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43–658 PDF 2008

S. HRG. 110–455 

IMPROVING DETAINEE POLICY: HANDLING TERRORISM DETAINEES WITHIN THE AMERICAN 

JUSTICE SYSTEM 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 4, 2008 

Serial No. J–110–97 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin prepared statement ................................................................................................... 81 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 96 

WITNESSES 

Benjamin, James J., Jr., Partner, Akin Gump Strauss Hauer & Feld LLP, 

New York, New York ........................................................................................... 6 

Coughenour, Hon. John C., Judge, U.S. District Court, Western District of 

Washington, Seattle, Washington ....................................................................... 3 

Guiora, Amos N., Professor of Law, S.J. Quinney College of Law, University 

of Utah, Salt Lake City, Utah ............................................................................. 8 

Malinowski, Tom, Washington Advocacy Director, Human Rights Watch, 

Washington, D.C. ................................................................................................. 10 

Wittes, Benjamin, Fellow and Research Director in Public Law, Brookings 

Institution, Washington, D.C. ............................................................................. 13 

QUESTIONS AND ANSWERS 

Responses of John C. Coughenour to questions submitted by Senator Kennedy ....................................................................................................................... 27 

Responses of James J. Benjamin to questions submitted by Senator Kennedy . 29 

Responses of Amos N. Guiora to questions submitted by Senator Leahy .......... 32 

Responses of Tom Malinowski to questions submitted by Senators Leahy 

and Kennedy ......................................................................................................... 35 

Responses of Benjamin Wittes to questions submitted by Senators Kennedy 

and Leahy ............................................................................................................. 37 

SUBMISSIONS FOR THE RECORD 

Atlantic.com, Washington, D.C., February 27, 2007, article ................................ 43 

Benjamin, James J., Jr., Partner, Akin Gump Strauss Hauer & Feld LLP, 

New York, New York, statement and attachment ............................................ 46 

Coughenour, Hon. John C., Judge, U.S. District Court, Western District of 

Washington, Seattle, Washington, statement .................................................... 76 

CNN, May 14, 2007, article .................................................................................... 80 

Guiora, Amos N., Professor of Law, S.J. Quinney College of Law, University 

of Utah, Salt Lake City, Utah, statement .......................................................... 83 

International Herald Tribune, May 8, 2008, article ............................................. 95 

Malinowski, Tom, Washington Advocacy Director, Human Rights Watch, 

Washington, D.C., statement .............................................................................. 98 

McCarthy, Andrew C., Director, and Alykhan Velshi, Staff Attorney, Center 

for Law and Counterterrorism, Foundation for the Defense of Democracies, 

Washington, D.C., statement .............................................................................. 106 

New York Times, July 11, 2007, article ................................................................. 130 

Philadelphia Inquirer, June 2, 2008, article ......................................................... 132 

Radack, Jesselyn A., Homeland Security Director, Government Accountability 

Project, Department of Justice, Washington, D.C., statement ......................... 134 

Wittes, Benjamin, Fellow and Research Director in Public Law, Brookings 

Institution, Washington, D.C., statement .......................................................... 136 

USA Today.com, June 2, 2008, article ................................................................... 140 

Page

IV 

U.S. News and World Report, June 2, 2008, article ............................................. 141 

Wall Street Journal, WSJ.com: 

June 4, 2008, article ......................................................................................... 145 

August 22, 2007, article ................................................................................... 147 

Washington Post, October 22, 2004, article ........................................................... 151 

(1) 

IMPROVING DETAINEE POLICY: HANDLING 

TERRORISM DETAINEES WITHIN THE AMERICAN JUSTICE SYSTEM 

WEDNESDAY, JUNE 4, 2008 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, Pursuant to notice, at 10:07 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, Cardin, Whitehouse, Kyl, and 

Sessions. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, everyone. I appreciate this very 

good line-up here, and I have to be careful when I say ‘‘very good 

line-up’’ because I once had a job where, when we had line-ups, 

people were wearing numbers across their chests. 

Senator Whitehouse, do you want to come up here? Please feel 

free. 

For more than 6 years, this administration has made a mess of 

detainee policies. They rejected our courts. They twisted our laws. 

They certainly squandered our reputation. Interestingly, the most 

conservative Supreme Court in my lifetime has been the only check 

on the administration as it has repeatedly overruled the administration’s legal theories. 

Detainees have languished for years at Guantanamo, without access to meaningful judicial review. To date, not one accused terrorist has been tried, convicted, and punished by the dysfunctional 

military commissions that the administration has established; but 

prosecutors and judges are being replaced in ways that leave the 

impression that the proceedings are being engineered to guarantee 

a result rather than ensure fairness. Now we hear that the administration is intent on proceeding with high-profile trials, coincidentally, in the weeks leading up to the November election, such a serious matter turning trials into a partisan effort. 

As we near the end of this administration, it is time to look forward. The next President and the next Congress will have to craft 

a new policy that is consistent with our values as a Nation and our 

respect for the law. A starting point is to examine the premise on 

which this administration based its policy, its conclusion that our 

criminal justice system is incapable of handling terrorism cases. 

2 

Obviously, I disagree. I think we have the greatest judicial system in the world, and we can handle any kind of case that comes 

before us. 

So I am not one who wants to dismiss our systems of both civilian and military justice that have served us so well for so long. And 

one of the saddest legacies of this time and what the administration has done is its distrust of our constitutional system of justice. 

We cannot accept without examination the view that terrorism 

cases are too difficult for our courts. As a former prosecutor, I feel 

very strongly that we have to make sure terrorists are held accountable and punished for their actions. I suspect all Americans 

agree wt that. So today we begin the process of looking more carefully at what needs to be done with those suspected of being terrorists and what our courts—both military and civilian—are capable 

of doing. 

One excellent contribution to this discussion is the report that 

Human Rights First released last week, titled ‘‘In Pursuit of Justice.’’ The report is the result of an in-depth look at the capabilities 

of our criminal justice system. It concludes that our system here 

in America is sufficiently flexible and well equipped to handle 

international terrorism cases. We are fortunate to have one of the 

report’s authors, James Benjamin, with us today. 

We also welcome Judge John Coughenour. He is a respected 

judge who has significant experience with terrorism cases. He presided over the trial of the so-called Millennium Bomber, Ahmed 

Ressam. He speaks with authority on the capacity of our constitutional system to handle new challenges. The judge’s written testimony includes a quote from Justice Jackson, a former Attorney 

General of the United States and our chief prosecutor at the Nuremberg trials after World War II, who said ‘‘the strength and vitality of the Constitution stem from the fact that its principles are 

adaptable to changing events.’’ Judge, I agree with you on that. It 

is a critical point to remember in this discussion. Is handling terrorism under our current system really not possible? Or is it just 

hard? That means we have to adapt our procedures and that might 

require some work. I have the faith, which apparently some in the 

administration do not have, that our Constitution and our courts 

can adapt to meet the challenge. 

Our Constitution and our courts have protected this great democracy from its inception, and most experts reject the decisions of the 

administration, including its effort to establish a system of detention, interrogation, and prosecution outside the law. Some propose 

instead to create ‘‘preventive detention’’ regimes and what they call 

‘‘national security courts.’’ Those making these proposals see them 

as more legitimate alternatives to the current extra-legal system. 

Their underlying assumption, though, is the same as this administration’s—that our existing criminal and military justice systems 

are not capable of handling terrorism cases. 

Before we start creating some new, separate mechanism designed to handle those accused of terrorism, we need to consider 

the serious impact this could have on our constitutional system of 

justice but also our reputation as a Nation, and on the fight 

against international terrorists. We have to ask the obvious question: Would it create more problems than it solves? Would the curVerDate Aug 31 2005 12:40 Aug 06, 2008 Jkt 043658 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43658.TXT SJUD1 PsN: CMORC
3 

rent problems simply be replicated in a new, untested system? The 

current treatment of terrorism detainees has had a devastating impact on our national reputation. Anywhere you go in the world, you 

hear that. And that is something the next President, whoever that 

may be, will have to restore. Would creating a separate court for 

terrorist suspects help us set that right? We will listen to Tom 

Malinowski and others on that issue. 

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

Now, our first witness, as I said, is Judge Coughenour. He is a 

United States District Judge for the Western District of Washington. He was nominated the Federal bench in 1981. He served 

as chief judge of the district from 1998 to 2004. In 2006, he assumed senior status. The workload did not cut down a bit, though, 

did it, Judge. Prior to joining the Federal bench, he served on the 

law faculty of the University of Washington, was a partner at the 

Seattle firm of Bogle & Gates. He served as Chair of the Ninth Circuit Working Groups on Jury Instructions and Gender Bias. He is 

past president of the Ninth Circuit District Judges Association. 

