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48–893 2010

[H.A.S.C. No. 110–167] 

IMPLICATIONS OF THE SUPREME 

COURT’S BOUMEDIENE DECISION FOR 

DETAINEES AT GUANTANAMO BAY, CUBA: 

ADMINISTRATION PERSPECTIVES 

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

HEARING HELD 

JULY 31, 2008 
(II) 

HOUSE COMMITTEE ON ARMED SERVICES 

ONE HUNDRED TENTH CONGRESS

IKE SKELTON, Missouri, Chairman 

JOHN SPRATT, South Carolina 

SOLOMON P. ORTIZ, Texas 

GENE TAYLOR, Mississippi 

NEIL ABERCROMBIE, Hawaii 

SILVESTRE REYES, Texas 

VIC SNYDER, Arkansas 

ADAM SMITH, Washington 

LORETTA SANCHEZ, California 

MIKE MCINTYRE, North Carolina 

ELLEN O. TAUSCHER, California 

ROBERT A. BRADY, Pennsylvania 

ROBERT ANDREWS, New Jersey 

SUSAN A. DAVIS, California 

RICK LARSEN, Washington 

JIM COOPER, Tennessee 

JIM MARSHALL, Georgia 

MADELEINE Z. BORDALLO, Guam 

MARK E. UDALL, Colorado 

DAN BOREN, Oklahoma 

BRAD ELLSWORTH, Indiana 

NANCY BOYDA, Kansas 

PATRICK J. MURPHY, Pennsylvania 

HANK JOHNSON, Georgia 

CAROL SHEA-PORTER, New Hampshire 

JOE COURTNEY, Connecticut 

DAVID LOEBSACK, Iowa 

KIRSTEN E. GILLIBRAND, New York 

JOE SESTAK, Pennsylvania 

GABRIELLE GIFFORDS, Arizona 

NIKI TSONGAS, Massachusetts 

ELIJAH E. CUMMINGS, Maryland 

KENDRICK B. MEEK, Florida 

KATHY CASTOR, Florida 

DUNCAN HUNTER, California 

JIM SAXTON, New Jersey 

JOHN M. MCHUGH, New York 

TERRY EVERETT, Alabama 

ROSCOE G. BARTLETT, Maryland 

HOWARD P. ‘‘BUCK’’ MCKEON, California 

MAC THORNBERRY, Texas 

WALTER B. JONES, North Carolina 

ROBIN HAYES, North Carolina 

W. TODD AKIN, Missouri 

J. RANDY FORBES, Virginia 

JEFF MILLER, Florida 

JOE WILSON, South Carolina 

FRANK A. LOBIONDO, New Jersey 

TOM COLE, Oklahoma 

ROB BISHOP, Utah 

MICHAEL TURNER, Ohio 

JOHN KLINE, Minnesota 

PHIL GINGREY, Georgia 

MIKE ROGERS, Alabama 

TRENT FRANKS, Arizona 

BILL SHUSTER, Pennsylvania 

THELMA DRAKE, Virginia 

CATHY MCMORRIS RODGERS, Washington 

K. MICHAEL CONAWAY, Texas 

GEOFF DAVIS, Kentucky 

DOUG LAMBORN, Colorado 

ROB WITTMAN, Virginia 

ERIN C. CONATON, Staff Director 

PAUL OOSTBURG, General Counsel 

THOMAS HAWLEY, Professional Staff Member 

CATERINA DUTTO, Staff Assistant 
(III) 

C O N T E N T S 

CHRONOLOGICAL LIST OF HEARINGS 

2008 

Page 

HEARING: 

Thursday, July 31, 2008, Implications of the Supreme Court’s Boumediene 

Decision for Detainees at Guantanamo Bay, Cuba: Administration Perspectives ....................................................................................................................... 1 

APPENDIX: 

Thursday, July 31, 2008 .......................................................................................... 31 

THURSDAY, JULY 31, 2008 

IMPLICATIONS OF THE SUPREME COURT’S BOUMEDIENE DECISION 

FOR DETAINEES AT GUANTANAMO BAY, CUBA: ADMINISTRATION 

PERSPECTIVES 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

Hunter, Hon. Duncan, a Representative from California, Ranking Member, 

Committee on Armed Services ............................................................................ 1 

Skelton, Hon. Ike, a Representative from Missouri, Chairman, Committee 

on Armed Services ................................................................................................ 1 

WITNESSES 

Dell’Orto, Daniel J., Acting General Counsel, Department of Defense; Gregory 

G. Katsas, Assistant Attorney General, Civil Division, Department of Justice; Col. Steven David, USA, Chief Defense Counsel, Office of Military 

Commissions, Department of Defense; and Sandra Hodgkinson, Deputy 

Assistant Secretary for Detainee Affairs, Department of Defense, beginning 

on page .................................................................................................................. 2 

APPENDIX 

PREPARED STATEMENTS: 

David, Col. Steven ............................................................................................ 58 

Dell’Orto, Daniel J. ........................................................................................... 35 

Katsas, Gregory G. ........................................................................................... 44 

DOCUMENTS SUBMITTED FOR THE RECORD: 

Supplemental Testimony of Steven David, Colonel, United States Army 

Reserve, Chief Defense Counsel, Department of Defense, Office of Military Commissions .......................................................................................... 71 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

[The information was not available at the time of printing.] 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

Mr. Skelton ....................................................................................................... 87 

(1) 

IMPLICATIONS OF THE SUPREME COURT’S BOUMEDIENE DECISION FOR DETAINEES AT GUANTANAMO 

BAY, CUBA: ADMINISTRATION PERSPECTIVES 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ARMED SERVICES, 

Washington, DC, Thursday, July 31, 2008. 

The committee met, pursuant to call, at 2:04 p.m., in room 2118, 

Rayburn House Office Building, Hon. Ike Skelton (chairman of the 

committee) presiding. 

OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM MISSOURI, CHAIRMAN, COMMITTEE ON ARMED 

SERVICES 

The CHAIRMAN. Good afternoon. Our committee will come to 

order. 

This afternoon, we have the second part of our series of hearings 

on the implication of the Boumediene decision from the United 

States Supreme Court. 

For this afternoon’s panel, we have Mr. Daniel Dell’Orto, who is 

the Acting General Counsel for the Department of Defense; Gregory Katsas, who is the Assistant Attorney General for the Civil Division of the Justice Department; Colonel Steve David, the Chief 

Defense Counsel in the Office of Military Commissions in the Department of Defense; and Sandra Hodgkinson, who is the Deputy 

Assistant Secretary for Detainee Affairs in the Department of Defense, who will not testify but will be available for questions. Am 

I correct? 

Ms. HODGKINSON. Yes, sir. 

The CHAIRMAN. Ranking Member Duncan Hunter, remarks. 

STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE 

FROM CALIFORNIA, RANKING MEMBER, COMMITTEE ON 

ARMED SERVICES 

Mr. HUNTER. Mr. Chairman, let’s get right with the program 

here; and I look forward to the witnesses’ statements. I am sure 

we will have some good questions afterwards. 

The CHAIRMAN. Thank you. 
2 

STATEMENTS OF DANIEL J. DELL’ORTO, ACTING GENERAL 

COUNSEL, DEPARTMENT OF DEFENSE; GREGORY G. KATSAS, 

ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE; COL. STEVEN DAVID, USA, CHIEF DEFENSE COUNSEL, OFFICE OF MILITARY COMMISSIONS, DEPARTMENT OF DEFENSE; AND SANDRA HODGKINSON, DEPUTY ASSISTANT SECRETARY FOR DETAINEE AFFAIRS, DEPARTMENT OF DEFENSE 

The CHAIRMAN. Mr. Dell’Orto, you are on. 

STATEMENT OF DANIEL J. DELL’ORTO 

Mr. DELL’ORTO. Thank you, Mr. Chairman, Ranking Member 

Hunter, and members of the committee for the opportunity to testify on the implications of the Supreme Court’s Boumediene decision for detainees at Guantanamo Bay, Cuba. 

The Department of Defense is working diligently to satisfy the 

considerable litigation requirements stemming from the Supreme 

Court’s decision in Boumediene v. Bush. The ramifications of that 

decision for the Department of Defense and for our Nation are significant. The Department already has experienced some of these 

ramifications, while others are looming in the near future and still 

others are as yet unknown. As significant as Boumediene is, it is 

only one in a recent line of decisions that establish an unprecedented level of judicial involvement in matters historically and, in 

the Department’s view, most appropriately reserved to military 

professionals, including decisions on whom to detain as enemy combatants in an ongoing armed conflict. 

There are currently more than 250 petitions for the writ of habeas corpus pending in federal district court that involve more than 

300 current or former Guantanamo detainees. Now that the Supreme Court has ruled that these petitions may proceed, the Department is diverting personnel and assets from other ongoing missions to respond to them. Those diverted are not just legal personnel and administrative assets. We also have diverted or are in 

the process of diverting substantial numbers of intelligence assets 

to support this litigation. 

The Department’s immediate challenge is that what the law requires is currently unclear. As the Attorney General noted in a 

July 21st, 2008, speech, the Supreme Court explicitly left many 

questions unanswered in Boumediene. The Court said that Guantanamo detainees have a constitutional right to pursue habeas proceedings in federal court. The Court did not say how these cases 

would proceed or what procedures and standards would apply. 

Given this lack of direction, and in the absence of legislation, the 

rules governing habeas proceedings for detainees at Guantanamo 

will be devised on an ad hoc basis in federal district courts. 

Although we do not know what the federal district courts will decree as the ultimate requirements for these proceedings, we anticipate a number of potential problems. 

First, these habeas proceedings could require the diversion of significant operational, law enforcement, and security resources, in 

addition to administrative, legal, and intelligence resources. In addition to the significant resources the Department already is devoting to this litigation, if judges order the in-person appearance of de-
3 

tainees at hearings, numerous security assets would need to be devoted to the task. 

As alarming, if federal district court judges issue subpoenas requiring in-person testimony of those who gathered the relevant information pertaining to a habeas petitioner, combat troops, intelligence personnel, and other critical military and civilian personnel 

may need to be pulled from the theater of combat operations and 

sent to Washington, DC, to answer questions from detainees’ lawyers. 

As Justice Jackson presciently noted in Johnson v. Eisentrager in 

1950, and I quote, ‘‘It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is 

ordered to reduce to submission to call him to account in his own 

civil courts and divert his efforts and attention from the military 

offensive abroad to the legal defensive at home.’’ 

Indeed, the Supreme Court, in Boumediene, acknowledged that 

the conduct of habeas proceedings for Guantanamo detainees could 

raise national security issues. 

