‘Do you 

know who is in there now? These are not nice people. But we know 

how to handle this. We have got this.’’ As Senator Graham said, 

it is absurd to think that our corrections officials cannot handle 

this population. 

You are absolutely right, Senator, that Congress has made closing Guantanamo more difficult because of these transfer restrictions, and I was happy to see that the Senate defense authorization 

bill has included some provisions that would give greater authority 

to the Commander-in-Chief to dispose of the prisoners at Guantanamo in the way that he thinks best fits our national security. And 

I hope those provisions become law. 

We also, in our exit strategy document that we released today, 

break down the population at Guantanamo. It is essentially about 

the math. We have 166 people. The majority of those have been 

cleared for transfer. The President has now appointed a leader at 

the State Department to take on this challenge, and we are await-
20 

ing the appointment of a leader at the Defense Department to do 

the same. There is renewed urgency about this, as you heard from 

Senator Feinstein about what is going on down there with the hunger strikes. 

So this is something on which the President and Congress have 

to work together. Presidential leadership is essential, but Congress 

needs to trust the Commander-in-Chief to make these decisions. 

Chairman DURBIN. Lieutenant Fryday, thank you for your compelling testimony. Thank you for your service to our country, and 

thanks for reminding us what we are all about in this country 

when it comes to the rule of law. That reference to John Adams 

is one that just stands out in this man’s biography. Before he was 

elected President, he was assigned to defend British soldiers who 

were accused of massacring American colonists. It is an indication 

of where we started as a Nation and where we need to continue. 

You have had a foot in both camps. You have been a prosecutor 

in our criminal justice system at the Federal level, and now you 

have been a defense counsel when it comes to military commissions. Some in Congress argue we just cannot trust Article III 

courts. If we give somebody a Miranda warning, they are going to 

clam up and will not even talk or cooperate, while others point to 

the record that over 500 accused terrorists have been successfully 

prosecuted in Article III courts and six before military commissions. 

What is your view about the proper place, the proper tribunal for 

these trials? 

Lieutenant FRYDAY. Thank you, sir, very much for the question 

and your comments. I do not believe it is my job to provide a recommendation to this body or this Committee. It is not what I have 

been assigned to do and ordered to do. 

I can say, having been in Guantanamo and seeing the commissions up close, it has been 12 years since 9/11, and we are still litigating what kind of clothes people can wear in court, what kind of 

notes lawyers can take in meetings, and what rights apply. It is a 

very confusing system. It is a very slow, inefficient system. It is obviously—as the numbers you indicated, it is a much slower system 

than Federal courts. 

There are still a lot of barriers in place in the military commission system, barriers for counsel, issues of attorney-client privilege, 

issues of classification that are confusing, hearsay rules that are 

relaxed in the military commission system that is different. So 

there are lot of differences that still need to be worked out as we 

move forward. 

Chairman DURBIN. Thank you very much. 

Senator CRUZ. Thank you, Mr. Chairman. I would like to thank 

each of the witnesses for coming here and for your testimony. 

It seems to me this is an issue that inspires a great deal of passion, a great deal of emotion. And it also seems to me that our national security policy should not be derived simply from bumpersticker ideology but, rather, from careful, hard decisions about how 

to protect the national security of the United States. 

There are two facts in particular that I think are hard facts that 

I heard very little discussion of from the panel today. The first is, 

as of January 2013, the Director of National Intelligence in the 
21 

Obama administration has confirmed or suspects that 28 percent 

of former Guantanamo detainees re-engaged in terrorism. Now, 

that is a very inconvenient fact for any argument that would leave 

a substantial risk of these individuals that are currently in Guantanamo being released. 

The second fact is underscored by timing this week, which is on 

Monday of this week, about 500 prisoners, including senior members of Al-Qaeda, escaped from the Abu Ghraib prison, which is 

now controlled by the Iraqi security forces. I think that likewise 

underscores the inherent risk in relying on foreign facilities to detain known terrorists, particularly terrorists for whom there is a 

substantial risk of their re-engaging in terrorism if they find themselves at large. 

The first question I would like to ask is to General Eaton. General Eaton, I thank you for your many years of service and leadership. There are, as of November 2012, 166 detainees in Guantanamo. Is there any reason to believe that if those individuals were 

released, their recidivism rate would be any less than the Guantanamo detainees who have already been released who have re-engaged in terrorism at a rate of 28 percent, according to the head 

of the DNI? 

General EATON. Senator Cruz, thank you for the question. I 

spent a career managing risk. Soldiers never get all the assets they 

need to buy risk down to zero. The question, I believe, could also 

be posed: Is the existence of Guantanamo a higher risk than the 

release of the prisoners we have there now? 

We have a terrific judicial system. Our intelligence architecture 

reveals a 28 percent recidivism rate. If we accept 28 percent, then 

we have that same intelligence architecture that will help us buy 

down the risk of placing those individuals back in the care of countries that will take care of them, which is a requirement that this 

body has imposed upon the Secretary of Defense, a certification 

process. 

So when we talk about releasing the 86 that are cleared for release under conditions that meet the expectations that the Secretary of Defense has to certify, then I think it is appropriate, and 

I think that the risk associated with that is indeed relatively low. 

It is not zero. But I live in a world, a military world, that accounts 

for risk, and you buy the risk down with every factor available to 

you, and America has a great deal to help buy down that risk. 

Senator CRUZ. General Eaton, if I understood your answer correctly, it was that if detainees are released, we can act to mitigate 

the risk of their re-engaging in terrorism. I would note that it 

seems to me you did not dispute the premise of my question that 

these individuals, if released, we could expect to re-engage in terrorism at at least the same rate. And, in fact, I would suggest to 

you surely it was not the case that the people we released initially 

were the most dangerous. Under any rational system, presumably 

the first people released were those we deemed to be the least dangerous. And so the rational inference would be those remaining 

would, if anything, return to terrorism at a higher rate not a lower 

rate than 28 percent. 

General EATON. Senator, as Yogi said, predictions are really 

hard, especially if it is about the future. And we have got a popu-
22 

lation that is unknowable to 100-percent prediction rate. So, again, 

we mitigate risk. We buy it down. It will not go to zero. But I cannot put a figure on it. 

Senator CRUZ. Well, with respect, General, it will go to zero with 

respect to those detainees if they remain detained. I mean, we are 

talking about the risk of future acts of terrorism. And let me say 

more broadly to the panel, at the outset I noted what I thought was 

the most difficult question, which is, it is easy to say close Guantanamo and get an applause from various audiences. The harder 

question then is what do you do with these terrorists. And it seems 

to me there are one of two options. You either send them to U.S. 

detention facilities—now the Chairman has generously volunteered 

Marion, Illinois, to host these terrorists. I do not know what the 

citizens of Illinois would think of that. I feel confident I know what 

the citizens of Texas would think about their coming to Texas. 

I would note we have had multiple instances of individuals in 

Federal prisons engaging in terrorism, directing terrorist acts from 

Federal prisons, including the Blind Sheikh; Lynne Stewart was 

convicted for aiding terrorism for individuals in Federal prison. Or 

the alternative is to send it to foreign locations, whether it is nations like Yemen, with enormous instability, or other allies. And 

given the escape we just saw in Abu Ghraib, it is hard to have any 

confidence that if these individuals are sent to a foreign facility 

that they will not in due course be released and in due course commit future acts of terrorism, taking the lives of innocent Americans. 

I want to close with a final question, which is, Mr. Gaffney, it 

has been reported that the President—under the Obama administration, approximately 395 people have been killed by drone 

strokes. Are you aware of any reasonable argument that it is somehow more protective of human rights, more protective of civil liberties, to fire a missile at someone from a drone and kill them than 

it would be to detain them and interrogate them, determine their 

guilt or innocence, and determine what intelligence might be derived from that individual? 

Mr. GAFFNEY. Mr. Chairman, one housekeeping item. I think I 

neglected to ask if my entire statement could be put in the record. 

Chairman DURBIN. It certainly will be. 

Mr. GAFFNEY. And there is also a short letter from a number of 

distinguished military officers that I would like to have in the 

record as well. 

Chairman DURBIN. Without objection. 

[The letter appears as a submission for the record.] 

Mr. GAFFNEY. Senator Cruz, look, I am probably not the best arbiter of what is humane. You have people on this panel who spend 

a lot of their time dwelling on that. I kind of focus on national security. But just as a human being, I will tell you I think if you kill 

people, that typically is less humane than incarcerating them. Letting them starve to death is, in my judgment, less humane than 

feeding them, involuntarily if necessary. But this is not my specialty, and I would defer to others who may have a higher claim 

on knowledge in this area. 

Senator CRUZ. And we get no actionable intelligence from someone who has been killed by—— 
23 

Mr. GAFFNEY. And that is where the national security piece 

comes in. Foreclosing the option to detain and interrogate people 

is, I would suggest, as I am sure Senator Feinstein knows, a real 

impediment to our ability to prosecute a war like the one that has 

been thrust upon us by people who operate with a very high regard 

for operational security. 

To the extent that we deny ourselves unilaterally this ability by 

essentially foreclosing putting them anyplace where we can have 

those kinds of interrogations I think is—well, I said earlier, strong 

words, but I think it is a dereliction of duty on the part of the Commander-in-Chief. 

Senator CRUZ. Thank you, Mr. Gaffney. Thank you, General and 

the panel. 

Ms. MASSIMINO. Mr. Chairman, I wonder if I might respond to 

this question about recidivism that Senator Cruz raised. 

Chairman DURBIN. Please proceed. 

Ms. MASSIMINO. Because it is certainly a reasonable concern, as 

it is in the criminal context, as you heard. But the claim that 28 

percent of Guantanamo detainees have ‘‘rejoined the fight’’ is highly misleading, and Defense Department officials have said that 

many detainees included in that category are merely suspected of 

having some associations with terrorist groups and may very well 

have not engaged in any activities that threaten our national security. But that does not mean that all the prisoners at Gitmo are 

somehow innocent farmers and that there is no risk. 

I really think this question about recidivism has to relate to what 

is our overall objective. You know, a lot of the people at Guantanamo are precisely the kinds of targets that Al-Qaeda looks to for 

cannon fodder, and some of them could cause harm if they are released. But that does not make them any different from the hundreds of thousands of other angry young men throughout the Muslim world who believe in the same case. And there is, sadly, no 

shortage of potential suicide bombers. 

Guantanamo does nothing to solve that problem. In fact, it probably makes it worse. 

Chairman DURBIN. Okay. Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

I want to ask a question of Lieutenant Fryday, about in your 

past, did you serve as an intern in my San Francisco office, per 

chance? 

[Laughter.] 

Lieutenant FRYDAY. Proudly, ma’am. 

Senator FEINSTEIN. Well, I am very proud of you, so that is what 

I wanted to say. 

[Laughter.] 

Senator FEINSTEIN. Isn’t it true that some of the 80 Gitmo detainees who have not been cleared for transfer now, as you have 

spoken, can only be prosecuted in a Federal criminal court because 

the charges of conspiracy and material support to terrorism are no 

longer available in the military commission? Is that not correct? 

Lieutenant FRYDAY. That is correct, ma’am. 

Senator FEINSTEIN. So what we are saying is for those, if there 

is no alternative prosecution in a Federal court, they remain without charge or trial until the end of time. 
24 

Lieutenant FRYDAY. Let me clarify, ma’am. Material support for 

terrorism and conspiracy is a charge that can be charged in Federal crime. So it is not something that can be charged in a military 

commission, but is a charge that is available to the Federal court. 

Senator FEINSTEIN. But if you are going to keep them in Guantanamo, they cannot be tried by a military commission. Is that not 

correct? 

Lieutenant FRYDAY. That is correct, ma’am. They cannot be tried. 

Senator FEINSTEIN. So the only hope would be they would have 

to be transferred out to be tried in a Federal court. 

Lieutenant FRYDAY. Either that or go through a meaningful process like the PRBs that have just been set up where our country determines that at some point they are no longer a threat, in which 

case they could be transferred if they meet the restrictions that 

have been—— 

Senator FEINSTEIN. Let us talk. See, I have believed from the 

days of Colonel Davis down there that the military commission is 

an ineffective instrument. How many cases have they actually 

tried? 

Lieutenant FRYDAY. There have been six convictions in the military commissions. 

Senator FEINSTEIN. And explain to us exactly what those six convictions are and who is still serving? 

Lieutenant FRYDAY. So the six convictions were for—the names 

are Hicks, Hamdan, al Bahlul, Khadr, al Qosi, Noor—and Majid 

Khan. Because I did not serve on those trials, I do not know all 

the details of each case. We do know that Hamdan has since been 

overturned by the D.C. Circuit court for saying, as I described in 

my testimony, the charge that he was charged with, material support for terrorism—— 

Senator FEINSTEIN. Well, maybe I could give them to you then. 

Hamdan received a 5-month sentence. He was sent back to his 

home in Yemen to serve the time before being released in 2009. In 

October 2012, the D.C. Circuit vacated his conviction for material 

support because the charge was not recognized as a violation of the 

international law of war. 

Hicks was the first person convicted in a military commission. 

When he entered into a plea agreement on material support on terrorism charges in March 2007, he was given a 9-month sentence, 

which he mostly served back home in Australia. 

Al Qosi pled guilty to conspiracy and material support. A military jury delivered a 14-year sentence, but the final sentence handed down in February 2011 was 2 years, pursuant to his plea agreement. He has returned to Sudan at the conclusion of his sentence 

in July 2012. 

Noor Muhammed pled guilty to conspiracy and material support. 

A judge delivered a 14-year sentence, but the sentence will be less 

than 3 years pursuant to his plea agreement. Because of credit for 

time served, he could be eligible for release to Sudan in December 

of this year. 

One last one, and there is a point. Omar Khadr pled guilty in 

a military commission to murder, material support to terrorism, 

and spying. He was sentenced to 8 years, but was transferred to 
25 

a Canadian prison where he will serve out his remaining sentence 

and be eligible for parole after he serves a third of the sentence. 

Now, there are a couple more here, and one of them is your client. 

Here is my point: The sentences were very few and very low, essentially, from the military commission. And I have sat here over 

the years and wondered: What are we doing? Why are we maintaining this farce of a military commission which really does not 

work? And we have had different people down there trying to make 

it work, but to the best of my knowledge, no one has been successful. 

Last month, when I was down there, I saw a very spanking new 

courtroom with nothing scheduled to go forward. And it just seems 

to me that everything down there is so deceiving and is really a 

kind of untruth about the American way, about the American judicial system, about America’s humanitarian treatment of prisoners. 

Force feeding is not humanitarian, and yet it goes on and on and 

on. There is no end to this war yet that we know of. So unless the 

facility is closed, it will continue to go on. 

Do you have any other comment you would like to make, or General Eaton? 

Mr. GAFFNEY. Senator, could I just make a quick comment, if I 

may? 

Senator FEINSTEIN. Sure. 

Mr. GAFFNEY. I think this question of whether it is going to go 

on and on goes back to the point that I was trying to make earlier. 

That is not entirely up to us. The President’s saying that it has to 

end is only possible if we surrender, if we submit. And, specifically, 

this question of will there be more of this, you know, recruiting if 

we leave it open I think begs the question: Compared to what? 

Senator FEINSTEIN. Sir—— 

Mr. GAFFNEY. Does it—does it get worse if you actually have 

more of these jihadists inspired by our submission? And that is 

what I am concerned about, ma’am. 

Senator FEINSTEIN. I read the intelligence daily. I know what is 

happening. I also know that Guantanamo contributes nothing positively. It contributes nothing that a Federal prison could not do 

better. It contributes nothing that a Federal court could not do better. So—— 

Mr. GAFFNEY. But if we close it, that may contribute quite negatively, is my concern, to inspiring our enemy. 

Senator FEINSTEIN. I profoundly disagree with you. 

Mr. GAFFNEY. Understood. 

Senator FEINSTEIN. I think it will send a signal that finally we 

have learned something. I saw the people there. The doctor is right. 

These are not robust specimens any longer. It is a very different 

picture, I think, than people imagine. 

Doctor, do you not agree? 

General XENAKIS. Yes, ma’am. 

Senator FEINSTEIN. So—— 

Mr. GAFFNEY. Look at the prisoners coming out of Israel, ma’am, 

and how they are regarded and how they inspire jihadism. 

Senator FEINSTEIN. We are not—— 
26 

Mr. GAFFNEY. No, but it is a similar phenomenon, and that is 

why I call to your attention this Shariah underpinning of the war 

we are engaged in. 

Senator FEINSTEIN. I hope someday you go take a look. In any 

event, I want to say thank you, Mr. Chairman. I appreciate being 

here. 

Chairman DURBIN. Thank you very much, Senator Feinstein. 

We have two House Members who were, unfortunately, delayed 

by votes, and I have never seen this happen in the Senate before. 

We are going to let House Members testify. How about that? This 

may bring this institution down, if nothing else has. 

[Laughter.] 

Chairman DURBIN. I am sure it will not, having served in the 

House. 

We are honored to have Congressman Adam Smith in his ninth 

term, Ranking Member of the House Armed Services Committee. 

He has a very lengthy and impressive bio, which I am not going 

to read. I hope you understand. And Congressman Mike Pompeo, 

who is—he enrolled at West Point and graduated first in his class. 

I do not know how long you have been in Congress, Mike. How 

long? 

Representative POMPEO. Thirty months. 

Chairman DURBIN. Thirty months. So we are going to ask each 

of them to make a statement, and if the panel would not mind 

staying for just a few moments, so each of them would speak for 

5 minutes, and then if there are any further questions from Senator Cruz or myself or Senator Feinstein. 

Congressman Smith. 

STATEMENT OF HON. ADAM SMITH, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF WASHINGTON 

Representative SMITH. Thank you, Mr. Chairman, and I am honored that the Senate would have us over here. We should work together more often, I think all would agree. 

I am just here to argue that we should close Guantanamo Bay, 

and a number of issues have been raised which are separate from 

that question. I am not here to argue that we should stop detaining 

and interrogating suspects or that we should even necessarily release any number of the suspects that are at Guantanamo. Those 

are difficult questions, and do not get me wrong, I have positions 

on that. I certainly think that the 84 inmates that we have designated for release as being acceptable risks should be released. 

But that is an entirely separate question from where we hold them. 

And the argument that I make is that Guantanamo Bay, you have 

to balance the cost and the benefit, and there is literally no benefit 

to keep Guantanamo Bay open. All of the arguments that I have 

heard about the necessity to detain and interrogate, the necessity 

to continue to fight the war, which I agree with completely, you 

know, the necessity to protect ourselves from our enemies, all of 

that can be accomplished by holding them within the United 

States. And it has just been stupefying to me the last several years 

the degree to which people seem to have become unaware of the 

fact that we already hold hundreds of terrorists in United States 

supermax prisons, including Ramzi Yousef, the Blind Sheikh, 
27 

Abdulmutallab, many notorious Al-Qaeda operatives. We continue 

to do that right here in the U.S., safely, efficiently, and, I might 

add, very much more cost-effectively. Number one, the average cost of an inmate is estimated at $1.5 

million a year in Guantanamo. Now, there will be transition costs 

to shut down Guantanamo and open up here. But in the long run, 

there is no question that it is cheaper to hold them here in the U.S. 

than it is in Guantanamo. 

So the question is: What is the benefit of keeping that prison 

open? There is absolutely none. There has been spurious arguments made about somehow more constitutional rights will apply 

if they come to the U.S., when the Supreme Court has already 

ruled that Guantanamo is treated like the U.S., that is why they 

granted habeas under the people in Guantanamo. There are no 

greater constitutional rights here in the U.S. than out there. There 

is no benefit. 

So what is the cost? The cost I think is, well, number one, the 

cost, the sheer amount of money that we have to spend to maintain 

this facility. But understand how the international community 

looks at Guantanamo. It was opened in the first place as an effort 

to get around the United States Constitution. It was the hope that 

if we held them outside of the territorial United States, we would 

not have to abide by those pesky constitutional values and rules 

that we hold so dear in this country. And the world knows that, 

and it is an international eyesore as a result. 

Now, as it turns out, as I said, the Supreme Court said, ‘‘Nice 

try, but you are effectively in control of them, so the Constitution 

does, in fact, apply.’’ 

But Secretary Gates, George W. Bush, John McCain, many hardcore Republicans, who I think would take a back seat to no one in 

prosecuting this war, have said that we need to close this prison 

because it is hurting us with our allies and is inspiring our enemies. 

Now, I am not naive. I am not going to tell you that the only reason Al-Qaeda attacks us is because of Guantanamo Bay. Far from 

it. But it certainly stands out there as one recruiting tool that, 

again, is wholly unnecessary. 

So what I propose—and I proposed an amendment on the House 

side—is for an orderly way to close the prison. The President has 

also put out a plan—I know he has occasionally been accused of not 

having one, but I actually have it in my file folder right next to 

me—for how we should go about Guantanamo Bay. And, again, it 

is not even about recidivism or any of these other—those are arguments that you can have separate. This argument is not about 

whether or not we should hold them. It is about where we should 

hold them. And holding them in Guantanamo Bay hampers our efforts to successfully prosecute the war against Al-Qaeda. It continues to be a piece of evidence that our allies use to say, well, we 

do not want to cooperate with the U.S. because we do not like the 

way they implement their Constitution, we do not like the way 

they treat prisoners. That hampers our ability to successfully prosecute this war. 

And the only argument that is left hanging out there is somehow 

we cannot safely hold these people in the U.S. And, again, I find 
28 

that argument to be patently ridiculous because we are safely holding hundreds of terrorists, not to mention mass murderers and 

pedophiles and some of the most dangerous people in the world. 

If the United States of America is incapable of successfully holding a dangerous inmate, then we are all in a world of hurt, Guantanamo or no Guantanamo. And I hope we understand that. 

And, also, the notion that this will somehow inspire Al-Qaeda 

more, I hate to tell you, but Al-Qaeda is sufficiently inspired right 

now. They are doing everything they can to attack us. And I applaud the various efforts that we have put forth to stop them. But 

the idea that instead of having 400 terrorists inmates we have 

maybe 484 in the U.S. is going to somehow massively increase the 

threat, well, it is just ridiculous on its face. 

There is no benefit. The cost is great. Let us get around to closing Guantanamo as soon as we can. 

[The prepared statement of Representative Smith appears as a 

submission for the record.] 

Chairman DURBIN. Thanks, Congressman Smith. 

Congressman Pompeo. 

STATEMENT OF HON. MIKE POMPEO, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF KANSAS 

Representative POMPEO. Thank you, Chairman Durbin, thank 

you, Ranking Member Cruz. It is an honor as a Member of the 

House to be here with you today. I agree with Mr. Smith only so 

far as that Al-Qaeda is absolutely very much inspired. 

I was at Guantanamo Bay this past May, and I want to dispel 

a couple of facts right up front about the situation on the ground. 

First, every American should be proud of the integrity shown by 

those U.S. military personnel caring for these detainees. Their 

work is difficult, but they bring the highest honor and care to the 

work they do there with the members of Joint Task Force Gitmo. 

Second, there are no human rights violations occurring at Guantanamo Bay. There is no doubt that the detainees are held in conditions—— 

[Audience outburst.] 

Representative POMPEO. That meet or surpass the standards—— 

[Chairman gavels to order.] 

Representative POMPEO. Thank you. There is no doubt that the 

detainees are held in conditions that meet or surpass the standards 

provided for under the Geneva Conventions. In fact, given the safe 

and secure environment that Gitmo provides, most detainees maintain significantly more freedom of movement and activity than they 

would in a maximum security U.S. prison. They have access to gym 

equipment, educational materials, entertainment, and top-rate 

medical and dental care. The health care matches the level of the 

care received by our U.S. military personnel. 

I would be remiss, given the situation, if I did not talk a little 

bit about the current hunger strike there. This is a political stunt. 

It is orchestrated or encouraged at least in part by counsel for the 

detainees and should not be rewarded. Claims that the efforts by 

our guards to force-feed those Gitmo detainees currently refusing 

nutrition are inhumane and should be ceased are simply wrong. 

The methods used by military personnel to feed those detainees 
29 

who wish not to feed themselves meet court-approved standards 

and are carefully monitored by medical personnel and those in 

command. It is right to continue to provide these detainees nutrition. 

I want to talk about the constitutionality of Gitmo. Some folks 

continue to question it. We have to start with the basic fact. We 

continue to be at war with Al-Qaeda and associated extremist 

groups who daily seek to kill Americans. As long as these groups 

fight us, we remain at war. And as the Supreme Court made clear 

in Hamdi and as courts have confirmed many times since, the capture and detention of enemy combatants is a necessary incident to 

the conduct of this war. There is no question about the constitutionality of the detention at Guantanamo Bay. 

Let us talk about the merits, the policy concerns surrounding it. 

First of all, current detainees have been off the battlefield for some 

time, yet they may well continue to provide valuable intelligence to 

U.S. intelligence collectors. But we should not focus just on those 

who are there today. As I said, we are still engaged in a counterterrorism battle all around the globe. The continued need to have a 

secure location in which to detain captured enemy combatants remains. The intelligence collection that can occur at these locations 

is enormous and central to our efforts to continue to identify, capture additional enemy combatants, and, in fact, defeat our enemy. 

I just returned from a trip to Afghanistan as well, and I can assure you that there are many folks there that the options would 

either be to kill or capture, and we will serve our national security 

interests far better if we are able to capture them. 

We talk about options. What are the alternatives? We could release Gitmo detainees to third-party countries. But as I heard Senator Cruz speak about, we have a very high recidivism rate. 

Whether it is 10 percent or 15 percent or, as the studies have 

shown, one-quarter of those detainees, I can assure you that we 

will have American servicemembers killed as a result of releasing 

detainees from Guantanamo Bay. 

Indeed, just within this past week, Al-Qaeda conducted a major 

attack on two facilities in Iraq, releasing 500, some of whom were 

senior Al-Qaeda warriors. The transfer to third parties is simply 

not a reasonable solution to keeping America safe. 

Moreover, transfer to third parties also presents another risk, a 

human rights risk, namely, that the nation to which we send those 

detainees will torture those folks. We cannot permit that. 

Second, the other option is to bring them back to the United 

States. Twice within the last 48 hours in the U.S. House of Representatives, Members have offered amendments to the defense appropriations bill. Twice those bills have been defeated. The American people and their House of Representatives understand that 

bringing these detainees back to the United States is not a workable solution. 

Last, I want to talk about the damage that has been done to national security as a result of this administration’s policies and rhetoric surrounding Guantanamo Bay. 

After over 4 years in office, the President continues to insist that 

we pursue a political goal and then, later, figure out a way to meet 

the real mission. The President knows, he knows full well—indeed, 
30 

he has spoken about it—that not all of those prisoners are in any 

way, shape, or form transferable or returnable, including the 9/11 

five. No one believes they are going to come back, including this 

President, yet he continues to use the rhetoric of Guantanamo Bay 

closure. 

You know, the President seems far more concerned in my judgment with mollifying the grievances of Al-Qaeda than defending 

against the real dangers these enemy combatants pose to the 

American people. By insisting on a catch-and-release counterterrorism strategy or a kill terrorism strategy, the President continues 

to do great harm to America’s national security interests. 

Thank you for the time today. I yield back. 

[The prepared statement of Representative Pompeo appears as a 

submission for the record.] 

Chairman DURBIN. Thank you very much, Congressman. 

Senator Whitehouse, do you have any questions of the panel or 

Congressmen? 

Senator WHITEHOUSE. I had a question for the panel. Just a moment of background on it. I grew up the son of a Foreign Service 

family and spent a certain amount of time in Africa and Southeast 

Asia and was, I felt, the beneficiary of the good will and good example that my country represented around the world. I never was 

able to articulate it very clearly until I heard President Clinton, 

who is a master articulator, say that the power of our example as 

Americans has always been more important in the world than any 

example of our power. And I recently ran across Daniel Webster’s 

first Bunker Hill Memorial oration from 1825, where he said, ‘‘The 

last hopes of mankind therefore rest with us’’—meaning Americans. ‘‘And if it should be proclaimed that our example had become 

an argument against the experiment’’—the ‘‘experiment’’ being our 

experiment in democracy—he continued, ‘‘the knell of popular liberty would be sounded throughout the Earth.’’ 

So I would just like those of you who represent our country overseas to react to those thoughts and explain where in the range of 

hard military power, soft economic power, and diplomatic persuasion you think the example that America presents to the world 

stands in the assets that we bring to bear to support and defend 

our interests around the world. 

General EATON. Senator, my name is Paul Eaton, and thank you 

very much. Human Rights First has stenciled on their wall a quote 

from one of my favorite Presidents, Dwight Eisenhower: ‘‘Whatever 

America hopes to bring to pass in the world must first come to pass 

in the heart of America.’’ 

Do we want America to be represented by a young man with an 

M4 carbine? Or do we want America to be represented by a man 

who flew back with me from Africa who had just built a very large 

industrial chicken farm in an African country? 

And I will tell you that as a soldier, I would far better want representation by a man who knows how to bring agricultural expertise than my sons and daughter with rifles overseas. 

So we are far better served by our economic prowess and by our 

diplomatic prowess than by our extraordinarily fine military. 

Thank you. 
31 

Mr. GAFFNEY. Senator, I am not sure whether I qualify as one 

of your candidates for answering this, but if I may—— 

Senator WHITEHOUSE. You are on the panel. You can. 

Mr. GAFFNEY. I am. Thank you. I would just offer that the idealism that you have described and that the general has just referred 

to is certainly commendable, and I think it is something that we 

should strive for. And yet it has to be tempered by a certain realism, and that is, when you are confronting people who are not 

moved by our example and may be affected by our power, I think 

you need to be able to bring both to bear. And in this case, I had 

a colloquy—I think you were out of the room—with Senator Feinstein about this. I just have to return to it, if I may. 

To the extent that an enemy like the one we confront today actually perceives weakness not as dissuasive or exemplary or desirable 

but as an inducement to violence against us, the dangers of making 

a miscalculation here, not because it is the way we would like 

things to be, but because it is the way our enemy perceives and responds to these things, submission is their goal. Our submission is 

their goal, and I guarantee you they will perceive the closure of 

Gitmo as evidence of accomplishing it. 

Senator WHITEHOUSE. I just have to react to that because I have 

to disagree. George Washington led armies that left bloody footprints in the snows of Valley Forge with no certainty that their enterprise would succeed and that pledging their lives and fortunes 

and sacred honor would not put them at the end of a rope. And yet 

they did not torture Hessians when they caught them. They did not 

force-feed them. You can go on and on, through World War II, the 

example of Britain in the shadow of Hitler’s Nazism, throwing out 

of their secure intelligence facility somebody who had the nerve to 

lay hands on one of their prisoners, partly because they knew it 

was bad practice in intelligence gathering, partly because it was 

not who they were. And we are still proud of the way Britain stood 

up against the Nazi menace even before we got into the war, when 

they stood alone, and Winston Churchill is going to be a figure in 

history because of that. And I think the fact that over and over 

again they refused to use those techniques is actually a measure 

of their strength. And you could just as easily make the argument 

that we are strengthening Al-Qaeda and our enemies by treating 

them as if they were more dangerous than Nazi Germany, more 

dangerous than the opponents of our American Revolution, and require us to veer from standards of decency and conduct that have 

characterized this Nation since its inception. 

Chairman DURBIN. Senator Whitehouse, are you finished? 

Senator WHITEHOUSE. I am. 

Chairman DURBIN. Thank you. Before we adjourn this meeting— 

and I thank the panel and my colleagues—I would like to ask you 

to note one particular thing. Fifteen years ago today, at this moment, at 3:40 p.m., two of the officers of the Capitol Police were 

shot down and killed in the Capitol by a madman with a gun. They 

were Officer Jacob Chestnut and Detective John Gibson. And each 

year at this time, when the Senate and House are in session, we 

have a moment of silence in their memory, and I would like to ask 

all those who are in attendance to please join me, if you can, and 

stand for a moment of silence in their memory. 
32 

[Moment of silence.] 

Chairman DURBIN. Thank you very much. 

If there are no further questions, I have a script to read. Thanks 

again to my colleagues from the House for joining us here today. 

There has been a great deal of interest in today’s hearing. Many 

individuals and organizations submitted testimony, including Retired Brigadier General David Irvine, 26 retired admirals and generals supporting the closure of Guantanamo—the full list is going 

to be added in the record—Amnesty International, the Constitution 

Project, the National Religious Campaign Against Torture, the 

Center for Victims of Torture, Reprieve, Air Force Captain Daphne 

LaSalle Jackson, Tom Wilner, and my friend Tom Sullivan, the 

former U.S. Attorney for the Northern District of Illinois. 

I would also like to note that two other attorneys, close friends 

of mine in Chicago, in addition to Tom Sullivan, Lowell Sachnoff 

and Jeff Coleman, are volunteer attorneys lieutenant representing 

detainees as well. They give extraordinary amounts of time in help 

bringing justice to this situation. 

We also received more than a dozen statements from family 

members of those detained in Guantanamo Bay. I particularly 

want to thank the human rights organization Reprieve for their assistance in ensuring these individuals were allowed to share their 

perspective. 

Without objection, I would like to place these statements in the 

record. 

[The information referred to appears as submissions for the 

record.] 

Chairman DURBIN. The hearing record is going to be open for a 

week to accept additional statements. Written questions for the 

witnesses will also be submitted by the close of business 1 week 

from today, no later. And we will ask the witnesses to respond 

promptly if they can. 

If there are no further comments from our panel or colleagues, 

I want to thank the witnesses for attending and my colleagues for 

participating. 

There is difference of opinion, obviously expressed today, and 

that is what this system of Government is all about, that we would 

come together with differences of opinion in a peaceful gathering 

and debate an important policy relative to our values and our security. And I think this Subcommittee, which has a responsibility to 

deal with issues involving the Constitution, human rights, and civil 

rights, has a particular responsibility to raise even these controversial issues on a regular basis. I am sorry that it has been 5 years 

since we have had a hearing on Guantanamo. I can guarantee you 

that, if it continues to be open, there will be another hearing very, 

very soon. 

At this point this meeting of the Subcommittee stands adjourned. 

[Applause.] 

[Whereupon, at 3:44 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows.] 
(33) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
34 

CLOSING GUANT ANAMO: THE NATIONAL SECURITY. FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS 

Hearing Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human 

Rights 

Wednesday, July 24,2013 

Statement of Representative Adam Smith (D-WA) 

Ranking Member, House Anned Services Committee 

Mr. Chaim1an, Ranking Member Cruz, Representative Pompeo. and distinguished members of 

the Subcommittee, thank you for the opportunity to testify before the subcommittee about my 

plan to close the detention facility at Guantanamo Bay, Cuba. 

I strongly support closing the detention facility located at Guantanamo Bay as soon as possible. 

Until the facility is closed, it will continue to be seen by the world as our attempt to avoid the 

rule oflaw. It undermines our moral standing in the international community. It also damages 

our efforts, both abroad and in the United States, to defend our values and protect human rights. 

In addition, it undermines our national security because our allies are less likely to share valuable 

intelligence with us and hesitate to send their detainees to the United States without a guarantee 

they won't be sent to Guantanamo Bay. Finally, it continues to serve as a rally cry and recruiting 

tool for our enemies. 

The facility is also becoming increasingly expensive and the annual operating costs continue to 

grow. The Department of Defense is spending $454.1 million on total costs for Guantanamo Bay 

detention operations in 2013, which is about $2.7 million per detainee, compared to the average 

figure of$34,046 required to hold a prisoner in a maximum security federal prison in the United 

States. The facilities at Guantanamo Bay were designed to be temporary and are rapidly 

deteriorating, requiring new temporary construction. As inmates age, significant medical 

upgrades are needed. This construction and medical upgrades will cost hundreds of millions of 

dollars and take years to complete. 

Since June 2009. Congress has repeatedly made it impossible to close Guantanamo Bay by 

imposing a ban against using appropriated funds to transfer Guantanamo detainees to the United 

States. Congress has also placed severe restrictions on transferring detainees who have been 

cleared for transfer to a host country or returned home. Finally, Congress has banned the use of 

funds to construct or modify any facility in the United States to house detainees from 

Guantanamo Bay. 

I have continuously opposed these actions by Congress that block the closure of the detention 

facility located at Guantanamo Bay. Our civilian law enforcement and justice systems have a 

proven track record of success in investigating and prosecuting suspected terrorists. Since 

September 2001. almost 500 individuals have been convicted in federal court of crimes related to 
35 

international terrorism and over 300 individuals are currently incarcerated in federal prisons 

within the United States for similar charges. 

On June 14,2013, along with Representative James Moran of Virginia and Gerald Nadler of 

New York, I offered an amendment to H.R. 1960, the FY2014 National Defense Authorization 

Act, that provided a comprehensive plan to close the Guantanamo Bay detention facility. This 

amendment, the Guantanamo Bay Detention Facility Closure Act of20 13, would I) expedite and 

add to requirements for a comprehensive closure plans from the President and the Department of 

Defense; 2) enhance the authority of a senior Department of Defense official to implement the 

presidential plans for closure; 3) remove existing limitations on transfers; 4) strike current 

requests for construction at GTMO; 5) require notice and a comprehensive report to Congress 

prior to any actual transfers. and 6) end funding for the GTMO detention facility on December 

31,2014. 

Unfortunately, the amendment failed by a vote of 174-249. While I was disappointed with the 

outcome of this vote, I will continue to work with my colleagues in the House, Senate, and the 

White House to close this facility. Detaining individuals at Guantanamo Bay was never a good 

idea. It is an even worse idea now. We should start the process to close the detention facility at 

Guantanamo Bay now. 

Before I summarize my amendment, let me address several misconceptions about Guantanamo 

Bay. 

First, security. It is often said by some that ifGuantanamo inmates are brought to the United 

States. there will be regular security incidents. This is nonsense. As stated above. the federal 

Bureau of Prisons and our military have a proven track record for holding dangerous criminals 

and terrorists. We have already tried and convicted one Guantanamo detainee in the United 

States. Ahmed Ghalaini, without incident. I am aware of the letter by Mayor Bloomberg of New 

York City addressing security concerns and costs about terrorist trials in New York City. 1 agree 

that trying terrorists and providing adequate security is expensive, but it will be expensive 

wherever we try them. Anything is cheaper than the hundreds of millions of dollars we have 

already spent on the military commissions process. In addition. it is my understanding Mayor 

Bloomberg was primarily addressing the Khalid Sheikh Mohammed triaL which as we now 

know, will be tried in a military commission at Guantanamo. Finally, the numbers cited by the 

Mayor have not been vetted and were only estimates unattributed to any verifiable source. 

Further. we house terrorists in the United States now without incident. We know a! Qaeda wants 

to attack us, additional detainees in the United States won't change the equation. 

Second, it is argued that detainees in the United States might receive additional constitutional 

rights. This is another false argument. As the subcommittee knows. the federal judiciary already 

supervises detainees at Guantanamo, through habeas corpus review. The Supreme Court has 

2 
36 

already said our Constitution applies to Guantanamo Bay and no greater rights apply to detainees 

than to any other person. 

In addition, regardless of whether a detainee is tried in federal civilian court or by military 

commission, the verdict is reviewed by the U.S. Court of Appeals for the District of Columbia, 

an Article Ill court. Each verdict may also be reviewed by the Supreme Court. 

Third, it is argued that we obtain better intelligence by military interrogations at Guantanamo. 

This is another myth. We have successfully obtained robust intelligence from a long list of 

subjects captured and interrogated in the United States. The reality is, that wherever a suspect is 

interrogated, the most effective intelligence is obtained by the Fl31, the intelligence community, 

and the military working together. 

Finally. Guantanamo Bay does not have only the ''worst of the worst.'' While there are many 

detainees at Guantanamo Bay who are dangerous and should not currently be released, over 86 

have been approved for transfer by a process that involves both the intelligence community and 

our military. These detainees have been individually assessed to be low level risks if transferred 

or released. This assessment has been done by our experts: military, intelligence and terrorism 

experts. There is always a risk in releasing a detainee. but as forrner Secretary of Defense Donald 

Rumsfeld stated, we can't detainee everyone in a war. We know our military in the field in Iraq 

and Afghanistan routinely released many low-level prisoners after initial capture. I defer this 

issue to our military. which has always advocated releasing low-level threats. 

Much more can be said about the issue of recidivism, but that is a separate issue from whether 

Guantanamo should be closed. I want to close Guantanamo Bay, but I am not advocating for the 

release of any detainee that remains a security threat to the United States. 

Here is a summary of how the amendment would close the Guantanamo Bay Detention Facility 

by December 3 I. 2014: 

1) Expedites requirements for comprehensive plans from the President and the Department of 

Defense on how to close GTMO (within 60 days of enactment) that are in the underlying bill (the 

NDAA): foreign transfers, prosecution, expedited periodic review of the status of detainees. and 

a plan for detention in the United States for any remaining detainees. The reports include: 

• A report of the security situation in Yemen and the capacity of the Yemeni government to 

detain, prosecute. or rehabilitate, detainees transferred from GTMO (Section 1039 of H.R. 

1960). 

• A report on possible constitutional rights GTMO detainees might receive if transferred to 

the United States (Section 1040 ofH.R. 1960). 

• A report on forrner GTMO detainees who may have become leaders of foreign terrorist 

groups (Section 1 040A ofH.R. 1960). 

3 
37 

Expedites completion of a comprehensive Presidential Plan on GTMO closing pursuant to 

Section 2901 ofH.R. 1960. This plan will include: 

• For possible foreign transfers: identification of eligible detainees, selection of possible 

foreign locations, and an assessment of the security and humanitarian conditions in each 

country. 

Identification of locations for possible transfers to the Unites States ofGTMO detainees. 

Includes an assessment of purchase and transfer costs, construction, modification and 

repair costs, personnel costs, security costs, prosecution costs, and identification of any 

other potential costs. 

• Requires additional reports: 

• Assessment of security costs for federal trials and Military Commissions in the 

United States for GTMO detainees. 

• Attorney General assessment of disposition options for GTMO detainees currently 

selected for prosecution. 

Completion of all pending Periodic Reviews of the status of detainees. 

A report providing a summary of enduring security threats in the detention facility at Parwan. 

Afghanistan (Section 1035 ofH.R. 1960). 

2) Enhances the authority of a senior ofticial in the Pentagon (pursuant to Section I 037 of H.R. 

1 960). who will be appointed by the President and given the authority to implement the above 

plans. This official must work with the intelligence community, the Department of Defense, the 

Joint Chiefs of Staff, the Department of State and other interested Departments. 

• Pursuant to the above plans, this official will coordinate the negotiation of transfer 

agreements with foreign countries if it is determined that transfer is in the national security 

interest of the United States and the detainee is no longer a significant threat to the United 

States. 

Pursuant to the above plans, this official will coordinate Administration efforts to expedite 

the prosecution of all eligible detainees in federal court or in military commissions. These 

trials will occur in the United States or at GTMO. The ongoing military commission's trials 

will continue at GTMO. If they are not concluded by the end of2014, they will continue at a 

secure location in the United States. 

• The official will coordinate a plan to transfer any remaining detainees to secure facilities 

(either military bases or enhanced Bureau of Prison facilities) in the United States until the 

termination of hostilities. They will not be in our civilian communities: they will be on secure 

facilities on military bases or federal prisons. These detainees will include the few detainees 

determined to be too dangerous to release or for whom there is not admissible evidence to 

prosecute. The legal basis for this continued detention is provided by the laws of war, which 

allow a nation in an armed conflict to keep the enemy off the battlefield. The status of these 

4 
38 

detainees will be reviewed on a regular basis and they will have access to attorneys. The 

conditions of their detention will be transparent. Every effort will be made to prosecute these 

detainees or transfer them to an appropriate foreign country. However. no detainee who is 

considered a significant threat to the United States will be released until the current conflict 

ends. 

3) All current limitations on the transfer of GTMO detainees in HR 1960 or existing statutes are 

removed. Sections 1032-34 ofii.R. 1960 are removed. These sections ban the use of funds for 

the construction or modification of facilities in the United States for GTMO detainees. require 

certifications by the Secretary of Defense for transfer to foreign countries, and a ban on the 

transfer ofGTMO detainees to the United States. Parallel restrictions in appropriations statutes 

and the current Continuing Resolution are also removed. 

4) Strikes the request for $247 million for military construction at GTMO in Section 2901 of 

H.R. 1960. 

5) Requires 30 day notice to Congress and a comprehensive report prior to any transfer of a 

Guantanamo Bay detainee to a foreign country or to the United States for prosecution or 

continued law of war detention. The report includes an assessment by the Secretary of Defense 

and the intelligence community of security concerns about the individual. No transfer notice will 

be sent to Congress unless it is the consensus opinion of the military and intelligence 

communities that transfer of the detainee is appropriate. 

6) Eliminates funding for the Guantanamo Bay detention facility by December 31, 2014. 

Thank you again for the opportunity to appear before you today and I look forward to your 

questions. 

5 
39 

1 

Senate Judiciary Committee 

Subcommittee on the Constitution, Civil Rights and Human Rights 

"Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications" 

July 24, 2013 

2:00PM 

Dirksen 226 

Congressman Mike Pompeo (KS-04) 

Chairman Durbin, Ranking Member Cruz, Members of the 

Subcommittee, I am honored to testify before this Subcommittee. 

The implications of closing the detention facility at Guantanamo Bay 

continue to be debated in both Chambers of Congress and throughout the 

country. As with any complicated matter, I believe policy makers 

should understand, and hopefully agree on, key facts before deciding on 

a course of action. I hope my testimony will contribute to a better 

understanding of the facts. 

By way of background, after graduating from the United States 

Military Academy at West Point, I had the great honor of serving in the 

United States Army as a Cavalry officer for five years. 

After my military service, I graduated from Harvard Law Schoolhaving served as an editor of its law review. I then worked as an 

attorney at the law firm of Williams and Connolly here in Washington 

before running two industrial companies in Kansas. 

Today, I serve as a member of the House Permanent Select 

Committee on Intelligence. 

The debate about the detention facility at Guantanamo Bay is not 

simply a question of treatment of enemy combatants. The continuation 

ofGTMO is a critical component of America's counterterrorism strategy 
40 

2 

and how we set about the government's primary moral obligationkeeping Americans secure from enemy threats. 

I. Today's Reality at the U.S. Facility at Guantanamo Bay, 

Cuba 

To better understand the true nature of the detention facilities at 

Guantanamo Bay, I made it a personal priority to tour the facility, so I 

could observe the treatment of the detainees, first-hand. I did so in May 

of this year. The facts on the ground contradicted a number of myths: 

A. The professionalism of our troops is beyond reproach. 

Every American should be proud of the integrity shown by the 

U.S. military personnel caring for these detainees. Their work is 

difficult, but they bring the highest honor and care to every task. 

B. The detainees are treated with respect and dignity. 

Let me be clear: There are no human rights violations occurring at 

GTMO. There is no doubt that the detainees are held in conditions that 

meet or surpass the standards provided for under the Geneva 

Conventions. I have observed first-hand that the U.S. military personnel 

running the facilities make every effort to ensure that all detainees are 

treated well. In fact, given the safe and secure environment that GTMO 

provides, most detainees maintain significantly more freedom of 

movement and activity than they would in a maximum security U.S. 

prison. They have access to gym equipment, educational material, 

entertainment, and top-rate medical and dental care-health care that 

matches the level of care received by the U.S. military personnel who 

guard them. 
41 

3 

I would be remiss here if I did not address the current so-called 

"hunger strike" at GTMO. This political stunt, orchestrated or 

encouraged at least in part by counsel for the detainees, should not be 

rewarded. Claims that the efforts by our guards to force-feed those 

GTMO detainees currently refusing nutrition are inhumane and should 

cease are simply wrong. Great care is taken by U.S. personnel to ensure 

proper nutrition for all detainees; the methods used by military personnel 

to feed those detainees who wish not to feed themselves meet courtapproved standards and are carefully monitored by medical personnel 

and those in command. 

And it is right that we do this-we feed these detainees because it 

is our moral duty to make sure those under the care of the United States 

continue to live healthy lives, without unnecessary pain and agony. It is 

equally important to our men and women in uniform who have 

volunteered to defend this country that they not have to endure 

unnecessary loss of life on their watch. 

Finally, feeding these detainees is moral and necessary for another 

reason: Many detainees are likely pressured by other detainees to 

participate in the hunger strike, and thus do so largely against their 

will. I commend our military personnel who strive each day to ensure 

these detainees do not suffer from hunger or malnourishment. 

Having now addressed the conditions on the ground today at GTMO, 

let me tum to the national security, human rights, and legal issues 

surrounding the detention facility. 

II. Detention at GTMO is Wholly Constitutional 
42 

4 

Many continue to question the constitutionality of the detention 

facility at GTMO and the continued detention ofthose housed 

there. Back to first principles-we remain at war with a! Qaeda and 

associated extremist groups who daily seek to kill Americans and attack 

American interests and allies around the world. Our troops remain in the 

battlefield and our nation remains at risk. As long as these groups fight 

us, we remain at war. And as the Supreme Court made clear in Hamdi v. 

Rumsje!d, and as courts have confirmed many times since, the capture 

and detention of enemy combatants is a necessary incident to the 

conduct of war. 

The men held at GTMO are our enemies, they have been given 

access to Article III courts to review the legality of their confinement, 

and many will soon face military tribunals for their acts. There is 

nothing unconstitutional about continuing detention at GTMO. As long 

as the United States remains at war with enemies who continue the battle 

they raged on September 11, 2001, the constitutionality of detaining 

those we capture in this fight cannot be seriously questioned 

III. The Detention Center at Guantanamo Bay is Critical To 

American National Security and Must Be Kept Open 

The detention center is critical to American national security. Every 

identified alternative presents real risks to those of us in America, 

civilians all around the world, and to our service members abroad. 

A. Current Detainees Still May Provide Valuable Intelligence 

Although current detainees have been off the battlefield for some 

time, they may well continue to provide valuable intelligence to U.S. 

intelligence collectors. 
43 

5 

B. We Remain at War With AI Qaeda and Its Supporters And 

GTMO Is Important to Defeating Our Enemy 

We are still engaged in a counterterrorism battle all around the globe. 

Our need of a secure location in which to detain captured enemy 

combatants remains. The intelligence collection that can occur at these 

locations is enormous and central to our efforts to use enemy combatants 

to identify, capture and defeat the enemy. 

I just returned from a trip to Afghanistan and I can guarantee you that 

there are still scores and scores of radical and committed terrorists who 

want to do great harm to our troops, our country, and the American 

people. 

This battle will be fought in one of two places: overseas where 

every American has the training and weapons necessary to accomplish 

their mission and return safely to their family; or on the streets of New 

York or Wichita, Kansas. 

That's why it's so important to ensure that the number one priority is 

intelligence collection from the terrorists we do find. To do so, we must 

have a method of capturing them, a place to hold them, and a means of 

questioning them. A fulsome use of the safe and modern facilities at 

Guantanamo is the best mechanism available to achieve this priority. 

C. Release or Transfer of All Detainees to Other Countries Will 

Result in Dead Americans and Risks Harm to the Detainees 

We could release GTMO detainees to 3rd-party countries. If we did 

so, we can be confident that many will return to the battlefield and 

continue their war against Americans. Of the GTMO detainees released 

to date, over 114 have returned to the battlefield. This presents an 
44 

6 

unacceptable risk to the homeland and to our servicemen and women in 

the field. 

Just this past week, AI Qaeda conducted an attack on multiple 

detention facilities in Iraq, resulting in the escape of many top terrorist 

leaders. This is just one example of the danger this approach takes. 

Many countries are simply incapable of ensuring the continued detention 

of these individuals. In addition, transfer to third parties presents a 

human rights risk-namely, torture-to detainees who are currently 

under our control. 

D. Returning Detainees to the United States Presents an 

Unacceptable Risk and Americans Know It 

The other option is that we can bring them to the United States, where 

the potential for endless litigation and rights expanded well beyond 

those afforded to enemy combatants, subjects Americans to the real 

possibility that terrorists might be released onto American streets. 

This is a risk we can avoid if we have the courage to see the benefit of 

keeping GTMO open. I believe we owe it to the American people to 

avoid bringing terrorists into the country. We did not take the fight to 

the terrorists to bring the terrorists back to the United States. 

IV. Dangers of Administration Policy & Rhetoric 

Lastly, I want to comment on the way this Administration has 

conducted itself on this matter. The President decided to close GTMO 

before having a full understanding ofthe facts. 

After over four years in office, the President continues to insist we 

pursue a political goal and then, later, figure out a way to meet that goal. 

The President knows full well that many detainees-including the 9/11 
45 

7 

Five-are not transferable and not returnable to the U.S. Yet he 

continues to mislead the American people about the dangers and realities 

of closing this critical facility. 

Members of Congress know this too. Just last night, the House of 

Representatives crushed an amendment to the Defense Appropriations 

bill that would have allowed the President to begin the closure of GTMO 

by a bipartisan vote of247 to 175. 

The President seems to be more concerned with mollifYing the 

grievances of a! Qaeda than defending against the real dangers these 

enemy combatants pose to the American people. By insisting on a 

catch-and-release counter-terrorism strategy, the President has 

communicated to our enemies that we lack the resolve to see this 

conflict to its end. 

It is thus small wonder that terrorists have become emboldened. U.S. 

targets have been attacked more frequently in the last year than in the 

four years before 9/11. 

V. Conclusion 

So I close on this: The War on Terror is real. Guantanamo Bay 

serves the national interest of the United States. It is constitutional. It is 

no more a recruiting tool for terrorists than is their hatred for our way of 

life. Guantanamo Bay keeps Americans safe. 
46 

TESTIMONY OF MAJOR GENERAL PAUL D. EATON 

BEFORE THE SENATE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

"CLOSING GUANT ANAMO: THE NATIONAL SECURITY, FISCAL AND HUMAN 

RIGHTS IMPLICATIONS'' 

JULY 24.2013 

I. Introduction 

Chairman Durbin, Ranking Member Cruz and Members of the Subcommittee, thank you 

for inviting me to be here today lo share my views on closing the Guantanamo Bay 

Detention Center. My name is Paul D. Eaton, and I am a retired United States Army 

Major General. I served over thirty-three years as an infantry officer serving in command 

and staff positions in the United States and Europe, Somalia, Bosnia and in Iraq, 

culminating as the Chief of Infantry and Commander of the Infantry Center at Fort 

Benning, Georgia. My last operational mission was to establish and lead the command to 

design, man, train and equip new Iraqi security forces, including National Police, Border 

Troops, Army, Navy and Air Force. 

The greatest challenge to me in developing Iraqi soldiers was to overcome obedience to 

three decades of despotism and instill adherence to the rule of law. We worked the 

problem rigorously in the classroom and by our display of personal example. We 

stressed the nature of personal discipline, of team, of initiative, and of self-reliance. We 

drilled daily the notion of civilian control of the military, military justice, prisoner 

management and battlefield discipline. We stressed that higher rank did not bring greater 

privilege, rather the opposite. We stressed accountability. 

Then Abu Ghraib blew up on us. The day the Abu Ghraib story broke, my senior Iraqi 

advisor, a retired Iraqi Air Force Brigadier General, walked into my office, visibly upset, 

and said, "General, you have no idea how badly this will play on the Arab street- and in 

your command." He turned on his heel, and walked out. That man was and is my friend. 

but his message was clear. The United States had sacrificed its ability to teach good 

order, discipline and morale when it had failed to follow the law itself by torturing Iraqis. 

Abu Ghraib was the spawn ofGuantanamo and one reason why I am convinced that 

Guantanamo should close. 

II. How Guantanamo Veered Away From Military Doctrine and the Rule of Law 

In January 2002, then Brigadier General Mike Lehnert took his command, JTF-160, to 

Guantanamo with the mission to construct and operate the detention facility for Taliban 

and AI Qaeda detainees. lie ordered that the Geneva Conventions would apply, over the 

opposition of civilian leadership. He invited the International Committee of the Red 

Cross to visit and advise on detention conditions and appointed a Muslim chaplain. 
47 

General Lehnert's conduct was consistent with how we train our military to deal with our 

prisoners. Said a member of his command, Colonel Terry Carrico at the time, "The 

Geneva Conventions don't officially apply, but they do apply." 

After MG Lehnert left, the Bush administration adopted guidelines that permitted torture, 

and cruel, inhuman and degrading treatment in contravention of the Geneva Conventions, 

the Convention Against Torture, the Uniform Code of Military Justice, and domestic and 

international law. The use of torture, which was later exported to Abu Ghraib, created 

the reputation Guantanamo holds internationally today: of an American Gulag where 

detainees were tortured and continue to be denied the legal due process for which the 

United States is normally so highly regarded. 

The investigation of Abu Ghraib by Major General Tony Taguba, an American hero, 

found that torture implemented at Guantanamo was exported to detainee operations in 

Iraq. Abu Ghraib was a logical outcome of our Guantanamo experience. Men who had 

served in Guantanamo during the worst days of enhanced interrogation techniques were 

deployed to Iraq to "Gitmo-ize interrogations." That, along with failures in the chain of 

command, allowed a complete breakdown in discipline, resulting in the Abu Ghraib 

fiasco. The pictures of Abu Ghraib were seared into the world's consciousness, and 

devastated my mission to bring rule oflaw to Iraq and its soldiers and policemen, whose 

cynicism about American moral authority was significant. 

Guantanamo cannot be buffed enough to shine again after the sins of the past. 

Improvements in detainee treatment and new military commission rules will not change 

the belief in the minds of our allies and our enemies that Guantanamo is a significant 

problem to the prosecution of the U.S. national security agenda in general and the U.S. 

military in particular. 

III. How Guantanamo Has Undermined Our National Security 

Let me explain how Guantanarno had undermined our national security. There arc four 

clements of national power that contribute to our security: 

• Moralleadership 

• Politicalleadership 

• Military power 

• Economic power 

A. The moral component of national power 

First, the moral component of national power is essential to our armed forces and our 

national security. 

In individual soldiers, we address the physical, the skill sets and the moral component. 

What sets the American Soldier apart from his or her international peers is the latter, and 

it is the easiest to develop. Our young men and women come into the service with a very 
48 

clear understanding and belief in the institutions that make America the great country she 

is. Our citizens have a fundamental belief in our Constitution and Bill of Rights and the 

judicial system that was established based on those documents. They have faith in their 

civilian leadership and the military leadership appointed by civilians. They have faith in 

their families, their society, their elected officials and the many faiths that inspire our 

men and women. My experience in developing soldiers in other countries revealed just 

how special we are, and how challenging development of the moral component can be in 

young men in many other countries on this planet. 

Our moral component is one reason why we are so admired around the world. It is why 

we are the number one emigration choice on the planet. Jt is our rule of law that makes 

America the country of choice for day to day life, for safe development of families and to 

build a business. The U.S. judicial system really is our bright and shining gem and more 

than anything else, the justification for President Reagan's 'Bright and Shining City on 

the Hill.' In the armed forces, in the absence of a lawful order, we rely on, the 

Constitution, the Uniform Code of Military Justice, and the international treaties and 

conventions we have signed, as Brigadier General Lehnert demonstrated when he 

established the detention facility at Guantanamo. 

When our leaders violate the rule oflaw, it makes our armed forces and our nation 

weaker. Guantanamo's reputation for torture and lack of due process of law cannot be 

rectified. Continued problems with the latest incarnation of military commissions make 

us look at once incompetent and hypocritical. 

B. The political component of national power 

The second component of national power is political and diplomatic leadership. 

Guantanamo has greatly strained our alliances. 

We have a great many allies and alliances created for many reasons, most providing for 

mutual defense. Those alliances were entered into because of American national values 

and trustworthiness. Many of those same allies abhor the story ofGuantanamo. My 

team in Iraq was composed of nine nations, military and civilian. In late night 

discussions, our Guantanamo problem would come up from time to time, and, after Abu 

Ghraib, often. 

At the national level, our closest allies have refused to send us detainees because of 

Guantanamo. We are losing intelligence opportunities when this happens. 

Those countries with a history of human rights abuses generally perform poorly on the 

international stage. The United States, during World War II, solidified its reputation as a 

leader in human rights by how it managed a very large prisoner of war population. 

Prisoners were housed in appropriate conditions and when interrogated, interrogated 

humanely. Marine Corps Major General Fred Smith, now unfortunately deceased, would 

tell the story about how Marines in his command accepted a Japanese soldier's surrender 

during operations on lwo Jima and subsequent humane treatment and interrogation. The 
49 

return intelligence from that treatment proved invaluable. And the number of former 

German and Italian POWs who immigrated to the United States after the war carries a 

very powerful message. Guantanamo stands in sharp contrast to the leadership America 

has demonstrated in the past. 

C. Military power is integral to our national power 

Military power is the third component of national power. The United States Armed 

Forces are second to none in the world. Guantanamo makes us look weak, imperils our 

security, and forces our soldiers to bear an all-too-heavy burden. 

First, Guantanamo makes us look weak, and it makes the enemy look strong. Let me 

explain. From a military perspective, some. but not all. of the prisoners in Guantanamo 

may be dangerous on an individual level, but they aren't an existential threat. They arc 

not super villains. They are not organized, like our armed forces, to project violence. 

Releasing any individual Guantanamo detainee does not change our national security 

posture. That does not mean that we should release detainees who stand accused of war 

crimes. They should face justice. 

To this soldier, the fear based argument to keep the Guantanamo Bay detention facility 

open is hard to understand. If brought to the United States for prosecution, incarceration 

or medical treatment, the detainees will pose no threat to our national security. The 86 

men who have been cleared for transfer should be transferred. We must find lawful 

dispositions for all law of war detainees as we have done in every conflict. 

Second, Guantanamo places our soldiers and nation at risk not only because it makes 

America look hypocritical as we promote the rule oflaw but because it makes the 

detainees look like warriors. Our leaders in Iraq would pose the question to me and my 

colleagues early and often, "Did we create more terrorists today than we managed to take 

off the street'?" Guantanamo is a terrorist creating institution and is a direct facilitator in 

filling out the ranks of AI Qaeda and other terror organizations that would attack the U.S. 

or our interests. Guantanamo, in military terms. is a recruiting tool of the first order. 

Third, to operate Guantanamo, the facility requires the manpower of hundreds of service 

members. These brave men and women are obliged to carry out policies and procedures 

that are wholly inconsistent with the American values and ideals that they have sworn to 

uphold and protect. As a result, the members of our military serving at Guantanamo are 

forced to bear the burden of our failure to close the facility. 

D. Economic power is integral to our national power 

American economic power is a final component of national power. Guantanamo is an 

expense we do not need. 
50 

Launching the wars in Iraq and Afghanistan without revenue to pay for them has now 

required the United States to tighten its fiscal belt. The U.S. economy is improving 

slowly. The sequester, however, is taking a big bite out of our national security interests. 

The comparison between per prisoner cost at the Guantanamo facility and a typical US 

high security prison is outrageous. Today's calculation, depending on how you work the 

numbers, gives us a per prisoner cost per year of between $900K and $1.6 million. The 

equivalent cost for an inmate at a high security facility is under $35K today. 1 

Soldiers who see the Defense Department planning to spend up to an additional $200 

million dollars to upgrade a facility that detracts from the individual safety of every 

American military man and woman shake their collective head. In the austere 

environment we have today, this is unconscionable. It is time to close a facility that is 

harming our national security and is in need of an expensive upgrade. 

IV. Conclusion 

We as a nation are strongest when we uphold the Constitution, the Bill of Rights, the 

Geneva Conventions, and the other laws, treaties and conventions to which we subscribe. 

We are weakest when we stray from the rule of law. We have an opportunity and an 

imperative to close Guantanamo now as we wind down combat operations in 

Afghanistan. 

There is no national security reason to keep Guantanamo open. This is a matter of 

perspective and understanding of scale. For many years we built up our Russian 

adversary to be a ten foot tall super opponent, only to discover otherwise. The whole 

point of terrorism is to instill fear, and maintaining a counterproductive detention facility 

at Guantanamo because we are afraid to bring criminals the United States for trial and 

punishment, and transfer to other countries those who have been cleared for transfer, is 

simply not a reasonable action by a serious society. In the words of one of my colleagues, 

they don't win unless they change us. We must resist that attempt at change. 

1 See David Alexander, Guantanamo camp burns through $900.000 a year per inmate, Reuters. (May 3, 

20 13), http: I;""" .rcutcrs.c:mnianiclci2() 13.05103 \"-usa-~uantunamn-costs-idl 'SBRE0.f211 N20 130503; 

Press Release. Rep. Adam Smith. The Cost of Detention at Guantanamo Bay, (June 5. 2013). 

http://adamsmith.housc.gov/blog/'?postid~336801. 
51 

BG (Ret) Stephen N. Xenakis, M.D. 

Senate Judiciary Committee: Closing Guantanamo: The National Security, 

Fiscal, and Human Rights Implications 

Date: 24 July 2013 

Statement: Stephen N. Xenakis, M.D. 

Brigadier General (Retired), U.S. Army 

Thank you for inviting me to share my experience with this subcommittee. It is a 

privilege, and I hope that my observations and impressions can assist your 

deliberations over the detention facilities at the Guantanamo Bay Naval Station. 

I have publicly opposed torture and the involvement of military medical personnel 

in interrogations since 2005 when the Washington Post published my first opinion 

piece on the topic. I serve as an expert on torture and the treatment of detainees 

for Physicians for Human Rights. I am also a member of the group of retired 

generals and admirals convened by Human Rights First. 

Professional Background 

I am board certified by the American Board of Psychiatry and Neurology in 

General Psychiatry, as well as Child and Adolescent Psychiatry, and have 

extensive experience in clinical psychiatry, research, teaching, and 

administration. I retired from the United States Army at the rank of brigadier 

general and served in multiple positions of responsibility as a clinician and 

commander. I commanded medical activities, medical centers, and medical 

regions for most of the last 10 years of duty. During my career, I had served as 

an Assistant Inspector General for The Surgeon General of the Army and as the 

adjudicating authority for credentialing and privileging actions for numerous 

providers. My clinical practice has been broad and varied over the past 40 years 

and includes expert consultation to military attorneys and providing inpatient care, 

substance abuse and alcohol treatment, and community health services. 

The Federal Courts and the Office of the Military Commissions have qualified me 

as a psychiatric and medical expert in numerous cases involving detainees at 

Guantanamo Bay Naval Station and accused terrorists. I have had multiple 

interviews with detainees at Guantanamo, advised attorneys on their respective 

cases, and spent cumulatively nearly three months at Guantanamo Bay Naval 

Station over the past 4 Y2 years. I currently provide consultation and expert 

testimony regarding approximately seven current or former detainees. I have 

reviewed medical, intelligence, and military files of nearly 50 detainees and 

accused terrorists as a consultant to attorneys, Government authorities, and 

human rights organizations. The individuals have included high-value detainees, 

convicted belligerents, and others awaiting release and return to their homes. I 

have testified in cases of accused belligerents who were captured in the theater 

of operations and reviewed extensive records of their association with and 

assisting identified terrorist organizations. Moreover, I have been qualified as a 

1 
52 

BG (Ret) Stephen N. Xenakis, M.D. 

psychiatric and medical expert in the Military Courts Martial of a soldier convicted 

of involuntary manslaughter on the battlefield. 