Judge, please go ahead. I will just mention there is a little button 

in front of each of you. If the microphone is on, it will show red, 

and this young woman will have a much easier time keeping your 

record if you do that. 

Go ahead, sir. 

STATEMENT OF HON. JOHN C. COUGHENOUR, JUDGE, WESTERN DISTRICT OF WASHINGTON, SEATTLE, WASHINGTON 

Judge COUGHENOUR. Thank you for this opportunity to testify 

about terrorism and the Federal courts. It goes without saying, I 

speak on my own behalf, not as a representative of the entire Federal judiciary, nor as a representative of the Judicial Conference 

U.S. 

It is my firm conviction, informed by 27 years on the Federal 

bench, that the United States Courts, as constituted, are not only 

an adequate venue for trying suspected terrorists, but also a tremendous asset against terrorism. Indeed, I believe it would be a 

grave error with lasting consequences for Congress, even with the 

best of intentions, to create a parallel system of terrorism courts 

unmoored from the values that have served us so well for so long. 

Before I explain how I arrive at this conclusion, I want to emphasize that I have great sympathy for those charged with the awesome responsibility of our national security. What I hope to convey 

in some small measure with my testimony today is that our leaders 

in the political branches need not view this as a choice between the 

existential threat of terrorism and the mere abstractions of a 200- 

year-old document. They need not mistake reliance on cherished 

values with complacency toward the new challenges of a dangerous 

world. Constitutional is not just a long walk in aid of regularity. 

After spending the greater part of my career on the Federal 

bench, and having tried a high-profile international terrorism case 

in my courtroom, I think the choice is better understood as follows: 

Do we want our courts to be viewed as just another tool in the war 

on terror, or do we want them to stand as a bulwark against the 

4 

corrupt ideology upon which terrorism feeds? I believe our choice 

should be the latter. 

Let me begin with the question of competence. Detractors of our 

current system argue that the Federal courts are ill-equipped for 

the unique challenges posed by terrorism trials. Objections of this 

kind frequently begin with a false premise. That is, some who 

argue that the Federal courts are not capable of trying suspected 

terrorists support this view by citing various procedural and evidentiary rules that constrain the prosecutor’s ability to bring or 

prove a case. The threat of terrorism is too great, we are told, to 

risk an unsuccessful prosecution. This assumes that courts exist to 

advance the prerogatives of law enforcement, and that convictions 

are the yardstick by which a court’s success is measured. Indeed, 

recently we have heard a government representative say, ‘‘Acquittals? We can’t have any acquittals.’’ Such a notion is inconsistent 

with our constitutional separation of powers, under which courts 

guarantee an independent process, not an outcome. Any tribunal 

purporting to do otherwise is not a court and does not deserve to 

be called a court. 

This fallacy aside, the courts’ detractors are also raising some 

more legitimate concerns about whether judges have sufficient expertise over the unique subject matter of terrorism trials, and 

whether the courts can adequately protect the government’s interest in preserving classified documents for future intelligence-gathering purposes. These concerns are not insurmountable under the 

system we have in place. The argument about expertise ignores the 

fact that judges are generalists. Just as they decide cases ranging 

from employment discrimination to copyright to bank robbery, they 

are also capable of negotiating the complexities of a terrorism trial. 

As for the protection of classified information, courts are guided by 

the Classified Information Procedures Act, which played a prominent role during the trial of the so-called Millennium Bomber, 

Ahmed Ressam, in my courtroom in 2001. While I found the extensive precautions to be more than adequate in that case, I would 

submit that any shortcomings in the law can and should be addressed by further revision, rather than by undermining the institution of the judiciary itself. I would also add that courts are not 

insensitive to the compelling needs of the government in criminal 

cases and apply existing law and procedure with deference to those 

needs. As Justice Robert Jackson said in the quote the Senator referred to earlier, ‘‘the strength and vitality of the Constitution stem 

from the fact that its principles are adaptable to changing events.’’ 

In fact, there is good reason to think that the courts are not only 

competent, but also uniquely situated to conduct terrorism trials. 

Their insulation from the political branches, accumulated institutional knowledge, and fidelity to legal precedent ensure that no 

matter which way the prevailing political winds blow, critical decisions pitting the interests of community safety against individual 

liberty will be circumspect and legitimate. I worry that with specialized tribunals for suspected terrorists, governed by a separate 

set of rules and procedures, we would create institutions responsive 

to the perceived exigencies of the moment, upsetting the delicate 

system of balances and checks that deter abuse and promote faith 

in government. For example, if politically vulnerable actors start 

5 

redesigning courts, can we say with assurance that popular pressure will not someday demand the admission of hearsay evidence 

or statements obtained by harsh interrogation techniques? Might 

we see the day when counsel for the defendant cannot access information needed to mount a defense or cannot appear at a defendant’s behest without undergoing a background check of undefined 

scope? Or when a defendant might be represented by somebody 

who is not even a lawyer? Such practices are not without recent 

historical precedent and cannot be dismissed as mere paranoia 

once we peg our judicial institutions to the ebb and flow of public 

opinion. 

I also worry that special terrorism courts risk elevating the status of those who target innocent life. As I stated during sentencing 

of Mr. Ressam in 2001, we have the resolve in this country to deal 

with the subject of terrorism, and people who engage in it should 

be prepared to sacrifice a major portion of their life in confinement. 

Implicit in my remarks was the message that despite the supposed 

grandeur of their aims, these people surrender their liberty just 

like any criminal who has earned society’s condemnation. 

At the outset, I stated that the Federal courts are not just capable of trying suspected terrorists; they are an asset against terrorism. At a time when our national security is so intimately linked 

with our ability to forge alliances and secure cooperation from 

countries that share or aspire to our fundamental values, we can 

ill afford to send the message that those values are negotiable or 

contingent. 

I recently returned from Russia, where I have worked over the 

past 25 years to promote judicial reform. The topic of this most recent trip was jury trials, and the 5-day seminar culminated in a 

mock trial conducted in the military court of Vladivostok. Serving 

as mock jurors were a group of Russian law students from Far 

Eastern University, no more than 19 or 20 years old, most with aspirations to be prosecutors in a system struggling to define a role 

for the courts that is independent from the state. That day, I felt 

that my ability to confidently share the virtues of our independent 

judiciary and Constitution with those who represent the future of 

Russia was more than a personal privilege; it was in our country’s 

own strategic interest. I cannot help but wonder if I will be able 

to speak with the same authority on future occasions if we lose confidence in the very institutions that have made us a model for reform in the first place. 

Thank you, Senator. 

[The prepared statement of Judge Coughenour appears as a submission for the record.] 

Chairman LEAHY. Thank you. You know, you mentioned being 

there in Russia, and I recently returned from a number of countries abroad, and I raised some of the same questions, especially 

countries that have become newly democratic nations, trying to determine how they will do their court system. And with the indulgence of Senator Whitehouse, I recall shortly after the break-up of 

the Soviet Union, a group of Russian jurists and others in my office 

were asking about our system. One of the questions they asked, ‘‘Is 

it true that people in the United States can actually sue the Government?’’ I said, ‘‘It happens all the time.’’ And they said, ‘‘And 

6 

is it true that sometimes the Government loses?’’ I said, ‘‘It happens all the time.’’ ‘‘And you then replace the judge? ’’ 

[Laughter.] 

Chairman LEAHY. Very interesting questions. And when we explained why we do not, I think the light bulb went on. 

James Benjamin is a partner in the Washington law firm of Akin 

Gump. He represents clients in a variety of Government regulatory 

investigations and litigation, focused on civil litigation and appellate work in State and Federal appeals courts. Prior to joining Akin 

Gump in 2001, Mr. Benjamin served in the U.S. Attorney’s Office 

for the Southern District of New York for 5 years. During his time 

there, he served as deputy chief appellate attorney, was a member 

of the Securities and Commodities Fraud Task Force in 2000, received an award for superior performance from the Attorney General. He received his bachelor’s degree from a neighboring State, 

from Dartmouth, and his law degree from the University of Virginia School of Law. 

Mr. Benjamin, go ahead. And I should also note that all statements, full statements, will be placed in the record of each of you. 

Also, during the questions and answers—naturally, you will all get 

a copy of the transcript, and if you see things in there that you 

want to add to or may want to correct, just notify us, and that will 

be changed. 

Mr. Benjamin? 

