U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

56–832 PDF 2010

S. HRG. 111–491 

THE LEGAL, MORAL, AND NATIONAL SECURITY 

CONSEQUENCES OF ‘‘PROLONGED DETENTION’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JUNE 9, 2009 

Serial No. J–111–28 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION 

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

TOM COBURN, Oklahoma 

JON KYL, Arizona 

JOHN CORNYN, Texas 

LINDSEY GRAHAM, South Carolina 

ROBERT F. SCHIFF, Democratic Chief Counsel 

BROOK BACAK, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 3 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

prepared statement .......................................................................................... 182 

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

statement .............................................................................................................. 185 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared statement . 219 

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

statement .............................................................................................................. 221 

WITNESSES 

Cleveland, Sarah H., Louis Henkin Professor of Human and Constitutional 

Rights and Faculty Co-Director, Human Rights Institute, Columbia Law 

School, New York, New York .............................................................................. 18 

Klingler, Richard, Partner, Sidley Austin LLP, Washington, D.C. ..................... 16 

Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, D.C. ... 10 

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

Washington, D.C. ................................................................................................. 5 

Massimino, Elisa, Chief Executive Officer and Executive Director, Human 

Rights First, Washington, D.C. ........................................................................... 13 

Rivkin, David B., Jr., Partner, Baker Hostetler LLP, and Co-Chairman, Center for Law and Counterterrorism Foundation for Defense of Democracies, 

Washington, D.C. ................................................................................................. 7 

QUESTIONS AND ANSWERS 

Responses of Sarah H. Cleveland to questions submitted by Senators Feingold, Coburn and Whitehouse ............................................................................. 32 

Responses of Richard Klingler to questions submitted by Senator Feingold ..... 42 

Responses of David H. Laufman to questions submitted by Senators Feingold 

and Coburn ........................................................................................................... 52 

Responses of Tom Malinowski to questions submitted by Senators Feingold, 

Coburn and Whitehouse ...................................................................................... 56 

SUBMISSIONS FOR THE RECORD 

Cleveland, Sarah H., Louis Henkin Professor of Human and Constitutional 

Rights and Faculty Co-Director, Human Rights Institute, Columbia Law 

School, New York, New York, statement ........................................................... 69 

Columbia Law Review, Matthew C. Waxman, Director, New York, New York, 

article .................................................................................................................... 118

Congressional Leaders, June 11, 2009, letter ....................................................... 171 

Fox News.com, May 21, 2009, article ..................................................................... 190 

Guantanamo Recidivism, April 7, 2009, fact sheet ............................................... 197 

Heritage Foundation, Washington, DC, memorandum ........................................ 203 

Klingler, Richard, Partner, Sidley Austin LLP, Washington, D.C., statement .. 211 

Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, D.C., 

statement .............................................................................................................. 222 

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

Washington, D.C., statement .............................................................................. 235 

Page

IV 

Massimino, Elisa, Chief Executive Officer and Executive Director, Human 

Rights First, Washington, D.C., statement ........................................................ 246 

Rivkin, David B., Jr., Partner, Baker Hostetler LLP, and Co-Chairman, Center for Law and Counterterrorism Foundation for Defense of Democracies, 

Washington, D.C., statement and attachment .................................................. 256 

Wall Street Journal, August 22, 2007, article ....................................................... 269 

(1) 

THE LEGAL, MORAL, AND NATIONAL SECURITY CONSEQUENCES OF ‘‘PROLONGED DETENTION’’ 

TUESDAY, JUNE 9, 2009 

U.S. SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10:04 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Russell D. 

Feingold, Chairman of the Subcommittee, presiding. 

Present: Senators Feingold, Cardin, and Coburn. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD The hearing will come to order. Welcome to 

this hearing of the Constitution Subcommittee entitled ‘‘The Legal, 

Moral, and National Security Consequences of ‘Prolonged Detention.’ ’’ I want to thank the witnesses for being here, and I especially want to thank my Ranking Member, Senator Coburn, who 

will be here, for his cooperation and the help of his staff in putting 

this hearing together on very short notice. 

On May 21, President Obama gave an important national security speech at the National Archives. He devoted a major portion 

of that speech to the problem of the prison camp at Guantanamo 

Bay, Cuba. He reiterated that he intends to close that facility, and 

I fully support that decision. The President, in my view, was absolutely correct when he said the following: 

‘‘Rather than keeping us safer, the prison at Guantanamo has 

weakened American national security. It is a rallying cry for our 

enemies. It sets back the willingness of our allies to work with us 

in fighting an enemy that operates in scores of countries. By any 

measure, the costs of keeping it open far exceed the complications 

involved in closing it.’’ 

I think the President was also correct in noting the difficulties 

in figuring out what to do with the approximately 240 detainees 

still held at Guantanamo. Some of those detainees, he said, can be 

tried in our Federal courts for violations of Federal law. Others will 

be tried in reconstituted military commissions for violations of the 

law of war. A third category of detainees have been ordered released by the courts. And a fourth category the administration believes can be transferred safely to other countries. 

2 

Finally, though, there is a fifth category of detainees that the 

President said cannot be tried in Federal courts or military commissions, but the Government believes they are too dangerous to 

release or transfer. For this small group of detainees, the President 

said he is considering a new regime of what he called ‘‘prolonged 

detention,’’ accompanied by procedural safeguards and the involvement and oversight of both the judicial and legislative branches of 

our Government. 

I was and remain troubled by where the President seemed to be 

heading on this issue. The previous administration claimed the 

right to pick up anyone, even an American citizen, anywhere in the 

world; designate that person a so-called enemy combatant, even if 

he never engaged in any actual hostilities against the United 

States; and lock that person up possibly for the rest of his life unless he can prove, without a lawyer and without access to all, or 

sometimes any, of the evidence against him, that he is not an 

‘‘enemy combatant.’’ 

Now, that position was anathema to the rule of law. And while 

the President indicated a desire to create a system that is fairer 

than the one the previous administration employed, any system 

that permits the Government to indefinitely detain individuals 

without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates 

basic American values and is likely unconstitutional. 

I wrote to the President after his speech to express my concern, 

and I will put the full text of that letter in the record of this hearing, without objection. My letter noted that indefinite detention 

without charge or trial is a hallmark of abusive systems that we 

have historically criticized around the world. In addition, once a 

system of indefinite detention without trial is established, the 

temptation to use it in the future will be powerful. 

Thus, if the President follows through on this suggestion of establishing a new legal regime for prolonged detention to deal with 

a few individuals at Guantanamo, he runs the very real risk of establishing policies and legal precedents that will not rid our country of the burden of the detention facility at Guantanamo Bay, but 

instead merely sets the stage for future Guantanamos, whether on 

our shores or elsewhere, with potentially disastrous consequences 

for our national security. Worse, those policies and legal precedents 

would be effectively enshrined as acceptable in our system of justice, having been established not by a largely discredited administration, but by a successive administration with a greatly contrasting position on legal and constitutional issues. 

The fundamental difficulty with creating a new legal regime for 

prolonged detention is that there is a great risk, particularly because some of the detainees for whom it would be used have already been held for years without charge, that it will simply be 

seen as a new way for the Government to deal with cases it believes it cannot win in the courts or even before a military commission. Regardless of any additional legal safeguards, such a system 

will not be seen as any more legitimate than the one the Bush administration created at Guantanamo. 

I do not underestimate the challenges that the President faces at 

Guantanamo. This is not a problem of his making, and I appreciate 

3 

how difficult the situation is. The President was right when he 

called dealing with the fifth category of detainees ‘‘the toughest single issue that we face.’’ And he recognized that creating a new system of prolonged detention ‘‘poses unique challenges.’’ And that is 

why we are here today. We have assembled a panel of distinguished witnesses to help us understand the implications of a new 

system of prolonged detention. Although the legality of such a system is crucial, that is not the only question. In a recent interview, 

Daniel Levin, who was the acting head of the Office of Legal Counsel when that office was attempting to deal with requests for legal 

analysis of interrogation techniques that many believe are torture, 

put it quite succinctly. He said, ‘‘Obviously you can only do that 

which is legal, but that does not mean you should automatically do 

something simply because it is legal.’’ So I think we have an opportunity today to do what we need to do, which is to look at the question from all angles. 