Since the onset of the hunger strike in Guantimamo in February 2013, I provided 

declarations to the District Court of the District of Columbia in support of the 

petitions of three detainees. I have evaluated other hunger strikers at 

Guantimamo including an individual who claims the status of the longest striker 

since 2006. 

Much of my clinical practice and research involves patients with posttraumatic 

stress disorder (PTSD) and other sequelae of stress and war. These patients 

are: (1) service members with combat tours in Iraq and Afghanistan, and (2) 

detainees in Guantimamo and victims of torture, abuse, and cruel treatment. I 

established a nonprofit clinical research organization, The Center for 

Translational Medicine, in 2011 for testing promising treatments to help improve 

the health care for service members, veterans, and victims of trauma and abuse. 

The treatment of hunger strikers at Guantanamo Bay Naval Station compromises 

the core ethical values of our medical profession. The American Medical 

Association has long endorsed the principle that every competent patient has the 

right to refuse medical intervention. The plain truth is that force-feeding violates 

that principle, and nothing claimed in the name of defending our country can 

justify cruel, inhuman, and degrading treatment of another man or woman. The 

detention facilities at Guantanamo diminish America's standing among our allies 

around the world by putting at question our true values. 

Detainees Currently Suffer from Multiple Mental and Physical Illnesses 

Snapshots from my caseload help complete the picture of who these men are 

and what their states of mind are. My experience, and that of many attorneys and 

clinicians who work with detainees, adds vital ground-level information in thinking 

about the conditions and operations at Guantanamo. The view from the front 

lines is as important as the thinking at the top levels of government. Basically, 

our experiences serve as "human intelligence" that is often so hard to get. I 

intend to present my observations and impressions in a way that can be used by 

leadership in their planning of continued operations and ultimately closing the 

detention facilities at Guantanamo Bay Naval Station. 

Detailed information concerning the individuals I have examined at Guantanamo 

is restricted by the stipulations of the Protective Order issued by the Department 

of Defense (DoD) pertaining to the Military Commissions and by the United 

States District Court for the District of Columbia. Without breaching these orders, 

I can share some general observations and impressions based on the hundreds 

of hours I have spent with these men. 

2 
53 

BG (Ret) Stephen N. Xenakis, M.D. 

The detainees span a wide range of backgrounds, interests, and experiences. 

For context, the aging population at Guantanamo is vulnerable to developing 

debilitating neuropsychiatric disorders secondary to trauma and stress and 

suffering with dementia, serious depression, and increasing emotional instability. 

Senior officials at the Department of Defense (DoD) recognize that the detention 

facilities at Guantanamo are "turning into a nursing home." 1 

My current caseload includes a diverse cohort of detainees with various physical 

and mental illnesses. One man has suffered with chronic schizophrenia for 

decades and was certainly psychotic when apprehended and transferred to 

Guantanamo over 10 years ago. Another detainee has gained hundreds of 

pounds during his detention. He currently weights over 450 pounds, 270 pounds 

more than when captured, and he suffers with multiple medical conditions. 

Another has been on a hunger strike since 2006. When documented, his weight 

has been as low as 91 pounds. 

No detainee has ever threatened me or acted in a way that I felt physically 

endangered me. To put it plainly, I do not feel the apprehension or threat to 

personal safety that often arises when walking into an American prison despite 

the high fences, sniper wire, and guard towers surrounding the camps in 

Guantanamo. 

None of these men fit the picture of the "worst of the worst." They do not 

compare to prisoners I have seen in this country accused of serious felonies or 

murder. I have annotated in medical examinations, and surmised from reviewing 

records, that the severe psychological trauma stemming from their experience in 

U.S. custody has often not been diagnosed nor addressed by the medical staff 

and authorities and deprived the detainees of needed treatment. My 

observations and assessments are that keeping many detainees incarcerated at 

Guantanamo and subjecting hunger strikers to cruel and degrading force-feeding 

is counterproductive to our national interests and causes further harm. 

On instruction from counsel I have also examined the medical records, client 

affidavits, attorney-client notes. and legal declarations of medical experts relatin~ 

to nine Guantanamo detainees who had alleged torture during their detention. 

Dr. Vincent lacopino and I published an analysis of the medical records and 

evaluations of detainees. In these records it was clear that authorities failed to 

diagnose conditions and illnesses associated with trauma, abuse, and torture, 

including obvious posttraumatic stress disorder (PTSD) and postconcussion 

syndrome. Only the exceptional record documents a diagnosis of PTSD in 

detainees with known histories of torture and abusive and harsh interrogations 3 

1 Confidential and non-attribution. 

2 lacopino V, Xenakis SN (2011) Neglect of Medical Evidence of Torture in Guantanamo 

Bay: A Case Series. PLoS Med 8(4): e1001027.doi:10.1371/journal.pmed.1001027). 3 Furthermore, the government has propagated the theory that time alone can purify the 

adverse effects of the torture and heal the mental state of the detainee. This assertion 

3 
54 

BG (Ret) Stephen N. Xenakis, M.D. 

It is accepted that the symptoms of posttraumatic stress disorder require 

professional treatment to abate, and there is no evidence that the detainees have 

received effective treatment for their conditions. Most complain of severe 

impairment including disrupted sleep, anxiety, poor concentration and thinking, 

and social isolation. 

Statements in the media often leave the impression that all the detainees at 

Guantanamo are highly trained soldiers, eager to get back on the battlefield. As I 

have said, I have interviewed over a dozen detainees, reviewed the files of at 

least 50, and spent a cumulative three months at the Guantanamo Bay Naval 

Station detention center. In my professional opinion, the vast majority of these 

men do not fit this picture of the "worst of the worst." In terms of the behavior I 

have evaluated, many of these detainees pale in comparison to some of the 

violent prisoners accused of serious felonies or murder that I have seen and 

evaluated in this country. To be clear, if any detainee has committed a crime, I 

strongly believe that they should be charged, prosecuted, and if convicted, 

punished accordingly. The fact is, however, that most of these detainees have 

not even been charged with a crime. Moreover, the Department of Defense has 

evaluated many of their cases and cleared 86 for release. 

Most Detainees Present Limited Risk of Recidivism 

My personal evaluations, interviews, analysis of medical files, and reviews of 

other records including interrogations indicate that the evidence against the 

detainees, history of their apprehension, and current condition makes them 

unlikely threats to national security. Despite that observation, our Government 

has been unwilling to return them to their respective homelands because of 

considerations over the instability of the respective countries and potential threat 

to our military force. This judgment is highly speculative, as their illnesses, length 

of imprisonment, and cumulative stresses have weakened them and most likely 

deter them from the "fight." 

Many detainees suffer illnesses and consequences of injuries that would 

disqualify them from recruitment or continuing service in the American military. 

How dangerous are they to our soldiers and marines, particularly as our forces 

ignores the continuous adverse and oppressive climate of the conditions of confinement. 

An accepted clinical finding of patients with post-traumatic stress disorder is that the 

effects of the traumatizing events or symptoms can appear at any time in the individual's 

life and even unpredictably in otherwise innocuous circumstances. The constellation of 

triggers and associations to trauma vary significantly across individuals and do not 

correlate discretely to time elapsed or type of trigger. I have observed recurrent 

symptoms with the disabling nature in most detainees will undergo the court proceedings 

of the Military Commissions. The government has contended that bringing in a "clean 

team" that does not perpetrate torture and abuse is sufficient to sufficient to abate the 

history of anxiety and fear from prior interrogations and events of confinement. 

4 
55 

BG (Ret) Stephen N. Xenakis, M.D. 

have withdrawn from Iraq and are leaving Afghanistan? Does the remote 

possibility that they may commit a random act of violence classify them as a 

strategic or military threat that we can effectively justify indefinite detention? 

Should we subject them to conditions that revive memories of prior torture and 

abuse and further damage their health? Does the risk of prosecuting or 

transferring these detainees outweigh the risk of keeping Guantanamo open? I 

don't believe so. The restrictive and oppressive conditions at Guantanamo 

undermine our strategic goals of promoting peace and security initiatives where 

we can. 

The government has published data on the recidivism and future dangerousness 

of detainees who have been released from Guantanamo. This data is anecdotal, 

uneven, and lacks detail to be reliable. The data do not explain the extremely low 

rate of recidivism and dangerousness since 2009. The criteria are too general 

and ambiguous. The data fail the fundamental tests of scientific validity and utility 

in deciding the dispositions of these men. Moreover, forensic psychiatrists 

accept that future dangerousness cannot be reliably predicted. 

My professional judgment is that the risk of recidivism by current detainees is 

much lower than the rate of recidivism of those who have committed violent 

felonies in the American criminal justice system. 4 Even the Defense 

Department's flawed recidivism data reflect a lower rate of recidivism than our 

criminal justice system. There is, however, a very real threat that events at the 

Guantanamo Bay Naval Station detention facility will continue to undermine our 

moral authority and international standing. 

The story of Adnan Farhan Abd AI Latif Ala'Dini who committed suicide on 

September 8, 2012, is instructive. I provided a declaration5 in support of his 

petition for writ of habeas corpus in June 2010. The facts as documented in the 

decision of the Court on August 16, 201 06 are that Latif " ... suffered a closed 

head injury following a motor vehicle accident in 1994. The records from the 

Islamic Hospital, Amman, Jordan, dated August 21, 1994, indicate that a 

radiologic test revealed 'a broken skull but no brain injury.' The attending 

physician notes that Petitioner 'was suffering from aches and a headache.' The 

Medical Committee of the Military Medical Insurance Department of the Ministry 

of Defense, Republic of Yemen, assigned diagnoses to Petitioner in July 1995 of: 

(l)oss of sight in the left eye as a result of eye nerve [illegible), and (l)oss of 

4 http://www.bjs.gov/content/reentrv/recidivism.cfm 

http://www.bjs.gov/index.cfm?ty=tp&tid=17 

http://www. bjs.gov/content/pu b/pdf/rpr94. pdf 

s Declaration of Stephen N. Xenakis, M.D. Ad nan Farhan Abdul Latif v. Barack Obama. 

District Court of the District of Columbia, June 6, 201 D. 6 United States District Court, District of Columbia. Mahmoad ABDAH, et al., Petitioners, 

v. Barack H. OBAMA, et al, Respondents., Civil Action No. 04-1254 (HHK). Aug. 16, 

2010. 

5 
56 

BG (Ret) Stephen N. Xenakis, M.D. 

hearing in the ears. A consulting neurologist at Guantanamo Naval Base 

evaluated Petitioner on August 18, 2006. The neurologist documented findings 

of ... mild deficits in memory and concentration, and upper motor neuron findings 

involving the left upper extremity that could be residuals of a closed head injury; 

. . (m)ultiple records of psychiatric interviews and assessments of (Latif) 

annotate findings consistent with emotional instability and cognitive impairment. 

Latif reports traveling to Pakistan and Afghanistan in 2001 to get treatment for 

the symptoms and sequelae of the motor vehicle accident he suffered in 1994." 

I opined that ... "(t)he severity of the closed head injury; impairments in cognition, 

motor functioning, vision, and hearing; and subjective symptoms of headache 

and emotional instability are all consistent with postconcussion syndrome. 7 With 

reasonable medical certainty, (Latif)'s claim that he suffered with significant 

symptoms and sequelae of his closed head injury in 2001 and was seeking 

medical treatment is credible." The Court ruled that "(t)he evidence upon which 

respondents primarily rely, [Redacted) is not sufficiently reliable to support a 

finding by a preponderance of the evidence that Latif was recruited by an AI 

Qaeda member or trained and fought with the Taliban." 

Nonetheless, Latif was not released from Guantanamo after an appeal by the 

Government. He continued to manifest serious emotional instability and 

neuropsychiatric symptoms that caused significant management problems for the 

detention authorities. He went on occasional hunger strikes and splashed the 

guards with feces and urine. A lengthy investigation of his death, recently 

released, documents the challenges in treating him and circumstances leading 

up to his suicide8 The decision to hold a brain injured and emotionally unstable 

man in Guantanamo defies rationality, particularly in light of the cost of operating 

the facility and the adverse publicity following his death. 

Another detainee who has been on a prolonged hunger strike has developed 

gastroparesis (paralysis of the stomach), irritable bowel syndrome (IBS), and 

evidence of chronic malnutrition. His medical condition is precarious, and he 

manifests symptoms that could eventually lead to his death. He is not receiving 

optimal medical and psychiatric treatment and requires a comprehensive medical 

behavioral plan. Because of his status as a chronic hunger striker, he requires a 

careful and thorough assessment, including many hours of psychiatric 

interviewing. The medical staff lacks sufficient information to judge his 

competence or mental capacity, and there is no data to ascertain his cognitive 

functioning. He has refused to meet with military psychiatrists out of distrust from 

prior experience with military medical personnel and a history of prior abuse. 

There has not been an adequate assessment of the intention of his statements 

7 Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); Neural Clin. 1992 

Nov;10(4):815-47, attached as Attachment D; and J. Trauma 2007 Jan:62(1):80-88, 

attached as Attachment E. 

s AR 15-6 Investigation, Report on the Facts and Circumstances Surrounding the 8 

September 2012 Death of Detainee Ad nan Farhan Abd Latif, 8 November 2012. 

6 
57 

BG (Ret) Stephen N. Xenakis, M.D. 

and beliefs. The conditions of prolonged confinement without reasonable hope of 

being returned to his home aggravate his illness and contribute to endangering 

his health. Furthermore, medical staff are subordinated to the guards who 

maintain the primary relationship with him. This arrangement violates the 

principles of good medical and psychiatric practice that are essential in the 

management of complicated cases such as his. 

As I mentioned, one detainee now weighs over 450 pounds. He weighed 180 

pounds at the time of his capture. He is now morbidly obese and exhibits 

symptoms consistent with a multitude of medical complications, including 

diabetes, hypertension, obstructive sleep apnea, cardiovascular disease, and 

depression. He is at significant increased risk of mortality without treatment, and 

treatment will be costly. Three former Guantanamo commanders have provided 

his lawyers with declarations affirming their belief that this detainee does not 

pose a significant threat to the security of the United States and his continued 

law of war detention is not necessary. His home country has repeatedly 

submitted requests to the Department of State and the Department of Defense 

that he be allowed to return home. Nonetheless, he remains detained, in a 

severely depressed state, waiting to die in Guantanamo. 

I intend for these case vignettes to add vital context to the realities of the 

environment and climate at the detention facilities. My observations and 

impressions shift the strategic view of Guantanamo from the overriding mission 

of security operations to rehabilitation and transition of individuals who should 

return to their homeland. We should assist them to establish constructive lives in 

their communities. 

Seasoned military leaders appreciate that effective and strong command requires 

good policies at the top and accurate data from the front lines. These stories 

elicited from detainees and observations by outside lawyers and physicians 

complete the picture of who these people are and what their lives are like. They 

add to the facts that we need to achieve our strategic goals and military mission. 

The Hunger Strike and the Consequences of Abuse and Torture 

The current hunger strike a Guantanamo dates to February. Since that time, the 

authorities have classified almost 100 detainees as hunger strikers. The 

authorities relocated the hunger strikers from the communal cellblocks to 

individual cells in March. According to Standard Operating Procedures (SOP) at 

Guantanamo, detainees who missed 9 consecutive meals were subjected to 

forcible feeding by nasogastric tubes starting in February. By June, at least 45 

detainees were being force-fed. The authorities conducted multiple forced cell 

extractions (FCE) and reinstated intrusive search procedures causing further 

distress and aggravation. Since Ramadan, some detainees have returned to the 

communal cellblocks and are not officially classified as hunger strikers. 

7 
58 

BG (Ret) Stephen N. Xenakis, M.D. 

The genesis of this recent hunger strike has multiple sources. At the core, 

however, is a general feeling of desperation and hopelessness the detainees 

endure as a result of their indefinite detention. Even those who have never been 

charged and have been cleared for release by the Department of Defense have 

lost all hope of ever being released from Guantanamo. 

Attorneys and journalists covering the hunger strikes trace its genesis to Latif's 

suicide, which is documented in an AR 15-6 investigation conducted by the 

military. The detainees express deep aggravation at JTF-GTMO reinstituting 

search procedures from 2006 that followed Latif's suicide and investigation. The 

detainees feel offended by procedures reinstituted by the guard staff that 

includes frisking groin areas, rifling through Korans, and invading the privacy of 

living areas. They feel appalled at being treated like convicted criminals, even 

though many had been cleared for release and had never been charged or 

convicted of crimes that justified imprisonment. 

The claims of attorneys and journalists regarding the basis for the hunger strike 

and profound despair of the detainees are justified. The recent testimony of the 

Commander of United States Southern Command affirms that policies and 

procedures changed in response to Latif's suicide. The Joint Detention Group 

Commander decided that he had to reinstate procedures for guards to search 

through Korans for contraband and manually frisk the groin area of detainees 

before visits outside a housing camp or meeting with non-JTF-GTMO personnel. 

The guard staff decided to return to single cell operations and disrupt the 

communal living arrangement of most of the detainees. 

The conditions of confinement revive memories of harsh interrogations and 

abusive treatment and constitute a credible threat of a return to abusive 

treatment. This environment is coercive and perpetuates the harsh and abusive 

treatment experienced by most detainees when apprehended. My assessment of 

the environment and conditions was expressed in the declaration that I submitted 

in February 2010 to Judge Thomas F. Hogan of the District Court of the District 

of Columbia: 

The threats and use of coercion by Petitioner's interrogators were 

constant during the relevant time period. As detailed in Petitioner's 

classified testimony about the conditions of confinement, which the Court 

finds to be credible, United States forces were involved in both 

Afghanistan prisons where he was held. He believed the United States 

government orchestrated the harsh interrogation techniques to which he 

was subject. It thus should come as no surprise that during Petitioner's 

first Guantanamo interrogation, which was conducted by a United States 

official on the day Petitioner arrived at Guantanamo, he was gripped by 

the same fear that infected his Afghanistan confessions. His Guantanamo 

interrogators did little to assuage that fear. According to the reliable 

evidence in the record, multiple Guantanamo interrogators on multiple 

8 
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BG (Ret) Stephen N. Xenakis, M.D. 

occasions threatened Petitioner when he attempted to retract statements 

that he now claims were false confessions. Therefore, from Petitioner's 

perspective, his interrogators and custodians did not change in any 

material way during the period in question. 

The high number of forced cell extractions (FCEs) during the current hunger 

strike reinforces fears and impressions that conditions at Guantanamo will not 

change and that detainees cannot reasonably expect to be released. The 

detainees regard the environment and command climate at the camps as 

disrupting any constructive dialogue and possibility of a decent and humane 

relationship with the authorities. 

Over the years, I have conducted innumerable reviews of suicides and homicides 

looking for evidence of shortfalls and errors in clinical care. My review of Latif's 

AR 15-6 identifies many other factors and lapses in procedures that provide more 

compelling causes for his death than the failure to search his groin area or rifling 

through his Koran. The AR 15-6 investigation documented Latif's unequivocal 

statement that he intended to commit suicide, if returned to the single cell where 

he died. He had a history of traumatic brain injury and emotional instability that 

placed him at high risk for self-harm and suicide. My opinion, as a clinician and 

experienced reviewer, is that his suicide should be attributed to gaps in clinical 

care and routine procedures for closely monitoring an individual at high risk for 

harming himself or others. The change in procedures for searching detainees 

and transferring them from communal living deflects reasonable efforts to get to 

the bottom of the problem in safeguarding the detainees and protecting the guard 

force. Furthermore, there is no mention of a reported incident that preceded the 

hunger strike: a guard wounding a detainee in the neck with a rubber bullet while 

he and others were congregating in the communal area. The detainees attribute 

their embarking on the hunger strike to the cumulative stress of the search 

procedures, violations of the Koran, invasion of privacy, and assault. 

The changes in procedures reportedly so offended the detainees that they felt 

they could only express their deep dissatisfaction by engaging in a hunger strike. 

Relocating the detainees to the individual cells from the communal blocks 

reenacts the trauma of the isolation and sensory deprivation experienced with 

cruel and abusive interrogation. The forced cell extractions, forcible feeding, and 

isolation in single cells significantly aggravates their neuropsychiatric symptoms 

and medical illnesses. 

Force-feeding of Detainees 

The policy by the authorities at JTF-GTMO to force-feed detainees by 

nasogastric tube (NGT) illustrates the gaps in understanding the mentality of the 

detainees, appreciating the stresses imposed on them, and the prerequisites for 

maintaining a constructive working relationship between guards and detainees. 

Furthermore, force-feeding completely undermines the physician-patient 

relationship by destroying the trust that is essential for all clinical treatment, 

9 
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BG (Ret) Stephen N. Xenakis, M.D. 

including medical issues unrelated to force-feeding. It inappropriately engages 

physicians in the use of force against detainees. 

The World Medical Association (WMA) has published two ethics declarations 

describing the duties of physicians with regard to prisoners on hunger strikes. 

They are the Guidelines for Physicians Concerning Torture and other Cruel, 

Inhuman or Degrading Treatment or Punishment in Relation to Detention and 

Imprisonment ("Declaration of Tokyo") and the Declaration of Malta on Hunger 

Strikers ("Declaration of Malta"). The Declaration of Tokyo, dating from 1975, 

states that 

Where a prisoner refuses nourishment and is considered by the physician 

as capable of forming an unimpaired and rational judgment concerning the 

consequences of such a voluntary refusal of nourishment, he or she shall 

not be fed artificially. The decision as to the capacity of the prisoner to 

form such a judgment should be confirmed by at least one other 

independent physician. The consequences of the refusal of nourishment 

shall be explained by the physician to the prisoner. 

The use of the word "artificially" was somewhat imprecise, but has been 

interpreted by many organizations, including the American Medical Association, 

to prohibit force-feeding 9 

The Declaration of Malta, originally adopted in 1991 and substantially revised in 

2006 establishes both ethical standards and appropriate clinical responses to 

hunger strikes. It lays out a humane and clinically effective response to hunger 

strikes and establishes that force-feeding is unacceptable. It illustrates the false 

choice between saving lives and force-feeding. 

The physician's role includes evaluating the detainee's medical and 

psychological condition, discussing consequences of fasting and options for 

taking some nutrients, monitoring the detainee's caloric intake, blood pressure, 

weight-loss, and other medical consequences of fasting. The physician advises, 

counsels, listens, and assists the prisoner in clarifying goals, desires, and 

decisions. To perform this role, there must be a true doctor-patient relationship 

based on trust. As the Declaration of Malta states: 

Fostering trust between physicians and hunger strikers is often the key to 

achieving a resolution that both respects the rights of the hunger strikers 

and minimizes harm to them. Gaining trust can create opportunities to 

resolve difficult situations. Trust is dependent upon physicians providing 

accurate advice and being frank with hunger strikers about the limitations 

of what they can and cannot do, including where they cannot guarantee 

confidentiality. 

To establish trust, the physician must be clinically independent of the authorities. 

The Declaration of Malta states that doctors should "not allow third parties to 

9 Lazarus, Jeremy A. Letter to Secretary of Defense Chuck Hagel, April 25, 2013. 

10 
61 

BG (Ret) Stephen N. Xenakis, M.D. 

influence their clinical medical judgment" nor "allow themselves to be pressured 

to breach ethical principles, such as intervening medically for non-clinical 

reasons." If they cannot fulfil this role, or a detainee does not trust the physician, 

a physician who can establish independence and trust must be brought it. 

The first step in medical evaluation is determining mental capacity. The 

"assumption of capacity" is the overriding principle of capacity assessment. This 

states that a person is deemed to have capacity unless it is proved that they 

have an impairment or disturbance of mental functioning (such as an intellectual 

disability, dementia, other cognitive impairment, acquired brain injury or mental 

illness) and this impairment is sufficient to affect their capacity to make a 

particular decision, in this case food refusal. 

Assessment involves two stages: (1) an assessment of mental impairment and 

(2) a mental capacity assessment. 

In particularly complex cases (and the current hunger strike in Guantanamo falls 

into this category), a physician should call on a psychiatrist to provide an 

objective opinion. That opinion should be minimally influenced, as possible, by 

the environmental, political, and administrative issues affecting the mental state 

of the hunger strikers. Such an evaluation should also exclude other bases for 

food refusal such as mental illness (e.g. schizophrenia, suicidal depression, or 

anorexia). Hunger strikes rarely demonstrate suicidal intention. Rather, the 

prevailing opinion of experts in this field is that hunger strikes are undertaken by 

persons who do not wish to die, but are prepared to risk death in the hope that 

their demands are met. Case by case evaluation, however, remains critical. The 

procedure, information gathered during a capacity assessment, and the basis for 

the decision should all be carefully documented. 

If the conclusion is that mental illness is causally linked to the food refusal, the 

physician may be obliged to override the patient's decision. On the other hand, it 

may be determined that an individual suffers from a particular mental impairment 

but nevertheless retains mental capacity to make decisions regarding his or her 

own treatment. The WMA guidelines (attached) address such complex situations. 

"If a physician is unable for reasons of conscience to abide by a hunger striker's 

refusal of treatment or artificial feeding, the physician should make this clear at 

the outset and refer the hunger striker to another physician who is willing to abide 

by the hunger striker's refusal." 

A lack of capacity cannot be assumed on the basis of cultural or religious beliefs, 

age, appearance or conditions of confinement. 

It is noteworthy that the March 2013 Standard Operating Procedures at 

Guantanamo (released by the media) do not stipulate acting on capacity 

assessments. Instead the protocol says that a behavioral health unit will assess 

mental and psychological status, but does not say what is done with that 

information. We can infer that the absence stems from a policy of force-feeding 

all detainees who refuse food. That policy undermines good clinical practice as 

well as disrespecting the choices of competent detainees. 

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BG (Ret) Stephen N. Xenakis, M.D. 

The Guantanamo hunger strike protocols make no provision for effective 

counseling beyond initial advice on the consequences of refusing nutrition. There 

are no procedures for advance directives. Effective medical counseling involves 

not only providing information on the medical consequences of fasting, but 

helping the detainee understand his options, including taking some nutrients; 

helping with decision-making in the event that medical complications occur after 

fasting, including setting out advance directives for treating life-threatening 

conditions. 

The guidelines for hunger strikes at JTF-GTMO authorize forcible feeding after a 

detainee has missed 9 meals, long before a hunger strike becomes life 

threatening. The assertion of the Department of Defense is that it must forcefeed to save lives, but these guidelines derail appropriate clinical evaluations and 

counseling and are not necessary to save lives. They set up a contest of wills 

between detainees and prison authorities. 

The Declaration of Malta demands respect for the hunger striker's decisions. It 

explicitly addresses principles of medical beneficence and respect for patient 

autonomy. It explains that the obligation of beneficence "includes respecting 

individuals' wishes as well as promoting their welfare" and does not justify 

"prolonging life at all costs, irrespective of other values." The physician's 

obligation to avoid harm "means not only minimizing damage to health but also to 

not forcing treatment upon competent people nor coercing them to stop fasting." 

In other words, should the conclusion of the assessment be that the patient has 

the mental capacity to refuse food, the physician is bound by medical ethics and 

international and U.S. law to refrain from enteral feeding 

Thus, the Declaration of Malta states that "[f]orcible feeding is never ethically 

acceptable. Even if intended to benefit, feeding accompanied by threats, 

coercion, force or use of physical restraints is a form of inhuman and degrading 

treatment. Equally unacceptable is the forced feeding of some detainees in order 

to intimidate or coerce other hunger strikers to stop fasting." 

In short, the World Medical Association has determined that force-feeding 

through the use of restraints is not only an ethical violation but contravenes 

Common Article 3 of the Geneva Conventions. The International Committee of 

the Red Cross has taken the same position. 

The American Medical Association (AMA) has been a member of the WMA since 

its inception after World War II. In 2005, 2009, and most recently on 25 April 

2013, through Dr. Jeremy Lazarus, then President of the AMA, the AMA 

reiterated its opposition to force-feeding at Guantanamo. He wrote to Secretary 

of Defense Chuck Hagel detailing the AMA's position on force-feeding. "Every 

competent patient has the right to refuse medical intervention, including lifesustaining interventions." The AMA position means that when a physician 

performs, orders, supervises or monitors enteral feeding on a person who has 

12 
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BG (Ret) Stephen N. Xenakis, M.D. 

refused such treatment, and has the mental capacity to refuse, this constitutes a 

violation of medical professional ethics. 

Every aspect of Guantanamo's policy of force-feeding contravenes these 

standards. Physicians are not independent, and are instructed to follow a 

protocol for enteral feeding that overrides medical professionalism. They do not 

counsel detainees about their options, much less help them prepare advance 

directives. According to the protocol, they participate in the coercive process, 

including being expected to order physical restraints for force-feeding. Nurses 

similarly are ethically compromised. Nurses are not allowed to act on a 

detainee's request to see a doctor or to change the content of the food used or 

the rate of flow-- only to make a note in a chart. 

Indeed, there is an inherent conflict of interest in having the Senior Medical 

Officer (SMO) and/or primary medical provider serve as the decision maker with 

regard to nutritional and tube feeding choices for the hunger strikers. Any trust 

that the provider has established with the patient is at risk, and any desirable 

influence that the provider may have over the patient's decision making may be 

lost. Additionally, consulting physicians, both military and private, have observed 

that this responsibility has proven acutely stressful for the individuals filling the 

SMO position, likely as a result of the interference with a sound relationship with 

the patient. 

The infringement on medical and nursing professionalism at Guantanamo is 

deliberate. The new Standard Operating Protocol states that responding to 

hunger strikes "requires a partnership between the [Joint Medical Group] medical 

staff and the Joint Detention Group (JDG) security force." That is an 

inappropriate role for physicians and nurses: they are expected to be 

independent and serve patients, not security forces. 

Further, the process of force-feeding at Guantanamo is painful, degrading and 

inhumane. My experience as a physician is that the process is intolerable for 

many. The humiliating nature goes beyond the nasogastric tubes and restraints. 

Reliable reporting indicates that the authorities conduct multiple Forced Cell 

Extractions that traumatize and potentially injure detainees. The forcible feeding 

at Guantanamo appears designed to end the protests and not to save lives. The 

Department of Defense's March 2013 protocol on force-feeding analogized 

changes in responding to hunger strikers to adjustments made in battlefield 

tactics. The changes include rescission of policies allowing detainees to choose 

the rate of flow of nutrients and taste of food and denying communal activities to 

hunger strikers. 

It appears that, during the past week to 10 days, some hunger strikers have 

abandoned their hunger strikes. This may prove that the punitive, cruel, and 

inhumane politics are working - but that hardly makes the policies and 

procedures legitimate, ethical, effective, or legal. 

13 
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BG (Ret) Stephen N. Xenakis, M.D. 

Experiences In Other Countries 

Two major allies, the United Kingdom and Israel, address hunger strikes alleged 

to be associated with terrorism, and both prohibit force-feeding. The UK prohibits 

forcible feeding by law. It is instructive that Israel has written the sanctity of life 

into law, but it has not forcibly fed thousands of Palestinian prisoners on hunger 

strikes. A court case in 1996 permitted force-feeding, but the Israeli Medical 

Association demands adherence to the Declaration of Malta and uses ethics 

committees to aid physicians attending to hunger strikers. If detainees do not 

trust prison physicians, outside physicians are called. Although the response of 

Israeli prison authorities to hunger strikes could be improved, they have not 

engaged in force-feeding and, to my knowledge, no prisoners have died since 

procedures under the Declaration of Malta were adopted. 

Leadership 

A complex operation such as Guantanamo requires experienced and steady 

leadership. An axiom of good military leadership is that the command at the top 

sets the climate and is responsible for "what is done and not done." Recent 

testimony by senior leaders at hearings before the Military Commissions convey 

details of policies and procedures that have an adverse effect on the overall 

operation of the facility and contribute to obvious problems. 

Standard policies for assigning senior leaders and personnel stipulate tour 

lengths of a year or less. 

Few senior leaders have backgrounds in operating complex detention facilities. 

These leaders enact policies and procedures that further harm the detainees and 

perpetuate a climate of abuse and maltreatment. Over the past 10 years, the 

senior commander has been a rear admiral- in the combat arms or combat 

support - with experience commanding fighting units. The commanders are 

assigned to JTF-GTMO for a year and rely on "learning on the job." The 

testimony of a former Commander of JTF-Guantanamo at the recent Military 

Commissions reflects the facility's overwhelming emphasis on safety, security, 

and intelligence gathering and analysis. Basic ethical and legal standards for the 

attorney-client relationship, rehabilitation of detainees, and medical treatment are 

subordinated in favor of policies for maintaining order and discipline. As the 

hunger strike indicates, current policies and procedures further abuse detainees 

and undermine even faint attempts to prepare them for transition to their homes 

and rehabilitation. 

Furthermore, the testimony of the current Joint Group Detention Commander at 

the Military Commissions hearings revealed that he " ... had never run a prison." 

When asked if he had ever run a detention facility housing people awaiting the 

death penalty, he again answered "(n)o." He had only operated detention 

facilities housing American prisoners, and indicated no experience with Muslim 

14 
65 

BG (Ret) Stephen N. Xenakis, M.D. 

detainees or men of other ethnic backgrounds. This commander is responsible 

for the changes in policies and procedures following Latif's suicide and preceding 

the current hunger strike. I am not impugning his professionalism or competence 

as an Army officer, but questioning the wisdom of DoD in assigning a 

comparatively inexperienced officer to run the 'most notorious prison on the 

planet.' 

The circumstances surrounding the suicide by Adnan Latif and subsequent 

hunger strike illustrate the problems with effective leadership at Guantanamo. 

The leadership failed to assign staff experienced with individuals at risk for selfharm and suffering with serious emotional disturbances. The medical and 

psychiatric issues were subordinated to policies for maintaining good order and 

discipline. Primary responsibility for management rests with the guard staff and 

not the medical staff. These policies and procedures deprive medical and 

psychiatric personnel from standard and appropriate options for managing 

individuals with serious medical and psychiatric illnesses and providing optimal 

treatment for their conditions. 

Recommendations 

Force-feeding at Guantanamo must end. It is unethical, an affront to human 

dignity, and a form of cruel, inhuman, and degrading treatment in violation of our 

Geneva Convention obligations. It simulates the conditions of torture and abuse 

that many detainees had already suffered. Further, the claim that force-feeding at 

Guantanamo is essential to save lives is false and not corroborated by clinical 

experience. The experience with hundreds of hunger strikers in other countries 

over the past decades shows that engaging early in an appropriate doctor -

patient relationship obviates the decision to forcibly feed to save life. The 

procedures outlined by the World Medical Association, and endorsed by the 

American Medical Association, are effective, ethical, and life-saving. 

The decision to end force-feeding is an important starting point to reforming 

policy, guarding against coercion of detainees, and ending indefinite detention. 

My recommendations include: 

First, the underlying issues that contributed to the hunger strike must be 

addressed. These include expeditious release from Guantanamo of those 

detainees already cleared for release to ending the harsh conditions of 

confinement that have been put into place this year. 

Second, detainees should not be punished for engaging in hunger strikes. 

Placing hunger strikers in isolation or in "dry cells," subjecting them to violence in 

transferring them from place to place, denying them access to communal areas 

or other detainees, and all other coercive measures should end and be prohibited 

in the future. 

15 
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BG (Ret) Stephen N. Xenakis, M.D. 

Third, all directives, orders and protocols that provide, explicitly or implicitly, that 

health professionals act as adjuncts of security officials must be rescinded. 

There is no such thing as an effective partnership between security officials and 

medical care providers in addressing the medical needs of detainees. Doctors 

and nurses need to act as treating clinicians, with professional independence and 

in accordance with ethical obligations of doing no harm and meeting individual 

needs. There are difficult challenges in providing health care services in any 

prison, but adherence to professional ethics should not be one of them. Further, 

mechanisms need to be put into place to reinforce professional independence 

and provide for support of doctors and nurses who find their independence or 

other ethical responsibilities tested. This includes leadership at the highest levels 

of the military in affirming these values. 

Fourth, the aging detainees require more complicated and sophisticated medical 

care. Chronic hunger strikers often become medically compromised, nutritionally 

depleted, and suffer from physiological and psychological harms that impose 

special challenges on clinicians. In general, the detainees do not trust physicians 

and nurses who have been part of the force-feeding apparatus. The regular 

rotation of clinical staff impedes continuity of care, diagnosis, and treatment. It 

places dedicated and professional military clinicians in untenable circumstances 

of providing suboptimal treatment to an increasingly ill population. It is not fair to 

the doctors, nurses, or detainees. If the closure of the detention facility is not 

achievable, then independent medical evaluations, followed by appropriate 

treatment and counseling, are invaluable. 

In taking these steps, the Department of Defense has many resources to aid in 

formulating and implementing new policies. I am confident that medical 

associations, both in the United States and in countries such as the United 

Kingdom or Israel, would be willing to lend expertise. The International 

Committee of the Red Cross (ICRC) has extensive experience in advising prison 

authorities in responding to hunger strikes. Physicians like me who have had 

experience with detainees at Guantanamo would, I am quite sure, be willing to 

contribute their expertise and insights. 

Thank you, again, for the privilege of speaking to you. 

16 
67 

Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications 

Testimony Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, 

and Human Rights 

July 24'\ 2013 

Statement for the Record Submitted by 

Josh Fryday 

Lieutenant, United States Navy 

Chainnan Durbin, Ranking Member Cruz, members of the subcommittee, thank you for 

inviting me to testify today. I appreciate your commitment to moving forward on this difficult 

issue. 

The following statement is based on my own personal experience and knowledge, and 

does not retlect the views of the Military Commissions Office of the Chief Defense Counsel, 

United States Navy or Department of Defense. 

My name is LT Josh Fryday. I am a graduate ofUC Berkeley School of Law, and 

member ofthc California State Bar. I am qualified and certified to practice before courts-martial 

pursuant to Article 27(B) of the Unifonn Code of Military Justice, and an attorney at the Military 

Commissions Oftice of the Chief Defense Counsel. I am also a Term Member on the Council on 

Foreign Relations. 

I am grateful for the invitation to share my experiences. 

Over the past year I have been assigned under military orders to serve as military defense 

counsel for individuals detained in Guantanamo Bay, Cuba. There arc 166 men remaining. I 

represent one of them. 

I'm not here to ask for sympathy for the man I have been ordered to represent, justify his 

actions or argue his guilt or innocence. But I would like to tell you a little about him. He is an 

Afghan citizen with a 3rd grade education he received in a Pakistani refugee camp. after his 

family !led the Russian invasion. He has never been alleged to harm anyone-Afghan or 

American. He was roughly twenty-two years old when detained-although he isn't sure of his 

exact age. He has a son, lmran, who was 6 months old when he last saw him. 

In 2008 he was charged with Material Support for Terrorism. In 2009, the Military 

Commission process halted, and his charges were dismissed. For several years he lingered, 

waiting for charges. But, in 2012, the D.C. Circuit Court of Appeals essentially eliminated his 

chances of being brought before a Military Commission. In Hamdan v. US., the court vacated 
68 

the conviction of Hamdan, Osama Bin Laden's driver, and ruled that because Material Support 

for Terrorism is not an established violation of the international laws of war, it could not be 

applied to those whose alleged acts took place before Congress passed the Military Commissions 

Act in 2006. My client's alleged material support for terrorism happened in 2003. 

As long as the D.C. Circuit's decision stands, there is no charge the government can bring 

against my client in a Military Commission. 

Had my client been brought to federal court, instead ofGTMO, he could have, and would 

have, been tried years ago. Ten years later, with no actual crime with which he can be charged, 

he sits in Guantanamo. 

His only other option of challenging detention through habeas has effectively been cut off 

by the D.C. Circuit Court. The court has set the standard for evidence needed to justify 

continued detention so low, to include hearsay, that no detainee has been granted habeas in 

recent years. Thus, he remains imprisoned indefinitely. 

I do not intend to argue here that my client has never made any mistakes in his life. But 

if he is guilty of any crime, he should be charged and given his day in court. 

People often ask me if it is difticult representing a detainee in Guantanamo. I'm proud to 

live in a country where I can be ordered by my Commander-in-Chief to perfonn such a 

challenging mission. My colleagues, prosecutors and defense lawyers alike, are patriots who 

love their country. In the military. we are taught to perform our duties with honor, courage and 

commitment. 

The tougher questions come from my client. He asked me how it is possible for my 

government to detain him for over ten years without proving he committed a crime, or even hurt 

anyone? I try my best to explain that some in our government believe under the laws of war, we 

are allowed to detain people indefinitely until the war is over. He then asks me, "You will no 

longer be at war with Afghanistan after 2014. Can I go home then? Or does this war never end?" 

My elient was heartened when he heard that President Karzai demanded the return of all 

remaining Afghan citizens still left in Guantanamo. The Afghan government now controls the 

Parwan. formerly Bagram, detention facility. They are now responsible for detaining Afghan 

citizens. 

As a service member and an attorney sworn to uphold the constitution and our strong 

legal traditions, I don't have good answers to my client's questions. 

Many of the legal rules and elements of due process we have set and worked to improve 

over the last two hundred plus years are largely absent from Guantanamo. 
69 

Basic elements that define our notions of justice-access to counsel, meaningful habeas 

review. continued independent review of evidence, and a reliable court system designed to 

ensure swift and fair proceedings--are not available to my client. 

Access to counsel 

We have a long tradition of respecting a defendant's right to counsel. Basic to that right is 

the ability of a defendant to have access to his attorney. In GTMO, access to counsel, even for 

those with attorneys. is a constant struggle. 

The logistics of traveling to Guantanamo to meet my client are costly, and burdensome. 

Flights to Guantanamo are irregular and so uncommon that each visit requires a four to five day 

stay on the island. Due to budget constraints, the Office of Military Commissions has recently 

cut half of the flights scheduled to go to Guantanamo that are used for defense attorneys to visit 

our clients. Once there, procedures instituted by the detention facility create extra hindrances on 

our defense attorney meetings with clients. 

Recently, one defense attorney representing a detainee with active charges at a Military 

Commission was prohibited from bringing his spiral notebook into a meeting with his client. 

The notebook contained attorney-work product for the Commissions case and had been brought 

previously and regularly into attorney-client meetings since 2008 by this same attorney at this 

same location. However, without notice or warning. one day in April2013, the notebook was 

now labeled a prohibited item. 

Detainees are also discouraged from meeting with their attorneys. After the most recent 

hunger strikes were widely publicized, new procedures were put in place every time a detainee 

moved from his housing camp to the attorney meeting rooms. My client refused visits from me 

during my last trip because of newly required invasive genital searches, and new transportation 

vehicles forcing him to sit in very uncomfortable positions- similar to stress positions- for long 

periods of time. The chief judge of the D.C. District Court recently addressed this issue for 

civilian habeas attorneys who were having the same experience with their clients. The judge 

concluded, " ... the search procedures discourage meetings with counsel and so stand in stark 

contrast to the President's insistence on judicial review for every detainee." (In Re Guantanamo 

Bay Detainee Litigation- Hatim, eta! v. Obama, D.D.C. II July 2013) 

When meetings do occur, there is no confidence that the attorney-client conversations are 

private or privileged. That trust was shattered when it was discovered a few months ago that 

attorney meeting rooms had secret audio and video recording devices in them, disguised as 

smoke-detectors, and the audio and video feed of commission trials were being controlled by 

government agencies. unbeknownst to even the judge. If I do make it into a meeting with my 

client at Guantanamo, I have reason to believe that someone within the U.S. Government could 

be listening in on my conversation with my client. 
70 

Periodic Review Boards 

In Executive Order !3567, the Commander-in-Chief ordered the establishment of 

Periodic Review Boards. The purpose of the review was supposed to be to determine whether or 

not each detainee continued to constitute a ''significant threat to the security of the United 

States:' An initial review for each detainee was ordered to be completed no later than one year 

later, March 7, 2012. As of today. two years and four months after the Executive Order, not a 

single review board has been held. 

When they do start, and we are told they will begin soon, no one knows what they will 

actually look like, and how they will be structured. Serious questions remain as to whether they 

will be conducted with any assurances to the American people that they will accomplish what 

they are supposed to do--detennine who in fact truly still poses a threat to our country. If they 

are not conducted properly, and exist merely to rubber stamp the continued detention of those in 

Guantanamo, they will fail to achieve their goal, and continue to erode confidence in the 

processes at place in Guantanamo. 

Military Commissions 

Lastly, when it comes to the military trials actually being conducted at Guantanamo, for 

six out of the one hundred and sixty-six detainees, the experiment ofGuantanamo continues. 

Rather than relying on our Federal criminal justice system, which has exhaustively litigated, and 

exhaustively re-Jitigated trial issues for over two-hundred years, we continue to re-invent the 

wheel in a remote location. 

Our federal system has successfully prosecuted nearly 500 terrorists since 9/ II. The 

nearly five hundred terrorist convictions were the result of trials in sixty different US district 

courts; forty-four cases were in the Southern District of New York alone. 

(http://www.humanrightsfirst.org/wp-content/uploads/pdf/USLS-Fact-Sheet-Courts.pdt). The 

Federal Government successfully convicted Zacarias Moussaoui, the twentieth 9/11 hijacker, 

who is currently serving a life sentence at a Federal Supermax prison in Colorado. 

In contrast, after being revamped three times, the Military Commissions in Guantanamo 

have only convicted six people since 9/11. Two of these convictions have already been vacated, 

casting further doubt as to Military Commissions' ability to withstand appellate review. 

The Military Commissions continue to be wrought with debilitating challenges for both 

the prosecution and defense that often bring substantive hearings to a halt. The overbroad 

classification rules and the absence of a classification guide prevent both the prosecution and 

defense from fulfilling their respective obligations to discover evidence and investigate the 

allegations against detainees. Recently, both sides were forced to litigate the discovery of hidden 

microphones in attorney-client meeting rooms placed there by law enforcement and intelligence 

agencies that work independently ofthe prosecution. Defense attorneys are further restricted 
71 

from effectively communicating with their clients by unreasonable searches of attorney-client 

mail, an issue that resulted in almost two weeks of hearings. 

Conclusion 

We are a nation oflaws and high moral standards. We are a people of principle who 

believe in due process and innocence until proven guilty. Denying my client a trial and detaining 

him indefinitely is at odds with our values. 

It is also at odds with our history. 

On the eve ofthe Revolutionary War, we held trials for British soldiers responsible for 

the Boston Massacre. Before we were even a nation, our founding father John Adams extolled 

the virtues of a people governed by the Rule-of-Law when he served as one of the British 

soldiers' defense lawyers. He set the example for the type of justice this new country would 

stand for. 

Some in Guantanamo are responsible for unforgiveable acts of evil. Our history teaches 

and our values demand that, they too should be tried. and iftound guilty, punished tor their 

crimes. 

Today. six detainees are being tried in Military Commissions for the atrocities of9/ll 

and USS COLE bombing. These trials have been marked by arguments over what clothes can be 

worn in court, how attorney-client mail should be read, and how lawyers may be permitted to 

take notes in meetings. Almost twelve years after our nation was attacked, we are still years 

away from completing these trials and securing justice. 

This delay injustice is not because we provide too many rights for our enemies. Quite the 

opposite-it is because for too long we tried to abandon our basic principles of justice and 

existing courts oflaw, on an island prison we created. 

Everyone here knows our threats are real. They must be taken seriously and pursued with 

the utmost intensity and vigilance. Criminals and terrorists should be prosecuted and jailed. Our 

enemies must be clear about our steadfast and dogged commitment to bring them to justice, and 

they must know we will not stop until we do. 

At the same time, the law and our values require that we put these men on trial and prove 

they are guilty. We believe in due process- a fair trial, the opportunity to confront your accusers, 

and a chance to be presented with the evidence against you. 

For centuries, American service members have fought and paid the ultimate sacrifice to 

protect these fundamental values that define our country. We should endeavor to always be 

faithful to those values, especially when it is most challenging to do so. 
72 

Submitted Testimony of 

FRANK J. GAFFNEY, JR. 

President, Center for Security Policy 

Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights 

and Human Rights 

On the Need to Continue Operation of the 

Unlawful Enemy Combatant Incarceration Facility 

at Guantanamo Bay, Cuba 

24 July 2013 

Chainnan Durbin. Ranking Member Cruz, members of the Subcommittee, thank you for 

affording me an opportunity to testifY today on the implications of closing the 

detention/interrogation facility at Guantanamo Bay. 

As a fom1er member of the staff of a great Democratic Senator, Henry "Scoop" Jackson, and as a 

professional staff member f(Jr the Senate Am1ed Services Committee under Republican 

Chainnan John Tower, I have great affection for this institution. I revere the mandate it received 

from the founders as a co-equal partner with the executive in governing this nation. 

In my subsequent four-and-a-half years in the Reagan Defense Department- in which, among 

other capacities. I acted as the Assistant Secretary of Defense for lntemational Security Policy, I 

had a different perspective on the accountability the Congress could exact from the executive 

branch. But I welcomed then, and encourage now, the legislature's indispensable oversight role 

a role that is, in my view, essential to maintaining a "well-ordered liberty." 

The Case for Gitmo 

Let me begin my argument for retaining the detention and interrogation facility at Guantanamo 

Bay, Cuba (nicknamed "Gitmo") by noting a fundamental reality: Our uatiou is at war. We 

are operating in that status pursuant to Congress's 2001 Authorization for the Use of Military 

Force (AUMF), and in accordance with the laws of armed conflict governing a nation's right to 

self-defense. These are the legal mechanisms of which we have availed ourselves to enable and 

guide the use of force necessary to protect the United States. 
73 

We have been obliged to go to war because it was thrust upon us. And, if we are to prevail in 

this conflict, we must understand the nature of the enemies with whom we are at war. They are 

shariah-adherentjihadists who believe, in accordance with that doctrine, that it is God's will that 

they destroy our way oflife and subjugate us to theirs. 

It is important to state at this point that not all Muslims subscribe to shariah, or seek to impose it 

on the rest of us. Those that do not adhere to this ideology are not necessarily a problem. They 

could even be critical to mitigating the threat posed by their co-religionists who do embrace 

shariah. But it is a grievous mistake to think that those we confront are not animated by what 

they believe to be a spiritual mandate, that we confront only threats from al Qaeda, or that its 

members arc appreciably distinct from others who pursue shariah 's requirements to achieve its 

supremacy worldwide under the rule of a caliphate. 

Our shariah supremacist enemies have made their intentions known to us prior to the devastating 

attacks on 9/11, and they have made no secret of them since. The belief that their holy war is 

divinely inspired has contributed not only to the violent and stealthy forms of jihad being waged 

against us. It has also contributed materially to the determination of a significant percentage of 

those captured on the battlefield and detained at Guantanamo Bay to return to the fight if and 

when they arc released. 

It would be the subject for another, most useful hearing if this Committee were to examine the 

lengths to which we have gone as a nation to ignore these realities. Suffice it to say for the 

present purpose that, by failing to understand the nature and abiding ambition of our foes, we are 

prone to making dangerous tactical decisions, such as releasing hardened detainees, and 

potentially fatal strategic ones, including contemplating the closure ofGitmo. 

Let's be clear: Guantanamo Bay is the optimal location for U.S. detention and interrogation 

of unlawful enemy combatants. It is simultaneously a uniquely secure facility and a highly 

humane one. And Gitmo has these attributes primarily thanks to the servicemen and women 

whose professionalism, discipline and courage make them possible notwithstanding routine, vile 

and often violent provocations on the part of detainees. 

The Absence of Sound Alternatives 

The burden of proof should be on opponents of Gitmo to define a superior arrangement. To date, 

they have been unable to persuade the Congress that there is such an alternative. Indeed, the 

other choices pose grave risks for national security and/or are less humane than incarceration at 

Guantanamo Bay. Let me briefly examine several of these in turn. 

First, handing detainees over to third-party nations can result in the prisoners deliberately 

being set free, breaking out of jail or otherwise being enabled to re-join fellow jihadists on 

the battlefield. In 20 I 0, the Obama administration suspended the transfer of detainees to 

Yemen out of concern that according to the Washington Post, "a deteriorating security situation 

2 
74 

driven by a branch of al-Qaeda has stoked fears that detainees could join- or rejoin- the 

terrorist organization if released." (hltJl://articles.washin!.!lO!ljJ_Q!ih<::_onl.!~Jll 0-01-

05/\1 orld/36778' 53 I 'cmeni-dctainees-l!uantanamo-bav-twantanamo-prison) 

Just yesterday, the Iraqi arm ofal Qaeda claimed responsibility for raids on prison facilities near 

Baghdad that released hundreds of inmates, including members of al Qaeda. This incident shows 

the folly of relying on vulnerable foreign prisons to keep dangerous individuals incarcerated. 

The risk of former Guantanamo Bay detainees returning to the battlefield is a significant one. 

Last year, the Office of the Director ofNational Intelligence released a report indicating that, of 

the 599 released former Gitmo detainees, 27.9% were either confirmed or suspected of engaging 

in terrorist activity. This amounts to a 2.9% increase in former Guantanamo detainee recidivism 

as reported by the ODNI in December, 20 I 0 (http://\\\\ \\.reuters.com/article/20 12/03/06/us-usaguantanamo-recidi\ ism-idUSTRE82501 120 120306). My guess is that some number of the 

remaining group is also back in the jihad, even if there is no evidence of it thus far. 

Second, transferring the Guantanamo detainees to the United States for detention- in say 

a prison like that formerly known as the Thomson Correctional Facility in Illinois- poses 

substantial security risks. For one thing, there is the danger arising from what thejihadi 

detainees might do inside a U.S. prison population in terms of violent plots or perhaps simply 

their toxic form of shariah proselytization. 

For another. housing prominent jihadists in a given American community could cause it to be 

targeted by their comrades, either in the hope of actually freeing the detainees or simply as an act 

ofjihad. Former federal prosecutor Andrew C. McCarthy, who secured the conviction of the 

"Blind Sheikh" for his role in the first bombing of the World Trade Center in 1993, has 

previously pointed out thatjihadists target military bases, and U.S. military bases consist of 

entire communities where members of our Anned Forces live with their families. 

Once detainees arc physically inside the United States, moreover, they arc within the jurisdiction 

of federal judges, before whom defense attorneys will argue their clients deserve the full array of 

constitutional rights afforded to common criminals. Undoubtedly, some federal judges will 

agree with this assertion. 

That would, in turn, enable detainees to be tried in this country under criminal law standards that 

cannot, as a practical matter, be applied to the circumstances of wartime capture (e.g., 

evidentiary procedures, Miranda rights, etc.) Prosecutors could then be put in the position of 

having to disclose classified information in order to secure a conviction under these standards, or 

risk having the detainee be released- perhaps inside the United States. especially if no other 

country is willing to take him. 

Let's not kid ourselves. Even if such risks were non-existent, or simply deemed acceptable. 

there is no reason to believe that holding Gitmo detainees would spare us the criticism of human 

3 
75 

rights advocates and defense lawyers of the "Gitmo bar"- including appointees in the Obama 

administration. As Andy McCarthy has also noted, some of these folks have previously asserted 

that Supennax-stype confinement is a human rights violation. In point of fact, "shoe-bomber" 

Richard Reid, who was held in a Supermax facility under "special administrative measures" 

(SAMs) to ensure his secure continement, argued that the SAMs violated his constitutional 

rights. The SAMs were subsequently lifted. (Mr. McCarthy's full treatment ofthis subject can 

be found here: http://\\\\" .nationalrcYiew.com/articles/2'9203/i!oinrr-senator-rrrahamscl ifl/andre\\ -c-mccarth\) 

Finally, it has been asserted that the existence of Guantanamo Bay has served as a 

"recruitment tool" for terrorists and that the facility should be shut down for that reason. 

In fact, shutting down Guantauamo Bay detention operations would rightly be seen by the 

jihadist movement worldwide as evidence of our submission, and a greatly emboldening 

victory. It would likely have the effect of increasing recruitment, while at the same time 

denying us a vital tool for incarcerating and interrogating those we capture rather than ki II. 

What is more, such a victory would embolden not only the violentjihadists, but also the previolent jihadists (most prominently the Muslim Brotherhood), here and abroad. The latter seek 

the same outcome as the former- the imposition globally of shariah under the rule of a new 

caliphate. The only difference is one oftactics driven by the Brotherhood's perception that, for 

the moment, the correlation of forces is not conducive to success via direct and violent forms of 

jihad. 

Conclusion 

For all of these reasons, it is, in my professional judgment. not only desirable but necessary to 

continue to incarcerate detainees at Guantanamo Bay. We should, moreover, be free to add to 

their number at Gitmo, if that will help us gather vital intelligence and keep dangerous jihadist 

enemy combatants off the battlefield. 

I will be happy to address your questions. Thank you. 

4 
76 

TESTIMONY OF 

ELISA MASSIMINO 

PRESIDENT AND CEO 

HUMAN RIGHTS FIRST 

HEARING ON 

CLOSING GUANTANAMO: 

The National Security, Fiscal, and Human Rights Implications 

BEFORE THE 

UNITED STATES SENATE 

COMMITTEE ON THE JUDICIARY 

SUBCOMMITTEE ON 

'HE CONSTITUTION, CIVIL RIGHTS, AND HUMAN RIGHTS 

JULY 24,2013 
77 

Introduction 

Chainnan Durbin, Ranking Member Cruz and Members of the Subcommittee, thank you 

for inviting me to be here today to share my perspective on the national security, fiscal 

and human rights implications of our policies at the Guantanamo Bay Detention Center, 

We are deeply grateful to this subcommittee and to you, Mr. Chainnan, for your 

leadership on this and so many other human rights issues. Your tireless commitment to 

keeping human rights on the agenda of the United States Congress helps to ensure that 

our nation lives up to its ideals, and can lead the world by example. 

My name is Elisa Massimino. I am the President and Chief Executive Officer of Human 

Rights First. Human Rights First is one of the nation's leading advocacy and action 

organizations, and the only group whose central mission is to advance American global 

leadership on human rights. We believe that upholding human rights is not only a moral 

obligation; it is a vital national interest. America is strongest when our policies and 

actions match our values. For 35 years, Human Rights First has worked to ensure that our 

country is a beacon on human rights in a world that sorely needs American leadership. 

Human Rights First is non-profit and nonpartisan. To maintain our independence, we 

accept no government funding. Our work focuses on building coalitions with frontline 

activists, lawyers, and religious, military, and business leaders to develop pragmatic and 

bi-partisan solutions to the toughest human rights challenges where American leadership 

is essential. 

Human Rights First is an American organization and, since 9/11, much of our work has 

focused on ensuring that our country stays true to its values, even as it confronts the 

threat of terrorism. We know from our 35 years of work around the world that what the 

United States does-particularly on human rights-matters deeply. In the aftermath of 

WWII, it was an American-Eleanor Roosevelt-who led the effort to develop a global 

consensus on the inherent rights and dignity of all people. Now, as then, American 

leadership is essential to build a world in which those universal rights are universally 

respected. 

That is why we have focused so much of our energy and attention on getting this right. 

For the last decade, Human Rights First has worked with a group of retired generals and 

admirals, as well as law enforcement officials, professional interrogators, faith 

organizations and others to promote effective security policies that respect the rule oflaw 

and human rights, and uphold American ideals and universal values. We have challenged 

arbitrary detention, torture and other cruel treatment in the wake ofpost-9/1 I abuses. We 

have worked for the restoration of habeas corpus. We have served as official observers to 

every military commission convened at Guantiinamo. And we have published a series of 

groundbreaking reports on Guantanamo and other aspects of U.S. detention policy. Our 

report, IN PURSUIT OF JUSTICE: PROSECUTING TERRORISM CASES IN THE 

FEDERAL COURTS 1

, written by two respected former federal prosecutors, examines 

more than I 20 terrorism cases prosecuted over the past 15 years and concludes that the 

1 RICHARD B. ZABEL AND JAMES J. BENJAMIN. IN PURSUIT OF JUSTICE 65 (Human Rights First 2008). 

2 
78 

federal system has capably handled important, complex, and challenging international 

terrorism cases without compromising national security or sacrificing rigorous standards 

of fairness and due process. 

Closing Guantanamo has proven to be more difficult than many anticipated. There are 

tough questions to resolve, to be sure, but it is possible to close the detention facility with 

smart and sustained leadership from the President and Congress. Our new paper, 

GUANTANAMO: A COMPREHENSIVE EXIT STRATEGY, which we are releasing 

today, provides a roadmap for closing Guantanamo, with practical guidance on how to 

address the challenges of risk management raised by transferring detainees out of the 

facility. 

I. Why We Need to Close Guantanamo 

In a world that for many is characterized by tyranny, war, and injustice, the United States 

stands as a beacon. Despite our many failings, the United States has a long history of 

advancing human rights, having played a leading role in developing the international 

laws and standards that define and enforce them, and continuing today by protecting 

refugees and supporting human rights defenders on the frontlines of the struggle for 

freedom in many countries around the world. Domestically, respect for freedom, 

democracy, and the rule of law defines our political culture and constitutional system, 

setting an example for people around the world who seek to advance democracy and 

human rights in their own societies. 

A glaring exception to this narrative is the post-9/11 abuses committed by our 

government, defined largely by Guantanamo and the torture of detainees in U.S. custody. 

It's hard to overstate how much this has undermined our country's moral standing and 

credibility. In my role as the head of an international human rights organization, the 

scenarios in which I most often hear about Guantanamo are not in our domestic political 

debates here at home or in our courts. I hear Guantanamo raised by officials of 

repressive governments who usc it to deflect criticism of their own policies by charging 

hypocrisy. And I hear about Guantanamo from human rights defenders around the world 

who tell me that the best thing the United States can do to support their bids for freedom 

and democracy is to make sure that our country can lead by example, including closing 

Guantanamo. Three years ago, I brought two dozen human rights and democracy activists 

from around the world to the White House to meet with President Obama, and that's 

exactly what they told him. 

The ability of the United States to credibly push other governments to respect human 

rights is seriously compromised when we have failed to correct the post-9/1 1 abuses that 

have cast a shadow on America's foreign policy over the last decade. And that shadow 

will continue to loom large until Guantanamo is closed, and the policies of indefinite 

detention and military commission trials are ended. 

There have been instances in the life of our relatively young country when we have 

pursued policies out of fear that we later realize are inconsistent with our values. 

3 
79 

Sometimes it takes hearing the perspective of those outside our national community, who 

know the values for which we hold ourselves out, to remind us of who we are. Consider 

the perspective of some family members ofGuantanamo detainees. Several have written 

letters to you in advance of this hearing, and I want to read a few excerpts from them. 

Nabil Hadjarab is an Algerian man who has been detained at Guantanamo for over a 

decade without charge or trial. He has been unanimously cleared for transfer by our 

government's security and intelligence agencies. Here's what his uncle Ahmed Hadjarab 

wrote: 

"I must admit that my perception of the United States of America has been 

severely tarnished by this issue. When in 2002, I was told that Nabil was 

detained by the Americans; I thought that at least he would have a right to 

a fair trial. I thought his rights would be respected and that justice would 

prevail. What I feel today is mostly incomprehension. How can this 

nation, one that prides itself of defending I Iuman Rights, close its eyes to 

these violations of its founding principles?" 

Hisham Sliti from Tunisia has been held in Guantanamo for more than a decade without 

charge or trial. He has also been cleared for transfer. His mother, Maherzia Sliti, wrote: 

"One of the worst things is the uncertainty, and the false hope that things 

are about to change. Sometimes I hear rumors that men have been 

released from Guantanamo and that Hisham is one of them. I miss and 

love my son so much that although my mind knows the rumors are 

probably false, my heart believes them every time. And every time I am 

devastated when I realize he is not coming home. I do not understand why 

my son is still in Guantanamo after all these years, when we know he has 

been cleared. We never thought the United States was the kind of place 

where people could be held like this." 

Ahmed Belbacha, an Algerian, has been held since 2002 without charge or trial. He has 

been cleared for transfer. His brother Mohammed Belbacha wrote: 

"My family is horrified at how Ahmed and others in Guantanamo have 

been treated. Algerian youth has long looked up to America for its 

democracy and respect for human rights. We always associated a lot of 

good with it. But now, America has lost its standing not just with our 

family, but with Algerian youth as a whole. Arbitrary arrest, detention 

without trial, renditions and torturous interrogation methods have cast a 

dark stain upon America's reputation." 

These excerpts come from letters collected by Reprieve, a human rights organization that 

currently represents 15 prisoners in Guantanamo Bay and has provided assistance for 

many more. Attorneys and family members of Guantanamo detainees submitted the full 

versions ofthese and other letters to the hearing record. I encourage you to read them. 

4 
80 

I raise these issues ofjustice and America's moral standing in the world because I want to 

be clear that what's at stake in figuring out a way to close Guantanamo is our ability to 

lead by example, and our reputation for upholding justice and the rule of law. 

There are some who say that we need Guantanamo to hold and interrogate detainees that 

can't be tried in civilian court because they were captured by our military on the 

battlefield. But the military has never needed Guantanamo for battlefield captures; those 

detainees have typically been held in detention facilities in theater. Moreover, the vast 

majority of terrorism suspects captured abroad are dealt with by the security and law 

enforcement services of our foreign counterparts, and that's how it should be. Since 9/11, 

more than 120,000 suspected terrorists have been arrested around the world, and more 

than 35,000 have been convicted.2 Our military cannot-and should not-be the world's 

police force or jailor. 

In cases in which we have needed to detain. interrogate, and jail terrorism suspects, our 

civilian system has handled these cases remarkably well. Since 9/11, civilian federal 

courts have handled nearly 500 cases related to international terrorism, including at least 

67 where suspects were captured abroad, 3 often in inhospitable environments. Despite 

claims to the contrary, there is no credible evidence that trying these cases in civilian 

courts has caused breaches of sensitive national security information, or invited attacks 

on U.S. soil. 

Nor does the civilian process preclude us from obtaining actionable intelligence to disrupt 

terrorism plots. The administration has established a High-Value Interrogation Group 

(HI G) that has been deployed in a number of cases to interrogate terrorism suspects using 

lawful and effective methods. Even in more routine terrorism cases, and in situations 

where Miranda rights and other due process protections are respected, offering plea deals 

and working with the defendant's family and lawyers, in addition to lawful 

interrogations, have produced a wealth of actionable intelligence information, including: 

telephone numbers and email addresses used by al Qaeda and other terrorist groups; 

information about al Qaeda communications methods and security protocols; infonnation 

about their recruiting and financing methods; the location of a! Qaeda training camps and 

safe houses; information on al Qaeda weapons programs: the identities of operatives 

involved in past attacks; and infonnation about future plots to attack U.S. interests.4 

By contrast, detention and trial at Guantanamo has proven highly problematic on several 

levels. Since 9/11, only 7 detainees have been convicted by military commission. Two 

of those convictions were recently overturned by a federal appeals court because the 

2 Martha Mendoza. Global Terrorism: 35.000 Worldwide Cmn·icted For Terror Offenses Since September 

II .41/acks. AI'. September 3. 2011. arailable at: hllp"i" \1" .hurtln~tonpc>sl.com 20 II 09:03 tcrn•rismcom ictiL)ns-sinLe-scpt-11 n 9-J.7R65.html. 3 Deborah Pearlstein. Counterterrorism in Court. OPINIO JURIS. March 25. 20 I 3. available at: 

http:,- 'opiniojuris.un:; 20 I J :'()~ 25 'countc-rtcrrori...,m-in-cnurti. 4 David Kris, Lmr Enji!rcement as a Counterterrorism Tool. JOURNAL OF NATIONAL SECURITY 

LAW AND POLICY. June 2011. at 85, available at: hllp: '!jnslp.com 11pcnntcnt·\tplccads 20 I J. 06 OJ Duv Lci:1ris.rdL 

5 
81 

crimes with which the detainees were charged were not war crimes-the only acts over 

which military commissions have jurisdiction-at the time the offenses were committed. 