STATEMENT OF JAMES J. BENJAMIN, JR., PARTNER, AKIN 

GUMP STRAUSS HAUER & FELD LLP, NEW YORK, NEW YORK 

Mr. BENJAMIN. Mr. Chairman, members of the Committee, thank 

you very much for the opportunity to be here this morning. I am 

here to talk about a report on terrorism prosecutions that I co-authored along with my law partner and close friend, Richard Zabel, 

who is also present here this morning. Rich is sitting right behind 

me, but if we could do it, he should be here right next to me, because this was a team effort from beginning to end. 

Rich and I practice law together at Akin Gump in New York 

City. Our area of expertise is white-collar criminal defense. Before 

coming to Akin Gump, the two of us collectively spent more than 

13 years as Federal prosecutors in the Southern District of New 

York. And I know that I speak for Rich as well when I say that 

we are very proud of the time we spent working in the Southern 

District under our former boss, Mary Jo White, whom we admire 

greatly. 

About a year ago, Human Rights First, a wonderful organization 

that is a longstanding pro bono client of our law firm, approached 

Rich and me and asked us to undertake a comprehensive study of 

the capability of the Federal courts to handle international terrorism cases. Last week, we published the results of that study. We 

prepared our report in the hope that we could make a contribution 

to the important public debate about how best to prosecute and 

punish individuals suspected of complicity in terrorism. 

As the members of the Committee are well aware, in recent 

years a number of people, including some of the distinguished panelists here today, have proposed that terrorist criminals should be 

prosecuted outside of the civilian court system, either through the 

7 

use of untested military commissions or in an as yet undefined national security court. A significant premise of these arguments is 

that the existing court system is not equipped to handle terrorism 

cases. In our report, we set out to test that premise, and we found, 

contrary to the views of those who propose a new court system or 

a new detention regime, that the existing Federal system over the 

years has done a capable job of handling terrorism cases. In other 

words, prosecuting terrorism defendants in the court system has 

generally led to just, reliable results without compromising national security or sacrificing rigorous standards of fairness and due 

process. 

Now, that does not mean that the justice system is perfect. In 

some of these cases, the system has been subjected to stresses and 

burdens. This was especially true in the 1990s, when some of the 

issues in these cases were being litigated and resolved for the first 

time. But the system has adapted to meet the challenges presented 

by internatural terrorism cases. 

I also want to make clear that we do not for a minute believe 

that the criminal justice by itself is the answer to the problem of 

international terrorism. Obviously not. Terrorism is a complex and 

enormously important problem, and in combating it, the Government must have at its disposal the full range of military, intelligence, diplomatic, economic, and law enforcement resources. 

In approaching our research, our goal was to look beyond rhetoric and generalizations and explore how the courts have actually 

fared in the scores of criminal cases that have actually been 

brought against alleged terrorists. In total, we identified 123 terrorism cases going back to the 1980s. We obtained detailed information about those cases. Based on that foundation, we undertook 

a detailed review of the key legal and practical issues that were 

presented in these 123 cases. Here are some of our findings in very, 

very brief summary. 

One: Prosecutors can invoke a broad array of substantive statutes against alleged terrorists, including very important statutes 

that were adopted by Congress in the mid-1990s and thereafter. 

Two: Over and over again, courts have successfully used CIPA 

and other tools to balance the defendant’s right to be informed of 

relevant evidence against the need to preserve the secrecy of classified information. 

Three: The Miranda rule is manageable and does not affect battlefield captures or intelligence interrogations. 

Four: Courts have applied the Federal Rules of Evidence in a 

flexible, common-sense manner, consistent with longstanding 

precedent. 

Five: Existing law provides an array of tools for the Government 

to detain individuals it believes are dangerous. 

And, six: Courts have imposed severe sentences on persons convicted of terrorism crimes. 

Mr. Chairman, we recognize that the project we set out to undertake was large and that the subject matter is controversial. We 

have done our best on a pro bono basis to prepare a report that 

is objective and balanced. We hope our report is of value in the ongoing debate about how best to reconcile our commitment to the 

8 

rule of law with the imperative of assuring security for all Americans. 

Thank you. 

[The prepared statement of Mr. Benjamin appears as a submission for the record.] 

Chairman LEAHY. Well, thank you, Mr. Benjamin. And we have 

an advanced copy of the report, and I was able to go through it, 

as has my staff. It is an excellent report, and I appreciate it. 

Mr. BENJAMIN. Thank you. 

Chairman LEAHY. Professor Amos Guiora—did I pronounce that 

correctly? 

Mr. GUIORA. That is a great start. 

Chairman LEAHY. Good staff. He is a law professor at S.J. 

Quinney College of Law at the University of Utah, teaches a course 

in criminal law, ‘‘Global Perspectives in Counterterrorism,’’ and religion and terrorism. He has also taught at Case Western Law 

School, and he is the founding director of the Institute for Global 

Security Law and Policy. Professor Guiora served for 19 years in 

the Israel Defense Force Judge Advocate General’s Corps, held a 

number of senior command positions, including Commander of the 

IDF School of Military Law, Judge Advocate for the Navy and 

Home Front Command, and legal advisor to the Gaza Strip. He received his bachelor’s degree from Kenyon College and law degree 

from Case Western Reserve University School of Law. 

Professor, it is good to have you here. Please go ahead, sir. 

STATEMENT OF AMOS N. GUIORA, PROFESSOR OF LAW, S.J. 

QUINNEY COLLEGE OF LAW, UNIVERSITY OF UTAH, SALT 

LAKE CITY, UTAH 

Mr. GUIORA. Thank you for having me, Mr. Chairman. 

Mr. Chairman, members of the Committee, it is indeed a pleasure and a privilege to be here this morning, and I hope you will 

find my comments helpful as we go forward with the question of 

where to try terrorists, or at least how do we go about trying suspected terrorists. 

The question, when we ask ourselves where to try detainees, requires answering a number of preliminary questions. 

First, how do we define the current situation? Is it is a war? Is 

it a police action? Is it an armed conflict short of war? Without answering those questions, it is going to be very difficult for this 

Committee to go forward with the question of where to try terrorists. 

The second question that must be addressed, Mr. Chairman, is: 

What rights do we grant detainees? 

And the third question is: How do we go about vetting the detainees? Depending on who you want to believe, according to a 

number of senior military officials, somewhere between 20,000 to 

25,000 detainees are held worldwide either by the U.S. or on behalf 

of the U.S. And the question of how to go forward cannot be answered until we develop an objective criteria for determining if a 

particular detainee presents a current or future threat to the 

United States’ national security. So those are the preliminary questions. 

9 

Once we have decided how to go forward, then two additional 

questions or two additional premises: One, I think that most people, Mr. Chairman, will agree that we need to close Guantanamo. 

But saying to close Guantanamo is an easy answer and an incorrect answer until we have come up with an alternative solution. 

What I propose, Mr. Chairman, in my few minutes here this morning, is the following: the establishment of an American Domestic 

Terror Court premised on the following: 

One, that an international treaty-based terrorism court is going 

to be an unworkable solution because I think the nations of the 

world will be unable to define what terrorism is. If the FBI and the 

DOD and the State Department and the Department of Homeland 

Security cannot agree on what terrorism is, I think it is going to 

be a tall order for the nations of the world to define what terrorism 

is; and, therefore, an international treaty-based terror court is unacceptable, or at least unworkable. 

The second obvious solution or option are the Article III courts, 

and I think I am going to respectfully disagree with my co-panelists. I think Article III courts are going to be an unworkable solution once we close Guantanamo. I think the numbers are such, 

even if there are, say, 25,000 and we vet and we are down to 

10,000 detainees, I think Article III courts as they are presently 

constituted are going to be unworkable in terms of trying 10,000 

people. 

The Domestic Terror Court solution that I proposed, Mr. Chairman, has the following advantages, and those advantages, I immediately add, are also very problematic. One, they will enable the introduction of classified information that will be heard in camera. 

Neither the detainee nor the defendant nor his counsel will be in 

a position to hear that information. That classified information can 

be used to bolster conviction. It cannot be the sole basis of conviction. 

In addition, Mr. Chairman, there will not be a jury trial. In essence, with the proposal based both on the lack of a jury trial and 

an introduction of classified information will enable the process of 

beginning to try the thousands upon thousands of detainees we are 

holding. You have to look at it, I suggest, in the following way, Mr. 

Chairman. We today are holding thousands of people in an indefinite detention which clearly violates the United States Constitution. To turn those people over to the Article III courts the way 

they are presently constituted means that the waiting line will be 

endlessly long, which means that we are going to completely keep 

the same process in place. 

In proposing the Domestic Terror Court, what I suggest, Mr. 