Second, the rules for habeas proceedings could affect how our soldiers, sailors, airmen, and marines fight on battlefields around the 

world. It must be emphasized that petitioners in these cases have 

been detained under the law of war during an ongoing armed conflict. These are not the typical habeas proceedings in a civilian context with which the federal judiciary is familiar. Judges could require arrest reports, chain of custody authentication reports, or 

other evidentiary processes. Rulings that evidence must be excluded or that a detainee must be freed because certain evidentiary 

processes, relevant to a civilian but not a wartime environment, 

were not followed, would, in effect, serve to regulate our troops on 

the battlefield, just as judges, in effect, regulate the local police in 

civilian life. 

Third, habeas proceedings could be used as a vehicle for detainees charged with war crimes to attempt to halt or delay their military commission trials. The Supreme Court ruling in Boumediene 

was focused on challenges to the lawfulness of detention, not on 

military commission procedures as provided in the Military Commissions Act. 

Further, the Court looked favorably on the adversarial proceedings of prior military commissions. Although a federal district 

court judge recently rejected the effort of one detainee to block his 

military commission trial, another detainee already has filed a 

court challenge to stop his military commission from moving forward, and others almost certainly will follow. As the Attorney General explained, Americans charged with crimes in our courts must 

wait until after their trials and appeals are finished before they 

can seek habeas relief. So should alien enemy combatants. 

Finally, the Supreme Court, while providing access for detainees 

to the federal district courts for habeas proceedings, let stand the 

alternative route to the Court of Appeals for the District of Columbia Circuit Court under the Detainee Treatment Act. Detainees 

now have two separate and redundant legal channels through 

which they can challenge the legality of their detention, one under 

the Detainee Treatment Act and the other under the Constitution. 

This dual-track challenge to detention only serves to strain the re-
4 

sources of the Department further, providing detainees greater opportunities to challenge their detention than those that are available to U.S. citizens imprisoned in the United States. 

These are but a few of the concerns we have about Guantanamo 

detainee habeas proceedings and their consequences for the Department. We recognize that there are opposing considerations and 

that writing the rules governing these habeas proceedings will require a difficult balancing of interests. The Department acknowledges and respects the judgment and expertise of the federal 

courts. Nevertheless, Congress is best suited to conduct this balancing and to write the rules for habeas proceedings for detainees 

at Guantanamo Bay. 

The federal district courts do not have the institutional competency that Congress has to address these questions effectively 

and efficiently, appropriately taking into account national security 

concerns and the potential impact on ongoing military operations. 

Further, judges might impose conflicting rules, putting the Department in an untenable position at least until those differences can 

be resolved in higher courts after considerable delay and uncertainty while the war on terror continues. Although the D.C. District Court is attempting to coordinate the cases to some degree, 

many substantive issues likely will be determined by multiple 

judges in individual cases. 

Finally, unlike Congress, federal judges cannot consider and refine the entire statutory framework of Guantanamo detainee legal 

process. By providing rules for habeas proceedings, Congress can 

ensure that habeas proceedings do not delay trials by military commission and justice for the victims of the September 11th, 2001, attacks. Congress can ensure that the government does not waste resources litigating and relitigating the very same issues in the more 

than 250 pending habeas petitions and in the more than 190 cases 

in the United States Court of Appeals for the District of Columbia 

Circuit under the Detainee Treatment Act. Legislation, not litigation, is the best vehicle for writing these rules. 

The Department of Defense fully supports the six specific principles that the Attorney General suggested should guide the legislation of rules for habeas proceedings for detainees at Guantanamo 

Bay, Cuba, as he articulated in his recent speech. 

First, Congress should make clear that federal courts may not 

order the government to bring, admit, or release those detained at 

Guantanamo Bay into the United States. 

Second, Congress should ensure our national security secrets are 

protected and that terrorists do not use these proceedings as a 

means to discover what we know about them and how we acquired 

that information. 

Third, Congress should make clear that habeas proceedings 

should not delay the military commission trials of detainees 

charged with war crimes. 

Fourth, Congress should explicitly reaffirm that the United 

States remains engaged in an armed conflict with al Qaeda, the 

Taliban, and associated organizations and that the United States 

may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations. 
5 

Fifth, Congress should establish sensible procedures adapted to 

the realities of national security. To eliminate duplicative efforts 

and inconsistent rulings, one district court should have exclusive 

jurisdiction over these habeas cases, and common legal issues 

should be decided by one judge in a coordinated fashion. Military 

service members should not be required by subpoenas to leave the 

front lines to testify as witnesses in habeas hearings. Affidavits 

prepared after battlefield activities have ceased should suffice. 

Military members should not be required to create such documents 

as the arrest reports and chain of custody logs that civilian law enforcement entities use. 

Sixth, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. Congress 

should eliminate statutory judicial review under the Detainee 

Treatment Act. Congress should reaffirm its previous decision to 

eliminate other burdensome litigation not required by the Constitution, such as challenges to conditions of confinement or transfers 

out of U.S. custody. 

Along these lines, the Department of Defense requests that legislation expressly confirm that the habeas jurisdiction of the federal 

courts does not extend beyond the holding of Boumediene. We believe this proposition is reflected in the current law following 

Boumediene, which extended constitutional habeas jurisdiction 

based on the unique circumstances prevailing at Guantanamo Bay. 

It goes without saying, however, that all of the difficulties that 

we face with respect to the Guantanamo habeas petitions would 

pale in comparison to the difficulties we would encounter were federal court jurisdiction extended to those detained in or near a zone 

of active hostilities, such as in Iraq and Afghanistan. The burden 

of litigating the petitions of some 270 detainees at Guantanamo is 

considerable, but the prospect of litigating the petitions of multiple 

hundreds of alien detainees in Afghanistan and tens of thousands 

of alien detainees in Iraq would simply be crippling. The Constitution of the United States hardly contemplates such a result. 

In conclusion, although the topic of today’s hearing is the implications of the Supreme Court’s Boumediene decision for detainees 

at Guantanamo Bay, Cuba, I have begun by discussing the implications of Boumediene for the Department of Defense. In my current 

position as Acting General Counsel of the Department of Defense, 

as in my previous career as a judge advocate and Army line officer 

for more than 27 years, my foremost duty has always been to our 

troops, to ensure that they can lawfully do what is necessary to 

fight and win our Nation’s wars and to defend our Nation from attacks, whether those attacks come from adversary nations or from 

nonstate actors such as al Qaeda. 

We must remain mindful that the enemy we face today and have 

faced since the early 1990’s uses 21st century technology to perpetrate brutal, indiscriminate attacks on civilians. As the Congress 

considers legislation in response to Boumediene and weighs the 

many important interests at stake, I respectfully trust that you will 

carefully consider this as well. 

Thank you very much. 

[The prepared statement of Mr. Dell’Orto can be found in the Appendix on page 35.] 
6 

The CHAIRMAN. Mr. Katsas, Assistant Attorney General. 

STATEMENT OF GREGORY G. KATSAS 

Mr. KATSAS. Thank you, Mr. Chairman. 

The CHAIRMAN. Get as close to that as you can, would you, 

please? 

Mr. KATSAS. Can you hear me? 

Mr. Chairman, Congressman Hunter, members of the committee, 

you have my full written statement, so let me just give you a brief 

summary here. 

I appear before you today as the Assistant Attorney General for 

the Civil Division, which is responsible for handling the hundreds 

of habeas corpus and Detainee Treatment Act cases brought by 

aliens detained as enemy combatants at Guantanamo Bay, Cuba. 

In the wake of the Supreme Court’s Boumediene decision, the parties to those cases and the lower courts face unprecedented challenges. 

Boumediene makes clear that its extension of habeas corpus to 

review wartime status determinations of aliens captured and held 

outside the United States is unprecedented. In this context, there 

are no controlling federal rules or statutes. There are few relevant 

federal precedents. There is no past experience. And while 

Boumediene itself recognized that habeas proceedings in this context must take account of practical considerations and wartime exigencies, the Court gave little guidance about how to proceed with 

the enormously difficult and sensitive task of ensuring fairness to 

detainees, while at the same time not unduly impeding the prosecution of an ongoing armed conflict. 

Recently, the Attorney General invited Congress to establish 

some guidelines for the efficient, fair, and safe adjudication of these 

difficult habeas cases. Let me briefly give you a litigator’s perspective on the urgency of his six specific proposals. 

First, judges should be prohibited from ordering the release of 

detainees into the United States. In one case, we already have a 

pending motion for release not only into the United States but into 

greater Washington, DC, and even before habeas proceedings have 

run their course. Congress should act quickly to prevent judges 

from releasing potentially dangerous individuals into our midst. 

Second, habeas procedures should ensure adequate protection for 

classified information. The military must never be put to an impossible choice, as our opponents have urged, between revealing classified information to al Qaeda or releasing dangerous al Qaeda 

operatives. 

Third, habeas proceedings should not interfere with war crimes 

prosecutions before military commissions. In Boumediene, the Supreme Court cited adversarial military commission procedures with 

approval. Yet in the habeas litigation, Ramzi Bin Al Shib, who 

prosecutors believe was a principal facilitator of the September 11 

attacks, has moved to stop his war crimes trial through habeas. 

Congress should act to ensure that the trials move forward, so that 

terrorists can be brought to justice. 

Fourth, Congress should reaffirm the President’s detention authority in the ongoing armed conflict with al Qaeda. We think that 

authority is obvious, but in the recent Al-Marri case, four of nine 
7 

judges on the Fourth Circuit would have held that the military 

lacks any authority to detain any member of al Qaeda—not Khalid 

Sheikh Mohammed; not Mohammed Atta, if we had managed to 

catch him in time; not even Osama bin Laden. Congress should definitively correct that dangerous misunderstanding of military authority. 

Fifth, Congress should establish sensible procedures to govern 

the adjudication of the pending habeas cases. The question of what 

procedures are appropriate remains entirely unsettled. The judges 

have asked for briefing on basic procedural framework issues, such 

as burdens of proof, extent of discovery, and the need for evidentiary hearings. In no other context that I know of are fundamental rules like that so basically unsettled. To facilitate the 

prompt and uniform handling of these cases, Congress should 

adopt a streamlined but fair framework along the lines that the 

Supreme Court approved for habeas proceedings involving citizens 

held as enemy combatants. 

Sixth, and finally, Congress should eliminate the now unnecessary judicial review proceedings in the Detainee Treatment Act, 

which were intended as a substitute, not as an addition to habeas. 

Now that habeas review is once again available, there is no sense 

in requiring the government, the detainees, or the courts to engage 

in the duplicative adjudication of about 190 Detainee Treatment 

Act petitions on top of about 250 pending habeas petitions. 

Thank you very much. 