It is my view that a great deal of what was wrong with Guantanamo stemmed from an arrogance that the previous administration 

sometimes demonstrated about the rule of law. It established a 

prison that it thought was beyond the reach of the law. And it asserted the power to put people in that prison with only the barest 

regard for the law. President Obama clearly wants to take a different approach. He spoke at the National Archives of 

‘‘construct[ing] a legitimate legal framework for the remaining 

Guantanamo detainees that cannot be transferred.’’ This goal is admirable. But we must be very careful not to create a legal framework that is inconsistent with the very reasons we need a legal 

framework—to be true to our values and to regain the respect of 

the world for our approach to this conflict. 

One final note, and then I will turn to the Ranking Member. 

When I wrote the President, I indicated that I would invite a representative of his administration to testify at this hearing. On reflection, I decided that to do so would be to ask the administration 

to publicly defend a position that it has not yet formally taken. 

Consideration of these very difficult questions is undoubtedly ongoing, and so I decided to hold this hearing as a way to help inform 

the administration’s thinking and help make sure it has full information about the consequences of its decision. I would, of course, 

welcome any response to the testimony and discussion we will hear 

today. And I look forward to an open dialog on these very difficult 

and important questions as the time for closing Guantanamo approaches. 

With that, I am pleased to recognize Senator Coburn, and I 

thank him again for his help and cooperation in arranging this 

hearing. 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. Thank you, Mr. Chairman. I apologize for being 

late. I was working on a human rights issue associated with the 

Internet. 

I am pleased to join you at this second hearing of the Subcommittee on the Community. I understand that this hearing was 

prompted by a detailed letter you sent to President Obama folVerDate Nov 24 2008 14:27 Jun 28, 2010 Jkt 056832 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56832.TXT SJUD1 PsN: CMORC
4 

lowing his speech he made on national security issues at the National Archives in May. In that letter, you explained very clearly 

your opposition to indefinite detention, an option the President described as being ‘‘necessary to protect the American people.’’ While 

I disagree with some of your conclusions, I appreciate your 

thoughtful approach to the issue and recognize the importance of 

this Subcommittee to the debate. 

We have before us an impressive and diverse panel of witnesses, 

and I thank each of you for being here today. I would note, however, I am disappointed that the administration is not represented 

despite the Chairman’s request. The administration’s insight on 

this and other important national security issues, such as state secrets and media shield, are vital to ongoing congressional debate, 

and I am both puzzled and frustrated by their apparent unwillingness to engage Congress. In the future, I hope to see the executive 

branch more involved in the debates affecting its most important 

responsibilities. 

With respect to prolonged or even indefinite detention, I would 

note at the outset a few observations. In 2004, the Supreme Court 

in Hamdi v. Rumsfeld affirmed the authority of the United States 

to detain enemy combatants until the end of hostilities. The Court 

recognized that by universal agreement and practice, quote-unquote, the primary purpose behind the capture and detention of 

enemy combatants is to prevent their return to combat. Thus, so 

long as the current conflict is ongoing, and given that President 

Obama recently directed an additional 12,000 troops to Afghanistan, it appears that it is the United States that has the authority 

to detain enemy combatants without trial. 

Moreover, President Obama, like President Bush, has asserted 

the necessity of such prolonged detention. In his speech at the National Archives, President Obama acknowledged the presence of detainees at Guantanamo who cannot be prosecuted, yet who pose a 

clear danger to the American people. He rightfully asserted that he 

will not release any such detainee, adding that they must be held 

to keep them from carrying out an act of war. 

His choice and his challenge, as he described, is to develop a 

legal regime appropriate to deal with these realities. The President 

described this category of the most dangerous detainees as the 

toughest single issue that he will face. My preference would be that 

Congress give President Obama the support and assistance he 

needs to create such a framework, recognizing that successive 

Presidents of different political parties agree prolonged detention 

without trial is absolutely necessary in certain circumstances. I 

hope today’s debate about the propriety of the decision will prompt 

the administration to come forward with ideas so that we can all 

begin working on solutions for the future. 

Thank you, Mr. Chairman. I look forward to hearing from our 

witnesses. 

Chairman FEINGOLD. Thank you, Senator Coburn. 

Will the witnesses rise to be sworn and raise your hands? Do you 

swear or affirm that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. MALINOWSKI. I do. 

5 

Mr. RIVKIN. I do. 

Mr. LAUFMAN. I do. 

Ms. MASSIMINO. I do. 

Mr. KLINGLER. I do. 

Ms. CLEVELAND. I do. 

Chairman FEINGOLD. Thank you. 

Our first witness this morning will be Tom Malinowski, the 

Washington Advocacy Director for Human Rights Watch, one of the 

premier international organizations dedicated to defending and 

protecting human rights. Mr. Malinowski is an expert in United 

States foreign policy with degrees in political science from the University of California-Berkeley and Oxford University. He has previously served as Special Assistant to President Bill Clinton, as 

senior director for foreign policy speechwriting at the National Security Council, and as a member of the State Department’s policy 

planning staff. 

I thank you for being here this morning, and I would ask all the 

witnesses to keep their remarks, if at all possible, to 5 minutes. We 

will put your whole statements in the record. 

You may proceed, Mr. Malinowski. 

STATEMENT OF TOM MALINOWSKI, WASHINGTON ADVOCACY 

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

Mr. MALINOWSKI.. Thank you, Mr. Chairman, Senator Coburn. 

Good to hear, Senator Coburn, that you were occupied with an 

issue involving human rights and the Internet. As you know, that 

is an issue near and dear to our hearts as well. 

Senator COBURN. Yes, I know it is. 

Mr. MALINOWSKI.. Thanks for having us. It is obviously a very 

difficult issue. But for all the complexity of it, I want to argue 

today that it would be dangerous for us to continue with this experiment of indefinite detention without charge that we began in 

Guantanamo. 

I think there is one broad point on which all of us here on this 

panel do agree, and that is that under the laws of war, enemy combatants who are captured in an international armed conflict can be 

detained without charge for the duration of that conflict, as you 

said, Senator Coburn. But the situation we are talking about here 

is different for a couple of important reasons. 

First of all, in a traditional war between States, it is easy to 

place boundaries around this extraordinary power to detain without charge so that governments do not take it as a license to detain 

preventively anyone who they think poses a national security 

threat. In a traditional war, we know where the battlefield is. We 

know who the enemy combatants are. But this is a fight with no 

recognizable battlefield or geographical boundaries, no clear distinction between civilians and combatants. So it is very hard to 

keep those boundaries secure and to limit preventive detention to 

people who are plainly soldiers in a war. And there is this dangerous prospect of embracing a theory that would allow presidents 

in the future to detain a broad range of enemies solely based on 

a prediction of their future dangerousness. 

Second, in a traditional war, preventive detention is allowed because it is the only way to keep enemy combatants from returning 

6 

to the battlefield. Lawful combatants in a traditional war have not 

committed a crime and cannot be prosecuted. And so detention 

without charge is the only conceivable way of keeping them from 

returning to the fight. 

But for the detainees at Guantanamo, detention without charge 

was not the only option. The people there whom we want to continue to detain have all been accused of doing things that are 

crimes—committing or planning acts of terrorism, conspiring to 

commit them, or providing material support, et cetera. So if we are 

considering preventive detention for these detainees, it is not because they are lawful combatants who can only be kept off the battlefield via preventive detention. It is because some people now 

think that the option of prosecuting them may be harder to exercise because of the way in which these prisoners were treated in 

the past, because evidence was not properly kept, because some of 

it was tainted by the use of torture, some of it is considered too 

sensitive to be used in court, et cetera. 

So as President Obama has said, in deciding what to do with 

these prisoners, we face this dilemma not because of his decision 

to close Guantanamo, but because of the original decision to open 

it. We are facing it not because of who these people are, but because of how their cases were handled in the past. 

One conclusion I draw from that is that, whatever we do with the 

current set of detainees, the use of detention without charge in the 

future to detain al Qaeda suspects who are captured in the future 

is not necessary. We can avoid it by avoiding the mistakes that we 

have made in the last 8 years; by handling evidence properly, by 

moving as quickly as possible after capture to a criminal prosecution model. 

But what about those legacy cases that we have inherited, the 

ones who are still sitting in Guantanamo, some of whom are obviously more difficult to prosecute than others? I do not want to minimize that difficulty, but I do not think we should throw away the 

possibility of using our established institutions of justice before we 

have even tried to do so. And I think if we are even going to consider going down that route, there are some very serious costs that 

we need to consider. 