Chairman, is to take the world I come from, the Israeli military, 

which you referred to in your introduction, taking the Israeli military courts in the West Bank and the Gaza Strip, along with the 

administrative detention process, merging the two together, and 

thereby establishing a Domestic Terror Court which would enable, 

on the one hand, a defendant to hear the evidence and, in addition, 

in those cases where it is necessary, to also introduce classified information, not to be the sole basis of conviction but to bolster conviction. 

10 

Is this a perfect solution? The answer, obviously, is no. On the 

other hand, having 25,000 people in worldwide detention is also 

very much of a wrong solution. 

As we go forward, as we think about how do we go about beginning to solve this issue, I close with how I began. Without carefully 

defining what the current situation is, we are going to think of and 

view this issue tactically rather than strategically. We as lawyers 

ultimately have the responsibility, Mr. Chairman, to ask ourselves 

what situation are we in, and only then can we begin asking ourselves how do we go about trying these individuals. What is imperative is that we develop a process premised on the closing of Guantanamo after developing a solution, because absolutely it is wrong 

to hold 25,000 people in the present context, which is nothing more 

than indefinite detention. 

And I propose, in conclusion, Mr. Chairman, that my suggestion 

about a Domestic Terror Court is going to be the most effective way 

within the context of the Constitution to begin the process of trying 

those individuals who are suspected of involvement in terrorism. 

Thank you. 

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

for the record.] 

Chairman LEAHY. Thank you very much, Professor. 

Tom Malinowski is the Washington Advocacy Director for 

Human Rights Watch—a position you have held since 2001, I believe. 

Mr. MALINOWSKI. Yes. 

Chairman LEAHY. Prior to his work there, he served in the Clinton administration as Special Assistant to the President, senior director for foreign policy speechwriting at the National Security 

Council. From 1994 to 1998, Mr. Malinowski served as speechwriter for Secretaries of State Christopher and Albright, was a 

member of the State Department policy planning staff. He also 

served as an aide to the late Senator Daniel Patrick Moynihan, my 

neighbor for years in the Russell Building. He is a member of the 

Council on Foreign Relations. Mr. Malinowski holds degrees from 

the University of California at Berkeley and from Oxford University. 

Please go ahead, sir. 

STATEMENT OF TOM MALINOWSKI, WASHINGTON ADVOCACY 

DIRECTOR, HUMAN RIGHTS WATCH, WASHINGTON, D.C. 

Mr. MALINOWSKI. Thank you, Chairman Leahy. Thank you for 

having us here to look at this very important issue. 

You have heard today from several witnesses who have described 

the extraordinary strength of the American justice system in dealing with terrorism cases. I agree with them and with you whenever 

we have used the traditional criminal justice system in this country, we have succeeded in putting dangerous people away with both 

fairness and finality. When we have tried to use alternative means, 

we have mostly failed. Just one conviction in the last 6 years in the 

military commissions trials, for example, an extraordinary record of 

failure. 

So why do we face any dilemma at all when we look at this question. I think there is one reason that is worthy of debate: the fear 

11 

that there are people out there who cannot be prosecuted because 

they have not yet committed a crime or because the evidence 

against them would not be admissible in a normal court, but who 

nonetheless frighten us because of their beliefs, their associations, 

or desire to do America harm. And it is to deal with such people 

that some people have proposed an alternative system of preventive detention. 

Now, who are these people? There are not actually thousands. In 

Guantanamo, we are dealing with probably, at best, a few dozen 

people who might fit this profile and who might be a dilemma for 

us once the camp is closed. But it is important to note that the 

number of people living at large in the world who fit the same profile is probably in the tens or hundreds of thousands, people who 

passed through the camps in Afghanistan at some point in the last 

10 years or who share the extremist ideology that gives rise to al 

Qaeda, who may fantasize on these websites and chat rooms about 

taking part in terrorist attacks. 

Imagine if our troops went through a city like Kandahar, Afghanistan, today or Karachi, Pakistan, and randomly rounded up the 

first thousand young men that they met. I bet you that at least a 

few dozen would fit this profile of potentially dangerous but have 

not done anything yet. And if you took those thousand and you put 

them in Guantanamo for 6 years, the number deemed too frightening to release would probably rise even higher. 

So here is the real question: If we are holding today in Guantanamo 10 or 50 or maybe even 100 of the countless thousands of potentially dangerous but difficult to prosecute people out there, 

should we set up a preventive detention system just for them? 

Keep in mind that we have never done this before as a country. 

Congress has never set up a formal system of detention without 

trial to deal with national security threats—not in the Civil War, 

not in the Second World War, not in the Cold War when the survival of this country was at stake. So would the benefit of incapacitating without charge or trial a very small number of people who 

wish us harm in the world be worth the cost of taking such an unprecedented step? I think before we do, there are some hard questions we would need to ask. 

First, can Guantanamo detainees be moved to a new system of 

detention without trial here in the United States without making 

it seem as if we were simply transplanting Guantanamo, with all 

of its problems, to U.S. soil? I believe the answer is no. I believe 

that we would end up pretty much back where we are right now, 

with detainees held for years without trial based on evidence that 

they cannot see or confront, some of it possibly obtained through 

coercion, in a system that does not look like anything America has 

stood for or championed before. Inevitably, you would have errors 

because you are using unreliable intelligence, as all intelligence inherently is, to keep people incarcerated. Mistakes would be uncovered. Once again, people around the world would be focused on the 

injustices that we commit instead of the crimes that the terrorists 

commit. 

A second question is whether we can create a new form of preventive detention without enduring more years of frustration and 

delay. Look at our experience with the military commissions in 

12 

Guantanamo. Six years into this experiment, they are still beset by 

delays, challenges, and embarrassments. Some of those are the result of a flawed plan, but many are simply the inevitable result of 

creating any new system from scratch. If we try again to create a 

new system from scratch, if we rely again on trial and error to 

make it work, the likely result is again going to be more error than 

trial. 

Now, eventually, we might get a stable set of rules after we finish with all the legal challenges and the legislative re-dos. But how 

long are we prepared to wait for a system like that to work? Can 

we afford more years of controversy in this country about how to 

deal with suspected terrorists? 

A third question is whether dangerous people are more or less 

likely to be actually released under such a system? Now, I think 

logically, if we were to set up a system where it would be easy to 

deal with someone without going to the trouble of a criminal trial, 

the Government would have a strong incentive to put people in 

that easier system, including people who probably can be prosecuted and put away in the traditional way. And then we end up 

with a situation like Guantanamo where the Government is under 

enormous pressure from around the world to deal with these people, including to release them, and dangerous people actually do 

get released sooner than they would be were they put through the 

criminal system. 

Another question is whether a preventive detention system 

would effectively de-legitimize terrorists in the way that the criminal justice system does. One thing all terrorists have in common 

is that they do not want to be seen as ordinary criminals. They 

want to be thought of as soldiers. They want the attention and 

glory of being part of a great army at war with a superpower on 

the global battlefield. They use that to recruit more fighters. Remember how the 9/11 mastermind Khalid Sheikh Mohammed, in 

his special tribunal in Guantanamo, reveled in the status of being 

called an ‘‘enemy combatant.’’ ‘‘You are darn right I am an enemy 

combatant,’’ he said. He was proud of that. Contrast it to what happened to the Shoe Bomber, Richard Reid, when he got his Federal 

trial before a courtroom in Boston. He begged to be called a combatant, and the judge in that case said, ‘‘You are no soldier. You 

are just a terrorist.’’ And he sentenced him to life in prison. Isn’t 

that a better way to deal with such men, to let them fade into obscurity alongside the murderers and rapists in our Federal prisons? 

[The prepared statement of Mr. Malinowski appears as a submission for the record.] 

Chairman LEAHY. Thank you. 

Our next witness is Benjamin Wittes. He is a Fellow and Research Director in Public Law at the Brookings Institution in 

Washington, a columnist with the New Republic online, and contributing editor to Atlantic Monthly. From 1997 to 2006, Mr. 

Wittes served as an editorial writer for the Washington Post, reported for the Legal Times, Slate, and the Weekly Standard. He 

has published numerous books, including the forthcoming ‘‘Law 

and the Long War: The Future of Justice in the Age of Terror.’’ 

And Mr. Wittes graduated from Oberlin College. 

Please go ahead, sir. 

13 

STATEMENT OF BENJAMIN WITTES, FELLOW AND RESEARCH 

DIRECTOR IN PUBLIC LAW, THE BROOKINGS INSTITUTION, 

WASHINGTON, D.C. 

Mr. WITTES. Thank you, Mr. Chairman and members of the Committee, for inviting me to testify concerning what is, in my judgment, the single most important unresolved legal policy challenge 

affecting America’s confrontation with international terrorism: the 

design of an appropriate regime for detaining alien terrorist suspects seized abroad. 