More broadly, in contrast to the civilian system, in Guantanamo-where detention is 

indefinite and Congress has made it difficult to effect transfers out of the pdson-there is 

not the same kind of leverage (e.g., offering release or shorter detention in exchange for 

cooperation) to exploit with detainees. 

There arc other pragmatic reasons to move forward with closing Guantanamo. The 

impending end of combat operations in Afghanistan in 2014 increases the urgency for 

Congress and the administration to determine the disposition of all law-of-war detainees. 

The detainees at Guantanamo were apprehended and detained pursuant to the 2001 

Authorization for Use of Military Force. As hostilities come to an end, Guantanamo 

detainees will have a legitimate claim before the courts that they should be released. 

Congress and the administration should proactively determine the lawful disposition of 

detainees now, or the courts could force those dispositions later. 

There has long been a national security consensus that Guantanamo should be closed. 

More than 50 retired generals and admirals, along with three Secretaries ofDctcnsc--

Gates, Panetta and Hagel-have called for Guantanamo to be closed. Today's witnesses 

underscore that many senior military leaders believe that closing Guantanamo is a 

national security imperative. 

As a national security issue, closing Guantanamo should be beyond politics. And it has 

been in the past. In 2008, there was significant bipartisan consensus that Guantanamo 

should be closed. Then-President Bush said he wanted to close Guantanamo.5 as did 

then-candidates Obama and McCain.6 That consensus has started to re-emerge, with 

Senator McCain recently stating that Guantanamo should be closed, and emphasizing that 

it would be an "act of courage'" to transfer detainees out ofGuantanamo and into the 

United States as part of a plan to close the facility. 

And Guantanamo can be closed-safely and securely. This is not to say that closing 

Guantanamo will be easy-it if were, Guantanamo would already be closed. There are 

difficult legal, practical, and political problems that must be addressed to move forward. 

But there is a pragmatic path forward to close Guantanamo, if the administration and 

Congress demonstrate sustained and focused leadership to get the job done. 

I want to spend a tcw minutes outlining this path forward. 

II. A comprehensive plan for closing Gnantanamo 

5 Bush Says He Wants To Close Guantanamo, CBS NEWS/AP. February II, 2009. arailable at: 

t)_ljn_:L\\\\W.fl_1"1C\\S.Ctli)1,2J 00-250 J62-J)9(,.f(J.J.htmJ. 6 The Candidates on Military Tribunals and Guantanamo Bay, COUNCIL ON FOREIGN RELATIONS. August 

24, 2008. ami/able at: l:!.!lJ2; · \\ "" .c ti·.org\, urldicandidatcs-mi lil~n -trihunals-guantanamu-h'" ;r I.J 751. 

6 
82 

In 2009, President Obama signed an executive order establishing an interagency taskforce 

to conduct a review and recommend lawful dispositions of the detainees being held at 

Guantanamo. 7 Since then, 72 prisoners have been transferred, repatriated or resettled, 

and a number of other detainees have died--either by suicide or other causes-bringing 

the current detainee population down to I66.8 Transfers have stalled in part because of 

restrictions imposed by Congress in 20 I 0, 20 II and 2012, and because the administration 

has failed to exercise the authority Congress gave it in 2012 under the National Defense 

Authorization Act to waive the transfer restrictions by invoking, among other 

requirements. national security interests. 

Concerns about recidivism-the possibility that a released detainee may "return to the 

fight"9 

-are understandable, as they are in the criminal context. But, as many analysts 

have detailed, the claims about recidivism of detainees who have already been released 

are inflated. The claim by members of Congress and some in the media that 28% of 

former Guantanamo detainees have ''rejoined the fight" or "returned to the battlefield" 10 

is highly misleading. It appears to be based on unreliable or unconfinned reports of 

suspected activities, and in any event includes detainees that may not have participated in 

any terrorist plots or attacks. The process to evaluate potential transfers has changed 

since the prior administration to more accurately capture post-transfer risk, leading to 

fewer cases ofrecidivism for detainees transferred by the Obama administration. The 

Director ofNational Intelligence's recidivism assessment should be revised to more 

accurately reflect the circumstances in which former detainees that have engaged in 

terrorist plots or attacks against the Cnited States so that evaluation-and mitigation--of 

this risk is grounded in reality, not hyperbole. 

Nonetheless, as senior military commanders have told me, transfers of detainees from 

Guantanamo---:iust as transfers of detainees out of detention facilities in Iraq and 

Afghanistan-have always been about risk management, not risk elimination. Some 

detainees pose little risk; others will pose more. Establishing a "zero tolerance for risk" 

policy with respect to individual detainees is neither wise nor necessary. Our military. 

intelligence, law enforcement, and diplomatic agencies, along with those of our foreign 

counterparts. can signitlcantly mitigate the risks of transferring detainees out of 

Guantanamo through security assurances, monitoring, rehabilitation and other reasonable 

7 Guantanamo Review Task Force. Final Report. January 22. 20 l 0, ami/able at: 

http:/-\\,,.,, .justice.t:O\ ·aQ ·i.!u:J.nt:.mamo-rc\ ic\r-tinal-reporl.pd r. 8 Sarah Childress. Four Obama Policies That Help Keep Guantanamo Open. PBS/FRONTLINE, May l. 

2013. arai!ah/e at: http:.\\'''' .ph~.orQ.\\!.!hh 'p:.:u::e:-./fi·omlinc'f{xcic.n-af1llirs-d..:fcnsc·'four-ohDma-p(.)licics-

~klt-hcln-kccp-euantanam(l-()Jll'n . 

q The term .. recidivism" is used in this testimony solely because of its widespread use in the detainee 

transfer context. However. the term is inaccurate here for two reasons. First. many detainees did not 

commit any crimes or acts of terrorism prior to being detained at Guantanamo and therefore any future act 

of terrorism would not constitute "recidivism." Second, as is noted in the testimony. much of the conduct 

that is counted as recidivist does not actually entail criminal or terrorist activitv. 10 Senator Kelly Ayotte. Floor Speech on C~unterterrorism Policy (November.29, 2012). ami/able at: 

http:' \\\\\\ .C-SP<lll\ idcl\.01'~ clip .j J7'!7QQ. 

7 
83 

measures. The risks associated with keeping Guantanamo open are harder to mitigate, 

and the harm is potentially far more lasting. 

A. Disposition of the 86 detainees cleared for transfer. 

Of the 166 detainees remaining at Guantanamo, 86 have already been cleared by all 

relevant law enforcement, defense, and intelligence agencies for transfer back home or to 

third countries. The United States has determined that those men should neither face trial 

nor be detained, and many were cleared for transfer by both the Bush and Obama 

administrations. Several of these men have languished at Guantanamo for more than 

eleven years, even as their home countries have demanded their return. To successfully 

transfer all or most of these 86 detainees, the administration should take the following 

steps. 

The Secretary of Defense should certify transfers and issue national security waivers to 

the fullest extent possible consistent with applicable law. The current set of certification 

requirements, coupled with the national security waiver, provides the administration with 

the authority to transfer many, if not all, 11 of the 86 detainees who have already been 

cleared for transfer. In most cases, security assurances from, or changes in the political 

or security context in, the receiving country can be read to satisfy the remaining 

certification requirements that cannot be waived under the national security waiver. 

Efforts to negotiate any required assurances should begin immediately11 and be given the 

highest priority under the direction of the Secretary of Defense, in concurrence with the 

Secretary of State and in consultation with the Director of National Intelligence, pursuant 

to the required statutory guidelines. 

The administration should begin transferring individuals to Yemen on a case-by-case 

basis, while also expeditiously developing a rehabilitation program there that could 

facilitate transfers of cleared Yemeni detainees en bloc. 13 Fifty-six of the 86 detainees 

cleared for transfer are from Yemen. Of those 56, 26 are cleared for transfer without 

conditions, and may be transferred now that the moratorium on transfers toY em en has 

been lifted. The remaining 30 are conditionally cleared for transfer, and may be 

11 Some detainees likely cannot be transferred even with the flexibility in the certification requirements and 

national security waiver. For example. 5 detainees (I from Sudan and 4 from Syria) cannot be repatriated 

because their home countries are considered state sponsors of terrorism. and transfers to such countries are 

prohibited. 

12 Detainees cannot be transferred without aggressive efforts to obtain any necessary assurances from 

foreign governments. At an average rate of 4 transfers over 18 months-the rate at which detainees were 

transferred out over the last 18 months-Guantanamo would not close until 2075. 13 Any rehabilitation program developed should be focused on providing services-job training. education. 

counseling, etc.-designed to reintegrate the Yemeni detainees into society. and should not be predicated 

on novel Y emcni legal authorities to hold detainees indefinitely without charge or trial. In cases in which 

Y cmeni detainees may ha; e violated Yemen's criminal laws, the United States should facilitate 

prosecutions in Yemen pursuant to international fair trial standards by sharing credible evidence of criminal 

wrongdoing. 

8 
84 

transferred with improved security conditions in Yemen, an appropriate rehabilitation 

program, or where third-country resettlement becomes an option. 14 

The administration should transfer home the 17 cleared detainees who arc from countries 

that have requested their retum (other than Yemen, which has also requested its citizens 

back). Countries that have demanded the return of their cleared citizens include: 

Afghanistan (4), 15 Algeria (5), 16 Libya (1). 17 Saudi Arabia (2) 18, and Tunisia (5). 19 

However, in accordance with U.S. non-refoulement obligations,20 where there are 

substantial grounds for believing that a detainee would be in danger of being subjected to 

torture or other forms of mistreatment if returned home, the administration should resettle 

such detainees in third countries. 

The administration should transfer to third countries (including, possibly, the United 

States) the three Uighur detainees who cannot be repatriated to China based on their wellfounded fear of persecution. The Uighurs are not part of al Qaeda, the Tali ban or any 

"associated forces," and do not pose a material threat to the United States. U.S. federal 

courts have ordered their release. Moreover, resettling such detainees here would place 

the United States in a stronger position to negotiate transfers of other detainees to third 

countries by demonstrating a willingness to share in the responsibility of resettlement. 21 

The administration should transfer home the five men whose countries have not. at least 

publicly, asked for their citizens back, including men from Mauritania, Morocco, the 

Palestinian Territories, Tajikistan, and the United Arab Emirates. These detainees should 

be repatriated home if their countries are willing to accept them and transfers can be 

14 Guantanamo Review Task Force. Final Report. January 22, 2010. available at http::\,"" .justic~.Qc4\ UQ 

iU.!idl!JllJlUtn\H'C\ ie\Y-finai-I'L'!:!_0i!J.l.Jf. 15 Jeremy I lerb, Kar:::ai: Obama should close Gitmo, THE HILL, May 2. 2013. available at: 

http:, 'thchil !.com 'hloi!s 'dell·on-hi llipol ic' -nnd-str:J.tt.'U\ /297451-kur.;:ui-sa\ :-.-ohamu-should-clnseHolly Manges Jones, Guantanamo Algerians complained to risiting delegation about treatment: report, 

JURIST, March 28,2006. m•ailable at: httr:-/jurist.o.r.gj:l]zrcha~c/2006'03/!,!uantanamo-~Jlecriansconlpl;;LiJJ~-t~)-:l!Jm...:. 

" 7i·ipoli seeks repatriation of Libyans held in Guantanamo. AFP, January 22. 2009. available at: 

ln.!J:l~:.ill'ill.Jill.cl£1~&0.m ho stcJnc1' s 'a lj.1 'a rtl<J£11~ 15 h B JJ}.t.Ll0l?.l\_(u~.~JO i 6_Ql'(_Qi X 8J ~ 13 One Saudi Arabian detainee. Shaker Aamer. has dual citizenship with the United Kingdom. which has 

also demanded his return. 19 Boua.aa ben Bouazza. Tunisia Mission Asks For RepatriaTion OjGuantanamo Bay Detainees. AP. 

September 14. 20 II. available at: http: /11\\\\ .huflinQlunpost.com:2() II ·09, 14,tunisia-mi"iunQuantanamo n 962920.html 00 The United States cannot ;ely exclusively on diplomatic assurances to prevent transfers to torture. An 

interagency task f(.lrce established by executive order in 2009 provided recommendations designed to 

improve the administrative process for ensuring that U.S. transfers are consistent with its obligations under 

Article 3 of theCA T. However, the task force recommendations have not been made public. President 

Obama should direct the Department of Justice. in coordination with all other relevant agencies and 

departments. to make these recommendations public. as well as any information regarding how these 

recommendations are being applied in practice. 

" William Glaberston and Steven Erlanger. Europe's Hedging on inmates Clouds Guantanamo Plans. 

N.Y. TIMES. March 16. 2009. ami/able at: http: 'n1 '.'.,!\.11\ tiQ:L£s.com·2Q!J903: I 6 \I mid' J(Jgitmn.html. 

9 
85 

effectuated consistent with non-refoulement obligations. If that is not possible, they 

should be resettled in third countries. 

Finally. the administration should transfer to third countries the four Syrian detainees and 

one Sudanese detainee who cannot be repatriated because federal law prohibits transfers 

to Syria and Sudan as state sponsors of terrorism. 

Congress has a role to play in facilitating the responsible closure ofGuantanamo. The 

annual defense bill reported out of the Senate Armed Services Committee presents the 

opportunity for a compromise approach on the resettlement or repatriation of detainees. 

While it requires the Secretary of Defense to take steps to mitigate the risks of transfer 

and to consult with Congress about decisions made, it properly places such decisions with 

the defense and intelligence agencies that are better situated than Congress to make those 

decisions. This legislation places unnecessary restrictions on the President's ability to 

close Guantanamo, but it is certainly an improvement on the current absolute bar on 

transferring detainees to the U.S. 

B. Disposition of the 34 detainees suspected of criminal conduct and slated for 

prosecution. 

The Guantanamo Review Task Force designated 34 of the remaining 166 detainees at 

Guantanamo as eligible for prosecution before either a federal court or military 

commission. Recent federal appellate court decisions have overturned two military 

commission convictions because the crimes for which the detainees were convictedmaterial support and conspiracy- were not internationally-recognized war crimes at the 

time of the offense.:>:> As a result, there may now be only twenty men who could face 

trial by military commission,23 though they and other detainees in this category could 

possibly face prosecution in an Article lil federal court should Congress permit transfers 

to the United States for prosecution. In addition, the current 9/11 cases and the case of 

the alleged USS Cole bomber before military commissions have been beset with scandal 

(the CIA was discovered to have the ability to censor the proceedings)24 and legal 

uncertainty (the presiding judge could not even rule whether the constitution applies).25 

22 For example. the D.C. Circuit recently overturned a military commission conviction in Hamdan\'. C'nited 

States (lfamdan II). because the charge in that case-material support tor terrorism--<:ould not be 

considered an internationally recognized war crime at the time ofthe alleged criminal conduct. In a similar 

case, AI-Bahlul1•. c:niled States. the D.C. Circuit overturned another military commission conviction 

because a separate charge--<:onspiracy-also could not be considered an internationally recognized war 

crime. 

"Carol Rosenberg, ProsecuTor: (ourt ruling cuts 

HERALD. June 16. 2 0 I 3. ami I a hie a/: h.\!.Q;' .. '.l.Y'.~:.mtem.LiJ,;l:uJ.,L<;Q_m~2-~IJ.3J~0:i.H>:lmD.:l.lJ'L\:>.S!'_g!.l2J:::>:< . .'!.!I1.: 

rul ing-cuts.html. 04Carol Ro~;·berg. Guantanamojudge unplugs hidden censors from 9/// trial, MIAMI HERALD. January 

31. 2013. m·ailah/e at.· b.u.Jo: """ .miamiherai~''''Jll~2!.ll.l'ill.IJlJ .. ~lD.\l_:i_:l 'guantanamo-judgc-unplu~'= 

hiddcn.html. 

21 John Knefel. Justice at Guantanamo: From the Profound to the Absurd. ROLLING STONE. June 13.2013. 

availahfe at: hup: '\\ \\ \\_rollim.:stonc.com:politics 'ne\\ sijusticc-at-Quantanamn-thml-thc-prnfuund-to-thcilh.'.U.I.d:1tll)_(L0_]j . 

10 
86 

In order to resolve the cases of the 34 detainees in this category, Congress should pass the 

Senate version ofthe National Defense Authorization Act (S. 1197), reported out of the 

armed services committee, which removes the ban on use of Pentagon funds for transfers 

to the United States for prosecution, incarceration and medical treatment. The 

administration cannot currently issue national security waivers to ensure prosecution of 

these detainees; Congress must act. 

If transfers to the United States are again allowed, the administration should transfer 

those already facing military commissions at Guantanamo to military commission trials 

in the United States in order to facilitate the closing ofGuantanamo. Military 

commissions should be used only to resolve the legacy cases at Guantanamo, not to 

supplant Article lii federal courts, which have proven more muscular and adept in 

counterterrorism prosecutions. Article III courts have four times the number of 

substantive criminal laws available to them for use against terrorism suspects-not to 

mention more than two hundred years of experience and precedent on which to rely. 

The administration should therefore transfer any remaining detainees who can be charged 

with crimes to a civilian court in the United States, or to an appropriate foreign 

jurisdiction, where such transfers can be made consistent with applicable law. Ahmed 

Ghailani, a former Guantanamo detainee, was transferred to the Southern District of New 

York, convicted, and is now serving a life sentence. 

The administration should transfer those already convicted to any appropriate high 

security federal prison, which can safely house detainees. There are 355 terrorism 

convicts serving sentences in United States federal prisons, including the only 9/11 

defendant to stand triai-Zacarias Moussaoui-who was convicted in federal court and 

sentenced to life in prison as the alleged 20'11 hijacker on 9/11. Three Guantanamo 

detainees have already been convicted by military commission and are serving sentences 

at Guantanamo. 26 Those who suggest that detainees who have served their sentence 

would be set loose on the streets of America are misinformed. Any such person would be 

subject to mandatory deportation. 

C. Disposition of the 46 detainees that have neither been charged with a crime 

nor been cleared for transfer. 

The remaining 46 out of 166 detainees being held at Guantanamo will either have to be 

charged with a crime or, eventually, be released within some reasonable period of time at 

the end of combat operations in Afghanistan or some other appropriate marker of the end 

ofhostilities."7 That is what is required under the laws of war and our Constitution, and it 

is what we have done at the end of past conflicts. The United States transferred I 0,000 

26 Ali Hamza Ahmad Suliman al Bah lui, Majid Khan and Noor Uthman Muhammed. 27 Jean-Marie Henckaerts and Louise Doswald-Beck, International Committee of the Red Cross: Customary 

International Humanitarian Law 451. Vol 1, 2009. available at:~~' \\.icrc.nrg 'custnmanihh~n2 .. doc.~\ 1 ru! rule 128. 

II 
87 

prisoners to the Iraqi government at the end of the Iraq war,:::8 and has already transferred 

control of thousands of detainees in Afghanistan to that country's government.:::9 Finding 

a reasonable, lawful disposition for this group may be more challenging, but it is not 

insurmountable. 

First, the administration must initiate the Periodic Review Board hearings pursuant to 

Executive Order 13567 for eligible detainees immediately under the direction of the 

Secretary of Defense. No congressional action is needed to do this. These hearings 

should be completed in a timely and effective manner to determine whether each detainee 

is eligible for transfer. In an encouraging development, the Pentagon has announced that 

PRB hearings will begin soon, though it has not said when, or established a timeline for 

completing the hearings.30 

The Periodic Review Boards should, consistent with the interests of national security, 

afford detainees access to evidence. counsel and other markers of due process to ensure a 

thorough and accurate review. The boards could detennine that some number of men in 

this group is now eligible to be transferred because new evidence has surfaced, the 

political situation in their country has improved, their networks of influence have 

degraded, their health has deteriorated, or other factors, such that they no longer pose a 

significant risk. 

The administration should also provide Periodic Review Board hearings for any detainees 

who were previously slated for prosecution whom the administration no longer intends to 

prosecute. Timely and effective hearings should determine whether continued detention 

is necessary to protect against a significant threat to the security of the United States. 

The administration should also determine whether there are extant credible criminal 

charges in other foreign jurisdictions where the detainees could be tried. 

The administration should determine whether the I 0 Afghan detainees of the 46 held in 

this indefinite detention category can be repatriated to Afghanistan pursuant to a 

negotiated agreement with the Taliban or the government of Afghanistan. Likewise, the 

administration should determine whether the 26 Yemeni men held in this category can be 

transferred based on coordination with the state of Yemen. Long-term efforts by Yemen 

to institute a rehabilitation program could assist in the transition. 

Lastly, the administration could transfer some number ofGuantanamo detainees to the 

United States for continued detention or trial until the end of hostilities. Some have 

expressed concerns that doing so could embed the injustices ofGuantanamo's indefinite 

28 Ann Riley. US tran.!fers control ~{Camp Taji prison to Iraq authorities, JURIST. March 25.2010. 

m·ai!ah/e at: httn::· j urht.lm\ .pitt.cdu 1papcrchusc;20 1 {)i()3ius-trans!~rs-control-of .. camp-taj i.Php. 

""Rod Nordland. Michael R. Gordon and Alissa J. Rubin, Kar:ai Has Nothing but Praise for US. Lipan 

Bagram Prison Tran~{er. N.Y. TIMES, March 25,2013, available at: 

12 
88 

detention scheme in domestic practice. While we don't discount those concerns, we 

believe that with appropriate safeguards to ensure against the use of indefinite detention 

and military trial authorities for future captures, transfer of detainees to the United States 

is an acceptable option in furtherance of a broader effort to close Guantanamo. The 

Government Accountability Oftice has documented31 the high security prison facilities in 

the United States with capacity that could hold detainees. 32 

To the extent that the administration has not resolved the disposition of any detainees 

prior to the end of hostilities, the administration should repatriate or resettle these 

detainees at the end of combat operations in Afghanistan or some other reasonable 

marker of the end of hostilities. 

III. Conclusion 

In one sense. closing Guantanamo is a numbers problem-how to get from 166 to zero. 

Once there were 779 prisoners at Guantanamo. The Bush administration resettled or 

repatriated more than 500 of them. The Obama Administration has gotten that number 

dovm to 166, a majority of whom have been cleared for transfer by the Department of 

Justice, Department of Defense, Department of State. Department of Homeland Security, 

Office of the Director of National Intelligence, and Joint Chiefs of Staff. The remaining 

task is about managing risk to achieve an important national security objective on which 

there is bipartisan consensus. The risks of transfer can be mitigated; the risks of 

maintaining Guantanamo forever cannot. 

But in another sense, closing Guantanamo is about who we are as a Nation. As the 

President recently said: 

"I know the politics are hard. But history will cast a harsh judgment on this aspect 

of our fight against terrorism, and those of us who fail to end it. Imagine a future 

-ten years from now, or twenty years from now- when the United States of 

America is still holding people who have been charged with no crime on a piece 

of land that is not a part of our country. Look at the current situation. where we 

are force-feeding detainees who are holding a hunger strike. Is that who we are?" 

At a certain point, who we are as a Nation cannot be separated from what we do. 

Guantanamo is a symbol for many around the world of torture, injustice and illegitimacy. 

As the Cnited States winds down the war in Afghanistan, Congress and the President 

11 U.S. GOV'T AC'COUNTABILJTY OFFICE. GA0-13-31. GUANTANAMO BAY DETAINEES: FACILITIES AND 

FACTORS FOR CONSIDERATION IF DETAINEES WERE BROUGHT TO THE UNITED STATES (20 12). m·ailab/e at: 

http: 'i\\ \\\\ .~OJO.QP\. a:-.Sd'i '()60-'650032.pdL 32 Conditions of detention must be commensurate with those required by the "humane treatment" 

provisions of the Geneva Conyentions' Common Article 3. In addition, provisions of the Third and Fourth 

Geneva Conventions applicable to prisoners of war and civilians can provide substantial guidance for 

detention conditions that can be easily implemented to meet the security interest of the United States. No 

Guantanamo detainee should be subjected to conditions of confinement that are worse than what they are 

currently experiencing at Guantanamo. 

13 
89 

have the opportunity to transfom1 this legacy and restore America's reputation for justice 

and the rule oflaw. 

I urge you to align our actions with our ideals and work with the President to get this 

done. 

14 
90 

United States Senate Judiciary Committee 

Subcommittee on the Constitution, Civil Rights and Human Rights 

Senator Dick Durbin, Chairman 

"Closing Guantanamo: The National Security, Fiscal and Human Rights Implications" 

Wednesday, July 24,2013 

It has been more than 11 years since the Bush Administration established the detention center at 

Guantanamo Bay. In that time, l have spoken on the Senate floor more than 65 times about the 

need to close this prison. 

l never imagined that in the year 2013 not only would Guantanamo still be open, but some would 

be arguing that we should keep it open indefinitely. 

The reality is that every day that it remains open, Guantanamo prison weakens our alliances, 

inspires our enemies, and calls into question our commitment to human rights. 

Time and again, our most senior national security and military leaders have called for the closure 

ofGuantanamo. And listen to retired Air Force Major Matthew Alexander, who led the 

interrogation team that tracked down Al-Zarqawi, the leader of Al-Qacda in Iraq. Ilcrc is what 

he said: 

I listened time and time again to foreign fighters, and Sunni Iraqis, state that the number 

one reason they had decided to pick up arms and join AI Qaeda was the abuses at Abu 

Ghraib and the authorized torture and abuse at Guantanamo Bay .... It's no exaggeration 

to say that at least half of our losses and casualties in that country have come at the hands 

of foreigners who joined the fray because of our program of detainee abuse. 

In addition to the national security cost, every day that Guantanamo remains open, we arc 

wasting taxpayer dollars. According to updated information that I received from the Defense 

Department just yesterday, Guantanamo Bay detention costs for Fiscal Year 2012 arc $448 

million and for Fiscal Year 2013 the estimated costs are $454 million. 

In other words, we are spending $2.7 million per year for each detainee held at Guantanamo 

Bay! Compare that with the estimated $78,000 that it costs to hold a detainee in a federal 

supem1aximum security prison. 

This would be fiscally irresponsible during normal economic times, but it is even worse when the 

Defense Department is struggling to deal with the impact of sequestration, including furloughs 

and cut backs in training for our troops. 

Every day, the soldiers and sailors serving at Guantanamo Bay are doing a magnificent job under 

diffieult circumstances. But they are being asked to carry out an unsustainable policy of 

indefinite detention because we have failed to close Guantanamo prison. 
91 

Every day at Guantanamo Bay, dozens of detainees are being force-fed, a practice that the 

American Medical Association and International Red Cross condemn and that a federal judge 

recently found to be "painful, humiliating, and degrading.'' 

As President Obama asked, in his May 23'd national security speech: "Is this who we are? Is that 

something our Founders foresaw? Is that the America we want to leave our children? Our sense 

of justice is stronger than that."' 

It is worth taking a moment to recall the history of Guantanamo Bay. 

After 9/1 L the Bush Administration decided to set aside the Geneva Conventions, which have 

served us well in past conflicts, and set up an offshore prison in Guantanamo in order to evade 

the requirements of our Constitution. 

John Yoo \Hole in a December 28,2001, Office of Legal Counsel memo to Jim Haynes that 

Guantanamo was the "legal equivalent of outer space''- a perfect place to escape the law. But 

others, even within the Bush Administration, disagreed. 

General Colin Powell, who was then the Secretary of State, objected. He said disregarding our 

treaty obligations, quote, '·will reverse over a century of U.S. policy and practice ... and 

undermine the protections of the law of war for our own troops ... It will undermine public 

support among critical allies, making military cooperation more difficult to sustain.'' 

Then, Defense Secretary Donald Rumsfeld approved the use of abusive interrogation techniques 

at Guantanamo. 

These teclmiques became the "bedrock'' for interrogation policy in Iraq, according to a Defense 

Department investigation. 

The horrible images that emerged from Abu Ghraib have seared into our memories some of these 

techniques, including forced nudity, threatening detainees with dogs, and placing detainees in 

painful stress positions. 

Guantanamo became an international embarrassment, and the Supreme Court repeatedly struck 

down the Administration's detention policies. As Justice Sandra Day O'Connor famously wrote 

for the majority in the Hamdi case, "A state of war is not a blank check for the President."' 

By 2006, even President Bush said that he wanted to close Guantanamo. And in 2008, the 

Presidential candidates of both parties supported closing the prison. 

Within 48 hours of his inauguration, President Obama issued Executive Orders prohibiting 

torture and setting up a review process for all of the Guantanamo detainees. 

I'll be the first to acknowledge that the Administration could be doing more to close 

Guantanamo. Last week. Senator Feinstein and I met with senior White House officials to 

discuss what they are doing under existing law to transfer detainees out of Guantanamo. 
92 

But let's be clear. The President's authority has been limited by Congress. We have enacted 

restrictions on detainee transfers -including a ban on transfers to the United States- that make it 

nearly impossible to actually close the facility. 

It"s time to lift these restrictions and move forward with shutting do"'n Guantanamo prison. We 

can transfer most of the detainees to foreign countries. And we can bring the others to the 

United States, where they can be tried in federal court or held under the law of war until the end 

of hostilities. 

Look at the track record. Since 9/11, nearly 500 terrorists have been tried and convicted in 

federal courts and arc now being safely held in federal prisons. And no one has ever escaped 

from a federal supermax prison or a military prison. 

In contrast. only six individuals have been convicted by military commissions and two of these 

convictions have been overturned by the courts. i\nd today, nearly twelve years after the 9/11 

attacks, the architects of the 9/11 attacks are still awaiting trial at Guantanamo. 

During his confirmation hearing, I discussed this with Jim Comey, who was Deputy Attorney 

General in the Bush Administration and has been nominated to be Fl3I Director. Mr. Comey told 

me, ••we have about a 20-year track record in handling particularly AI Qaeda cases in federal 

courts ... the federal courts and federal prosecutors are effective at accomplishing two goals in 

every one of these situations: getting information and incapacitating the terrorists.'' 

Some may argue that we cannot close Guantanamo because of the risk that some detainees may 

join engage in terrorist activities. But studies show that the recidivism rates in U.S. prisons are 

more than 40 percent, far higher than the rate for Guantanamo. 

And the often-quoted recidivism estimate includes hundreds of detainees who were transferred 

during the Bush Administration. before a strict process was put in place to screen detainees for 

transfer, work with host countries to mitigate any risks and implement appropriate security 

measures. 

No one is suggesting that closing Guantanamo is risk free or that no detainees will ever engage 

in terrorist activities if they are transferred. But if a former detainee does return to terrorism, he 

will likely meet the fate of Saeed ai-Shehiri, the number 2 official in AI Qaeda in the Arabian 

Peninsula, who was recently killed in drone strike. 

The bottom line is that our national security and military leaders have concluded that the risk of 

keeping Guantanamo open far outweighs the risk of closing it because the facility continues to 

harm our alliances and serve as a recruitment tool for terrorists. 

It's time to end this sad chapter of our history. II years is far too long. We need to close 

Guantanamo. 
93 

Statement of Senator Patrick Leahy (D-Vt.), 

Chairman, Senate Judiciary Committee, 

Hearing on 

"Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications" 

July 24, 2013 

I want to thank Senator Durbin for holding this hearing today on the important matter of closing 

the detention facility at Guantanamo Bay, Cuba. It is long past time that we take action and end 

this unfortunate chapter in our nation's history. For over a decade, the indefinite detention of 

prisoners at Guantanamo has contradicted our most basic principles ofjusticc, degraded our 

international standing, and harmed our national security. It is shameful that we are still debating 

this issue. 

As long as the detention facility at Guantanamo I3ay remains open it will continue to serve as a 

recruiting tool for terrorists and discredit America's historic role as a human rights leader. 

Countries that champion the rule oflaw and human rights do not lock away prisoners indefinitely 

without charge or trial. They do not strap prisoners down and forcibly feed them against their 

will. We condemn authoritarian states that carry out such practices and we should not tolerate 

them for even our worst enemies. 

We must also face the hard economic truth about the cost ofGuantanamo. At a time of deep 

budget cuts and furloughs at the Department of Defense, we continue to spend almost $1 million 

annually per detainee at Guantanamo. By comparison, it costs less than $65,000 per year to hold 

a prisoner at America's most secure Federal prisons. which have housed hundreds of convicted 

terrorists for decades. 

And despite calls by President Obama to close the facility, the military is set to spend hundreds 

of millions of dollars more to overhaul the compound. For more than a decade, precious 

manpower, resources, and money have been squandered on this long-failed experiment instead of 

being directed to important national security missions at home and abroad. This waste must end. 

Furthermore, the military commission system for trying these detainees is not working. Federal 

courts have recently overturned two convictions at Guantanamo in opinions that will prevent the 

military from bringing conspiracy and material support charges against detainees- something 

that even the lead military prosecutor at Guantanamo himself acknowledged. 

These same charges can be pursued, however. in Federal courts where our prosecutors have a 

strong track record of obtaining long prison sentences against those who seek to do us 

harm. Since 911 1, Federal courts have convicted nearly 500 terrorism suspects who remain 

safely and securely behind bars. 

The status quo at Guantanamo is untenable and I appreciate President Obama's renewed vow to 

shutter this unnecessary, expensive, and inefficient prison. His decision in June to appoint a new 

special envoy at the State Department to coordinate efforts to repatriate detainees is a positive 

step towards closing the facility. So too are reports that the Periodic Review Boards will soon 
94 

begin reviewing cases. I hope and expect that the President's leadership will result in ongoing 

forward movement by the Executive Branch. 

But in order for the President's plan to be successful, Congress must also do its part. I was 

pleased to see the common sense provisions that were included in this year's National Defense 

Authorization Act that \vas recently reported by the Senate Armed Services Committee. While 

incremental, these provisions would make important changes to the onerous transfer certification 

requirements and prohibitions that have made closing Guantanamo all but impossible. 

I look forward to working with other Members of Congress to ensure that these changes become 

law. We must remove the unnecessary statutory impediments that have ground to a halt the 

process of transferring detainees. 

I remain determined to close this facility. It is the fiscally responsible thing to do, it is the 

morally responsible thing to do, and it is necessary to strengthen our national security. I thank 

Senator Durbin for his continued leadership and persistence on these issues and look forward to 

hearing from the witnesses here today. 

##### 

2 
95 

QUESTIONS FOR THE RECORD 

For Major General Paul Eaton 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

.July 24,2013 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining, and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

o Do you believe the United States currently has a clear policy for handling foreign 

terror detainees? 

o What key elements would you focus on in crafting detainee policy for foreign 

terror suspects? 
96 

QUESTIONS FOR THE RECORD 

For Lieutenant Joshua Fryday 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

July 24, 2013 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining. and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

o Do you believe the United States currently has a clear policy for handling foreign 

terror detainees? 

o What key elements would you focus on in crafting detainee policy for foreign 

terror suspects? 
97 

QUESTIONS FOR THE RECORD 

For Frank Gaffney 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

July 24, 2013 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining, and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

o Do you believe the United States currently has a clear policy for handling foreign 

terror detainees? 

o What key clements would you focus on in crafting detainee policy for foreign 

terror suspects? 
98 

QUESTIONS FOR THE RECORD 

For Elisa Massimino 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

July 24, 2013 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining, and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

o Do you believe the United States currently has a clear policy for handling foreign 

terror detainees? 

o What key elements would you focus on in crafting detainee policy for foreign 

terror suspects? 

Article Ill Courts 

• New laws have been passed and Article lll court procedures have been updated over the 

past several years to try to enhance the legal system's ability to successfully try terrorism 

suspects. 

o Are Article III courts better able to handle terrorism cases today than before 9/11? 

Which changes do you think are most significant? 
99 

QUESTIONS FOR THE RECORD 

For Brigadier General Stephen Xenakis 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

July 24, 2013 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining, and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

o Do you believe the United States currently has a clear policy for handling foreign 

terror detainees? 

o What key elements would you focus on in crafting detainee policy for foreign 

terror suspects? 
100 

QUESTIONS FOR THE RECORD 

:For Major General Paul Eaton 

From Senator Amy Klobuehar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND 

HUMAN RIGHTS IMPLICATIONS" 

July 24,2013 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our 

country's history. But we also need to look to the future. We are almost certain to 

face continued threats from transnational terrorists who will try to attack the 

United States at home and overseas. We will end up capturing, detaining, and 

interrogating some of them. We need to ensure we have a clear policy for how to 

handle them. 

o Do you believe the United States currently has a clear policy for handling 

foreign terror detainees? 

Yes. 

For those non-US citizens who commit criminal acts in the United States, whether 

categorized as acts of terror or not, the United States Federal Court system, specifically 

under Article III, has jurisdiction. Our judicial system has proven itself effective and 

efficient in handling hundreds of cases of foreigner perpetrated acts of criminality/terror. 

Our judges have managed to maintain the dignity of the courts, the proper handling of 

classified information and proper case disposition. Our prosecutors have achieved a very 

high conviction rate and those convicted of crimes are incarcerated in our federal prison 

system, where none have escaped. 

For those non-US citizens who commit criminal/terror acts against the United States 

outside US borders, we have systems in play under US law and covered by many bilateral treaties, to kill or capture the perpetrator. Should the perpetrator be captured, we 

have mechanisms to bring him/her back to the United States for detention and trial in the 

same manner conducted for criminal/terror acts committed inside our borders. 

The Guantanamo Detention Facility is an unnecessary and expensive alternative to the 

above discussion. Its existence is in fact a deterrent to the extradition of 

criminals/terrorists for trial and detention, and a remarkably effective recruitment tool for 

non-state terrorist organizations. 
101 

• What key elements would you focus on in crafting detainee policy for foreign 

terror suspects? 

The most important element is to get the military out of what is really a civilian law 

enforcement problem. Non-state criminal/terror actors, or, un-privileged belligerents 

(unlawful combatant, illegal combatant), should be tried in the US judicial system. Those 

who directly engage in armed conflict in violation of the laws of war should be detained 

and tried according to the US Constitution and our very mature Article Ill Federal Courts. 

Articles 4 and 5 ofGCIII are very clear in distinguishing between privileged and unprivileged combatants. 

A second element is to better illustrate to the American people and to our allies the 

propriety of our judicial system to handle cases that should remain in our domestic courts 

and to dispel the notion that overseas detention and the use of the US military to 

adjudicate criminal/terror acts is counter-productive to US national interests. 
102 

QUESTIONS FOR THE RECORD 

For Elisa Massimino 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

.July 24,2013 

Detainee Policy 

Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining, and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

o Do you believe the United States currently has a clear policy for handling 

foreign terror detainees? 

As the war winds down in Afghanistan, law of war detention will no longer be a 

viable policy option. Outside of Afghanistan. the Obama administration had relied on 

the improved capacity and capability of a whole of government approach to capture, 

detain. and interrogate terrorism suspects to protect Americans and American 

interests. 

First, the Obama Administration has relied on U.S. federal courts to prosecute 

terrorism crimes. Article Ill federal courts have successfully adjudicated nearly 500 

international terrorism cases since 9/11 1

, 67 of which involved foreign terrorism 

suspects apprehended overseas 2

• According to a report by the Government 

Accountability OfJice, 98 detention facilities within the United States already hold 

373 individuals convicted of terrorism or terrorism-related offenses. 3 The United 

States has collaborated with our allies to extradite terrorism suspects for prosecution 

in the United States, including the recent cases of Abu Ghaith, Osama bin Laden's 

son-in-law, and Spin Ghul, an alleged al Qaeda operative. Article 111 prosecutions are 

i Dcp't of Justice Nat"! Security Div .. Statistics on {;'nscaled Terrorism and Terrorism-Related C'onrictions 9 1/,01-

12'31.'11. available at: http:·.\\'''' .humanrii.d1t~lir~Lor!:! ·\Yp-t:ontL~nL·unlo~lds/J)()J-Tcrrori.-,m-RchltcJDeborah Pearlstein. Counlelterrorism in Coutt. OPINIO JURIS. March 25.2013. arailable at: 

httr: ·· ()ri nioj uri s.or2 f20 l3/0.i ·'25:'eounh .. :rtcrrorism-in-cL)Urt,' . 

.1 U.S. GOV'T ACCOUNTARI!.ITY OFFICE. GAO-I3-3l. GUANTANAMO RAY DETAINEES: FACILITIES 

AND FACTORS FOR CONSIDERATION IF DETAINEES WERE BROUGHT TO THE UNITED STATES 

(2012). available at.· http://\\ \1\\ .cwo.gov/assets/660/650032.pdf. 
103 

a marked improvement over indefinite detention and military commissions at 

Guantanamo, which undermine U.S. global leadership on human rights, pose 

substantial legal problems, and compromise national security. 

Second, the Obama administration has worked closely with foreign governments to 

facilitate prosecutions of terrorism suspects in their own jurisdictions. Through the 

Global Counterterrorism Forum-which brings together 29 countries plus the 

European Union-and bilateral assistance, the United States has helped lay a 

foundation for the lawful prosecution of thousands of terrorism suspects overseas 

since 9/ll. 

Third, the Obama administration has established a high-value interrogation group 

(HIG) that brings together key assets from the various law enforcement, defense, and 

intelligence agencies to conduct safe, lawful, and effective interrogations. Elements 

of the HIG have been deployed at least 14 times\ including to interrogate suspects in 

the Times Square and Boston Marathon bombings, as well as terrorism suspects 

apprehended overseas. 

Lawful interrogations and prosecutions have produced valuable intelligence that has 

kept Americans safe, including: telephone numbers and email addresses used by al 

Qaeda and other terrorist groups; information about al Qacda communications 

methods and security protocols; information about their recruiting and financing 

methods; the location of al Qaeda training camps and safe houses; information on al 

Qaeda weapons programs; the identities of operatives involved in past attacks; and 

information about future plots to attack U.S. interests. 5 

o What key elements would you focus on in crafting detainee policy for foreign 

terror suspects? 

The end of war in Afghanistan will require the United States to determine lawful 

dispositions of all law of war detainees. Current detainee policy should focus on how 

to resolve the remaining cases of the 166 Guantanamo detainees. Human Rights First 

produced a white paper, ''Guantanamo: A Comprehensive Exit Strategy'' that builds 

on the comprehensive framework established by the Obama administration in the 

2010 Guantanamo Review Task Force. 6 

'Carol Cratty and Pam Benson. Special Terror Interrogation Group Used 14 Times in Last Two fears. CNN. March 

7. 2012. available at: http:i 'secur]l\ .hloQs.cnn.c0rW'20 12.·03·07 \pecia!-terror-intcnYH!.atinn-u.wup-!!~.!,,\~:.L-f.:1im£5~in-: 

!J">t-tWO-\Car:>. 

5 David Kris. Law Enforcement as a Counterterrorism Tool. JOURNAL OF NATIONAL SECURITY LAW AND 

POLICY. June 2011. at 85. available at:=====":""-'-'=='-""="'-'-"'-=""-':'--"''-''"-"'"-"'''"'·'""''·='-'· 6 Guantanamo: A Comprehensive Exit 
104 

Article III Courts 

New laws have been passed and Article III court procedures have been updated over the 

past several years to try to enhance the legal system's ability to successfully try terrorism 

suspects, 

o Are Article III courts better able to handle terrorism cases today than before 

9/11? Which changes do you think are most significant? 

Federal courts have successfully adjudicated nearly 500 international terrorism 

related cases since 9/11 7

, 67 8 of which involved foreign terrorism suspects 

captured overseas. As Human Rights First has documented in a report, In Pursuit 

(Jf'Jusrice 9

, written by experienced federal prosecutors, federal courts have the 

history, experience, and precedent to successfully prosecute terrorism cases, in 

sharp contrast to military tribunals. Since 9/11. there have been important, if 

controversial, reforms to the substantive and procedural law governing Article III 

terrorism prosecutions, including: changes to the Foreign Intelligence 

Surveillance Act to allow additional collection and usc of foreign intelligence 

intormation for prosecutions; clarification of the scope of certain terrorism 

crimes-such as material support for terrorism-to overseas conduct; and 

refinements to methods for handling classified information in court. 

7 Dep't of Justice Nafl Security Div .. Statistics on 1/nsealed Terrorism and Terrorism-Related Conrictions 9il I OIl 2:'3 1/11< m·ailable at.' http::\\\\\\ .hum::mrightslirst.on;hqJ-C(H1tcnt/uplt)3ds f)()J-Terrorism-Re]JteJ-

( 'nm ictiQ.!Ji~J 8 Deborah Pearlstein, Counterterrorism in Court, OPINIO JURIS. March 25. 2013, available at: 

htl p:, -'orinioj uri:'-.oro:./20 13 '03 /25. 'counterterrorism-in-court i. 

9 RICHARD B. ZABEL AND JAMES J. BENJAMIN. IN PURSUIT OF JUSTICE 65 (Human Rights First 2008). 
105 

QUESTIONS FOR THE RECORD 

For Brigadier General Stephen Xenakis 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATTONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

July 24, 2013 

Responses inserted BG (Ret) Stephen N. Xenakis, M.D. 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining, and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

o Do you believe the United States currently has a clear policy for handling foreign 

terror detainees? 

Dr. Xenakis responds Apart from the anomaly ofGuantanamo, the United States 

appears to have a policy preference for interrogation and prosecution of terrorism 

suspects by civilian authorities in the domestic criminal justice system. Any policies 

being considered or developed may not be accessible to me as a medical expert. 

Nonetheless, I presume that establishing effective policies and practices for handling 

foreign terror detainees would help allay the fears and anxieties of American citizens 

over prosecuting alleged terrorists in the continental United States. 

o What key elements would you focus on in crafting detainee policy for foreign 

terror suspects? 

Dr. Xenakis responds Effective policies aimed at handling foreign terror suspects are 

comprehensive. Based on my extensive interviews, assessments, and reviews of 

interrogation records of detainees in Guantanamo, basic elements for crafting detainee 

policy for foreign terror suspects include: 

I. Establishing the full range of programs and policies for apprehending, 

interrogating, and detaining suspects (including releasing them when 

appropriate). The elements of effective detainee policy are interdependent and 

do not stand alone from each other. 

2. Establishing effective and proven interrogation practices that do not involve 

abusive, cruel, or inhumane treatment or torture. Good practices explicitly 

reject the proposals and so-called enhanced interrogation techniques (ElTs) of 
106 

the CIA. They conform to tactics and techniques typically used by the FBI and 

experienced operators in human intelligence. 

3. Establishing procedures and practices for interrogation that are differentiated 

from gathering evidence for future prosecution. The debate over closing 

Guantanamo indicates that the public in general, and perhaps the Congress, do 

not distinguish between gathering intelligence on the battlefield and collecting 

evidence tor court proceedings. 

4. Establishing policies and practices that realistically ascertain the 

dangerousness and commitment to terrorism of the detainee at the point of 

apprehension. Despite the implementation of the High Interest Group (HI G), 

usual current policies and practices lump most detainees into a broad category 

of"terrorist" and indiscriminatingly attribute dangerousness to them. These 

policies lack realistic analysis of the background, circumstances, or battlefield 

conditions when the detainee was captured. 

5. Effective practices for handling detainees must grade, more effectively than 

current procedures, the dangerousness and military threat of suspects when 

apprehended. My review of interrogation logs and collateral records reveals 

that military authorities did not distinguish between the leadership and 

frontline actors. The military and associated courts (The Military 

Commissions) have not differentiated the "generals and colonels" from the 

"sergeants and privates." 

6. Expediting the transfer of"clearcd" detainees from Guantanamo. Effectively 

crafting detainee policy for foreign terror suspects involves solid procedures 

for apprehending and prosecuting suspected terrorists and releasing them 

expeditiously when appropriate. 

7. Stopping force-feeding of the hunger strikers. Hunger strikers are not 

engaging in tactics of asymmetrical warfare, but expressing their despair over 

indefinite detention. Effective policies for foreign terror suspects require 

appropriate release when not prosecuted or convicted for terrorist acts. 

8. Guantiinamo lacks an effective program for rehabilitation and transfer to 

appropriate locations of "cleared" detainees. Effective policy for foreign terror 

suspects requires backend programs for rehabilitation and transfer of detainees 

after detention. 

9. The Government sequester of funding has downgraded operations in 

Guantiinamo. It has constrained the base in its ability to sustain adequate 

capability for detaining foreign terror suspects for many years. My recent visit 

of August 12-16 indicates that the base does not have adequate medical 

support for the current population that is aging and incurring more serious 

illnesses. The detainees increasingly manifest symptoms of serious cardiac 

disease, cancer, and diabetes. The absence of standard diagnostic testing for 

seriously ill detainees adversely impacts medical support to this aging 

population. 

2 
107 

Thank you for the opportunity to respond to these questions. 

Respectfully, 

Stephen N. Xenakis, M.D. 

Brigadier General (Ret), U.S. Army 

3 
108 

FRANK GAFFNEY'S RESPONSES TO 

QUESTIONS FOR THE RECORD BY SEN. KLOBUCHAR 

1) Do you believe the United States currently has a clear policy for 

handling foreign terror detainees? 

The only really clear aspect of U.S. policy towards foreign terror detainees 

seems to be that we will not pennit them to be brought to Guantanamo Bay. 

This is deplorable insofar as it has several undesirable repercussions: 

Its practical effect is to incentivize our anned forces and intelligence 

personnel to kill, rather than capture, jihadists. Of course, doing so precludes 

the opportunity to debrief or interrogate them, foreclosing a source of 

potentially decisive infonnation about the enemy's capabilities and 

intentions. 

Under existing U.S. policy, if, for whatever reason, such terrorists are 

captured, we face two unsavory prospects: a) confining them in foreign 

detention centers over which we may have little or no control - and from 

which they may well be released, with or without the host country's assent; 

or b) bringing them into the United States, where they may benefit from 

constitutional rights and judicial proceedings that eould severely restrict or 

actually preclude interrogation, and may result in their being freed, possibly 

inside the United States. 

2) What key elements would you focus on in crafting detainee policy for 

foreign terror suspects? 

I would respectfully suggest that we need a clear policy towards foreign 

terror detainees that places a premium, where practicable, on capturingrather than killing- them and incarcerating them in a place with the 

following characteristics. It must be: secure and totally within U.S. control; 

sited and operated in such a way as to minimize risk to our service personnel 

and American communities; and located so as to minimize the possibility 

that federal judges will become involved in the disposition and treatment of 

such detainees, and be tempted improperly to apply a law enforcement 

paradigm with regard to such questions. 

Of course, Guantanamo Bay has all of these attributes. I am unaware of 

another facility anywhere in the world of which that can be said. 
109 

QUESTIONS FOR THE RECORD 

For Lieutenant Joshua Fryday 

From Senator Amy Klobuchar 

"CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL, AND HUMAN 

RIGHTS IMPLICATIONS" 

July 24, 2013 

Detainee Policy 

• Closing Guantanamo is important and would end a troubling period in our country's 

history. But we also need to look to the future. We are almost certain to face continued 

threats from transnational terrorists who will try to attack the United States at home and 

overseas. We will end up capturing, detaining, and interrogating some of them. We need 

to ensure we have a clear policy for how to handle them. 

Question: 

Do you believe the United States currently has a clear policy for handling foreign terror 

detainees? 

Answer: 

It is outside my current duties to comment on all policies for handling foreign terror detainees 

outside ofGuantanamo Bay, Cuba. 

However, the situation in Guantanamo, as it currently stands, reflects an untenable and 

unsustainable policy of indefinite detention. Accordingly, I believe our policies for handling 

foreign terror detainees should be amended and clarified. 

We face serious threats. Our enemies must be pursued with the utmost intensity and vigilance. 

Criminals and terrorists should be prosecuted and jailed. Our enemies must be clear about our 

steadfast and dogged commitment to bring them to justice, and they must know we will not stop 

until we do. 

At the same time, the law and our values require that we put the men in Guantanamo on trial and 

prove they are guilty. As a nation, we believe in due process, and as we amend these policies, 

we should always strive to be faithful to our most cherished values. 

Question: 

What key elements would you focus on in crafting detainee policy tor foreign terror suspects? 
110 

Answer: 

It is outside my current duties to comment on all policies, future or present, for handling foreign 

terror detainees outside ofGuantanamo Bay, Cuba. 

The situation in Guantanamo is unsustainable and demands our policies be revisited, amended 

and clarified. We arc a nation of laws and high moral standards. We are a people of principle 

who believe in due process and innocence until proven guilty. On the eve of the Revolutionary 

war, we held trials for British Soldiers responsible for the Boston Massacre. BeJore we were 

even a nation, our founding father John Adams extolled the virtues of a people governed by the 

Rule-of-Law when he served as one of the British soldiers' defense lawyers. He set the example 

for the type ofjustice this new country would stand for. 
111 

'REPRI 

L .J 

Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications 

July 24, 2013 

Hearing Statement 

Dear Senator Durbin and members of the Committee, 

Thank you for considering this statement and the enclosed letters from family members of some of 

Reprieve's current and former clients in Guantanamo. 

Only one letter is about a free man: the journalist Sami ai-Hajj. Mr. ai-Hajj was seized in 2001 

covering the Afghan war for the Arabic news channel ai-Jazeera. He was held without charge in 

Guantanamo until May 2008. At the time of his release, Sami had been on hunger strike for over a 

year. His young son, Mohammed, was a baby when Sami was taken, and effectively met his father on 

his release to Sudan. 

The other prisoners remain in Guantanamo. Each relative speaks powerfully of the damage to 

America's reputation that Guantanamo still causes, to say nothing of the pain. To these sons, 

daughters, brothers, and mothers, their loved one might as well be a ghost, because they have no 

idea when he will come home. 

Most of these prisoners have been on a hunger strike for months, as Sami was many years ago. This 

distresses their families at least as much as their original detention; they see it as a sign that their 

loved one no longer believes the President's concrete promise to set him free. 

Reprieve is an organization based outside the United States, but has a number of security-cleared 

American staff. This offers us a unique perspective on Guantanamo's true cost. We work regularly 

with partners across the Muslim world- from Tunisia to Yemen to Pakistan. In the majority of the 

countries our American staff visit, Guantanamo remains the single greatest symbol of a US that, in 

the words of the President, 'flouts the rule of law.' 

The current crisis in Guantanamo is the worst this Administration is likely to face and it is unlikely to 

go away any time soon. At the moment, below the Presidential level, we have seen military officials 

insisting on a degrading genital search policy and periodically claiming, oddly, that no force-feeding 

has taken place; Justice Department lawyers briefing that Guantanamo prisoners are non-persons 

with no free exercise rights; and, most importantly, not a single release since the start of the strike. 

Numerous prisoners report that the situation at the base now is the worst of this Presidency and 

rivals some of the more troubled years under President George W. Bush. Our clients' fundamental 

grievance, however, has less to do with their current conditions than it does with their loss offaith 

that they will ever be released. It was not always so: hope surged in many of these men in January 

2009, when President Obama signed his Executive Order to close Guantanamo. When a unanimous 

panel of intelligence agencies and the Defense and State Departments cleared them, many felt they 

would finally go home. 

Reprieve, PO Box 72054 

London UK, EC3P 3BZ 

Chair: Ken Macdonald QC 

T +44 (0)20 7553 8140 

F +44 (0)20 7553 8189 

info@reprieve.org.uk 

www.reprieve.org.uk 

Patrons: Alan Bennett, Julie Christie, Martha lane Fox, Gordon Roddick, 

Richard Rogers, Ruth Rogers, Jon Snow, Marina Warner and Vivienne Westwood 

Reprieve 1s a, chantall!e company limited by guaranleb registered in England and Wat.es. Registered Charity No.1114900. 

Registered Company No.57n8J1. Registered Off1ce 2-1). Cannon Street London EC4M GYH, 
112 

:REPRIEVE _j 

All of this reflects poorly on the United States in the wider world. The government's response to the 

ongoing hunger strike will not merely determine President Obama's legacy; it will shape America's 

image in the Muslim world for years to come. 

There are concrete steps available to end the strike. The most obvious- the one that most prisoners 

have said will persuade them to eat again- is the transfer of a cleared man to a safe place. 

History will judge the Administration harshly if it leaves the Guantanamo detainees in stasis for many 

more months. History will be equally unkind, however, if the Administration seeks to silence 

prisoners' protest by sending them to autocracies where they are likely to be abused. Most of the 

families whose letters are enclosed hail from close US allies in Europe. Europe has a solid recordprobably the best record- of successfully reintegrating ex-Guantanamo prisoners. 

It is time to send a cleared man home to his family, be it Shaker Aamer to Britain or Nabil Hadjarab to 

France. This will end the strike without strife, or further anguish to these families. 

Thank you for your timely and needed debate of these issues. 

Cori Crider 

Strategic Director 

Reprieve 

Reprieve, PO Box 72054 

London UK, ECJP JBZ 

Chair: Ken Macdonald QC 

T +44 (0)20 7553 8140 

F +44 (0)20 7553 8189 

info@reprieve.org.uk 

www.reprieve.org.uk 

Patrons: Alan Bennett, Julie Christie, Martha Lane Fox, Gordon Roddick, 

Richard Rogers, Ruth Rogers, Jon Snow, Marina Warner and Vivienne Westwood 
113 

Detainee: Adel AI-Hakimi 

ISN: 168 

Nationality: Tunisian 

Family member: Emad AI-Hakimi (brother) 

Residence of family member: Tunisia 

Dear Senators, 

My brother, Adel AI-Hakimi, has been in Guantanamo Bay since 2002. Eleven years is too 

long to be away from your loved ones. 

Adel has a daughter whom he has never met. It's been hard on her, growing up without a 

father, and of course it is devastating for him. 

The first time they ever spoke together was over an ICRC Skype call a couple of months 

ago. They were both so happy to finally be able to speak, but after eleven years, how do 

you even begin to have a relationship with your child from Guantanamo? When I speak 

to Adel from time to time, he gets the saddest when he speaks of his little girl. 

My family and I have never stopped planning for his return-even though we have no 

idea when it will be. We can't stop hoping. Recently, I added a floor to the family home 

for Adel to live in when he returns. My mother, who has become elderly and frail waiting 

for him, does her best to retain her patience and hope. We all fear that she will die 

without seeing him again. 

The worst part is that we don't know how much longer he will be in Guantanamo or if he 

will ever be released. We have been waiting for over a decade for some sort of 

resolution. We never knew that this type of injustice could happen in America. Adel has 

a simple dream: to return to Tunisia, to start a business, and to be a good father. How 

much longer will we have to wait before we can move on with our lives? 

On behalf of my brothers, sisters, mother and his daughter l ask that you move forward 

and resolve Adel's case so that we will be able to move forward with our lives. 

Thank you. 

Sincerely, 

Emad Al-Hakimi 
114 

Detainee: Nabil Hadjarab 

ISN: 238 

Nationality: Algerian 

Family member: Ahmed Hadjarab (uncle) 

Residence of family member: France 

Dear members of the United States Senate, 

It is with great honour that I am writing to you today on behalf of my nephew Nabil 

Hadjarab, imprisoned in Guantanamo since 2002. I understand that he has been on 

hunger strike for over 150 days. 

My name is Ahmed Hadjarab.l have lived in France since 1961 with my wife and my five 

children. All of Nabil's remaining family are French. After the death of Nabil's father in 

1992, he became like my sixth child: I took him under my responsibility. 

Since the hunger strike begun, Nabil tells me that he has lost around 44lbs. The 

Guantanamo staff force-feed him twice a day, in a way he finds brutal and degrading. 

On our occasional Skype calls, Nabil describes to me what he has to go through every 

day. Soldiers make him come out of his cell, and strap him to a chair. A member of the 

medical staff then inserts a tube in his nose, all the way down to his stomach while his 

head is held back. 

Nabil has been going through this barbaric procedure twice a day, every single day for 

over four months. It is very hard for me, helpless here, to hear him describe his 

suffering. Every time, it breaks my heart. Nabil's health is seriously threatened, he is 

extremely weak and his morale is at a low point. Cleared for release in 2007, and again 

in 2009, I do not understand why he is still in there. 

On April 26, I went to Basel, where through the International Committee of the Red 

Cross I have occasional Skype calls with Nabil. But that day, I couldn't hear his voice. I 

was told that Nabil was too weak to even take the call; that in his state, he could barely 

stand up. This episode made me much more anxious. Nabil had always taken care of 

himself. He always put his health and his body first. In my opinion, this gesture, this 

hunger strike, shows a profound distress, a loss of hope. 

Nabil is slowly giving up on any hope of a brighter future. It's very upsetting, but Nabil 

says he is slowly dying in Guantanamo, even though he has been cleared. My feeling is 

that his unlimited and indefinite detention, the constant uncertainty he is confronted to, 

is psychological torture. And even though I am not the main victim in this story, knowing 

that the one I consider to be my son is suffering so much has a terrible impact on me. I 

am broken, my appetite is gone, and I barely sleep. I have reached the point of 

psychological exhaustion. 
115 

For over ten years, l have lived in constant anxiety. Knowing that Nabil is over there, 

losing a little more of his meagre hope each and every day, causes me great pain. 

In all honesty, and with the greatest respect to all of you who are reading this letter now, 

I must admit that my perception of the United States of America has been severely 

tarnished by this issue. When in 2002, I was told that Nabil was detained by the 

Americans; I thought that at least he would have a right to a fair trial. I thought his rights 

would be respected and that justice would prevail. What I feel today is mostly 

incomprehension. How can this nation, one that prides itself of defending Human Rights, 

close its eyes to these violations of its founding principles? 

Thank you for the attention you will give to this message, and please accept, honourable 

members of the Senate, my highest regards. 

Ahmed Hadjarab 
116 

Detainee: Hisham Sliti 

ISN: 174 

Nationality: Tunisian 

Family member: Maherzia Sliti (mother) 

Residence of family member: Tunisia 

Dear Senators, 

Thanks to you for reading this letter on behalf of our son, His ham Sliti. He is Tunisian, like us, and 

has been cleared for release for many years. 

My son has been away from me and his loved ones for over eleven years. We, his family, are 

waiting for him in Tunis. My husband and I live alone, and we are getting on in years. Our one 

wish is to hug him and to have him home before we pass away. 

Forgive me if I seem to complain, but the truth is that losing our son to Guantanamo has had a 

terrible effect on us. 

One of the worst things is the uncertainty, and the false hope that things are about to change. 

Sometimes I hear rumors that men have been released from Guantanamo and that Hisham is one 

of them. I miss and love my son so much that although my mind knows the rumors are probably 

false, my heart believes them every time. And every time l am devastated when I realize he is not 

coming home. 

To try to cope with my depression I attend a support group with other family members, but it's 

hard to find the energy to go. We are depressed. Suffering without Hisham has exhausted us. I 

was recently diagnosed with cancer and had to go through difficult treatment. My biggest worry 

is that one or both of us will die before we see our son again. We are a close family, here, and we 

will look after him, if we have the chance. 

When I think of His ham, I remember him as a joker who loved to go out with his friends and play 

sports. When we speak to him every few months on a call, we feel a little bit better. But it is hard 

for me to imagine the life my son has now. I constantly replay in my mind the moment I was told 

His ham was in prison. I am afraid I will never see him again. 

Whenever I speak to my son l hear sadness and hopelessness in his voice. He tries to joke and 

hide his true feelings, but it never works. l go for months without hearing from him and I worry. I 

worry that he has lost hope and taken his life. l worry that he might become ill and die before he 

was able to come back home where he belongs. 

l do not understand why my son is still in Guantanamo after all these years, when we know he 

has been cleared. We never thought the United States was the kind of place where people could 

be held like this. l ask you to help bring my son home so that I may have my family reunited 

before it is too late. 

Sincerely, 

Maherzia Sliti 
117 

Detainee: Abu Wa'el Dihab 

ISN: 722 

Nationality: Syrian 

Family member: Kamal Massaud (uncle) 

Residence of family member: Lebanon 

Dear Senator, 

My name is Kamal Massaud, and I am writing to raise my concerns about my nephew Abu Wa'el 

Dhiab, imprisoned in Guantanamo Bay for the last eleven years. He was cleared for release in 

2009. 

Abu Wa'el is 41 years old. However, his health is like that of an old man. A decade of 

imprisonment, torture and beatings has taken a dramatic toll on him. My nephew needs a 

wheelchair, and he has been on hunger strike for almost six months, which is making him even 

weaker. I worry about him every day, and every night. 

I want Abu Wa'el to know that he is not alone, even if he is in solitary confinement. I cannot 

imagine how much he is suffering, especially with the hunger-strike and the force-feeding, but I 

certainly know how much pain it causes me not to know when he will be free. 

Eleven years. I think how many things have happened in my life in that time, and it makes me 

painfully sad. His children have grown up without him, and his wife has raised the family alone. 

His family live in Syria and of course it is incredibly difficult for them. His wife is a strong 

woman, but I know she suffers without her husband. The kids are extremely stressed, and as 

you know, the situation in Syria is terrible now. 

His oldest daughter, Fatima, just got married and while of course it was a beautiful and happy 

occasion, all of us, especially Fatima, were sad that Abu Wael was not there to celebrate with us. 

The way Abu Wa'el was seized, where he is, how he has been treated: all this hangs over the 

family every day. It feels to us that there is no real judicial process that reaches him in 

Guantanamo. We have never received any explanation from the US authorities. We have never 

understood, if I am honest, how he can be held without charge or trial for all these years. 

I remember Abu Wa'el as a kid. Although I am his uncle, I am only four years older than him. We 

used to play football in the house, and always get told off by his mother. Memories of his 

childhood warm my heart for an instant, and then I can't help feeling this anguish again. I am 

grieving every day for a man who is not dead yet. 

When your loved ones are in pain, you are in pain too. I hope this suffering can end soon for all 

of us. 

Yours faithfully, 

Kamal Massaud 
118 

Detainee: Shaker Aamer 

ISN: 239 

British Resident 

Family members: Michael Aamer (son) & Johina Aamer (daughter) 

Residence of family members: UK 

Dear Senators, 

My name is Michael Aamer and I am 13 years old. My dad, Shaker Aamer, is in Guantanamo. 

It makes me so sad to know that even after trying to get him out, he is still in prison. And even 

though he has been cleared for release, he has been tortured. 

I see my dad on skype when we speak to him. Sometimes a guard stands behind him. We have to be 

very careful about what we talk about-we can only talk about ourselves or the guards will stop the 

call. 