[The prepared statement of Mr. Katsas can be found in the Appendix on page 44.] 

The CHAIRMAN. Colonel David. 

STATEMENT OF COL. STEVEN DAVID 

Colonel DAVID. Thank you, Chairman Skelton, members of the 

House Armed Services Committee. 

The CHAIRMAN. Please get a little closer. 

Colonel DAVID. Is this a little better? 

The CHAIRMAN. Turn it on. 

Colonel DAVID. Thank you again, Chairman Skelton—— 

The CHAIRMAN. There you go. 

Colonel DAVID [continuing]. Members of the House Armed Services Committee. 

My name is Colonel Steve David, and I am grateful for the invitation and honor to testify before this committee. I have prepared 

and submitted my testimony, so what I intend to do is summarize 

that testimony and then give you all more time to ask questions. 

My testimony is given in my capacity as a private citizen who is 

currently serving as the Chief Defense Counsel in the Department 

of Defense Office of Military Commissions. My testimony does not 

represent the opinions of the Department of Defense, the Army, my 

subordinates, or any other entity. 

I have been asked to testify today about the implications of the 

Supreme Court’s decision in the Boumediene case and how they are 

likely to affect the detainees at Guantanamo Bay. 

I have served as the Chief Defense Counsel in the Office of Military Commissions since August of 2007. I have, in that time, seen 

the number of cases expand from 2 to 21. I have served the United 
8 

States Army for over 26 years in a myriad of assignments, both on 

active duty and as a member of the Reserve Component Services. 

While I am currently serving as Chief Defense Counsel, I am on 

leave from my civilian profession as an elected trial court judge in 

the state of Indiana. I have served over 13 years as a trial judge 

in Indiana. I consider myself a public servant. I have also served 

as a military judge, both in the Army Reserves and on active duty 

in the United States Army. 

I am proud to be an elected officeholder, and I am proud to wear 

the uniform of the United States military. In my office in Boone 

County, Indiana, I proudly display with great reverence the flag of 

honor with the names of the 9/11 victims. 

I do not see my role as Chief Defense Counsel or my obligations 

as an officer of the United States military or as a judge any way 

inconsistent with these obligations. I think they are entirely consistent. 

Because of the unique vantage point I have, I will generally confine what I have to say to what Boumediene means for the military 

commissions. 

To put it briefly, the most important thing that Boumediene held 

is something that I always thought was obvious. Like Thomas 

Paine in Common Sense, in America, the law is king. For, as in absolute governments, the king is the law, so in free countries, the 

law ought to be the king, and there ought to be no other. 

Boumediene held that in America, there are no law-free zones. 

This is an issue only because of the choice in 2002 to move enemy 

combatants from Afghanistan and terrorism suspects captured 

around the world to the U.S. military base at Guantanamo Bay. 

Even though the government treats the base as if it were U.S. soil 

for every other purpose, it has taken the position that it is foreign 

soil when it comes to the constitutional rights of the people we hold 

there. Boumediene puts that convenient theory to rest. 

In particular, Boumediene makes it clear that federal courts will 

ultimately have habeas review over the military commissions process, and the commission defendants have constitutional rights. The 

gist of the Court’s holding is that, unless enforcing a right would 

be impractical, it should be honored. If the suspension clause applies in Guantanamo, then so must the ex post facto clause and 

other fundamental due process rights, like the prohibition on the 

use of coerced statements and the right to confront one’s accusers. 

There is nothing impractical about ensuring that the commissions live up to basic American standards of justice. The constitutional protections promised by Boumediene are particularly important at a time when the highly politicized atmosphere surrounding 

the commission trials has begun to compromise their fairness. 

The legal adviser to the convening authority has been disqualified from one case already for overstepping the role to such an extent that it amounted to unlawful command influence. Much of this 

appeared motivated by a desire to accelerate as many of the cases 

as possible before the Presidential election. If this process cannot 

survive a Presidential election, I submit to you it cannot survive, 

and does not deserve to survive, which brings me to the question 

of whether, after Boumediene, these commissions should survive. 
9 

To reiterate my opening point, Boumediene reaffirmed what 

should be a surprise to no American, that where our government 

is sovereign, the Constitution is sovereign. This fact will lead to the 

ultimate striking down of the most constitutionally suspect of the 

military commission’s procedures now in place. The only question 

that remains is how long it will take, how many convictions must 

be reversed, and whether it will be the product of the rulings of the 

military judges presiding over the commissions or the federal 

courts on appellate or habeas review. 

Since it is now simply a question of when, the only remaining 

one is why we started down this road in the first place. The ultimate tragedy is the United States federal courts and military 

courts martial are more than capable of trying terrorists under traditional principles of American justice. As one of my favorite country music singers, Toby Keith, explains in one of his songs, ‘‘There 

ain’t no right way to do the wrong thing.’’ It would have been better had we done the right thing from the beginning, but it is not 

too late to change direction and do it now. I advocate that we utilize the federal criminal court system, with the safeguards in place, 

or the military justice system under the Uniform Code of Military 

Justice. 

Thank you for the opportunity to address your group. Again, I 

have submitted my testimony in written format and would be 

happy to answer any questions. 

The CHAIRMAN. Thank you very much. 

[The prepared statement of Colonel David can be found in the 

Appendix on page 58.] 

The CHAIRMAN. We have a series of six votes—one 15-minute 

vote, and the others are 5 minutes. So it will probably be about a 

40-minute break. And I hope that doesn’t disturb your afternoon 

too much. But I think we might be wise just to go ahead—this is 

a good place to break—and come back as soon as we can. We will 

resume the questioning. 

We thank you again for being with us. We look forward to the 

questions shortly. We will take a recess. 

[Recess.] 

The CHAIRMAN. Our hearing will come to order. 

We apologize to the witnesses, and we thank you for your patience. We had a series of votes, plus one unexpected one that took 

a considerable amount of time. So we will proceed, and the gentleman from New York is with us. We will be able to forge right 

ahead. 

Let me ask, Mr. Dell’Orto, yesterday, Colonel Davis testified, and 

in his testimony he testified to the undue political influence that 

permeates the military commission process. Much of Colonel Davis’ 

complaint deals with the overly intrusive supervision of the prosecution by the current legal adviser to the convening authority, an 

issue which Judge Allred in the Hamdan military commission case 

recently addressed. 

In the May 9, 2008, order Judge Allred, a captain in the United 

States Navy, found that the actions of the current legal adviser, 

General Thomas Hartman, reflected too close an involvement in 

the prosecution of commission cases and suggested an improper influence on the chief prosecutor’s discretion. As a result, Judge 
10 

Allred ordered the disqualification of the legal adviser from further 

participation in the Hamdan case. I understand that the legal adviser has been removed from the Hamdan case. My first question 

is: Is that true? 

Mr. DELL’ORTO. Mr. Chairman, consistent with the judge’s order 

in that case, there is a legal adviser who has been appointed to 

continue the—— 

The CHAIRMAN. He has been removed? 

Mr. DELL’ORTO. There is a different one who has been appointed; 

yes, sir. 

The CHAIRMAN. Fine. Thank you. And someone has been named 

in his place? 

Mr. DELL’ORTO. Yes, sir, for that particular case. 

The CHAIRMAN. Okay. What is being done to eliminate undue 

command influence in all these military commission cases, Mr. 

Dell’Orto? 

Mr. DELL’ORTO. Mr. Chairman, I take issue with Colonel Davis’ 

remarks in that regard; and I would cite to the committee the report that has been posted on our Web site, the one that was done 

at the then General Counsel Jim Haynes’ direction by Brigadier 

General Tate from the United States Army; Brigadier General 

Hardy from the United States Air Force; then Captain, now retired, 

Admiral Tronberger, who looked into the allegations of Colonel 

Davis and came up with findings and recommendations that addressed those issues. And my reading of that report does not concur 

with, I think, Colonel Davis’s assessment of the situation that 

prompted him to resign from his position. 

The CHAIRMAN. Mr. Katsas, yesterday, Steve Oleskey suggested 

in his testimony—I am sure I am quoting it right—that we should 

let this issue regarding the commissions play out in the courts before we attempt to legislate on the issue. Mr. Katyal didn’t quite 

go that far, but he thought it ought to play out for a short while, 

if I remember his testimony correctly. 

Do you have an opinion on that? Should we forge ahead, or 

should we wait until the courts have the opportunity to work more 

cases? Or where do you recommend we go? 

Mr. KATSAS. I am sorry, Mr. Chairman, is your question about 

the habeas proceedings or—— 

The CHAIRMAN. Yes, yes. Excuse me, yes. 

Mr. KATSAS. Okay. My strong recommendation to the committee 

would be to legislate standards, a procedural framework to govern 

the conduct of what are 250 unprecedented cases. We don’t know 

such fundamental questions as: What are the relevant burdens of 

proof? What is the nature of our discovery obligations? How is classified information to be protected? Is there an entitlement to live 

hearings? 

So, you have a tremendous potential for disparate rulings as district courts try to work through these issues. You have the possibility of disagreement in the district courts, which will produce 

large numbers of reversals on appeal, which will slow down the 

process, not facilitate it. In terms of Justice Department resources, 

you would force us to relitigate the same set of issues at least 3 

times, potentially 15 times, or dozens of times, depending upon the 

extent of consolidation; and you would risk the courts not striking 
11 

the optimal balance between the interests of fairness to individual 

detainees and legitimate military needs in prosecuting this war. 

And, finally, I should just note that there is a 200-year tradition 

of congressional involvement in shaping the scope of habeas corpus. 

Statutory direction goes all the way back to the first Judiciary Act. 

It would not be novel or unusual for Congress to set down standards and guidance, as it always has with respect to habeas, as the 

Supreme Court invited in Boumediene, and, indeed, as Chief Judge 

Lamberth of the district court has invited in a press release welcoming guidance from this Congress. 

The CHAIRMAN. Thank you. 

How many detainees are there currently at Guantanamo? 

Ms. HODGKINSON. There are approximately 265. 

The CHAIRMAN. Two hundred and sixty-five? 

Ms. HODGKINSON. Yes, sir. 

The CHAIRMAN. How many of that 265 have been formally 

charged? 

Ms. HODGKINSON. Twenty-one. 

The CHAIRMAN. Twenty-one? 

Ms. HODGKINSON. Yes, sir. 

The CHAIRMAN. When were those 21 detainees charged? 

Mr. DELL’ORTO. Mr. Chairman, they have been charged over a 

period of time, beginning in, I believe, February of 2007 through 

the present. First charges after the— 

Well, let me step back. We did have a number who had been 

charged prior to the Supreme Court decision in Hamdan in 2006. 