It is difficult for me to overstate the scope and magnitude of our 

political system’s collective failure in detention operations to date. 

A few years ago, in the winter of 2002, almost nobody doubted the 

very common-sense proposition that the United States is entitled 

to detain enemy forces in the war on terrorism. Today, doubt concerning the legitimacy of war-on-terrorism detentions is more the 

norm than the exception. The reason is simple, and it is not that 

the rationale for these detentions has grown less powerful. The current administration has very obtusely refused to tailor the detention system contemplated by the laws of war to the very unusual 

features of the current conflict. Congress has declined over a lot of 

years to create a better system legislatively. And the courts have 

so far provided next to no guidance on the ground rules for detention, save to emphasize the fact of their own habeas jurisdiction. 

The result is a recipe for public and judicial suspicion, which is 

exactly what we have gotten: a system in which complex questions 

of fact get resolved in closed proceedings that produce a minimal 

administrative record based on information—some of it undoubtedly flawed—that detainees have virtually no opportunity to rebut. 

So let me be as clear as I can be. That system has not worked, 

and it cries out for reform by this body to make detentions fairer, 

more transparent, and more defensible both before the public and 

the courts. 

But let me be candid on another point as well: The appropriate 

reform will almost certainly not rely exclusively on civilian prosecutions in American Federal courts as the source of the power to detain the enemy. This is the case for two distinct reasons: 

First, relying exclusively on Federal court prosecution would likely require the release of portions of the detainee population at 

Guantanamo whose continued detention prudence requires. Nobody 

outside of the executive branch knows exactly how many of the current detainees are too dangerous to release but could not face trial 

in Federal court. Without access to a great deal of material that 

remains classified, you can kind of only guess. But the number is 

almost certainly not trivial, and it is probably not even small. Even 

under the somewhat relaxed rules of the Military Commissions Act, 

prosecutors have estimated that they might under ideal circumstances—and I suspect this is optimistic—bring charges 

against only as many as 80 detainees. So excluding those current 

detainees already cleared for transfer from Guantanamo, that still 

leaves around 100 or so whom the military deems too dangerous 

to transfer yet against whom charges are not plausible. Even if we 

assume the military is being hopelessly conservative in clearing detainees for repatriation, there is almost certainly still a gap, and 

14 

that gap are a bunch of dangerous people who want to kill Americans. 

The second reason, even if we could magically repatriate, resettle, or free all current detainees, a pure prosecution model would 

face prohibitive obstacles with respect to future captures. Specifically, American forces often obtain custody of detainees—either in 

the field or from allied governments or militias—without knowing 

precisely who they are. For example, Abu Zubaydah was captured 

by Pakistani forces in a safe house raid with a handful of people 

around him. You can plausibly imagine an extant warrant against, 

you know, such an al Qaeda bigwig himself. But it is highly implausible to imagine pending warrants against everybody who 

might accompany him or anybody we might pick up under, you 

know, circumstances like that. If the rule, however, is that anyone 

against whom charges are not either outstanding or imminent 

must go free, you have to ask the question what authority American forces would have even to take custody of future non-battlefield detainees whom opportunity might present to them. And I 

think the honest answer is that they would have none. 

For all its errors, in other words, the current administration is 

not being eccentric in insisting on some authority to detain the 

enemy outside of the four corners of the criminal justice system. I 

do not think this necessity should be a matter of national shame 

or embarrassment. American law actually tolerates preventive detentions across a range of areas, many of them—in fact, all of 

them, in my opinion, less compelling than the situation of sworn 

military enemies of the country against whom Congress has authorized the use of force. That the laws of war apply uncomfortably 

to the task at hand does not mean that no detention authority here 

is appropriate at all. I think the next administration of either party 

is very unlikely to forswear the power to detain the enemy entirely. 

So the right question for this body is not whether to force it to do 

so, but what appropriate rules for detention ought to look like, 

what the substantive standards for detention ought to be, and how 

to construct appropriate mechanisms of judicial review for those detentions. 

I want to emphasize that not all detainees require new law. The 

law of war applies comfortably to a huge percentage of, you know, 

those we are holding around the world. We are really talking about 

a small subset of, you know, terrorist suspects whom the laws of 

war apply to very uncomfortably. And defusing the controversy 

over such detentions requires the creation for each detainee of a 

rigorous set of factual findings and a documentary record justifying 

the decision to hold that person; that is a record available to the 

public and the press to the maximum extent possible and reviewable in the courts. 

To that end, I make the following suggestions in my book, which 

I have fleshed out as well in my written statement: 

First, to civilianize the detention regime by severing the authority to detain this limited class of terrorists from the laws of war 

and putting such detentions under judicial supervision. 

Second, to greatly enhance the procedural protections for the accused. 

15 

And, third, to have whatever the judicial body that is supervising 

it retain jurisdiction over each detention for as long as it persists 

to ensure that detention remains necessary and conditions of confinement are humane. 

And I believe, as Professor Guiora testified, that the best way to 

implement such a system would be through some kind of specialized terrorism court or national security court. It is an idea that 

others have proposed with varying levels of specificity. Such a court 

would put detentions in the hands of judges with all the prestige 

of the judicial system yet with particular expertise in applying 

rules designed to protect classified information and manage legitimate security concerns. It is also, in my view, the best venue in 

which to try terrorists accused of war crimes. 

To sum up very briefly, the current administration’s reliance on 

a pure law of war model here has been a very fateful error. But 

the attempt to revert to a prosecutorial model for disabling terrorists would supplant that error with a system unsuited to the challenges we currently face as a society. The right answer is—as it 

has been since September 11—to design the detention system we 

need to handle the unique situation that we face, and that is a task 

that only Congress can accomplish 

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

for the record.] 

Chairman LEAHY. Judge Coughenour, let me ask you about this, 

about the idea that we need some kind of a new legal regime to 

deal with terrorism cases. If we use the Federal courts, it may be 

too difficult. I have heard not just in testimony here but in letters 

I have received that our discovery rules are too generous, our evidence rules are too strict, the burden of proof is too high, there is 

too much risk of disclosing sensitive cases. But if we discuss what 

is the easiest way to prosecute a case, of course, you can reach 

those kinds of conclusions. I always thought when I was a prosecutor what is the easiest way to prosecute. It might not be the 

constitutional or legal way. 

In your testimony, you say that it would be a grave error to create a parallel system for trying terrorism cases, but you thought 

our courts were uniquely suited to conduct terrorism cases. You 

mentioned the Ahmed Ressam case. Now, he was convicted. He 

was sentenced. He is now in jail. 

Let’s go into that a little bit. Was there anything—at any time 

during that did you doubt our ability to use our Federal courts, our 

Federal prosecutors, defense attorneys, our Federal system to prosecute that case? 

Judge COUGHENOUR. Not for a heartbeat, Senator. We had occasion to use the Classified Information Protection Act, which was a 

cumbersome and difficult thing to work through in dealing with 

classified information. 

I had two reactions to that: one was you just roll up your sleeves 

and you work your way through it, and we did; and, second, I was, 

frankly, taken aback by the amount of information that was considered to be classified for reasons that just struck me as being absurd. For example, it was considered to be classified that investigators stayed at a Holiday Inn in Algeria when they interviewed 

members of the Ressam family. We had a lot of difficult evidentiary 

16 

issues dealing with witnesses from Canada and the like. But, 

again, you just roll up your sleeves, and you work your way 

through it. 

General Mukasey tried a very difficult trial in New York to a 

conviction. Kevin Duffy tried another major case in New York with 

difficult problems to a quite appropriate conviction. 

It just chills me to the core to hear people talking about rounding 

up someone who is deemed too dangerous to be released. In the 

United States of America, do we stand for that proposition? And 

how long do we hold them? How long do we detain them? For the 

duration of the war on terror? Is there light at the end of the tunnel? 

We have been holding people now for 6 years, and it just seems 

to me inconsistent with everything we stand for in the United 

States to be detaining people because we think they are dangerous 

but we do not have enough evidence to try them. 

Chairman LEAHY. That is interesting you talk about the classified system. We now have spent several billions of dollar, many, 

many more billions of dollars to classify things than ever in our 

history, including when we were in world wars and so on. Matters 

at the National Archives that had been on their website for years 

and years are suddenly classified matters that are on various administration websites. They are open—actually used in speeches by 

administration officials, but suddenly when the Congress has to 

ask, well, what really happened, ‘‘Oh, it is classified,’’ and it is off 

the website. I worry a little bit about that. 