The first of these, obviously, is the one that you mentioned, Senator Feingold, and that is the possibility that we will create a perception that Guantanamo has not been closed, because the essence 

of that system was preventive detention without charge. If we 

move it to the United States, even with additional safeguards, 

there is no question that people will say that the camp has not 

really been dealt with, and the costs of keeping the camp open will 

continue to be borne. 

Another obvious cost is more years of frustration and more years 

of delay. Any such system will inevitably be challenged. Any such 

system will inevitably be tied up in court for a long time. A stable 

set of rules may emerge, but it will take a lot of time. How much 

more time do we have to get this right? I do not think we have too 

many more chances. 

I think a third cost—and this one may be counterintuitive—is 

that the danger of having dangerous people released may be greater if we go with an alternative system, because if I am right and 

7 

the system is challenged, if I am right and these detainees will be 

able to attack the system based on its legitimacy, that system will 

not be stable. And as we saw with the Guantanamo system in 

which 500 or more people were released, in part because the administration was under such pressure to get rid of these people, the 

chances that dangerous people will be released will be greater. 

I think a fourth danger is that anytime we treat these detainees 

as something special, anytime we treat these detainees as the warriors they claim to be by giving them military rules, military detention, military tribunals, we are actually reinforcing their narrative. 

We are reinforcing their story about who they are, that they are, 

in fact, warriors as part of a global struggle on a global battlefield 

against the greatest super power in the world—a narrative that I 

think helps them recruit more people to their hateful cause. That 

is a trap that we should not fall into. The more we treat these people as not extraordinary, the more we treat them as the common 

criminals that they are, the more we de-legitimize them and the 

better we can fight them. 

So I think these are mistakes that we have made in the past. I 

do not think we should continue to make them. I think we have 

alternative institutions that have proven their capacity to deal with 

this problem. I think at long last we should give those institutions 

a chance to work. 

Thank you. 

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

Chairman FEINGOLD. Thank you very much, Mr. Malinowski. 

Our next witness is David B. Rivkin, a partner in the Washington office of the law firm of Baker Hostetler, where his practice 

focuses on international and environmental matters. He is also CoChairman of the Center for Law and Counterterrorism at the 

Foundation for Defense of Democracies, and a graduate of Columbia Law School, with a master’s in Soviet affairs from Georgetown. 

Mr. Rivkin has served as Associate Executive Director and Counsel 

to President George H.W. Bush’s Council on Competitiveness, Associate General Counsel at the Department of Energy, and Deputy 

Director of the Department of Justice’s Office of Policy Development under the Reagan administration. 

Thanks for being here, Mr. Rivkin, and you may proceed. 

STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, BAKER 

HOSTETLER LLP, AND CO-CHAIRMAN, CENTER FOR LAW 

AND COUNTERTERRORISM, FOUNDATION FOR DEFENSE OF 

DEMOCRACIES, WASHINGTON, D.C. 

Mr. RIVKIN. Chairman Feingold, Senator Coburn, I am also 

pleased to appear before you today and testify at this important 

hearing. I would say to the question about morality as distinct from 

law, but we act ‘‘morally’’ when we do our absolute utmost, within 

the bounds of law and proper policy, to defend the United States 

and the American people from terrorism. Thus, as this very long 

war continues to go on through its eighth year, it is vital to remember that the detainees we now have in custody at Guantanamo Bay 

and many other locations in Afghanistan and Iraq are not ordinary 

criminal suspects, such as the individuals responsible for the origiVerDate Nov 24 2008 14:27 Jun 28, 2010 Jkt 056832 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56832.TXT SJUD1 PsN: CMORC
8 

nal World Trade Center bombing or the Oklahoma City bombing in 

1995, who indeed must be charged and brought to trial, or released, in accordance with a set of rigorous constitutional and statutory requirements guaranteeing a speedy trial. 

Instead, the detainees whom we are talking about today—and, 

incidentally, it is important to underscore we are not just talking 

about a finite body of legacy detainees. To the extent this war goes 

on, we will continue to capture Taliban and al Qaeda operatives 

and operatives of affiliated organizations. It is very difficult to fight 

a war if you are not going to capture people, especially since under 

the international law of war you are obligated to provide them with 

the opportunity to surrender. 

We are talking about unlawful combatants and unlawful belligerents, and let me, by the way, say with due respect to my good colleague Mr. Malinowski, I do not think we give them any homage 

by calling them ‘‘unlawful combatants’’ because unlawful combatants do not enjoy any honor or prestige associated with lawful combatants. They are criminals, but they are worse than criminals. 

They are more than criminal. They are certainly worse than muggers and rapists and bank robbers. So I do not think if you grasp 

the concept of unlawful combatants and call anybody that, the 

enemy of humanity, somebody who is a pirate or worse, gives this 

person any honor. 

I am glad we all agree on this panel that the unlawful combatant 

category remains alive and well today. It is a venerable concept. 

Certainly, I occasionally have to deal with the question. People 

think that it was somehow invented in the Bush administration. Of 

course, it was not. It has been with us for hundreds of years. It has 

been upheld by numerous courts around the world, including American courts and the Supreme Court. So it is firmly grounded in 

international law. 

Now, unlawful combatants, although they are not entitled to the 

privilege of legitimate prisoners of war—i.e., POWs under Geneva 

Conventions—can, like POWs—again, I do not think there is any 

serious question about it—be detained until the conclusion of hostilities. And in this regard, unlawful combatants may be punished 

for their unlawful belligerence because they do not have combatant 

unity. There is no rule of international law requiring that they be 

punished, and their detention for the duration of hostilities is certainly supported by the same rationale as with regard to POWs— 

to prevent their return to the fight. 

Incidentally, again, with all due respect to Mr. Malinowski, I do 

not know of any rule of international law that suggests that that 

only applies to ‘‘international armed conflicts.’’ If you assume the 

Supreme Court is right in the Hamdan case in classifying our conflict with al Qaeda is not of an international nature, the whole 

thrust of international humanitarian law since World War II has 

been to grant the same privileges to participants in internal armed 

conflicts as the one in international. So I will be very surprised if 

anybody from ICRC would agree with the proposition that in a civil 

war, for example, which is a classical example of a conflict not of 

an international nature, if you capture a belligerent in a civil war 

that that person cannot be held for the duration of that war. 

9 

I also think—how to put it gently—that the notion that we have 

another viable opportunity of prosecuting people is—well, ‘‘myopic’’ 

would be to put it gently. And the reason for it has nothing to do 

with the legacy problems and torture. It has to do with a very simple proposition that is virtually impossible, Mr. Chairman, to obtain a corpus of evidence, forensic and otherwise, that would suffice 

to hold the person, bring that person successfully to trial. You are 

not going to run a CSI Kandahar and exposing American—in the 

process of trying to get that evidence, you expose American servicemen to additional danger because the longer you linger on the battlefield, particularly in the context of special force operations, the 

higher is that danger. 

So, to me, the notion that there is this other alternative of prosecuting them is somehow—is not viable. We cannot fight this war 

if we are not going to have a military detention paradigm. A military detention paradigm requires that lawful and unlawful combatants captured in this conflict have to be held for the duration of 

it. I do not have time—in my prepared remarks, I go through some 

historical examples, but we have had long wars, 8 years, 5 years, 

16 years in the case of Vietnam. This may be a longer war, but 

that does not alter the legal paradigm. The only point on which I 

agree with my colleagues is, yes, there is indeed a greater possibility of a mistake. I would stipulate that, because when we are 

talking about people fighting out of uniform trying to obscure their 

belonging to a particular group versus somebody wearing a uniform, you can make a mistake. But the way to deal with it is not 

to throw out this framework. That is why we give captured enemy 

combatants unprecedented, historically unprecedented degree of 

due process. In no war in American history have we captured 

enemy combatants through habeas. So we have already given people plentiful due process rights to ensure we have the right ones. 

And, incidentally, the whole business about dangerousness, you 

do not have to be adjudged to be dangerous. The fact that we are 

doing that, we are looking to see what danger is created by returning people to the battlefield, is not required by international law. 

As a matter of international law, if you are a captured enemy combatant, you can be held for the duration of hostilities even if you 

never fired, Mr. Chairman, a gun in anger, even if you are a cook, 

even if you are payroll processor, because that is how it works. As 

long as you are a member of an enemy combatants organization, 

your particular function is irrelevant. Otherwise, during World 

War II, everybody, you know, who was driving trucks and sewing 

uniforms would have been released. That is not how it works. 