Since I have grown up, I find it very difficult without my dad. I can feel how hard it is for my mum. I 

can't imagine how my dad is coping with all the ill-treatment he has been facing. 

I always hear my friends talking about how their dads give them treats and presents. I feel really 

lonely knowing that I am the only one whose dad is away in prison. 

I was very little when my dad was taken away, and I hope I won't have to wait too long before I can 

see him again. 

Sincerely, 

Michael Aamer 

Dear Senators, 

I am Johina Aamer. For over 11 years now, my dad Shaker Aamer has been detained in Guantanamo. 

Most men there could never be a threat to anyone. Why is there such injustice? 

We all live our lives, passing through every day with food, clothes, and most importantly freedom. 

Can you imagine being locked up for 10 years? Imagine losing ten years of your life and possibly 

many more years to come if everyone sits there and does nothing about it. Try imagining being 

treated like a circus animal in a cage and being taken away from your home and everything you love. 

It is painful isn't it? 

Well my dad has already been through this and is going through this now. I am fifteen years old, and 

I was just a little girl when he was taken away. My youngest brother Faris has never even met his 

dad. 

Please Senators, I ask you to do something about it. We are a big family and we do our best to live a 

normal life, but without dad back home with us, it will never be possible. 
119 

Thank you for your time and attention. 

Best Regards, 

Johina Aamer 
120 

Detainee: Younous Chekkouri 

ISN: 197 

Nationality: Moroccan 

Family member: Abd Alhaq Barka (uncle) 

Residence of family member: Germany 

Dear Senator, 

My name is Abd Alhaq Barka, and I'm writing you regarding my nephew Younous Chekkouri, born on 

4 May 1968, currently held in the U.S. prison of Guantanamo Bay. 

My nephew Younous is cleared for release, yet he remains in Guantanamo. His young adulthood has 

been wasted during the 11 years of his detention. How many more years is he going to be in 

Guantanamo? I know this limbo is causing him a lot of pain, and I am suffering too because I know he 

has been very depressed lately. I worry about his health, and I spend sleepless nights thinking that he 

may do something to put an end to his anguish. 

I want nothing more than for him to join me and our family in Germany. I am a German citizen and 

Germany has been my home for 40 years. I have worked hard to establish myself here, in the suburbs 

of Stuttgart, where I live with my wife and son. 

Like us, Younous deserves the chance to rediscover what it means to live a life of freedom, peace, and 

security. We deserve the chance to see him again. Younous has a kind heart, and he is loved by many 

people in this world. His wife, his brother and myself, we all also suffer the consequences of his 

indefinite detention. 

Younous' mother was my big sister. She took care of me and my siblings when our parents died. 

Younous' indefinite detention took a personal toll on his mother. Her mind, and eventually her body, 

could not take all this suffering. She passed away five years ago-seven years into Younous' 

imprisonment at Guantanamo. It breaks my heart that she didn't get to see her son before she died. 

I am asking you today, members of the Senate, how much longer am I going to suffer this pain? How 

much longer can our family take this? 

I hope one day soon Younous can be reunited with his loved ones. I hope one day we can all celebrate 

the joy of having Younous with us, instead of spending sleepless nights worrying about him and his 

fate. 

Yours sincerely, 

Abd Alhaq Barka 
121 

Detainee: Ahmed Belbacha 

ISN: 290 

Nationality: Algerian 

Family member: Mohammed Belbacha (brother) 

Residence offamily member: Algeria 

Dear Senators 

My younger brother, Ahmed Belbacha, has been in Guantanamo since 2002. His health is 

deteriorating-especially since the hunger strike-and I am deeply worried about him. 

I am six years older than Ahmed, and my image of him is as an athletic youngster whose 

passion for soccer seemed a strange match with his love for math and serious study. It's so 

hard now to hear him talk about his failing health and the unimaginable things he's been 

through over the last decade. 

Ahmed's continued absence has cast a bitter shadow over our family. His indefinite 

detention and deteriorating health put the family under a lot of stress. Big holidays, such as 

Eid, are especially hard. The whole family gets together to celebrate and we feel Ahmed's 

absence even more strongly. We remember all the Eids we have had to spend without 

Ahmed, and we pray for this one to be the last. 

Ahmed has thirteen nieces and nephews. All but one of them was born after Ahmed left the 

country, so he has never seen them. My brothers and sisters and I have decided not to tell 

the children that their uncle is detained-we worry about how it would affect them. Last 

time we were able to speak to Ahmed on the phone, my eldest son Abdelghani, who is ten, 

asked him when he would return. Ahmed couldn't bring himself to respond. Maintaining this 

secret from the children all these years has taken a toll on us. 

My family is horrified at how Ahmed and others in Guantanamo have been treated. Algerian 

youth has long looked up to America for its democracy and respect for human rights. We 

always associated a lot of good with it. But now, America has lost its standing not just with 

our family, but with Algerian youth as a whole. Arbitrary arrest, detention without trial, 

renditions and torturous interrogation methods h·ave cast a dark stain upon America's 

reputation. 

My family still maintains hope that Ahmed will be released soon. We know he is exhausted 

after all he has suffered, but we also know that he retains a strong will to rebuild his life. We 

will do all we can to help Ahmed rebuild his life. 

Yours sincerely, 

Mohammed Belbacha. 
122 

Detainee: Sami AI Hajj (Released) 

ISN: 345 

Nationality: Sudanese 

Family member: Mohamed Sami AI Hajj (son) 

Residence of family member: Qatar 

Dear Senators, 

My name is Mohamed Sami AI Hajj and I am thirteen years old. I am writing today to tell 

you my story of growing up without my dad. It is not something I would wish on anyone, 

ever. 

l was just a baby when my dad was taken in 2001 and I didn't have any brothers or 

sisters. Most kids my age have lots of happy memories from when they were little. But 

for me, l look back on a lot of sadness and an empty house. Not having my dad-and 

knowing that he was in Guantanamo-made me feel insecure and helpless. 

I used to ask my mom lots of questions. Mostly I wanted to know when my dad would 

come home, but I also wanted to understand why he was there. There were never any 

real answers to either question. I think that the uncertainty was the hardest part. It 

made our lives so unstable. I also used to get angry at how unfair the whole thing was. 

My mother used to try to comfort me by telling me stories about my dad-especially 

about how brave he was. She told me about how he was a camera man for AI jazeera and 

went to dangerous places to uncover the truth. I loved hearing her talk about him and I 

longed for him to come home to us. 

The day my dad came home was by far the best day of my life. Imagine meeting your dad 

for the first time! I was so anxious as l stood there waiting. And then when I saw him, I 

was so happy. But Dad was very weak. He had to stay in bed for a long while before he 

could be normal again. 

Sometimes I want to forget about Guantanamo, but I can't. I think about it when I see my 

dad limp from his shattered knee and when he is weak and tired. Also, it's hard not to 

feel sad for all the families that still have fathers in Guantanamo. 

For instance, I remember when I was eight, and l found out that my father was on a 

hunger strike, which was so scary. My mom tried to spare me the detail, but later l found 

out that my dad spent a month without any food. Then he was tied to a chair with metal 

shackles and brutally force fed. I remember so clearly how scary that time was for us, 

and it breaks my heart to hear in the news that this is happening again. 

Thank you very much:Honorable Senators, for taking the time to listen to my letter. l 

really do hope that your efforts today will help other children find their fathers again. 

Yours Sincerely, 

Mohamed Sami AI Hajj 
123 

To: The members of the Senate Judiciary Committee 

regarding amendments to the 2013 National Defense 

Authorization Act (NOAA) relating to the prisoners held at 

Guantanamo Bay, Cuba 

From: Thomas P. Sullivan 

July 22, 2013 

Thank you for allowing me to express my views concerning 

proposed amendments to the 2013 NOAA relating to the 

prisoners held at Guantanamo Bay, Cuba. Although I have 

represented a number of prisoners during the past eight years, 

only one remains at Guantanamo Bay, Abdulrahman Suleiman, 

ISN 223, from Taiz Yemen. We have submitted to the Committee 

a letter from his mother, expressing her urgent, heartfelt desire to 

have her son back home. 

There are approximately 150 men still imprisoned at 

Guantanamo Bay, most of whom have been there for a decade or 

more, who have not and will not be charged with commission of a 

crime against our country or its allies. 

My purpose in writing this memorandum is to summarize 

why I believe that, while amendments to the 2013 NOAA may 
124 

make it easier to close the prison, there are in the law as now 

written provisions which allow the administration to transfer 

almost all of the prisoners who are still there. 

1. The Guantanamo Review Task Force Final Report. 

January 22, 2010. 

In January 2009, shortly after being sworn in, President 

Obama adopted Executive Order 13492, "calling for a prompt and 

comprehensive interagency review of the status of all individuals 

currently detained at Guantanamo Bay Naval Base and requiring 

the closure of the detention facilities there ... The Executive Order 

was based on the finding that the appropriate disposition of all 

individuals detained at Guantanamo would further the national 

security and foreign policy interests of the United States and the 

interests of justice." Task Force Final Report, Jan. 22, 2010, 

Executive Summary, p. i. The agencies involved in the review 

were the departments of Justice, Defense, State, and Homeland 

Security, the Office of the Director of National Intelligence, and 

the Joint Chiefs of Staff. 

2 
125 

The Task Force reviewed the files of the prisoners then at 

the Naval Base prison, and in January 2010 reported as follows. 

o The members unanimously approved 126 of the men 

for transfer to countries outside the United States, 86 of whom are 

still imprisoned. 

o 30 men from Yemen were approved for "conditional" 

release, subject to the President lifting the moratorium on 

transfers to Yemen, and other security conditions being met. We 

have been told that the moratorium has been lifted, but the 

30 men are still imprisoned. 

o 48 men were determined "too dangerous to transfer 

but not feasible for prosecution," but they "will periodically receive 

further review within the Executive Branch." 

o 44 men were referred for criminal prosecution. 

2. The President's Executive Order 13567, March 7, 2011. 

On March 7, 2011, the President adopted Executive Order 

13567, which relates to the 48 men determined to be too 

dangerous to release, and the 44 men referred for criminal 

3 
126 

prosecution. The Order directs the Secretary of Defense, in 

consultation with the Attorney General, to establish a Periodic 

Review Board (PRB), and provide each of those 92 men a 

hearing "no later than 1 year from the date of this order," that is, 

by March 7, 2012. The Order contains detailed provisions as to 

how the PRB reviews are to be conducted. "The PRB shall make 

a prompt determination, by consensus and in writing, as to 

whether the detainee's continued detention is warranted under 

the standard in section 2 of this order," that is, whether 

"Continued law of war detention is warranted for a detainee ... if it 

is necessary to protect against a significant threat to the security 

of the United States." I am informed that the PRBs have recently 

been established, more than a year after the President ordered. 

No hearings have yet been held. 

4 
127 

3. The three wavs in which the administration may now 

release almost all prisoners without further amendments to the 

2013 NOAA. 

There are three methods the administration may currently 

use to transfer almost all the men who are not to be tried by 

military or civil courts for commission of crimes, which will 

probably reduce the prison's population to less than 20. 

First. Section 1028 of the 2013 NOAA places restrictions on 

the President's use of funds appropriated by that statute for the 

transfer or release of non-United States citizen-prisoners to 

foreign countries. However, explicitly exempted from the 

prohibitions are transfers ordered "by a court or competent 

tribunal of the United States having lawful jurisdiction." 

§§1 028(a)(2), and (c)(2). Accordingly, the President, Attorney 

General or Secretary of Defense may apply to the District Court 

for the District of Columbia for agreed orders (or agreed writs of 

habeas corpus) authorizing release of named prisoners. If 

deemed appropriate, the orders may contain conditions and 

restrictions on the conduct of those released. The administration 

5 
128 

may use funds appropriated under the 2013 NOAA for the 

relocation of the named prisoners to foreign countries. 

Second. The administration may request the foreign 

countries to which the prisoners are to be relocated to provide the 

necessary transportation, by air or ship, to have the prisoners 

taken from the Naval Base to their countries, which will not 

involve the expenditure of funds appropriated by the 2013 NOAA. 

Any incidental expenses involved in arranging the transfers, and 

escorting the prisoners the short distance from the prison to the 

Guantanamo Bay airstrip or wharf, may be paid by the foreign 

country, or from funds available for the President's discretionary 

spending apart from NOAA appropriated funds, or from other 

readily available non-governmental sources. But even if not 

reimbursed, these minor expenses pale by comparison to the 

estimated $1 million annual cost of maintaining each prisoner, 

resulting in a vast net savings of funds appropriated by the 2013 

NOAA. 

6 
129 

Third. The Secretary of Defense may make the certifications 

required by §§1028(a)(1),(b), and (c)(1), or comply with the 

national security waiver provisions of §1 028(d), and thus enable 

the administration to use funds appropriated by the 2013 NOAA 

for accomplishing prisoner transfers. 

4. Conclusion. 

In my opinion, the action described above could and should 

have been taken long ago. Now is the time for the President to 

cease making speeches and promises about closing the prison, 

and instead to act. To paraphrase his campaign slogan, yes he 

can! With his humanity and courage, he can promptly end this 

disgrace to our country's reputation! 

My brief form of resume is attached. 

7 
130 

A letter from Abdulrahman Suleiman's mother: 

Hello, 

I am the mother of prisoner Abdul Rahman Abdu, and I have one question I would like to pose 

to the US Congress, the US Government and US President Obama: "Why have you been holding 

my son, the apple of my eye, for such a long time, and what is the crime this young man has 

committed at such a young age?" He was never charged in his life with any crime whatsoever. 

What kind of law and justice authorize you to imprison my son for such a long time? You have 

deprived me of my son for twelve long years of injustice. Please have mercy on his weak 

mother. My heart is tom apart from pain over my beloved son. Aren't you fathers and mothers? 

Don't you have children? Please, put yourselves in my shoes and put your children in my son's 

shoes and tell me how would you feel? Would you find peace of mind while your children are in 

jail? Would you find peace of mind while you have been all these years deprived of the sight of 

your O\\iJl children. 

Abdul Rahman's father passed away and his only wish before he died was to be reunited with 

his son Abdul Rahman and to have him back home among his siblings. Before he passed, he had 

one and only dream and that is to be able to hug his son who has been out of his sight held in 

prison for a very long time. Does America really want to deprive me of the sight of my son as it 

did to his father? I will never forgive neither America, nor the Congress and nor President 

Obama for depriving me of my beloved son, of his sight and of his hugs. They deprived me of 

seeing him in his wedding attire. I want to see my son Abdul Rahman getting married. I want to 

enjoy seeing my grandchildren playing in front of me. I want my son Abdul Rahman. I don't 

want anything else from life. Bring me back my son. You have no right to hold him in jail for 

all these years, for my son is not a terrorist. My son Abdul Rahman is such a gentle and kindhearted young man. I can no longer bear living separated from my son. This long separation is 

killing me. There is not a single day that goes by that I don't remember my son, and I cry 

because it hurts so much. I miss seeing my beloved son Abdul Rahman so much. This long 

separation has been hurting everybody here at home. All my sons and daughters constantly 

remember him with sadness and tears. You have no idea how precious our son is to us. We all 

love him so much, for he is so much fun to be with, he is so gentle and he has such a good moral 

character. We miss him so much and we will never find happiness until he is back with us. We 

pray God to give us the patience we need to bear this situation until he is released hopefully 

soon; it has been such a long time. When will there come a day when my son is released? When 

will Americans announce the release of the prisoners? We are all waiting for that day to come 

and we will never lose hope, for we all rely on God's mercy. Abdul Rahman's family members 

are appealing to Obama and the Congress to bring us back our son Abdul Rahman so he and his 

mother could sec each other again. And all his siblings want is to have their brother back home 

so he could bring back joy and happiness. We want to enjoy his wedding day and seeing him 

living with his family and among his beloved ones. We want him to spend the Holly Ramadan, 

fast and celebrate the holidays with us. Will this dream come true? Why all this delay and this 

obstinacy? Please, bring us back our son and don't deprive us of his sight. It is time for you to 

dissolve this illusion; my son does not pose any threat to the United States of America. 
131 

July 18, 2013 

We represent Ravil Mingazov who has been detained in 

Guantanamo since 2002. We won his habeas case in May of 2010, 

but the government appealed and subsequently filed a motion to 

vacate the Writ of Habeas Corpus. The appeal has been stayed and 

the motion to vacate has been pending for more than a year. 

In connection with the hearing scheduled for next week we are 

submitting the attached family correspondence related to our 

client. Two of the attached letters are from Ravil's son, Yusuf and 

two are from Ravil's mother, Zukhra. (The letter from Zukhra to 

Ravil is excerpted.) These letters were written some years ago. The 

family has indicated that they may be used in connection with the 

hearing. 

Please let us know if you have any questions or if you need 

further information. Thanks for your attention to this seemingly 

intractable situation. 

Douglas K. Spaulding 

ReedSmith LLP 
132 

Respected Organizations of Human Rights 

and Governments that can Assist 

in bringing my Father back to me!! 

My name is Yusuf Mingazov and I am 13 years old and I go to 

school. I have a very important appeal; Give me back my father, 

Please!! His name is Ravil Mingazov and he is in Guantanamo Bay 

Prison. I am waiting for him since a very long time, since 2000. I 

was only a year old when I last saw him. My mother has been 

telling me all about him since my childhood and I only saw him in a 

very old family video and he was playing with me. My father is the 

best in the world, the most kindest person, if you see him and talk 

to him you will understand what I mean. I feel devastated without 

him. Please give him back to me, I need him so much. 

HELP MY FATHER PLEASE!!!! 

I hope that you will not refuse my request and I await your 

help very anxiously. For me, the most important thing in my life is 

to get my father back. 

With Respect and Proud to be 

Yusuf, son of Ravil Mingazov 
133 

Letter from Yusuf to the most beloved father, 

Assalaamualaikum Warahmatullahi Wabarakaatuh, My Beloved 

Father, 

I miss you so much and I am waiting for you so much and I want to 

be with you and never be separated from you again. I feel so bad 

without you and I am jealous of everybody who has a father and I 

know that you are the best, kindest and the most generous and 

caring father!! I love you so much!! I beg Allah to make our reunion 

soon in the state of us being alive and healthy AAmeen!! 

My mother told me so much about you and still tells me how you 

loved me, played with me!! I know you very well now and I feel you 

so close to me. When me and my mother talk about you, we always 

end up crying together. Thank you for all your letters, cards and 

pictures, I treasure them all!! 

My Dearest father, I need you very much!! 

I am studying well at school and I love to play football. I know how 

to swim and I like to play computer games. My mother tells me that 

I am an exact copy of you in all my actions, in my eyes and my 

smile and looks and habits. We love you and await your return 

anxiously!! You are so dear to us and we treasure you!! I study the 

Quran at school and I am particular about my prayers (Salah) and 

I always remember you in my prayers. 

My dearest father I always remember you and I dream of the day we 

will meet and never be apart again, Aameen !! 

Love you very much !! I am kissing your hands and hugging you 

tight!! 

Your Beloved Son 

Assalaamualaikum Warahmatullahi Wabarakaatuh 

Yusuf Mingazov 

US_ACTIVE-1136594131-DKSPAULD 07/18/2013 3 24 PM 
134 

Date: April 25, 2009 

Dear President Obarna, 

Translation from Russian 

Letter from Mother 

Writing to you is Zukhra Valiullina from Russia. My son Ravil Mingazov is currently in 

Guantanarno. He left Russia to sec what life of a Muslim was like in the [Middle J East. 

His wife Dilyara and two-year old son Yusuf stayed with me. Eventually, they wanted to 

move to a Muslim country ("Hijr"). [President] Bush's solders detained Ravil for no 

reason at an apartment in Pakistan. For seven years now, he has been kept without 

charge at Guantanarno. There has been no investigation or trial. His wife and son 

continued to live with me for another five years and then left for Syria. His wife got remarried there. 

I am 72 years old. I live by myself. From all the stress I had to endure, I have developed 

a heart condition. I am handicapped now. I have effectively lost my son, my beloved 

daughter-in-law, and my grandson. 

These days, when I prepare a yummy meal, I always think about my son- "So, this is 

what I am having today. What kind of food does my son get in the far and away land 

where he is?" He never wrote that the things were bad where he is. In fact, he wrote that 

for Uraza Bairam1 they were given dates and honey. He also mentioned snow-white 

bedding and underwear. His letters, however, only come once every 6 - 8 months. 

My son has been detained at Guantanarno for seven years now. He has lost his family 

and is left ~ith no means to support himself. Due to my old age and poor health I cannot 

wait too long to see my son. During your presidential campaign, you promised to close 

Guantanarno. I beg you to expedite the review of my son's case. He has not committed 

any offense against the United States or Russia. He is not a terrorist. Unjustified killing 

is a great sin, and Allah( God) tells us not to do it. 

This is my appeal to you. I used to pray that you become president as soon as possible. 

Respectfully, 

Zukhra 

1 Period of fasting for Muslims 
135 

With Allah's praise I am writing to you, my dear son 

I think of you often, and I cry about you. May Allah give 

you patience. Be patient, manyendured. Prophet Yusuf 

spent 8 years in confinement. Don't let your heart grow 

hard towards Allah. This may be your fate. Staying here 

is even worse. They are afraid of Moslems here, and they 

put them in jail for no reason. . . . The only thing is that I 

wish Yusuf could grow up knowing his Father. He used to 

think that when they go there, he would be able to see 

you, but I said, "No, dear son, your dad is not going to be 

there yet." Oh well, this life is just a blink compared to the 

future life. So let's be patient and let's do good things .... 

I will be turning 70 years old soon. Don't waste your time 

there. Study English, Arabic and read the Koran. . ... 

Son, I will be finishing my letter here. Say "salaam" to your 

friends there. May your life be sustained by the hope that 

fortune comes after misfortune, with Allah's help. Here 

bird cherry trees are in bloom, the spring is cold, but we 

are hoping for the warm weather. All the relatives and 

friends are saying salaam to you. May Allah help you. 

Good bye. 

8 
136 

LINCOLN SQUARE LEGAL SERVICES, INC. 

Executive Director Ian Weinstein 

Supervising Attorneys 

Cheryl G. Bader 

James A. Cohen 

Eliza beth B. Cooper 

Brian Glick 

Leah A. Hill 

Ron Lazebnik 

Elizabeth A. Maresca 

Senator Dick Durbin 

Chairman, U.S. Senate Committee on the Judiciary 

Assistant Majority Leader 

711 Hart Senate Office Building 

Washington, DC 20510 

Dear Senator Durbin, 

Supervising Attorneys Michael W. Martin 

Paul Radvany 

Martha Rayner 

Beth G. Schwartz 

Marcella Silverman 

Gemma Solimene 

Rachel Spector 

Supervising Social Worker 

KathyHo, M.S.W. 

July 22, 2013 

I represent Sanad al-Kazimi, a Yemeni national, husband and father of four children. He was 

disappeared by our government in January of 2003, sent to secret sites and tortured. He has been 

indefinitely imprisoned at Guantanamo since September of 2004. Mr. al-Kazimi suffers from 

severe PTSD and major depression, which was diagnosed by a highly qualified psychologist, Dr. 

Sarah Schoen, who I retained to examine him. Yet, rather than properly diagnosing and treating 

Mr. al-Kazimi's significant mental health problems, the U.S. military relegated Mr. al-Kazimi to 

years of solitary confinement that exacerbated his symptoms. 

In recent years, upon recommendation by Admiral Walsh, the military curtailed solitary and 

permitted more communal living and access to news from the outside world, which allowed my 

client to eat and pray with others and learn of current events in his home country. This alleviated 

some of my client's suffering. But in the wake of the hunger strike and my client's participation 

in it, he was moved back into solitary confinement. He suffers greatly from hunger striking and 

his PTSD symptoms are returning in full force. 

As my client wrote to me: 

I am in solitary. Outside time is only offered in the middle of the night. The military took 

everything: television, radio, family's letters, books, lawyer's letters, and clothes. I have 

only one mat, one blanket and one set of clothes, and the guard provocations are 

continuous especially at night and during prayer. It is always cold; I can't keep warm. 

Fordham University School ofLaw""33 West 6oth Street, Third Floor,.., New York, NY 10023 

Phone: (212) 636-6934 Fax: (212) 636-6923 
137 

We are refusing to see the military's doctors because the military doctors sanctify their 

uniforms more than their profession. I am deteriorating. We need a humanitarian health 

organization to send doctors to examine all the men. 

Mr. al-Kazimi is not one of the 56 Yemenis approved for transfer by President Obama's Task 

Force. Rather, he was referred for prosecution by the Task Force in 20 I 0, yet has never been 

charged. Based on recent statements made by the Chief Military Prosecutor, far fewer men will 

be prosecuted than the Task Force contemplated. Thus, like so many others, Mr. al-Kazimi is by 

default in the Task Force's "continue detention pursuant to the AUMF" category. But in fact, 

except for the very few who have actually been charged and face trial, all the men at 

Guantlinamo are in the same quagmire. Whatever their designation by the Obama Task Force, 

they all remain locked up without a release date. 

The administration's recent announcement that it is putting in place yet another detainee review 

procedure-this time designated Periodic Review Boards-is cause for concern. First, The 

Obama administration claims to have conducted a thorough review of each man imprisoned at 

Guantanamo in 20 I 0, yet 86 of those men deemed transferable remain imprisoned. Therefore, 

the creation of yet another review board is superfluous if President Obarna does not followthrough on the assessments of his own administration. Second, while I welcome a fresh and 

meaningfi.d review for my client, who is now in a purgatory of uncertainty, creation of a new 

review procedure could signal the administration's intent to maintain the regime of indefinite 

imprisonment long into the future. 

Instead, President Obama and Congress must work toward ending the policy of imprisonment 

without fair trial. This extraordinary use of power, which should be cautiously reserved for the 

heat of war, must end. 

Though the military insists on calling my client's imprisonment detention, thus distinguishing it 

from the punitive nature of a sentence, this is Orwellian speak. My client is being punished. 

His imprisonment has been harrowing, harsh and long-term. The military can call it detention, 

but it is punishment without charge and fair triaL 

My client has chosen to strike-to take some modicum of control over his life. As my client 

writes: 

The resolution of the strike is not complicated. The first step is that men who have their 

release papers, should be released-let go those who are cleared for release. The second 

step is that the others should be scheduled for trials-it is a necessity for people here to 

stand in front of military or civilian courts." 

Hunger striking is peaceful protest because it does not harm others. Of course, that is not 

entirely true, because like all hunger strikes it is designed to harm the reputation of its target. 

But the target will only be harmed if the cause is just. Why would those with power to remedy 
138 

the injustice at Guantanam.o feel any pressure if my client's demands were immoral, impossible 

or unJust. The holder of power can only feel shame ifthere is reason for shame to be felt. 

Indefinite detention without trial is inherently inhumane and the long term duration of my 

client's detention, without resolution in sight, renders it profotmdly cruel. 

Respec!fully. 

Martha Rayner 

Associate Clinical Professor of Law 
139 

STATEMENT 

DATE July 22,2013 

ro Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights 

for the July 24, 2013 hearing titled "Closing Guantanamo: The National Security, 

Fiscal, and Human Rights Implications" 

FROM Joseph K. Hetrick, Esq. 

suBJ Statement on behalf of Mohammad Zahir, ISN No. II 03 

My client and I had one thing in common: we each believed in the promise of 

America. 

"I was happy when I learned that the Americans were coming to Mghanistan," he 

told me in the steamy plywood conference room at Guantanamo years ago. "My people 

had fought the Russians because we had to. The Russians had no respect for human rights 

and had ignored all laws of war and peace. I knew things would be different when the 

Americans arrived. America recognized the Rule of Law and had written all basic human 

rights into its founding documents." He knew the facts. He had been a school teacher in 

his home village. His mistake, his only "crime," was to allow girls to attend his school 

and to teach a few secular subjects such as mathematics and science. The zealots in his 

village condemned him for these decisions. Ironically, they gave him the derisive 

nickname of "The American" for his progressive views. 
140 

Senate Judiciary Committee 

Subcommittee on the Constitution, 

Civil Rights and Human Rights 

July 22, 2013 

Page2 

They did not forget. 'When the opportunity came, they accused him of being 

Taliban, exacted their revenge, and collected a reward. My client was seized at his home 

without resistance in the early hours before morning prayer. His house was ransacked, all 

possessions seized, and his family left broken and without support He was whisked away 

to Bagram, beaten with electrical cables, and, hooded and disoriented, flown to 

Guantanamo. 

Over a decade later he is still there. He has had no hearing and has never been 

charged with a crime. Perhaps most cruelly, several years ago he was told that he was 

cleared for repatriation to Afghanistan. His return, I was told, was "not inconsistent with 

the foreign policy of The United States." Yet still he sits in his cell. He, too, is broken. 

He is depressed, extremely frail, and is in pain from various physical ailments. 

Psychologically and emotionally he is much, much worse. He has been stripped of all 

hope. All the time knowing he has done nothing wrong. 

Throughout the years, his story never changes. It has been supported by his 

family, friends, and his whole village. It is now presumably recognized by our 

government through his clearance for repatriation. Yet he remains in Guantanamo 

uncharged and without a hearing. In one of our meetings he stopped mid-thought and 

looked down at his feet. As always, they were chained together with metal links running 

through a large bolt sunk deep into the concrete floor. "In my village," he said to no one in 

particular, "we would not keep a goat chained up like this." 
141 

Senate Judiciary Committee 

Subcommittee on the Constitution, 

Civil Rights and Human Rights 

July 22,2013 

Page3 

At that moment, I believe we shared the same thought: America had let us down. 

This was not the America in which I was raised and in which I believed, and it was 

certainly not the one my client had hoped for. 

This must change. Indefinite detention in these circumstances is simply wrong. It 

violates the bedrock principles of our Republic and is contrary to the Law of Nations. You 

have the power to end this blot on our national character and beliefs. The war on terror 

cannot be won by holding innocent people for more than ten years. Today the prison at 

Guantanamo stands only as a reminder of a flawed attempt to solve a very difficult 

problem and as a powerful recruiting tool for those zealots responsible for the root cause. 

The prison at Guantanamo needs to be closed. Those detainees whom our own 

government has cleared for release, like my client, must be returned to their families and 

allowed to resume a peaceful life. 

The problems identified above are compounded by the fact that our meetings have 

grown less frequent because of the interference of our government. Mail from me is often 

not received. When it is received. agreed upon meetings often fail at Guantanamo because 

of newly imposed requirements for searching bis private parts before allowing bim to meet 

with counsel, or, because on the day of the meeting there is no government translator 

available to tell bim I have come, resulting in complete confusion and denial of bis right to 

meet with counsel. 
142 

TO: 

FROM: 

DATE: 

STATEMENT FOR THE RECORD 

Hon. Senator Dick Durbin, Chairman, and Hon. Members of the Senate 

Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights 

Beth D. Jacob, Shelley L. Merkin, Barbara A. Miller, Lisa A. Natter, Brian J. Neff 

July 18, 2013 

The attorneys named above have for a number of years been providing pro bono legal 

representation to men imprisoned at Guantanarno. One of our clients, Mohammed ai-Zarnouqi, 

has been imprisoned there since 2002. Mohammed was cleared for release by the Obarna 

Administration in 2009- yet three years later he remains a prisoner, with little hope of getting 

horne to Yemen (or any other country that will have him) any time soon. 

Mohammed is participating in the hunger strike, and has also been protesting by sitting 

down when ordered to return to his cell after his (infrequent) visits to the recreation area or 

shower. His protests have made him a target of the "IRF" (Initial Reaction Force) Team--

guards dressed in riot gear who "subdue" non-compliant prisoners. We recently received a 

letter from Mohammed describing an experience of being IRF' d, and expressing his thoughts on 

the continuing injustice at Guantanarno. We provide for the Subcommittee's consideration the 

following excerpts (translated from Arabic) from Mohammed's letter. 

Thank you for considering this information. 

From Mohammed AI-Zarnouqi to the attorneys ... 

For your information, when the IRF team came to me, they turned me on my stomach, tied my feet and 

then tied my hands behind my back then lifted me up and turned me to my right side and pressed their 

bodies against my back and chest until I seemed to hear the cracking of my bones and my spine. I was 

unable to breathe. I was able to talk to the interpreter with difficulty. They took me to the cell and threw 

me on the ground on my stomach with my head in the toilet (as shown in the sketch I sent you). I am 

suffering from pains in my chest, back and knees with difficulty getting out of my bed because of the 

pains. I wonder when this injustice will stop. Are they planning to let me out of here with broken and 

disabled parts of my body- on a wheelchair? 

Isn't the fact that the IRF team assaults me and hurts me while I am peacefully protesting a violation of 

the international law? Isn't it true that the international laws allow me to protest in a peaceful manner? 

Watch the recorded videos they recorded showing me while sitting and telling them I am protesting 

peacefully as a result of first, insulting the Quran and second, I want back my freedom. Why am I here 
143 

when I have a paper saying that I am eligible for transfer since 2009? Why don't you send me back to my 

country? If there is a problem in my country, send me to a third country-- any country. 

They bring the IRF team, assault me and hurt me and above all of this, they punish me. In what right 

they do this? They don't have any reason to punish me. I have never assaulted or hurt anyone. 

Aren't there numerous peaceful protests happening in many countries these days? The American 

government claims that it is the sponsor of peace and democracy. Are Guantanamo detainees outside 

this world- not on the map and have no right in sit-ins and protests? .... 

I wonder if this letter will be read by open minds from honest people who do not accept injustice, or 

would this letter and my past letters be read to dead people who are emotionless? 

Finally, I would like to say, there is an end to every oppressor. Days and years will pass and we might 

forget what happened in Guantanamo but history will not forget and all what happened in Guantanamo 

will be recorded in the black pages of history. All the details of how we were treated, how the courts 

ignored our rights and were unable to see our innocence will be there. We didn't do anything wrong to 

be treated this way. The new generations of Americans will inherit this guilt of injustice inflicted on 

innocent people. 

I hope this letter finds some reaction in the hearts of good and honest people who do not accept 

injustice and hate oppressors. 

I, the oppressed detainee, wrote this letter and the past letters to say: 

If my body is lost in the dust, 

And my name is dropped from the minds, 

My writing is here to stay 

For the generations to read (end of the short poem) 

[End of this letter and hope it reaches you quickly] 

[A prisoner but still alive- from the heart I do write] 

The Oppressed Detainee 

Mohammed AI-Zarnouqi 

ISN # 691 

Date this letter was sent 

Monday 6/17/2013 Corresponding to 8/8/1434 
144 

Statement for The Record 

on behalf of 

The American-Arab Anti-Disc1·imination Committee (ADC) 

Before 

U.S. Senate Committee on the Jt1diciary 

Subcommittee on the Constitution, Civil Rights, and 

Human Rights 

The American-Arab Anti-Discrimination Committee appreciates the opportunity to provide a 

statement for the record the 22, 20 J3 scheduled by !he Senate Judiciary 

Subcommittee on th<> Constitution, and Human ADC commends the "Closing 

Guantanamo" hearing and the renewed push to close the Guantanamo detention As 

stakeholders and community partners, ADC welcomes the decision ofthc '"u""""'"'"~ 

is pleased to see i1 once again become a priority. 

ADC is the country's largest Arab American organilltlion. It is a non-Jnom, 

partisan, membership-based urganization, which has protected the cor~nnlUI1tity 

thirty years against defmnation, discrimination, racism, and ste•·e<e>lvt1in~~ 

tonner US Senator James Abonrezk and has grown into a organization with headquatters in 

Washington, DC. ADC coordinates its eflorts closely with United States federal, state, and local govemment 

agencies in facilitating open-lines of communication with the Arab-American community. 

Shortly after his inauguration in January 2009, President Obama signed an executive order to close 

Guanianamo Bay within one year. Over llvc later, the due to 

This year, President Obama recommitted to closing in tv1ay security 

speech at the National Defense University staling, is no justil1catlon beyond politics for Cotigress to 

prevent us fi·om closing a facility that should have never been open." We cannot let the effo1'l to close 

Guantanmno falter again. Guantanamo Bay shnnld have been closed long ago. With all the and ethical 

problems it continues to pose, Guantnnamo is a black mark on this great nation that must be wiped 

away. 

According to the ACLU, since it was opened in 2002, the Guantanamo Bay detention facility has 

held approximately 779 prisoners over the course of its operation. Over the years, 604 prisoners were 

eventually released and 9 died while still ut the facility, leaving 166 at the prison today. Ofthis munbcr, 86 

prisoners have been cleared for release but are still being detained. The U.S. Govenunent says that it does 

not have enough evidence to prosecute 46 of the prisom:rs, but will not release them because they are "too 

dangerous." Twenty-one {21) of these arc children, the youngest of which is aged 13. The oldest 

prisoner is 98. Reuters, CNN, and news agencies reported in May 201 3 that according to PeJJtagon 

estimates, it costs roughly $150 million per year to nm the detention facility and military tribunal system. 

This means that each of these 166 inmates costs the U.S. roughly $900,000 per year. There is no reason the 

U.S. Should continue to spend such absurd sums of money on such a legally unsound and ethically dubious 

facility. 
145 

With respect to the concerns, the prisoners at Guantanamo Bay arc being held 

without any due process. Some not been a crime; and, many have even been cleared tor 

release by the U.S. Government, yet they remain in prison. Additionally, the tribunal system that 

is used at Guantmmmo Bay has not even been very eftective. Only seven (7) prisoners been convicted 

through military tribunals at Gnantanamo B<~y, as opposed to the over 500 terrorism suspects who have been 

convicted in federal courts since 9/ll. Guantanamo Bay not makes a of our legal system, it 

does so while simultaneously being the most ineffective means suspects. 

Guantanamo Bay also poses serious ethical concerns. In April 2013 the Constitution 

Ftwcc on Detainee Treatment released that ultimately concluded that "it is imlist.mtable 

United States engaged in the practice tort1n'e." The reporl details how many of lntcrr·ogation 

techniques at Guantunamo arc considered torture and how many others, while not 

for torture, still involved inhumane or demeaning" treatment. Although Obama 

an end to trHiurc at Guantanamo Bay, the treatment of prisoners at the 

Many of the are held in what is eilectively solitary confinement for each day. These 

prisoners are also lbrced to live with the lite! that they have no idea when will be released, the 

ilrct that 86 of them were cleared lo be released years ago. The prisoners' is so desperate it has 

led many of them to once again go on a hunger strike this year. This hunger strike has brought yet another 

lmman rights abuse at Gunntaaamo to the nation's attention: forced feedings. 

Forced feeding of prisoners, which has been described by many as "torture," is a brutal, humiliating 

process that deprives the of any sense of dignity, Judge Gladys Kessle.r of the United States 

District Court l\:lr the of Columbia agreed, referring to it as "a painl'irl, and 

process," One detainee at the fheility, Samir Naji al Hasan Moqbel, when describing 

feeding tube placed in asserted the ''As it was thrust in, it made me 

wanted to vomit, I couldn't. There was agony my chest., throat and stomach. I had never"''~'"''"''"""' 

such pain before. I would not wish this cruel punishment anyone." Snch brutal tactics are nm·ticulatrlv 

horrifying during the month of Ramadan, when many prisoners arc tasting. What is 

a time Jt>r prayer and reflection has become a time of agony lor these men, many of whom, 

emphasized, have either been cleared for release or not charged with any crime. 

ADC thoroughly believes that it is time to once and t\:lr all close the Guantanamo Bay detention 

facility. It is a travesty that such a costly, unethical, and illegal facility has remained open simply because of 

partisan gridlock. Gnantanamo Bay has come to be a symbol of America's fail me to live up tn its om1 ideals. 

The longer Guantanmno Bay remains the longer it discredits our nation in the eyes of the world. ADC 

thus mges both Democrats and in Congress to come together and tinally close the Guantanamo 

Bay detention camp. 
146 

I 

Written Statement of the 

Council on American-Islamic Relations 

On 

Closing Guantanamo: The National Security, Fiscal, and Human 

Rights Implications 

Submitted to the 

United States Senate Judiciary Subcommittee on the 

Constitution, Civil Rights, and Human Rights 

July 24, 2013 

Testimony Prepared by: RobertS. McCaw 

Council on American-Islamic Relations (CA!R) 

453 New Jersey Ave., SE 

Washington, DC 20003 

Phone: (202) 742-6448 

Fax: (202) 488-0833 

E-mail: Dlli:fill~~&ill!! 

Web:='-'"''""'"'~"" 

CAIR is America's largest Muslim civil liberties and advocacy organization, Its mission is to enhance the understanding oflslam, encourage 

dialogue, protect civil liberties. empower American Muslims, and build coalitions that promote justi~:e and mutual understanding. 
147 

Introduction 

Chairman Durbin, Ranking Member Cruz, and other distinguished committee members of the 

United States Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human 

Rights, the Council on American Islamic-Relations (CAIR), the nation's largest Muslim civil 

liberties and advocacy organization, appreciates the committee's examination of the 

implications of closing the Guantimamo Bay detention facility and respectfully submits this 

written testimony for your consideration. 

The State of Guantanamo 

CAIR's position on the U.S. prison camp at Guantanamo Bay, Cuba is clear: CAIR strongly 

opposes the indefinite detention without charge or trial of prisoners at Guantanamo. CAIR calls 

for the immediate release or civilian trial of all remaining detainees. Likewise, CAIR cautions 

against the closure of Guantanamo being accomplished by creating a comparable facility with 

the same inadequate judicial processes inside the United States. 

In May, CAIR welcomed with cautious optimism President Obama's speech at the National 

Defense University in which he expressed opposition to "boundless global war" as a pillar of 

American foreign policy and renewed his push to close the U.S. detention camp at 

Guantanamo. As the president said, Guantanamo has become a "symbol around the world for 

an America that flouts the rule oflaw." 

CAIR believes that the administration's recommitment to closing the prison at Guantanamo is 

driven in part by the prisoners' four-month-long hunger strike in protest of their 

unconstitutional indefinite detention. While the hunger strike may have started in February 

over allegations of guards mishandling inmates' Qurans, after being detained for II years 

without charge or trial, many of the detainees are willing to risk death just to draw attention to 

their indefinite detention status. 

At present, 96 of the 166 detainees are being force-fed through nasal tubes by military doctors. 

The process of force-feeding is fundamentally cruel, inhuman, degrading, and torturous. Forcefeeding also carries the risk of major infections, possible death, and psychological suffering. 

The World Medical Association (WMA) Declaration of Malta on Hunger Strikers states, 

"[F]orcible feeding is never ethically acceptable. Even if intended to benefit, feeding 

accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and 

degrading treatment." The American Medical Association, a member of WMA, and the 

International Committee ofthe Red Cross have similar positions on force-feeding. 

This force-feeding calls attention to the fact that our nation which prides itself on rule of law 

and due process continues to indefinitely detain prisoners in Guantanamo Bay. This situation 

continues to harm our nation's moral authority in international affairs. 

When President Obama first took oflice, CAIR welcomed his pledge to close the prison at 

Guantanamo within a year. Five years later, CAIR is less optimistic after Congress has 

Page2 
148 

repeatedly blocked the president's efforts to transfer and prosecute detainees or close the prison 

camp. 

After twice failing to make good on his threats to veto the National Defense Authorization Acts 

of 2012 and 2013, President Obama has signed into law a number of restrictive provisions that 

have checked his own ability to transfer or prosecute detainees or close the prison. While 86 

prisoners were approved for release by the U.S. government's Guantanamo Review Task Force 

in 2009, none have been cleared for transfer because of these obstructive provisions. 

Until recently, closing the detention facility no longer seemed to be a priority of the 

administration, a reality that likely has contributed to the current hunger-strike. 

In response to mounting public and international pressure, in May, President Obama 

committed to lifting his own self-imposed three year ban on transferring Guantanamo detainees 

to Yemen, a result of the country's improved security and stability. The countries of 

Afghanistan, Egypt, Kuwait, Saudi Arabia, Tunisia, and Yemen remain active in their 

diplomatic efforts requesting the United States to turn over their nationals. 

This spring the United States transferred control of more than 3,000 prisoners held in Bagram 

to the Karzai government as part of its strategy to shift security operations to Afghanistan and 

draw down combat presence. Despite that, 17 Afghan detainees reside in custody at 

Guantanamo while the U.S. remains indecisive over how to transfer prisoners which it has 

determined pose similar or no security risks. 

The administration has also directed all agencies involved in Periodic Review Boards (PRBs) 

to resolve all remaining issues and begin inmate evaluations to determine whether individual 

prisoners pose a real threat to national security. These reviews are more than a year overdue. 

The administration contends that PRBs are necessary because many of the prisoners held at 

Guantanamo cannot be put on trial due to a lack of evidence or evidence was gathered through 

secret intelligence or illegally by harsh interrogation methods or torture. Of the 166 detainees, 

48 are classified by the administration as being indefinitely detained without trial because of a 

lack of sufficient or admissible evidence. 

In June, the president also reopened the State Department's Office of Guantanamo Closure, 

which had been closed since January, and has committed to appointing a similar envoy at the 

Pentagon as well. These two offices will be tasked with liaising between Congress and the 

administration to build consensus on how best to close the facility. 

The State of Congress 

In March, the U.S. House of Representatives passed the National Defense Authorization Act 

for Fiscal Year 2014 (H.R. 1 960) by a vote of 315 to 108. Once again, while considering this 

annual defense appropriation act, representatives incorporated several provisions that would 

impede efforts to close Guantanamo while rejecting more constructive amendments. 

Page 3 
149 

Specifically, CAIR expresses serious concern over the adoption of Representative Jackie 

Walorski's (R-lN) Amendment Number 19 (225 Republicans in favor, 183 Democrats against) 

that prohibits the Secretary of Defense from using any funds authorized to the department for 

the transfer or release of Guantanamo detainees to Yemen. 

CAIR also remains disappointed over the House's rejection of Representative Adam Smith's 

(D-WA) Amendment Number 20 (172 Democrats in favor, 228 Republicans against), which 

would have provided a deadline for closing the detention facility at Guantanamo by December 

I, 2014. 

While there is still hope that the Senate will adopt measures that support the closure of the 

prison at Guantanamo, critical opposition remains. However, CAIR anticipates that the 

discourse and written testimony submitted to this hearing will bring about compromise and an 

end to such opposition. 

Recommendations 

• CAIR urges the immediate release or civilian trial of all remaining detainees. Congress and 

the president should work together to address the issues of indefinite detention and the 

prison at Guantanamo Bay, which challenge our nation's commitment to the rule oflaw and 

worsens our international reputation. 

• CAIR requests that the 86 prisoners already cleared for release be transferred to their home 

countries or other countries for resettlement without delay. In doing so, the administration 

should be allowed to work with the countries of Afghanistan, Egypt, Kuwait, Saudi Arabia, 

Tunisia, and Yemen without restrictions imposed by Congress. 

• Should the administration proceed with PRBs, CAIR encourages appropriate steps to be 

taken to ensure the PRBs have the required processes in place for meaningful review of a 

prisoner's detention status at Guantanamo. 

• CAIR also urges the U.S. to implement the immediate and permanent cessation of all forcefeeding of Guantanamo prisoners and that an independent medical professional team 

review and monitor all hunger-striking prisoners. CAIR also requests an investigation and 

rectification of any abusive conditions or treatment at Guantanamo in addition to forcefeeding. 

• In addition to considering national security and due process concerns, CAIR recommends 

that Congress fully consider the credible financial justifications for closing the prison at 

Guantanamo Bay. As clarified by U.S. House Armed Services Committee Ranking 

Member Adam Smith, as a nation we are "currently spending approximately $1.6 million 

per detainee each year at Guantanamo Bay, compared to $34,046 per inmate at a High 

Security Federal Prison." 

Page4 
150 

Statement for the Record of 

Gerald E. Thomson, M.D. 

Submitted to the Senate Judiciary Committee Subcommittee on the Constitution, Civil 

Rights and Human Rights in Connection with the July 24, 2013 Hearing Titled "Closing 

Guantanamo: The National Security, Fiscal, and Human Rights Implications." 

July 22, 2013 

I am Dr. Gerald Thomson, Lambert and Sonneborn Professor of Medicine Emeritus and former Senior 

Associate Dean at Columbia University. lam a past President of the American College of Physicians, a 

former Chairman of the American Board oflntemal Medicine, a member of the Institute of Medicine of 

the National Academies and a former member of the Board of Directors of the Physicians for Human 

Rights. 

I was a member of The Constitution Project Task Force on Detainee Treatment which issued its Report on 

April 16, 2013. 

I offer the following perspectives on the current hunger strikes at Guantanamo. 

It is fair to say that the intensified concern about Guantanamo has been caused by hunger 

strikes. The hunger strikes are important to the detention center and the government as they 

are confronted with a protest that is dangerous for the detainees, potentially successful in its 

demands, and highly controversial in the way the hunger strikes have been managed. The risks 

to the detainees are obvious as they use their bodies and risk their lives in protest. Widespread 

interest, scrutiny and criticism add to the situation. 

Much has been learned from past hunger strikes over many years. There is considerable 

medical literature and there are medical ethical principles and guidance. For the situation at 

Guantanamo, it is important to understand the concepts and issues involved. 

Based on the medical course of prolonged fasting, hunger strikes have been defined as total 

fasting, except for the ingestion of water, for more than 72 hours by an individual who is 

mentally competent and not suicidal. Total fasting without water would result in death within 

several days. Total fasting with water may go on for weeks and months without immediate risk 

of permanent injury or death, depending on the whether supplemental nutrients like vitamins 

and small amounts of sugar are taken in the water. Hunger strikes are almost always 

demonstrations for a cause, often against confinement or conditions of confinement. They are 

not intended to be suicidal. 
151 

There is no reason to believe that these factors and expectations are different for the 

Guantanamo detainees. 

In 1975, the World Medical Association (WMA) issued a statement prohibiting artificial feeding 

in prisoners who refuse nourishment. The American Medical Association, the U.S. representative 

organization to the WMA, endorsed the Declaration and later reiterated specific support for the 

provision prohibiting forced feeding. 

In 2006, the WMA clarified and extended the principles including the statement that "Hunger 

strikers should not be forcibly given treatment they refuse" and added guidelines for the 

management of hunger strikes including: "Forcible feeding is never ethically acceptable. Even 

if intended to benefit, feeding accompanied by threats, coercion, force or use of physical 

restraints is a form of inhuman and degrading treatment." 

The WMA principles and guidance have been accepted as the core of medical ethical guidance 

on the management of hunger strikes. 

Management of hunger strikes derived from the WMA guidelines include the following as described in 

the Report of the Constitution Project Task Force on Detainee Treatment. "The involvement of 

physicians is essential for the management of hunger strikes. Their roles include: recognition and 

diagnosis of the hunger strike; assessment ofthe competence of the individual, whether the individual 

is suicidal, or whether there is pressure or coercion from other detainees involved; informing and 

advising the hunger striker regarding expected medical developments and outcomes and making 

decisions about management; treating and dealing with medical issues during the course of the fast; 

managing periods of refeeding after fasting; and dealing with medical crises and terminal, end-of-life 

situations. The physician should be involved as the hunger striker's physician, in a trusted, physicianpatient relationship with the individual's medical interest held as paramount." 

Management of hunger strikes at Guantanamo has differed from what is described as ideal. An 

important, fundamental difference is the indication that hunger strikers are suicidal and they 

must be saved by forced feeding. Hunger striking detainees are not likely to be suicidal. Indeed, 

one of the primary initial tasks of physicians managing hunger strikes is the determination of 

mental competence and whether the individual is suicidal. Those who are suicidal should be 

removed from management as hunger strikers and treated as suicidal patients. 

Forced feeding is medically uncalled for and against established ethical principles. The process 

as practiced at Guantanamo is described by the most recent, March 5, 2013, "Standard 

Operating Procedure on Medical Management of Detainees on Hunger Strike"(SOP) from the 

Joint Task Force, Guantanamo Bay, Cuba. The process includes the forced restraint of the 

detainee's arms, legs and torso in a specially made restraint chair followed by the forced 

passage of a tube through the nose into the stomach, the injection of liquid food into the 

stomach and a period of continued restraint in the chair after the feeding. This is done twice 
152 

daily. The procedure is assaultive, highly abusive, painful and degrading, constituting cruel, 

inhuman and degrading treatment and, in the opinions of many, torture. 

The Department of Defense position that forced feeding at Guantanamo is based on policies 

and practices dealing with hunger strikes in the U.S. Federal Bureau of Prisons (BOP) is not 

accurate. Although the BOP protocol calls for involuntary feeding, there is no indication that 

restraints or restraint chairs are routinely used. Further, a sentencing judge is notified and given 

the reasons for the involuntary feeding and the procedures are videotaped. 

Despite knowledge of and acknowledgement by the Department of Defense that hunger strikes 

are taking place, it has been difficult to fully understand what is going on. Information 

indicated that, after five months of hunger striking, 100 detainees were striking, 45 of those 

were being force fed, and approximately 10 were hospitalized (recent reports from the 

Department of Defense claim that the first and third categories have decreased, but that is 

difficult to verify and much confusion remains). The number being force fed in relation to the 

total on strike suggests that some are partial or intermittent fasters. 

Transparency is an important issue. From 2001 2004, what was happening at Guantanamo 

was largely secret. We did not know what was happening until late 2004 -2005. Currently it is 

known that there is a prolonged hunger strike and that most detainees are involved. The SOP is 

known and contains policies and practices considered to be unethical and cruel inhuman and 

degrading treatment. Thus the problems, including mistreatment of detainees are publically 

known. The absence of clarity, truth, and if necessary accountability makes us all potentially 

complicit. It cannot be said that we did not know or suspect. 

There is little question that the hunger strikes are linked to indefinite detention and a sense of 

hopelessness. It was hoped that the announcements of renewed government attention and 

action that would deal with the transfers of detainees out of Guantanamo and ultimately its 

closing would have an impact, but they did not. Tangible action and results are needed. 

In the meantime, those continuing their hunger strikes should be managed in keeping with 

proper medical care and medical ethical principles and practices- and the public should know 

what is going on. 

The situation and all involved deserve no less. 
153 

The 

CENTER for 

VICTIMS of 

TORTURE 

Testimony to the Senate Judiciary Subcommittee 

on the Constitution, Civil Rights, and Human Rights: 

Closing Guantanamo: The National Security, Fiscal, and Human Rights 

Implications 

Curt Goering, Executive Director 

The Center for Victims of Torture 

July 24, 2013 
154 

Testimony to Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights 

Closing Guontanomo: The Notional Security, Fiscal, and Human Rights Implications 

Curt Goering, Executive Director 

The Center for Victims of Torture 

July 24, 2013 

The Center for Victims of Torture (CVT) commends Chairman Dick Durbin (D-IL) and Ranking Member 

Ted Cruz (R-TX) for holding this hearing on "Closing Guantanamo: The National Security, Fiscal, and 

Human Rights Implications." 

CVT is an international non-profit organization that provides treatment and rehabilitation services to 

torture and war trauma survivors in the U.S. and abroad. Founded in Minnesota in 1985, CVT was the 

first organized program of care and rehabilitation for torture survivors in the U.S. and one of the very 

first in the world. To date, we have extended care to nearly 24,000 survivors of torture and war trauma 

at our healing sites in Minnesota, Africa and the Middle East. 

CVT opposes indefinite detention, which we define as detention without trial for an undefined duration 

over which the individual has no knowledge of when or whether he will be released. From our 27 years 

of experience healing torture survivors, we know indefinite detention causes such severe, prolonged 

and harmful health and mental health problems for those detained that it can constitute cruel, 

inhuman, and degrading treatment. Among the thousands of survivors CVT cares for are many who 

have suffered while being imprisoned without charge or trial and without being told when, if ever, they 

might be released. 

CVT supports a safe environment where detainees held in U.S. custody are treated humanely in 

accordance with U.S. laws and obligations under the Convention Against Torture and Other Cruel, 

Inhuman or Degrading Treatment or Punishment (CAT), the Geneva Conventions, the International 

Covenant on Civil and Political Rights (ICCPR) and other international human rights standards. As such, 

we remain deeply concerned with the continued indefinite detention of most of the 166 detainees held 

at the prison in Guantanamo Bay, Cuba and the ongoing hunger strike among a large percentage of 

those detainees. 

Consequences of Indefinite Detention 

The very indeterminacy of indefinite detention, without charge or process for review and eventual 

determinate sentence or release, creates a degree of uncertainty, unpredictability and loss of control 

over the elemental aspects of one's life, causing severe harm in healthy individuals, independent of 

other aspects or conditions of detention. For these reasons, the physical and psychological ramifications 

of indefinite detention rise to the level of cruel, inhuman, and degrading treatment (CID), a violation of 

U.S. treaty obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment (CAT) and in contravention of U.S. constitutional law. 

Physico/ and Psychiatric Trauma Resulting from Indefinite Detention 

"Cruel, inhuman, or degrading" is not merely a value-laden set of words- measurable physical and 

psychiatric trauma result from CID. Medical examinations have disclosed that indefinite detention have 
155 

led to profound depression and vegetative symptoms, with all the attendant degradation of multiple 

aspects of health. The harmful psychological and physical effects of indefinite detention include: 

Severe and chronic anxiety and dread; 

Pathological levels of stress that have damaging effects on the core physiologic function~ of the 

immune and cardiovascular systems, as well as on the central nervous system; 

• Depression and suicide; 

• Post-traumatic stress disorder (PTSD); and 

Enduring personality changes and permanent estrangement from family and community that 

compromises any hope ofthe detainee regaining a normal life following release.' 

These severe disorders arise because the indefinitely detained prisoner realizes that nothing he does 

matters and that there is no way to end, foreshorten or even know the duration of his incarceration. A 

2008 study' in which former detainees from Abu Ghraib and Guantanamo underwent detailed medical 

and mental health evaluations found that uncertainty was one of the most stressful factors among 

detainees ultimately released without ever having been charged. This uncertainty resulted in 

tremendous anxiety, numbing and disconnecting from feelings of hope. 

Many of our clients who were imprisoned without trial or charge speak of the absolute despair they felt, 

never knowing if their detention would come to an end. CVT clinicians who work with survivors of 

torture that have been indefinitely detained tell us that with no defined end, clients feel there is no 

guarantee there will ever be an end. This creates severe, chronic emotional distress: hopelessness, 

debilitation, uncertainty, and powerlessness. 

These effects are exacerbated in detainees who have been traumatized or tortured prior to 

commencement of indefinite detention. Again, our experience tells us that the lack of control and 

having no sense of what will happen next re-stimulates the kinds of experiences detainees had while 

being tortured. 

Moreover, indefinite detention affects individuals beyond the detainee himself. When a loved one is 

indefinitely detained, families are separated; parents, spouses and children can and have suffered 

similar feelings of uncertainty, unpredictability and uncontrollability leading to the physical and 

psychological effects described above. 

Indefinite Detention Undermines U.S. Foreign Policy, Security and Commitment to Rule of Law 

The United States, as a democratic society that respects the rule of law, has an interest in abiding by its 

legal obligation under both international and domestic law to uphold human rights standards, including 

prohibitions against cruel, inhuman or degrading treatment or punishment. The use of indefinite 

detention- either as an outgrowth of war or as a preventative measure- undermines the U.S.'s 

commitment to the rule of law. 

1 Physicians for Human Rights, "Punishment Before Justice: Indefinite Detention in the U.S.," 

https ://s3 .amazon aws. com/PH R Reports/in de fin ite-detention-j un e 2011. pdf 2 Physicians tor Human Rights, "Broken Laws, Broken Lives: Medical Evidence of Torture by the U.S. Personnel and 

Its Impact," http: //physician sfo rh u rna n rights. org/lib rary/reports/b rake n -laws-torture-report-2008. html. 
156 

In either times of war or peace, there is no legitimate basis in international humanitarian or human 

rights law for the prolonged, indefinite detention of individuals without charge or trial. In conflicts 

between states, detention of prisoners of war and civilians who pose an imperative security risk must be 

released or repatriated at the end of hostilities, or prosecuted for war crimes. In armed conflicts 

between states and non-state armed groups, persons detained for engaging in rebel activity may be 

detained and prosecuted pursuant to domestic laws, but are still afforded due process rights provided 

by international human rights law, most notably the ICCPR. Persons captured outside of an armed 

conflict may be detained and prosecuted for criminal conduct according to domestic and international 

human rights law. 

The Fifth Amendment to the U.S. Constitution provides that "No person shall be ... deprived of ... liberty ... 

without due process of law." Likewise, the ICCPR, to which the United States is a party, provides for 

prohibitions against arbitrary detention, requiring that "Anyone who is deprived of his liberty by arrest 

or detention shall be entitled to take proceedings before a court, in order that the court may decide 

without delay on the lawfulness of his detention and order his release if the detention is not lawful."' 

The continued indefinite detention of individuals at Guantanamo- some of whom have been held over 

11 years without being charged or tried- is inconsistent with U.S. treaty obligations and constitutional 

principles. 

Indefinite detention without charge or trial also has moral consequences for the United States. Not only 

does such a scheme run antithetical to U.S. values, but it also runs contrary to U.S. foreign policy and 

national security interests. 

The United States needs to engage the international community on many complex issues requiring 

multilateral cooperation. U.S. leadership to promote and protect human rights encourages political, 

military, and intelligence cooperation from our allies. By contrast, U.S. engagement in practices such as 

indefinite detention discourages cooperation from allies and international partners critical to furthering 

interests abroad. 

Furthermore, when the U.S. government violates its international legal obligations in the name of 

national security, it provides justifications for other governments and oppressive regimes to do the 

same against innocent civilians, journalists, democracy activists, people seeking to practice their own 

religion, and even puts U.S. troops in danger. 

Hunger Strikes & Force Feeding 

The recent hunger strike among the detainees at Guantanamo underscores the despair among 

detainees facing indefinite detention. Hunger strikes are a form of expression by individuals who have 

no other way of making their demands known. CVT takes the position that forced feeding of mentally 

competent hunger strikers is a breach of various bans on torture and other cruel, inhuman or degrading 

treatment or punishment. 

Prison hunger strikes have occurred in democratic and totalitarian regimes around the world for 

hundreds of years. Prisoners in indefinite detention, at risk of torture, or who are held in other extreme 

3 International Covenant on Civil and Political Rights, Article 9{4), Dec. 16, 1966, 999 U.N.T.S. 171, 61.LM. 371. 
157 

conditions have resorted to hunger strikes or fasts to death as a way to publicize and create conditions 

for negotiations of grievances. Prison hunger strikes are often organized or understood as a form of 

political protest. Notable strikes have occurred during the course of civil and human rights struggles. 

The World Medical Association, an international congress of 102 national medical associations, has 

adopted two documents that address the treatment of prisoners who are on hunger strikes. 

Specifically, the World Medical Association's 1975 Declaration ofTokyo- Guidelines for Physicians 

Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to 

Detention and Imprisonment states in part: 

Where a prisoner refuses nourishment and is considered by the physician as capable of forming 

an unimpaired and rational judgment concerning the consequences of such a voluntary refusal 

of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the 

prisoner to form such a judgment should be confirmed by at least one other independent 

physician. The consequences of the refusal of nourishment shall be explained by the physician 

to the prisoner. 

Additionally, the World Medical Association's 1991 Declaration of Malta on Hunger Strikers provides in 

part: 

Forcible feeding is never ethically acceptable. Even if intended to benefit, feeding accompanied 

by threats, coercion, force or use of physical restraints is a form of inhuman and degrading 

treatment. 

The International Committee of the Red Cross endorses these World Medical Association statements as 

does the American Medical Association. 

Recommendations 

CVT supports a safe environment where detainees held in American custody are treated humanely in 

accordance with U.S. laws and obligations under the Convention Against Torture, the Geneva 

Conventions and other international human rights standards. We were pleased to hear President 

Obama's recommitment to closing Guantanamo during his May 23'd national security speech, and we 

commend the Subcommittee for holding this hearing. 

CVT urges the U.S. government to put an end to the indefinite detention scheme at 

Guantanamo by either charging detainees with a recognizable criminal offence and trying them 

in a court which meets international standards for a fair trial or releasing them. To accomplish 

this, the President should begin transferring cleared detainees to foreign countries using his 

existing security waiver authority, and Congress should pass the Senate Armed Services 

Committee's version of the National Defense Authorization Act for fiscal year 2014, which 

includes provisions ending or lowering barriers on transferring all detainees from Guantanamo. 

CVT also urges the U.S. government to follow the World Medical Association's Guidelines for 

Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 

in Relation to Detention and Imprisonment (Declaration of Toyko) and the World Medical 

Association's Declaration of Malta on Hunger Strikers and its accompanying Guidelines for the 

4 
158 

Management of Hunger Strikers. To this end, the Secretary of Defense should order the 

immediate end of all force-feeding of Guantanamo prisoners who are competent and capable of 

forming a rational judgment as to the consequences of refusing food. He should also allow 

independent medical professionals to review and monitor the status of hunger-striking 

prisoners in a manner consistent with international ethical standards. 
159 

245 SECOND STREET, NE 

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FRIENDS COMMilTEE ON NATIONAL LEGISLATION 

... a Quaker lobby in the public interest 

Written testimony for "Closing Guantanamo: The National Security, Fiscal, and Human Rights 

Implications" Hearing Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, 

and Human Rights 

July 25,2013 

Submitted by Diane Randall, Executive Secretary. Friends Committee on National Legislation 

Senator Durbin and Members of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and 

Human Rights: 

Thank you for holding this hearing and for the opportunity to submit written testimony on this important 

topic regarding Closing Guantanamo. 

The Friends Committee on National Legislation (FCNL) fully supports closing Guantanamo as expeditiously 

as possible on moral and ethical grounds. FCNL is a Quaker lobby in the public interest. We believe that 

the continued existence of this detention center undermines our strength as a country. Our country's 

essential foundation--the US Constitution--is premised on the rule oflaw and protection of human rights. 

Guantanamo violates both of these cherished ideals. Our adherence to international law and its principles are 

what give us standing in the world. 

As I wrote in my recent op-ed in the Washington Post, this abrogation of our country's values harms us in 

our efforts to engage other countries to foster democracy. As long as we continue to let the wound of 

indefinite detention fester, we harm ourselves and jeopardize our national security. Our inability to rectify 

our own errors of the past only perpetuates the wound. 

The continued indefinite detention of the 161 detainees in Guantanamo undermines a moral voice the United 

States has in the world. Eighty-six of these detainees have been approved for release. An immediate first 

step would be to return these individuals to their homes as soon as possible. Another 46 detainees who have 

not been charged or tried are lingering indefinitely with their fates unclear, in a limbo that must be resolved. 

Eighty-one detainees have used the resources available to them--hunger strikes-to protest their unlawful 

detention. and our response has been to force feed them. This action not only violates the hunger strikers 

dignity, it is a further example of violating these individuals' human rights. 

Whatever legitimate anger Americans harbored toward those who perpetrated the ghastly attack on our 

country in 200 I cannot be fairly assigned to those captives at Guantanamo. This "transfer'' ofblame does 

not bring justice to the crime, rather our government is perpetuating injustice. 