But let me ask, in my time left here, Mr. Benjamin, this war on 

terror—and the judge referred to this—can justify a lot of things, 

including classifying everything, and perhaps intimidating people 

into accepting unnecessary restraints on our civil liberties and 

turning our backs on the U.S. court system. I want to just try to 

put the reality apart from the rhetoric in this area. The strength 

of your report, instead of beginning with a conclusion that our 

courts can handle terrorism, you did the hard work of actually examining the cases and the relevant data. In the hundred terrorism 

cases that you reviewed in your investigation, what did you find 

out about leaks of classified materials? Because Attorney General 

Mukasey, before he held his current job, referred to the problem of 

leaks in terrorism cases. He claimed specific examples. What did 

you find? And did you find the problem of leaks justified the creation of a national security court, some kind of alternative criminal 

justice system? 

Mr. BENJAMIN. Thank you, Senator. Certainly the issue surrounding classified evidence is one of the features that people point 

to and say, ‘‘Well, that is why these cases are different,’’ and so we 

looked quite closely at that issue in our research. 

CIPA is the primary method for dealing with classified or sensitive evidence in terrorism prosecutions. It is not the only method. 

There are also protective orders that are routinely used. Things are 

filed under seal, as is often the case in all sorts of criminal prosecutions. And there are other more case-specific devices that have 

been invoked, such as the Fourth Circuit’s very creative solution to 

some of the issues that were raised in this area in the Moussaoui 

case. 

17 

What we found, Senator, is that CIPA has been invoked over and 

over again in terrorism cases, including many of the most important high-profile cases, such as the Ressam case that Judge 

Coughenour so ably presided over; the Rahman case that Judge 

Mukasey presided over, involving the blind sheikh; and the embassy bombings case that Judge Sand presided over. CIPA has 

been broadly upheld as constitutional. And, Senator, we have not 

found a single instance of a security breach in any terrorism cases 

where CIPA was invoked. 

You referred to the op-ed piece that Judge Mukasey wrote shortly before his nomination to become Attorney General. In that piece 

Judge Mukasey cited two examples of security breaches, but it 

bears noting that in neither case were the CIPA procedures invoked. The first instance arises from one of the cases in the early 

1990s, the Rahman case, where the prosecutor sent a list of co-conspirators—quite a long list, I might add—to defense counsel prior 

to trial. That is consistent with the normal rules of disclosure in 

a case where a conspiracy is charged. And it turned out that that 

list of co-conspirators made its way to Osama bin Laden in Sudan. 

And actually, by the way, interestingly enough, the fact of the 

transmission of that co-conspirator list to bin Laden was later part 

of the Government’s evidence in the embassy bombings case a few 

years later. 

Now, it is not a good thing, obviously, that the co-conspirator list 

reached bin Laden, but it bears noting that the Government did 

not invoke a protective order in that case with respect to the coconspirator list, did not make use of the tools that might have been 

available. And I would submit, Senator, that more importantly that 

incident is the exception that proves the rule. This was 13 years 

ago, and this is sort of the one example that is cited, and it is a 

case where CIPA was not even applied. 

The other example that Judge Mukasey cites involves, as he described it, testimony in one of the two Ramzi Yousef trials. We 

have looked hard at those trials, have not been able to confirm the 

episode that Judge Mukasey recounts. There is some reason to 

think that Judge Mukasey may have been intending to refer to a 

different incident in the embassy bombings trial. In the white 

paper, we recount in quite a bit of detail the facts and circumstances from the embassy trial. And as we point out, when you 

look at the chronology and the timeline—and this involves phone 

records, satellite phone records—it is just not possible that the introduction of that phone record evidence had any effect on intelligence gathering because bin Laden had stopped using the phone 

years before the evidence was offered in court. 

So, again, I have just tremendous respect and admiration for 

Judge Mukasey, and so I hesitate to suggest that that incident was 

misreported. There may be something else that he is referring to 

that we have not been able to confirm. But thank you. 

Chairman LEAHY. Thank you very much, Mr. Benjamin. 

I was going to call on Senator Sessions next, but he has left, so 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

Let me ask a question for all of the witnesses, and it is a long 

question, and I would ask unanimous consent, Mr. Chairman, that 

18 

the back-up material for the question be included in the record, 

along with my question. But I do not need to refer to it at this 

point. 

Chairman LEAHY. Without objection. 

Senator KYL. Last year, I wrote a minority report dissenting 

from the Committee report for a bill that would have extended civilian litigation rights to al Qaeda detainees, and the minority report began by noting the following: At least 30 detainees who have 

been released from the Guantanamo Bay detention facility have 

since returned to waging war against the United States and its allies. A dozen released detainees have been killed in battle by U.S. 

forces, while others have been recaptured. Two released detainees 

later became regional commanders for Taliban forces. One released 

Guantanamo detainee later attacked U.S. and allied soldiers in Afghanistan, killing three Afghan soldiers. Another former detainee 

has killed an Afghan judge. One released detainee led a terrorist 

attack on a hotel in Pakistan and also led a kidnapping raid that 

resulted in the death of a Chinese civilian. This former detainee recently told Pakistani journalists that he plans to fight America and 

its allies until the very end. 

Since that Committee report was published last fall, we have 

seen another case of a Guantanamo detainee who was released by 

the U.S. military and subsequently returned to terrorism. 

The following is from a May 8, 2008, article in the International 

Herald Tribune: A former Kuwaiti detainee at the United States 

prison camp at Guantanamo Bay, Cuba, was one of the bombers in 

a string of deadly suicide attacks in the northern Iraqi city of 

Mosul last month, the American military said Wednesday. Commander Scott Rye, a spokesman for the American military, identified one of the Mosul bombers as Abdullah Salim Ali al-Ajmi, a Kuwaiti man who was originally detained in Afghanistan and spent 

3 years at Guantanamo Bay before being released in 2005. Al-Ajmi 

had returned to Kuwait after his release from Guantanamo Bay 

and traveled to Iraq via Syria, Rye said, adding that the man’s 

family had confirmed his death. 

Ajmi is one of several former Guantanamo detainees believed to 

have returned to combat status, said another American military 

spokesman, Commander Jeffrey Gordon, quoting, ‘‘Some have subsequently been killed in combat and participated in suicide bomber 

attacks,’’ he said. 

Now, here is my question for all of you. Do you generally agree 

that it is a bad thing that men like Ajmi, the Mosul suicide bomber, have been released from Guantanamo Bay? And do you agree 

that the United States should be allowed to detain such men to 

prevent them from returning to the battlefield, which in the case 

of terrorists, of course, could be almost anywhere? Since I suspect 

we have started down at the left hand, let me—and, by the way, 

for the record, Mr. Benjamin, I am not aware that there is a protective order exception to the Sixth Amendment confrontation right; 

you referred to the failure of the Government to get a protection 

order. Would you, for the record, confirm for me whether that is 

your understanding or not? But let’s don’t take time with that right 

now. 

Let’s start with Mr. Wittes and go on down the line. 

19 

Mr. WITTES. I do agree that there is a significant problem that 

there have been a number—and the exact number is, as I understand it, the subject of some dispute. But I agree that there is a 

significant problem with people being released and going back to 

the fight, absolutely. I further agree that it is a necessary component of an international conflict that you do get to detain the 

enemy in order to prevent that sort of thing. 

I think I disagree with what I take to be the implication of your 

question, which is that there is—that as a consequence of those two 

points, that we should have a sort of unamended or untailored law 

of war or paradigm here which issues judicial review. I think one 

of the problems at Guantanamo has been— 

Senator KYL. Excuse me. Let me just make it clear that is not 

implied. We have judicial review. We have an annual determination of status, and there is a determination for each of these individuals. So please do not read into my question— 

Mr. WITTES. Fair enough. If that— 

Senator KYL.—an absolutely free— 

Mr. WITTES. If that was not the implication of your question, 

then I— 

Senator KYL. Let me just add to it. Underlining the provisions 

that we already have in law for the determination of status and review of that status. 

Mr. WITTES. Yes, fair enough. I mean, I guess my point is that 

I think one of the problems that we have had at Guantanamo, in 

my opinion, is that the doubt as to the legitimacy of these detentions has created enormous political pressure to release people, and 

I think has led in some instances to releases of people of whom I 

am, frankly, terrified. And I can give you specific examples of that, 

but I believe sort of the more process we create for Guantanamo— 

and, obviously, I am not talking about a Federal court trial here, 

but I think a more robust process would create more legitimacy 

and, therefore, lessen the pressure to do sort of precipitous releases, for which, I agree with you, we have paid a high price and 

I suspect we will pay a higher price to come. 

Mr. MALINOWSKI. Thanks, Senator. Let me start by echoing— 

Chairman LEAHY. I would ask each person, because of the time 

constraints, to answer the question, of course, but try and keep it 

within a shorter framework, And, of course, we will give you 

more—if you want to expand the record subsequently, that will be 

done. 