So the traditional paradigm works. I do not think it is particularly controversial, and I see no other viable alternatives. 

Thank you. 

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

for the record.] 

Chairman FEINGOLD. Thank you, Mr. Rivkin. 

Our third witness is David Laufman, a partner in the Washington office of the law firm Kelley Drye & Warren, where his practice focuses on government investigations. A graduate of Georgetown University Law Center, Mr. Laufman has had a long and distinguished career in public service, beginning as an intelligence anVerDate Nov 24 2008 14:27 Jun 28, 2010 Jkt 056832 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56832.TXT SJUD1 PsN: CMORC
10 

alyst at the CIA and most recently as an Assistant U.S. Attorney 

for the Eastern District of Virginia, where he prosecuted numerous 

high-profile national security cases. 

In 2005, Mr. Laufman was the lead trial counsel in the United 

States Government’s successful prosecution of Ahmed Omar Abu 

Ali, an American citizen convicted of providing material support 

and resources to al Qaeda, conspiring to assassinate the President 

of the United States, and conspiring to hijack and destroy aircraft, 

among other charges. For his work on this case, Mr. Laufman received the John Marshall Award for Outstanding Legal Achievement in Litigation, the highest honor for excellence in litigation 

awarded by the Department of Justice. 

Mr. Laufman also represented the United States in U.S. v. 

Chandia, U.S. v. Biheiri and U.S. v. Khan—known as the ‘‘Virginia 

jihad’’ case—all significant terrorism prosecutions. I should also 

add that from 2001 to 2003 Mr. Laufman served as Chief of Staff 

to Deputy Attorney General Larry Thompson, where he helped coordinate responses to the terrorist attack of 9/11. 

I thank you for being here, Mr. Laufman. You may proceed. 

STATEMENT OF DAVID H. LAUFMAN, PARTNER, KELLEY RYE & 

WARREN LLP, WASHINGTON, D.C. 

Mr. LAUFMAN. Thank you, Mr. Chairman, Distinguished Ranking 

Member Coburn. Thank you for the opportunity to testify before 

you today. I am coming to this issue from a slightly different approach, as a former prosecutor, as a former Department of Justice 

official, and those will be the experiences that inform my judgments today. 

I would say to you that while it will not be appropriate or feasible to adjudicate all terrorism cases in the criminal justice system, that terrorism prosecutions should be brought in Article III 

courts whenever possible. First, both before and since September 

11th, the courts have demonstrated their ability to handle complex 

terrorism cases. They have applied longstanding jurisprudence 

from criminal and constitutional law to resolve difficult issues, 

such as chain of custody for evidence seized in foreign countries by 

foreign law enforcement authorities, claims of coerced confessions, 

and the application of the Confrontation Clause to testimony given 

overseas by foreign government officials. Utilizing the Classified 

Information Procedures Act, or CIPA, the courts have guarded 

against the improper disclosure of sensitive intelligence information. And rather than complain about the additional administrative 

burdens that terrorism prosecutions sometimes impose on the 

courts, judges have looked upon these cases as an opportunity to 

shoulder their coordinate responsibility for meeting a national challenge and to demonstrate the strength and adaptability of the 

American criminal justice system. 

Second, bringing terrorism cases in Article III courts under wellestablished constitutional standards and rules of procedure and 

evidence confers greater legitimacy on these prosecutions, both 

here and abroad, and the importance of that legitimacy should not 

be minimized. 

Third, criminal proceedings also play an important role in educating the American people and the world about the nature of the 

11 

threat we face. In the al-Marri case, for example, it was the defendant’s guilty plea in April of 2009 to conspiracy to provide material support to al Qaeda which resulted in the public admissions, 

nearly 6 years after his initial apprehension, that al-Marri had 

been recruited by Khalid Sheikh Mohammed, then the operations 

chief of al Qaeda, to assist with al Qaeda operations in the United 

States; that al-Marri had been directed to come to the United 

States no later than September 10, 2001, to operate as a sleeper 

agent; and that he had received sophisticated codes for communicating with KSM and other al Qaeda operatives while he was in 

the United States. 

With respect to existing non-military detention options, because 

that is my focus here, the Government currently has only three options for detaining individuals suspected of terrorist activity in a 

non-military detention system. Depending on the individual’s nationality, if the individual has been charged with a crime, the Government can move for pre-trial detention under the Bail Reform 

Act. If no charges have been brought and the individual is an alien, 

the Government can detain the individual administratively under 

an immigration removal statute. If the individual is a U.S. person, 

the only other recourse is detention under the material witness 

statute, which is problematic. That is it. 

As to pre-trial detention, it is axiomatic that in order to obtain 

pre-trial detention under the Bail Reform Act, the Government 

must first charge an individual with a Federal crime. Under Department of Justice policy, however, a prosecutor may bring 

charges only if he or she believes that the admissible evidence—the 

admissible evidence—will probably be sufficient to obtain and sustain a conviction. 

In a terrorism case, the need to make this early determination 

can be especially formidable. Terrorism investigations are often 

driven by threat analysis, and threat assessments often are based 

on intelligence information, such as communications intercepted 

under the Foreign Intelligence Surveillance Act, informant reporting, and information provided by foreign law enforcement and intelligence authorities. 

Sometimes the Government has the luxury of building a case 

over a period of months to develop evidence that is admissible in 

a criminal prosecution. But often it does not because of the nature 

of the threat, the credibility of information regarding a potential attack, or the perceived imminence of an act of violence. And in those 

cases, the Government often needs options for detaining individuals before it may be ready to bring criminal charges in order to 

protect the public safety. 

The rules regarding the detention of a person who has been 

charged with a Federal crime are favorable to the Government in 

terrorism cases. In support of a request for detention, the Government can submit hearsay and other information that would be inadmissible at trial because the Federal Rules of Evidence do not 

apply at a detention hearing. The court ordinarily must take into 

account several factors in determining whether to detain a defendant pending trial, and the Government ordinarily has the burden 

of proof. But there is a statutory rebuttable presumption in favor 

12 

of detention in a terrorism case if there is probable cause that the 

defendant committed a specified Federal crime of terrorism. 

Although magistrate judges are not rubber stamps for the Government in detention hearings, the Government has been largely 

successful in obtaining pre-trial detention and terrorism cases, 

sometimes for many months when trial is delayed. And where 

judges have denied Government motions for detention, they typically have imposed restrictive and sometimes draconian conditions 

of release. 

With respect to material witness warrants, as you know, under 

the material witness statute, the court may authorize an arrest 

warrant if the Government files a sworn affidavit establishing 

probable cause that the testimony of a person is material in a 

criminal proceeding and that it may become impracticable to secure 

the presence of the person by a subpoena. There is no expressed 

time limit in the statute for the length of detention, but the Government must submit a biweekly report to the court in which it 

lists every material witness held in custody for more than 10 days 

pending indictment, arraignment, or trial and states why the witness should not be released, with or without a deposition being 

taken. 

After the September 11th attacks, the Government aggressively 

used the material witness statute to detain individuals in connection with terrorism investigations, at least several of whom were 

subsequently charged with crimes. But what the Committee must 

understand is that the material witness statute was not intended 

to serve as a substitute for pre-trial detention. 

In the case of United States v. Awadallah, the defendant’s name 

and telephone number had been found on a piece of paper in a car 

abandoned at Dulles Airport by September 11th hijacker Nawaf alHazmi. Reversing the district court, the U.S. Court of Appeals for 

the Second Circuit found that the defendant’s detention for several 

weeks on a material witness statute warrant was not unreasonably 

prolonged, but it cautioned that it would be improper for the Government to use the material witness statute to detain persons suspected of criminal activity for which probable cause has not yet 

been established. 

Last, immigration detention. The Government does have additional tools to detain foreign nationals in terrorism cases. Upon a 

warrant issued by the Attorney General, an alien may be arrested 

and detained pending a decision on whether the alien is to be removed from the United States. The Attorney General has broad 

discretion in exercising this authority, and detention is mandatory 

where the alien is reasonably believed to have engaged in activity 

that endangers the national security of the United States. 