We urge Congress to use your powers to end this unjust indefinite detention and close Guantanamo Bay 

Prison. 
160 

Hearing Before the Senate Judiciary Subcommittee on 

the 

Constitution, Civil Rights, and Human Rights 

Statement submitted by CODEPINK: Women For Peace 

July 16h, 2013 

Our organization, CODEPINK, recently returned from a 

delegation to Yemen, where we met with many family 

members who have loved ones in Guantanamo. We also 

met with government officials, from the Prime Minister to 

the Minister of Human Rights. We spent time at the 

National Dialogue Conference with 565 delegates from 

around the country. Universally, we found that the Yemeni 

people are upset that Yemeni prisoners, particularly the 56 

already cleared for release, have not been sent home. 

Most of the Guantanamo detainees (91 out of 166) are from 

Yemen. President Obama had banned the release of 

Yemeni prisoners in 2010 after a man trained by militants 

in Yemen attempted to blow up a U.S.-bound plane in 2009 

with a bomb concealed in his underwear. 

In his May speech, President Obama announced that he was 

lifting this self-imposed ban. Congress immediately tried to 

block the President by passing an amendment to the 

National Defense Authorization Bill (NDAA) on June 14 
161 

that prohibits using Defense Department funds to transfer 

detainees to Yemen for one year. The amendment, 

sponsored by Rep. Jackie Walorski (R-Indiana), passed 236 

to 188. The resolution says: "None ofthe amounts 

authorized to be available to the department of defense may 

be used to transfer, release, or assist in the transfer or 

release, during the period beginning on the date of 

enactment of this act and ending on December 31, 2014, 

any individual detained at Guantanamo (as such term is 

defined in section 103 3 (f) (2)) to the custody or control of 

the republic of Yemen or any entity within Yemen." 

We were in Yemen when House Resolution 1960 passed, 

and we felt the immediate outrage. "This resolution 

simply tells the Yemeni people-in a very 

condescending way-that Yemeni life is of no value," 

said Nadia Sakaff, a prominent member of the National 

Dialogue Conference. Thanks to Ms. Sakaff, hundreds of 

delegates to the National Dialogue Conference signed a 

letter denouncing the resolution and calling on Congress 

and the Administration to repatriate the Yemeni prisoners 

cleared for release. 

Fortunately, HR 1960 is not law, since it has not been 

passed by the Senate and we are thankful that some 

members of the Senate are trying to ease the way for the 

President to close the prison. We hope the full Senate will 

pass the provisions inserted in the 2014 NDAA by the 

Senate Armed Services Committee that would allow the 

Pentagon to send detainees to the United States for medical 

treatment, sustained detention, and prosecution. 
162 

We hope that Congress will listen to the growing 

movement of activists throughout the country who are 

speaking out on this. Various petitions to the President have 

gathered more than 400,000 signatures, the most prominent 

was signed by Lt. Colonel and former Chief Prosecutor at 

Guantanamo, Morris Davis. 

People have rallied and held vigils in cities and towns, 

flooded the White House and Southern Command with 

phone calls and, by the hundreds, fasted in solidarity with 

the hunger strikers. The faith community has called 

Guantanamo a deep moral wound, and 3 8 senior religious 

leaders sent the President and Congress a letter calling for 

the closure of Guantanamo. 

Most dramatically, several U.S. citizens- among them 

military veterans - are now deep into open-ended fasts, 

risking their health and even their lives in their effort to see 

Guantanamo closed. 

If any other country were treating prisoners the way we are 

treating those in Guantanamo we would roundly and rightly 

criticize that country. We can never retake the legal and 

moral high ground when we claim the right to do unto 

others that which we would vehemently condemn if done to 

one ofus. 

The story of Guantanamo remains the shameful case of the 

U.S. government rounding up nearly 800 men and boys, 

indiscriminately labeling them "the worst of the worst," 

and throwing them into an island prison designed to exist 

beyond the reaches of the law, where they would have no 
163 

right to challenge their detention or abuse. The vast 

majority of the prisoners at Guantanamo should never have 

been detained in the first place. Many were simply in the 

wrong place at the wrong time and were fleeing the chaos 

of war when U.S. forces entered Afghanistan. 

The prison at Guantanamo continues to exist in violation of 

both ethical and legal standards, and at risk to our 

collective safety. President Obama and Congress risk 

making Guantanamo and the Bush detention regime 

permanent features ofthe U.S. system .. 

That's why we cal1 on the following: 

• Congress must work with the administration to charge 

or release the men detained at Guantanamo. In 2004 

and 2008, the U.S. Supreme Court ruled that the 

prisoners at Guantanamo may challenge their detention 

in U.S. federal court by means of habeas petitions. Since 

then, federal judges have ruled in the great majority of 

cases that the government lacked evidence sufficient to 

justify the continued detention of the petitioners. Other men 

at Guantanamo have been cleared for release by the U.S. 

government's own Guantanamo Review Task Force, which 

consists of representatives from every government agency 

with a stake in the matter, including the Department of 

Justice, the Department of Defense, and the CIA. All men 

ultimately cleared for release by the courts or the 

government should be immediately repatriated or resettled, 

and all others should be formally charged and tried in a fair 

and open proceeding. 
164 

• Lift the ban on resettling men into the United States. 

More than 15 countries, including France, Spain, 

Portugal, Ireland, Hungary, Belgium, Switzerland, 

Albania, Latvia and Palau, have accepted detainees for 

resettlement without incident. The U.S. government 

should also offer a home to men who have won their 

habeas cases or been cleared for transfer and have no other 

safe country to go toOffering to resettle such men would 

also encourage other countries to make similar offers and 

help shut Guantanamo. 

• Fully investigate the deaths of men who died in 

detention, including the three who died in 2006. Three 

detained men who were never charged with any crime 

died at Guantanamo in June 2006. Initially reported as 

suicides, new evidence from four soldiers stationed at the 

base has raised serious questions about the circumstances 

surrounding their deaths. Until now, the Obama 

administration has not only failed to conduct an 

independent and thorough investigation of the deaths but 

has opposed inquiry and review by the courts. 

• Take responsibility for the well-being of the men after 

they are released and compensate those who have been 

wrongly imprisoned. The U.S. government must not hold 

men without charge in inhumane conditions for years, 

subject them to abuse including torture, and then repatriate 

and resettle them in far corners of the world, leaving their 

rehabilitation and reintegration to other governments, 

organizations, and individuals. The government has a 
165 

responsibility to ensure that the men have adequate support 

and resources after release. 

President Obama himself said that Guantanamo has 

become a symbol around the world for an America that 

flouts the rule of law. It is high time, over a decade after the 

9/11 attacks, for the US to turn the page on this sordid 

chapter of our history. 
166 

GENERAL JOSEPH P. HOAR, USMC (RET.) 

GENERAl, DA VJD M. MADDOX, USA (RET.) 

LIEUTENANT GENERAL ROBERT G. GARD, USA {RET.) 

LIEUTENANT GENERA!. ARLEN D. JAMESON, USAF (RET.) 

MAJOR GENERAL MARl K. EDER, USA (RET.) 

MAJOR GENERAL MELVYN S. MONTANO, USAF (RET.) 

MAJOR GENERAL THOMAS J, ROMIG, USA (RET.) 

BRIGADIER GENERAL JOHN ADAMS, USA (RET.) 

BRIGADIER GENERAL STEPHEN A. CHENEY, USMC (RET.) 

BRIGADIER GENERAL EVELYNP. FOOTE, USA (RET.) 

BRIGADIER GENERAL DENNIS P. GEOGHAN, USA (RET.) 

BRIGADIER GENERAL JoHN H. JoHNs, USA (RET.) 

BRIGADIER GENERAL MURRAY G. SAGSVEEN, USA (RET.) 

July 24, 2013 

Senator Richard Durbin 

Chairman 

Senate Judiciary Committee 

711 Hart Senate Building 

Washington, DC 2051 0 

Senator Ted Cruz 

Ranking Member 

Senate Judiciary Committee 

185 Dirksen Senate Building 

Washington, DC 20510 

GENERAL CHARLES C. KRULAK, USMC (RET.) 

GENERAL MERRILL A. MCPEAK, USAF (RET.) 

VICE ADMIRAL LEE F. GUNN, USN (RET,) 

LIEUTENANT GENERAL CHARI,F.< 0TSTOTT, USA (RET.) 

REAR ADMIRAL JOHN D. HUTSON, JAGC, USN (RET.) 

MAJOR GENERAL WILLIAML.NASH, USA (RET,) 

MAJOR GENERAL WALTER L. STEWART, JR., USA (RET.) 

BRIGADIER GENERAL DAVID M. BRAHMS, USMC (RET.) 

BRIGADIER GENERAL JAMES P. CULLEN, USA (RET.) 

BRIGADIER GENERAL GERALD E. GALLOWAY, USA (RET.) 

BRIGADIER GENERAL LEJF H. HENDRICKSON, USMC (RET.) 

BRIGADIER GENERAL KEITH H. KERR, CSMR (RET.) 

BRIGADIER GENERAL ANTHONY VERRENGJA, USAF (RET.) 

Re: Subcommittee on the Constitution, Civil Rights and Human Rights Hearing on Closing 

Guantanamo: The National Security, Fiscal, and Human Rights Implications 

Dear Chairman Durbin and Ranking Member Cruz: 

As we end combat operations in Afghanistan, we must face the question of what to do with the 

remaining 166 detainees at Guantanamo. At the end of the Iraq war, we transferred 10,000 

detainees from U.S. custody to the government of Iraq. We have already transferred some 4,000 

Afghan detainees held as prisoners of war in Afghanistan to their government. These transfers 

were seen as essential aspects of our national security strategy, and in this respect the transfer of 

Guantanamo detainees is no different. 

What is different is that Guantanamo is a symbol of torture and injustice not befitting a nation that 

is a beacon of liberty to the world. 

As retired generals and admirals, we are sworn to uphold our Constitution, and the laws and the 

treaties by which our nation is bound. Torture violates the Geneva Conventions, the Convention 

Against Torture, the Uniform Code of Military Justice, and domestic laws. Moreover, torture is 

immoral and unreliable, and places our own troops in danger. The torture at Abu Ghraib and 

Guantanarno diminished our moral standing in the world, and as long as the prison remains open, it 

will be a dark reminder of our past. 
167 

The military commissions at Guantanamo, in their many incarnations, remain illegitimate in the 

eyes of the world. When the presiding judge cannot answer whether the U.S. Constitution applies 

and the CIA was discovered to have the ability to censor the proceedings, among so many other 

delays and questions, the commissions are seen as a poor substitute for justice. 

Guantanamo imperils our nation's ability to secure cooperation and intelligence from our allies 

abroad. Both the military and the intelligence community are only as effective as the information 

we collect from partners on the ground, who remain less likely to cooperate so long as the United 

States turns a blind eye to the rule of law. 

There remains a clear path to closing Guantanamo. The 2010 Guantanamo Review Task Force, 

which included all the relevant security and intelligence agencies, provided a comprehensive 

framework for moving forward. That work should continue unimpeded by statutory transfer 

restrictions that impede the work of our Defense, State and intelligence agencies. Our security 

officials and those of our partners abroad can mitigate the risk of any transfers. 

Terrorists aim to sow fear, and thereby to cause us to change who we are. We should demonstrate 

our moral courage by standing true to our values and laws. Closing Guantanamo is a necessary 

step forward in reaffirming our commitments to ourselves and to the world. We welcome this 

Committee's hearing on Guantanamo and urge the Committee to explore how to remove any 

remaining impediments to closing the Guantanamo chapter in our history. 

Sincerely, 

General Joseph P. Hoar, USMC (Ret.) 

General Charles C. Krulak, USMC (Ret.j 

General David M. Maddox, USA (Ret.) 

General Merrill A. McPeak, USAF (Ret.) 

Lieutenant General Robert G. Gard, USA (Ret.) 

Vice Admiral Lee F. Gunn, USN (Ret.) 

Lieutenant General Arlen D. Jameson, USAF (Ret.) 

Lieutenant General Charles Otstott, USA (Ret.) 

Major General MariK. Eder, USA (Ret.) 

Rear Admiral John D. Hutson, JAGC, USN (Ret.) 

Major General Melvyn S. Montano, USAF (Ret.) 

Major General William L. Nash, USA (Ret.) 

Major General Thomas J. Romig, USA (Ret.) 

Major General Walter L. Stewart, Jr., USA (Ret.) 

Brigadier General John Adams, USA (Ret.) 

Brigadier General David M. Brahms, USMC (Ret.) 

Brigadier General Stephen A. Cheney, USMC (Ret.) 

Brigadier General James P. Cullen, USA (Ret.) 

Brigadier General Evelyn P. Foote, USA (Ret.) 

Brigadier General Gerald E. Galloway, USA (Ret.) 

Brigadier General Dennis P. Geoghan, USA (Ret.) 

Brigadier General Leif H. Hendrickson, USMC (Ret.) 
168 

Brigadier General John H. Johns, USA (Ret.) 

Brigadier General Keith H. Kerr, CSMR (Ret.) 

Brigadier General Murray G. Sagsveen, USA (Ret.) 

Brigadier General Anthony Verrengia, USAF (Ret.) 
169 

Remarks of Matthew J. O'Hara, Chicago, Illinois 

Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights 

Hearing on 

Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications 

July 24, 2013 

I want to thank Senator Dick Durbin for convening this very important hearing. Senator 

Durbin has been a steadfast leader in Congress, with his usual clear and reasonable voice, on the 

subject of straightening out the mess our country has created in its prison in Guantanamo Bay, 

Cuba. I am a lawyer in Chicago, Illinois, and since 2006 I have represented men on a pro bono 

basis who are in our prison at Guantanamo Bay. 

In 2010, two of my clients imprisoned in Guantanamo were resettled in European 

countries because it was not safe or feasible for them to return to their homes. One man was 

given a haven in Spain, and the other in Bulgaria. They have both struggled mightily with their 

reintegration into society, especially in countries not their own where they did not speak the 

language, but with the tremendous support of their new countries, they have progressed. They 

are the farthest thing from a threat to anyone, let alone a threat to the national security of our 

great and powerful country. 

But here in 2013, I still have a client at Guantanamo, a 34-year old man from Tajikistan 

named Umar Abdulayev. Mr. Abdulaycv continues to suffer from endless, indefinite detention 

at U.S. hands for no good or legitimate reason. 

After seven years of legal work, it is hard to know what to say about Guantanamo that I 

have not said, and that many others have said, so many times before. Words have really failed 

us, because what is so badly needed now is action. While President Obama has been eloquent on 

the subject of Guantanamo, he has not acted consistent within his authority as President and 
170 

Commander-in-Chief of the nation's armed forces. Instead, he has let men like my client Mr. 

Abdulayev languish even after his inter-agency senior-level task force cleared him for release in 

2010. 

Congress also bears its share of responsibility. It has enacted laws in the guise of defense 

budget measures attempting to tie the President's hands on Guantanamo. Too many members of 

Congress have engaged in mindless fear mongering and demagoguery, based on assertions that 

are patently not true. Other members of Congress have allowed themselves to be demagogued 

for fear of being painted as "soft on terrorism." We need members of Congress to stop the fear 

mongering, and stand up for our Constitution and for human rights, even if they are the human 

rights of Muslim men from far-away lands. Almost twelve years after 9/11, Americans are tired 

of fear and the politics of fear. 

The third branch of our government has been only a beacon of despair for men locked in 

Guantanamo. While district court judges have done their best to wrestle with these cases, the 

Court of Appeals for the D.C. Circuit has made effective judicial relief impossible for the men in 

prison at Guantanamo. It has created a legal standard in which the courts have to credit any 

assertion in any government interrogation report, no matter the source, no matter how many 

layers of hearsay, no matter the lack of personal knowledge by the maker of the statement, no 

matter the motives of the person who originated the statement, no matter the coercion that the 

makers of the statement endured. The court's Guantanan1o case law calls every game in the 

government's favor before it starts. It is no wonder that Mr. Abdulayev and so many others have 

dismissed their habeas corpus petitions in consultation with their lawyers. And the Supreme 

Court has not seen fit to step back in and rectify what the court of appeals has done. 
171 

What remains true for Mr. Abdulayev after all these years, just as it is for so many men at 

Guantanamo, is that he was not captured on a battlefield, or even in a country v.~th which we 

were at war. He has not been charged with any offense, nor mll he ever be. No court has ever 

found his detention lawful. When he was arrested by Pakistani police in 2001, he was only 23. 

Over these years, he has turned from a youth into a mature man with grey hair in his temples. He 

rails at not having a sentence, at not knowing his fate, of not knowing when if ever he will be 

free. But he is also nevertheless an admirer of the United States and of American people. 

I ask the members of this Subcommittee and the members of Congress as a whole to stop 

passing legislation that attempts to restrict the President's right to transfer Guantanamo prisoners 

and that infringes on the powers of the executive branch to charge crimes in cases where it thinks 

appropriate. I also urge the members of the Subcommittee to call on President Obama to put his 

strong words back into action after a three-year period of doing nothing. The men at 

Guantanamo deserve to be released or to be charged in court. The rights enshrined in our 

Constitution, and fundamental human rights that our systems oflaw and government are based 

on, depend on it. 
172 

MUSLIM PUBLIC AFFAIRS COUNCIL 

STATEMENT FOR THE RECORD 

Hearing on Closing Guantanamo: The National Security, Fiscal and Human Rights 

Implications 

SENATE COMMITTEE ON THE JUDICIARY 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS and HUMAN RIGHTS 

UNITED STATES SENATE 

JULY 24,2013 

Chairman Durbin, Ranking Member Cruz and members of the Subcommittee: We are honored to 

submit this statement for the record on behalf of the Muslim Public Affairs Council (MPAC) 

regarding today's hearing on the national security, fiscal and human rights implications of 

closing the Guantanamo Bay detention facility. We commend the leadership ofthe members of 

the Committee for holding today's hearing, "Closing Guantanamo: The National Security, Fiscal 

and Human Rights Implications." 

MPAC is a faith based American institution working for the integration of Muslims into 

American pluralism. To that end, we actively strive to affect policy reforms that uphold core 

American values and preserve constitutionally protected freedoms of all Americans. We have 

done extensive work on highlighting the need to close the Guantanamo Bay detention facility for 

the sake of our counterterrorism and national security efforts. There are real moral, fiscal and 

national security implications in maintaining the facility. As such, we urge Congress to follow 

your leadership and take increased measures to learn and understand the implications of keeping 

Guantanamo Bay open. 

Page I of'S 
173 

We thank you for holding this critical hearing on the implications of the use of keeping 

Guantanamo Bay open for detention purposes. The hearing comes two months after President 

Barack Obama's speech at the National Defense University regarding our nation's future 

counterterrorism policy, and included a renewed pledge to focus efforts on closing Guantanamo 

Bay. We hope the hearing will examine legislative proposals to facilitate the closure of 

Guantanamo, including provisions authorizing detainee transfers as detailed in the National 

Defense Authorization Act (NOAA) soon to be considered on the Senate floor. 

The hearing will address the national security, fiscal and human rights concerns that surround the 

continued indefinite detention of the 166 remaining detainees at the facility, including 86 

detainees who have already been cleared for transfer. We hope the hearing will also explore how 

the continued operation ofGuantanamo Bay undermines the moral authority of our nation in the 

international community and undercuts fundamental values of the American justice system, 

including due process and rule of law. 

The question we must now ask ourselves is: Is the continued use of Guantanamo Bay a 

necessary tool to maintain our national security and counterterrorism efforts? The U.S. is 

the only superpower in the world and is protected by the most powerful military in the history of 

civilization. According to a recent Los Angeles Times op-ed titled An America Eternally 'at 

War,' our military capability will not diminish anytime soon; but will our political and moral 

leadership hold the same weight? 

Page 2 of5 
174 

Yet, the debate among policy-makers and pundits has been whether the moral implications of 

keeping the detention facility open outweigh its ever-dwindling national security use. 

Congressional gridlock, indecisions and wasted taxpayers' money are keeping Guantanamo 

open. Keeping the facility open costs $177 million per year on average, with the Department of 

Defense recently requesting $200 million more to renovate the facility. The average cost to 

house a criminal in a high-security facility in the U.S. is less than $30,000; compare that to more 

than $1 million for each of the detainees. The fiscal implications of maintaining Guantanamo 

Bay are indeed outrageous. 

Costs aside, the moral repercussions ofGuantanamo Bay are inexcusable. Ofthe 166 detainees, 

86 have already been approved for transfer; the detainees are being held without any charges and 

without any evidence of guilt. Now detainees are being forced through nasal tubes to eat, and 

additional medical teams are being flown in to the facility to assist the overwhelmed staff. 

There is no more room for lip service; the doors of this prison must be closed. President Obama 

said "I continue to believe that we need to close Guantanamo Bay. I think it is critical for us to 

understand that Guantanamo is not necessary to keep us safe. It is expensive, it is inefficient, it 

hurts us in terms of our international standing, it lessens cooperation with our allies on 

counterterrorism efforts, it is a recruitment tool extremists. It needs to be closed." 

Impact of Government Actions 

Page 3 of5 
175 

Government actions and political discourse shape the public's perception of maintaining national 

security while upholding our moral code. Congress must take on the leadership role its members 

were elected for and close the facility which has brought shame on this nation. After II years, 

Guantanamo Bay now represents human rights violations, including torture, detention without 

charge and indefinite detentions. 

In 2007, MPAC President Salam Al-Marayati was the first American Muslim to observe 

conditions at the Guantanamo Bay detention center. At that time, MPAC commended and 

supported then Secretary of Defense Robert Gates' public call for the closing of the prison. This 

stance has been supported by human rights groups which have investigated and condemned U.S. 

interrogation and incarceration practices at Guantanamo. 

Conclusion 

The problem with Guantanamo is not the operation per se, but the poor policy that created a 

detention center that does not serve American interests and is in violation of basic human rights. 

While government officials have stated a desire to shut the detention center down, real political 

will on Capitol Hill an10ng the administration and lawmakers must be demonstrated in order to 

turn this into an overdue reality. 

The ways and means by which detainees were captured and transferred to Guantanamo are key 

factors in determining the validity of their detention in the first place. Were they Al-Qaeda 

agents planning attacks on America, and if so, on what evidentiary basis was that determined? 

Corrupted intelligence has become too often and overlooked mistake in various incidents. The 

Page 4 ofS 
176 

American public will become more confident in decision-making at the policy and military 

levels of our government if more transparency is placed in the process. 

MPAC is heartened by the Subcommittee's leadership in holding this hearing and we are grateful 

for the opportunity to present our position on the much-needed closing ofGuantanamo Bay. It's 

clear that the detention center is killing the character of our nation. 

Thank you again for this opportunity to express the views of the Muslim Public Affairs Council. 

We welcome the opportunity for further dialogue and discussion about these important issues. 

Page 5 of5 
177 

Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications 

Senate Judiciary Committee 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2013 

Statement for the Record of the National Association of Criminal Defense Lawyers 

The National Association of Criminal Defense Lawyers (NACDL) is the preeminent 

organization in the United States advancing the mission of the nation's criminal defense lawyers 

to ensure justice and due process for persons accused of crime or other misconduct. A 

professional bar association founded in 1958, NACDL's approximately I 0,000 direct members in 

28 countries and 90 state, provincial and local affiliate organizations totaling up to 40,000 

attorneys-include private criminal defense lawyers, public defenders, active U.S. military 

defense counsel, law professors and judges committed to preserving fairness within America's 

criminal justice system. 

NACDL seeks to uphold the rule of law, ensure equal justice and due process for persons 

accused of crime, and promote the proper and fair administration of criminal justice. In 

furtherance of our mission, NACDL supports closing Guantanamo. Since 2002, NACDL has 

been at the forefront of criminal defense issues surrounding the detention facility and military 

commissions at Guantanamo Bay, Cuba. Our dedication to justice and due process for the men 

detained in Guantanamo led to our creation of the John Adams Project in partnership with the 

American Civil Liberties Union. 1 Through this project, NACDL members were among the first 

lawyers to step up to represent detainees through pro-bono work. These lawyers include some of 

the most prominent and experienced criminal defense lawyers in the country, who assisted 

under-resourced military defense lawyers for detainees facing capital prosecutions in the 

Guantanamo military commissions. 

The protection of civil and constitutional rights and liberties in matters of national security is one 

ofNACDL's principal goals. The national security expertise ofNACDL members ranges from 

work on military commissions, to indefinite detention, to electronic surveillance. NACDL 

continues to oppose unfair and inhumane treatment of Guantanamo detainees and the secondclass system of justice that is the Guantanamo military commissions. 

During the President's speech in May at the National Defense University, he stated that the 

original premise for opening the detention facility at Guantanamo--a legal black hole--was 

found unconstitutional five years ago, and since then, Guantanamo "has become a symbol 

1 While the John Adams Project has come to an end, NACDL continues to provide expertise, consultation, and 

support to the military and civilian lawyers representing defendants vvho are charged in the military commissions at 

Guantanamo. 
178 

around the world for an America that flouts the rule of law."2 The indefinite detention without 

charge or trial of detainees at Guantanamo continues to damage the international reputation of 

the United States and imperil the members of our military around the world.3 Indefinite detention 

is the antithesis of American principles of fair justice. The Guantanamo detention facility should 

be closed, and its detainees released, transferred, or tried in the civilian justice system. 

Many detainees have already been cleared for transfer out ofGuantanamo 

Of the 166 men remaining at Guantanamo, 86 have been officially cleared for transfer by 

President Obama's Interagency Guantanamo Review Task Force.4 These men should be 

transferred immediately. The year-long review process included a Comprehensive Interagency 

Review by more than 60 high-level otlicials from the intelligence community who made 

unanimous decisions on each detainee. Congress should trust their judgment and not stand in the 

way ofthese transfers. Transferring these men is an essential first step toward closing 

Guantanamo. 

Many foreign countries are ready to receive transferred detainees. In particular, many 

governments, including many of our allies, have pressed for the return of their citizens.5 Of the 

86 detainees cleared for transfer, 56 are citizens of Yemen. In June, President Obama lifted his 

self-imposed ban on transfers to Yemen, and the Senate must ensure that no new transfer 

restrictions to Yemen, like a provision in the House version of the 2014 National Defense 

Authorization Act, are enacted. 

Additionally, figures released by Congressman Adam Smith, Ranking Member ofthe House 

Armed Services Committee, reveal that the United States is spending approximately $1.6 million 

per detainee each year that Guantanamo remains open. That is almost 50 times the cost of 

detaining an individual-post-conviction-in a high security federal prison. 6 This is money 

being spent in a time of strict sequestration, to hold 86 men who have already been cleared for 

release from Guantanamo. 

2 Press Release, President Obama, Remarks by the President at the National Defense University (May 23, 2013), 

available at http://wv.w. whi tehouse.gov /the-press-office/20 13/05/23/remarks-presi dent-national-defense-university. 3 Reuters, Colin Powell says Guantanarno should be closed, Reuters.com (June 10, 2007). available at 

http://www.reuters.com/article/2007/06/J 0/us-usa-powell-idUSN 1 04364692007061 0. 

'Guantanamo Review Task Force, Final Report (Jan. 22, 20 I 0). available at 

http://\\ww.justice.gov/ag/guantanamo-review-fina!-report.pdf. 

5 Reuters, Obama Must Follow Guantanarno Promise With Action: Yemen, Reuters.com (June 2, 2013). available at 

http://www.reutcrs.com/article/20 13/06/02/us-ds-yemen-us-idUSBRE951 013720 130602; The governments of 

Kuwait, the United Kingdom. and Afghanistan have also publicly commented on their desire to have their nationals 

returned. Boston Herald, Allies Eager to Bring Home Guantanamo Detainees, Bostonllerald.com (July 13, 2013), 

available at http:/ !bostonherald.com/news _ opinion/international/americas/20 13/07 /allies_ eager _to_ bring_ 

home guantanamo detainees. 6 Bioi, Representative Adam Smith, The Cost of Detention at Guantanamo Bay (June 5, 2013). available at 

http://adamsmith.house.gov/blog/?postid~336801. 
179 

Congress has already given the administration the authority it needs to transfer many detainees 

out ofGuantanamo to foreign countries, and Congress should continue to urge the administration 

to use those tools. However, giving the administration broader flexibility to effect transfers 

would be helpful in ensuring the quick and responsible closure of Guantanamo. NACDL 

supports the Senate Armed Services Committee version of the 2014 National Defense 

Authorization Act for this very reason, and urges inclusion of the detainee provisions in the final 

bill. 

Detainees should be tried in Article III courts 

Detainees must not be tried in a second-class system of justice. The United States should not 

denigrate fundamental American values of upholding the rule of law and the principles of equal 

justice and due process by conducting trials in the Guantanamo military commissions. While 

"reformed'' in 2009, the military commissions continue to permit the use of hearsay and 

derivative evidence discovered from coerced confessions, among many other deficiencies. The 

defense is often denied necessary resources, especially in death penalty cases, as well as access 

to evidence that may be used at trial. 

Additionally, the use of the Guantanamo military commissions may no longer be a viable option 

to try many detainees. In 2012, the Court of Appeals for the District of Columbia ruled in 

Hamdan v. United States (Hamdan II) that material support for terrorism, which was not a 

recognized violation of the international law of war at that time the Military Commissions Act 

(MCA) was enacted (2006 in Hamdan's case), is not prosecutable under the MCA. 7 A few 

months later, the court also held in Al-Bahlul v. United States that the charge of conspiracy is 

similarly flawed. 8 This significantly narrows the jurisdiction of the Guantanamo military 

commissions, and reduces the number of detainees who were slated for prosecution by 

commission. Hamdan II and AI-Bahlul signal a much-needed move of trials to Article Ill federal 

courts if the United States is going to continue prosecutions. 

The traditional criminal justice system is more than capable of handling complex national 

security and terrorism prosecutions. The federal courts' track record speaks for itself: the federal 

court system has handled more than 400 terrorism-related cases since 9/11,9 while the 

Guantanamo military commissions have only completed seven cases, one of which has been 

7 l!amdan v. United States, 696 F.3d 1238 (2012). 8 Al-Bahlul v. United States, 2013 WL 297726 (2013) (overturning AI-Bahlul's conviction of conspiracy by military 

commission. The D.C. Circuit relied on Hamdan 11 to overturn his conviction based on the fact that it was not a 

violation of the international law of war at the time the crime was committed, and therefore could not be tried in 

military commissions. This case was granted en bane review in April 2013 to determine whether military 

commissions may try defendants for pre-2006 instances of standalone conspiracy and providing material support for 

terrorism.). 

9 Representative Adam Smith. An Exit Strategy From Detention at Guanlanamo, HuffingtonPost.com (May 22, 

2013 ). available at http://\\Ww.huffingtonpost.com/rep-adam-smith/guantanamo-exitstratcgy_b_3319616.html?utm_hp _ref=politics. 
180 

overturned on appeal and another is hanging in the balance. 1 0 Additionally, the cases tried in 

federal court have provided valuable intelligence obtained through legal means, as criminal 

prosecutions in federal court do not preclude gathering intelligence, and defendants often 

cooperate with U.S. investigators. 11 

Guantanamo is a money black bole 

The prohibitively costly detention facility at Guantanamo Bay is a large fiscal burden for the 

United States that cannot be maintained during an economic sequester. Figures released by 

Congressman Adam Smith show that the United States is spending approximately $1.6 million 

per detainee each year that Guantanamo remains open. That is almost 50 times the cost of 

detaining an individual in a high security federal prison. 12 Beyond those basic maintenance costs, 

a proposed bill in Congress would increase the money spent on Guantanamo by an additional 

$61 million above what the Department of Defense has requested to build permanent facilities. 

Should this bill be approved, this would total an extra $24 7.4 million to make the facilities more 

permanent at a time when the administration is pushing for Guantanamo to be closed. 13 

The increasing health care costs of Guantanamo detainees are an added concern. The 

deteriorating health of the aging population and the ongoing hunger strikes have led to increasing 

medical costs to adequately supply the small hospital available to detainees on the island. Since 

everything has to be brought into Cuba from elsewhere, including many medical personnel, the 

cost of maintaining the acute hospital is an extreme financial burden. 14 

Besides the upfront cost ofGuantanamo Bay in dollars, the facility creates opportunity costs for 

the Department of Defense in reducing its capacity to use those critical funds on projects that 

enhance the security of our nation, and our military. While more money is spent every year to 

indefinitely detain individuals at Guantanamo Bay, the Department of Defense is facing large 

budget cuts elsewhere in the department. Closing the Guantanamo Bay detention facility can 

ensure that detainees are held in secure facilities that are more fiscally appropriate, while 

reserving critical funding for our military. 

10 See all Military Commissions Cases, http://www.mc.mii/CASES/MilitaryCommissions.aspx (last visited July 22, 

2013). 

11 Peter Finn, Somali's Case a Template for liS. as it seeks to prosecute terrorism suspects in federal court, 

WashingtonPost.eom (Mar. 30, 2013). available at http:l/www.washingtonpost.com/world!nationalsecurity/somalis-case-a-template-for-us-as-it-seeks-to-prosecutc-terrorism-suspccts-in-federalf,?urt/20 13/03/30/53b3 8fd0-988a-11 e2-814b-063623d80a60 _story .html. 

~ Blog. Adam Smith, supra note 6. 13 Op-Ed. Adam Smith, supra note 9. 14 Hearing on The Posture of the U.S Northern Command and U.S Southern Command: Before the House Armed 

Services Comm .. 113" Cong. 24 (2013) (statement of General John F. Kelly. United States Marine Corps 

Commander, United States Southern Command), available at http:/ldocs.house.gov/meetings/ASIAS00/201303201 

I 00395/HIIRG-113-ASOO-W state-KellyUSMCG-20130320.pdf. 
181 

Conclusion 

NACDL supports the prompt and responsible closure of the detention facility at Guantanamo 

Bay, Cuba. It is in our national security and fiscal interests to close Guantanamo. 

To aid in closure, NACDL recommends that the Senate pass the Senate Armed Services 

Committee's version of the 2014 National Defense Authorization Act, which includes language 

that would further facilitate transfers to foreign countries and to the United States to face 

prosecution in an Article III court. This action would provide the President with the flexibility he 

needs to fulfill his promise of closing the Guantanamo detention facility. 

Now is the time for action. Congress has the full support of the President at this moment in time. 

Both Congress and the administration should work together to take the critical first steps of 

transferring individuals who have already been cleared by the President's Interagency Task 

Force, as well as opening up the federal courts to try Guantanamo detainees in a system much 

more fair and constitutional than the Guantanamo military commissions. 
182 

July 16,2013 

TO WHOM IT MAY CONCERN: 

We want to thank you for listening to us. We always believed that America is the haven for 

human rights and we urge you to take the human rights of our son and our family into 

consideration. 

We haven't seen or talked to our son in 15 years and we miss him a lot. We are not asking you to 

do something against the law of your country if our son is found guilty of the charges he is 

accused with. Our only request is for you to have mercy on our family and allow us to talk to 

him. Our eighty-five years old father's only wish in life is to be able to speak with Abdel Rahim 

or see him before his death. The same is true of our mother. Her health is deteriorating by the 

day, in fact she is unable to fast this Ramadan due to her deteriorating health conditions, and her 

main concern is to know that her son is doing well. She says that at this stage in her life she 

would like to see her son so that she could die in peace. 

You may have children, and we ask you to imagine not being able to talk or see your children for 

so many years for crimes they may or may have not committed. Don't you think this would be 

the harshest punishment? Please have mercy on our family and our elderly parents and get us 

permission to call or skype with our beloved brother and son. We love him dearly and we miss 

him every day. 

Thank you, 

/Is 

The Nashiri's 
183 

STATEMENT OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 

To 

SENATE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND 

HUMAN RIGHTS 

Regarding 

CLOSING GUANTANAMO: THE NATIONAL SECURITY, FISCAL AND HUMAN RIGHTS 

IMPLICATIONS 

July 24, 2013 

The Association of the Bar of the City ofNew York applauds Senator Durbin for 

convening this hearing to focus attention on the closing of the detention facility at Guantanamo. 

We are a professional association of over 24,000 members, founded in I 870. Since the 

September II th attacks, this Association has issued numerous thoroughly researched and 

thoughtfully reasoned reports and letters to promote America's long-term security through 

respect for lawful and humane policies. 1 

We have closely monitored developments in Guantanamo from the time the detention 

facility was opened, raising our serious concerns about this facility and the handling of detainees, 

and have urged that it be closed. In addition, this Association was one of the first to address the 

shortcomings of using military commissions to try detainees, issuing a report promptly after 

President George W. Bush's November, 200 I Military Order establishing the Commissions. We 

continue to have observer status and regularly send our committee members to military 

commission proceedings. 

The continued use of the Guantanamo detention facility is a major failing that has longterm repercussions. The history of the facility as a site where abusive interrogation methods 

amounting to torture were used, and its continued role detaining individuals who cannot hope to 

see justice done even though in many cases they have been cleared for release, undermine much 

1 Many of these works are collected in James R. Silkenat and Murk R. Shulman, eds., The Imperial 

Presidency and the Consequences ~f9/JJ: La11yers Respond to the Global War on Terror (2007); more recent 

works arc collected online at http://www2.nycbar.org/Publications/reports/reporlsbycom.php?com= 138. 

THE ASSOCIATION OF THE BAR OF THE CJTY OF NEW YORK 

42 West 44'" Street New York. NY 10036-6689 www.nycbar.org 
184 

of what this nation has done to be world's most respected democracy. Guantanamo also serves 

as a galvanizing symbol for recruiting legions of young potential terrorists who focus their anger 

and actions against the United States. As President Obama said in his May 23, 2013 speech, 

"GTMO has become a symbol around the world lor an America that Houts the rule of law. Our 

allies won't cooperate" ith ifthey think a h;rrori>l will end up at GT\10." 

This image has been exacerbated by the hunger strikes that have been ongoing at 

Guantanamo for the last months. The strikes reflect the suffering and hopelessness inflicted by a 

policy of unjustified indefmite detention that undermines the rule of law. Many of the detainees 

have been incarcerated for more than I I years and see no hope of leaving the prison alive. 

In 2009, President Obama announced his decision to close the Guantanamo facility and 

he reiterated that intention this year. The decision was sound in 2009 and the passage of time has 

only weakened the arguments for keeping the facility open. As a nation we have made 

substantial progress in the struggle against al Qacda, the Tali ban, and associated forces; our 

country is safer and more secure today than it was in 2009; the Iraq war is over and a concrete 

timetable has been announced for the end of the combat mission in Afghanistan; and the 

Guantanamo facility remains a recruiting tool for forces hostile to the United States even as it has 

become an expensive drain on the public fisc in a time of austerity and budget discipline. 

We welcome legislative proposals that would facilitate closing the Guantanamo facility. 

To assist in moving toward that closure, we offer the following recommendations regarding the 

detainees: 

• In the short term, the top priority should be to release or transfer the 86 detainees 

(representing more than half of the current population) who have been cleared 

for release by the Guantanamo Review Task Force. 2 Each day of continued 

detention is a grave injustice for these individuals and a real moral problem for 

our country. Our ideals of fairness and justice cannot abide the detention of 

individuals who have never been charged with any offense, yet who remain in 

captivity, for many years, despite having been cleared for release or transfer after 

a thorough review. In addition, this indefinite detention remains, in the words of 

25 retired military flag officers, "an effective recruiting tool for our enemies."3 

• Recognizing the practical and political obstacles to immediate closure, we 

suggest that the strategy should be to reduce the prison population steadily and 

incrementally, adamantly resisting any suggestion to add new detainees, with the 

goal of winnowing the population down to a small number of detainees who 

2 li.S. Gov't.. Accountability Office, Guantanamo Bay Detainees: Facilities and Factorsfor Consideration 

if Detainees Were Brought to the United States (Nov. 2012) at 9, available at 

http:li\\\\w.gao.govlassctsi66()1650032.pdf (hereinafter, ''November 2012 GAO Report"). 

3 Letter from Retired Generals and Admirals to President Barack Obama (Jan. 9, 2012), available at 

http://www.h un1anri £:htsfirston2h\ p~contcnt/upJoaJs/Rctin:.-d·Gcncra Is~ A dm irals~on- Ten-Y car-Ann i Yersnn -of .. 

GTMO.pdL 

2 
185 

ultimately can be handled through transfers, prosecutions, and/or other 

arrangements. 

• For many of the 86 individuals who have been cleared for release, a continuing 

obstacle to transfer is Section I 028 of the National Defense Authorization Act, 

which establishes significant obstacles preventing detainee transfers to foreign 

countries. This ill-advised statute infringes on executive authority, unwisely 

micromanages the difficult task of dealing with individual detainees, and results 

in a freeze in which the clear losers are the human beings who remain locked up, 

day after day, long after they have been cleared for release. In September, 2012, 

one such individual, Adnan Farhan Abdul Latif, committed suicide, apparently 

out of desperation. There remains some risk of recidivism by some of the 

detainees as is the case whenever any prisoner is released from any prison -

but those risks have been overstated and they should not paralyze the entire 

mechanism of detainee transfer and release.4 However, while Section I 028 

imposes significant obstacles to release and should be repealed, it provides a 

path for release or transfer of detainees through Executive action that culminates 

in a national security waiver by the Secretary of Defense. We urge the 

Administration to direct the Secretary of Defense to take actions to satisfy the 

requirements, wherever possible, for issuing waivers as specified in Section 

!028. 

• Another significant problem with detainee transfers is the unsettled situation in 

Yemen, which according to the U.S. Government Accountability Office affects 

30 of the 86 detainees who have been cleared for transfer.5 There is no easy 

solution to this problem, but the case ofthe Uighurs shows that creative solutions 

are possible. President Obama's lifting of the ban on transfers to Yemen is a 

constructive first step, welcomed by the Yemeni government, which has 

indicated an interest in cooperation. The detainees from Yemen should not be 

treated as a monolithic group; those among them who have been judged to 

present the lowest risk should be repatriated or transferred to a third country. A 

gradual process of transfers would be better than no process at all. More 

broadly, we suggest that a priority of the newly-appointed senior envoy Clifford 

Sloan should be to develop a concrete, sustainable plan to allow for the release 

of all of the Yemeni detainees who have been cleared for release. 

• For those detainees who have engaged in criminal conduct, we urge prosecutions 

in each case where in the professional judgment of DOJ prosecutors, the 

admissible evidence would support a prosecution. We agree with the Obama 

4 In a report dated September 5, 20I2. the Director ofNationallntelligence found only three confirmed 

cases of"rccngagement" among the 70 detainees who have been released since January 2009. This is a rate of only 

4.3%. See Director ofNat'l Intelligence, Summm:v of the Reengagement of Detainees Former(v Held at 

Guantanamo Bay, Cuba (Sept. 5, 2012) at I, available at 

http:/ /w\ n\-.d n i. gm / 1i les/ documents/N ewsroom/Reports%20and %2QPuhs!Rcports %120and ~~20 Pubs_%2020 12/S UJll!Tl 

an %20o1u&4Q~.h.e%20 Rcen gagcmcnt %20o 1'~'020 Detai nccs%20 Formerh %20 I I el d%2 Out%2 OGTM 0. pd L 5 See November 2012 GAO Report at 9. 

3 
186 

Administration that there be a strong presumption in favor of civilian-court 

prosecutions, and we believe the NOAA prohibition on prosecutions in U.S. 

courts, Section 1027, is profoundly misguided. The one Guantanamo detainee 

who to date has been transferred to New York for prosecution, Ahmed Ghailani, 

was convicted in 20 I 0 for his role in the 1998 East Africa embassy bombings, 

and is now serving a sentence of life without possibility of parole at the 

"Supermax" prison in Florence, Colorado. 6 The legitimacy ofGhailani's 

conviction and sentence are unquestioned. Despite the hyperbole, there were no 

disruptions or problems at the courthouse in lower Manhattan during his trial. 

• A particular challenge is how to deal with the 46 detainees at Guantanamo who, 

based on the findings of the 2009 Task Force, cannot safely be released but also 

cannot feasibly be prosecuted.7 In his National Archives speech of May 2009, 

President Obama described this as "the toughest single issue that we will face."8 

Although the legality of detaining these individuals has generally been affirmed 

by our courts, and the 2009 Task Force found that they pose a real threat, it is 

unrealistic and legally untenable for them to be held indefinitely without charge 

or trial. As former Defense Department General Counsel Jeh Johnson observed 

in a thoughtful address at Oxford University, the armed conflict against al Qaeda 

is not perpetual and indefinite; to the contrary, "'[w]ar' must be regarded as a 

finite, extraordinary and unnatural state of affairs," and "[p]eace must be 

regarded as the norm toward which the human race continually strives."9 While 

we recognize that terrorist threats from a variety of sources can be expected to 

continue, at some point, hopefully sooner than we expect, the armed conflict 

against al Qaeda will be over and the lc~al justification for continued long-term 

detention without trials will evaporate. 1 We suggest that the planned draw down 

of combat troops in Afghanistan in 2014 could provide the impetus, politically 

and legally, to re-examine the cases of the long-term detainees, whether through 

Periodic Review Boards- which the Obama Administration has just announced 

it will activate- or otherwise, with a view toward eventual prosecution, transfer, 

or release as appropriate. 

6 See U.S. Atfy's Office for the S. Dist. ofN.Y., Ahmed Khalfan Ghai!ani Found Guilty in Manhattan 

Fed. Court q{Conspiring in the 1998 Destruction qf United States Embassies in E. Africa Resulting in Death (Nov. 

17 1 2010). available at http://\~~\ w.tbi.e.m /nc\n·ork/press-rclcases/20 I 0/m ft~_l 1171 Oa.htm.; Transcript of Sentencing 

at 71. United States v. Ghailani, S 10 98 Cr. l 023 (LAK)(No. l 098). 

7 See November 2012 GAO Report at 9. This number now may be substantially higher since the Chief 

Prosecutor has determined that at least 15 additional detainees cannot be prosecuted on charges of"material 

support" for terrorism. See page 6, itifra. 

8 Remarks hy the President on Nat'/ Sec., Nat' I Archives (May 21, 2009), available at 

http: 1/\\W\Y. ''hi tehousc. c.o\ /th c-press-o ffice/remarks-prcsidcn t -national-securitY-j-2 1-09. 

9 Jeh Charles Johnson, Gen. Counsel of the U.S. Dep't ofDef., The Conflict Against AI Qaeda and its 

Affiliates: flow Will it End?. Address at the Oxford Union, Oxford Univ. (:\ov. 30. 2012), available at 

http://www .]a\\ farehlo£.com-'20 12/ I 1 1

kh-johnson-speech-at-thc-oxf(xd-unionl. 

10 Although the question is settled as a matter of domestic U.S. law, there is today a lack of consensus in 

some quarters as to whether the United States is currently engaged in an armed conflict with global reach under 

international law. 

4 
187 

As noted in the November, 2012 GAO Report, moving Guantanamo detainees to 

secure prison facilities in the United States may be a viable option for the future. 

To date, political opposition and statutory prohibitions have prevented such a 

step, see, e.g., NOAA Sections 1026 and 1027, but it should be explored as a 

cost-efficient alternative that would help achieve the goal of closing 

Guantanamo. However, moving detainees to the U.S., in the long run, should 

not be a substitute for the eventual prosecution, transfer, or release of such 

detainees. 

• It is essential that Guantanamo detainees continue to have reasonable access to 

counsel and to the federal courts to test the legality and circumstances of their 

detention. Such access is mandated by the Supreme Court's decision in 

Boumediene v. Bush, 553 U.S. 723 (2008), which affirmed the constitutional 

rights ofGuantanamo detainees to petition Article Ill courts for a writ of habeas 

corpus. In 2012, the Justice Department sought to impose new restrictions on 

counsel access for detainees whose habeas cases have been terminated. The 

government's position was rejected by Chief Judge Lamberth of the U.S. District 

Court for the District of Columbia. See Memorandum Opinion, In re: 

Guantanamo Bay Detainee Continued Access to Counsel, Miscellaneous No. 12-

398 (RCL) (Sept. 6, 2012) (No. 1009). On December 14,2012, the DOJ 

abandoned its appeal of Chief Judge Lamberth's well-reasoned decision, but the 

government continues to throw up roadblocks to counsel access for the 

Guantanamo detainees. Chief Judge Lam berth's recent decision directing the 

cessation of invasive groin searches of detainees in connection with meetings 

with their attorneys (a decision that was recently stayed by the D.C. Circuit) 11 

offers pointed criticism of the government's continuing interference with 

reasonable counsel access at Guantanamo. 

• Finally, we recommend that the section of the Military Commissions Act of 2006 

that bars judicial review relating to any aspect of the detainees' detention, 

treatment or conditions of confinement (28 U.S.C. §2241(e)(2)) be repealed. As 

the detainees face endless imprisonment, many without trial, it becomes more 

important to permit judicial review of the conditions under which they are kept. 

The current hunger strike, the resulting force-feeding of many of the strikers, and 

other aspects of the conditions at Guantanamo should have the benefit of judicial 

scrutiny. as do criminal penal institutions in the United States. 

Inexorably tied with the Guantanamo facility is the military commission system installed 

there. We believe that the heavy reliance being placed on these tribunals to try detainees is 

seriously misplaced. The record of the past 20 years overwhelmingly demonstrates that the 

Article III courts are up to the challenge of handling even the most complex terrorism cases. 12 

11 in re Guantanamo Bay Detainee Lirigation, Miscellaneous No. 12-mc-398 (RCL) (D.D.C, July II, 

2013). 

12 ln a 20 II article. former Assistant Attorney General David S. Kris compiles voluminous evidence 

documenting the proven effectiveness of the criminal justice system in dealing with accused terrorists. DavidS. 

5 
188 

The lengthy roster of just, credible, and, when appropriate, tough Article Ill prosecutions is a 

testament to the dedication and professionalism of the judges, prosecutors, defense counsel, and 

agents who have handled these cases. Another strength of civilian prosecutions is that they 

integrate our citizenry as jurors and trial observers. Our justice system is recognized at home 

and abroad as a bulwark of due process and procedural fairness and, indeed, as one of the central 

hallmarks of our democratic system of government. We should continue to make full use of it as 

a proven, effective part of our nation's counterterrorism strategy. 

Although military commissions have a long history going back to the Revolutionary War, 

the attempt to re-introduce them as they were constituted after 9/11 was fundamentally flawed, 

culminating in the Supreme Court's 2006 decision finding that the commissions regime was 

unlawful under the Geneva Conventions. 13 

In 2009, Congress enacted legislation which significantly improved the discredited 

predecessor system. We commend Brigadier General Mark Martins for his efforts as Chief 

Prosecutor to promote due process, transparency, and professionalism in the reformed military 

commissions. 14 In our observations ofthe proceedings, we have found the prosecution, defense 

counsel and the tribunal officials are working hard to achieve these aims. Nevertheless, and 

although it is premature to render any judgment about the legitimacy and effectiveness of the 

reformed commissions, it must be acknowledged that there continue to be problems with this 

parallel system ofjustice: 

• The commissions have proceeded at an agonizingly slow pace. It is hard to 

believe, for example, that the individuals accused of perpetrating the 9/11 

attacks have still not been brought to justice. 

• Because of their novelty, the commissions arc still, in some areas, "making it up 

as they go along." In contrast with the Article III courts, which rely on a robust 

body of precedent and a deep and experienced group of lawyers and judges, the 

reformed military commissions sometimes find themselves in uncharted waters. 

This is a real problem, especially where the cases are so difficult. 

Kris, Law EJ?forcement as a Counterterrorism Tool, 5 J. Nafl Securitv L. & Policy L 13-26 (Jun. 26, 2011), 

available at http://w\ill.JDslp.com/2JlllL06/26/la~:.~J.l10rc~_o1ent-as-:J!:f..PUntel1crrqri~U1-toqJ{ Mr. Kris' paper cites 

example after example in which the civilian court system, and FBI and DOJ investigators. developed critical 

intelligence; thwarted ongoing plots; and secured credible, just convictions and severe sentences. I d. at 14-17 (citing 

prosecutions of, among others, Ouassama Kassir. Ahmed Omar Abu Ali. Zacarias Moussaoui. lyman Faris~ John 

Walker Lindh, Hosam Maher Huscin Smadi, Najibullah Zazi, David Headley. Tahawwur Rana, Faisal Shahzad, and 

Ahmed Ghailani): see also Richard B. Zabel & James J. Benjamin. Jr., !Iuman Rights First, in Pursuit of Justice: 

Prosecuting Terrorism Cases in the Federal Courts (2008) (citing and discussing statistical data and scores of 

examples of successful Article Ill terrorism prosecutions dating back to the 1980s): Richard B. Zabel & James J. 

Benjamin. Jr .. Human Rights First, in Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. 2009 

Update and Recent Developments (2009) (same). 

13 1/amdan v. Rum~fe/d, 548 U.S. 557 (2006). 

14 See Brigadier Gen. Mark Martins, Chief Prosecutor, Military Comm'ns, Legitimacy and Comparative 

Law in Reformed Uilitary Comm 'ns, Remarks at the N.Y.C. Bar Ass'n (Jan. 10, 2012), available at 

hnp:!!''l.l.\\dll\Jla.r,~dl/2190 oo !.pdf'. 

6 
189 

The commissions are hobbled by their limited jurisdiction. In Hamdan v. 

United States, the D.C. Circuit reversed the conviction of a military 

commission defendant on grounds that the offense of conviction- material 

support for terrorism- was not a war crime under international law and thus 

was not amenable to prosecution before a military commission for conduct 

predating the 2006 MCA's passage. 15 A similar issue is presently before the 

D.C. Circuit in the case of Ali HamzaAhmad Suliman a] Bahlul, where the 

principal charge- conspiracy-is also not a war crime under international law. 

By contrast, in a civilian court prosecution, there would be no doubt about the 

court's jurisdiction to adjudicate these charges against a terrorism suspect. As a 

result of Hamdan, General Martins felt compelled to reduce the number of 

detainees who are expected to be charged through the military commissions 

system from 35 to no more than 20, including the 14 detainees already charged, 

thus exacerbating the problem of prolonged indefinite detention discussed 

above. 16 

• Defense counsel - \Vho are of course essential to any legitimate system of 

justice have been subjected to particular burdens and difficulties in the 

military commissions proceedings. Due in part to the security restrictions, 

defense counsel have struggled with basic requirements such as having 

privileged communications with their clients and managing the difficult 

challenges of pretrial preparation and mounting a defense. Some of the most 

problematic restrictions were imposed by a prior Guantanamo commander, 

illustrating the impracticality of carrying out high-profile, complex 

prosecutions in a remote location. 17 

• Notwithstanding the good intentions and dedicated efforts of the military and 

civilian lawyers handling the commissions, we believe there will be continuing 

suspicions that the commissions remain a form of"second class" justice and 

that the decisions about whom to prosecute in commissions are based on 

dubious considerations. In short, it will be a real challenge for military 

commissions to earn the same legitimacy as civilian courts or courts martial. 

Although we recognize the need to continue with the military commissions cases that are 

now pending, we are gravely concerned about the prospect of military commissions becoming 

15 Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. Oct. 16. 2012). 

16 Jane Sutton, United States scales back plans for Guantanamo prosecutions, Reuters (June 11, 2013) 

(http://m\" .rculcrs.comiarliclc/2013/06/ 11/uk-usa-guanwnamo-idUKB RE95AOP320 130611 ). 

17 See Letter from Samuel W. Seymour, President. New York City Bar Association, to Jeh C. Johnson, Gen. 

CounseL United States Dep't ofDcf. (Apr. 18, 2011), available at 

!1ttp://\\ \\'w2.n\ cbar .. QI£.:]lQPrcport/upll)aJs/20Q]_~08-

Lette!1oDertolDcfensercProtectin~OrderGo\'ernini!.Counscli\ccesstoDctainecs.pdf (objecting to Protective Order 

and Procedures for Counsel Access to Detainees Subject to Military Comm'n Prosecution at the United States Naval 

Station in Guantanamo Bay, Cuba, dated Mar. 4, 2011). 

7 
190 

institutionalized as a parallel system of justice for the long term. The current armed conflict is 

bound to end- and hopefully sooner rather than later. Accordingly, we urge that no new cases 

be referred to military commissions (including any new cases against existing Guantanamo 

detainees) and that, instead, efforts focus on completing the existing cases promptly, fairly, and 

in a manner that as nearly as possible comports with the procedures and norms applicable to 

civilian courts and/or courts martial. Should there be any future military commission 

prosecutions, we recommend that they occur within the United States, and not at Guantanamo, 

and that they be limited to a very small number with a clear and overriding nexus to armed 

conflict and international war crimes. 

In conclusion, we urge Congress and the Obama Administration to take all necessary 

actions to close the Guantanamo detention facility and provide due process and fair treatment to 

all detainees in accordance with the basic principles on which this nation was founded. 

8 
191 

Testimony of 

Detailed Military and Civilian Pro Bono Counsel 

for Noor Uthman Muhammed 

Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights and Human Rights 

24 July 2013 

INTRODUCTION 

We thank Chairman Durbin and the Members of the Subcommittee for considering these 

important issues relating to the closure of Guantanamo. Our comments specifically address the 

proposed exceptions to the transfer restrictions ofS. 1197, the National Defense Appropriations 

Act (NOAA). 

There is a subset of detainees who have been deemed eligible for prosecution before military 

commissions and an even smaller group who have been charged and participated in the 

commission process. As history has demonstrated, particular members of this smaller group are 

excellent candidates for successful release from the facility at Guantanamo and repatriation to 

their countries of origin. Four individuals have been released as a result of successful military 

commission trials; three of these men pled guilty pursuant to plea agreements. The trials have 

been a success in that the process was completed and the U.S. government honored the outcome 

of each individual case by releasing the detainee. 

Our client, Noor Uthman Muhammed ("Noor" as he prefers to be called) is also among this 

small group and is the next man whose military commission case will soon come to a conclusion. 

Noor entered into a pretrial agreement with the Government and pled guilty, pursuant to that 

agreement, in February 2011. Since that time he has honored his end of the bargain. lie 

completes his sentence on December 3, 2013. For the reasons set forth below, we respectfully 

ask now that Congress permit the United States to live up to the parties expectations by 

maintaining an exception to the transfer restrictions inS. 1197, the NDAA that would allow 

Noor, like the men before him, to be released at the conclusion of his sentence and, in so doing, 

further the integrity of the military commission system .. 

HISTORY OF RELEASE AFTER COMMISSIONS SENTENCE COMPLETED 

Historically, the United States has released detainees at the completion of the military 

commission process. In each case, the scenario has been slightly different, but the underlying 

release decision has been principled. In the cases of negotiated agreements, the parties explicitly 

bargained for release or for meaningful consideration for release, resulting in the creation of a 

credible and legitimate system where the expectations of both parties are satisfied. The United 
192 

States has never attempted to hold an individual indefinitely beyond the expiration of their 

commission's sentence. 

Ibrahim a! Oosi- Pled guilty pursuant to an agreement. Released to Sudan (his 

home country) after his sentence was completed. As a result ofthe FY12 NOAA 

exception for pretrial agreements, no certification required. 

Omar Khadr- transferred to Canada pursuant to terms of an agreement. 

Salim Hamdan- retuned to Yemen at completion of commission's sentence. 

David Hicks- returned to Australia pursuant to an agreement. 

Notably, according to publically available information, all of these men are currently living 

peacefully in their home countries. 

BACKGROUND OF THE PTA EXCEPTION IN FY12 NOAA 

Noor began negotiating a potential agreement with the Government in 2009. At the time, there 

were no congressional restrictions on the transfer of Guantanamo detainees, particularly those 

who had completed their sentences. At the time Noor entered into his agreement, the United 

States had successfully repatriated three men after completion of their sentences. The 

Government and Noor relied in good faith on this record of success in reaching the terms of 

Noor's agreement. Noor pled guilty in February 2011 pursuant to a pretrial agreement (PTA) to 

Material Support for Terrorism (MST) and Conspiracy to commit MST. At the time ofhis plea 

all parties reasonably believed that he would have a meaningful opportunity to be considered for 

release and repatriation to Sudan at the conclusion of his sentence. 

Congress, in §1028 ofthe FY-12 NOAA, recognized the special circumstances where detainees 

pled guilty in military commission and entered into agreements with the expectation that those 

agreements would, at the very least, result in the case being forward to the Secretary of Defense 

(SEC DEF) for consideration for repatriation. Specifically, §I 028 provided an exception to the 

general certification requirements in order to "effectuate- a pre-trial agreement entered in a 

military commission case prior to the date ofthe enactment of this Act." 

The exception for agreements was inserted into the FY 12 Act as a direct response to 

considerations related to Mr. al Qosi and Noor- both men from Sudan and both men serving 

sentences pursuant to agreements. As a result of the pretrial agreement exception, the SEC DEF 

was not required to provide congressional certification ---a provision critical in these two cases 

because without the exception transfer would have been barred by the first prong of the 

certification requirement banning transfers to state sponsors ofterrorism. The exception in FY 

12 provided a great deal of legitimacy to the commission process and facilitated movement 

forward in the process. 

The necessity for a specific exception to facilitate release in this narrow category of cases 

remains vital today not only to honor Noor's agreement but also to reinforce the integrity of the 

commission system. In that regard: 
193 

I. Noor has served nearly 30 months of his 34 month agreed upon sentence (receiving no 

credit for his past 9 years of incarceration) .. He remains at Camp 5 in maximum security 

conditions and in virtual solitary confinement. Despite these harsh conditions of confinement, 

and consistent with his long history of compliance, Noor has fulfilled all of his promises 

contained in his agreement with the Government including a more involved cooperation 

agreement than any of those released before him. 

2. The past model of agreements in the commissions contained little in the way of 

cooperation requirements. The other detainees listed above (Qosi, Khadr, Hicks, Hamdan) either 

had no obligation to cooperate with the U.S. government or a limited requirement that was easily 

fulfilled. By contrast, Noor's PTA is typical of the form of future of plea agreements in the 

commissions. It required ongoing and robust cooperation spanning over the entire period of his 

sentence. It is crucial that when the United States receives such a benefit, it honors the 

reasonable expectations of the performing party with whom it negotiated ... 

3. The legitimacy of the military commissions depends upon the United States fulfilling its 

promises made in pretrial agreements. A promised term of months or years for a sentence is 

rendered meaningless if it results only in movement between camps at Guantanamo. A just and 

fair process should include referral of the case to the SEC DEF for consideration for repatriation 

of the individual at the conclusion of his sentence. Apart from satisfYing its contractual 

obligations, this helps the United States government: 

o receive the benefit of cooperation I intelligence I testimony rrom detainees; 

o avoid lengthy, costly trials that involve a substantial amount of classified material; 

o maintain legitimacy in the global community; and 

o adhere to American and international standards for fair trials 

In Noor's case extreme injustice would result if he were not considered for repatriation to Sudan. 

An important concept of any legitimate criminal system is that it treat similarly situated 

individuals the same. Without distinguishing between the underlying facts in their cases and 

looking solely at the process, Noor's case is nearly identical to Mr. al Qosi's. Both men pled 

guilty to the same crimes and had similar agreements. The one substantial difference between 

their agreements is that Mr. a! Qosi had a much more limited cooperation obligation. Both men 

are from Sudan. As such, the transfer restrictions in the existing NOAA for FY-I 3 and the 

HASC proposal for FY -14 prevent repatriation. Only as a result of the PTA exception in the FY12 legislation was Mr. al Qosi able to return to Sudan. 
194 

RELEASE TO HOME OF ORIGIN 

Not only is it in Noor's best interests to be released and returned to his home of origin, Sudan, it 

is in the best interests of national security .

1 Sudan has had an exceptional and flawless record of 

receiving detainees and integrating them back into society. It has a model program which 

addresses the complex issues involved, from physical and mental health rehabilitation to 

assistance in finding a job. Additionally, it has a proven successful system of accountability and 

monitoring. There have been a total of l 0 former detainees released to Sudan, all of whom have 

been living peacefully. 

In addition to the support from the government of Sudan, Noor has the support of his family 

which has a plan in place for his arrival. He will live with his brother and his family for a period 

of time until he is transitioned and can move into the house that his family has built for him. The 

area in which his family lives in the Northern part of Sudan, called Port Sudan, is a peaceful 

place. Noor is part ofthe Mikal tribe which will provide a wide network of support upon his 

release. There are plans in place for a job and a family. 

According to experts, and supported by example, the Sudanese reintegration program is 

excellent. During Noor's sentencing trial, we utilized the assistance of a psychiatrist, Dr. Jess 

Ghannam, who has worked with former detainees in several countries and has assisted with the 

design and implementation of several rehabilitation programs. His opinion is that Sudan is 

among the best. According to Dr. Ghannam, it is much preferable to return a detainee to his 

home of origin rather than a third country. It is only in the home of origin that the individual 

receives the family, cultural, and community support most important to a successful release. 

Additionally, it is well within the purview of the Secretaries involved in the transfer decisions to 

analyze each individual case with an eye toward what is best for national security. A blanket 

legislative prohibition against transferring Noor to Sudan would make this function illusory. 

5.1197 -ISSUE #1 

Section I 031 of S. 1197 addresses transfers of detainees. Its intent appears to be to create a path 

whereby the United States can honor the outcome of the military commission process. However, 

§ I 031 (a)(3) requires some amendment to ensure that when both parties agree that the detainee 

has successfully completed the commission process, the government has the tools to abide by the 

outcome of that process. 

In Noor's case. there has been a change in the law since his plea in February 2011. In Hamdan 

v. United States (Hamdan Jl), the D.C. Circuit held that material support (MST) offenses are not 

triable by military commission if committed prior to the enactment of the 2006 Military 

1 Unlike the House version of the NDAA, the Senate version would not prohibit return to Sudan. It is critical that a 

blanket exclusion not be included in the final version of the NDAA. The enactment of such an exclusion unduly 

limits the discretion of the Secretary of Defense and ignores Sudan's past successes at reintegration. 
195 

Commissions Act. Hamdan 11, 696 F.3d 1238, 1252-53 (D.C.Cir. 2012). Noor pled to both 

MST as well as conspiracy to commit MST. The convening authority has not yet taken action on 

Noor's sentence, but there is a possibility that the convening authority will not approve the 

findings and sentence based on Hamdan II. If the congressional intent of Section 1031 ofS. 

1197 is to provide a framework for the government to honor the outcome of the commission 

process, some amendment of§ I 031 (a)(3) is required. 

SOLUTION TO ISSUE #1 

Amend § I 031 (a)(3) as follows: 

(3) such individual has been tried in a court or competent tribunal of the United States 

llaviRgj~c~risdiction on charges based on the same conduct that serves as the basis for the 

determination that the individual is an enemy combatant and -

(A) has been acquitted of such charges; or 

(B) has been convicted and has completed serving the sentence pursuant to the 

conviction7; or 

(C) has served a substantial portion of an agreed upon sentence when an 

appellate ruling mandates post trial action disapproving the sentence. 