Mr. MALINOWSKI. First, to agree with Mr. Wittes that it is precisely because of the perception that we have an illegitimate system that there is enormous pressure to release people, including 

people who perhaps should not have been released and I think 

probably would have been better dealt with in a system that is of 

unquestioned legitimacy. 

I think the second way I would answer your question, Senator, 

is to point out that the fundamental problem we face in this conflict is that there is no shortage of misguided young men in the 

broader Muslim world who are willing and capable of blowing 

themselves up for that awful cause. We may have a few dozen in 

Guantanamo. There are thousands or tens of thousands out there. 

We released hundreds of such people, thousands at the end of the 

20 

conflict with the Taliban in Afghanistan, knowing that you cannot 

prevent terrorism completely by seeking to detain everyone in the 

world who wishes us harm, unless we are willing to build 10,000 

Guantanamos; and that the problem of Guantanamo, and I think 

of any system that is perceived to be illegitimate, is that it is likely 

to create more such people than it takes off of the battlefield. And 

I think one glance at any of the jihadi websites that recruit people 

to the fight will confirm that statement. They use Guantanamo and 

they will use any system that looks like Guantanamo to recruit 

people to kill us. And that is the problem we need to deal with. 

Mr. GUIORA. Senator Kyl, your question goes to the heart of my 

proposal about establishing a Domestic Terror Court. During the 

course of my 20 years’ service in the Israel Defense Forces, I was 

involved in innumerable detainee release decisions. It ultimately 

requires objective criteria for who can and who should not be released predicated on an understanding of do they present a continuing threat to America’s national security. Without articulating 

and subsequently implementing this objective criteria, we will be 

releasing people simply because, and, indeed, you are absolutely 

right, the chances of those people who have been released without 

a proper check into what kind of a threat they present, chances are 

that they will commit those same acts once again. 

On the other hand, there is no doubt that the process of indefinite detention without robust, independent judicial review as to 

whether or not that individual presents a continuing threat to 

America’s security is, at the end of the day, I think, both unconstitutional and also, frankly, immoral, meaning that if we are going 

to go forward in a rationale fashion, the first thing we absolutely 

must do is to develop this objective criteria. Then and only then 

can we begin the process of determining who we will release and 

who we will not release, and those who are not released, what judicial process they go forward with is obviously what we are talking 

about today. But without establishing criteria, it is very much a 

catch-as-you-can, which, at the end of the day, is extraordinarily 

dangerous to America’s national security. 

Mr. BENJAMIN. Senator, I could not agree more than when our 

troops are engaged in the field as they are, it is fundamental in the 

law of war that when they capture enemy fighters, they can and 

should detain them so that they do not return to the field. And the 

incident that you spoke about that was in the paper 2 weeks ago 

was tragic and horrible. And as I said earlier, we do not for a 

minute say that the criminal justice system by itself provides the 

answer to all of the challenges of terrorism. Certainly not. Rather, 

what we say is that for individuals that the Government has zeroed in on and said, ‘‘This is someone that we want to prosecute 

and punish—not someone that we want to disable from returning 

to the fight, but someone we want to prosecute and punish’’—the 

existing system has proved that it is capable of handling those 

cases in the most challenging cases against the most dangerous 

people: Khalid Sheikh Mohammed’s co-conspirators, Osama bin 

Laden’s co-conspirators in the embassy bombings case, and some of 

the others. 

So we do not for a minute propose that the justice system is a 

one-stop solution. Absolutely not. 

21 

Judge COUGHENOUR. I cannot add a whole lot to what has already been said and what I have already said, and that is that I 

still think it is entirely inconsistent with the ideals of this country 

to round people up because we think they might be dangerous and 

to hold them indefinitely for the duration of an ill-defined and undefined war, which could mean, in essence, that we hold them for 

the balance of their natural lives based upon a standard there that 

is they are dangerous. I just do not think that is consistent with 

what we stand for in the United States of America. 

Chairman LEAHY. Thank you. 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Chairman. Welcome to all the 

witnesses. I appreciate the very thoughtful testimony that we have 

had here today. Like Senator Kyl, I would like to ask a question 

and then ask each of the witnesses to respond to it. Mine has to 

do with Guantanamo, which I think is pretty widely understood by 

essentially all rational Americans to be a terrible stain on our reputation and something that we would be well advised to close as 

rapidly as possible. And if we were to pursue that task, it would 

not be easy. This is not the simple kind of mess that you just pick 

up off the rug and it is over. I mean, we have kind of got ourselves 

in a lot worse to this problem as a result of the 6 years of the experience with Guantanamo. 

As we unwind it, if we were to go about establishing a commission or a committee to advise us, to advise perhaps the next President, on what you would want to do to close Guantanamo—which 

would raise obviously military issues. It is being run, I think, better than ever before now by the U.S. military. It raises intelligence 

issues related to what remaining fragments of intelligence might be 

extracted from folks down there. It raises significant judicial issues 

as to what procedures should be imposed. It raises very live for 

Americans civil liberties and fairness issues. And it raises significant corrections issues as to where people who are going to be kept 

incarcerated should now be kept. 

And in the midst of all of that, I just want to have each of you 

share with me your advice, if we were to establish such a body, 

what sort of a charge would you want to ensure that it had? What 

sort of expertise, what sort of make-up? Any ideas you might have 

about such a body that would just be advisory, but who should be 

on it? What should be on it? What issues should they be sure to 

look at? What should a legislative charge to it look like? Any 

thoughts you have in that area, I would be very grateful to hear. 

I think I will go in the other direction this time and start with 

Your Honor. 

Judge COUGHENOUR. Well, I will give you one limited idea, and 

he will probably be upset with me, but he is an old enough friend 

that I can do this. I would suggest you have in this town a judge 

who is Chair of the FISA Court, Royce Lambert, who would be a 

superb person to give you the views of the judiciary on dealing with 

that problem. 

Senator WHITEHOUSE. I am sure you have made his day. 

[Laughter.] 

Mr. BENJAMIN. And at the risk of singling out another friend, I 

would suggest that an experienced terrorism prosecutor from an ofVerDate Aug 31 2005 12:40 Aug 06, 2008 Jkt 043658 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43658.TXT SJUD1 PsN: CMORC
22 

fice like the U.S. Attorney’s Office for the Southern District of New 

York be included. And I would also suggest that if such a commission were established, it should not impede the decision to transfer 

some of the Guantanamo detainees into the existing system for 

trial if the evidence is deemed to be sufficient to bring civilian 

charges, as one would think it probably is for at least some of those 

people. 

Senator WHITEHOUSE. I agree, and by the way, I appreciate your 

nice words about Mary Jo White. I was her colleague in Rhode Island while she served in New York. She is terrific. 

Professor Guiora? 

Mr. GUIORA. Senator, I am a big proponent of a comparative 

international perspective and analysis as to how to go forward, and 

I think that no one country has the answer to terrorism, no one 

country has the answer to counterterrorism. If you are going to 

have such a commission, which I think is an excellent idea, I would 

recommend having people who are equipped and able to take a 

very close look at how other countries are going forward in terms 

of their counterterrorism and legal policy efforts. You can take 

away certain things from certain countries, and you can also that 

way discern what works and what does not work in the American 

constitutional context. But I think if you are going to have only an 

American-only perspective, it will be very limited and ultimately 

ineffectual. And I think particularly in this day and age, it is going 

to be critical to truly have a very broad-based, comparative, international perspective, and what I call in the book I wrote, ‘‘Global 

Perspectives on Counterterrorism,’’ I there looked at five different 

countries—Israel, America, Russia, Spain, and India. I think we 

can take something away from each of those countries, and we can 

very much adapt that or adopt that to the American constitutional 

context. 

Senator WHITEHOUSE. To put it mildly, we do not have a record 

of success in America to justify relying only on our own experience. 

Mr. GUIORA. I leave that to the Senator. 

[Laughter.] 

Senator WHITEHOUSE. It seems pretty universal among the witnesses’ testimony. Mr. Malinowski? 

Mr. MALINOWSKI. Well, if you would like me to nominate someone, I will suggest someone you may be surprised to hear me nominate. 

Senator WHITEHOUSE. Well, not just people, but also ideas, 

charges, issues they should be sure to look at. 

Mr. MALINOWSKI. First a person and then an idea. The person 

I would nominate is General Petraeus, somebody who has served 

on the front lines of the struggle, understands the non-traditional 

nature of the threat that we face, understands clearly, based on 

what he said and has written on the subject, the necessity of detaining people on the battlefield who wish our troops harm, but 

who has also spoken very eloquently about the fact that you cannot 

detain your way out of this problem and that you cannot win a 

non-traditional war or conflict like this unless you sustain the 

moral high ground. I would love to hear the perspective of the serving officer who has been through this reflected in that kind of discussion. 