In the immediate aftermath of 9/11, Mr. Chairman, the Department of Justice used the alien removal statute to arrest and detain 

numerous foreign nationals suspected of engaging in terrorist activity. Utilizing the alien removal statute can buy the Government 

substantial additional time to determine whether to pursue criminal charges against an alien defendant. In Zadvydas v. Davis, a 

case decided a few months before September 11th, the Supreme 

Court construed the law to limit the period of detention to the time 

reasonably necessary to secure the alien’s removal, with 6 months 

13 

presumed to be a reasonable limit. But the Court noted that the 

case did not involve ‘‘terrorism or other special circumstances, 

where special arrangements might be made for forms of preventive 

attention and for heightened deference to the judgments of the political branches with respect to matters of national security.’’ 

With that, Mr. Chairman, I will in the interest of time stop. 

Thank you. 

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

Chairman FEINGOLD. Thank you, Mr. Laufman. I appreciate the 

presentation. 

Our next witness is Elisa Massimino, the CEO and Executive Director of Human Rights First, one of America’s most influential 

human rights advocacy organizations. A graduate of the University 

of Michigan Law School with a master’s degree in philosophy from 

Johns Hopkins University, Ms. Massimino teaches human rights 

advocacy at the Georgetown University Law Center here in Washington. She grew up in a military family and was instrumental in 

assembling a coalition of retired generals and admirals to speak 

out publicly against policies authorizing the torture of prisoners in 

U.S. custody. 

Ms. Massimino, we appreciate your presence here this morning, 

and you may proceed. 

STATEMENT OF ELISA MASSIMINO, CHIEF EXECUTIVE OFFICER AND EXECUTIVE DIRECTOR, HUMAN RIGHTS FIRST, 

WASHINGTON, D.C. 

Ms. MASSIMINO. Thank you, Mr. Chairman, and thank you, 

Ranking Member Coburn, for convening this hearing. I really appreciate the opportunity to be here to share the views of Human 

Rights First on these issues and, in particular, to address how the 

choices on detention policy going forward will impact U.S. national 

security and international standing. 

The use of arbitrary and unlimited detention by the previous administration has undermined America’s efforts to defeat terrorists. 

It has served as a powerfully effective recruiting advertisement for 

al Qaeda. It has strengthened the hand of al Qaeda rather than 

isolating and de-legitimizing them in the political struggle for 

hearts and minds. It has undermined critical cooperation with our 

allies on intelligence and detention. And it has done considerable 

damage to the reputation of the United States, undermining its 

ability to lead on counterterrorism and other key national priorities. 

Now, President Obama has stated that he wants to reverse the 

negative impact of these policies. In his speech last month at the 

National Archives, he made clear that trust in our values and our 

institutions will enhance our national security, not undermine it. 

But I believe that vision could be undermined by the continued use 

of military commissions and detentions without trial and would deprive us of the ability to, as he said, ‘‘enlist the power of our fundamental values,’’ proving counterproductive and not durable. Such 

efforts are also unnecessary in light of the existing laws that provide an adequate basis to detain terrorism suspects and try them 

for crimes of terrorism before regularly constituted Federal courts. 

14 

In January of this year, Admiral Dennis Blair testified before the 

Senate Committee on Intelligence that, ‘‘The detention center at 

Guantanamo has become a damaging symbol to the world and it 

must be closed. It is a rallying cry for terrorist recruitment and is 

harmful to our national security, so closing it is important for our 

national security.’’ But the damage done by Guantanamo is not because of its location. It stems from the discredited policies of unfair 

trials and detention without charge. If those policies are continued, 

even in a somewhat modified form, Guantanamo will not be closed; 

it will just be moved. 

Proponents of preventive detention argue that those ready to do 

harm to the United States should be treated as warriors under the 

laws of war. Yet the decision to label all Guantanamo prisoners as 

‘‘combatants’’ engaged in a ‘‘war on terror’’ has unwittingly ceded 

an important advantage to al Qaeda, supporting their claim to be 

warriors engaged in a global battle against the United States and 

its allies. 

Accused 9/11 planner Khalid Sheikh Mohammed reveled in this 

status at his Combatant Status Review Tribunal at Guantanamo in 

March of 2007. He said, ‘‘For sure, I am America’s enemy. The language of war in the world is killing. The language of war is victims.’’ 

Now, those whose job it is to take the fight to al Qaeda understand what a profound error it was to reinforce al Qaeda’s vision 

of itself as a revolutionary force engaged in an epic battle with the 

United States. Former CIA case officer and counterterrorism expert 

Mark Sageman said, ‘‘Terrorist acts must be stripped of glory and 

reduced to common criminality. It is necessary to reframe the entire debate from imagined glory to very real horror.’’ 

Likewise, General Wesley Clark stated, along with 19 other 

former national security officials and counterterrorism experts, ‘‘By 

treating such terrorists as combatants, we accord them a mark of 

respect and dignify their acts, and we undercut our own efforts 

against them in the process. If we are to defeat terrorists across 

the globe, we must do everything possible to deny legitimacy to 

their aims and means and gain legitimacy for ourselves. The more 

appropriate designation for terrorists is not ‘unlawful combatants,’ ’’ 

they said, ‘‘but the one long used by the United States: ‘criminal.’ ’’ 

Last June, Alberto Mora, former Navy General Counsel, testified 

that, ‘‘Serving U.S. flag-rank officers maintain that the first and 

second identifiable causes of U.S. combat deaths in Iraq—as judged 

by their effectiveness in recruiting insurgent fighters into combat— 

are, respectively, the symbols of Abu Ghraib and Guantanamo.’’ 

This vision is reinforced in the updated ‘‘Army-Marine Corps 

Counterinsurgency Manual’’ that was drafted under the leadership 

of General Petraeus and incorporated lessons learned in a variety 

of counterinsurgency operations, including Iraq and Afghanistan. It 

stresses repeatedly that defeating nontraditional enemies like al 

Qaeda is primarily a political struggle and one that must focus on 

isolating and de-legitimizing the enemy rather than elevating it in 

stature and importance. As the manual states, ‘‘It is easier to separate an insurgency from its resources and let it die than to kill or 

capture every insurgent. Dynamic insurgencies can replace losses 

15 

quickly. Skillful counterinsurgents, which we seek to be must, thus, 

cut off the sources of that recuperative power. 

As long as Guantanamo detainees are held in prolonged detention without charge or tried before extraordinary military commissions, the facility’s legacy will continue to nurture that recuperative power of the enemy, and focus will remain on how the procedures deviate from those in criminal trials before regularly established Article III courts and not on the heinous acts of those we 

seek to try. Guantanamo has become a symbol to the world of expediency over fundamental fairness and of this country’s willingness 

to set aside its core values and beliefs. 

The reputational damage caused by Guantanamo has very practical ramifications for our counterterrorism operations. If U.S. detention policies continue to fall short of the standards adhered to 

by our closest allies, then those policies will continue to undermine 

our ability to cooperate in detention and intelligence operations. 

In his June testimony, Alberto Mora described in detail how concerns about U.S. detainee policies damage U.S. detention operations by leading our allies to hesitate to participate in combat operations, to refuse to train on joint detainee operations, and to actually walk out on meetings regarding detention operations. 

The Guantanamo detentions have shown, as three retired flag officers said in the letter to the President last month—which I ask 

that be included in the record. 

Chairman FEINGOLD. Without objection. 

Ms. MASSIMINO. It stated: The Guantanamo detentions have 

shown that assessments of dangerousness based not on overt acts, 

such as in a criminal trial but on association, are unreliable and 

will inevitably lead to costly mistakes. This is precisely why national security preventive detention schemes have proven a dismal 

failure in other countries. The potential gains from such schemes 

are simply not enough to warrant departure from hundreds of 

years of Western criminal justice traditions. 

In conclusion, there has not yet been a full accounting of the 

strategic and operational costs of the failed Bush administration 

policies on prisoner treatment, but there is plenty of evidence to 

suggest that continuing down the road of prolonged detention without trial will undermine national security and hamper counterinsurgency efforts against al Qaeda. It will also seriously impede 

the Obama administration’s efforts to turn the page on the past 

and successfully implement a new strategy to combat terrorism 

that brings the United States and its allies together in pursuit of 

a common goal. It is time for us to learn from the mistakes of the 

past and chart a new course, a smarter strategy, one that draws 

on all of the elements of national power. This is a real turning 

point for our country, and I urge you to seize it and ensure that 

we do not do to ourselves what al Qaeda could never do on its own: 

upend our constitutional system and values by establishing an entirely new system of detention without trial in the Federal law and 

on American soil. 