There were about, I’d say, somewhere on the order of 5 to 10, although my memory may be off there. 

In the aftermath of the Supreme Court decision in Hamdan, we 

and the Congress and the Administration put together the Military 

Commissions Act. The President signed it, and then we started the 

charging process over again for some of those detainees. So, some 

of the 21 who are now charged have been recharged post the Military Commissions Act. 

The CHAIRMAN. Will all of the 265—is that correct? Will all the 

265 be charged with one charge or another? 

Mr. DELL’ORTO. We don’t expect that to be the case, Mr. Chairman. The Chief Prosecutor and the prosecutors who work for him 

will make those decisions, as to which of the detainees will be 

charged. The convening authority will make a determination about 

which of those cases will be referred to trial unfettered by any outside influence. Those are decisions that they will make. 

We have heard estimates from the Office of the Chief Prosecutor 

that somewhere in the order of 60 to 80 detainees could be charged. 

But, again, it is their determination as to which they will charge 

and what charges will be preferred, and we will have to see how 

that plays out over the coming year. But I would expect that, since 

that number has not changed very much, that probably, on the outside, 80, maybe slightly more, could be charged or are anticipated 

being charged. 

The CHAIRMAN. So, you will have either around 200 or slightly 

fewer that you do not anticipate being charged. Is that correct? 

Mr. DELL’ORTO. I think, if I were to do the math, I think that 

is about right, Mr. Chairman. 
12 

The CHAIRMAN. And what will you do with them? 

Mr. DELL’ORTO. Well, we have a number of them who have already been cleared for either transfer to their—— 

The CHAIRMAN. How many would that be? 

Mr. DELL’ORTO. That number is about—I think Ms. Hodgkinson 

has that number. 

The CHAIRMAN. How many is that? 

Ms. HODGKINSON. Yes, sir, there is approximately 60 individuals 

at Guantanamo Bay who have already been approved for transfer 

or release either back to their home country or, in the instances 

where their home country does not want them or they can’t be sent 

there out of humane treatment concerns or security concerns, then 

we are seeking a third country. 

The CHAIRMAN. So, 60 or so will be released one way or the 

other. Is that correct? 

Ms. HODGKINSON. Our goal is to transfer or release about 60 of 

them; yes, sir. 

The CHAIRMAN. Then you still have—— 

Ms. HODGKINSON. But we do continue, sir, to have administrative—— 

The CHAIRMAN [continuing]. 140, 150 that will still be there. Do 

you anticipate charging them with anything? 

Ms. HODGKINSON. Well, I would note that we continue to have 

the annual administrative review boards, which have been very 

successful in approving individuals for transfer or release. To date, 

more than 500 people have gone home under this process and 

through our diplomatic negotiations. So, those processes will continue at the rate that we have been doing so. 

Over the past year, we sent more than a hundred people home 

under these very procedures, this careful process and these deliberate negotiations with other countries; and we intend to continue 

to do that for the remaining population that does not at this time 

intend to be prosecuted. 

The CHAIRMAN. So, you will have approximately 140, thereabouts, that will not be charged and are there permanently. Is that 

correct? 

Mr. DELL’ORTO. That number, give or take a few, will be a difficult number to come to a resolution through either the military 

commission process or the release process, although, as Ms. 

Hodgkinson indicates, we will continue to try to find ways to either 

transfer them—likely they would have to be transfers, because my 

understanding is the threat level for those is so high that they 

could not be outright released. But you are right. That is a core 

number, thereabouts, that will be neither charged nor—at least not 

in the short term—transferred or released. 

The CHAIRMAN. Kind of like the man aboard a ship that couldn’t 

get off the ship because he didn’t have a country. Is that basically 

it? They are stuck there? 

Mr. DELL’ORTO. Until the end of hostilities. 

Again, our basis for holding all of these folks from the outset has 

been that they are enemy combatants during an armed conflict, 

much as we have faced in other prior wars. Obviously, this one has 

gone on longer—— 

The CHAIRMAN. Are they considered prisoners of war? 
13 

Mr. DELL’ORTO. They are not technically—they are not treated 

as prisoners of war under the Third Geneva Convention. They are 

considered unlawful enemy combatants who are detained under the 

laws of war. 

The CHAIRMAN. Mr. Hunter. 

Mr. HUNTER. Thank you, Mr. Chairman. And I know I join with 

you in apologizing to our witnesses for this bad timing and this 

long delay here, and I apologize for getting back a little late here. 

Let me just ask you a few preliminary questions about Guantanamo, because I think, to the public, Guantanamo is a place that 

has been excoriated in the press as a place that people think mistreatment occurs. So my first question is, in your estimation—and 

I would ask this of all the panelists—are the prisoners, detainees 

being treated well at Guantanamo? And do you have any objections, or do you see any problems with their treatment? 

I just go left to right here. Yes, ma’am. 

Ms. HODGKINSON. Yes, I will begin by saying, sir, that we believe 

that the detainees are being very well treated at Guantanamo Bay. 

We have taken extensive measures and efforts to ensure that they 

have the highest standards of care that we can provide, both 

through medical care and treatment, which has a higher patientto-doctor ratio than any other facility that we are aware of. We try 

to ensure that they have regular exercise, and all detainees have 

recreation opportunities, including sports. They have cultural activities. They have activities that comport with their religious beliefs. And it is our full belief that they have the highest standards 

of care that we can provide. 

Mr. HUNTER. Okay. Anybody disagree with that, that they are 

well treated? 

Mr. DELL’ORTO. No, sir. And I have been down there a number 

of visits. 

Mr. HUNTER. So they are well treated. So there is no—— 

Colonel DAVID. May I comment, sir? 

Mr. HUNTER. Yes, go right ahead. Speak up. Bring that microphone close to you when you are talking. Everybody seems to be 

real worried about that. 

Colonel DAVID. I have been in the camps. This is Colonel David. 

I have been in the camps. I have met with different detainees. As 

a Legal Support Office (LSO) commander, I sent my attorneys to 

work for Joint Task Force (JTF) Gitmo Staff Judge Advocate’s (SJ) 

office. In fact, several years ago I served as the interim SJ for a 

short period of time with Joint Task Force Guantanamo. 

I can say that, with very few exceptions, the men and women 

who are members of the guard force are members of the medical 

staff, have provided excellent treatment to the detainees. However, 

there have been circumstances, there have been occasions when detainees have been mistreated. That has happened. 

It has not happened regularly, and I am not talking about the 

issue of whether or not—certain types of interrogation methods or 

torture or not. I am talking about mistreatment. That has happened. But it has happened on occasion, not regularly. 

The vast majority of the people down there are doing tremendous 

jobs under very difficult circumstances. But I just wanted to clarify 

the record, from my perspective, that it is not a 100 percent true 
14 

statement in my opinion that they are treated well and have been 

treated well all the time. 

Mr. HUNTER. Well, I asked—the question was: Are they being 

treated well now? What is your opinion? Do you see deficiencies? 

Colonel DAVID. I think there have been occasions, not recently, 

that they have not been treated as we would like them to be treated, I believe. 

Mr. HUNTER. Okay. How long ago? 

Colonel DAVID. I think the most recent incident that I am aware 

of is probably within the last 60 days, sir. 

Mr. HUNTER. Okay. What happened? 

Colonel DAVID. I am not sure how much I can talk about that in 

this forum. 

Mr. HUNTER. Well, you got us there. You tell us you saw something bad, but you can’t tell us what it was. 

Colonel DAVID. No, sir, I did not see anything bad. It is information provided to me which suggests that that incident occurred, and 

we brought it to the attention of—— 

Mr. HUNTER. Okay. So, if an incident occurs—we assume people 

aren’t perfect, and you are not going to have a prison without having some incident at some point—is disciplinary action taken? 

Colonel DAVID. Sometimes that is a little hard to ascertain exactly what happens as an end result. We don’t get a full briefing 

or after action as to exactly what happened. Sometimes that information is a little incomplete. 

Mr. HUNTER. How about finding out for us and letting us know? 

Colonel DAVID. Certainly. 

[The information referred to was not available at the time of 

printing.] 

Mr. HUNTER. You are a little vague on it. So, find out the specific 

facts—— 

Colonel DAVID. I am a little vague because I don’t have the specifics; yes, sir. 

Mr. HUNTER. Well, bring it in and tell it to us. 

Now, let me ask you a question about that. My understanding is 

there has never been a murder at Guantanamo. Is that right? A 

murder. 

Colonel DAVID. That is correct. 

Mr. HUNTER. Okay. Is there any other prison in the world, major 

prison, where there has never been a murder besides Guantanamo? 

Colonel DAVID. If you are asking me, sir, I would assume there 

is not, although I don’t know. 

Mr. HUNTER. Any of you other folks know of any other prison in 

the world where there has never been a murder except Guantanamo, major prison? I don’t think there is one. I think it has got— 

in terms of having a capital crime committed in the prison, I think 

it is the only one in the world where there has never been a murder. 

I have heard lots of my colleagues criticize Guantanamo; and I 

have looked at the records of murders, assaults, and other problems in their particular districts in their state and local prisons; 

and Guantanamo’s record looks pretty sterling compared to it. But 

I wanted to bring this out, because I think this is the framework 
15 

under which we are undertaking this hearing, is that somehow 

Guantanamo has a stigma. 

Is there a practice that we undertake right now that any of you 

think is—because I was there, and I saw them. I saw us. We read 

the Koran to them over the loudspeaker system I think—what— 

five times a day? We provide a taxpayer-paid-for Koran, prayer 

beads, rugs. I looked at their medical records. They had averaged 

about a five-pound per person weight gain over the year. Is there 

any particular procedure that we undertake that you think is an 

oppressive procedure that we should change, an official procedure? 

Anybody have a suggestion? 

Mr. DELL’ORTO. I have none, Mr. Chairman—or Congressman. 

Mr. HUNTER. Then here is my question for you. Outside of geography, that is, the fact that Guantanamo is located where it is, and 

it is considered to be an extension of American authority because 

of the geography, is there a good reason to close Guantanamo? Assuming that we are continuing to have this war against terrorists 

and that we incarcerate people like Khalid Sheik Mohammed, who 

does say that he planned the attack that killed thousands of men, 

women, and children, and we have to put him somewhere, and nobody wants him in their congressional district, is there a reason, 

a compelling reason, for us to close Guantanamo? 

Ms. HODGKINSON. Well, the Secretary and the President have 

consistently stated that we are trying to move toward the day 

when we can close the facility and are trying to take those efforts 

that we can to do so, in light of some of the international criticism 

and other concerns that have been raised over the detention facility. 