23 

In terms of ideas, you know, the one point I would make is don’t 

just focus on the nitty-gritty challenge of what to do with detainee 

1 and 50 and 48 in Guantanamo, but ask the big question of who 

should we be detaining as part of this larger struggle and how does 

detention fit into a strategy for winning. And I think you might get 

some interesting answers that are different from what you might 

expect if you start from that perspective. 

Senator WHITEHOUSE. I appreciate it. 

Mr. Wittes? 

Mr. WITTES. I would like to start by saying on the personnel 

question, I cannot imagine a better suggestion than Mr. 

Malinowski’s. 

On the substantive dimension, I would actually say having a 

very intense focus on Guantanamo detainee 1 and 50 and 48—I 

think were the examples that he used—you know— 

Mr. MALINOWSKI. Don’t look at 49. 

Mr. WITTES. Just don’t look at 49, right. 

[Laughter.] 

Mr. WITTES. I mean, I think the thing that really—when you 

peel all the layers of the onion away, the thing that separates his 

argument from mine, I think, is a sense of what the universe of the 

people who are unambiguously too scary to set free and not amenable to U.S. prosecution in U.S. Federal court where it actually 

looks like. And I think you feel very different about this question 

if you believe that that is a very small group about whom the risks 

are very manageable, than if you believe that it is a very large 

group or even a mid-sized group about whom the risks are not particularly manageable. And one of the real problems that has pervaded this entire discussion—and I do not mean the discussion in 

this room today; I mean the discussion over 61⁄2 years—is that the 

quality of the information that is public about, you know, the universe of detainees is simply dreadful. And, you know, the administration has to take a lot of responsibility for that. 

But I think one thing that any commission or advisory body that 

you put together needs to look at is, you know—and I notice that 

both Mr. Malinowski and I in our written statements specifically 

said that you cannot responsible identify what the universe of the 

population is at this stage, and that matters enormously, because, 

you know, if it is five people and we could just, you know, have the 

NSA and the CIA watching them very carefully, I might be persuadable. If it is 120 people and, you know, they are people who 

are different from Abu Zubaydah only in one level below in the hierarchy and with—you know, and the difference is really that the 

evidence that we have is inadmissible—not that the evidence that 

we have is not real—I think he might be persuadable if I—I don’t 

know that. You would have to ask him. But I think it would change 

the discussion a lot if we knew what that universe of detainees 

looks like. 

Senator WHITEHOUSE. Thank you, Chairman. 

Chairman LEAHY. Of course, it does not help that the administration, even when they have talked about it, they have changed 

their numbers so many different times that their credibility is 

somewhat hurt. But then that falls into what I had said earlier 

about classifying things that had been on Government websites for 

24 

years, been in Government publications for years, even to the extent of things that had been published, and classifying them just 

before a court hearing, the credibility is not at its highest. 

Mr. WITTES. I could not agree with you more. 

Chairman LEAHY. Thank you. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman, for holding this 

hearing. I am sorry I could not be here earlier to hear the testimony. I was chairing a hearing of the Africa Subcommittee of the 

Foreign Relations Committee, but from what I understand, you 

have heard powerful arguments today for why the traditional 

American criminal justice system is a strong and effective tool for 

trying terrorism suspects. The United States has successfully prosecuted terrorist suspects in Federal courts, and courts have provided the flexibility needed to address complicated evidentiary and 

legal issues. The traditional military justice system, too, is available. There is no doubt that the administration’s actions over the 

past 7 years have created a difficult situation at Guantanamo Bay 

with respect to a small number of detainees. But I am deeply concerned about establishing an entirely new regime, with rules that 

would not otherwise be tolerated in Federal court or military courtmartial and that would be subject to years of challenges, to address 

this very narrow set of cases, when there is every indication that 

we can effectively use our long-established institutions. 

Mr. Chairman, I ask that my full statement be placed in the 

record. 

Chairman LEAHY. Of course, it will be. 

Senator FEINGOLD. Mr. Benjamin, when Congress was considering the Military Commissions Act, some argued that we could not 

rely on the traditional criminal justice system to try terrorism suspects because it was unrealistic to expect soldiers to read Miranda 

warnings to those captured on the battlefield. Is this argument a 

red herring? 

Mr. BENJAMIN. Yes, Senator, it is a red herring. I think there are 

many, perhaps, popular misconceptions about the Miranda rule. 

The Miranda rule does not apply to or regulate or restrict in any 

way what soldiers do on the battlefield or what intelligence officers 

do during intelligence interrogations. It is a rule of criminal procedure that says when a law enforcement officer conducts a custodial 

interrogation and when a person who is being interrogated makes 

admissions that the Government later wishes to offer in court, the 

person must receive the Miranda warnings up front. 

Miranda does not apply when foreign officials are conducting interrogations. It was held in the embassy bombings case, presided 

over by Judge Sand, one of the very best judges in the Southern 

District, that Miranda applies when U.S. law enforcement officials 

are conducting interrogations overseas. But the FBI is trained to 

give Miranda warnings. They can give them. And I can tell you 

from my own experience as a prosecutor, lots and lots and lots of 

people waive their Miranda rights and make statements. 

Senator FEINGOLD. Mr. Malinowski, would you like to comment 

on that? 

Mr. MALINOWSKI. When I am asked this question, I always say 

that every experienced judge and prosecutor I speak to who has 

25 

handled these cases believes that that is a red herring, and we 

have heard from a judge and a prosecutor with far greater experience than I have. I think clearly the civilian system can handle 

these cases. When it has, it has succeeded. When we have used an 

alternative system, we have failed. That is a pretty clear track 

record. 

Senator FEINGOLD. I thank you for that, Mr. Malinowski. Proposals for new preventative detention schemes have been put forward by some thoughtful, well-meaning individuals, including some 

of the witnesses here today. Some of these proposals have incorporated quite a few procedural safeguards, including a neutral decisionmaker and the right to counsel. Why doesn’t the inclusion of 

these types of safeguards address your concerns about creating 

such a system? 

Mr. MALINOWSKI. I think in theory you could continue to build 

procedural safeguards into the system until it looks virtually identical to our existing system of civilian criminal courts and military 

courts-martial, at which point it really does not look like Guantanamo anymore. But then what is the point? I mean, if you are 

going to do something that is very, very similar to what we already 

have, why go to the extraordinary trouble of creating a brand new 

system from scratch? And that is why every real proposal for creating a preventive detention system presumes such things as the 

defendant is not going to see or be able to confront some of the evidence that is being used to hold him potentially indefinitely, which 

I think inevitably leads to the kind of controversy that we want to 

avoid, the kinds of mistakes that end up haunting us, and the inevitability of a system that I think is unsustainable in the long 

term. 

Senator FEINGOLD. Mr. Benjamin, do you want to comment on 

that? 

Mr. BENJAMIN. Yes, I agree completely, and I think one of the 

great strengths of the existing system is its credibility and its 

adaptability. It is a system—and we speak of it as a ‘‘system’’ as 

if it is a monolith, but, of course, it is composed of judges and lawyers and agents, and it relies on statutes and case law and precedents and traditions that we have inherited from those who have 

gone before us and that have been adapted to deal with all of the 

changing circumstances that we confront. And the record of these 

cases in this particular area I think is particularly noteworthy for 

demonstrating that the courts do have the capacity in a credible, 

fair, reliable, and transparent way to handle these cases. 

Senator FEINGOLD. Thank you very much. 

Thanks, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator. And I could not help but 

think Judge Michael Luttig, who retired a few years ago to take 

a position in the private sector, was known as one of the most conservative judges on a conservative court, the Fourth Circuit. He 

was involved in the Padilla case a few years ago. He condemned 

shifting legal positions of the administration, which was a constantly moving position. And this, of course, involved an American 

citizen. He said the shifting and the moving has consequences ‘‘not 

only for the public perception of the war on terror but also for the 

Government’s credibility before the courts in litigation ancillary to 

26 

that war.’’ And he went on to say that this behavior in yielding to 

expediency left an impression that may ultimately prove to be at 

substantial cost to the Government’s credibility. I mention that, but 

we could put in dozens of such quotes from judges across the political spectrum. 

I thank you all for being here. Please, as you go through this, if 

you find there is something further you wanted to add based on 

questions, feel free to do so, and we will keep the record open for 

a few days for that purpose. 

Thank you very, very much. 

[Whereupon, at 11:33 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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