Or, if it becomes apparent that the full spectrum of options currently listed is not realistically 

possible as an option, then at a minimum, the following should replace the existing (a)(3): 

(3) the Secretary determines, following a trial, that an appellate ruling mandates 

a post trial action disapproving the sentence and the individual has served a substantial 

portion of an agreed upon sentence. 

S. 1197 -ISSUE #2 

Section I 031(b) lists factors that SEC DEF must determine and §I 031 (c) lists factors to be 

considered in making the release detennination. There is no guidance provided to SEC DEF 

regarding which individuals should be considered for transfer. It is possible that an individual 

will participate in the military commission process and complete that process to its logical end 

whether by acquittal, completion of sentence, or some other outcome --- and have no process in 

place for referral to SEC DEF for release consideration. Instead, the individual faces the 

prospect of being returned to the general population and forced to wait at the end of the line for 

an opportunity to present his case before a Periodic Review Board (PRB) without any credit for 

his past participation in the commission process. Not only would that be unfair, but it would 

de legitimize the commission system, waste valuable resources, and do nothing to further the 

President's stated goal to close Guantanamo. 
196 

SOLUTION TO ISSUE #2 

Individuals who plead guilty or are found guilty after a commission trial should be promptly 

considered for release. The certification requirement should be clarified to require that the SEC 

DEF promptly consider post-commissions detainees for certification and release. 

CONCLUSION 

Noor entered into an agreement with the United States Government in good faith. He has lived 

up to his end of the deal. We ask that Congress permit the United States to live up to its end by 

maintaining an exception to the transfer restrictions that would allow Noor, like those before 

him, to be released in December 2013 at the conclusion of his sentence. 

s/Howard Ross Cabot 

Howard Ross Cabot 

Perkins Coie LLP 

2901 North Central Avenue, Suite 2000 

Phoenix, Arizona 85012 

Telephone: 602.351.8235 

Email: HCabof({iipcrkinscoie.com 

s/Katharine McCormick 

Katharine McCormick 

CDR, JAGC, USN 

Defense Counsel 

Office of the Chief Defense Counsel 

Telephone: 703.696.9490 xl74 

Email: Katharine .. HcCormickicuosdmi/ 

s/Christopher L. Kannady 

Christopher L. Kannady 

The Federal Practice Group 

1150 Connecticut Avenue, NW, Suite 900 

Washington, D.C. 20036 

Telephone: 202.862.4360 

Email: ckannadyt{ii(edpractice.com 

s/Amy S. Fitzgibbons 

Amy S. Fitzgibbons 

Assistant Federal Public Defender 

Office of the Federal Public Defender 

for the District of Maryland 

6411 Ivy Lane, Suite 710 

Greenbelt, Maryland 20770 

Phone: 301.344.0600 

Email: Amv Fit=gibhons@(d.org 
197 

STATEMENT of Sabin Willett 

Submitted to the Senate Judiciary Subcommittee on the Constitution, Civil Rights, 

and Human Rights ("Subcommittee") in connection with its July 24, 2013 hearing 

on amendments to the 2013 National Defense Authorization Act ("NDAA") relating 

to the prisoners held at Guantanamo Bay, Cuba. 

I am a partner at the law firm of Bingham McCutchen LLP. I have been 

active as pro bono habeas counsel, in one way or another, on behalf of prisoners at 

Guantanamo Bay since 2005. I am grateful for the opportunity to submit this 

statement to the Subcommittee in connection with its consideration of those 

provisions ofthe NDAA that relate to the prisoners held at Guantanamo Bay, Cuba. 

Tonight in ball parks across America we will sing our national anthem, 

breaking into cheers when we reach the crescendo. We will say, as we like to do in 

July, that we are the land ofthe free, and the home ofthe brave. 

The rest of the world is puzzled by these words, for it knows that we are the 

land of Guantanamo Bay -- that we are the land that imprisons, into a second 

decade, men who have committed no crime and have been "cleared for release." It 

knows that we are the land where, when prisoners, sensibly concluding that they 

will never know freedom, simply want to die peacefully, we shackle them to a chair, 

and force tubes into their nostrils. So we are not the land of the free. We are the 

land of state security. 

We need to be honest with ourselves about this, for the rest of the world 

knows it. 

1\bosappfsl'<bo$\willetps\Documents\PSW Statement to Senate Anned Services Committee~- July 20 lJ docx 
198 

The masters of Guantanamo Bay can hardly boast, either, about being the 

home of the brave. The America that held German prisoners of war in Texas, and 

Italians in Boston, and released them after three years·· that was the home of the 

brave. Today we are frightened of men who were foot soldiers, if they were 

anything at all, in an Afghan civil war a decade ago. They never broke any law. 

Most didn't engage in terrorism, or even battle. If we are still afraid of them, or if 

we arc still using them as pawns for electioneering purposes, then we are not the 

home ofthc brave. 

The world knows this too. So if we are going to be honest, we need to do 

something real about Guantanamo, or else amend our anthem, and sing that we are 

the land of state security, and the home of the timid. I prefer the anthem the way it 

is. But our government has made its words false, and we the people have let them 

do it. 

Since 2009, our representatives in government have been parochial, small· 

minded, willing to use prisoners of war as political pawns. In Congress you enacted 

"gotcha" NDAA certification provisions for political reasons. The President flinched 

from his responsibilities, afraid of the "gotcha." He blamed Congress. Congress 

blamed back. V cry few of you have stood up even for a ban on force feeding. Most 

of you closet with your consultants and pollsters about how the game can be played 

with your base and in the next election. And the prisoners remain, as they have 

been for years, pawns of the game. 

2 
199 

Please stop. If you need to think about anything beyond the words in our 

national anthem, think of how history will view the country we put you in charge of, 

and how it will view your stewardship.' Holding foot· soldiers for a decade ·· and four 

years after they are "cleared?" Leaving men in prison so long they will starve 

themselves just to die peacefully? History will not ignore these things. It will not 

fail to make judgments about the people who did them. 

You should direct the President to use all deliberate speed to close the base, 

by transferring to U.S. prisons all persons charged with war crimes, and 

transferring to home or third countries everyone else. You should also ban the force 

feeding of any competent prisoner. You should do those things right away, by 

separate legislation. 

If you are unwilling to do them, there is an alternative that would at least be 

a start. You can endorse the President's immediate release of military detainees as 

he sees fit in managing the armed conflicts that you have authorized. Article II, 

section 2 of the Constitution gives him that power anyway, but you should make 

your support clear. This would be a simple matter. You could accomplish it by 

abolishing NDAA section 1028, or by adding to NDAA section 1028 a provision that 

creates as an alternative certification the following: 

'"NDAA section_. Notwithstanding the foregoing, whenever in his discretion 

as Commander in Chiefthe President determines that the continued exertion of 

military force against a detainee, wherever held, is no longer warranted by, or 

would be inconsistent with the President's military judgment in connection with 

3 
200 

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201 

My name is Peter Ellis. I'm a former senior trial partner 

and currently "of counsel" at Foley Hoag LLP, a law firm 

with offices in Boston and Washington, DC. I represent 

two young Y emenis Walid Zaid and Mohammed Haidar -

- who have been unjustly imprisoned at Guantanamo Bay 

for more than 11 years. That period spans their entire adult 

lives. 

Neither Walid nor Mohammed has ever been accused by 

our government of doing anything criminal or even morally 

wrong. Neither has ever been a terrorist, nor been 

classified as such by the government. They are not "radical 

Islamists": in fact, like most young men from very poor 

backgrounds, they are quite apolitical. In the course of 

many long, wide-ranging discussions, I have never heard 

either express anti-American sentiments. There is no 

evidence in the classified intelligence reports I have seen 

that they have ever done so. 

Walid and Mohammed have both told me that they had 

very positive views of America before their detention. They 

saw it as a land of both liberty and opportunity. Now, they 

simply express utter bewilderment. How, they ask, can 

America imprison me, possibly forever, when I've done 

nothing wrong? Why is America depriving me of the 

chance to get married, have children, see my ageing mother 

and other relatives, to do something useful with my life? If 

I did something wrong, why haven't I been given a trial? If 

not, why am I still here? Why did Obama promise to close 

Guantanamo and then not do so? 
202 

The only reason that Walid and Mohammed were sent to 

Guantanamo in the first place is that Donald Rumsfeld -

overruling the case-specific recommendations from on-theground military interrogators - decreed that all Arabicspeakers detained in Afghanistan or Pakistan should be sent 

there. The only reason they are still there (when hundreds 

of other young men have been sent home) is that they are 

citizens of Yemen. 1 

Several years ago, shortly after the Christmas Eve bombing 

attempt, President Obama decreed that there would be no 

further repatriations from GTMO to Yemen. Despite 

Yemen's active cooperation with the U.S. and significant 

progress in combating AQAP, that policy remains in effect. 

The result: more than 50 legally and morally innocent 

young men are being held indefinitely in a maximum 

security prison solely by reason of their national origin. Is 

this consistent with American values? 

There are at least two possible ways out of the morass we 

have created at Guantanamo. The first would be to 

promptly re-start the process of repatriating the cleared 

Y emenis to their own country. The second would be to 

ensure resettlement, with appropriate support, in another 

country. 

The administration's reason for not repatriating any of the 

Y emenis who have already been determined by its own 

1 Both men, like many other Yemenis imprisoned at Guantanamo, were approved for 

release or transfer by the unanimous recommendation of the Interagency Task Force 

established by President Obama in 2009 and which completed its work in early 2010. 
203 

national security experts not to pose a significant security 

risk essentially boils down to this: "well, we could be 

wrong, and one, or two, or three of these people might end 

up doing something bad after they're sent home. So we'll 

just keep all 50-odd of them locked up until the war on 

terror is over." 

That rationale is legally and ethically indefensible. If it 

were logical, the U.S. should never free any of its domestic 

prisoners even at the end of their sentences, because some 

of those released may reoffend. The cleared Guantanamo 

prisoners, by contrast, have never been charged with any 

crime, must less convicted, and have been affirmatively 

determined not to have engaged in acts of terrorism. 

A minority of those held at Guantanamo profess or have 

manifested by conduct extreme ideological or anti-U.S. 

views. But these men are not among the group cleared for 

transfer or release: such views would have disqualified 

them from a favorable determination by the Interagency 

Task Force. The others, including my clients, are no more 

politicized or extreme in their religious beliefs than the 

average U.S. citizen. Understandably, after more than a 

decade in prison, they simply want to be reunited with their 

families and to get on with what remains of their lives. 

They do not pose a significant security risk. 

Insistence on "rehabilitation" depends on what is meant by 

that word. Forcing people to listen to months of lectures on 

religious topics is unlikely to prove productive: those who 

are not religious zealots will be bored and regard 
204 

attendance as a waste of time, while anyone who secretly 

harbors extreme views (and has managed to completely 

hide them for over a decade) will not be persuaded. 

The real key to rehabilitation is economic: what drove 

young Y emenis to leave their country for Afghanistan or 

Pakistan in the first place was extreme poverty and the 

unavailability of employment. Jobs are the best predictor of 

good future behavior, and it would behoove the 

administration to work cooperatively with the Yemeni 

government to ensure that repatriated detainees are able to 

find stable employment. Given that it costs c. $900,000 per 

man per year to keep someone at Guantanamo, while the 

average yearly income in Yemen is between $2,000 and 

$3,000, the arithmetic is simple. If the U.S. is genuinely 

concerned about "risk", it should offer economic support to 

ensure future employment. 

Potential resettlement of cleared detainees in countries 

other than their native land will require more than renewed 

diplomatic efforts: success at that task will require 

Congress to change current law. Previous resettlement 

efforts were acutely hampered by the unwillingness of the 

U.S. to accept even a single Guantanamo detainee, no 

matter how innocuous his past. Foreign governments 

understandably inquire why, if particular detainees have 

been judged not to present a material security risk, the U.S. 

is unwilling to accept any of these men. If we suggest that 

elected U.S. officials regard doing so as too much of a 

political risk, our allies respond by asking why they should 

risk a similar response from their own politicians or public. 
205 

Any diplomatic effort to find new homes for men released 

from Guantanamo is likely to founder unless and until the 

U.S. itself decides to accept some modest number (perhaps 

5-8). These men could (and should) be carefully vetted in 

advance, we should take steps to ensure that they are able 

to find employment once here, and it is reasonable to 

subject them to some degree of surveillance and travel 

restriction for a period of some years. It is clear that such 

men would be able to find civilian sponsors in this countly, 

including communities willing to accept them, and that 

such practical and moral support would further minimize 

any theoretical risk they are deemed to present. 

If the current legal barrier to resettlement in the U.S. of a 

limited number of Guantanamo detainees is removed, and 

the administration is permitted to devise a rational plan for 

doing so, it is highly likely that other nations would follow 

suit. For that reason, I and other detainee counsel strongly 

urge approval of such a change in the law? 

Based on my own travels and communications with friends 

and legal colleagues overseas, I can attest to the 

tremendous damage that the continued existence of 

Guantanamo has done and is still doing to our international 

prestige. The U.S. is rightly viewed as betraying its own 

stated values, and perceived as hypocritical whenever it 

condemns human rights abuses in other countries. Prompt 

2 In private discussions between detainee counsel and foreign governments over the past 

five years, U.S. unwillingness to accept any released Guantanamo detainees has been 

repeatedly cited as the single biggest barrier to other nations' willingness to help out. 
206 

and effective steps to close the prison at Guantanamo are 

essential to any effort to restore our international prestige. 

In closing, I'd like to emphasize that the views expressed 

above are not those of a "bleeding heart liberal". My wife 

and I are independent voters who were born into staunchly 

Republican families from whom we acquired our core 

values. My father was a career military officer who fought 

in both World Wars, and I served proudly in the U.S. Navy. 

I first visited Guantanamo more than 50 years ago, in the 

era of the Cuban missile crisis, when it was still a thriving 

naval base and a vital part of our defense readiness. 

I write, moreover, not simply in the interest of my clients, 

but as a citizen vitally concerned with the long-term best 

interests of this country, and as a lawyer committed by oath 

and training to defending the values enshrined in our 

Constitution. History teaches that fear and the irrationality 

that so frequently attends fear are the greatest threats to 

democratic and humane values. It is time for Congress to 

move beyond vague and unfocused fears, and to work on 

crafting constructive, bipartisan solutions that will put the 

mess at Guantanamo behind us, once and for all. 
207 

To the Honorable Senator Durbin and members of the Senate Judiciary Subcommittee on 

the Constitution, Civil Rights, and Human Rights: 

Thank you for addressing the problem of Guantanamo. 

Since 2007, I have I represented a Syrian man, Ahmed Adnan Ajam, identified as ISN 

326, a prisoner in Guantanamo for over II years. Ahmed is one of the 86 men deemed 

not a threat to our country and cleared for release. 

Last communication I received from Ahmed in May, he told of giving up his hunger 

strike of67 days as he could no longer stand the force feeding, his problems with 

sleeping because of the constant noise, the full "sexual" search his neighbor had been 

subjected to four times just to receive phone calls, his isolation, and a request for medical 

care that he did not receive. 

I was happy to hear from him. Once the courts ordered the government to give the 

Guantanamo men access, the costs and logistics of flying to Guantanamo (with hired 

interpreter), made and still make my in-person trips difficult and therefore rare. We write 

letters, but an exchange ofletters can take weeks due to the vetting requirements. We will 

not be able to speak on the phone until the intrusive body searches are no longer in effect. 

So Guantanamo has served its original purposes to isolate, hold beyond the law, and II 

years later, push these men outside our collective consciousness. Thank you for bringing 

this issue to the fore. 

Despite the difficulties and expense, I have traveled to Guantanamo and met with Ahmed 

a number of times. In addition to talking about his habeas corpus case, we talk about 

personal things. We talk about our families. We talk about philosophy and religion. We 

talk about his plan to start an export business after he gets out of Guantanamo. I cannot 

talk to him about Democracy, the wonderful, generous spirit of Americans, and the high 

value we place on justice and fairness. He has seen only the opposite these II years. We 

must transcend the pain of9/11 to let the scales drop from our eyes. We can no longer 

morally imprison men like Ahmed, who had no part in 9111, did not talk up arms against 

the United States. 

By now, you have probably already heard much testimony about the futility of pursuing a 

habeas corpus case in federal court. As a result, this is an issue Congress and the 

President and the American people must resolve together. Remove the Congressional 

barriers for transfer in the National Defense Authorization Act, work with the President 

to make it a priority to release and resettle those deemed not a threat to the United States 

or charge with a crime all those incarcerated in Guantanamo. This makes sense from a 

National Security, American values and humanitarian perspective. 

Guantanamo is a stain on our nation. Please do your best to remove it. 

David Marshall 

Seattle, WA 
208 

STATEMENT ON BEHALF OF AMNESTY INTERNATIONAL USA 

SUBMITTED BY ZEKE JOHNSON, DIRECTOR, SECURITY & HUMAN RIGHTS PROGRAM 

Closing Guantanamo: 

The National Security, Fiscal, and Human Rights Implications 

Hearing Before the Senate Judiciary Subcommittee on the 

Constitution, Civil Rights, and Human Rights 

1. INTRODUCTION 

UNITED STATES SENATE 

JULY 24, 2013 

Mr. Chairman and members of the Subcommittee, I am honored to submit this statement for the 

record on behalf of Amnesty International USA. For more information about Amnesty 

International's concerns and recommendations please refer to our report, "Guantanamo: A 

Decade of Damage to Human Rights." 

Amnesty International is a worldwide human rights movement with more than 3 million members 

and supporters in more than 150 countries and territories. Amnesty International's vision is for 

every person to enjoy all of the human rights enshrined in the Universal Declaration of Human 

Rights and other international human rights standards. 

Amnesty International's mission is to conduct research and take action to prevent and end 

grave abuses of all human rights. Amnesty International is independent of any government, 

political ideology, economic interest or religion. The organization is funded by individual 

members; no funds are sought or accepted from governments for investigating and 

campaigning against human rights abuses. 

2. "GLOBAL WAR" & GUANTANAMO 

"From our use of drones to detention of terrorism suspects, the decisions that we are making 

now will define the type of nation -and world- that we leave to our chl1dren." 

-President Barack Obama, 23 May 2013 

In a landmark speech delivered on May 23,2013, President Barack Obama revisited his 

administration's framework for US counter-terrorism strategy four years after a similar address 

he gave early in his first term. While there were encouraging signs in the recent speech, the 

continuing absence of international human rights law from this framework remains a cause for 

concern. 

In neither speech did President Obama make any express reference to human rights. This is 

regrettable, not least given that his administration's National Strategy for Counterterrorism has 

"respect for human rights" as a "core value" underlying all counterterrorism policies. The 

National Security Strategy and the National Strategy for Combating Terrorism issued during the 

administration of George W. Bush had said much the same thing, but the human rights of 
209 

detainees in US custody were systematically violated nonetheless. Words are one thing, actions 

another. Despite their positive aspects, President Obama's words leave a lot to be desired, and 

it remains to be seen how much will change, and how quickly, after this latest national security 

speech. 

In his 2009 address, President Obama fully endorsed the flawed theory that the USA had been 

engaged in a "global war" since the attacks of September 11, 2001: "Let me be clear," he said 

then, "we are indeed at war with al Qa'ida and its affiliates." In his latest speech, he did so 

again: "We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use 

of force. Under domestic law, and international law, the United States is at war with al Qa'ida, 

the Taliban, and their associated forces." As Amnesty International has long pointed out, the 

broad congressional authorization to which he refers- the Authorization for Use of Military 

Force (AUMF)- was passed after little substantive debate as well as apparent confusion among 

members of Congress about what they were voting for, and the resolution has been exploited 

over the years to justify a range of human rights violations. 

In his latest speech, however, President Obama did raise the prospect of a change in approach 

to meet what he said was the changing nature of the terrorist threat, from a trans-national aiQa'ida capacity to more localized affiliates operating within specific countries and regions, as 

well as the threat posed by "homegrown extremists" in the USA. As an additional reason for a 

rethink, President Obama pointed to the 2014 withdrawal from Afghanistan of US combat troops 

after a dozen years there. Beyond Afghanistan, he asserted, "we must define our effort not as a 

boundless 'global war on terror,' but rather as a series of persistent, targeted efforts to dismantle 

specific networks of violent extremists that threaten America." Every war, he said, "has to come 

to an end" and in this regard the USA was "at a crossroads" requiring it to "define the nature and 

scope of this struggle, or else it will define us." 

Amnesty International has long called for the USA to jettison its flawed "global war" framework 

(and for withdrawal of the AUMF as a clear congressional message of the need for a fresh 

start). The organization urges that this happen now, not at some still undetermined point in the 

future. President Obama said that he was looking forward to "engaging Congress and the 

American people in efforts to refine, and ultimately repeal, the AUMF's mandate. And I will not 

sign laws designed to expand this mandate further." However, the administration does not need 

to wait for Congress to act, but can immediately and publicly announce that it will from now on 

fully meet the USA's international human rights obligations under a legal framework consistent 

with international law that should have been applied from the outset of the post-9/11 response. 

But the "war on terror" -whether in name or notion - has already come to define the USA's 

approach to national security, and this slate cannot be wiped clean so easily. For the USA to 

redefine itself- to begin to live up to its own ideal of a global human rights champion will 

require more than just redefining the nature and scope of the struggle against terrorism. There 

must also be truth, accountability and remedy in relation to the human rights violations, including 

crimes under international law, that have been committed by US forces in the name of this 

"global war." Failure to account for the past will leave the USA not only stained by this part of its 

history, but more susceptible to repeating it. 

President Obama referred to "the rule of law" several times in his 2009 and 2013 speeches. In 

the latter, for example, he reiterated that under his predecessor, "we compromised our basic 

values- by using torture to interrogate our enemies, and detaining individuals in a way that ran 

counter to the rule of law." He repeated that his administration, in contrast, had "unequivocally 

banned torture" and had "worked to align our policies with the rule of law." What the world has 
210 

learned since 2009 (as it had learned once before during the Bush administration) is that a 

promise by the USA to abide by the rule of law should not yet be taken as a commitment that it 

will meet its international human rights obligations in the counter-terrorism context. For here, it 

seems, the rule of law is a flexible domestic concept, the parameters of which depend on who is 

in the White House and how much cooperation Congress feels inclined to provide. 

In May 2009, President Obama explained that he had ordered an end to the use of "brutal 

methods like waterboarding" for interrogating detainees because "they undermine the rule of 

law." From a human rights perspective, his decision to ban the use of what the previous 

administration had called "enhanced interrogation techniques"- employed by the Central 

Intelligence Agency (CIA) against detainees subjected to enforced disappearance in a secret 

detention program operated under presidential authority- was a welcome step. It would have 

been even better if the President had made clear that torture and enforced disappearance had 

been crimes under international law long before September 2001 and that anyone responsible 

for their use would be brought to justice. His failure to use a human rights framework was not 

just a rhetorical failure, but the reflection of a broader policy failure and ongoing violations of 

international law. 

In the 2009 speech, President Obama had opposed an independent commission of inquiry into 

the abuses against detainees committed under the Bush administration on the grounds that "our 

existing democratic institutions are strong enough to deliver accountability." The intervening 

years have proved him wrong, but he did not revisit this matter in his recent address. Instead he 

altogether ignored the question of accountability for these violations. Today, the absence of 

accountability for crimes under international law committed by US forces during the Bush 

administration, and the blocking of remedy for the victims of these and other human rights 

violations, has left the USA in breach of its international legal obligations. This is not the rule of 

law. This is injustice. 

The detention facility at the US naval base in Guantanamo Bay has become a byword for 

injustice. In 2009, President Obama endorsed the use of military commissions to prosecute 

some of the detainees held at Guantanamo. These would not be the "flawed commissions of the 

last seven years," he said, but revised commissions brought into line with "the rule of law." In his 

recent speech President Obama again endorsed military commission trials as an option for 

prosecutions. This time, he appeared to make this endorsement consistent with closing the 

Guantanamo facility- though of course still not consistent with human rights- when he said 

that he had asked the Department of Defense to "designate a site in the United States where we 

can hold military commissions." Military commission trials held in the USA will be as 

unacceptable as those held at Guantanamo, as would indefinite detentions if they were to be 

merely relocated rather than resolved. The military commission system does not comply with 

international fair trial standards. Moreover, imposition of the death penalty at such trials (the 

Obama administration is currently pursuing death sentences against six detainees facing trial by 

military commission) would violate international human rights law. 

The UN Human Rights Committee has stated that the trial of civilians (anyone who is not a 

member of a state's armed forces) by special or military courts must be strictly limited to 

exceptional and temporary cases where the government can show that resorting to such trials is 

"necessary and justified by objective and serious reasons," and where "with regard to the 

specific class of individuals and offences at issue the regular civilian courts are unable to 

undertake the trials." The US government cannot point to any such rationale. It can only point to 

domestic politics, the same domestic politics that the administration blames for the Guantanamo 
211 

gridlock. The military commissions are not by any measure tribunals of demonstrably legitimate 

necessity, but creations of political choice. 

In 2009, President Obama said that the standards governing the continued detention of those 

Guantanamo detainees whom he suggested could neither be prosecuted nor released would be 

brought into line with "the rule of law." Then in 2010, the administration revealed that it had 

decided that there were some four dozen detainees who fell into this category, as "law of war" 

detainees held under the AUMF. In his 2013 address, President Obama revisited this issue a 

little more cautiously than he had four years earlier, and this could herald a welcome change in 

approach. The President referred to those detainees who "cannot be prosecuted," including 

"because the evidence against them has been compromised or is inadmissible in a court of 

law." He said that "once we commit to a process of closing Guantanamo I am confident that this 

legacy problem can be resolved, consistent with our commitment to the rule of law." Without a 

commitment from Congress and the administration to abide by and implement human rights 

principles and law, his own legacy will remain one of detentions and military commission trialseither still at Guantanamo or relocated to the US mainland -that flout the USA's international 

human rights obligations. 

If President Obama's references to the rule of law in 2009 had incorporated international human 

rights law, the US administration would have long ago abandoned its endorsement of indefinite 

detention of Guantanamo detainees and military commissions as the forum in which to 

prosecute any of them (and an approach consistent with human rights would also have led the 

USA to drop its pursuit of the death penalty). Moreover, if the USA had applied human rights law 

from the outset, the reason Guantanamo was chosen as the location for this detention facilityto seek to keep the detainees from the US courts- would never have been countenanced. 

President Obama was right when he said in his latest speech that the Guantanamo detention 

facility "should never have been opened." He should now recognize that in closing it, the USA 

should apply the long missing ingredient- international human rights law. 

In his May 2013 speech, the President restated his commitment to closing the Guantanamo 

detention facility which he said "has become a symbol around the world for an America that 

flouts the rule of law." To this end, he called on Congress to "lift the restrictions on detainee 

transfers" from Guantanamo, promised that '1o the greatest extent possible, we will transfer 

detainees who have been cleared to go to other countries," announced that he was appointing 

"a new senior envoy at the State Department and Defense Department whose sole 

responsibility will be to achieve the transfer of detainees to third countries," and that he was 

"lifting the moratorium on detainee transfers to Yemen so we can review them on a case-bycase basis." While these moves should be cautiously welcomed, the coming days and weeks 

will begin to show whether or not this is another false dawn. 

After all, for more than five years the US administration has been saying that it intends to close 

the 11-year-old detention facility. It is no surprise that many of the detainees feel a sense of 

hopelessness and despair at their situation of indefinite detention. As the UN Special 

Rapporteur on torture said on May 1, 2013: 

"At Guantanamo, the indefinite detention of individuals, most of whom have not been 

charged, goes far beyond a minimally reasonable period of time and causes a state of 

suffering, stress, fear and anxiety, which in itself constitutes a form of cruel, inhuman, 

and degrading treatment." 
212 

Shaker Aamer, who has been held for over 11 years without charge despite being cleared for 

transfer and despite UK Prime Minister David Cameron calling for him to be free with his wife 

and children in London, said back in 2005: "I am dying here every day, mentally and physically .. 

We have been ignored, locked up in the middle of the ocean for four years." 

Each day that passes without resolution of this situation compounds the cruelty to detainees 

and their families. 

President Obama has blamed the failure to close the Guantanamo detention facility within his 

one-year deadline on the "difficult" politics surrounding "an issue that has generated a lot of 

political rhetoric" and made people "fearful." Attorney General Holder blamed members of 

Congress for the administration's U-turn on the trial of five detainees accused of involvement in 

the 9/11 attacks. 

Under international law, domestic law and politics may not be invoked to justify failure to comply 

with treaty obligations. It is an inadequate response for one branch of government to blame 

another for a country's human rights failure. International law demands that solutions be found, 

not excuses. The US administration is currently telling the world, in effect, ''we will resolve the 

Guantanamo detentions when the domestic political climate is right." The USA has not been 

willing to accept such excuses from other governments seeking to justify their systemic human 

rights failures, and it should not be accepted when it is put forward by the USA. 

3. RECOMMENDATIONS TO THE US GOVERNMENT 

Ensure justice and security with human rights: Those responsible for the attacks in the 

USA on September 111

h, 2001, attacks that deliberately targeted civilians and which 

Amnesty International has repeatedly condemned as a crime against humanity, should be 

brought to justice through fair criminal trials without recourse to the death penalty, as should 

anyone responsible for carrying out or planning further such attacks. This is a realistic aim 

that can and should be achieved through cooperation between states in accordance with 

their international obligations. 

Address the Guantanamo detentions as a human rights issue. The detentions must be 

resolved and the detention facility closed in a way that full complies with international human 

rights law. Specifically: 

o Pending resolution of the detentions, and without delaying that goal in any way, there 

should be an immediate detailed review of conditions of detention and of policies 

implemented in response to the hunger strike, including assessing cell-search, forcefeeding and comfort item policies, facilitating continuing access for legal representatives 

to detainees, allowing full access to independent medical professionals, UN experts, and 

human rights organizations, and ensuring all policies comply with international human 

rights law and standards and medical ethics. 

o Expedite safe detainee transfers: Dozens of the Guantanamo detainees have long been 

"approved for transfer" by the US authorities. Particularly now that President Obama has 

lifted the moratorium on repatriation of Yemeni nationals, as the Chairperson of the 

Senate Intelligence Committee had recently urged, the administration and Congress 

should bring about lawful and safe detainee transfers as a matter of priority. The USA 

should not place any conditions on transfers of detainees that would, if imposed by the 

receiving government, violate international human rights law and standards. 
213 

o Charge and try in civilian courts: Detainees who are to be prosecuted should be charged 

and tried without further delay in ordinary federal civilian court, without recourse to the 

death penalty. Any detainees who are not to be charged and tried should be immediately 

released. 

• Immediately drop the "global war" framework. The message sent by the USA's global 

war framework is that a government can ignore or jettison its human rights obligations and 

replace them with rules of its own whenever it decides that the circumstances warrant it. 

Under its global war framework, the USA has at times resorted to enforced disappearance, 

torture, secret detainee transfers, indefinite detention, and unfair trials, as well as a lethal 

force policy that plays fast and loose with the concept of "imminence" and appears to permit 

extrajudicial executions. At the same time, truth, accountability and remedy have been 

sacrificed. Congress and the administration should commit to a framework for US counterterrorism strategy- from detentions to the use of force- that fully complies with international 

human rights law and standards. The 2001 Authorization for Use of Military Force should be 

repealed. 

• Ensure necessary investigations. Ensure prompt, thorough, independent, effective and 

impartial investigations into all credible allegations of human rights violations, with the 

methodology and findings of such investigations made public. 

• Ensure full accountability. Ensure that anyone responsible for crimes under international 

law, including torture and enforced disappearance, committed in the post-9/11 counterterrorism context is brought to justice, regardless of their level of office or former level of 

office. 

Guarantee access to remedy. Ensure that all victims of US human rights violations are 

recognized, and have genuine access to meaningful remedy, as required under international 

law. 

• End any use of secrecy that obscures truth about human rights violations or blocks 

accountability or remedy for violations. Any information that describes or details human 

rights violations for which the USA is responsible must be made public. Among other things, 

such information relating to the identity, detention, interrogation and transfers of those held 

in the now terminated CIA programs of rendition and secret detention should be declassified 

and disclosed, including in the context of trial proceedings being conducted against 

detainees currently held at Guanlfmamo, and in relation to the report on the CIA detention 

program finalized by the Senate Select Committee on Intelligence in December 2012. The 

USA must end any use of the state secrets doctrine that blocks remedy or accountability. 
214 

STATEMENT FOR THE RECORD TO THE SENATE JUDICIARY COMMIITEE HEARING TO REVIEW OPTIONS 

FOR THE CLOSURE OF THE GUANTANAMO BAY DETENTION FACILITY 

17 JULY 2013 

Thank you for the invitation to provide a statement to this committee as you examine options 

for closing the Guantanamo Bay detention facility. My name is Michael Lehnert. I retired from the 

Marine Corps on 1 January 2010 as a Major General after thirty seven years of service In 2002 I was 

directed to form and lead the first Joint Task Force to Guantanamo and establish the detention facility. 

My statement will deal with the early decisions leading up to the establishment of Guantanamo and 

provide a strong recommendation regarding why the facility should be closed forever. My statement is 

based entirely upon open source material and my personal recollections from a decade ago. I kept no 

personal notes during my time in Guantanamo because I did not want to commit a security breach. To 

the best of my knowledge none of the information that I am providing is classified. 

When terrorists attacked the World Trade Center and the Pentagon on the 11'" of September 

2001, I was a newly promoted Brigadier General and had been in command of the 2"' Force Service 

Support Group (2"' FSSG) at Camp Lejeune, North Carolina. This 8,000 person force consisted of the 

support personnel necessary to provide logistics, engineering, military police and medical support for 

the 2nd Marine Expeditionary Force. The 2"' FSSG had several contingency missions-one of which was 

to be capable of immediately deploying in the event of a migrant crisis. This had occurred several times 

in the past and in 1995 as a colonel, I had deployed to command the thirteen migrant camps in 

Guantanamo Bay during operation Sea Signal. During that time I was responsible for the security and 

care of about 18,000 Cuban and Haitian migrants. In sum, in the view of the Pentagon, my unit had the 

capability and I had the experience necessary to set up and run a detention facility for terrorists. 

Ironically, the U.S. Army actually has the doctrinal mission to run enemy prisoner of war camps, 

not the Marine Corps. However in the aftermath of 9-11, no Army command was prepared to deploy 

and meet the timelines required by the Administration. Since the 2"' FSSG was force listed to support 

other contingency missions, it was selected to deploy with the understanding that the duration of our 

deployment would be limited to 60 days whereupon we would be replaced by an Army led Joint Task 

Force. In reality the duration of the deployment was approximately 90 days. 

In the period following the attack on the Pentagon and the World Trade Center, Americans and 

our political leaders experienced a wide range of emotions and pressures. The electorate expected the 

Administration and Congress to "do something" and with the decision to strike the al Qaeda (AQ) 

training camps in the fall of 2001, the wheels were set in motion for Guantanamo. The decision to 

invade Afghanistan to take out the AQ training camps and topple the Taliban regime was probably the 

correct one for the time. What was not anticipated was the number of non Afghans our troops 

encountered on the battlefield. Many had joined the Taliban or AQ to be trained as terrorists but 

others were simply in the wrong place at the wrong time. The challenge to U.S. forces was sorting them 

out. Most of those captured said they were simply studying in a Madrasa. Ironically, for some this was 

accurate. For others it was a cover story. Our troops had little cultural or linguistic knowledge and 

often relied heavily on the word of rival tribal leaders who happily settled scores by selling out their 

ancient rivals or foreigners for money. 

As the conflict progressed, U.S. forces began to collect more and more combatants and 

individuals whose presence was hard to explain. Many were wounded and appropriate facilities and 

security in Afghanistan was scarce or nonexistent. Weather was deteriorating. Medical support was 
215 

limited and U.S. commanders on the ground felt they had a growing humanitarian and security problem 

on their hands. At the same time, the intelligence community believed that these prisoners represented 

an intelligence bonanza if they could just be taken somewhere where they could be safely interrogated. 

The Administration turned to Guantanamo. This wasn't the first time. Previous Administrations 

have used Guantanamo for the flotsam and jetsam of U.S. foreign policy because it occupies a unique 

extra-legal option. In times past it has been used to detain migrants from various Caribbean countries 

and elsewhere while their status was "sorted out". 

As I watched events unfold from Camp Lejeune and with the information coming back from 

Afghanistan because I already had members of my command in that conflict, I instructed my staff to 

begin planning in the event we were told by the Administration to set up detention facilities in 

Guantanamo Bay. 

On the 22nd December 20011 was ordered by the Pentagon through the chain of command to 

fly immediately with key members of my staff to Guantanamo Bay Cuba and to develop an initial 

concept of operations for creation of a full scale detention facility for prisoners that would be 

transferred from Afghanistan to Guantanamo. Little further guidance was provided at the time other 

than that the facility must be able to hold up to 3,000 prisoners. I was instructed to have the concept 

back to the Joint Staff in 48 hours, leave Guantanamo and return to my home station. 

In the ensuing days covering the Christmas and New Years' holidays the guidance changed 

almost hourly. While we were not privy to it, there seemed to be a serious disagreement within the 

Administration on the shape and purpose of the detention facility at Guantanamo. Was it to be simply 

a detention facility or an interrogation facility? What standards were to be used? How many detainees 

would be sent? There was a vigorous and ever changing discussion on what to call them. Originally 

referred to as enemy combatants, then enemy prisoners of war, we were instructed to simply refer to 

them as "detainees". There was clearly little consensus regarding the detention status and legal rights 

of the prisoners whose transfer to Guantanamo was anticipated. Ultimately, we were told that the 

detainees had no rights of habeas corpus and that the Geneva Conventions would not apply because the 

Taliban was considered a failed state, the AQ operatives were non-state actors and international law 

had no binding legal effect on either the President or the military because it was not federal law as 

recognized by the Constitution." At the same time, lawyers within DoD raised serious and legitimate 

concerns about this guidance fearing among other things the precedent and risks it would create for our 

own troops in this and in future conflicts. These unresolved legal battles had far reaching 

consequences. 

Ultimately I received ambiguous instructions to "be guided by but not bound by the Geneva 

Conventions" I privately resolved to strictly adhere to the Geneva Conventions for the treatment of 

enemy combatants and instructed my entire staff to read the Geneva Conventions. I told them that the 

decision to deviate from any of the Conventions was a decision only I could make. For practical reasons 

I did not implement four of the conventions. We did not pay the detainees (either in Swiss Francs as 

required by the Conventions) or in any other form of currency, we did not heat their cells as called for in 

the conventions as it was a tropical climate and we didn't allow them musical instruments-another 

requirement. The Conventions also required those being detained to be provided housing that is 

equivalent to that provided to Security Forces. We didn't do that. We also did not conduct Article 5 

hearings though I requested permission to do so and was denied. Ironically as a consequence of the 
216 

Supreme Court decision in Hamdi vs Rumsfeld, DoD ultimately directed the military to hold Combatant 

Status Review Tribunals ("CSRTs") in 2004 to correct the original failure to hold Article 5 hearings. 

I was also told to build the facility "out of sight of the Cubans who occupied the high ground 

outside the Naval base and in such a manner that the detainees "could not see the ocean". After telling 

the Joint Staff that no such place in Guantanamo existed, the order was rescinded but it is an example of 

the kind of guidance I was receiving. 

On Friday afternoon 4 January 2004, the order came to form and deploy JTF 160 from numerous 

commands across the United States to Guantanamo Bay Cuba and construct a detention facility. I was 

to have the first 100 cells ready for receipt of prisoners within 96 hours of receipt of the order. In other 

words, we had to form a brand new organization, deploy a force and build a jail in four days. We did it 

in 87 hours but it drove many of the decisions that were to haunt us for months after. 

We made the decision to set up the facility in the location known as X-Ray. X-Ray had been the 

camp reserved for migrants in previous times who either arrived at GITMO with known criminal pasts or 

who had committed some sort of offense requiring their detention and isolation from the rest of the 

migrant community. Many stories about how the facility came to be called X-RAY surfaced but the 

truth is prosaic. When we were building migrant camps for Cubans and Haitians in the 90's, we had no 

way of knowing how many camps would be required. We began naming them according to the military 

phonetic alphabet beginning with "Alpha, Bravo" and so on. It was decided that the facility for the bad 

actors needed to be at the other end of the alphabet and for obvious reasons, "Yankee and Zulu" were 

unacceptable. X-RAY was born out of the migrant crises of the 90's. It was located in a remote area of 

the base near the Northeast Gate to facilitate deportation back to Cuba. It was relatively easy to secure 

and had power and water (always a problem at GfTMO) to the facility which had been allowed to 

deteriorate in the Caribbean climate. 

The deteriorated X-Ray facility was dozed and 100 8 by 10 foot cells were constructed out of 

anything we could get our hands on. Most of the fences at GITMO other than the one separating us 

from the Cubans were torn down and used to make cells within the time frame established by the 

Administration. 

However the location of X-Ray and the construction ofthe cells were problematic. The 

footprint of the facility was limited by geography and no more than 300 cells could be constructed 

there. The open design of the cells made it easy for detainees to coordinate their actions to talk to one 

another. It was in full view of anyone who could get close enough and required enormous manpower 

to maintain. It also looked bad. The cells resembled cages. It was clearly a temporary solution driven 

by the amount of time we'd been given. 

Almost immediately we began planning to build a more secure facility at Radio Range. Radio 

Range had been the site of the more permanent migrant camps. It would have been the optimal site 

for the original facility had we been given more than 96 hours. We began designing pre-fabricated 

structures made from shipping containers. These were built off shore where there was more access to 

labor and shipped to GITMO via barge but this came later and during my entire time at GITMO we had 

to work with the limitations of X-RAY. 

The first detainees arrived on the 11th of January 2002. We were told that the first shipment 

would consist oft he "worst of the worst". They arrived via Air Force C-17 transport and had to be 
217 

moved via ferry from the airfield, across Guantanamo Bay, through the Naval Station and residences and 

finally to the detention facility at X-RAY. When the first twenty detainees arrived, they were dressed in 

thick padded jump suits (appropriate for winter in Afghanistan but not tropical Cuba). They wore 

diapers because they hadn't been able to go to the bathroom during their 36 hour nonstop flight from 

Afghanistan. The C-17's refueled in mid air. The detainees were severely dehydrated and disoriented. 

This was a pattern we were to see during all the detainee transfers while I was in Guantanamo. They 

arrived with the pocket litter and any capture documents that accompanied them. These I instructed 

my J2 (Intelligence Officer) to collect and to ensure that an appropriate chain of custody was created. 

The pocket litter ranged from prosaic to inexplicable. They arrived with family photos but some had 

packets of crisp new $100 dollar bills in numerical sequence which we later confirmed were genuine. 

From the capture documents, we could see very early on that in some cases the chain of custody had 

not been maintained and it would be very difficult to tie the evidence to the detainee. 

As time went on we determined that the recommendation to ship a detainee to Guantanamo 

could be made at a very low level within the U.S. command structure in Afghanistan often based upon 

limited evidence, but the decision to return the detainee to their country of origin could be made only at 

the highest level of the Administration. This paradox became the basis for many detainees arriving who 

should never have been sent in the first place. Some of them are still in Guantanamo after eleven years. 

The next shipment of detainees took place about 96 hours later and consisted of those suffering 

from battlefield injuries or illness. One detainee was "expectant," meaning in medical terms that he 

was expected to die. He arrived in Guantanamo suffering from battlefield wounds, TB, frostbite and 

pneumonia. We were able to save him. However at this point it became clear that Guantanamo was 

being used not just as a place to incarcerate potential terrorists but also for those who were a medical 

burden or who didn't have a satisfactory explanation for their presence in a combat zone. On the 

second shipment of detainees we received an Afghan man who had been determined by competent 

medical authorities in Afghanistan to be psychotic. Dubbed "Wild Bill" by the guards, he was a constant 

problem, disrupting the entire prison population. When I inquired of the Pentagon why such a person 

would be sent to us as his psychosis was so extensive that he had no value as an intelligence source and 

there was no evidence of any war crime and no basis for a trial, the silence was deafening. 

Meantime, Guantanamo was becoming "ground zero" for Washington DC field trips. We were 

visited by several Congressional delegations, and the Secretary of Defense came twice with his 

entourage. Daily representatives of the various intelligence services-FBI, CIA, NSA, as well as 

intelligence agencies of other countries all came in briefly. Most spent less than 24 hours on the 

ground. 

Media interest was intense. We were on a 36 hour cycle with one group of media after another 

coming in for briefings and to get their story. We felt that the decision to make Guantanamo the 

spotlight for the war on terror was perhaps intentional because it was manageable and it took attention 

away from what was happening in Afghanistan. Additionally it was much easier to get to Cuba than to 

Afghanistan and its' proximity ensured that we had visitors every day as well as lots of opinions (often 

conflicting) on how to manage detention. 

JTF 160's mission was strictly detention and never interrogation. Initially the interrogation 

mission was carried out by a small contingent of intelligence officers who deployed from our higher 

headquarters out of the United States Southern Command. Later the Administration made the decision 
218 

to create a separate command with sole responsibility for interrogation. This was referred to as JTF 170 

and it was commanded by a National Guard Major General named Mike Dunleavy. 

JTF 170 began to form about seven weeks into the deployment and was fully stood up by the 

time I departed. The decision to create two separate commands-both responsible for separate 

aspects of detainee operations-was a curious and inexplicable one. A violation of the doctrine of unity 

of command, it created an almost unavoidable friction between the two commands. JTF 160's 

responsibility for the humane care and treatment of detainees juxtaposed against JTF-170's 

responsibility to get information out of the detainees as quickly as possible and set up a situation where 

the responsibilities were almost mutually exclusive. The relationship between JTF 160 and JTF 170 was 

professional but tense. It was fairly clear that our objectives were not in synch. During the time I was in 

command, I insisted that two of our guards be present during every interrogation to ensure proper 

treatment of detainees. This wasn't a popular demand but in the end, I believe that it was decided to 

"wait me out" until I redeployed and a more "cooperative" command could be put in place. 

Certain decisions I made were not initially supported by either the Administration or JTF 170. 

My request to bring in the International Committee of the Red Cross (ICRC) was initially denied. I'd 

worked with the ICRC in the past and knew them to be professional. Moreover, if we were to make the 

claim we were treating detainees decently, we could not do so without independent verification. 

Ultimately we got the ICRC in through the help of my higher headquarters at SOUTH COM. I also 

requested a Moslem Chaplain because I knew that our understanding of Islam and the cultural issues 

surrounding treatment of the Koran and dietary requirements was inadequate. After a great deal of 

effort we were finally allowed to bring in the chaplain. Almost immediately I was asked to use him for 

intelligence gathering-a request that I categorically denied. 

On 22 January we received a ruling in the form of an OLC memo dismissing the opinion of the 

Department of State and Pentagon lawyers and asserting that AI Qaeda and Tali ban were not entitled to 

Enemy Prisoner of War (EPW) status because both groups represented a failed state. No guidance as to 

what would replace the Geneva Conventions came with this ruling and 1 decided to continue to follow 

the Geneva Conventions for instructions on humane treatment. 

We were also directed to begin preparing Guantanamo for Military Commissions and under the 

supervision of the Naval Station Commander, a former headquarters building was prepared for this 

eventuality. 

On 27 January, Secretary of Defense Rumsfeld made his first visit to Guantanamo. At that point 

he clearly held the position that the detention facility was to be a temporary one. He was joined on the 

trip by Senators Feinstein, Hutchison, Stevens and Inouye, who all stated afterward that the detainees 

were being treated decently. 

By the time I redeployed back to Camp Lejeune 89 days after my arrival we had 300 detainees 

located at X-Ray or in a specially constructed facility at the Naval Hospital or in a field hospital we had 

constructed for that express purpose. Throughout this period, I became more and more convinced that 

many of the detainees should never have been sent in the first place. They had little intelligence value 

and there was insufficient evidence linking them to war crimes. The problem of repatriation loomed. 

There were detainees from 33 different countries represented within the population of 300. The 

inadequacies of X-RAY as a detention facility were apparent and we'd completed construction of the 

first set of detention facilities at Radio Range. Perhaps most importantly, while we were striving for 
219 

humane treatment in the short term, the absence of a legal basis for their treatment, lack of agreement 

as to their status and absence of a system for determining the terms of their incarceration established 

the groundwork for the situation we find ourselves in today. 

Because I and my command were force listed as part of the force designated for the invasion of 

Iraq, there was a great deal of interest in replacing me with an Army led JTF with the doctrinal mission of 

running detention facilities. I turned over command to Brigadier General Rick Bacchus U.S. Army 

Reserve on 28 March 2002. 

ARGUMENTS FOR CLOSING GUANTANAMO 

In the intervening decade since I left Guantanamo I've had much time to consider what I helped 

to create. Commissioned officers take an oath to "support and defend the Constitution of the United 

States against all enemies foreign and domestic." At the same time we are rightfully expected to carry 

out the lawful orders of our civilian masters. There are sometimes circumstances where our oath of 

office and the requirement to follow the orders of our political leaders fall into stark contrast. 

Our nation created Guantanamo initially because we were legitimately angry and frightened by 

an unprovoked attack on our soil. We thought that the detainees would provide a treasure trove of 

information and intelligence and we as a nation were willing to ignore international agreements and 

support harsh interrogation measures to get it. 

In retrospect the entire interrogation strategy was wrong. We squandered the good will of the 

world after we were attacked by our actions in Guantanamo, both in terms of detention and treatment. 

Contrary to the statements of several senior intelligence leaders, I doubt that the information we 

received was of particular value, and even if it was, there were better ways to get that information than 

the ones we employed that would not have cast discredit on us as a nation. Our decision to keep 

Guantanamo open has actually helped our enemies because it validated every negative perception of 

the United States. It still does. Instead of appearing strong and powerful, our decision to keep 

Guantanamo open makes us look vindictive and frightened, ready to ignore the rule of law if it is not to 

our advantage. 

To argue that we cannot transfer detainees to a secure facility in the United States because it 

would be a threat to public security is ludicrous. The United States incarcerates a higher percentage of 

our citizenry than any other democratic nation in the world and most nondemocratic nations as well. 

While it isn't a statistic we should be proud of, it demonstrates conclusively that we know how to lock 

people up so that they cannot get away. Sadly, imprisonment has become a national core competency. 

The real reason we cannot bring the detainees to the United States and that we can keep them 

in Guantanamo is that we have created a legal fiction that allows us to continue with extra-territorial 

incarceration of detainees, generally without trial or even without charges, against the basic principles 

of our Constitution and values. So the issue that must be resolved is whether this is appropriate 

behavior for the most powerful country in the world and a nation that has said it stands for the rule of 

law and for human rights. As long as Guantanamo exists, that claim is not defensible. 

Many of the detainees currently in Guantanamo should be released and never taken to the 

United States. To argue that the release of less than 200 men back to their homes would threaten our 

security is also an overstatement. We cannot promise conclusively that any detainee who is released will 
220 

not become a recidivist and go back to plan an attack against Americans. Nor can we claim that any U.S. 

criminal released into society after serving their sentence will never commit another crime. The act of 

releasing a prisoner is about risk management. For 37 years lied Marines and every decision I made 

required me to balance the benefits of the action against the risk that I would lose a Marine. lied 5,000 

Marines and Sailors during the initial invasion of Iraq and brought all but one home alive. In 

determining whether or not we should release detainees who have no charges brought against them, I 

would argue that our Constitution and the rule of law conclusively trump any additional risk that 

selective release of detainees may entail. It is time that the American people and our politicians 

accepted a level of risk in the defense of our Constitutional values just as our Service men and women 

have gone into harms way time after time to defend our Constitution. If we make a mockery of our 

values, it calls into question "What are we really fighting for?" 

When I was the Joint Task Force Commander in Guantanamo, I spent many nights unexpectedly 

visiting the facility and talking to the guards. I did this because I wanted to be sure that my guidance for 

humane treatment was being carried out. Many of my young Marines and Soldiers were clearly 

troubled by my insistence on humane treatment pointing out that "the terrorists wouldn't treat us this 

well". My answer to each of these young service members was always the same. "Your point is 

accurate but irrelevant. If we treat them as they would treat us, we become them." 

It is time to close Guantanamo. Our departure from Afghanistan is a perfect point in history to 

close the facility. 

Thank you. 
221 

Statement of Daniel C. Malone to the Senate Judiciary Subcommittee 

on the Constitution, Civil Rights and Human Rights 

on Behalf of Haji Wali Mohammed 

Haji Wali Mohammed (ISN 560) is an Afghan who has lived in Pakistan since his family 

fled the Soviet invasion in the late 1970s. He rose from a life in a refugee camp to become a well 

known currency exchanger; his fortunes have since fallen. Pakistani intelligence personnel 

arrested him in his home on the night of January 24, 2002, and transferred him to American 

custody several days later. He has been imprisoned on the suspicion that he was involved in 

some form of financial facilitation. The government has never charged him with a crime, but 

says he's too dangerous to release. He says he's done nothing wrong. 

I was one of a team of lawyers who filed a habeas petition on Wali Mohammed's behalf 

in 2005. In November 2008, the government filed its first justification ofWali Mohammed's 

detention. In December 2009, it filed a second, substantially different justification. In March 

2010, during a motion for judgment based on the second justification, the government amended 

its justitkation again. By the time the government stood ready for trial, even this third version of 

its case had changed. 

Wali Mohammed testified on his own behalf. He had been telling the same story for 

years, but was anxious to tell it again. He always seemed to believe that if he just told the truth, 

the truth would set him free. In the spring of 20 I 0, he believed that more than ever, as he would 

finally have a chance to tell the truth to a real judge. He testified for a day. A former worldwide 

director of human intelligence collection for the Defense Intelligence Agency testified for him as 

well, as an expert on intelligence issues. The two sides presented closing arguments. 

I felt the trial had gone well for us; so did my colleagues. So, it seems, did the 

government's lawyers. When several months had passed without a decision, the government 

made a secret motion to reopen the record, which the court granted before we had any chance to 

oppose it. Given this opportunity, the government started building a new case. 

I was shocked. Wali Mohammed was devastated. He had stored up so much hope--

more, I think, than he'd realized. He'd finally had a chance to testify in court, to have a decision 

that mattered after over eight years in prison. And we had done nothing to prepare him for this 

turn of events; we hadn't imagined the possibility. 

We had a conference call with him soon after. He didn't ask after our families, as he 

usually would. He didn't joke or laugh, as he sometimes did. He seemed angry. The 

conversation was going nowhere. He started talking about his family, saying how worried he 

was about them, how they were suffering and he couldn't help them. And then, he was 
222 

Statement of Daniel C. Malone 

Page 2 

begging-begging us, begging anyone-to be able to see his children. Anywhere--he no longer 

cared about going home. Anything-he didn't care what he had to do. He was sobbing, wailing, 

pleading to see them. Our translator couldn't keep going. He, too, broke down. So did I. I'm 

sure others did too. 

Nearly three years later, we are approaching a second trial. The government again has a 

new case-its fourth. Some of the evidence it has used to try to justify Wali Mohammed's 

indefinite detention is secret-known only to its lawyers and the judge. 

Wali Mohammed will testify again at his second trial, but without the same belief in our 

justice system. We will be ready-but we can only oppose what we know. We don't speak with 

him anymore. He has asked that we just write him. He doesn't want to be subject to genital 

searches, as are now required to have a telephone call. 

In the years since the last trial, Wali Mohammed's eldest son, who quit school to try to 

support his family, died in a traffic accident. Wali Mohammed nearly went mad over this. One 

ofWali Mohammed's sisters is gravely ill, as is one of his brothers. He may never see them. 

The life he had hoped to provide for his children is slipping away. They aren't being educated 

the way he would have wanted; they are sinking into a hardscrabble existence. 

Wali Mohammed has been held for over II years now-without charge, and without a 

court's decision, in a contested proceeding, as to whether the government's shifting claims 

provide a legal basis for taking him from his home and his family, and putting him in prison. 
223 

STATEMENT FOR SENATOR DURBIN 

Brig. Gen. (Ret.) David R. Irvine, USA 

July 24,2013 

I'm David Irvine; I live in Salt Lake City, Utah. I'm an attorney in private practice. I 

enlisted as a private in the 96th Infantry Division, U.S. Army Reserve, in 1962. I was trained as 

an intelligence analyst. I received a direct commission as a strategic intelligence officer in 1967. 

I retired as a brigadier general in 2002. My last assignment was deputy commander for the 96th 

Regional Support Command, and I held a faculty position for 18 years with the Sixth Army 

Intelligence School, where I taught prisoner of war interrogation and military law for more than a 

thousand soldiers, airmen, and marines. Since 2005 I have been closely involved with a group of 

more than 50 retired flag officers who have worked assiduously and publicly to get the United 

States out of the torture business, to close the prison at Guantanarno, and to end the reliance on 

military commissions. For the past two years I was a member of the Detainee Treatment Task 

Force sponsored by the Constitution Project. I've also served four terms as a Republican 

member of the Utah Legislature. 

For me, this all began with the photographs from Abu Ghraib. Those photographs and 

the story behind them left me in complete shock, as did the revelation that Abu Ghraib was the 

lineal descendant of Guantanarno Bay, Cuba. I could not believe that the Army I served for 40 

years was capable of such barbaric treatment of prisoners in our custody. The notion that it 

could be excused by calling them detainees was all the more offensive. I had spent the better 

part of a military career teaching soldiers how to be effective interrogators within the constraints 

of the Geneva Conventions. I had drilled my military students with the example of Warrant 

Officer Hugh Thompson, who, as a helicopter pilot in Vietnam had discovered the My Lai 

massacre and landed his chopper between a group of unarmed civilians, and at gunpoint turned 

back an Army platoon bent on murdering them. It was unthinkable to me that torture and abuse 

could have been ordered at the highest levels of our government. It was unthinkable to me that 

officers and noncommissioned officers at Guantanarno Bay, Abu Ghraib, and dozens of other 

locations in Afghanistan and Iraq could watch the Geneva Convention abuses by their troops and 

do nothing to interfere. I didn't know it then, but I had a lot to learn. 

I've never been to Guantanamo, but I've had a Guantanamo experience that not many 

have had, and I'd like to share it with you. In April2012, I was in London to interview three 

former Guantanamo prisoners and one of their lawyers. Moazzarn Begg, Bisher al-Rawi, and 

Omar Deghayes. The lawyer was Clive Stafford Smith. It was an experience I will never 

forget. I have attached the profile information on the three prisoners prepared for the London 

interviews by the Constitution Project's staff for the Task Force on Detainee Treatment. They 

are provided as Exhibits I, 2, and 3. 

The previous administration classified these Guantanamo prisoners as "the worst of the 

worst," just as the government has said about every prisoner, past and present. The men with 

whom I spoke are very well-educated, bi-lingual, and they would have charmed a dinner party at 

your home or mine. Begg had legal training. Deghayes is a law graduate. I should be clear: 

until that interview, I had refrained, in my own mind, from using one word in conjunction with 

Guantanamo and all it represents. After talking at length with these men about their experiences 
224 

there, the word that keeps creeping into my consciousness, with respect to what "we" have done 

there, is: "depraved." That's a huge word. But it fits. All the more so because many of those 

who were at Guantanamo were guilty of nothing more than being in the wrong place at the 

wrong time, and they were sold to us for a bounty. 

Mr. Begg made a comment you would find ironic. He was held in solitary confinement 

for two years, but he said, "I got a classical education at Guantanamo. They wouldn't let me 

read news or anything about current events, so I read Dickens, Tolstoy, and Dostoevsky." When 

I noted that some would describe "War and Peace" as self-inflicted torture, he smiled and 

laughed. Mr. Begg was interrogated more than 300 times. 

Mr. Begg spoke at length about how damaging Guantanarno and torture have been to our 

interests around the world. He said he has traveled extensively since his release, but has been 

denied entrance to only two countries: Canada and Qatar both denials per the request of the 

United States. He has never been charged, he has never been tried on charges. He is on a US 

no-fly list as a "sponsor of terrorism." The evidence: "My book~ the fact that I published it." 1 

"I am guilty of having been a prisoner at Guantanarno; that is my crime." Before he was finally 

released, he was visited in solitary by two CIA officers who had interrogated him when he was 

first arrested. They brought in a "confession" for him to sign. He was told that he could "go 

before a judge" if he signed the confession, and also that he could be released to his family if he 

would agree to become an informant. He said, "The confession read like it had been written by a 

12 year-old. There were all of these references to my having had dealings with Osama binLaden, and when I said that none of that was true, I was told that it had to be in the statement, 

and ifl resisted I would be sent to Egypt. The only reason I signed was because I wanted to go 

in front of a judge and tell about everything that had happened to me in American custody. If I 

had known they wouldn't allow that, I would never have signed." 

'That coerced confession is the basis for his status today as a sponsor of terrorism. There 

were false promises made, he was denied legal counsel even though the statement was intended 

for use in a judicial proceeding. I asked him what had been the worst treatment he had 

experienced. He said, "I could take the beatings. The worst torture was when they told me they 

had arrested my wife, and I heard a woman screaming in another cell, and I thought they were 

torturing her. I have never heard my wife scream, so I had no reason to think it wasn't her. It 

was torture seeing and heating other prisoners being tortured and beaten." 

Bisher ai-Rawi was one of the oldest prisoners when he was arrested, at age 40. Of the 

three, he had the most wry sense of humor, and he is smart enough to fully understand the Kafkaesque nature of much of what went on. When he was finally told that he would be taken in front 

of a Combatant Status Review Hearing the next day, he asked for paper and a pencil in order to 

write out what he felt he needed to say at the hearing. He was told he could either have paper or 

a pencil, but not both. He went before the CSRH, and without access to evidence or counsel 

the hallmarks of due process- he was determined to be a continuing threat. The next day, he 

1 "Enemy Combatant: The Terrifying True Story of a Briton in Guantanamo." by Moazzam Begg with Victoria 

Brittain. First published in Great Britain by The Free Press, 2006; republished by Pocket Books, 2007 (an imprint of 

Simon & Shuster UK, Ltd: a CBS Company. 

2 
225 

was handed a weeks-old Jetter from his lawyer (obviously it had been held back) advising him to 

not appear or cooperate. 

Mr. al-Rawi described prison conditions: "The food was terrible, and it was seldom 

enough. We were always hungry. I was surprised when I got there (Guantanamo) that everyone 

looked so skinny. We could never get medical treatment. Because I could speak English, other 

prisoners would ask me to try to get medical help for their problems. I made the requests, but I 

had to make them over and over. Once, I was transferred to another area, and a few months 

later, when I was transferred back, the same guy was still having the same problems." He said 

that everyone was sick much of the time and had dental problems, and that they were told by 

guards and interrogators that part of the plan was to send them home with all kinds of diseases 

and impairments, so they would never be healthy again, and their families would forever have to 

care for them like children. Mr. al-Rawi said that he was instructed (step-by-step) by a doctor 

about how to hang himself in his cell, and that anti-depressants (Prozac) were distributed for the 

fun of guards watching hallucinatory reactions. 

I asked Mr. al-Rawi what had been the worst treatment for him, and he said, "Watching 

and listening to other people being beaten." He then described what had been the most 

demeaning experience. That was being taken for showers in groups of I 0 or 12 at a time. He 

said, "They would make us strip naked in our cells, and then they would chain us in a line, frontto-hack, with our hands tightly-cuffed under another man's private parts. That was terribly 

degrading for Muslims or anyone else, and it really, really hurt as we would struggle along." All 

three objected to the forced nudity, and while naked, being "photographed, touched, assaulted, 

spat upon, ridiculed, and threatened with dogs. 

Omar Deghayes walked in with an obviously broken nose and one very gimpy eye. He 

had graduated from law school and was waiting to take exams when he was arrested. He was the 

biggest of the three, and was the most resistant of the three to the prison regime. I asked him 

what had been the worst things done to him, and his response was identical to the others. His 

physical injuries were inflicted by guards in "reaction force" episodes, where 6 guards in SWAT 

gear would enter a cell to subdue an uncooperative prisoner. They would force him to the floor, 

park three guys on top of him, cuff his wrists and legs, and then beat the daylights out of the guy 

on the ground. Thus the broken nose. His eyes were targeted by an officer and a guard in one of 

these. The guard pushed his two forefingers into Mr. Deghayes's eyes so forcefully that 

Deghayes could feel the fingers under his eyelids. The officer yelled "Push harder" and the 

guard yelled, "I'm pushing as hard as I can." When they finally stopped, Deghayes felt liquid 

running out of both eyes, and he couldn't see. He wasn't given medical treatment for several 

days. He finally regained the sight in one eye, and then the doctor he saw recommended that he 

remove the blinded eye, which Mr. Deghayes refused. He said that these "beatings on the floor" 

would always be followed by sexual abuse, although he wouldn't be specific about exactly what 

happened, even when we asked once when the woman accompanying us had left the room. Mr. 

Deghayes told of a practice of holding prisoners' heads in the toilets until they thought they 

might drown- and they never knew if they'd survive. 

Each man said that interrogators would say, "Just give us something, and we can treat 

you better." I asked what kinds of information the interrogators were looking for, and Mr. a!-

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Rawi said, "They wanted us to justify why we were being held- they wanted a story that would 

keep us there for life. It didn't have to be true, it just had to come from us." 

When lawyers began representing the Guantanamo prisoners, the prison staff did 

everything they could to cause distrust. In addition to telling the prisoners that their lawyers 

were Jews or homosexuals, the guards and interrogators would tell the prisoners that the 

prisoners' lawyers were working for the interrogators. They would interrogate the prisoners 

about their discussions with their attorneys. Clive Stafford Smith, who has represented many of 

the Guantanamo prisoners, said that he's spent the equivalent of a year at Guantanamo, and that 

of all the death rows in the United States, "and I've been to all of them, Guantanamo is the 

worst." 

One of the questions I asked Mr. Begg, as he was describing Guantanarno as "the 

American legacy to the world that never dies," was "What would have happened if in 2009, 

President Obama had closed the prison?" Response: "It would make all the difference in the 

world." They all also said, "But the longer it goes on, the less closure will mean to a generation 

of people all over the world, especially Muslims, that will have written you off." 

Mr. Deghayes added, "I always thought Guantanamo was a missed opportunity for the 

American government to explain the better side of the United States. To many youngsters who 

were imprisoned, seventeen years old, twenty years old, from all over the Middle East, to show 

them there were other good things in America rather than what you hear in the news." 

That brings us to today and the importance of this Committee's hearing. Why does 

closing Guantanamo remain a national security imperative? 

Guantanamo is an irretrievably-damaged brand. The name instantly conjures up images 

of orange-clad, bound and hooded prisoners, kneeling on the ground in front of their American 

jailers. It reminds a world-wide audience, over and over, that it and Abu Ghraib are the places 

where America sold its soul and shredded its founding principles and values. Every day it 

remains open, it reminds the world that America, too, has a gulag where people can be sent, 

tortured, and held forever, without charges or a trial. But Clive Stafford Smith has wryly made a 

most uncomfortable point: "No Soviet gulag ever had 52% of its prisoners cleared for release." 