Mr. HUNTER. We know what they have said, but my question to 

you is: Is there a compelling reason outside of the geography—because the Court has now attached certain rights to people who are 

incarcerated in Guantanamo—and most important of which, obviously, is the right to habeas—is there a compelling reason, outside 

of the geography, to close Guantanamo? If we have good people, as 

everybody concurs we have, incarcerating these folks—we have 

good care, good treatment, good food, good health care—is there a 

compelling reason to close Guantanamo? 

Ms. HODGKINSON. The Department of Defense would certainly 

not be in a position to provide better treatment in another location 

than the treatment that it provides at Guantanamo Bay. 

Colonel DAVID. Just for the record, sir—I don’t mean to interrupt 

you, but I do believe it would be appropriate to close Guantanamo 

Bay. I don’t want to not say that. I don’t want to interrupt you. 

Mr. HUNTER. That’s why I am asking the questions, so you can 

get your two cents worth in. Why do you think we should close it? 

Colonel DAVID. I think, first and foremost, because it is a blight 

on our legal integrity. And the fact that a detainee at Guantanamo 

Bay is being fed appropriately, that is wonderful. That is who we 

are. We are Americans. We are going to take care of people. 

But the fact that they do not have the right to counsel until they 

are charged, the fact that only recently the Supreme Court extended some constitutional rights to the detainees at Guantanamo 

Bay—I think one can begin to build—and certainly build a case bit 

by bit by bit—things that have occurred that justifies that, if we 
16 

are going to charge someone with a crime that faces a life sentence 

or death or long time in prison, we can do better than detaining 

them at Guantanamo Bay, if for no other reason than to make 

them more accessible to the court system, more accessible to the 

men and women that need to defend them. 

I think the issue may be where we put and how we house the 

individuals that we never intend to charge and, politically, we may 

never intend to release. But my function as Chief Defense Counsel 

is to defend zealously those people that have been charged, and I 

don’t believe Guantanamo Bay is an appropriate place for them to 

be, and I don’t believe that is the best place. And I believe we can 

do better, sir. 

Mr. HUNTER. Okay. So my question to you is—you said they are 

not being maltreated at Guantanamo Bay, but your complaint is 

you think the system is mistreating them. We are not treating 

them. We are not giving them all the rights that you feel they 

should be given. But that is not something that is driven by geography or where you put them. You could apply the full rights of the 

Constitution to people at Guantanamo Bay if the country decides 

to do that, right? In the proceedings for people—that isn’t something that is derived from the location. That is something that is 

derived from our justice system. Is that not true? 

Colonel DAVID. It is certainly true from the standpoint of geography. But, again, it is difficult, if not impossible, to apply our laws 

at this time to the facility, to the operation of the facility, to the 

due process for those individuals. 

Mr. HUNTER. Okay. That is something that is hard to understand 

here. Why can’t you apply the law and any mechanism that is 

passed by Congress, signed by the President, with respect to either 

the Detainee Treatment Act or this military justice system or the 

so-called Terrorist Tribunal Act that we have now put into law? 

That is not specific to a particular piece of geography. What is the 

problem here, Colonel? I mean, are you saying that defense counsel 

don’t have a place to stay when they come to Guantanamo, that 

they don’t have access to counsel? 

Colonel DAVID. That has been problematic in the past. I mean, 

unfortunately, I wasn’t consulted in the operation. I am not in 

charge of that. 

Mr. HUNTER. Let me ask the other folks. Do you see a problem 

with defense counsel being allowed access to Guantanamo or having enough quarters or transportation or—— 

Mr. DELL’ORTO. We have made extraordinary efforts since the 

charging of these individuals in 2007 to provide support for all participants in the trial process at Guantanamo. We have built a 

brand new courtroom. We have built—put together temporary 

quarters for all participants, so that we can provide everyone their 

opportunity. 

Mr. HUNTER. Okay. So, let me do this. Colonel, why don’t you get 

us a defense counsel to contact the committee who says that he 

tried to travel to Guantanamo or he traveled to Guantanamo and 

could not find adequate quarters, was not allowed to have a place 

from which he could operate to defend his particular client. You get 

us that information. If that is your claim—— 
17 

Colonel DAVID. My claim is not as it relates to accommodations. 

We have accommodations. My claim is as it relates to getting to 

and from. My claim as it relates to most recently is taking down 

my new counsel for an orientation—expected orientation—of Guantanamo Bay, since they have the appropriate security clearances, 

and I wanted them to have an opportunity, as the prosecution, to 

have a briefing, have an orientation, unclassified briefing; only to 

have that planned and the day before cancelled, because, I was 

told, it was not appropriate for defense counsel to have that kind 

of orientation. 

But I will certainly get you details, sir. 

Mr. HUNTER. Okay. But they have a place to stay. 

Colonel DAVID. Absolutely. 

Mr. HUNTER. But you didn’t get an orientation you wanted to 

get. 

Colonel DAVID. They do have a place to stay, yes, sir. 

Mr. HUNTER. Okay. Mr. Dell’Orto, you got a comment on this orientation? 

Mr. DELL’ORTO. Sir, I am aware of that particular request. I do 

know that the response that went back to Colonel David was, if you 

put it in writing and provide adequate justification, so that a decision can be made based on more than just an assertion that it was 

going to be an orientation, that that request would be considered. 

Mr. HUNTER. You know, we put this law together, and the reason 

I am taking some time—and I appreciate the chairman’s patience— 

this is a very serious matter and has a lot of depth. We put forth 

and examined tribunals that have been held in the past, from Nuremberg, Rwanda—and the House and Senate worked on this, 

Democrats and Republican counsel and non-counsel, and the Members. And we put together a group of rights that we afford the detainees under the Military Commissions Act: the right to counsel, 

the presumption of innocence, proof beyond a reasonable doubt, the 

opportunity to obtain witnesses and other evidence, the right to 

discovery, exculpatory evidence provided to defense counsel. Statements obtained through torture are excluded. Classified evidence 

must be declassified, redacted, or summarized to the maximum extent possible. 

And we had a lot of problems working this, Democrats and Republicans, Senate and the House, because you had the problem of 

having classified information that the accused had a right to confront, and yet you couldn’t give classified information out. We finally worked through it to have it, to the maximum extent, redacted and summarized, so that you could have a fair trial, and yet 

you could protect classified information. 

Statements allegedly obtained through coercion are only admissible if the military judge rules that the statement is reliable and 

probative. A certified judge will preside over all proceedings of the 

individual commissions. The U.S. Government must provide defense counsel, including counsel with the necessary clearances to 

review classified information on the accused terrorist’s behalf. That 

means you don’t keep information away on the basis that he 

doesn’t have counsel. And in capital cases, the military commissions, 12 panelists, must unanimously agree on the verdict, and the 

President has the final review. 
18 

Panel votes are secret ballots, which ensures that panelists are 

allowed to vote their conscience. We did that because we didn’t 

want to have a subordinate officer feeling that he had to follow his 

superior’s vote in a particular vote against a detainee. So we provided for a secret ballot. Right to appeal to a new court of military 

commissions review and the court of appeals for the District of Columbia and the right against double jeopardy. 

Now, I read those to counsel for some of the defendants yesterday, and I asked them if there were any additional rights that they 

would give to the defendants, any specific rights that they think 

that we missed. Not one of them came up with one. They talked 

around it. They talked about they thought they had the basic 

rights to be afforded full constitutional rights as U.S. citizens, but 

nobody came up with, ‘‘one they thought you missed one here.’’ 

Colonel, beyond those are rights, are there additional rights that 

you think that the defendants should have? 

Colonel DAVID. I think it would be helpful if the right to counsel 

arose prior to three or four or five or six years later being charged 

and prior to interrogations of any kind, however coercive, or whether they cross into torture. 

I also think it would be helpful if some of those rights were 

played out under the commission’s process more openly and transparently than they have on occasion—for example, the right to discovery of evidence, when that discovery is provided to you, either 

in trial or on the eve of trial—hundreds and hundreds and hundreds of pages—it is difficult to, quite frankly, utilize that right effectively and have that right mean anything without causing prejudice to the accused. 

Off the top of my head, I can’t think of any other rights, so I 

probably would be in the same boat as the men and women yesterday. I, certainly, if I have an opportunity and could supplement my 

testimony, I will do that. 

Mr. HUNTER. Certainly. 

Colonel DAVID. My only point on those rights, sir, is that there 

is a difference in theory and in practice, and I am concerned that 

what looks good at 30,000 feet, when you are on the ground has 

been tremendously problematic. 

Mr. HUNTER. Thank you, Colonel. Let me tell you, courts across 

the land make mistakes all the time. Lots of plaintiff’s lawyers, including myself, have complained that we didn’t get timely discovery. And you have a right—when you have discovery, you have 

a right to timely discovery. Statements obtained by torture are excluded under the law. So, we pass a law, and if it is not followed, 

of course, that is a reversible error in a case, and you get a reversal. So, carrying out the law is an important thing. If you have any 

particular incidents of not getting timely discovery, I would like 

you to get those to the committee. And if you have any further, on 

reflection, any further ideas on how to make this system more fair 

and a better forum, please get those to us I think we’d appreciate 

that. 

Thank you, Mr. Chairman, for letting me take some time. The 

last thing is this: If you have been given the right to habeas, and 

I have never had a habeas case, but that is basically you are being 

held unlawfully; the heart of that case, for practical purposes, if 
19 

you have been picked up on a battlefield, I would think in a practical way, it is going to be, whether you are a combatant or farmer 

in the field, you had an AK–47, because you were one of the livestock protectors in a town, and you got picked up on a sweep. You 

shouldn’t be there. 

The problem is the details of that are going to be long since— 

the principles in that military sweep are going to be long since dissipated from the scene, and this is not like a crime scene, where 

you have a lot of people attend the scene of a crime, and you have 

lots of expert capability focusing. A lot of these folks are picked up 

in battlefield operations which are very transitory, very quick, and 

the idea—if you are the court trying to figure out what you review 

in the habeas, what do you think? 

I would ask maybe Mr. Dell’Orto to answer this, do you see problems with the court being able to figure out what the scope of their 

review is going to be? You get a guy that was picked up in an Afghan village four years ago, what are you going to be able to do 

to ascertain the merit of his habeas appeal? 

Mr. DELL’ORTO. It will be a difficult process. It will be a question 

of I would assume the detainee presenting, at some point, his view 

of why he should not be held, countered by the government’s information, which will be largely from battlefield reports—reports filed 

by those who captured him, who brought him into their custody, 

matching up intelligence reports that would come from a variety of 

sources, many of which are going to be very sensitive and highly 

classified. 

They will be the means by which we obtain that information. 