Thank you. 

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

Chairman FEINGOLD. Thank you, Ms. Massimino. 

16 

Our next witness is Richard Klingler, a partner in the Washington office of the law firm Sidley Austin, where his practice focuses on national security matters and complex litigation. A 

Rhodes scholar and a graduate of Stanford Law School, Mr. 

Klingler clerked for Judge Kenneth Starr on the D.C. Circuit and 

for the path-breaking Supreme Court Justice Sandra Day O’Connor. During the George W. Bush administration, he served as general counsel and legal adviser for the National Security Council 

and as senior associate counsel to the President. 

I thank you for being here, Mr. Klingler, and the floor is yours. 

STATEMENT OF RICHARD KLINGLER, PARTNER, SIDLEY 

AUSTIN LLP, WASHINGTON, D.C. 

Mr. KLINGLER. Thank you, Mr. Chairman, Ranking Member 

Coburn, for allowing me to present my views today regarding the 

lawfulness, morality, and national security necessity of ongoing— 

or indefinite, or prolonged—detention. 

Detention for this purpose means detention by our military of 

enemy combatants: persons who our military has concluded have 

waged or threaten war against our troops, citizens, and allies. The 

combatants at issue are members of al Qaeda and related terrorist 

organizations that pose a significant threat of violence to U.S. citizens. 

The main purpose of detention is to keep those who would harm 

U.S. citizens and troops from returning to the fight, and detention 

appropriately continues until that threat no longer exists. In this 

sense, wartime detention is always ‘‘indefinite’’ or ‘‘prolonged’’ until 

conflict ceases. We have fought long wars and wars against unconventional forces. The conflict against terrorist organizations is not 

different in kind. 

The debate over indefinite detention often wrongly focuses on 

Guantanamo Bay. Prolonged detention is not just something proposed for the future, for a small subset of Guantanamo detainees. 

It is, instead, a practice that this administration is already conducting on a widespread scale, in Afghanistan and elsewhere, will 

continue to pursue for hundreds if not thousands of detainees for 

many years, and has already defended repeatedly in Federal court. 

The lawfulness of ongoing detention of enemy combatants is clear 

and well established. 

In short, such detention is a lawful incident of war, authorized 

whenever the exercise of war powers is proper. The Supreme Court 

has reached this conclusion for this specific conflict. The current 

administration has correctly argued that ‘‘[l]ongstanding law-of-war 

principles recognize that the capture and detention of enemy forces 

are important incidents of war,’’ that our enemies are not confined 

to fixed battlefields in Iraq and Afghanistan, and that Congress 

has through the AUMF authorized ongoing detention. 

Challenges to the detention of enemy combatants, relying on the 

criminal law or otherwise, usually depend on rejecting the premise 

that we are truly at war on a very wide scale. That conclusion 

would surprise our troops in Afghanistan, Iraq, and many other 

places. It would particularly surprise our Commander-in-Chief. He 

recently confirmed that ‘‘[w]e are indeed at war with al Qaeda and 

its affiliates’’ and that because ‘‘al Qaeda terrorists and their affiliVerDate Nov 24 2008 14:27 Jun 28, 2010 Jkt 056832 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56832.TXT SJUD1 PsN: CMORC
17 

ates are at war with the United States, those that we capture—like 

other prisoners of war—must be prevented from attacking us 

again.’’ 

Perhaps now that this administration has endorsed ongoing detention, as has nearly every one of its predecessor once controversial counterterrorism policies, we can more readily accept the legitimacy of these practices. 

The most important national security benefit of detaining enemy 

combatants is simple but essential: to meet our moral commitment 

to ensure that those detained do not directly or indirectly attack 

our troops or citizens, here or abroad. Continued detention also ensures that our military and intelligence forces can and will continue to seek to detain additional combatants. 

Other benefits become clear in light of the alternatives. If standards for detention are increased or if detention were abandoned or 

restricted, at least three consequences would follow: 

First, detention would be outsourced. U.S. officials would rely on 

foreign allies to capture, interrogate, and detain enemy combatants, and recent reporting shows that this is already occurring. Detainees are less likely to be captured, more likely to be released 

prematurely, and less likely to be treated well. We should worry 

that the administration may be failing to detain newly discovered 

al Qaeda members and supporters in certain circumstances, but 

having other nations do so instead. 

Second, mistaken release of detainees would occur more frequently. Even under the current standard, many detainees released 

by the U.S. have gone on to become al Qaeda and Taliban leaders, 

a suicide bomber, and combatants against our troops. This administration’s Defense Department recently detailed the significant 

breadth of the problem. Even so, none of the detainees released 

from Guantanamo has attacked citizens in the United States—yet. 

Third, detention would be sidestepped. Enemy combatants may 

be left in the field because criminal standards of proof have not 

been satisfied, placing our troops and citizens at risk. This was the 

principal flaw in our pre-9/11 counterterrorism policy. Or the military may choose instead to use the force of arms against a combatant when capture may prove pointless or risky. 

Some suggest that we can avoid these tough choices by relying 

exclusively on criminal proceedings. The President has largely 

mooted that argument by stating that ‘‘[w]e’re going to exhaust 

every avenue that we have to prosecute those at Guantanamo who 

pose a danger to our country.’’ Even so, he concludes that there will 

still be detainees who cannot be prosecuted, ‘‘who, in effect, remain 

at war with the United States.’’ 

The President is clearly right, all the more so for detainees in Afghanistan. Just because we can prosecute some terrorists in Federal court does not mean that we can prosecute all those who 

would attack our troops and citizens. And we do not want to blur 

the line between the legal protections afforded to U.S. citizens and 

lawful permanent residents on the one hand and those suitable for 

foreigners abroad whom the military has concluded would do us 

harm. 

We should resist the return to pre-9/11 practice that exclusive reliance on criminal proceedings would reflect. We do not want to 

18 

leave terrorists in the field or send them there simply because U.S. 

forces have not gathered evidence of past evidence of past wrongdoing, admissible in court and provable beyond a reasonable doubt. 

We want them off the battlefield sooner and to stay off longer. As 

the President says, we need tools to allow us to prevent attacks. 

Thank you. 

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

for the record.] 

Chairman FEINGOLD. Thank you, Mr. Klingler. 

Our last witness this morning is Sarah Cleveland, the Louis 

Henkin Professor of Human and Constitutional Rights and the CoDirector of the Human Rights Institute at Columbia Law School. 

A Rhodes scholar and Yale Law School graduate, Professor Cleveland clerked for Judge Louis Oberdorfer on the D.C. District Court 

and for the great Supreme Court Justice Harry Blackmun. She is 

a renowned authority on international human rights and labor 

rights, constitutional law, U.S. foreign relations, and the interaction between human rights and international trade. Professor 

Cleveland is also an experienced human rights litigator in the 

United States and international courts, and in 2003, she helped 

draft a labor code for post-Taliban Afghanistan. 

We appreciate your presence today, Professor. Please proceed. 

STATEMENT OF SARAH H. CLEVELAND, LOUIS HENKIN PROFESSOR OF HUMAN AND CONSTITUTIONAL RIGHTS AND 

FACULTY CO-DIRECTOR, HUMAN RIGHTS INSTITUTE, COLUMBIA LAW SCHOOL, NEW YORK, NEW YORK 

Ms. CLEVELAND. Thank you, Chairman Feingold, and thank you, 

Ranking Member Coburn, for including me in the testimony on this 

pressing issue. 

I am a scholar of U.S. constitutional law and international 

human rights law, and also co-coordinator of a Working Group on 

Detention Without Trial, whose draft report on comparative detention practices I would like to submit for the record today, along 

with my written testimony, and an excerpt of State Department 

country reports on preventive detention practices abroad. 

I would like to start out by responding to David Rivkin’s assertion that these are not ordinary criminal suspects and that the 

United States possesses under the laws of war a roving authority 

to seize and detain indefinitely persons suspected of being members 

of al Qaeda or its affiliates around the world. 

I agree with other witnesses today who have said that persons 

who are seized in Afghanistan on a conventional battlefield while 

taking up arms against the United States may be detained for the 

length of that conflict. This power was acknowledged by the Supreme Court in Hamdi. Appropriate rules urgently need to be put 

in place to regulate the grounds and procedures for such detention, 

but it falls well within long-accepted international standards. 