Col. Morris Davis, the former chief prosecutor at Guantanamo, who resigned rather than 

use evidence obtained from torture, offers this perspective: "There's something fundamentally 

wrong with a system where not being charged with a war crime keeps you locked away 

indefinitely, and a war crime conviction is your ticket home." Former Chairman of the Joint 

Chiefs of Staff and Secretary of State Colin Powell has said, "I would close Guantanamo. Not 

tomorrow, but this afternoon." Farmers in Afghanistan, peasants in China, and teenagers 

throughout the Middle East may not understand the intricacies of American constitutional law, 

but they all understand hypocrisy. What makes us think we can presume to lecture despotic 

governments around the world about their need to respect human rights and dignity when they 

can point to Guantanamo and say with absolute legitimacy, "Who are you to he criticizing 

anything?" It reinforces the radical message, and it's a recruiting magnet for those who want to 

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do us hann. It is a cancer on America's claim to moral leadership that becomes more dangerous 

every day it remains open. 

Our detention and interrogation practices have jeopardized our working relationships 

with close allies. In an interview with the Detainee Treatment Task Force, former General 

Counsel of the Navy, Alberto Mora said, "The country doesn't really understand the cost. One 

JAG officer came in and said that the British military had captured a terrorist not a terrorist 

suspect, a terrorist- in Basra and released him. They gave him a 48-hour head start and only 

then notified the American authorities. They did not have detention facilities rat that time], and 

they did not trust either the United States or the Iraqi forces not to abuse this individual. So 

rather than engage in potentially aiding and abetting criminal activity, the British forces thought 

that the least worst option was to release a terrorist back into the field." 

Mora continued, "The British deputy commander of NATO operations in Afghanistan 

would get up and leave any meeting in which detention operations were discussed, because he 

would not take a role in all of this. The Australian Navy refused to train with the U.S. Navy in 

detention operations [because of the abuse). I was at the Pacific Military Law Conference [in 

Singapore], the premier meeting of international; military lawyers in the world. At one point I 

get cornered by the uniformed TJAGS [the highest ranking JAG officer in a military branch of 

service] of the UK, Canada, Australia, and New Zealand. And they're around me, fingers in my 

chest, and they say, 'We've trained with the United States military all our lives, and we deeply 

respect everything you do ... but you need to know that our issues with detainee treatment and 

interrogation, we can't go along with that Our countries won't do it. It's not a question of 

failure of communication; we know what you're doing. It's a question of criminal activity in our 

countries, and we can't be a party to this.'" 

Even defenders of the CIA's "enhanced interrogation techniques have recognized that 

relationships with allies can weigh in the decision of whether to engage in such practices. At a 

panel discussion on January 29, 2013, at the American Enterprise Institute, former CIA Director 

Michael Hayden acknowledged: "Look, even though we say it is effective, the consequences of 

doing it vis-a-vis our allies could outweigh any benefit we might gain." 

The Guantanamo brand-damage extends as well to the system of military commissions 

the Obama administration is using to try Guantanamo prisoners today. It's not just that military 

commissions lack credibility; it's also that they are sited at a place renowned for having been 

chosen deliberately to be beyond the reach of the rule of law. As I'll explain shortly, the history 

of military commissions is highly suspect in its own right, so it's strange that we have opted to 

double down on a system of faux justice by siting the courtroom in a place that stands for secret 

renditions, torture, brutality, and indefinite detention without charges or a trial. We are only 

kidding ourselves if we believe the United States can make the Guantanarno sale. 

The fifty or so retired generals and admirals for whom I'm speaking, along with General 

Eaton and General Xenakis, are adamantly opposed to the use of military commissions to try the 

Guantanamo prisoners. One of the most concise analyses of the flaws of military commissions 

and their shabby history as damaged goods in the annals of military justice was authored by our 

cotleague, Brig. Gen. (Ret.) James P. Cullen, USA, for a presentation he gave last December at 

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the University of Minnesota Law School. General Cullen practices law in Manhattan, and he 

served as an Army Judge Advocate General. He was the Chief Judge for the United States Army 

Court of Criminal Appeals. I've attached his Minnesota presentation as Exhibit 4, and I'll quote 

extensively from it. 

We oppose the use of military commissions for the following reasons: 

1. Requiring terrorists to be tried in military commissions grants them a layer of 

legitimacy they do not merit. Military commissions add a veneer of respectability to their 

claim to be warriors instead of common criminals. 

2. Military commissions do not have the experience to try high level terrorism cases with 

multiple counts of murder. Federal courts have that experience, especially in the 

Northern District of Virginia and the Southern and Eastern Districts in New York. The 

FBI agents, the prosecution teams, and the judges have all accumulated considerable 

experience since 1993 in trying international terrorism cases, and we should use and 

showcase that experience. 

3. Military commissions have not produced the results obtained by the federal courts. 

There have been only seven convictions in military commissions out of roughly 779 

prisoners held at Guantanamo at one time or another, and who were described by 

Secretary Rumsfeld as the "worst of the worst." Sixty different federal courts have 

convicted nearly 500 terrorists since 9/11, and 44 of those trials were in the Southern 

District of New York. 

4. Convictions in the military commission system will be subject to years of appeals 

challenging the fairness of the system and jurisdictional issues, such as those directed to 

conspiracy and material support charges, despite reforms made under the 2009 Act. 

5. Foreign governments will be less willing to cooperate if cases are pursued in military 

commissions rather than federal courts. Our federal courts are trusted overseas. We need 

the cooperation of foreign governments in many of the serious cases since witnesses, 

documents, and sensitive intelligence of possible value in prosecutions are within the 

control of foreign governments. We will not receive the same level of cooperation if 

requests come from military prosecutors in commission trials compared to requests 

coming from U.S. Attorneys in federal court prosecutions. 

6. Military commissions are a badly damaged brand, in part because of their misuse by 

other countries and in part because of the outrageous rules imposed on them in 2002 as 

they were then established by presidential executive order. Some of those rules 

prohibited civilian counsel from seeing evidence against their clients, and evidence 

obtained through torture could be admissible in some circumstances. 

7. These past practices, and the images of Guantanamo and Abu Ghraib, are what the 

world, and Americans who care about the rule of law, remember. American values and 

the American justice system are better than any alternative terrorists can offer. We 

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should not be afraid to showcase our judicial system, and its emphasis on fairness, for all 

the world to see. If there is to be a cleansing antidote to the stain of torture and abuse, 

demonstrating a commitment to real justice is a necessary ingredient. 

8. We should use our military forces to tight our wars; and we should use our Justice 

Department and federal courts to try charges against alleged terrorists - as we do all other 

kinds of criminals. 

Military commissions have long been perceived (and used) as instruments of drum head 

justice with preordained outcomes. That was surely the view of the Continental Congress in 

1776. Our Declaration of Independence identified "a long train of abuses and usurpations," and 

charged King George III with "affect[ing] to render the Military independent of and superior to 

the Civil Power." 

When the Congress gathered in Philadelphia in 1787 to find a replacement for the 

Articles of Confederation, they brought with them fresh experience about the law of war [or the 

law of nations as it was then called] and tribunals. They concluded that tribunals should be 

authorized by Congress, "to make rules for the Government and Regulation of the land and naval 

forces. They also provided that the Writ of Habeas Corpus, the "Great Writ" of the English 

common law, should be incorporated into the Constitution and be available to anyone who 

challenged the legality of their detention. The Constitution provides that the Great Writ could 

only be suspended in times of insurrection or invasion. That was the great appeal of 

Guantanamo, as a black hole of the detention and interrogation of prisoners who could forever be 

kept beyond the reach of the Great Writ and the federal courts. 

Military commissions were widely used in the Civil War, with some extreme results. 

General Ambrose Burnside, responsible for the Union disaster at Fredericksburg was reassigned 

to the military district of Ohio. Once in his new command, he issued an order imposing up to the 

death sentence on those who not only gave physical aid to the Confederacy but even expressed 

"sympathies" for the enemy. An Ohio Democratic Congressman, Clement L. Vallandigham was 

the first tried before a military commission for violating the order after addressing a public 

gathering in which he questioned the need for the war. President Lincoln put aside the sentence 

of the military tribunal which found the Congressman guilty, and instead directed that he be 

brought to Confederate lines and turned over to them. The Congressman's attorney challenged 

the jurisdiction of military commissions to try a civilian, since the courts were open and 

available. The Supreme Court punted, and held that it had no authority to review the 

proceedings of a military tribunal. 

Military commissions were used in Hawaii in World War II to try civilians, and that led 

to confrontations between the military commander of Hawaii and federal judges who, after the 

Battle of Midway found no justification to try civilians before military commissions when the 

courts were open and available. The Supreme Court ultimately found that Congress had not 

authorized the suspension or closure of civilian courts, to be supplanted with military tribunals. 

The most troublesome military commission case was the 1942 Quirin case. Eight 

German soldiers who had lived in the United States before the war, went back to Germany 

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230 

before the war commenced, and were drafted into the German Army. They spoke excellent 

English and were trained as saboteurs. Two were American citizens. One team of four saboteurs 

landed from a submarine on Long Island, and the other team landed in Florida. Two of the Long 

Island men, including one American citizen, had a change of heart and decided to turn 

themselves in. The FBI did not believe them at first, but finally took them into custody. The 

others were picked up as a direct result of the two who had surrendered. U.S. authorities 

originally planned to try the men in federal court. However, one of the two who turned himself 

in insisted that he would tell the full story when he went to trial. This created a major problem 

for the authorities, since they had already taken full credit for the capture of the saboteurs 

without disclosing that the capture had resulted from the voluntary surrender. The authorities did 

not want people to know how easy it was for enemy submarines to land personnel on American 

shores. 

Other considerations influenced the Administration's decision to change the venue for 

trial from federal court to a military commission. Sabotage carried a maximum penalty of 30 

years in prison. President Roosevelt wanted the death penalty, and the commission was 

authorized to impose it. Roosevelt told the Attorney General that he did not want the military to 

split any legal hairs. The Judge Advocate General was able to tell the commission panel 

members that they could apply such rules as they saw fit since the rules applicable to courtsmartial would not apply under the executive order that convened the commission. 

The trial was held in secret. All men were found guilty and sentenced to death. 

Roosevelt later reduced the sentence of the two who surrendered to a long prison term, and the 

others were electrocuted. Before the tribunal could reach a verdict, the Germans sought a writ a 

habeas corpus from the civil courts. That avenue was blocked when the Supreme Court upheld 

the jurisdiction of the tribunal in very unusual circumstances that remain controversial to this 

day. Even Justice Scalia has noted that Quirin case did not represent the court's finest hour. 

What is very clear since 2009 is that the Guantanamo prosecutors have had to spend as 

much time trying to defend their system as trying to prosecute the defendants. For all the tweaks 

and massaging, the commission system is still perceived to be fundamentally flawed, because it 

cannot persuasively dodge the issues of torture and perceived unfairness. The U.S. military 

handpicks the judge and the potential panel members, all of whom are military personnel. The 

system looks rigged to produce a command-influenced result. The 2009 reforms prohibited the 

use of evidence obtained through cruel, inhumane, or degrading treatment. However, 

involuntary statements made by third parties are admissible if they are not derived from the same 

measures. It's not clear how that works. Statements from the accused may only be introduced if 

they were "voluntary." To determine "voluntariness," the judge is to look at the totality of the 

circumstances, and the circumstances may include, "as appropriate, lapse in time, change in 

place, or change in identity of the questioners between the statement sought to be admitted and 

any prior questioning of the accused." That last element seeks to add statutory legitimacy to the 

practice of sending uncontaminated FBI teams to question high value prisoners, after some of 

them were tortured by the CIA. 

Boise attorney David Nevin is a lawyer for Khalid Sheikh Mohammed. He puts the issue 

this way: "My question is when is it OK to use statements they uttered after being waterboarded? 

8 
231 

KSM was waterboarded 1 83 times in March 2003. Is it OK a day later, a week, a month, a year? 

When?" Article III federal courts are adept at sorting through evidence that can be admitted and 

that which cannot. In the case of Ahmed Ghailani, the court excluded evidence of torture, and 

the government still secured a conviction and life sentence for the crimes he committed. IfKSM 

had been tried in a federal court, it's hard to imagine the case would still be dragging on. David 

Raskin, the former Chief of the U.S. Attorney's terrorist and national security unit for the 

Southern District of New York, was preparing to try KSM when President Obama abruptly 

renewed the military commissions in 2009. Raskin is quoted in a March 1, 20 13 ABA Journal 

story: "Gen. Martins 2 and his team are essentially going to have to try two cases in every one 

case they do, because they will be trying to convict a defendant and trying to legitimize their 

system." Adds Eugene Fidell, a visiting lecturer at Yale Law School, a former Coast Guard 

JAG, and an expert in military law, "You have to wonder why so much effort has been spent 

justifying [the commission's] existence when we already have a fabulous judicial system." 

Again, all of the maneuvering to make the commissions look fair, like the elaborate 

"voluntariness" regime, cannot overcome the perception that they're not. In April 2013, Al 

Jazeera carried a piece about the 500,000 internal defense e-mails that were seized by the 

government and the loss of defense files from computer servers. The story included references 

to the sudden interruption earlier this year of the public feed from the military courtroom at 

Guantanamo, the switch evidently controlled by the CIA unbeknownst to the judge. The story 

described eavesdropping equipment in rooms where attorneys meet with their clients. Al 

Jazeera 's readers and listeners may not understand the intricacies of American constitutional 

law, but they have keen antennae for hypocrisy, and they know what this is all about: the United 

States is desperately fearful that the truth of American torture will come out. 

If the prisoners at Guantanamo were American soldiers who had been tortured and 

abused, and they were being put through a military commission process like the one we're trying 

so hard to sell, the country would be outraged- and rightly so. Professor Gary Sallis, former 

Marine Corps JAG officer and a Georgetown University authority on the law of warfare, says of 

the current system, "They are so hobbled by a history that they, in my opinion, cannot work in a 

way which will be understood or appreciated outside of their courtroom." 

The commission system can be dressed up in spiffy new duds; the Administration can 

attempt to make the sale a dozen different ways, and !he appellate courts can split hairs forever 

over the military commission rules in an effort to get just the right shade of lipstick on the pig. 

But all those tortured efforts cannot make Guantanamo a beacon of justice. The brand is just too 

notorious. Just the word, Guantanamo, saps America's capability for moral suasion in a world 

that badly needs American leadership. 

Ultimately, Guantanamo is not about those who attacked us, but about who we are. It is 

a false and unworthy choice to suggest that, in the pursuit of safety, we must abandon our 

Constitution and our values. We are more secure when we follow the law, not when we abandon 

it. Winston Leonard Spencer Churchill observed that Americans can be counted on to do the 

right thing- after they've exhausted all the alternatives. Congress and the administration need to 

close the prison. Now. 

'Brig. Gen. Mark Martins, USA, the current chief prosecutor for the Guantanamo military commissions. 

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EXHIBIT 1 
233 

Profile ofMoazzam Begg 

Moazzam Begg is a British citizen, born and raised in Birmingham, England.' Begg was raised 

in an educated, middle class family in Birmingham, and was sent to a Jewish elementary school.2 Begg 

later traveled to places like Pakistan, Afghanistan and Bosnia to learn more about his heritage and work 

with Muslim charities.' Those travels, from !993-1998, included visits to Bosnian battle zones as a 

member of a charity aiding Bosnian Muslims, and two Afghan training camps. Begg maintains that the 

training camps were run by the Northern Alliance and Iraqi Kurds fighting Saddam Hussein, respectively, 

rather than AI Qaeda.4 Begg has said that he never trained himself.' While living in Peshawar, Pakistan in 

1998, Begg was suspected of having met Khalil Deek, an associate of Zayn Al-Abedin Muhammed 

Husayn (known as Abu Zubaydah), and assisting him on a terror manual.6 Begg acknowledged meeting 

Deek as a member of the community, and collaborating on a business idea to sell traditional clothing, but 

says that he never met Abu Zubaydah. 7 The Department of Defense claims that Begg admitted to 

knowing Abu Zubaydah during interrogation and in a written confession; Begg maintains that he never 

made such statements, but signed certain documents under coercion, as detailed below' Begg returned to 

the UK with his family in 1998 and opened an Islamic bookstore in Birmingham which he described as a 

meeting place for young Muslims.' The store was raided twice in 1999 and 2000 by British police, but 

Begg was never charged with a crime. 10 Begg stated that he had believed the security establishment's 

interested in his store was "a silly mistake or a fishing trip" until the second raid. He also stated that he 

had never heard of"Al Qaeda" before September II, and his view of Bin Laden was that OBL's 

campaign against the United States was counterproductive for Muslims." 

Begg moved his family to Kabul, Afghanistan in the summer of2001, where he planned to start a 

girl's school and oversee a project digging wells.12 Begg' s petition for habeas corpus states that in 

November 2001, after the September II th attacks and the initiation of the U.S. war in Afghanistan, Begg 

evacuated his family to Islamabad, Pakistan. 13 The petition further states that on January 3!, 2002, Begg 

was seized in his home by Pakistani officials." Begg stated that he was shocked when he opened the 

door that night to see the officials standing there with a gun pointed at him and "electric stun guns 

crackling in the background."" He states that he was held by Pakistani officials for several weeks before 

1 Enemy Combatant: Moazzam Begg on His Imprisonment at Guantanamo, Bagram, and Kandahar, 

Democracy Now, Aug. 1, 2006, h!1Jl:/lwww.democracynow.org/2006/8/l/pt 2 enemy Cl}rnbatant moazzam begg. 2 Interview with Moazzam Begg, PBS: NOW, July 28, 2006, http:llwww.pbs.org/now/transcripti230.htmll 

(hereinafter "NOW Interview"). 

'Jd 

4 Channel4 News: Moazzam Begg Interview, Feb. 24, 2005, available at 

http://www.channel4.comlnews/articles/uk/moazzam;-begg+interview•two+people+wer_e+beaten+to+death/256788. 

hlml· 

'Jd. 

6 Golden, Tim, "Jihadist or Victim: Ex-Detainee Makes a Case," The New York Times, June 15, 2006, 

available at http://www.nytimes.coml2006/06/15/world/15begg.html? r=J. 7 ld. 

'ld. 

9 Jd. 

10 Jd. 11 ld. 12 NOW Interview, supra n. 2. 13 Petition for Writ of Habeas Corpus, Begg v. Bush, No. 1 :04CVOI137 (D. D.C. filed July 2, 2004), at4-5, 

available at http:i/projects.nytimes.com/guantanamoldetainees/558-moazzam-beggldocuments/4 (hereinafter "Begg 

v. Bush"). 

14 !d. 

"NOW Interview. 
234 

being handed over to U.S. custody.•• Once in U.S. custody, Begg was reportedly transferred to Kandahar, 

Afghanistan .

11 

Upon arrival at Kandahar, Begg said that he was stripped naked by guards wielding knives. 18 He 

added that the guards then pushed their knees into his back and head. 19 He also identified other things 

that were done to him and other detainees upon arrival, including cavity searches, "playing with private 

areas, taking photographs, shaving off the hair and the beard and stamping on [his] feet-spitting, 

swearing, all sorts ofthings."20 

From Kandahar, Begg stated that he was moved to a U.S. military base in Bagram, Afghanistan. 21 He added that his time in Bagram "was the worst part of [his] incarceration."22 Begg said that 

detainees were not allowed to talk to each other, or to walk, or to do anything else without express 

permission?' If they violated these rules, Begg said that their hands would be tied to the to~ of their cell, 

leaving them on tiptoe, and they would be hooded or blindfolded for hours or days on end.2 While at 

Bagram, Begg said that he was also threatened with being rendered to Egypt to be tortured.25 He was also 

apparently hog-tied, "hooded, punched, kicked, spat at and so forth, sworn at, [and) held like this ... for 

hours on end, deprived of sleep for several days only to hear the sounds of a woman," whom he presumed 

to be his wife, "screaming next door."" After reportedly spending eleven months at Bagram, Begg was 

transferred to Guantanamo in January 2002. 21 

In describing his time in Guantanamo, Begg said that the interrogation tactics used there were 

more psychological than ph5,sical?' He stated that he spent nearly twenty months in isolation at 

Guantanamo's Camp Echo. 9 The habeas petition submitted on Begg's behalf further disclosed that Mr. 

Begg and other Guantanamo detainees were "refused meaningful access to their families" and were not 

permitted to "fully exercise their religious beliefs."30 As noted in the petition, detainees were moreover 

"initially forced to use a bucket for a toilet," and had no access to basic sanitary facilities.ll 

According to news reports, Begg, along with three other British citizens (Richard Belmar, Feroz 

Abbasi, and Martin Mubanga), were released from Guantanamo on January 27, 2005, after the 

governments of the U.S. and U.K. negotiated the release and "security package[s]" for the detainees. 32 

The four men were still regarded as "enemy combatants," but no charges had been filed against them. 

Following his release from Guantanamo, Begg wrote a book about his experiences at entitled 

"Enemy Combatant," in which he described his treatment while in U.S. custody, and his attempts to forge 

positive relationships with his former interrogators.33 Begg also became Director of the nongovernmental 

organization Cageprisoncrs, which campaigns on behalf of Muslim prisoners, with a primary focus on 

those held at Guantanamo Bay and other sites related to the conflict with AI Qaeda. Cageprisoners works 

16 !d. 

17 !d. 

"!d. 

19 /d. 

£0 !d. 21 Beggv. Bush, at 5. 12 NOW Interview. 

23 /d. 

"/d. 

"!d. 

,./d. 

"/d. 

"/d. 

"ld. 

30 /d. 

31 !d. 

32 Guantanamo four still a threat, says US, The Guardian, Jan. 27, 2005, 

http://www .guardian.co .ukluk/2005/jan/2 ?/politics. september I I. 

"Begg, Moazzam, ENEMY COMBATANT, The New Press, Aug. l, 2006. 
235 

closely with a number of former detainees, and has condemned detention without charge for a number of 

suspected terrorists, including Anwar Al-Awlaki (whose targeted killing Cageprisoners also opposed).34 

Cageprisoners (and Begg) maintain that they condemn radical positions and the killing of civilians, but 

advocate for the ri~t of those living under foreign occupation to fight in self-determination according to 

internationallaw.3 In highlighting the issues of abuse and detention without charge, Cageprisoners works 

regularly with organizations such as Reprieve and Amnesty International, although such associations have 

occasionally proven controversial.30 

34 Press Release: Cageprisoners and Anwar AI-Awlaki, A Factual Background, Nov. 5, 20 II, available at 

http://www.cageorisoners.com/our·workfpress·releases/item/786-press-release-cageprisoners-and-anwar-al-awlaki-

%E2 %80%93-a-factual-background. 

"ld. 

36 See, e.g., "Amnesty International on its Work with Moazzam Begg and Cageprisoners," Feb. II, 2010, 

m:ailable at http://www.amnesty.org/enfnews-and-updates/news/amnesty-international-on-its-work-with-moaz.:>ambegg-cageprisoners-20 10021 L 
236 

EXHIBIT 2 
237 

Profile of Bisher al-Rawi 

Bisher al-Rawi is an Iraqi national with residency status in the United Kingdom, where he had 

been granted exceptional leave to remain as a teenager in 1984.1 His family carne to the UK after fleeing 

the regime of Saddam Hussein, which had tortured his father. 2 The British Security Service (MIS) 

assessed al-Rawi and his associate, a Jordanian Palestinian named Jarnil el-Banna, to be extremists due to 

their alleged contact with others whom MT5 considered Islamic extremists, including the radical cleric 

Abu Qatada3 AI-Rawi claims that he acted as an intermediary between MIS and Abu Qatada following 

9/11.4 A!-Rawi says he met with agents who called themselves 'Alex,' 'Matt,' and 'Martin,' and that 

after he expressed concern about self-incrimination, an MIS lawyer named 'Simon' promised him help if 

he were ever arrested. 5 

Several agents of MIS met with el-Banna on Oct. 3 I, 2002 in an attempt to gain his cooperation, 

promising a new life for him and his family in exchange for information about his activities and contacts.6 

El-Banna declined their offer.' 

On Nov. 1, 2002, ai-Rawi, el-Banna, and a British citizen named Abdullah el-Janoudi went to 

Gatwick Airport to travel to The Gambia.• The stated purpose of this visit was to join ai-Rawi's brother 

Wahab, a British citizen, for a business venture involving peanut oil! They were arrested at Gatwick 

after airport security found a suspicious-looking homemade electronic device in al-Rawi's luggage, which 

authorities believed might be a timing device or part of an IED. 10 AI-Rawi and the others claimed it was a 

homemade battery charger, which a British anti-terrorist squad confirmed after four days of detention and 

interrogation.'' They were released on the afternoon of Nov. 4, 2002.12 

MIS sent a telegram to U.S. authorities informing them of the arrest on Nov. 1. 13 After al-Rawi 

and the others were released on Nov. 4, MIS sent the Americans a second telegram suggesting that the 

Americans inform Gambia that three men with links to Abu Qatada were traveling to that country and 

stating: "We would be grateful for any feedback on the reaction of the Gambians to this intelligence. In 

particular, we would he interested to learn if they are able to cover those individuals whilst they are in 

1 Andrew Tyrie, Roger Gough, & Stuart McCraken, Account Rendered: F.xtraordinary Rendition and Britain's Role 

80 (2011). 2 Craig Whitlock, Courted as Spies, Held as Combatants, WASH. POST, Apr. 2, 2006, <IVai/able at 

http://www. washingtonpost. comlwp-dynl content/ article/2006/04/0 1 I A R2006040 I 01465 _yf htm I. 

J ld. 

'Id at8l. 

'Id 

6 Id. 

1 Id 

8 Id 

'Jd 

"I d. 

II Jd. 

"ld 

"ld 
238 

Gambia." 11 Both telegrams carried the standard caveat that they were "for research and analysis purposes 

only and may not be used as the basis for overt, covert or executive action."15 

The three men finally flew to The Gambia on Nov. 8, 2002. 16 MIS then sent another telegram to 

the United States, providing details of their flight information and the identities under which they were 

traveling.l7 The three, along with AI-Rawi's brother Wahib, were arrested by Gambian authorities at the 

Banjul airport because of "suspicious items in their luggage" and were soon transferred to American 

custody. 18 The British Foreign Office asked to visit el-Janoudi and Wahib ai-Rawi, the British citizens, 

but this was denied, in violation of the Vienna Convention on Consular Relations." In late November 

2002, the US informed Britain of its intention to transfer the four to Afghanistan, which the British 

protested.20 That December, the two British citizens were returned to the UK and al-Rawi and ei-Banna 

were allegedly rendered to "the dark prison" in Afghanistan, where they stayed until February of 2003, 

when they were sent to Guantanamo?1 During the 24 hour flight to Guantanamo, al-Rawi was shackled, 

handcuffed, and his vision was obscured by goggles. 21 

AI-Rawi claims that while held in Afghanistan he was brutally beaten, subjected to humiliation, 

degradation, physical and psychological torture as well as long periods of sensory isolation and sleep 

deprivation, and frequently threatened with death." While in Guantanamo, ai-Rawi was kept in solitary 

confinement and his lights were left on 24 hours a day.14 At times his air conditioning would be turned up 

to the maximum to make his cell "unbearably cold" and guards would take his orange jumpsuit and 

sheets, as well as his prayer rug if he tried to use it to warm himself.25 At other times the air conditioning 

would be turned off for extended periods to make him stifle in the heat.16 It is reported that he was given 

an allowance of IS sheets of toilet paper per day, which he lost altogether when he tried to use them to 

cover his eyes for sleep." 

Al-Rawi claims that in 2003 he was visited by an agent of MIS while in Guantanamo who said 

"Sorry about all of this" and that "Alex," "Matthew," and "Martin" later met with him to discuss the 

possibility of working with MIS again if he were released.28 AI-Rawi tried to call the three of them as 

witnesses at a Combatant Status Review Tribunal, but when the Tribunal President contacted the British 

Government to that end, the UK refused to provide any information and would neither confirm nor deny 

that it had any sort of relationship with al-Rawi." Al-Rawi and el-Benna claim that throughout their 

"Jd at 82. IS /d. 

16 !d. 

17 /d. 

IS }d, 

"ld. 

,, !d. 

11 !d. 

22 Profil• of Plaintiff Bisher a/-Rawi, http://www.aclu.org!national-securitylbiography-plaintiff-bishcr-al-rawi. 

23 !d. 24 Brent Mickum. Guantanamo ·s Lost Souls. THE GUARDIAN, Jan. 8, 2007, available at 

http://www.guardian.co. uk/commentisfree/2007 /j an/08/postS 8 5. 

2S /d. 26 Id. 

27 /d. 

21 Tyrie et al., supra note l, at 82. 

"Jd 
239 

captivity they were repeatedly visited by U.S. and British intelligence agents who offered them money 

and freedom to become informants, which they both claim to have refused.30 His attorneys attempted to 

secure his release through the British court system in 2006 and while the court decided against them, the 

Treasury Solicitor informed the attorneys that the Government would approach the U.S. about his release, 

due to his claims of having worked for MI5.31 AI-Rawi was released in April2007.32 No charges were 

ever filed against him.33 In 2007, al-Rawi and four other former detainees filed suit against Jeppesen 

Dataplan, Inc., a Boeing subsidiary tbey allege supplied the CIA with "essential flight and logistical 

support" for rendition flights. 34 The suit was later dismissed and the Supreme Court denied certiorari in 

2011. 

30 Whitlock, supra note 2. 

11 !d. 32 ld 

'

3 Profile of Plaintiff Bisher al-Rawi, http://www.aclu.orglnational-securitylbiogrnphy-plaintiff-bisher-al-rawi 

"First Amended Complaint at4, Mohamed et al. v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008) 

(No. 5:07-cv-02798), available at 

http://www .ac lu.org!tiles/pdfs/safefree/mohamed _ v Jeppesen _I stamendedcomplaint.pdf. 
240 

EXHIBIT 3 
241 

Profile of Or!tar Deghayes 

Omar Deghayes is a Libyan citizen who resides in Britain.1 He lived much of his life in the UK, 

where his family had been granted refugee status in 1987.2 His father had been a prominent lawyer and 

trade union activist in Libya who was reportedly tortured and murdered by the Gaddafi regime in 1980, 

when Deghayes was only 10 years old.3 Deghayes studied law at the University ofWolverhampton with 

intention of one day practicing human rights law.' Deghayes, a devout Muslim, traveled through 

Malaysia, Pakistan, and Afghanistan after becoming curious about "life under a strict Islamic regime."5 

He ended up in Afghanistan, where he studied sharia law, started an import-export business and assisted 

NGOs.6 While in Afghanistan he married an Afghan woman and had a son.' After the US bombing 

campaign began in Afghanistan, he and his family fled to Pakistan, planning to return to Britain, where 

his citizenship application was pending.' In Apri12002, he was arrested by Pakistani police in Lahore, 

where he was told that he was being held at the request of US authorities.' The Pakistani police 

subsequently sold him to American forces for $5,000. 10 

Once in American custody, Deghayes was held at Bagram Airfield. 11 He says that while 

imprisoned in Afghanistan the police subjected him to systematic beatings, held his head underwater until 

he thought he would drown, and held him in a dimly lit room full of glass boxes holding large snakes and 

threatened to release the snakes while he was in the roomu He also reports being tortured with electrical 

shocks. 0 At Bagram, Deghayes says that beating and torture were "considered norrnal."14 He also says 

he was subjected to forced nudity and prolonged food deprivation, and that he was locked in a box with 

very little air for long periods of time." He says that the guards would also force "petrol and benzene up 

the anuses of prisoners," which "would bum horribly."16 Deghayes was subsequently transferred to 

Guantanamo in the autumn of2002." Guards in Guantanamo continued Deghayes' abuse. He reports 

1 Andy Worthington, The Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison 168 

(2007). 

2 /d. 

3 Clive Stafford Smith, Bad Men: Guantanamo Bay and the Secret Prisons 256-57 (2007). 4 Worthington, supra note l, atl68. Deghayes' lawyer, Clive Stafford Smith, states that Deghayes had not 

completed his law exams before entering Guantanamo. Mr. Stafford Smith reports that he tried to bring legal 

textbooks to Deghayes while he was held in Guantanamo so he could prepare for exams in the event he was ever 

released but military censors prevented them, and a volume of World Wart poetry, from reaching him. Stafford 

Smith, supra note 2, at 130-31. 

'Worthington, supra note l, at 168. 6 Patrick Barkham, How I Fought to Survive at Guantanamo, THE GUARDlAN, Jan. 20,2010, available at 

http://www.guardian.eo.uk/world/20 10/jan/21/i·fought·to-survive-guantanamo. J ld. 

'ld. 

9 Id. 

10 ld. 11 Andrew Tyrie, Roger Gough, & Stuart McCraken, Account Rendered: Extraordinary Rendition and Britain's Role 

96 (20ll). 12 1d. 

JJ Vikram Dodd, Guantanamo Man's Family Release 'Torture' Dossier, THE GUARDIAN, Aug. I 0, 2007, available 

at http://www.guardian. co. uk/uk/2007/aug/ 11/worldhumanrights. 14 Worthington, supra note l, at 175. 15 Worthington, supra note I, at 175. ,.ld. 

17 Tyrie, et al., supra note II, at 97. 
242 

that a guard gouged his eyes with his fingers, temporarily blinding him for several days and permanently 

blinding his left eye (his left eye was already slightly damaged from a childhood injury). 18 He also 

reports experiencing mock-rapes, being routinely pepper-sprayed, and guards slamming his head against 

the floor. 19 Other types of abuse Deghayes says he experienced in Bagram and Guantanamo include: 

having human excrement smeared on his face, seeing a Koran thrown in a toilet, witnessing guards 

severally beat other prisoners--to death in one instance, threats of execution, forced standing, various 

types of stress positions, being stripped naked and doused with freezing water, and "sexual abuse" (which 

he is reluctant to discuss in detail).20 

Due to his legal background, Deghayes was confrontational during his initial interviews with 

intelligence officers, asserting his legal rights and threatening lawsuits11 Deghayes initially claimed to be 

his brother, who is a British citizen, but later admitted this was untrue and said that he had lied because he 

was afraid of being repatriated to Libya?2 While in Guantanamo, he participated in prisoner hunger 

strikes to protest his treatment.23 

Throughout his captivity, agents of British and American intelligence met repeatedly with 

Deghayes, often in attempts to get information about suspecting terrorists operating in the UK.24 On 

September 9, 2004, while at Guantanamo, four Libyan intelligence agents met with Deghayes and 

interrogated and threatened him for roughly three hours, followed by a two hour interrogation two days 

later.25 During the interrogation sessions, the Libyans referenced Deghayes' father (who had been 

executed by the Gadhafi regime), accused him ofworldng with Libyan dissidents (which he denied), 

claimed that Libyan exiles who had been rendered back to Libya had revealed his name under torture, and 

threatened him with death." 

The reasons U.S. authorities give for Deghayes' detention were that while in Afghanistan he had 

undergone military training and had traveled there with the help of a senior al-Qaeda figure, he was 

actively involved with the Libyan Islamic Fighting Group (LIFG), and that he had undertaken jihad in 

Bosnia and Chechnya, all of which he denies?' They supported the claim about jihad by saying they had 

a copy of a Chechen jihadist videotape on which he appeared." The U.S. military refused to let Deghayes 

or his attorney see the video.29 Eventually, his attorney was able to obtain a copy that the BBC had 

somehow acquired.30 Both Deghayes' brother, Taher, and an independent identification expert concluded 

that the person in the video was not him.31 Deghayes has a scar over his left eye from his childhood 

" Barkham, supra note 5. 

"/d. 

20 Dodd, supra note 11. 21 Tyrie, et al., supra note II, at97. 22 /d. at 3 83-86. 23 Clive Stafford Smith, Gitmo 's Hunger Strikes, THE NATION, Sep. 29, 2005, available at 

http://www.thenation.corn!article/gitmos-hunger-strikers. 

"Tyrie, et aL, supra note II, at 97; Stafford Smith, supra note 2, at 262; Worthington, supra note I, at 175. 25 Stafford Smith, supra note 2, at 258-60. 

"/d. 

27 27 Tyrie, et al., supra note II, at 97. 

"/d, 

"'Stafford Smith, supra note 2, at 254. 30 ld. 

31 !d. at 255-56. 
243 

injury; the man in the video did not.32 A British terrorism expert later identified the man in the video as a 

prominent Chechen rebel named Abu Walid.33 Even after his attorney forwarded this information to the 

US military, prosecutors continued use the tape to justify his detention, although they downgraded their 

claim and said that he was merely "suspected" of appearing in the tape.34 Deghayes admits to spending 

three months in Bosnia, but says he was there working with the NGO Human Concern and not as a 

jihadist.3

s 

Deghayes was finally released in 2007 after five years of captivity. He was never formally 

charged with any crime. After their release, Spain sought to extradite Deghayes and Jamil el-Banna (see 

Profile of Bisher Al-Rawi) from the UK on the suspicion that they had been part of a Spanish al-Qaeda 

cell from 1999-2001 (Spain had originally made the request to US authorities in 2003 but it was 

ignored).36 The Spanish judge later dropped the request on the grounds that further prosecution would be 

cruel, after a medical assessment concluded that the Deghayes suffered from Post-Traumatic Stress 

Disorder, severe depression, bone fractures, and displayed suicidal tendencies.37 The judge, Balthasar 

Garzon, later opened a formal investigation into Deghayes' treatment at Guantanamo. 38 

12 !d. at 256. 

"ld. 

J4ld. 

" Tyrie, et al., supra note II, at 3 87. 36 Daniel Wools, Spain: Freed Detainees too Damaged to Extradite, AP, Mar. 6, 2008, available at 

http:/ /web .arc hi ve.org/web/200803 26213007 /http://www .miamiherald.com!news/world/story/446518 .html. 

J7 /d. 

"Giles Trem!ett, Spanish Court Opens Investigations o[Guantanamo Torture Investigations, THE GUARDI.AN, Apr. 

29, 2009, available at http://www.guardian.eo.uk/world/2009/apr/29/spain-court-guantanamo-detainees-torture. 
244 

EXHIBIT4 
245 

Military Commissions 

BG (Ret.), JAGC, James P. Cullen 

University of Minnesota Law School 

December 3, 2012 

What are military tribunals or commissions? A military tribunal is a type of 

military court established to try members of enemy forces during wartime, or to try personnel in 

a previously hostile territory after cessation of hostilities for crimes committed during wartime or 

before civilian authority can be restored. Judges and members of the tribunal or commission are 

military officers. Members function as jurors, and their findings do not have to be based on a 

unanimous vote. Military tribunals are distinct from courts-martial, which try offenses 

committed by members of one's own military forces. 

There were very few Supreme Court decisions addressing military commissions and 

tribunals during the first two and half centuries of our country's history. Only two of them, the 

Milligan decision immediately after the end of the Civil War and the Quirin decision during 

WWII, generally merit mention in legal commentaries. 

But between 2004 and 2008, four Supreme Court decisions reviewed the jurisdiction and 

scope of military commissions. More decisions may be on the way, although it is thought the 

Supreme Court is disinclined to grant further reviews despite arguments about how its last 

military commission decision should be implemented in practice. 

Military commissions have provided a proxy battlefield in which legal contests have been 

waged over more significant issues, such as 

• Limitations on presidential power 

• Congressional powers and oversight, in this case to authorize military 

commissions 

• Constitutional restrictions on the power to limit the writ of habeas corpus 

I would like to briefly review the historical and legal path we have travelled to reach 

where we are today. A number of parallels emerge as this history is reviewed, although time will 

not permit examination of some of the more interesting ones. For example, what happened with 

General Andrew Jackson after the Battle of New Orleans, and what occurred in Hawaii in WWII 

bear close resemblance; and what happened in the Civil War and what occurred in 2006 bear 

striking similarities. 

We can trace our military commissions back to their English roots, with important 

distinctions. 

English military commissions were creatures of English royal prerogative; i.e., executive 

power. The Crown delegated to commanders in the field, without Parliamentary intervention or 

sanction, the power to convene tribunals in aid of the Crown's military rule. These tribunals 
246 

administered drumhead justice with predictably arbitrary and cruel results against populations 

who resisted British rule. Our Founding Fathers and Americans fighting in the Revolution were 

among those who experienced that cruelty firsthand. 

The results of arbitrary executive power were predictable. 

Our Declaration of Independence identified "a long train of abuses and usurpations," and 

charged King George III with "affect[ing] to render the Military independent of and superior to 

the Civil Power." 

Through this indictment, the new United States set forth the principle that military 

commanders were at all times subordinate to legislative bodies. 

When our Founding Fathers gathered in Philadelphia in the summer of 1787 to fmd some 

replacement for the crippling weakness and confusion endemic in the Articles of Confederation, 

they brought with them fresh experience about the law of war (or the law of nations as it was 

then called) and tribunals. 

They concluded that tribunals should be authorized by Congress. The draftsmen carried 

over into the new Constitution provisions that had been in the Articles of Confederation to 

"make rules for the Government and Regulation of the land and naval Forces." 

The drafters also provided that the Writ of Habeas Corpus, the "Great Writ" of the 

English common law, should be incorporated into the Constitution and be available to anyone 

who challenged the legality of their detention. The Constitution provides that the Great Writ 

could only be suspended in times of insurrection or invasion. 

Now let us fast forward to the Battle of New Orleans in 1815. 

General Jackson, in preparation for the battle, declared martial law to meet the challenge 

of the British invasion force which had landed south of the city and was marching toward the 

city. 

After the British were defeated in the most lopsided victory of the war, a journalist 

questioned the continued application of martial law to the civilians of New Orleans. Jackson had 

the journalist arrested for inciting mutiny and disaffection in the army. The reporter's lawyer 

went to U.S. District Court Judge Dominick Augustin Hall to request a writ of habeas corpus, 

which the judge granted after concluding that martial law could no longer be justified. Judge 

Hall ordered the man's release. General Jackson then had Judge Hall arrested and placed in the 

same barracks as the imprisoned journalist. General Jackson charged that the judge was 

attempting to undermine military authority. Jackson realized that even one of his hand picked 

tribunals might be reluctant to sentence a federal judge, so he ordered that the judge be marched 

four miles outside the city and left there. The judge made his way back to the city and waited a 

few days for victory celebrations to die down before convening a contempt hearing. 

Confirmation reached General Jackson in the meantime that the Treaty of Ghent ending the war 

had been signed. The treaty was actually signed before the battle was fought. General Jackson 

2 
247 

and his aide attended the contempt hearing. The judge fined General Jackson $1,000, a 

considerable sum of money in those days. General Jackson paid the fine. 

Military commissions were widely used in the Civil War, with some extreme 

results. General Burnside, responsible for the Union disaster at Fredricks burg, was reassigned to 

the military district of Ohio. Once in his new command, he issued an order imposing penalties 

up to the death sentence on those who not only gave physical aid to the Confederacy but even 

expressed "sympathies" for the enemy. An Ohio Democratic Congressman, Clement L. 

Vallandigham was the first tried before a military commission for violating the order, after 

addressing a public gathering in which he questioned the need for the war. President Lincoln put 

aside the sentence of the tribunal which found the Congressman guilty. President Lincoln 

directed instead that the Congressman be brought to Confederate lines and turned over to them. 

The Congressman's attorney challenged the jurisdiction of military commissions to try a civilian, 

since civilian courts were open and available. The case reached the Supreme Court while the 

Civil War was still in progress. The Court punted and held that it had no jurisdiction to review 

the proceedings of a military tribunal. 

Another opportunity to examine military tribunals reached the Supreme Court the 

following year, after the Civil War had ended. That case produced a key decision limiting the 

jurisdiction of military tribunals. 

The case involved a civilian, Lambdin P. Milligan, who was a Southern 

sympathizer charged with planning to raid prison camps in which Confederate soldiers were 

held. After freeing and arming the men, he planned to use them to raid positions behind Union 

lines. Following his capture and trial before a military commission, he was sentenced to death. 

The Civil War ended before the sentence was carried out. The prisoner's lawyers, who included 

former Union major general and later President of the United States, James A. Garfield, 

challenged the jurisdiction of military commissions over a civilian. The Supreme Court agreed, 

and held that military commissions have no jurisdiction over citizens when courts are open and 

available for trial. 

Military commissions were reinstituted in World War II. Martial law was 

declared in Hawaii after Pearl Harbor. Two forms of military courts were established to try 

civilians for minor and more serious offenses. One man who was detained by the military 

because of his German ancestry challenged the legitimacy of the commissions as did a shipyard 

worker, Lloyd Duncan, who was convicted of assault by a military court. He was charged with 

attacking two Marine guards while under the likely influence of intoxicating beverages. 

Confrontation followed between the military commander of Hawaii and federal 

judges in Hawaii who, months after the battle of Midway, found no justification to try civilians 

before military commissions when the courts were open and available. The dispute over 

jurisdiction and the reach of the writ of habeas corpus was reminiscent of confrontations between 

General Jackson and Judge Hall. The Supreme Court ultimately found that Congress had not 

authorized the suspension or closure of civilian courts and supplant them with military tribunals. 

A $100 fine imposed on the commanding general by one of the federal judges was later set aside 

by President Roosevelt exercising his power of pardon. 

3 
248 

Another military commission case that reached the Supreme Court had a more 

troubled history and outcome. Eight German soldiers who had lived in the United States before 

the war went to Germany before the commencement of the war. They were drafted into the 

German Army. They spoke excellent English and were trained as saboteurs. Two of the 

saboteurs were American citizens. One team of four saboteurs landed from a submarine on Long 

Island and the other team landed in Florida. Each team had a list of targets it was to sabotage. 

Two of the men who landed in New York, including one of the American citizens, 

had a change of heart and decided to turn themselves in to authorities. The FBI did not believe 

them as first. Only after repeated efforts did the FBI accept their story and took them into 

custody. The other saboteurs were picked up as a direct result of information provided by the 

two who surrendered. The U.S. authorities originally planned to try the men before the federal 

court. However, one of those who turned himself in insisted that he would tell the full story 

when he went to trial. This created a major problem for the authorities, since they had already 

taken full credit for the capture of the saboteurs without disclosing the capture had resulted from 

the voluntary surrender. The authorities also did not want people to know how easy it was for 

enemy submarines to land personnel on American shores. 

Other considerations influenced the Administration's decision to change the 

venue for trial from federal court to military commissions. Sabotage only carried a maximum 

penalty of 30 years imprisonment. Roosevelt wanted the death penalty. The military 

conunissions convened by the Administration were authorized to impose the death penalty. 

Roosevelt told the Attorney General that he did not want the military commissions to split any 

legal hairs. The Judge Advocate General was able to tell military commission panel members 

they could apply such rules as they saw fit since the rules applicable to courts-martial would not 

apply under the executive order that convened the commission. 

The military commission trial was held in secret. They found the defendants 

guilty and imposed the death penalty on all of them, including on the two individuals who had 

turned themselves in and provided the government with information about the plot. Roosevelt 

later reduced the sentence of those two individuals to a long prison term. 

Before the tribunal could reach a verdict, the Germans sought a writ of habeas 

corpus from the civil courts. That avenue was blocked when the Supreme Court, in F.x parte 

Quirin (1942), upheld the jurisdiction of the tribunal in very unusual circumstances that remain 

controversial to this day. Those circumstances prompted even Justice Scalia to note that Quirin 

did not represent the Court's finest hour. Nevertheless, Ex parte Quirin remained the other 

principal Supreme Court case on military tribunals before the recent crop of decisions in the first 

decade of this century. 

The Modern Experience with Military Commissions. 

Moving to recent history, Congress passed a joint resolution on September 18, 

2001 authorizing the President to use military force against those who had attacked us on 9/11 or 

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aided in that attack. 1 In reliance on the AUMF, the President issued on November 13, 2001 2

, an 

order establishing military commissions. The Presidential Military Commissions Order applied 

to any non-citizen as to whom the President had reason to believe that he or she (I) "is or was" a 

member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful 

to the United States." The military order issued by President Bush closely followed the model 

established by President Franklin D. Roosevelt when he created the military tribunal to try the 

saboteurs in the Quirin case. 

The military commissions established solely by presidential fiat were neither 

sought by nor endorsed by the military, but the military is always obligated to carry out lawful 

orders issued by civilian authorities. The rules imposed on those presidential military 

commissions were shocking in so many ways, including allowing convictions to be based on 

evidence obtained through torture or cruel, inhuman and cruel treatment. 

Two military commission cases reached the Supreme Court in 2004. 

The first, Hamdi v. Rumsfeld, addressed an exceptional situation in which it was 

learned that one of the detainees was a U.S. citizen. The decision held that "due process 

demands that a citizen held in the United States as an enemy combatant be given a meaningful 

opportunity to contest the factual basis for that detention before a neutral decision maker." No 

surprise there, thankfully. 

The second decision, Rasul v. Bush, held that "United States courts have 

jurisdiction to consider challenges to the legality of the detention of foreign nationals captured 

abroad in connection with hostilities and incarcerated at Guantanarno Bay." The Bush 

Administration's Justice Department had contended habeas corpus did not extend to non-citizens 

held beyond the confines of the United States. They had created a jurisdictional gulag and 

lawless zone where they believed the judicial branch had no power to interfere with their 

policies. 

The Bush Administration set up in response to the Rasul decision so-called 

Combatant Status Review Tribunals ("CSRT") to pass on the status of detainees, instead of using 

Article 5 Tribunals which are contemplated by the Geneva Conventions and were used with 

success in the First Gulf War. The CSRT's attempted to create new categories of detainees not 

recognized by the Geneva Conventions, and lacked the authority to make the determinations 

contemplated by the Article 5 tribunals. 

1 Authorization for Use of Military Force, Pub. L. 107-40, §§ 1-2, 115 Stat. 224. ("AUMF") authorized 

"all necessary and appropriate force against those nations, organizations, or persons he 

detennines planned, authorized, committed, or aided the terrorist attacks ... or harbored such 

organizations or persons." 

2 The Military Commissions Order was a comprehensive military order intended to govern the 

"Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism," 66 Fed. 

Reg. 57833 (referred to as the "Presidential Military Commissions Order"). 

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The next Supreme Court military commission case, the Hamdan decision in 2006, 

found that military commissions set up by the Bush Administration to try detainees at 

Guantanamo lacked "the power to proceed because its structures and procedures violate both the 

Uniform Code of Military Justice and the four Geneva Convention signed in 1949." 

Specifically, the ruling said that Common Article 3 of the Geneva Conventions was violated. 

Military commissions existed without Congressional authorization from 2001 until Congress 

passed the Military Commissions Act of2006, following the Supreme Court decision in the 

Hamdan case. 

The fourth recent Supreme Court decision, Boudemediene v. Bush, found in 2008 

that the 2006 Military Commissions Act was unconstitutional insofar as prisoners had a right to 

habeas corpus and the Act asserted an unconstitutional suspension of that right. 

Once again, the legitimacy of military commissions was thrown into doubt. 

President Obama signed the 20 l 0 National Defense Authorization Act, which 

included a package of changes to the rules governing military commission proceedings. Called 

the Military Commissions Act of 2009, the new law replaces - and somewhat improves upon 

the Military Commissions Act of 2006. The new 2009 Military Commissions Act made some 

cosmetic changes, including substituting the phrase "unprivileged enemy belligerent" for 

'"unlawful enemy combatant." 

There are three separate grounds under which one may be deemed an 

"unprivileged enemy belligerent": 

1. engage in hostilities against the United States or its allies; 

2. purposefully and materially support hostilities against the United States; or 

3. membership in AI Qaeda. 

The Taliban no longer merits special mention, as it had in earlier military 

commissions authorizations. 

There is no age limit for those tried before military commissions. This omission 

may create some problems in the future as international law requires that anyone who was 

younger than 18 at the time of commission of an offense should be tried in a manner that takes 

into account the person's age and the object of rehabilitation. Commissions faced with trials of 

young people will need to fashion appropriate protections and a record to comply with these 

international legal requirements in order to defend against any attacks on their judgments. 

The 2009 Act bans the usc of evidence obtained through cruel, inhuman or 

degrading ("CID") treatment. However, it allows admission of involuntary statements made by 

third parties, as long as those statements were not derived from CID measures. 

Statements from the accused may only be introduced if they were voluntary. The 

law establishes a voluntariness standard, in which the military judge is directed to look at the 

"totality of the circumstances." The circumstances may include, as appropriate, "lapse in time, 

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change in place, or change in identity of the questioners between the statement sought to be 

admitted and any prior questioning of the accused." 

The last element in the foregoing voluntariness standard seeks to add statutory 

legitimacy to the practice of sending uncontaminated FBI teams to question high value detainees, 

after some of the detainees had been tortured by the CIA. 

The ability of the FBI teams to obtain evidence that is untainted by the fruits of 

torture and can be used in court may never have to be tested. Some of the highest profile 

defendants, including Khalid Sheikh Mohammed, made voluntary statements in CSRT hearings 

proclaiming their roles. Absent the ability by defense counsel to show such defendants were 

mentally incompetent, as a result of the torture or otherwise, at the time such statements were 

made, these statements together with other evidence not connected with interrogation would 

seem sufficient to support convictions. 

Exceptions to the voluntariness standard have been established in recognition of 

practical constraints on the battlefield. The exception allows admission of statements made 

during military operations, such as may occur during questioning incidental to capture. 

The "military operations" exception to the voluntariness rule appears to track on 

the public safety exception to the Miranda rule created by the Supreme Court in New York v. 

Quarles3 

Congress granted the commissions jurisdiction over 32 crimes in the 2009 Act. 

Many are standard war crimes. However, conspiracy and providing material support of terrorism 

are also included in the list of crimes within the jurisdiction of the military commissions. Critics 

of the legislation pointed out that these two crimes are not recognized as war crimes under 

international law. These critics assert material support and conspiracy were included only to 

help the government obtain convictions where evidence relating to traditional war crimes was 

weak or tainted by torture or cruel, inhuman and degrading treatment. These critics contend that 

charges not based on traditional war crimes should be brought in federal court. 

These critics found support in a most unlikely place on October 16,2012 when 

the DC Circuit Court of Appeals, a very conservative court which at times has openly mocked 

the Supreme Court decision in Boudemediene v. Bush, reversed Salim Hamdan's military 

commission conviction for providing material support to terrorism, holding that material support 

was not a recognized violation of the laws of war prior to 2006 when it was codified as an 

offense in the MCA of that year. 

New York v. Quarles, 467 U.S. 649 (1984), in which the Court allowed a police officer's 

question without prior Miranda warning of a detained suspect in a rape assault case. The 

policeman asked the location of a weapon after the policeman frisked the suspect in a 

supermarket to which the suspect fled and found an empty shoulder holster. The Court found that 

the need to locate the weapon so it did not injure an innocent bystander or fall into the hands of a 

potential accomplice outweighed the voluntariness interests protected by the Fifth Amendment. 

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Interestingly, Hamdan was also charged but acquitted of conspiracy by the 

military commission, so that appeals court had no opportunity to pass on the legitimacy of 

conspiracy offenses charged in military commissions. But another military commission case 

working its way up the appeals ladder, al-Bahlul, will offer to the Court of Appeals an 

opportunity to pass on the legitimacy of conspiracy charges before military commissions. Critics 

of the government's arguments have noted the government's brief only cites domestic law in 

support of the view that military commissions should have jurisdiction to try conspiracy charges 

but fails to offer any authority from the law of war or international law in general that would 

support their position. 

The Supreme Court in a 2004 decision, Sosa v. Alvarez-Machain4

, observed that 

the imprecision of customary international law calls for significant caution before permitting 

civil or criminal liability to attach to an alleged violation. The courts in essence are saying they 

want clarity in the prosecution of any alleged offense of the law of nations or the law of war, and 

in particular that the conduct charged as being unlawful "must be based on norms firmly 

grounded in internationallaw."5 

A further criticism of the terms and application of the 2009 MCA, as with its 

predecessor, is the assertion that the Act has retroactive effect. 

Retired Judge Advocate General flag officers, including me, have joined in an 

amicus brief to the Ninth Circuit, in the case ofAl-Nashiri v. MacDonald, in which this issue is 

central to the appeal. 

Al-Nashiri is a current Guantanamo detainee facing a range of accusations, 

including involvement in the bombing of the USS Cole on October 12, 2000, in which 17 sailors 

were killed and dozens of others injured. He is also accused of attempted attacks on another U.S. 

Navy ship, the USS The Sullivans, and a French ship, MIV Limburg. Al-Nashiri was captured in 

2002; held for years in secret CIA prisons in Afghanistan, Thailand, and Poland; and was 

tortured before being sent to Guantanamo. Despite being named as an unindicted co-conspirator 

for the USS Cole bombings by a New York federal grand jury in 2003, al-Nashiri now faces trial 

and execution by military commission at Guantanamo. 

This appeal is not about whether al-Nashiri should face trial and-if convictedpunishment for these crimes; he should. This case is about whether a military commission can 

try an individual for crimes committed outside of a theater of combat, well before there was any 

armed conflict. Al Nashiri is not alleged to have participated at all in the Afghanistan war or 

been involved in the 9/11 attacks. Whatever involvement he is alleged to have had in the USS 

Cole bombing and the two attempted bombings, the acts and attempted acts occurred in Yemen, 

well before 9/11. 

4 542 U.S. 692 (2004) 

' Hamdan II, footnote I 0 

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Presidents Clinton and Bush both declined on separate occasions to find the U.S. 

was at war in Yemen in the relevant period when the USS Cole was attacked or attempts were 

made on the other two vessels. It was not Wltil September 2003 that President Bush reported to 

Congress that combat troops had been deployed to the area, and it was not until 2009 that 

Congress recognized armed conflict in Yemen, relative to a rebel insurgency that began in 2004. 

Military commissions, if properly constituted, have jurisdiction only to try crimes 

committed during armed conflict subject to the laws of war. Military commissions are not 

jurisdictionally empowered to try crimes committed outside of armed conflict. Our amicus brief 

argues that the US, acting through a convening authority at Guantanarno, cannot expand the 

scope of military commission jurisdiction beyond established constitutional and international law 

limits. We also argue that the retroactive application of the MCA to acts occurring before the 

commencement of hostilities, as determined by the president and Congress, constitutes a 

violation of the constitutional prohibition against ex post facto legislation. 

Retired Flag Officers Assessments 

I am part of a group of retired generals and admirals who came together with the 

assistance of a well regarded NGO, Human Rights First. We originally formed after revelations 

of the mistreatment of prisoners at Abu Ghraib, Bagram and Guantanamo. We learned this 

mistreatment was part of a deliberate program adopted by the Cheney /Rumsfeld regime, and 

supported by specious legal arguments advanced by a politicized Office of Legal Counsel in the 

Gonzales Justice Department. We believed these policies and programs violated the Geneva 

Conventions as well as our own domestic law. We were greatly concerned about the precedents 

these practices created, and the implications for American servicemen and women taken prisoner 

in future wars. 

The military commissions created by President Bush at the urging of the 

Cheney/Rumsfeld regime were not requested or supported by the military; rather they were 

imposed on the military. The active duty military must obey the lawful orders of the elected 

civilian leadership, but those of us who were retired expressed our view as to why we thought the 

military commissions were a bad idea, and if they were to be used, they should be used in only 

the most compelling and narrow circumstances. 

There are a number of reasons we thought the military commissions should not 

take the place oftrials in the federal courts. 

I. Requiring terrorists to be tried in military commissions grants them a layer 

of legitimacy they do not merit. Military commissions add a veneer of 

respectability to their claim to be warriors instead of common criminals. 

That is why our State Department encourages other countries to try their 

terrorists in civilian courts. 

2. Military commissions do not have the experience to try high level terrorism 

cases with multiple counts of murder. Federal courts do have that 

experience, especially in the Northern District of Virginia and the Southern 

and Eastern Districts of New York. The FBI agents, the prosecution teams 

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and the judges have all accumulated considerable experience since 1993 in 

trying international terrorism cases, and we should use that experience. 

3. Militruy commissions have not produced the results obtained by the federal 

courts. There have been only seven convictions in military commissions out 

of roughly 779 prisoners held at Guantanamo at one time or another, and 

who were described by Secretary Rumsfeld as the "worst of the worst." 

Sixty different federal courts have convicted nearly 500 terrorists since 9/11, 

and 44 of those trials were in the Southern District of New York. 

4. Convictions in the militruy commission system will be subject to years of 

appeals challenging the fairness of the system and jurisdictional issues such 

as those directed to conspiracy and material support charges, despite reforms 

made under the 2009 Act. 

5. Foreign governments will be less willing to cooperate if cases are pursued in 

military commissions rather than federal courts. Our federal courts are 

trusted overseas. We need the cooperation of foreign governments in many 

of the serious cases since witnesses, documents and sensitive intelligence of 

possible value in prosecutions are within the control of foreign governments. 

We will simply not obtain the same level of cooperation if requests come 

from military prosecutors in commission trials compared to requests coming 

from U.S. Attorneys in federal court prosecutions. 

6. The military commissions are a badly damaged brand, in part because of 

their misuse by other countries and in part because of the outrageous rules 

imposed on them in 2002 when they were first established by presidential 

executive order. Some of those rules prohibited civilian counsel from 

seeing evidence against their clients, and evidence obtained through torture 

could be admissible in some circumstances. 

7. These past practices, and the images of Abu Ghraib and GITMO, are what 

the world and Americans who care about the rule oflaw remember. These 

practices and images have served as the most effective recruiting tools 

terrorists have, and have caused us great damage in the war of ideas and 

values in which we are engaged. American values and the American justice 

system are better than any alternative terrorists can offer. We should not be 

afraid to use these assets. 

8. In summary, we should use our military to fight our wars and use our Justice 

Department and federal courts to try charges against alleged terrorists. 

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STATEMENT OF THOMAS WILNER 1 

TO THE SENATE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION, CIVIL 

RIGHTS AND HUMAN RIGHTS 

I welcome the opportunity to submit a statement for consideration by members of the 

Subcommittee. My colleagues and I at Shearman & Sterling have been involved in Guantanamo 

issues since May of2002, when we filed a case in federal court seeking hearings for the 

Guantanamo detainees under the Great Writ of Habeas Corpus to determine whether there was a 

valid basis for their detentions. It seemed clear to us then, and it has been confirmed since, that 

most of the men held at Guantanamo had been connected neither with al-Qaeda nor the Taliban, 

but were simply innocent men taken into custody in the great fog of war. The great majority had 

not been captured on any battlefield or taken into custody by U.S. troops; rather, they were 

turned over to U.S. forces by Pakistani and Northern Alliance tribes people in exchange for 

substantial bounties paid for any "Arab terrorist." Every Arab in the area was a "valuable 

commodity" who could be sold for cash, and every Arab sold was then simply shipped off to 

Guantanamo, without any review or hearing beforehand. Most remained imprisoned there for 

years without any opportunity to see their families or to obtain justice. 

Thankfully, the population at Guantanamo has been reduced substantially over recent 

years, but the injustice still persists. More than half of the prisoners there were cleared for 

release three and a half years ago- but they remain imprisoned. In a desperate cry lor justice, 

most are now on hunger strike. 

Mr. Wilner and his colleagues at Sheannan & Sterling LLP tiled a case in May of2002 seeking hearings 

for the Guantanamo prisoners under the Writ of Habeas Corpus. He was counsel of record for Guantanamo 

detainees in Rasu/ v. Bush!AI-Odah v. United States (2004) in which the U.S. Supreme Court held that the 

detainees had a statutory right to habeas corpus, and in Bomediene v. Bush/AI-Odah v. United Sates (2008), 

in which the Supreme Court held that the detainees' right to habeas corpus was protected to the U.S. 

Constitution. He was also counsel of record in the decision issued by the U.S. District Court in October 

2004 establishing the Guantanamo detainees' right to unmonitored and privileged access to counsel. 
256 

Their continuing imprisonment is a terrible tragedy for them, and for all the innocent men 

who have been held at Guantanamo without recourse to justice over the years. I have visited the 

base I 5 times over the years, and have had to tell individual prisoners that their mother or father 

or grandmother or grandfather or brother or sister had died while they were incarcerated, and sit 

there and watch them cry knowing that they would never see their loved ones again and had 

missed the last opportunity to be with them. I can never put in words how horrible that 

experience is. 

1. Guantanamo hurts our nation every day it remains open. 

Our country is paying a very high price for all this. Guantanamo is by far our nation's 

most expensive prison, costing in excess of a million dollars per year for each detainee. That 

compares, by the way, to an annual cost of about $30,000 per prisoner in a U.S. maximum 

security prison. We are spending about $90 million a year just to jail the 86 prisoners who were 

cleared for release three plus years ago. The $300 million we have spent jailing that group the 

past three and a half years, and the annual cost of keeping Guantanamo open, amount to a lot of 

money that can be used to save key jobs and services being cut as a result of the sequester. How 

many teachers' salaries, how many school lunches, how many marines would those millions of 

dollars pay for? And the cost of keeping Guantanamo open is increasing. The military has 

requested nearly $200 million for capital improvements to keep it functioning as a prison. Every 

Congressperson concerned with costs should want to close this prison. 

But the cost to our nation is much more than economic. As the President has pointed out, 

the Guantanamo prison was established for the sole purpose of avoiding the rule oflaw, and it 

remains a symbol around the world of disregard for the law. I challenge anyone who contends 

that Guantanamo makes us safer. To the contrary, a long line of people responsible for our 

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national security, including Colin Powell, David Petraeus, Dennis Blair, and Leon Panetta, as 

well as a host of senior generals, have pointed out that Guantanamo hurts our national security. 

Pictures of Guantanamo are still used today by al-Qaeda to recruit suicide bombers against the 

United States and its allies. As the President has said, Guantanamo has "created more terrorists 

around the world than it ever detained." 

The President has succinctly summarized what must be done: 

·'We've got to close Guantanamo .... Guantanamo is not 

necessary to keep America safe. It is expensive. It is insufficient. 

It hurts us in terms of our international standing. It lessens 

cooperation with our allies on counterterrorism efforts. It is a 

recruitment tool for extremists. lt needs to be closed." 

I agree completely. But closing Guantanamo will take more than words. It requires 

action- and the courage to take that action even in the face of criticism and political risk. 

2. The President has the power now to transfer most of the detainees out of 

Guantanamo. 

Existing law gives the President authority to transfer detainees from Guantanamo to other 

countries free from congressional restrictions: 

a) Section 1028(d) of the NOAA provides the President with a clear avenue to transfer 

detainees to other countries. Section I 028(a) prohibits transfer unless the Secretary of 

Defense issues a certificate personally ensuring that the transferred detainee cannot 

engage in any terrorist activity in the future, something that is impossible to do. 

Section I 028( d) then allows the Secretary to waive that requirement and to transfer 

the detainee to another country if he finds that the actions to be taken by the receiving 

country will "substantially mitigate" the risk that the detainee will engage in terrorist 

activity in the future and that the transfer is in lJ .S. national security interests. 

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Those are quite makeable findings. The President has already stated publically that it 

is in the U.S. national security interest to transfer all the detainees from Guantanamo. 