They will be the sources and methods. In many instances, it will 

be information coming from foreign governments that want that information protected. And so, while—in the system that we have 

now, under the Combatant Status Review Tribunal (CSRT) process 

that we have now, many of those things will be considered by military officers who have some knowledge of what this is all about 

and, certainly, can assess the intelligence value of the information 

that has been brought forward. 

Judges may not be as able to pour through that and make the 

assessments that they need to make on that sort of information. 

And then, if we start getting into what the detainee needs to be 

provided to allow him to rebut that information, it will be a very, 

very difficult process of trying to take that classified information 

and develop an unclassified summary that the detainee can be 

shown that will satisfy the judge that the detainee has had enough 

information to permit him to respond. It will be very, very difficult, 

and it is one of the difficulties associated with this type of warfare. 

Mr. HUNTER. Thank you. I know that the chairman is an expert 

in this area and has tried a lot of cases and has questions in this 

area too. It looks to me that the practical aspect of laying out a 

template for what the scope of the review is going to be and whether our guys are going to be able to, the judge is going to be able 

to really accomplish a meaningful habeas review, is I think questionable; but, thank you. 

Thank you, Mr. Chairman, for giving me some time on this. 

The CHAIRMAN. You bet. 

Mr. Spratt. 
20 

Mr. SPRATT. Thank you, Mr. Chairman. 

I believe Boumediene makes it clear that the detainees at Guantanamo have the right to petition for habeas corpus. Do you believe 

that the decision also allows them the full panoply of rights that 

would come to an ordinary defendant seeking habeas corpus? Or is 

there some diminished status, some diminished bag of rights, collection of rights that they have? Is that part and parcel of the Attorney General’s request of us to write the law that we may have 

the right to diminish the associated rights that they have? 

Mr. KATSAS. No. What Boumediene says is that the detainees 

have a right to petition for habeas corpus. The Attorney General—— 

Mr. SPRATT. Let me ask you: can Congress take constitutional 

rights away? If this is a constitutional right, the right to habeas 

corpus, can we diminish it? 

Mr. KATSAS. You can’t eliminate the right to habeas corpus. You 

can certainly pass statutes that define the procedures to be used, 

the standards of proof. You have done that with respect to habeas 

corpus. 

Mr. SPRATT. Does the Department take the position that Congress has the authority to strip courts, federal courts, of the right 

to review habeas corpus petitions? 

Mr. KATSAS. The Supreme Court has struck down a strip. What 

we are now proposing is legal standards to govern the exercise of 

the detainee’s habeas corpus rights. And I should add that the Attorney General’s specific proposals are consistent with all of the 

rights recognized in Boumediene and all of the rights previously 

recognized by the Supreme Court in Hamdi. 

Mr. SPRATT. Let’s take coercive testimony, evidence obtained 

through coercive means. Is that admissible on the same basis that 

it would be admitted or excluded in non-detainee cases, in ordinary 

criminal cases? 

Mr. KATSAS. Evidence improperly seized, obtained, would be excluded. 

Mr. SPRATT. What about the right to confront those who have 

made accusations against you? 

Mr. KATSAS. Confrontation rights of the sixth amendment would 

not apply because enemy combatant proceedings are not criminal 

proceedings, and the sixth amendment, even for citizens in this 

country, applies only to criminal prosecutions. 

Mr. SPRATT. So, there is no right, then, to have witnesses who 

have made charges, accusations, against you personally, confront 

you face to face in open court? 

Mr. KATSAS. If that means the only way to support a detention 

is for service members to be summoned back from the battlefield 

to give eyewitness testimony, as opposed to a hearsay affidavit, we 

think the answer is and should be ‘‘no,’’ as the Supreme Court recognized in the Hamdi case when it specifically said that use of 

hearsay in these circumstances would be permissible. 

Mr. SPRATT. What about exculpatory evidence as a matter of fairness? Should the defendant have access to it, including detainees 

here, or is their right to exculpatory evidence somehow less than 

the right of an ordinary criminal defendant? 
21 

Mr. KATSAS. The essence of the habeas proceedings that the Supreme Court has mandated is that the detainee be able to put on 

whatever evidence he wishes. We don’t think that that entails the 

right to compel the government to search through all of its records 

worldwide for any evidence that might exist anywhere due to classification concerns, burdens on the military, and the lack of any 

precedent for applying that kind of criminal standard in these very 

different enemy combatant proceedings. 

Mr. SPRATT. So, what we are saying is that although the court 

has ruled that the detainees have a right to habeas corpus, once 

they exercise that right and try to show that they are not guilty 

of anything that would justify their being further held, their procedural rights are less than the procedural rights of an ordinary 

criminal defendant in the federal courts? 

Mr. KATSAS. Absolutely Mr. Spratt. The Supreme Court in 

Boumediene said explicitly that the extent of procedural protections 

in habeas corpus proceedings need not track the extent of protections in criminal prosecutions in domestic Article three courts. 

They were quite explicit on that point. 

Mr. SPRATT. Boumediene holds that? 

Mr. KATSAS. Boumediene does not definitively answer the question of how much procedure the detainees are entitled to, but it 

does say that the procedure need not match the amount of procedure for a domestic criminal trial. 

Mr. SPRATT. Colonel David, how do you read the decision? 

Colonel DAVID. Excuse me, I believe the decision is clear that neither citizenship nor sovereignty status is dispositive. Instead, the 

Court quoted whether a constitutional provision has 

extraterritorial effect depends on the particular circumstances and 

practical necessities and the possible alternatives. I think they 

were not satisfied with the alternatives. They made it clear that 

habeas will extend, and I think there is certainly a precedent there 

that other constitutional rights will apply to the detainees charged 

before the commissions in Guantanamo Bay. 

As I stated earlier, and if necessary, those will be litigated one 

by one. But I certainly believe it is a broader right reading. 

Mr. SPRATT. Mr. Katsas, the Attorney General sent us a letter 

on July 21 with six key points that he would like to see in legislation that the Congress writes. The first is that the law should prohibit federal courts from ordering the government to bring enemy 

combatants into the United States. What is the purpose of that? 

Mr. KATSAS. The purpose of that is safeguarding the security of 

this country. It seems unwise to allow potentially dangerous people 

into the country to roam free in our midst. 

Mr. SPRATT. They would be in the custody of the military, would 

they not? 

Mr. KATSAS. They may or may not be in custody. I would think 

that other things being equal, custody at a secure foreign military 

base on a remote island is safer than custody in New York City or 

Washington, D.C. 

Mr. SPRATT. Thank you very much. 

The CHAIRMAN. Mr. McHugh from New York. 

Mr. MCHUGH. Thank you, Mr. Chairman. 
22 

Gentlemen, I want to pursue Mr. Spratt’s last point a little bit. 

I would preface it by saying that I think the very interesting discussion between Mr. Katsas and Colonel David as to what this 

court decision conveys with respect to constitutional rights and 

what the provision of habeas means here, given the absence of 

guidance by the court, which is also at the crux of all four of the 

dissenters in this case, show the peril in which this case has left 

us, because we truly don’t know what this ruling means in terms 

of conveyed rights. Colonel, I respect your opinion, and you may 

well be right that there is a clear indication that these combatants 

being held are entitled, under our Constitution, to additional 

rights; and while I would say to Mr. Katsas I would probably agree 

with your analysis and your arguments as to what you believe, I 

suspect before Boumediene came down, you believed there was no 

right to habeas either, so we don’t know. 

Let’s talk about the 60, roughly, individuals at Guantanamo who 

we expect, at some point, will have no status there. They have been 

processed and ready for release, but they have nowhere to go, either because, for our purposes we would not release them to certain countries or, for other reasons, other countries would not take 

them. Is there not at least a question of uncertainty, at some point, 

in a process of habeas, a judge will be looking at this as a result 

of the Boumediene decision and will say, ‘‘You must release these 

people into the United States’’? Is that not a possibility? 

Mr. KATSAS. Absolutely. It is a possibility. We have one pending 

motion in which a detainee has requested precisely that. 

Mr. MCHUGH. Would that now take us back to Attorney General 

Mukasey’s first point that he is concerned about that possibility? 

Those people could—and I assume in that circumstance would not 

be under custody—they would be free to roam; true? 

Mr. KATSAS. The request is for release into the country. 

Mr. MCHUGH. Colonel, would you disagree with that analysis, 

that potential? 

Colonel DAVID. I think, certainly, the potential is there. 

Mr. MCHUGH. Thank you. Colonel, I tried to follow very carefully 

the discussion with the ranking member with respect to the facility 

at Guantanamo. And quite frankly, I tended to agree with the 

ranking member that the concerns you have weren’t necessarily 

embedded into a facility per se. They were largely procedural, although I recognize there is a geography issue in transport and such 

that you have. But I made an assumption as to what I believe your 

position was, and I don’t think making an assumption on your position on my part is fair, so I want to ask you. 

My assumption is, listening to what you said, you would believe 

that the only fair location in which to operate this kind of system 

and have this kind of facility would be in the continental United 

States (CONUS), in the United States. Am I making a correct assumption? 

Colonel DAVID. Yes, sir. With respect to those detainees being 

charged, my opinion would be that they could be transferred to and 

tried within the federal criminal justice system or under the Uniform Code of Military Justice (UCMJ) or even under some quasispecial court. 

Mr. MCHUGH. Here in the United States? 
23 

Colonel DAVID. Yes, sir. 

Mr. MCHUGH. Thank you. I am glad we got that on the record. 

I didn’t feel it was fair to assume that. 

The other assumption, but I want to give you a chance to more 

clearly define—I also heard you say, but before that—I was assuming your belief is that Hamdi suggests very clearly that the detainees at Guantanamo have a wider range and, as you just said, will 

be argued and ultimately held that they have a wider range of constitutional rights than just this narrowly defined habeas; true? 

Colonel DAVID. Yes, sir. I think that issue is obviously not answered. 

Mr. MCHUGH. I am asking your belief? 

Colonel DAVID. Yes, I do believe it. 

Mr. MCHUGH. Thank you. 

Mr. Dell’Orto, you said in the beginning in your statement—you 

read it here—that the dual-track process provided under this ruling, as well as that provided under the Detainee Act, provides to 

those detainees more appellate rights than a United States citizen? 

Mr. DELL’ORTO. Yes, sir. 

Mr. MCHUGH. I want to be clear for the record. I would argue 

it also affords more rights of appeal than are afforded to the people 

who are guarding them, the men and women who wear the uniform 

of this country. Would you agree with that? 

Mr. DELL’ORTO. Yes, sir. And if I could append a point on your 

previous question, in point of fact, if you take Colonel David’s argument to its logical conclusion, he would be arguing that by virtue 

of this decision, a detainee at Guantanamo has more rights under 

the Constitution than our service men and women have under the 

Uniform Code of Military Justice, because there are certain constitutional rights that are constrained under the Uniform Code of 

Military Justice. 