I part company from Mr. Rivkin and Mr. Klingler, however, in 

the claim that wartime detention authority allows the United 

States to indefinitely detain al Qaeda or Taliban affiliates seized 

from any non-battlefield location, wherever they may be found. It 

is this claimed roving detention power that has brought the U.S. 

19 

widespread international condemnation, eroded our moral authority, and brought new converts to terrorism. 

The subject of this hearing is the legal, moral, and national security consequences of prolonged detention, and my remarks are organized around three premises: that prolonged detention of nonbattlefield detainees is unlawful, that it is immoral, and that it has 

dire national security consequences for our country. 

First, prolonged detention is wrong as a matter of law because 

it offends our most fundamental constitutional values. Protection of 

personal liberty against arbitrary confinement is one of the hallmarks of our legal tradition. Our Constitution narrowly circumscribes the conditions under which a person may be incarcerated through the criminal justice system. It does not recognize a 

roving power to detain dangerous persons. As Federal Judge Jack 

Coughenour has observed, there is no ‘‘bad guy’’ amendment to the 

U.S. Constitution. 

The Government does have authority to detain people outside the 

criminal justice system under a very few narrow and historically 

confined exceptions, such as quarantine for public health purposes. 

One of those exceptions is the power to detain fighters of a foreign 

state in an international armed conflict. But as Tom Malinowski 

has testified, this exception exists for extremely specific purposes 

and is narrowed by well-defined parameters. Those purposes and 

parameters are not present when suspected al Qaeda members are 

seized and detained far outside the battlefield. In those circumstances, there are no objective indicia of combatency. The obligation to detain in preference to killing a fighter is not present. 

The choice is between detention or criminal prosecution. None of 

the battlefield exigencies that make preservation of evidence or 

criminal prosecution difficult in a wartime context are present 

when someone is seized in a hotel in Thailand. 

But even if the detention of such persons could be contemplated 

under international humanitarian law, it would fall so far outside 

any traditional exception to our own criminal justice system as to 

be unconstitutional, as Justice O’Connor recognized in her plurality 

opinion in Hamdi. 

Second, prolonged detention is immoral. Prolonged detention 

without a proven crime offends the world’s most basic sense of fairness. It is the hallmark of repressive regimes that the United 

States historically has condemned around the globe. Our adoption 

of prolonged detention on Guantanamo has undermined our moral 

authority in promoting improved human rights conditions abroad, 

and it has alienated the United States as a leader in counterterrorism efforts. Our annual State Department country reports on 

human rights practices devote extensive scrutiny to the short- and 

long-term detention practices of other States. They demonstrate 

that none of our North American or European allies engages in the 

kind of detention practices that the U.S. has claimed in the recent 

past. 

Third, prolonged detention harms our national security. It does 

so for four reasons. It recruits people to terrorism, as Elisa 

Massimino has said. It discourages cooperation in counterterrorism. It diminishes our soft power to lead on national security 

issues. And by condoning similar abuses, we embolden other states 

20 

to take actions contrary to global security interests around the 

world. 

In closing, I would like to note that this Subcommittee is one of 

the guardians of our Constitution. For the United States to ratify 

the principle that our Government may hold people indefinitely 

based on the claim that they cannot be tried, but are too dangerous 

to be released, forgets our constitutional past, distorts our constitutional present, and jeopardizes our constitutional future. It forgets 

our past, in which some of our worst historical episodes have involved indefinite detention, such as the Japanese interment. It distorts our present because to bring Guantanamo onshore and perpetuate it would do permanent damage to our constitutional traditions and make the cure far worse than the disease. Finally, it 

jeopardizes our future for, as Justice Robert Jackson warned in his 

dissent in Korematsu, if we accept the principle that we may detain 

those who cannot be tried but are too dangerous to be released, 

that principle will lie around like a loaded weapon ready to be 

picked up and used by any future government at home or around 

the globe. 

Thank you. I look forward to your questions. 

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

Chairman FEINGOLD. Thank you, Professor Cleveland, and all 

the witnesses for your testimony. I ask unanimous consent that the 

statement of the Chairman of the full Committee, Senator Leahy, 

be placed in the record, without objection. And we will begin with 

7-minute rounds for the panel. 

Ms. Massimino, I understand that Human Rights First has conducted extensive research into the 120-plus terrorism cases prosecuted in Federal court over the past 15 years, and your organization, I am told, has concluded that bringing such cases has ‘‘contributed significantly to the gathering of intelligence of terrorist 

plots and networks.’’ 

Can you provide some specific details about how our criminal justice system actually provides these national security benefits? And 

how have criminals trials helped to unravel some future terrorist 

plots? 

Ms. MASSIMINO. Sure. Thank you. Human Rights First, when the 

Bush administration started to discuss the need for an alternative 

system, we wanted to examine the sufficiency of the current criminal justice system, the regular criminal justice system, for dealing 

with these cases. And so we asked two former Federal prosecutors 

to look at all the terrorism cases over the last 15 years that have 

been brought in the Federal courts. And this report, ‘‘In Pursuit of 

Justice,’’ is the result of that effort. 

We looked in great detail at the materials, the background materials, the filings in all of these cases, and what we found was that 

the United States has captured, both in the United States and 

overseas, some of the most dangerous terrorists the world has ever 

known and has prosecuted them successfully in U.S. courts and incarcerated in U.S. jails. 

And what we did in the report was to look at all of the claims 

that have been raised about the insufficiency, alleged insufficiency 

of the criminal justice system in dealing with these cases, and what 

21 

we found is that the Federal courts are adaptable and flexible in 

dealing with the many challenges that these cases pose. And they 

do pose challenges, as Mr. Laufman knows probably better than 

any of us here. 

But what we found is that the law has evolved, and so prosecutors have been able to invoke a host of specially tailored anti-terrorism laws and generally applicable criminal statutes—in fact, 

some that provide greater flexibility than the substantive laws that 

we were saddled with in the misguided military commissions that 

would enable us to obtain convictions, that there has been no serious problem with obtaining jurisdiction over those defendants, even 

when they have been apprehended by unconventional or forceful 

means; that, as David Laufman suggested, the existing criminal 

statutes and immigration laws give us an adequate basis to detain 

and monitor suspects in the vast majority of these cases that we 

know, that the Classified Information Procedures Act, that CIPA 

has successfully balanced the need to protect national security information, including the sources and methods of intelligence; that 

Miranda warnings have not posed a barrier to prosecution in these 

cases because they are not required on the battlefield or in non-custodial interrogations or interrogations that are conducted primarily 

for intelligence-gathering purposes; that the Federal Rules of Evidence, including the rules of authentication of evidence collected 

abroad, give the courts a flexible framework for dealing with these 

issues; and that the Sentencing Guidelines and other sentencing 

laws give us severe sentencing options for many terrorist offenses. 

Also, we looked at the very real prospect of the danger posed by 

having terrorist suspects to the participants in these trials—the 

judges, the juries, the court officers—and found that the United 

States court system has been able to deal with those challenges 

successfully. 

Just this morning, we saw that the Obama administration has 

moved a Guantanamo detainee, Ahmed Ghailani, to New York to 

stand trial for his role in the embassy bombings, and I think that 

and the al-Marri case, the moving of the al-Marri case into the 

Federal justice system has the potential to really demonstrate what 

the President talked about in terms of faith in our institutions and 

the ability to change the perception that we have promulgated 

through our past actions of al Qaeda as combatant warriors against 

us into a more effective tool in the broader counterterrorism struggle pursuant to the theory in the Counterinsurgency Manual. 

Chairman FEINGOLD. I thank you for your answer. 

Professor Cleveland, you make the very practical point in your 

testimony that there is no evidence that preventative detention 

works in the context of terrorism. You cite the fact that the U.K. 

renounced its prolonged detention of terrorism suspects in Northern Ireland in 1975, and a former British intelligence officer, Frank 

Steele, concluded, ‘‘Internment barely damaged the IRA’s command 

structure and led to a flood of recruits, money, and weapons.’’ So 

it seems to me we have strong evidence that prolonged detention 

actually can make us less safe. Can you speak about any additional 

evidence for this conclusion? 