Moreover, the countries willing to accept detainees have offered to undertake steps to 

substantially mitigate the risk that a transferred detainee will engage in terrorist 

activity in the future. In any event even were there no congressional restrictions at 

all, the findings the administration is required to make now under this provision are 

what it would do as a political matter anyway- so that it can tell the public that steps 

are indeed being taken to minimize the risk that released detainees will engage in 

terrorism in the future. Nothing but fear of political criticism is blocking the 

administration from making those findings now so that detainees can be transferred. 

b) There is another exception from the congressional restrictions on transfers. Section 

I 028(a)(2)) authorizes the Secretary to make transfers to effectuate court orders. The 

Secretary may therefore transfer a detainee to effectuate an order granting habeas. By 

consenting to such orders in appropriate cases, or not appealing habeas orders entered 

by district courts, the Department of.Justice would effectively authorize transfers free 

from congressional restrictions. Yet, the administration had made no attempt to take 

advantage of that opening. Instead, its lawyers at the Department of Justice have 

automatically opposed every habeas petition and appealed every district court order 

they have lost in order to lake advantage of the DC Circuit's absurdly strict standard 

on habeas. The Attorney General should reexamine that policy. If the administration 

really wants to close Guantanamo, it could simply consent to the entry of orders 

granting habeas or ordering the release or transfer of detainees. It could do that now. 

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c) There are plenty of conn tries that would take the detainees. 

One of the prevailing myths about Guantanamo is that we can't find countries to take the 

detainees. That is wrong. Although we have refused to take any detainees ourselves, other 

countries will. State Department officials have confirmed to me that there were more than 

enough countries willing to take the detainees; the problem was getting the administration to 

send them. As mentioned, the countries willing to accept detainees are also willing to undertake 

steps to mitigate the risk that the detainees will engage in terrorist activity in the future. 

d) Fewer than 30 of the detainees at Gnantanamo are considered potentially 

"significant" threats. The others are not, and can and should be transferred 

promptly ont of Guantanamo. 

166 detainees remain at Guantanamo; 86 of them have been "cleared" for more than three 

and a half years. They should be transferred promptly to other countries. 

What about the others? The press and some in the administration have tended to 

characterize all the others at Guantanamo as people who can't be tried but are "too dangerous to 

release." In fact, that is clearly not the case. These detainees arc not all the same; fewer than 30 

of them are considered significant threats; the others are clearly not. 

It is useful to break them down into categories: 

a) 86 have been cleared for transfer. 56 of those are from Yemen. Thankfully, the 

President is apparently lifting his self-imposed ban on transfers to Yemen. Yemen 

wants them back and is willing to accept the condition that they go into a 

rehabilitation center. Saudi Arabia is willing to build and, if necessary, staff such a 

center. This can all be done in a short time. The other 30 cleared should not be a 

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problem. Some, like the UK resident and those from Tunisia, could return to their 

home countries. Others, like the 4 Syrians and 3 Uighurs still there, would need to go 

to third countries. But that should also not be a problem. Countries are willing to 

accept them. 

b) 80 have not been cleared. As mentioned, they are not a monolithic group, but very 

different people. One must remember that most ofthe Guantanamo detainees were 

picked up soon after 9/11 in or ~round Afghanistan. They included people suspected 

of being associated with either al-Qaeda or the Taliban (even ifthey opposed alQaeda). There was no review and no effort to pick up only high-level leaders. In fact, 

most of the leaders arc known to have escaped, and those rounded up were low level 

foot soldiers as well, of course, as a lot of innocent Arabs who happened to be in the 

are~ at the time. 

Significantly, it was generally recognized by the summer of 2004 that the 

detainees who were at Guantanamo at that time were not significant players. As 

Tim Golden and Don VanNatta, Jr. Pointed out in an article in The New York Times 

on June 21, 2004: http://www.nytimes.com/2004/06/21/world/thc-rcach-of-war-ussaid-to-ovcrstate-value-ot:guantanamo-detainees.html?pagewanted~all 

"In interviews, dozens of high-level military, intelligence and law-enforcement 

officials in the United Stales, Europe and the Middle East said that contrary to the 

repeated assertions of senior administr~tion officials, none ofthe detainees at the 

United States Naval Base at Guantanamo Bay ranked as leaders or senior operatives 

of al-Qaeda. They said only a relative handful!- some put the number at about a 

dozen others more than two dozen- were sworn Qaeda members or other militants 

able to elucidate the organization's inner workings." 

That is very important. What it means is that those who were already at Guantanamo 

in the summer of 2004 were not significant players and really do not pose a 

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significant threat. (The only possible exceptions are t\vo men who were convicted in 

trials by military commission, and a Saudi who was sent to Guantanamo late in 2003 

from a "black site" and had charges filed against him.) The others, at most, were low 

level foot soldiers. In fact, many of them probably had no connection at all withalQaeda or the Talihan. I can tell you that two Kuwaitis are among the 80 who have not 

been cleared. I have seen the "evidence" against them and it is absurdly flimsy, 

contradictory on its face and simply not credible. I truly believe they are totally 

innocent. They are clearly not dangerous people. 

In any event whatever potential threat exists among the population at 

Guantanamo comes not from those men, but from the detainees who were 

transferred there after the summer of 2004. It was after that when the Bush 

administration began transferring prisoners from so-called "black sites" far from the 

conflict in Afghanistan. Ten prisoners arrived in September 2004 from "black sites," 

14 more- the "high-value detainees," including KSM etc.- in September 2006. and 

tlve more in 2007-08, two of whom are regarded as "high-value detainees." So, in 

total. 29 prisoners were transferred to Guantanamo after August, 2004. Some have 

actually been released. One was convicted in U.S. court and is now incarcerated here, 

and one pled guilty in his trial by military commission. I understand that22 of the 29 

remain and are considered potential threats. 

These, along with the Saudi mentioned earlier and the three who have been convicted 

in trials by military commissions- 26 men in total- represent the universe of 

potentially significant dangerous detainees at Guantanamo. The others are not. In 

other words, the other 54 ofthe 80 who have not yet been cleared are simply not 

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significant players and can and should be transferred. They should be cleared for 

transfer by the Periodic Review Board, which will hopefully begin soon. Again, 

these men can go to their home countries (Kuwait has built a rehabilitation center to 

accommodate its citizens and potentially others) or to other counties which will 

accept them. 

c) What do we do with the 26 or so potentially significant bad guys at Guantanamo? 

Certainly, Guantanamo- with its massive costs in both dollars and loss of U.S. 

prestige- should not be kept open just to try and incarcerate these 26 people. U.S. 

legislation does now prevent the administration from moving any detainee from 

Guantanamo to the U.S. I strongly support the proposed amendments to the NOAA 

dropping that restriction so that these men can be tried in the United States. 

Certainly, if we could try Whitey Bulger, Charles Manson and the Blind Sheikh in the 

United States, we arc able to try, and to incarcerate, these other men in the United 

States. We have nothing to fear, except our own reticence. 

What should we be doing now? 

First, the President should move immediately and aggressively to usc his existing 

authority to transfer the cleared detainees out of Guantanamo. There is no excuse for further 

delay. 

Second, the majority of the other detainees at Guantanamo who have not yet been cleared 

-those who were at Guantanamo in the summer of2004, before the Bush Administration began 

transferring "high-valued detainees'' rrom other sites should also promptly be reviewed and 

transferred out of Guantanamo to the many countries willing to accept them. 

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Third, the relatively few remaining detainees at Guantanamo who are truly considered as 

potential threats should be transferred to the United States for trial and, if convicted, for 

incarceration. Congress should enact the proposed amendments to the NOAA allowing that to 

happen. 

In summary, we can begin closing Guantanamo immediately. The President has the 

existing authority to do so. I recognize that there is always a potential risk that a released 

prisoner can do something bad in the future. Every judge and every governor faces that risk 

when he releases a prisoner. And there is no doubt, if that happens, the person or political party 

who has ordered the release could be subject to political criticism. But we cannot let that fear 

stop us from doing what is right. The 86 cleared prisoners, who are crying for justice through 

their hunger strike, should be released immediately. How do you explain to them that, even 

though they are cleared, they must remain in prison because it is politically inconvenient to let 

them out. How do you explain to the world that we must keep Guantanamo open, even though 

it violates the rule oflaw and compromises our and our allies' efforts to combat terrorism, 

because we are afraid to take on the domestic political criticism for closing it. This President 

must have the political courage to follow-up his words with firm actions. Further delay is not 

tolerable. 

* * * 

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Testimony of 

Matt Hawthorne, Policy Director 

National Religious Campaign Against Torture, 

Submitted to: 

The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights, and 

Human Rights 

Hearing entitled: "Closing Guantanamo: The National Security, Fiscal, and Human 

Rights Implications" 

July 24, 2013 

Mr. Chairman, Members of the Subcommittee, thank you for this opportunity to 

submit testimony on behalf of the National Religious Campaign Against Torture 

(NRCAT). The National Religious Campaign Against Torture is a coalition of 

denominations, faith groups and religious organizations that have joined together in an 

effort to ensure that the United States treats prisoners humanely, and in particular, that it 

never engages in torture, cruel, inhuman, or degrading treatment. Since it was formed in 

2006, more than 320 religious organizations have joined NRCAT, including 

representatives from the Catholic, mainline Protestant, evangelical Christian, Muslim, 

Jewish, Hindu, Sikh, Buddhist, and Orthodox Christian communities. NRCAT members 

include national denominations, as well as regional religious organizations and 

congregations. 

The detention center at Guantanamo Bay was created in an attempt by our government to 

hold prisoners outside of the rule of law and hidden from the eyes of the American 

people. It is a place where prisoners were tortured, and it remains a place where well 

over 100 people are held without charge or trial, let alone conviction, for any crime. 

Some of the detainees in Guantanamo have been held there for over a decade, and many 

of the prisoners currently there were cleared to leave Guantanamo more than three years 

ago. 

The right to a trial is bedrock in American values, and it is a national disgrace that our 

government has abandoned that value for detainees in Guantanamo. Worse, our 

government tortured some of those prisoners an act that is abhorrent in the teachings of 

all faiths. Acts of torture that were previously authorized for use in Guantanamo include: 

stress positions, prolonged isolation, deprivation of food, sleep deprivation, exposure to 

cold temperatures, and waterboarding. 1 

Out of desperation and despair over their seemingly permanent imprisonment without 

trial or hope of release, many detainees at Guantanamo joined a hunger strike that has 

lasted since early this year. Although the number of detainees on hunger strike has 

fluctuated, the Department of Defense has reported force-feeding over 40 Guantanamo 

detainees. While life preserving, this procedure, which involves forcing a plastic tube up 

1 The Constitution Project. The Report o{1/1e Constitution Project's Task Force on Detainee Treatment. 

Washington, 20!3. See pages 55-56. 
265 

a detainee's nose and then down his throat into his stomach, is both brutal and 

dehumanizing. The use of force-feeding is yet another of the harmful results of our 

government's failure to close the detention center at Guantanamo. 

Leaders of several of the largest American denominations and senior leaders of many 

other religious organizations recently released a letter they sent to President Obama, 

stating: "The hunger strike at Guantanamo is an ongoing humanitarian crisis -caused in 

large part by the despair prisoners at the detention center feel over their continued 

detention without hope of trial. It is past time for our country to deal with that crisis."2 

Bishop Pates, Chair of the Committee on International Justice and Peace at the U.S. 

Conference of Catholic Bishops, recently wrote to Secretary of Defense Hagel, saying 

that "the indefinite detention of detainees is not only injurious to those individuals, it also 

wounds the moral reputation of our nation, compromises our commitment to the rule of 

law, and undermines our struggle against terrorism."3 

The Administration currently has the authority to transfer many of the 86 detainees who 

are cleared out of Guantanamo. This is the first step toward closing the Guantanamo 

detention center, and President Obama should ensure that these transfers occur as 

expeditiously as possible. 

Congress should assist in the effort to close Guantanamo. S. 1197, the current Senate 

version of the National Defense Authorization Act for Fiscal Year 2014,lowers the legal 

barriers to transferring cleared detainees, enables transfers for trial and for medical 

treatment, allows transfers for those who have been acquitted or served out their 

sentences post-trial, and provides a path for transferring other detainees out of 

Guantanamo. These measures are reasonable and appropriate, and should be supported. 

Americans of all faiths believe that their country ought to be both strong and just. The 

detention center at Guantanamo Bay is an example of neither strength nor justice. It is 

morally wrong for our government to continue to imprison people without any trial on 

land leased from a foreign government, after years of torture. The situation at 

Guantanamo harms our reputation around the world, where it is used as a symbol to 

strengthen the ranks of those who oppose us. Worse, it exacts a continued moral cost on 

our govcmrnent and makes hypocrites of us when we try to stand for American ideals 

such as the rule oflaw and the right to trial. 

On behalf of the National Religious Campaign Against Torture, I am grateful to the 

Subcommittee for holding this important hearing. It is time to close Guantanamo. It is 

the morally right thing to do. 

2 Letter to President Obama on Guantanamo from Religious Leaders on July 12,2013. 

http://www.nrcat.org/storage/documents/letter _on _guantanamo _to _president_ obama_ 071213 _2.pdf 3 Letter to President Obama from Bishop Richard E. Pates on June 25,2013. http://www.usccb.org/issuesand-action!human-life-and-dignity /torture/up load/Pates-ltr -to-DOD-Hage 1-re-G uantanamo-2013-06-25. pdf 
266 

Testimony of Rabbi Rachel Kahn-Troster 

Director of North American Programs 

T'ruah: The Rabbinic Call for Human Rights 

Mr. Chairman, Members of the Subcommittee, thank you for this opportunity to submit 

testimony on behalf of T'ruah: The Rabbinic Call for Human Rights concerning the moral 

imperative to close the prison at Guantanamo Bay in Cuba, and transfer or hold trials for 

the prisoners who remain there. As a human rights activist, I believe it is critical that the 

United States immediately address the situation. 

T'ruah: The Rabbinic Call for Human Rights is an organization of more than 1800 rabbis 

from all streams of judaism that acts on the Jewish imperative to respect and protect the 

human rights of all people. Grounded in Torah and our jewish historical experience and 

guided by the Universal Declaration of Human Rights, we advocate for human rights in 

Israel and North America. We were founding members of the National Religious Campaign 

Against Torture and continue to be its most active Jewish voice. Our rabbis, together with 

their Jewish communities, believe that core American values such as the prohibition 

against torture, the right to a fair trial, and humane conditions of imprisonment are the 

moral bedrock on which our country succeeds or fails. Upholding these values is an 

extension of our Jewish values: our ancestors came to the United States because of its 

commitment to justice and liberty. 

President Obama's first day in office in 2009 was one of my proudest as an activist. I 

watched online as the President signed Executive Orders that appeared to reverse the 

moral quagmire in which America had found itself since the beginning of the War on 

Terror. One of those Executive Orders authorized the closing of the prison at Guantanamo 

within the year. Like most Americans, I trusted that it would happen. But it has not, both 

because of roadblocks set up by Congress and because of presidential inaction. It has been 

easy for most of America to forget the men languishing at Guantanamo. Early in his first 

term, President Obama urged us all to look forward on issues like torture and indefinite 

detention. Most of us did. 

It is especially upsetting that the men held in Guantanamo have so despaired of ever 

leaving that many of them have been engaged in a hunger strike for months. The leaders of 

this strike are many of the 86 men cleared for release-men whom the United States has 

admitted it should no longer be holding captive-who are still held at Guantanamo. In 

response to their abstention from food, the military has been force-feeding them, 

restraining them in chairs while thrusting feeding tubes down their noses and throats. It is 

only religious sensitivity in the most superficial sense that has prompted the military not to 

forcibly feed the prisoners during daylight hours for the duration of Ramadan. It is cruel 

that the military reclassified being on hunger strike as grounds for being held in isolation, 

thereby forcing prisoners to choose between the Ramadan prayers that must be done 

communally and their act of protest. 
267 

As an anti-torture activist, I am frequently exposed to information about the gruesome 

nature of inhumane treatment, but reading the descriptions of force-feeding has tested my 

limits. Even though I applaud actor and hip hop artist Yasiin Bey (Mos Del) for his 

willingness to submit to force feeding on video to demonstrate just how brutal this practice 

is, I can't watch. The consensus of both medical and human rights officials is that forcefeeding hunger strikers is torture. Is this where we as a nation find ourselves again? 

No human being, created b'tzelem elohim (in the image of God), should have to submit to 

this inhumanity in order for the world to see his or her suffering. One of the first laws that 

God gives humanity, according to the Torah, is the obligation to set up fair courts of justice. 

Jewish law-like American law-guarantees every person accused of a crime the right to 

stand trial, and to be judged fairly. 

In the Book of Lamentations, which the Jewish community read last week on the fast day of 

Tisha B'Av, the desolate people ask why God has forsaken them. But in the case of the 

hunger strikers at Guantanamo, it is we the people who have done the forsaking. These 

men have been waiting as our attention went elsewhere. 

In December 2008, right after President Obama was elected, two attorneys representing 

Guantanamo detainees spoke at a T'ruah conference, and their words have come back to 

haunt me with each day of the hunger strike, with each day that the prison remains open. 

Attorney Thomas Wilner said that to the detainees, the worst abuse was not the physical 

abuse, but being stuck in Guantanamo without a hearing, without a chance to defend 

themselves. And Gita Gutierrez of the Center for Constitutional Rights called out all 

Americans, herself included, on our complacency, first in the face of the torture we knew 

was going on and now in light of the ongoing legal quagmire. She challenged us: "We did 

not do enough eight years ago, we did not do enough six years ago, or four years ago, 

or even two years ago, and the men are still imprisoned there." She reminded us 

that even being released did not restore to former prisoners the years that were lost or 

heal the physical and emotional trauma. And she asked us to commit to getting those men 

released. 

That was more than 1,60 0 days ago. The men are still there and now they are dying to 

remind us they are there. 

After the Israelites receive the Torah, they famously declare Na'aseh v'nishmah, "We will do 

and we will hear" (Exodus 24:7). The odd choice of order of the commitment is understood 

to mean that a commitment to action must precede a full comprehension of the terms. The 

moral imperative to act, to receive God's word, is so great that it ends discussion. 

We've heard enough about and from men dying at Guantanamo. It's all been talk. The 

balance of this dynamic must change to action. Recently, Thomas Wilner told me, "What is 

happening at Guantanamo is simply no longer tolerable. It is a terrible human tragedy, and 

it is also a continuing outrage to our values as Americans. These few Arab men, many of 

whom have long been cleared, are stranded at an island prison and ignored because they 

have no domestic constituency to speak on their behalf-except for us. We must do so." 
268 

It is time for the United States to act. On May 23, President Obama once again reiterated his 

commitment to close the prison and transfer to their home countries the detainees who 

have been cleared for release. At the time, he emphasized the troubling moral legacy that 

both the hunger strike itself and the bigger problem of indefinite detention without trial 

will leave to the next generation: "Is that who we are? Is that something our founders 

foresaw? ... Our sense of justice is stronger than this." 

While the president continues to state his commitment to closing Guantanamo, his actions 

tell a different story, as he continues to sign legislation that restricts his ability to transfer 

detainees and fails to robustly pursue other options. T'ruah's leadership are among 38 faith 

leaders who signed a recent letter to President Obama from the National Religious 

Campaign Against Torture reiterating that both torture and indefinite detention without 

trial-especially for the significant number of detainees cleared for release-violate the 

inherent dignity of the human being. The letter states: "As the nation's most visible and 

painful symbol of torture and indefinite detention, Guantanamo Bay is a constant reminder 

of a deep moral wound that will heal only when it is permanently closed." 

Mr. Chairman, Members of the Subcommittee, T'ruah believes closing Guantanamo not just 

a legal but also a moral obligation. While there is much the President could do on his own, 

it has not aided these efforts that Congress continues to set up roadblocks to closing 

Guantanamo and either trying or releasing its prisoners. To that end, we urge you to take 

immediate steps to end Congressional restrictions on closing Guantanamo and on trying its 

prisoners in American courts. Today's hearing represents the first step in Congress 

restoring its legacy on this issue. We thank you for your leadership and for the opportunity 

to contribute. 
269 

CLOSING GUA:\TANAMO: 

THE NATIONAL SECl:RITY, FISCAL, AND HCMAN RIGHTS IMPLICATIONS 

Hearing Before the Senate Judiciary Subcommittee on 

the Constitution, Civil Rights, and Human Rights 

Wednesday, July 24, 2013 

Statement of Stephen I. Vladeck 

Professor of Law and Associate Dean for Scholarship, 

American University Washington College of Law 
270 

Mr. Chairman, Ranking Member Cruz, and distinguished members of the 

Subcommittee, 

Thank you for the opportunity to submit the following statement for the 

record. Although my academic research and scholarship have focused on a wide 

range of issues implicated by this hearing,' I'd like to focus in the pages that follow 

on three specific points: First, it is going to be all-but-impossible, as a matter of law, 

to try most of the remaining Guantanamo detainees in military commissions. Thus, 

whatever else may be said about arguments for keeping Guantanamo open, any 

claim that future military commission trials justifY such a step fails to persuade. 

Second, and related, it is unlikely, at least based on current jurisprudence, that the 

detainee population will be substantially reduced by habeas corpus litigation before 

the D.C. federal courts. As one of the D.C. Circuit's own judges recently lamented, 

the courts are not going to close Guantanamo; only the political branches can.2 

Third, criticisms of the ability of our ordinary ("Article III") civilian courts to 

handle high-profile terrorism cases are wanting for evidence. Not only are the 

civilian courts more than able to handle the challenges of high-profile terrorism 

cases, but various developments over the past decade have only made it easier for 

the government to bring such cases before our regular courts. Simply put, there 

should not be any relationship going forward between the fate of Guantanamo and 

the question of where and how to try terrorism suspects. 

I. HAMDAN II AND MILITARY COMMISSIONS GOING FORWARD 

Congress enacted the Military Commissions Act of 2006 (MCA), as amended 

in 2009,3 in response to the Supreme Court's decision in Hamdan v. Rumsfeld 

1. See, e.g., Stephen I. v1adeck, The New Habeas Revisionism, 124 HARV. L. REV. 941 (2011) 

(analyzing the role of history in the Guantanamo habeas cases); Stephen I. Vladeck, Boumediene's 

Quiet 17wory: Access to Courts and the Separation of Powers, 84 NoTRE DAME L. REV. 2107 (2009) 

(deconstructing the Supreme Court's decision in Boumediene v. Bush, 553 U.S. 723 (2008)); Stephen 

!. Vladeck, Congress, the Commander·in·Chief, and the Separation of Powers After Hamdan, 16 

TRANSNAT'L L. & CONTEMP. PROBS 933 (2007) (discussing the implications of the Supreme Court's 

decision in Hamdan !-Hamdan v. Ru.msfeld, M8 U.S. 557 (2006)). 

2. See Hussain v. Obama, No. 11·5344, 2013 WL 2990993, at *8 (D.C. Cir. June 18, 2013) 

(Edwards, J., concurring in the judgment). 

3. See generally 10 U.S.C. §§ 948a-950t. For more on how the 2009 MCA altered the scheme 

created in the 2006 MCA, sec Stephen l. Vladeck, Exceptiona1 Courts and the Strncture of American 

Military ,Justice, in GU!u'lTANAMO AND BEYOND; EXCEPTIONAL COURTS AND MILITARY COMMISSIONS IN 

COMPARATIVE !u'lD POLICY PERSPEC'l'I\'E 163 (Fionnuala D. Ni Aolain & Oren Gross eds., Cambridge 

Univ. Press 2013). 

Vladeck Statement Pagcl2 July 24, 2013 
271 

("Hamdan I'), 548 U.S. 557 (2006). 4 In Hamdan I, the Supreme Court held that 

Congress, through Article 21 of the Uniform Code of Military Justice (UCMJ), had 

only authorizes military commission trials for "offenders or offenses that by statute 

or by the law of war may be tried by military commissions." And a plurality of the 

Court further concluded that conspiracy was not such an offense. Thus, Congress 

had not authorized Hamdan's trial by military commission. 

Congress responded to Hamdan I in the MCA by providing express 

authorization for military commission trials of non-citizens who were "unlawful 

enemy belligerents," as defined by the MCA. To that end, Congress codified 28 

separate substantive offenses triable by commissions, including conspiracy and 

"providing material support to terrorism" ("MST"). The MCA further provided that 

its provisions "codifY offenses that have traditionally been triable by military 

commissions," and "does not establish new crimes that did not exist before its 

enactment."5 

Hamdan was subsequently convicted ofMST (although the commission 

acquitted him of conspiracy). In a different proceeding, another detainee-Ali 

Hamza Ahmad Suliman al Bahlul-was convicted of conspiracy. Both appealed to 

the "Court of Military Commission Review" (CMCR), an intermediate court created 

by the MCA. The CMCR affirmed both convictions,6 and appeals to the D.C. Circuit 

followed. 

In Hamdan v. United States ("Hamdan II'), 696 F.3d 1238 (D.C. Cir. 2012), 

the D.C. Circuit reversed Hamdan's conviction. At the heart of the court's 

unanimous opinion, authored by Judge Brett Kavanaugh, was the conclusion that 

the MCA should be interpreted to not apply retroactively-to not authorize trials for 

conduct that pre-dated its October 2006 enactment. This was so, Judge Kavanaugh 

explained, because otherwise, it would raise serious constitutional concerns under 

4. For full disclosure, I served as co-counsel to Hamdan before the Supreme Court in Hamdan I. 

I have not been directly involved in his case since 2008, and my observations here come purely in my 

personal capacity. 

5. For a more detailed summary of the 2006 MCA, and the constitutional questions it raises, 

see Stephen I:-Vladeck, The Daws of War as a Const£tut£onal L£rn£t on A1£htary Jur£sd£ct£on, 4 J. 

NAT'L SEC. L. & POL'Y 295, 326--28 (2010). 

6. See United States v. AI Bahlul, 820 F. Supp. 2d 1141 (Ct. Mil. Comm'n Rev. 2011); United 

States v. Hamdan, 801 F. Supp. 2d 1247 (Ct. MiL Comm'n Rev. 2011). 

Vladeck Statement Pagel3 July 24, 2013 
272 

Article I's Ex Post Facto Clause. 7 Thus, the only way Hamdan could be prosecuted 

in a military commission for MST8 based upon pre-MCA conduct was if such a trial 

was authorized by the only other authority for military commissions, and the only 

one on the books at the time of Hamdan's conduct-Article 21 of the UCMJ, 10 

U.S.C. § 821. Holding that offenses triable under Article 21 must be clearly 

established violations of the international laws of war, Hamdan II next concluded 

that MST was not a recognized violation of the laws of war at the time of Hamdan's 

conduct. Thus, neither the MCA nor Article 21 authorized Hamdan's trial, and so 

his conviction had to be reversed. 

As I've explained elsewhere, 9 and as the government subsequently conceded,w 

Judge Kavanaugh's analysis compelled the same conclusion with regard to whether 

the MCA authorizes military commission trials for conspiracy based upon pre-MCA 

conduct. Because neither MST nor conspiracy were clearly established violations of 

the laws of war prior to the MCA's enactment, neither offense can be tried in a 

military commission for conduct that also predated the MCA. And so the D.C. 

Circuit ruled in January of this year.n And, to drive the point home, virtually all of 

the Guantanamo detainees were captured and sent to Guantanamo before the MCA 

was enacted-and are held based upon pre-MCA conduct. Simply put, so long as 

Hamdan II is the law, the commissions will not be able to try any of the current 

Guantanamo detainees for MST or conspiracy. 12 

7. See U.S. CONST. art. I,§ 9, cL 3 ("No Bill of Attainder or ex post facto Law shall be passed."). 

There can be little question that the Ex Post FactD Clause applies at Guantanamo; unlike individual 

rights, there is no authority for the proposition that Congress may pass ex post facto laws so long as 

they only affect non·citizens detained outside the territorial United States. See, e.g., Boumediene v. 

Bush, 476 F.3d 981, 996--97 (D.C. Cir. 2007) (Rogers, J., dissenting). 

8. To be clear, material support has been a civilian criminal offense since 1994, and has applied 

extraterritorially since the USA PATRIOT Act of 2001. See Uniting and Strengthening America by 

Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act of 

2001, Pub. L. No. 107-56, § 805(a)(l)(F), 115 Stat. 272, 377 (2001) (amending 18 U.S.C. § 2339A(a)). 

Thus, there is no question that the civilian courts can entertain material support prosecutions so 

long as the conduct giving rise to the offense post-dated October 26, 2001. 

9. See Steve Vladeck, Three 

I~>\WFARE, Oct. 16, 2012, 

kg vmumg_h~!:!)Jiilisis:ln:.h0J):J_d_illll. 

10. See Steve Vladeck, The Government's Supplemental Brief in Al-Bahlul, LAWFARE, Jan. 9, 

2013, httJD'b'i.'l'oYJJJ.wfarg_hlgg,<;mu~Ql;llQ1/thte:governQ1ents·supJllem!illtal-brief·in·al·ba_hlu)i. 

11. See Al Bahlul v. United States, No. 11-1324, 2013 WL 297726 (D.C. Cir. Jan. 25, 2013) (per 

curiam). 

12. The D.C. Circuit has since granted the government's petition for rehearing en bane, see Al 

Bahlul v. United States, No. 11-1324 (D.C. Cir. Apr. 23, 2013) (en bane), and argnment is scheduled 

for September 30, 2013. But as most commentators agree, it is unlikely, given the membership of the 

Vladeck Statement Pagcl4 July 24, 2013 
273 

The reason why this point is so significant is because, other than the 9/11 

trial and the Nashiri prosecution (arising out of the bombing of the USS Cole), MST 

and conspiracy are the principal-if not exclusive---charges that the government 

could theoretically pursue against the detainees in a military commission. This is so 

because, at least based upon the public record, only the 9/11 defendants and Nashiri 

can be tied directly to specific acts of terrorism, as opposed to more general ties to al 

Qaeda and its affiliates. Thus, as a June 2012 Reuters story suggested, even the 

commissions' Chief Prosecutor, General Mark Martins, has all-but assumed that 

there will be no additional commission trials once the 9/11 and Nashiri prosecutions 

have concluded.'3 

To be sure, the above analysis is without regard to whether commissions 

could be used to try future terrorism suspects-a question that raises its own host of 

thorny constitutional issues. 14 But at least for the existing detainee population at 

Guantanamo, the upshot is that trials by military commission will be legally 

unavailable to everyone besides the 9/11 defendants and Nashiri. 

II. THE STATE OF THE GUANTANAMO HABEAS LITIGATION 

Just as military commission trials seem unlikely to have any effect on the 

current Guantanamo detainee population (outside the 9/11 and Nashiri cases), the 

same can be said-albeit for different reasons-about the ongoing Guantanamo 

habeas litigation in the D.C. federal courts. This conclusion may seem a bit 

counterintuitive given the relative success of the detainee litigation to date-in the 

court and the specific questions the en bane court asked to have briefed, that the en bane court will 

reverse course and uphold the ability of the commissions to try MST and conspiracy for pre-2006 

conduct. See, e.g., Wells Bennett & Benjamin Wittes, Breaking News: D.C. Circuit Grants En Bane 

Rehearing in Al-Bahlzd. LAWFARE, Apr. 23, 2013, ill1IJ://www.l@wf<~reblog&Q!J1l2013/(L{_/])reaking­

.new s~d ~c-c~r_Q!-!it:.gral1k~n -l@nc-rP hQI!.rill£.:Ktsn:lt:£..d.::.in.:nl.:._l:.HLh11llL. 

13. See Jane Sutton, Um:ted States Scales Back Plans for Grwntanamo Prosecutions, REUTERS, 

June 11, 2013. hJtp:/luk.reuters.comillLillJci2013/0G/1lluk-usa-gumJJ_'LQJl!J1.2.: 

idGKBRE95AOP3201:l061l. 

14. In Hamdan II, Judge Kavanaugh (writing only for himself) suggested that there was no 

problem with prospective prosecutions for MST and conspiracy. See Hamdan II. 696 F.3d at 1246 n.6. 

But even if that's true with regard to Congress's power to define the offense, there are still difficult 

questions about whether military commissions may try offenses not recognized as war crimes 

without violating the jury-trial provisions of Article 111 and the Fifth and Sixth Amendments. See, 

e.g .. Steve Vladeck. Article Ill Limits on Military Commissions: The (New) NIMJ Amicus Brief, and 

the En Bane D.C. Circuit, LAWFARE, June 12, 2013, http://'Y_wwJ_al\:fm@lQg&Qm/2013/0G/article-iiinnd~nlilitruJ~~-:QIDJJlissiq_ns/. 

Vladeck Statement PagelS July 24, 2013 
274 

district court, 38 of the 63 detainees who have pursued habeas relief since the 

Supreme Court's decision in Bownediene v. Bnsh, 553 U.S. 723 (2008), have 

prevailed on the merits. ts 

But that statistic doesn't account for the D.C. Circuit's jurisprudence, which, 

in at least five respects, has made it far easier for the government to prevail on the 

merits. First, the Court of Appeals has adopted a capacious definition of what it 

means for a detainee to be "part of' al Qaeda or one of its affiliates, and therefore 

subject to detention under the September 2001 Authorization for the Use of Military 

Force (AUMF).l6 Second, the Court of Appeals has suggested that international law, 

which the Supreme Court has twice used to interpret the AUMF, has no bearing on 

the scope of the detention authority Congress has provided.l7 Third, the court has 

held that the government need only prove that a detainee is "part of' al Qaeda or 

one of its affiliates by a "preponderance of the evidence," i.e., more than half. 18 

Fonrth, and related, the D.C. Circuit has held that courts applying these first two 

rules should resort to "conditional probability analysis," 19 even though such analysis 

could have the effect of giving undue value to evidence gathered from similarly 

unreliable sources.2o Fifth, the court has also articulated a "presumption of 

regularity" for intelligence reports, 21 which has made it virtually impossible for 

detainees meaningfully to rebut the government's evidence-despite the Supreme 

Court's suggestion in Hamdi v. Rzunsfeld, 542 U.S. 507 (2004), that such an 

15. For an overview of the post-Bmmwd£ene litigation, including the decisions discussed below, 

see Stephen I. Vladeck, The D.C. C£rcuit After Boumediene, 41 SETON HALL L. REV. 1451 (2011). 

16. See a! Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2011). 

17. See id. B!Lt see a! Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2011) (Sentelle, C.J., and Ginsburg, 

Henderson. Rogers, Tate!, Garland, & Griffith, JJ., concurring in the denial of rehearing en bane) 

("We decline to en bane this case to determine the role of international law-of-war principles in 

interpreting the AUMF because, as the various opinions issued in the case indicate, the panel's 

discussion of that question is not necessary to the disposition of the merits."). 

18. See al B£han£, 590 B'.3d at 879. As I've explained in detail elsewhere, the D.C. Circuit's 

approach to the process to which detainees are entitled is based on a fundamentally backwards 

reading of Justice Kennedy's majority opinion in Bozuned££ene, which stressed that detainees are 

entitled to more process in challenging executive detention than what is ordinarily available in postconviction habeas petitions. In al-Bihani, the D.C. Circuit-inexplicably-held that they are entitled 

to less. See Vladeck, supra note 15, at. 1466-68. 

19. See Al Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010). 

20. See Vladeck, supra. note 15, at 1472 n.ll2. 

21. See Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012). B!Lt see id. at 1206--27 (Tate!, J., 

dissenting) (heavily criticizing the majority's analysis). 

Vladeck Statement Pagel6 July 24, 2013 
275 

opportunity may be constitutionally required. 22 And even in cases in which a 

detainee has prevailed on the merits, the court has refused to order a detainee's 

release when the only place such release could lawfully be effectuated was within 

the territorial United States. za 

The net effect of these holdings is clear. As Judge Silberman rather succinctly 

explained in one case, "I doubt any of my colleagues will vote to grant a [habeas] 

petition if he or she believes that it is somewhat likely that the petitioner is anal 

Qaeda adherent or an active supporter."24 And as Judge Edwards lamented just last 

month, 

when I review a record like the one presented in this case, I am 

disquieted by our jurisprudence. I think we have strained to make 

sense of the applicable law, apply the applicable standards of review, 

and adhere to the commands of the Supreme Court. The time has come 

for the President and Congress to give serious consideration to a 

different approach for the handling of the Guantanamo detainee 

cases.25 

The statistics bear out both of these views. Since the D.C. Circuit's June 2010 

decision in Al-Adahi (adopting the conditional probability approach), the district 

court has granted just one detainee habeas petition-in Latif, which was reversed 

by a divided panel on appeal_2a 

Thus, for better or worse, it is going to be all-but impossible for a detainee to 

prevail on a habeas petition under the jurisprudence governing the Guantanamo 

litigation. Instead, the focus of that litigation has shifted to ancillary issues, 

including the detainees' continuing right of access to counsel; their ability to 

22. Harndi might be distinguished on the ground that, in that case, there was no question as to 

the detainee's due process rights. See, e.g., Almerfedi v. Obama, 654 F.3d 1, 5-6 (D.C. Cir. 2011). But 

nothing in Latif--Dr in any of the D.C. Circuit's other "merits" decisions-has turned on the 

possibility that the detainees lack due process rights. 

23. See Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), vacated, 130 S. Ct. 1235, reinstated, 

605 F.3d 1046 (D.C. Cir. 2010) (per curiam). 

24. Esmail v. Obama, 639 F.3d 1075, 1078 (D.C. Cir. 2011) (Silberman. J., concurring) (emphasis 

added). 

25. Hnssain, No. 11-5344, 2013 WL 2990993. at *8 (Edwards, J., concurring in the judgment). 

26. See Latif, 617 F.3d 1175. 

Vladeck Statement Page 17 July 24, 2013 
276 

challenge force-feeding; and so on. 27 Whatever else might be said about these 

developments, the larger point remains the more important one: it is highly 

unlikely that the courts are going to play a meaningful role in closing Guantanamo. 

Instead, as Judge Edwards suggested in Hrtssain, if any effort is going to be made to 

reduce the detainee population and/or close the facility outright, the onus is going to 

fall squarely-and virtually exclusively--{)n the political branches. 

Ill. TERRORISM TRIALS IN THE ARTICLE Ill COURTS 

Nor can there continue to be any question about the ability of our ordinary 

civilian courts to handle high-profile terrorism prosecutions. In a forthcoming 

article, 28 my colleague Jon Daskal and I survey some of the key developments in the 

law over the past decade-all of which have made it easier for the government to 

prosecute terrorism suspects in the civilian courts while simultaneously preserving 

the government's ability to gather intelligence and protect classified information.29 

Although not an exhaustive list, these developments (to which more complete 

citations are provided in our article) include: 

)'- The so-called Foreign Intelligence Surveillance Act (FISA) wall, which 

was sharply criticized by the 9/11 Commission for inhibiting the sharing 

of intelligence and law enforcement information and thereby contributing 

to pre-September lllaw enforcement failures, has come down. Thanks to 

amendments included in the USA PATRIOT Act of 2001, FISA now 

explicitly permits the coordination oflaw enforcement and intelligence 

officials to protect against acts of international terrorism, and various 

statutory reforms over the past decade have only further facilitated such 

interagency cooperation. 

> The FISA Amendments Act of 2008 further authorized the government, 

albeit not without controversy, to engage in the warrantless interception 

of communications that take place in the United States if the targets are 

27. See, e.g., Stephen I. Vladeck, Access to Counsel, Res Judicata, and the FtLttLre of Habeas at 

Guantanamo, 161 U. PA. L. REV. PENNUMBRA 78 (2012). 

28. See Jennifer Daskal & Stephen I. Vladeck, After the AUMF, 5 HARV. NAT'L SEC. J. 

(forthcoming 2013), available at hJJ.p:l/www.laxyfarc.h~.comlwp-cQ!ltcllY.l\PJQadsi20ULOJi.l.l\fter-thf.: 

A liliJ.F.:Einal. pdf. 

29. I also explored these issues in the more specific context of one of the higher-profile post-9111 

terrorism prosecutions. See Stephen L Vladeck, Terrorism Trials a.nd the Article III CotLrts After Abu 

Ali, 88 TEX. L. REV. 1501 (2010). 

Vladeck Statement PagelS July 24, 2013 
277 

foreigners overseas. In a recent debate, Sen. Dianne Feinstein, 

Chairwoman of the Senate Intelligence Committee, described these 

authorities as having "produced and continu[ing] to produce significant 

information that is vital to defend the nation against international 

terrorism and other threats"-including information relied upon in 

making recent terrorism-related arrests. 

> Substantive criminal laws have evolved to respond to the changing nature 

ofthe threat. Material support statutes, for example, which have been 

interpreted broadly, were expanded to cover overseas conduct in October 

2001, with further expansions in 2004. Additional substantive expansions 

to these laws were also added in 2004, including the addition of a new 

crime of "receiving military-type training from a foreign terrorist 

organization." 

> In 2009, the High-Value Intelligence Group was put into effect-pulling 

together the expertise of top intelligence professionals across the 

government, including from the FBI, CIA, and DOD-to design and 

conduct intelligence interviews of high-value terrorism detainees. 

> Federal courts have recognized an expanded "public safety" exception to 

Miranda to allow for the limited introduction into evidence ofunwarned 

statements. 

> An increasing cohort of judges and civilian prosecutors has successfully 

navigated the handling of classified information. Obvious examples 

include the recent closed-door arraignment of three European men 

apprehended on their way to Yemen and accused of supporting al 

Shabaab, and the extensive handling of classified information in the 

prosecution of Ahmed Ghailani, now serving a life sentence for his role in 

the 1998 embassy bombings. But other examples abound. 

> Meanwhile, widely cited fears about the potential harm of bringing highprofile terrorism suspects into federal court have proven baseless. Not a 

single terrorist trial has been attacked, and not a single terrorism suspect 

or convict has escaped. 

Of course, reasonable minds may disagree about the merits of any or all of 

these developments. But what cannot be gainsaid is that they have made it far 

Vladeck Statement Page 19 July 24, 2013 
278 

easier for the government to prosecute terrorism suspects in our ordinary civilian 

courts-and to do so without sacrificing intelligence-gathering capabilities or the 

need to keep properly classified information from public scrutiny. 

* * * 

In the final analysis, closing Guantanamo raises a host of complex legal, 

logistical, and political questions. But whether the detainees can be tried in military 

commissions or Article III courts is not one of them. 

Thank you again for the opportunity to submit this statement for the record. 

Vladeck Statement PagcllO July 24, 2013 
279 

IITHfJJ fiQIIIHJT TOKT~Kf a. ca.mpa.ign to shut down Gua.ntana.mo 

S!3lt J:.""l 10003 

,,.-ww,witneootorture,org 

Closing Guantanamo :The National Security, Fiscal, and Human Rights Implications 

Hearing Befare the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 22, 2013 

Witness Against Torture -Statement for the Record 

To the Senate Judiciary Subcommittee on the Constitution, Human Rights, and Civil Rights: 

We are Witness Against Torture, a grassroots organization that has worked since 2005 to close 

the prison at Guantanamo, end US torture, advocate accountability for the torturers, and justice for the 

victims. We are not lawyers, or political figures, or professional advocates. Rather, we are women and 

men, of diverse backgrounds, ages, occupations and faiths, devastated by the US's embrace of torture 

and indefinite detention and determined to have our government abide by the Constitution, its 

founding ideals, and the principles of human rights and justice it professes. For many of us, this work 

has been, along with our dedication to our families and communities, the most important commitment 

in our lives, 

We represent, in short, an important part of the citizen voice, so often left out of media 

coverage of Guantanamo and government deliberations over detention policy. For years now, the myth 

of public indifference toward Guantanamo has functioned as an excuse- by the White House 

especially, but by Congress also- for official inaction. That myth, and that inaction, must end. 

Indeed, the ongoing hunger strike at Guantanamo has galvanized anew public concern overt he 

prison. Since the strike began in February, there have been hundreds of rallies and vigils in American 

cities and towns; the collection of more than 300,000 petition signatures calling for the closure of 

Guantanamo (one petition, issued by the Former Guantanamo Chief Prosecutor Colonel Morris Davis, 

garnered more than 200,000 signatures in two weeks); countless calls of protest to the White House and 

the US Southern Command; thousands of letters of sympathy to the Guantanamo detainees; the 

participation of hundreds of people in solidarity fasts with the hunger strikers; a delegation of US 

activists to Yemen to meet with the family members of detained men; and non-violent arrest actions at 

the White House, at Federal Court in New York City, and in other cities around the country. Two US 

military veterans are currently on perilous hunger strikes of their own (66 and 44 days, respectively) in 

protest of Guantanamo. 

Young people especially are now flocking to the movement to close the prison, Just children 

when the 9-11 attacks happened- and thus too young to have internalized the politics of fear defining 

the early "war on terror"- they can scarcely comprehend that such a place as Guantanamo exists, 

which so grossly violates American notions of due process and basic, human decency. Not since the 
280 

worst days of the Bush administration has Witness Against Torture seen such an outpouring of solidarity 

with the detained men, anger at US policy, and public action to close Guantanamo. 

Most importantly, the hunger strike at Guantanamo, the sickening practice of force-feeding, and 

other, petty cruelties have again shattered the fiction that Guantanamo is a "humane" prison. Rather, it 

is a place of persisting torture, whether through physical abuse or the torment of indefinite detention. 

It is as wrong today as it was when it first opened, and it must close immediately, in a just and 

responsible way. 

We appreciate this opportunity to address Congress as it reconsiders the very existence of the 

prison. We first narrate the history of our group, highlighting the range of our activities and the many 

dimensions of the Guantanamo saga they touch upon. Next, we outline our core perspective on 

Guantanamo and our sense of what closing the prison ultimately requires. We conclude by sharing a 

poem that captures with special force our position, our passion, and our view of what justice with 

respect to Guantanamo means. 

Witnessing Against Torture 

Witness Against Torture got its start when, in December 2005, twenty five US citizens traveled 

to Cuba at great legal risk to protest the prison at the gates of the US Naval base itself. Moved in part by 

their Christian faith to oppose torture, many also prayed in compassion for the men held there. Word of 

the protest made it to the detained men, who in turn conveyed through attorneys their appreciation for 

the concern of Americans with their plight. 

After returning to the United States, the group worked to mobilize opposition to Guantanamo 

and confront those responsible for detention policy. Witness Against Torture's activism has entailed 

annual demonstrations in Washington, D.C. on January 11 (the date of the prison's opening in 2002); 

group fasts often days or more to accompany the January protests; countless educational events at 

universities, churches and community centers; lobbying and other outreach efforts to lawmakers; 

numerous media interviews, letters-to-the-editor, and other published writings; and work in coalition 

with groups like the Center for Constitutional Rights and Amnesty International to organize rallies, press 

briefings, and symposia. We are perhaps best known for our for silent processions of people in orange 

jumpsuits and black hoods the iconic, globally recognized image of the Guantanamo prisoner- in 

Washington, D.C. and other cities. Images of our protests have accompanied hundreds of news stories 

worldwide. 

Throughout, Witness Against Torture has been motivated by desire to see the detained men in 

human terms, and not as they are cynically (and inaccurately) depicted in the media and the rhetoric of 

government. Hence, we have carried their pictures and recited their names in public, shared their 

stories and their poetry, and reached out to their families. 

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281 

We have also educated ourselves in the circumstances of their capture and the overwhelmingly 

flimsy "evidence" -often obtained under torture- used to "justify" their detention. Such information 

goes to the heart of our protest, as it exposes the "great lie" with respect to Guantanamo: that the 

prison houses only "the worst of the worst," who mean America grave harm. This fiction, first 

promulgated by Dick Cheney and other architects of Guantanamo but repeated to this day by lawmakers 

and pundits, has poisoned public understandings of Guantanamo and inhibited responsible changes in 

detention policy. 

To be sure, Guantanamo now houses a handful of so-called "high value detainees," likely guilty 

of serious crimes (though these were largely transferred to Guantanamo from black sites, one may 

recall, only in the fall of 2005 so as to bolster support for the Military Commissions Act). But the vast 

majority of the population, as credible research has shown, were captured neither "on the battlefield" 

nor by US forces. In fact, many were sold for bounty to US forces and are guilty of nothing more than 

being in the wrong place at the wrong time. Others were foot soldiers with the Taliban and various 

militias, hardly worthy of extended interrogation and confinement. Moreover, no less a figure than 

Secretary Colin Powell's Chief of Staff, Lt. Col. Lawrence Wilkerson, signed an affidavit reporting that 

leading figures in the Bush administration knew that the great majority of prisoners at Guantanamo 

were far from committed terrorists. Much of our work, therefore, has been devoted to piercing the 

smog of propaganda and ignorance by revealing the reality of Guantanamo and just who is held there. 

In this work, we have been stunned to see how tenaciously Guantanamo's apologists shield themselves 

from the truth of America's disgraceful conduct, as if perpetuating falsehoods exonerates that shame. 

In addition, Witness Against Torture has for years participated in non-violent civil disobedience, 

in the great tradition of Martin Luther King, Jr., Dorothy Day, and Gandhi. Notably, in January 2005 we 

engaged in a mass arrest at the District Court in Washington, D.C., where the cases of the detainees 

would be heard if they had proper access to federal courts. A year later, as the Supreme Court 

considered whether the detainees had habeas rights, over 100 of us were arrested at the courthouse. 

When arrested, many of us did not produce our own identification but instead took the names of 

detainees, so as to give them symbolically the day in court their captors had to that point denied. At the 

trial stemming from our arrest we spoke on behalf of the detained men and worked to put Guantanamo 

itself on trial. In 2009, a dozen members of Witnessed Against Torture were arrested in the rotunda of 

the Capitol, where they lay death shrouds and flowers in honor of three prisoners who died in 

Guantanamo in 2005, possibly by having been tortured to death. 

We believe, with great champions of justice through the ages, that the law may be brokencompassionately, non-violently- when law itself becomes the enemy of justice. Such acts of civil 

disobedience themselves expose fractures in the law and the need for law to heal itself. We have 

further embraced non-violent civil disobedience as a means to communicate to the US government, the 

men on whose behalf we struggle, and the eyes of the world the commitment of US citizens to oppose 

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282 

torture and indefinite detention. Last, we see the US legal system, responsible in part for the detainees' 

abuse, as a vital arena for our protest and our witness. 

The activities of Witness Against Torture have evolved as the politics of Guantanamo have 

changed. Our hopes soared when President Obama signed on day one of his administration an 

Executive Order mandating that Guantanamo close within a year. To support the President in this 

policy, we launched a "100 Days to Close Guantanamo"campaign, keeping daily vigil at the White House. 

We then saw defeat snatched from jaws of victory. The President, fearful of potential political 

costs and clearly weak in his commitment to his own policy, stepwise abandoned his plan for closing the 

prison. Members of Congress, exploiting fear and seeking cheap political points, imposed onerous 

restrictions on the transfer of detainees, further hobbling the administration's faint efforts. Grossly 

inflated Department of Defense statistics on former detainees "returning to the battlefield," invoked as 

reason to maintain Guantanamo, lay unchallenged by the Obama administration and much of the press. 

President Obama, moreover, embraced the letter or the spirit of policies of the Bush administration he 

had once opposed, from the Military Commissions, to the granting offunctional immunity for all those 

implicated in the US torture program, to efforts to gut the habeas rights granted detainees by the 

Supreme Court. Over time, the media largely lost interest in Guantanamo, while Americans appeared to 

learn to live with the permanence of the prison and America's identity as a torture nation. 

Much of our work in the last four years has been to call out the hypocrisy of President Obama, 

to keep Guantanamo on the political radar and in the conscience of the nation, and to give, by our 

continued protest, some small measure of hope to detained men facing the dismal prospect of lifetimes 

of detention, without the chance of proper due process. 

In the face of their brutal condition, the detained men themselves acted to seize their own 

destiny by starting a new hunger strike in February of this year. Repeatedly described by them as a 

desperate act to secure dignity and justice, the hunger strike represents the best and perhaps last 

occasion for the United States to reckon with Guantanamo and begin to set right a terrible wrong. 

President Obama himself acknowledged the urgency of the situation and the need to restart efforts to 

close the prison. But his speech was already nearly two months ago, during which time not a single 

detained man- even among the 86 cleared for transfer by the US government itself- has been 

released from the prison. As yet there is only a renewed promise, which must now become a concrete 

plan, followed by decisive action. Our work, therefore, continues. 

Opposing Guantanamo , Closing the Prison 

The consistent position of Witness Against Torture, underscored by the current hunger strike, is 

that Guantanamo is a moral and legal abomination. It violates the Constitution, makes a mockery of the 

rule of law, and savages American ideals. It grossly diminishes America's standing in the world. It 

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283 

weakens our safety. It holds us captive to fear and implicates all of us in a terrible evil, recognized as 

such by most of the world, and for which history will judge the United States harshly. 

President Obama's failure to close Guantanamo and embrace of Bush-era policies vindicate 

neither the prison nor those policies. Rather, they show how broadly the American political system is 

complicit in grave ills. Guantanamo and torture have never been matters of left and right. We see them, 

rather, as matters of right and wrong, which must be rejected, regardless of partisan affiliation and 

political calculation. 

We are well versed in policy detail, legal particulars, partisan maneuvering, and all the barriers, 

real and perceived, to now closing Guantanamo. Great political skill will doubtless be required to finally 

shutter the prison. But above all, what is required is moral courage and the political will to do so, in the 

face of persisting fear-mongering and the anxiety of numerous institutions and agents of government 

that closing Guantanamo may expose them to further embarrassment and political risk. 

President Obama must honor his intentions. The integrity of the nation, his legacy, and most 

importantly, the lives of the detained men are at stake. We ask Congressional critics of Guantanamo 

both to hold the President to his word and to remove legislative barriers to Guantanamo's swift closure. 

To those lawmakers uncertain about the prison, we plead that they educate themselves in facts and 

listen to voices in the US military who maintain that Guantanamo makes the United States neither 

stronger nor more secure. To those defenders of Guantanamo -whether acting in ignorance, with 

malice, or out of misguided conviction -we insist that they now step to the sidelines of politics and 

history, before they do more damage to the United States and the principles of fairness and justice it 

claims. Saving the remnants of America's tattered honor must take precedence over saving face. With 

faith in our own ideals and power and possibility of redemption, justice can prevail. 

The Greatest Threat to Ourselves 

At our rallies and vigils, we often hold moments of silence, sing songs, and recite poems. One such 

poem, written by a young, gifted member of our group, speaks in a special way to our values, our 

actions, and the stakes of resisting Guantanamo and torture. Above all, it asks who we are, as a people 

and a nation, and what our own ideals oblige us to do. We share this poem so that you may consider 

these questions yourselves: 

There is a Man Under That Hood • By Luke Nephew 

We are not here to make angels out of prisoners. 

We don't know them, 

but we know they still are men. 

And so we defend 

those that disappear 

under hoods into jumpsuits, bringing back 

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284 

into the light every CIA black site 

because right now 

there is a man under that hood. 

A brother breathing prayers of desperation, 

striking hunger so hard that his ribs 

are about to crack 

in Afghanistan, in Guantanamo, in Iraq. 

There is a man under that hood 

who is being treated as less than human. 

His rights have been dismissed 

with the label terrorist 

and just for saying this 

you probably put my name on a list, 

but it is too serious to us to not resist. 

Mr. President, I need you to know, 

if it were you hooded and chained, 

we would be here demanding the same 

human rights for you. 

Mr. Senator, we would walk through these streets 

with your name on our back. 

We would fast in solidarity with your hunger strike. 

Mrs. Congresswoman, even after months 

under black cloth 

making you cough, 

we would speak for you. 

Mr. Newsman, Mrs. Citizen, 

we would be right here for you, 

because human rights are universal. 

This is life, not a rehearsal. 

We, we are here because we cannot decide 

who is human and who is not. 

We cannot steal years of men's lives 

based on lies 

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285 

extracted from torture and bribes 

without becoming the greatest threat to ourselves. 

We have sat inside a cell 

and it has taught us how wrong it is to cage men 

because they fell like corpses 

into the category of enemy combatants. 

I will not act like nothing happened 

when it's happening now. 

I will not bow 

to injustice. I will speak 

for the change that was promised. 

I'm not ashamed to be honest, Mr. President. 

We have cried, Mr. President. 

Clouds of consciousness overflowing out these eyes, 

Mr. President, for the moments when we 

have the courage to realize 

that there is a man under that hood. 

No matter how beaten and bruised, 

there is a man under that hood 

that is exactly as human as you. 

There is a man under that hood 

regardless of his religion. There is a man 

who doesn't understand 

why it's so hard for us to see him, 

why it's so hard for us to imagine 

what is would be like to be him 

there, where they sit in our prisons 

hidden from our justice system, 

locked away. 

Are we going to pretend 

they're less than men and just walk away? 

Or will we raise our eyes above the walls? 

Will we raise our voices to call out our government 

and say we see you; 

we are watching what you're doing? 

And no matter how many times 

they call you terrorist, 

we will recognize that you are human. 

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286 

And to the detainees, 

no matter how broken and shattered 

and tortured you feel, there are people 

in these United States who hear you 

and see you, who know that you are real. 

And to the people in my country, please, 

do not pretend to be seeking freedom 

or justice, or any common good 

until we are ready to recognize the human rights 

of every single man under that hood. 

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Coalition for Security, Liberty and the Law 

President Barack Obama 

The White House 

1600 Pennsylvania Ave, NW 

Washington, D.C. 20500 

Dear Mr. President: 

20 December, 2012 

As you are aware, the National Defense Authorization Act of Fiscal Year 2013 

the final text of which was agreed upon recently by House of Representatives and Senate 

Conferees, and will soon come to a vote before both bodies- contains a provision 

prohibiting the use of federal funds to transfer terrorist detainees from Guantanamo Bay 

to facilities inside the United States. 

Our past experience as military, intelligence, and security policy professionals 

leads us to believe that the transfer ofGuantanamo detainees into the United States would 

threaten national security and public safety. We therefore urge you not to veto the 

NDAA over this provision and instead allow it to stand. 

Detainees transferred to U.S. prison facilities would tum those prisons- and 

nearby civilian populations - into terrorist targets. Based on past experience in 

Guantanamo, they would expose prison staff to unique threats, physical risks and legal 

liabilities. It is also likely that detainees, with help from counsel, would pressure prison 

officials to remove special security restrictions. If successful in such efforts, the 

detainees could have opportunities to radicalize the prison population - a risk previously 

noted by FBI Director Robert Mueller. 

To the extent that detainees would receive criminal trials if transferred to the 

United States, such trials would entail granting due process and other rights that may 

force the government to choose between revealing classified evidence to secure a 

conviction in a U.S. court or dropping charges against dangerous terrorists. 

Some have argued that Guantanamo remains a symbol of"torture", and therefore 

a recruitment tool for terrorists that must be shut down. However, Guantanamo is not 

only a highly humane and- according to Attorney General Eric Holder- a "well-run, 

professional facility", it is also uniquely secure in ways that cannot be replicated at 

detention facilities within the United States. Additionally, there is little evidence that 

Guantanamo has played a significant role in the recruitment of terrorists to a! Qaeda or its 

affiliates. 

For these reasons, we believe strongly that the detainees should not be transferred 

to any locale in the United States or its territories, and should instead be kept at 

A Project of the Center for Security Policy 

1901 Pennsylvania Ave, NW. Suite 201, Washington, D.C. 20006 

(202) 835-9077: Fax: (202) 835-9066 
288 

Guantanamo Bay. The potential national and local security risks associated with 

transferring detainees to the United States greatly outweigh any perceived benefits for 

American foreign policy or national security if such closure were to take place. 

Sincerely, 

Hon. Michael B. Mukasey, fanner Attomey General of the United States 

R. James Woolsey, former Director of Central Intelligence 

Adm. Jerome L. Johnson, USN (Ret.) 

Adm. James "Ace" Lyons, USN (Ret.) 

Lt. Gen. E.G. "Buck" Shuler, Jr., USAF (Ret.) 

Brig. Gen. William A. Bloomer, USMC (Ret.) 

Brig. Gen. William Weise, USMC (Ret.) 

Tidal McCoy, former Acting Secretary of the Air Force 

Andrew C. McCarthy, former Chief Assistant United States Attomey 

Frank J. Gaffney, Jr., former Acting Assistant Secretary of Defense for Intemational 

Security Policy 

Debra Burlingame, 9/11 Families for a Safe and Strong America 

Elaine Donnelly, 1992 Presidential Commission on the Assignment ofWomen in the 

Armed Services 

cc: Members of the Senate Armed Services Committee 

Members of the House Armed Services Committee 

A Project of the Center for Security' Policy 

1901 Pennsylvania Ave, NW. Suite 201, Washington, D.C. 20006 

(202) 835-9077: Fax: (202) 835-9066 
289 

Coalition for Security, Liberty and the Law 

President Barack Obama 

The White House 

1600 Pennsylvania Ave, NW 

Washington, D.C. 20500 

Dear Mr. President: 

7 October, 2009 

As you know, the Department of Defense has since September II, 2001 detained 

at Guantanamo individuals identified or treated as enemy combatants. Yet, shortly after 

you took office in January of2009, you issued an Executive Order mandating the closure 

by January 22,2010 ofthe detention/interrogation facilities at the Guantanamo Bay 

Detention Facility, U.S. Naval Base, Cuba (popularly known as Gitmo.) 

Our past experience as military, intelligence, law enforcement and security policy 

professionals leads us to believe that the transfer of Guantanamo detainees into the 

United States would threaten national security and public safety. 

For example, prisoners transferred to U.S. prisons would tum those prisons- and 

the nearby civilian populations- into high-probability terrorist targets. Based on past 

experience in Guantanamo, they would also expose prison staff to unique threats, 

physical risks and legal liabilities. FBI Director Robert Mueller has warned that the highvalue prisoners will also contribute to the radicalization of prison populations. Detainees 

will pressure prison officials to remove special security restrictions and will receive due 

process and other rights that may force the government to choose between revealing 

classified evidence to secure a conviction in a U.S. court or dropping charges against 

dangerous terrorists and releasing them from prison. Over 500 lawyers describing 

themselves as the "Gitmo Bar'' stand ready to file the paperwork to free any detainees 

transferred to U.S. prisons. 

If detainees are released and cannot be resettled abroad securely, they may be 

resettled inside the United States. Worse yet, according to Director ofNational 

Intelligence Dennis Blair, U.S. taxpayers may be required to provide financial support for 

such detainees to "start a new life" here. 

Moreover, the Department of Defense asserts that at least 61 of the 520 detainees 

released from Gitmo so far are confirmed or suspected of having returned to terrorismother Department sources put the number at I 02 of 520 detainees. 

For these reasons, we believe strongly that the detainees should not be transferred 

to any locale in the United States or its territories, and should be kept at Guantanamo Bay 

until a more permanent and secure alternative is found. Today, potential national and 

A Project of the Center for Security Policy 

1901 Pennsylvania Ave.l\'W, Suite 201, Washington, D.C. 20006 

(202) 835-9077; Fax: (202) 835-9066 
290 

local security risks greatly outweigh any prospective economic benefits for states under 

consideration for such transfers. 

In conclusion, as a matter of national security, we strongly advise that the 

Department of Defense and other federal or state agencies spend no fimds to accomplish 

the closure ofGuantanamo detention facilities or the transfer ofGuantanamo detainees 

into the United States. All efforts should be made to enable state representatives to have 

opportunities to visit Gitmo and to be briefed on the risks associated with the 

management of Gitmo detainees. 

Sincerely, 

Army 

Gen. Frederick J. Kroesen, USA (Ret.) 

Maj. Gen. Thomas F. Cole, USA (Ret.) 

Maj. Gen. Vincent E. Falter, USA (Ret.) 

Maj. Gen. Alvin W. Jones, USA (Ret.) 

Maj. Gen. Henry D. Robertson, USA (Ret.) 

M~. Gen. Mel Thrash, USA (Ret.) 

Brig. Gen. Francis A. Hughes, USA (Ret.) 

Brig. Gen. Ronald K. Kerwood, USA (Ret.) 

Brig. Gen. Gary J. Tellier, USA (Ret.) 

Lt. Col. Gordon Cucullu, USA (Ret.); 

Author of Inside Gitmo: The True Stmy Behind the Myths qfGuantanamo Bay 

Navy 

Adm. Jerry Johnson, USN (Ret.) 

Adm. James "Ace'' Lyons, USN (Ret.) 

Vice Adm. Robert Monroe, USN (Ret.) 

Vice Adm. David C. Richardson, USN (Ret.) 

A Project of the Center for Security Policy 

1901 Pennsylvania Ave, NW, Suite 201, Washington, D.C. 20006 

(202) 835-9077; Fax: (202) 835-9066 
291 

Rear Adm. Lawrence Burkhardt Ill, USN (Ret.) 

Rear Adm. H.E. Gerhard, USN (Ret.) 

Rear Adm. James M. Gleim, USN (Ret.) 

Rear Adm. Robert H. Gormley, USN (Ret.) 

Rear Adm. James B. Morin, USN (Ret.) 

Rear Adm. RobertS. Owens, USN (Ret.) 

Rear Adm. Don G. Primeau, USN (Ret.) 

Rear Adm. Rollo Rieve, USN (Ret.) 

Rear Adm. Hugh Scott, USN (Ret.) 

Air Force 

Gen. Charles A. Horner, USAF (Ret.) 

Lt. Gen. E.G. "Buck" Shuler, Jr., USAF (Ret.) 

Lt. Gen. William H. Ginn, Jr., USAF (Ret.) 

Maj. Gen. Charles L. Wilson, USAF (Ret.) 

Brig. Gen. Bernard W. Gann, USAF (Ret.) 

Marine Corps 

Gen. P.X. Kelley, USMC (Ret.) 

Maj. Gen. Geoffrey Higginbotham, USMC (Ret.) 

Maj. Gen. Joseph D. Stewart, USMC (Ret.) 

Brig. Gen. William A. Bloomer, USMC (Ret.) 

Brig. Gen. Gary E. Brown, USMC (Ret.) 

Brig. Gen. M.A. Johnson, Jr., USMC (Ret.) 

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Brig. Gen. William L. McCulloch, USMC (Ret.) 

Brig. Gen. William Weise, USMC (Ret.) 

National Security 

R. James Woolsey, fonner Director of Central Intelligence 

Tidal McCoy, former Acting Secretary of the Air Force 

Andrew C. McCarthy, former Chief Assistant United States Attorney 

Bradford A. Berenson, Associate Counsel to the President, 2001-2003 

Frank J. Gaffuey, Jr., former Assistant Secretary of Defense for International Security 

Policy 

Dr. Peter Leitner, President, Higgins Counter-Terrorism Research Center 

Elaine Donnelly, 1992 Presidential Commission on the Assignment ofWomen in the 

Armed Services 

cc: Members ofthe I I lth Congress 

The Honorable Robert M. Gates, Secretary, U.S. Department of Defense 

The Honorable Eric H. Holder, Jr. Attorney General of the United States 

The Honorable Dennis Blair, Director of National Intelligence 

The Honorable Robert Mueller, Director, Federal Bureau oflnvestigation 

A Project of the Center for Security Policy 

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