Mr. MCHUGH. In fairness to the Colonel, I didn’t hear him say 

all constitutional rights are conveyed. But I appreciate your comment. 

Mr. Chairman, just one more question. 

Thank you, sir. 

I would say to Mr. Katsas: I think your analysis of the conveyance of the right to confront—and by the way, for the record I 

dropped out of law school after 10 days, so jump in here and correct 

me at any time—but from my limited knowledge, that the right of 

confrontation under the sixth amendment is normally considered a 

civil finding and would not be applied here, you would argue. You 

and I would agree in that argument. But would I be wrong to be 

concerned that, thereto, there could be a court determination in the 

future, as they fill in these considerable blanks left by this decision, 

that that right of confrontation should be extended to detainees? 

Does that concern you? 

Mr. KATSAS. In the habeas proceedings or in the prosecutions? 

Mr. MCHUGH. Either. 

Mr. KATSAS. In the prosecutions, that is an open question, but 

the Military Commissions Act already provides confrontation rights 

by statute. 

Mr. MCHUGH. If it were provided under a sixth amendment 

right, a right that we would argue is not yet extended but could 
24 

be as the blanks were filled in, it is my understanding that a true 

confrontation under the traditional aspects would be held here in 

the United States in federal court over on Constitution Avenue. Is 

that true? 

Mr. KATSAS. If the proceedings were conducted here—— 

Mr. MCHUGH. Is that not standard procedure in a sixth amendment confrontation before federal court? 

Mr. KATSAS. The habeas proceedings would be conducted here. If 

confrontation rights were extended, then the detainees would be 

here in Washington, D.C. at Third and Constitution, Northwest. 

Mr. MCHUGH. Mr. Chairman, in closing, I would say, look, Colonel David is doing a great job in representing the interests of his 

clients, and I feel certain he comes committed to his passion, and 

he probably has points that need to be carefully considered, but I 

refer in closing to the Attorney General’s comments. And without 

saying he is all right or all wrong, I think these are points that we 

have to carefully consider. In my opinion, there are far too many 

blanks here in far too many important ways, as is embedded in 

much of the dissent opinions, for those who have read it—that it 

is incumbent upon us to step in and be heard and fill in some of 

those blanks that I think cry out for definition. 

That is why this hearing is important and why I, personally, 

deeply appreciate all four of you being here. Thank you all for your 

service and patience, too. 

The CHAIRMAN. Thank you very much. Mr. Murphy. 

Mr. MURPHY. Thank you, and I agree with Mr. McHugh on his 

past statement. 

Mr. Dell’Orto, I know you are an Army officer for 27 years, and 

I appreciate the whole panel for being here. I do want to mention 

that you actually get more rights as a soldier, as you know, when 

it comes to criminal law, whether it is fifth amendment rights because you have the article 31(b) rights as compared to Miranda, 

and you get sixth amendment right to counsel in the military, as 

compared to in the civilian world, where you have to be indigent 

to get a right to counsel free of charge. You get free attorneys in 

the military. 

I know you don’t give first amendment freedom of speech rights 

and others. I know you are a Notre Dame grad. I went to King’s 

College, another Holy Cross school, but you went on to Pepperdine 

and St. John’s and Georgetown, and I don’t want to match wits 

with you or with the board. I was just a lowly constitutional law 

professor for West Point before I got this gig. 

Going to my question, Mr. Katsas, pursuant to the authority 

granted under the Authorization for the Use of Military Force 

(AUMF), do you believe that an old lady in Switzerland who sends 

a check to an orphanage in Afghanistan can be taken into custody 

as an enemy combatant if, unbeknownst to her, some of her donation is passed to al Qaeda terrorists? 

Mr. KATSAS. I don’t. And I should add that Judge Green, whom 

you were quoting, went on to say that she believed that that hypothetical does not describe any Guantanamo detainee. 

Mr. MURPHY. Then, you disagree with the statement of Deputy 

Associate Attorney General Brian Boyle, who, in federal district 

court in 2004, responded to that very question just asked you by 
25 

saying that the grandmother could be held because ‘‘someone’s intention is clearly not a factor that would disable detention.’’ 

So, I am puzzled. What is the government’s formal position to the 

outer limit on who can be detained under the AUMF? 

Mr. KATSAS. Under the AUMF, nations, organizations, or persons 

who committed the September 11 attacks or harbored those who 

did are proper objects of military force, including detention. In general, what that means at a minimum is that al Qaeda fighters and 

Taliban fighters can be detained, because al Qaeda is the organization that committed the attacks, and the Taliban is the armed force 

of the Nation that harbored al Qaeda. 

I fully agree with you to the extent your line of questioning suggests that there will be difficult questions at the outer bounds of 

who counts as al Qaeda. What happens to someone who is not actually fighting but writing checks? Is someone who occasionally 

writes a check different from someone who looks more like an 

Army paymaster? 

The existence of those hard questions at the outer margins, I 

don’t think changes the fundamental point that Taliban and al 

Qaeda fighters are subject to detention, and our fundamental concern is with the core principle, because, as I said in my opening remarks, we had four out of nine judges on the fourth circuit conclude that no member of al Qaeda could be detained, not even 

Osama bin Laden. 

Mr. MURPHY. Which is a minority? 

Mr. KATSAS. A bare minority. Four out of nine. 

Mr. MURPHY. Colonel David, do you believe that the AUMF applies to individuals who have no direct connection to al Qaeda or 

the Taliban and have not engaged in belligerent acts toward the 

United States? 

Colonel DAVID. With that general proposition, I would hope so. 

Mr. MURPHY. Thank you. 

In response to the Boumediene decision, Attorney General 

Mukasey called on Congress to pass legislation that basically codifies the Administration’s broad and, in my opinion, constitutionally 

suspect definition of who the government can detain as an enemy 

combatant pursuant to the AUMF. We are trying to find a balance 

here. Obviously, we are looking at the spectrum. One the one hand 

are the Miranda rights on the battlefield, which no one on this 

committee and 99 percent of us in America don’t agree that when 

you are fighting enemy combatants, they don’t get constitutional 

rights on the battlefield, and we don’t give them Miranda warnings, or article 31(b) warnings, as we call them in military justice. 

But on the other hand—I think most Americans say this—and 

we have hundreds of folks who have been detained in Guantanamo 

Bay for over six years now, and what is going on with them, and 

that is why we had this decision—grant them a habeas corpus. 

With all due respect to the Attorney General’s proposal, I don’t 

think it is serious or realistic, and he knows full well that this Congress will not approve legislation granting the government power 

that broad, nor, in my opinion, should it. 

As Judge Wilkinson of the Fourth Circuit Court said, who I think 

you would agree is a conservative judge—he said of the al Marri 

case, ‘‘To turn every crime that might tenuously be linked to ter-
26 

rorism into a military matter would breach this country’s most fundamental values.’’ 

I think the American people, Mr. Chairman, are tired of blatant 

partisanship from this Administration, which has been displayed 

too many times when it comes to national security issues over the 

past seven years. We are trying to find a proper balance. So, could 

the panel please give this committee a realistic idea of how future 

bipartisan legislation would define who exactly the government can 

detain, while not breaching our country’s most fundamental values? I would ask the panel to please answer that question. 

Mr. KATSAS. The Administration agrees with the quote from 

Judge Wilkinson that you just read. The Attorney General, I am 

pretty confident, would not disagree with it. I think a good start 

would be confirming the power of the military to detain members 

of al Qaeda, the Taliban and associated forces. 

Mr. MURPHY. I would agree with you. I think we can all agree 

that if it is an al Qaeda member or a Taliban member or anyone 

who harbors al Qaeda or Taliban, we want to be able to go after 

them. No one in this room is disagreeing with you. 

What we are arguing, though, is how do you find out if they are 

Taliban or al Qaeda? And how tenuous of a connection does it have 

to be? 

Mr. KATSAS. On the question of how tenuous the connection has 

to be, no doubt there are hard questions on the outer bounds of 

that. And if you were to try to specify a more precise definition of 

who is sufficiently related to al Qaeda to be subject to detention, 

we would be happy to work with you on that. 

Mr. MURPHY. With all due respect, you are a member of the Administration. We are asking for your professional opinion here as 

we are trying to craft very important legislation that is dealing 

with the very important issue dealing with national security. We 

are asking for your professional opinion. Give us a realistic idea of 

how—in the future, what kind of bipartisan legislation do we need? 

How do we move forward from here? 

Mr. KATSAS. Sorry. I think I just gave it to you. My professional 

opinion is that it would be both constitutional and prudent to confirm the military’s authority to detain al Qaeda, Taliban, and associated forces. And to come back to your other question about how 

do we determine who falls within that circle, the Supreme Court 

has spoken. The answer is through habeas corpus proceedings; and 

now the task, I hope, for the political branches working together, 

is to spell out the details of how those proceedings should be implemented. 

Mr. MURPHY. Part of the issue, and we had a very important 

hearing yesterday—and I think it was Neal Katyal who said only 

half of a single trial was completed after seven years of the existence of Guantanamo Bay. You know, there is an argument whether 

or not we should have a national security court. There are a lot of 

issues we are trying to wrap arms around. I would ask the other 

members of the panel if they would like to answer. 

And I know Sandra Hodgkinson. We served at the same time in 

Iraq together. I know you were on the civilian side. I was south of 

you. Unfortunately, I didn’t get a chance to live in the green zone, 

although that was not nice duty; don’t get me wrong. I used to 
27 

bring my legal team there to swim in the pool, because we didn’t 

have showers at the time we worked. We were a bunch of paratroopers, and we didn’t smell too well. I know you have the experience, as well, being a JAG attorney. And if you have a comment 

on my question, I would appreciate to hear it. 

Ms. HODGKINSON. One thing that I think is important to note, 

and I know we are talking a lot about Boumediene and Guantanamo, but we have captured as you know well over 100,000 people 

since the beginning of this particular war. And a very small number, through battlefield screening, ever ended up at Guantanamo 

Bay. So, while we agree it can be difficult to define who fits within 

these narrow definitions, the hope is that after different levels of 

hearings, whether they are battlefield or combatant status tribunal 

or an administrative review board, gets us to a degree of more confidence that at least we are holding the people who pose a real 

threat to us; because I want to assure everybody here in the room 

that we have no desire to hold anybody who doesn’t fit in that category or pose a threat to the United States. 

As we move forward, I think there have been a lot of issues addressed in the Attorney General’s testimony and, also, discussed 

here about practical ways to ensure that these habeas proceedings 

can proceed as quickly and efficiently as possible, to have those 

very determinations made, so that we can move forward and the 

decisions can be made by the courts. In the meantime, I can assure 

you that we are going to do everything we can to continue to transfer out those detainees that can be transferred from Guantanamo 

Bay and to continue to try to shrink the population as we look at 

the other alternatives that are out there. 

Mr. MURPHY. Anyone else? 

Mr. DELL’ORTO. Congressman, in terms of the definition, I would 

suggest that you might want to look first at section 948(a) of the 

Military Commissions Act, which, obviously, was passed by Congress in 2006 and signed by the President shortly thereafter. From 

the standpoint of jurisdictions of the military commissions, that 

gives you a definition which is very similar to what was adopted 

very early on for the purposes of the combatant status review tribunal process. And so those definitions are out there, and we think 

that they are operable definitions, and we think that they have 

served us well to date in the war on terror. 

Mr. MURPHY. Colonel David. 

Colonel DAVID. My concern right now is what happens to those 

individuals that are charged. I think we all agree, or at least I hope 

we agree, that when all is said and done, whether you are a prosecutor or defense counsel, the discussion centers on, gosh, the evidence I could have called or the witness I could have called or 

something I could have done differently and whether someone is 

found guilty or not guilty and what the sentence is—the discussion 

is about that and not, for years to come, about the process or the 

flaws in the process or the problems with the process. 

I think that is a goal we all share. The problem is how we get 

there, and the concerns we are trying to bring forth, in the litigation and in any form we can, is that the process, the commission’s 

process, has flaws. 
28 

I am concerned. I don’t want anyone murdered in prison, but I 

don’t want someone dying there of old age because they have been 

held there for an extended time without due process. I think we are 

better than that. I don’t envy your challenge. 

Mr. MURPHY. Along those lines, Colonel, yesterday we had testimony from Colonel Morris Davis from the Air Force, and he quoted 

the prosecutor from the World War II saboteur case. In 2001, right 

after the 9/11 attacks—and his name is Mr. Cutler—he said, after 

2001, that we know more about the United States on how we prosecute al Qaeda members, and that will say just as much about us 

as it will say about al Qaeda. 

Colonel DAVID. Sir, I am just a small town Indiana boy, but I 

wouldn’t want to drive a 1940’s vintage automobile, and I wouldn’t 

want to be operated on in a 1940’s vintage hospital. So, I think, as 

painful as it may be for us as a country, in the long run, giving 

the detainees 21st century legal rights is the right thing to do, so 

we can stand up in front of the world. We did it right, and we have 

no excuses, and we are not subject to ridicule and criticism, and 

our legal integrity is maintained, and we have defended the rule 

of law. I think that is what we are about. 

Mr. MURPHY. I yield back to the chairman. For those folks home 

watching, the chairman is a former county prosecutor in Missouri 

and a military historian, and I just want those people home in 

America to realize that we are not asking to give any type of Miranda rights on the battlefield. If it is al Qaeda or Taliban, we 

want to prosecute them to the fullest extent, and that is an appropriate judgment if that is the case. But at the same time, if there 

are people who are locked up in Guantanamo Bay that were there 

for wrong reasons, whether they were turned over because they got 

a bounty or whatever reason, now that they have the rights under 

habeas corpus, which I think we should have passed as a Congress—we didn’t get there, even though we have legislation and it 

hasn’t come up for a vote; but we are getting after it now, and it 

is something that I am very proud of. 

I yield back to the chairman. 

The CHAIRMAN. I thank the gentleman. 

Mr. HUNTER. Mr. Chairman, if I may. 

The CHAIRMAN. Mr. Hunter. 

Mr. HUNTER. Thank you, Mr. Chairman. 

Once again, Colonel, you talked about 21st century rights. The 

right to have counsel is a 21st century right. The right to be convicted beyond a reasonable doubt is a 21st century right. 

These 15 rights that I enumerated which so far nobody has been 

able to expand upon, including you, are 21st century rights. And 

of course, we expect the system to carry those rights out. Now, if 

you see people not carrying those rights out, we expect to know 

about that. But I don’t want to let this hearing conclude with the 

idea that somehow we are summarily convicting people without affording them their rights. We are not doing that. 

And I also know that we have given a free pass to people who 

were incarcerated in Guantanamo Bay, and they have gone back, 

picked up arms; and they have tried to kill Americans on battlefields. That is people who come from Mr. Murphy’s town and people 

who come from my town in San Diego, and the people who come 
29 

from the chairman’s towns, and we have an obligation to the people 

who fight on the battlefield to make sure that the guys that they 

have given blood, sweat, and tears to bring those people in when 

they capture them—and the idea of us having a system where tie 

goes to the runner, and we jettison those people back to the battlefield to make ourselves feel good, instead of warehousing them for 

the duration of the war, is a disservice to them. 

I appreciate the panel being here, but I also appreciate the fact 

that we did put a bill together. I think it is a good bill. I notice 

that the Colonel, who was with us yesterday, said that he thought 

that the Military Commissions Act (MCA) is a good basis for the 

prosecution of people who are accused of terrorism against the 

United States. I want to see these prosecutions continue. I think 

we all do. I think everybody here does. I want to thank the panel 

for being with us. 

Last, I think it is a real mistake for us to close Guantanamo because the rest of the world doesn’t like it. The rest of the world 

goes behind closed doors after Americans go out to the far reaches 

of the world and risk our lives trying to bring these guys to justice. 

And they breathe a sigh of relief after the Americans do it. Then 

they can hold press conferences and say that we didn’t give Khalid 

Sheikh Mohammed all of the rights that he was entitled to while 

our guys were out there risking their lives to bring him in. 

I think we have done a pretty darn good job of this so far, and 

I think it is a mistake for our political figures, including those in 

my party, to say that they are going to close Guantanamo to somehow do away with this image that has falsely built up around this 

system of justice. 

Thank you, Mr. Chairman, thanks for having the hearing today. 

The CHAIRMAN. Back to the legislative issue. 

There is a law on the books called the Classified Information 

Procedures Act. The Attorney General mentioned in his speech before the American Enterprise Institute that there should be legislation in relation to habeas corpus proceedings that are related to the 

status of detainees, that the Classified Information Procedures Act 

is inadequate. I am asking Mr. Katsas: Upon what basis does the 

Attorney General make that assertion? 

Mr. KATSAS. The Classified Information Procedures Act governs 

criminal trials, outside the wartime context, in domestic Article 3 

courts. The question before you today is appropriate procedures for 

wartime status determinations in a non-criminal context for aliens 

captured and held outside the country. 

The fundamental problem with applying the Classified Information Procedures Act in this very different context is that, ultimately, the Classified Information Procedures Act, in many cases, 

puts the government to the Hobson’s choice of either revealing classified information or letting somebody go in any case where a judge 

finds that there is no adequate substitute for classified information. 

That might be an appropriate burden to impose on the government 

in the context of criminal prosecution. We don’t think it is an appropriate burden in the context of fighting a war. 

The CHAIRMAN. Has the Classified Information Procedures Act 

been used in any of the trials thus far? Regarding terrorism, of 

course. 
30 

Mr. KATSAS. In the habeas hearings or the prosecutions? 

The CHAIRMAN. No, in the actual prosecution. 

Mr. DELL’ORTO. We have the version of the Classified Information Procedures Act that is different for military commissions that 

was passed by Congress in the Military Commissions Act. 

I don’t believe we have actually had to employ those procedures 

yet in the trial that is underway at Guantanamo at this moment. 

I could be wrong on that, because I don’t follow the day-to-day happenings in that particular court. So, I could be wrong on that, Mr. 

Chairman, but I don’t believe we have had to employ those procedures yet. 

Mr. KATSAS. And I should add it has not yet been used in the 

habeas proceedings involving detention challenges, although detainee counsel have asked for something like it. 

The CHAIRMAN. Despite that, if your Department has recommendations along this line, we would appreciate additional information on it for us, because it could pose a problem in the future. 

Mr. KATSAS. We would be happy to do that. 

The CHAIRMAN. Colonel David, you might be interested in knowing that country lawyers do think alike, and you have some country 

lawyers up here listening to your testimony today. 

Gentlemen, thank you for your patience and your testimony. It 

has been very, very helpful. I know it has been a long day for you, 

but this is a most important subject for us to be considering, and 

we will obviously be looking at your testimony in the days ahead. 

Thank you so much. 

The hearing is adjourned. 

[Whereupon, at 5:35 p.m., the committee was adjourned.] 
A P P E N D I X 

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QUESTIONS SUBMITTED BY MR. SKELTON 

The CHAIRMAN. There is a law on the books called the Classified Information Procedures Act. The attorney general mentioned in his speech before the American Enterprise Institute that there should be legislation in relation to habeas corpus proceedings that are related to the status of detainees, that the Classified Information 

Procedures Act is inadequate. Upon what basis does the attorney general make that 

assertion? 

Mr. KATSAS. When classified materials may be relevant to criminal proceedings, 

the Classified Information Procedures Act (‘‘CIPA’’), 18 U.S.C. app. III §§ 1-16, Pub. 

L. 96-456, provides procedures designed to protect the rights of the criminal defendant while minimizing the associated harm to national security. The habeas litigation 

currently ongoing in the wake of Boumediene, like all habeas litigation, is civil in 

nature, and therefore CIPA has no application to it. CIPA reflects a fundamental 

policy choice that individuals subject to criminal prosecution should be entitled, in 

some circumstances, to access classified information for their defense. That conclusion is inapplicable to aliens captured and held outside the United States as wartime enemy combatants. 

Wartime status determinations, whether performed by the military or by habeas 

courts, are fundamentally different from criminal prosecutions. The purpose of detaining enemy combatants for the duration of hostilities is not to punish, but to prevent those combatants from returning to the battle to fight against American soldiers and interests. In that context, the Government should not be put to the Hobson’s choice of either releasing Taliban or al Qaeda combatants during the ongoing 

conflict, on the one hand, or sharing with those combatants classified national security information about our intelligence sources, methods, or operations, on the other. 

Finally, to the extent that the question relates to military commission prosecutions of enemy combatants, those prosecutions are being undertaken by the Office 

of Military Commissions in the Department of Defense. Although the Department 

of Defense is best able to respond to questions regarding the military commission 

process, generally, I would like to note an important point. As iterated earlier, the 

Attorney General’s comments that are the subject of the question above related not 

to criminal trials, but to civil habeas corpus proceedings—proceedings in which 

CIPA does not apply. Similarly, CIPA does not apply in military commission prosecutions either; however, the Military Commissions Act of 2006 provides similar— 

but more extensive—protections for classified information in the commission process. 

Æ