Ms. CLEVELAND. Yes, thank you. The Northern Ireland example 

is well-known and has been carefully scrutinized. There are numerVerDate Nov 24 2008 14:27 Jun 28, 2010 Jkt 056832 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56832.TXT SJUD1 PsN: CMORC
22 

ous studies that indicate that not only were the detentions ineffective in that they did not successfully incapacitate IRA terrorists, 

but instead they inflamed hostility to the U.K. regime and inspired 

people to join the IRA. There are a number of studies of this phenomenon, and this was a reason that the U.K. finally abandoned 

the detention policy in the 1970s. 

In India, studies of India’s detention practices also indicate that 

long-term detention without trial contributes to a cycle of violence 

and abuse, which in turn inflames unrest and provides recruitment 

tools for terrorist organizations. 

With respect to Israel, Lisa Hajjar’s book, ‘‘Courting Conflict,’’ on 

the West Bank military tribunals, shows that Palestinians were 

mobilized to fight Israelis by the system of preventive detention 

and military tribunals, particularly by the ‘‘natural deaths,’’ quoteunquote, of Palestinians in Israeli custody. 

There have also been more recent studies of combatants in Iraq 

demonstrating that people who come from countries with abusive 

civil rights systems are much more likely to join the fight against 

the United States than those from countries that respect the rule 

of law. 

Chairman FEINGOLD. Thank you, Professor. 

Senator Coburn. 

Senator COBURN. Well, thank you, each of you, for your testimony. I would like for you all to just answer this in the briefest 

form possible. 

Are we, the United States, under any international obligation 

which would require us to try or release the detainees that we 

have? 

Mr. RIVKIN. If I might start, Senator Coburn, the short answer 

is no. The slightly longer answer is that, with respect to my distinguished colleagues, all the caveats and all the qualifications that 

they spoke about—namely, combatants fighting on behalf of states, 

combatants being picked up on the battlefield, roving commission 

to capture people anywhere—are not supported by the existing 

body of international law. 

If you are fighting on behalf of an entity which is in the state 

of armed conflict with the United States, which is an objective test 

under international law as to what an armed conflict is, if you fight 

on behalf of a private entity, a state entity is irrelevant, whether 

you were captured on a battlefield or 500 miles away from it is irrelevant in terms of our ability to be able to detain such a person. 

I do not have time to get into the historical examples, but does anybody seriously believe that if we launched a commando raid as we 

did in World War II to capture some Wehrmacht officers 500 miles 

away behind the front line, or perhaps in Switzerland, that they 

would not be detainable under the laws of armed conflict? 

The problem you have is that international law provides for the 

widest latitude, and all the caveats and all the restrictions that are 

being introduced by my colleagues drive toward one purpose only, 

which is eviscerate and de-legitimize the international law architecture. And with respect, you cannot fight a war by using laws as 

a war architecture. It is not only about detention. 

Let me just close by pointing out the absurdity of the proposition 

that you can use a Predator to launch a missile to kill somebody 

23 

in a Jeep in Yemen because you believe a person an enemy combatant. You can use deadly force, which you cannot do with a criminal 

suspect. That is okay. But if you happen to have a commando unit 

grabbing this person, that person cannot be detained as a combatant under the laws of armed conflict. That distinction is absurd. 

And what we are going down the path is not just not being able 

to detain people like that, not being able to use deadly force, not 

being able to fight a war against the people who are very much 

fighting a war against us. That way lies defeat and disaster. 

Senator COBURN. Mr. Malinowski. 

Mr. MALINOWSKI.. Sure. This is not the war of Wehrmacht. This 

is not a conventional army of a state that has declared war against 

the United States with which we are engaged on a conventional 

battlefield. This is an entity that kills civilians. That is its reason 

for existence. This is an entity that blows up buildings. This is an 

entity that blows up children. This is an entity that killed 3,000 

people in New York City on September 11th and has done similar 

things all around the world. 

This is the kind of entity that throughout history has been treated as the lowest form of criminal life, whose members have not 

been accorded the honor of being treated as warriors, but have 

been put away in the darkest prisons that we have for such people. 

That is what this entity is, and that is how this entity should be 

treated. 

And, yes, absolutely, if the members of this entity are holed away 

in a place where we cannot send the NYPD to put handcuffs on 

them because they are protected by a lot of weaponry and it is a 

lawless area, like Yemen or Somalia, then, of course, we can use 

deadly force. You can use deadly force in a lot of situations when 

you are trying to bring people in. 

That does not, therefore, lead to the conclusion that because you 

can use deadly force in those situations you have to then treat 

them as soldiers and detain them without charge. You still do what 

is in the national interest in that situation, and what is in the national interest is not to treat these people as warriors. It is not just 

a matter of law. It is a matter of what is best for this country. 

Senator COBURN. Others? 

Ms. MASSIMINO. Well, if I could just add briefly, you know, the 

fact is that al Qaeda declared war on us several times before 9/11, 

and, again, there is—as we have discussed this morning, they see 

it very much in their interest to promote that framework onto our 

response to them. And I think it is quite important for us to take 

notice of that. 

And with respect to my colleague Mr. Rivkin, you know, we seem 

to be under the misimpression that the only way to take the threat 

of al Qaeda seriously is to shoe-horn all of our response into a military framework. And while absolutely it is clear—I would be the 

first to say that the criminal justice system is not the solution to 

the terrorist problem, nor, I think, is it smart for us to ignore the 

advice in the Counterinsurgency Manual that General Petraeus put 

together, or the advice of Federal prosecutors who have successfully 

put away dangerous criminals through that system. I think it 

would be a mistake to treat those people as the warriors that Mr. 

Rivkin would have us think they are. 

24 

Senator COBURN. I noted that, Mr. Laufman, in your testimony 

about Article III courts, you had a caveat that not all of these could 

be tried in an Article III court. Would you expand on that? 

Mr. LAUFMAN. Senator, I think there is a menu of variables that 

complicate the ability to try some of these cases in Article III 

courts, both for policy reasons and pragmatic reasons. From a policy standpoint, it is not clear to me that an individual who had 

committed crimes against humanity or crimes of that kind of atrocity belongs in a criminal court as opposed to some other forum with 

international and domestic legal standing. If individuals have been 

subjected to coercive interrogation, it severely complicates if not 

cripples the ability of prosecutors to build a case in the absence of 

external corroborating evidence. 

There is just a host of potential issues that complicate the ability 

to bring all of these cases before Article III courts. 

Senator COBURN. Thank you. 

Mr. Klingler, how would the legal and constitutional rights of detainees currently held at Guantanamo Bay change if they were 

brought to the United States? 

Mr. KLINGLER. Under the Hamdan decision, there is a broad 

range of treatment-related rights extended to detainees in Guantanamo, and others to the extent that they are necessarily implicated 

by the right to have habeas review. There is some sort of due process right that under Boumediene did not get defined. Chief Justice 

Roberts criticized the Court for providing a right under 

Boumediene without defining the scope of that. 

If the detainees got brought to the United States, they would 

have a stronger set of arguments that they are entitled to the full 

range of rights that are accorded to federal court defendants. If 

they are criminally prosecuted, they clearly have the absolutely full 

range of rights that would be given to U.S. citizens, lawful permanent residents, or anyone else who is brought before the criminal 

justice system. Everything that is in our Constitution that would 

apply if you or I were prosecuted would apply to a detainee in a 

criminal prosecution. 

So that is where the difference between the two sets of rights 

comes. On the one hand, if they are left in Guantanamo right now, 

they have some set of rights, undefined but quite limited, but clearly with some due process rights associated with habeas proceeding 

in the United States, under a criminal prosecution, the full range 

of rights. 

Ms. CLEVELAND. Senator Coburn, would you mind if I—— 

Chairman FEINGOLD. Professor, you can briefly respond. Then we 

will start another round. 

Ms. CLEVELAND. Thank you. I just wanted to note that the Supreme Court twice now has held that Guantanamo is essentially 

United States soil for the purposes of the application of U.S. statutory law and U.S. constitutional law. They did so in the Rasul case 

in 2004 and again in the Boumediene case last summer. And in 

Boumediene, they were quite forceful in noting that because of the 

complete jurisdiction and control that the United States exercises 

over Guantanamo, there is very little justification, under the type 

of functional approach to application of the Constitution that the 

Court employed, for concluding that constitutional protections 

25 

would be significantly different on Guantanamo than in the United 

States. 

So I would suggest that whether or not the detainees are held 

in Guantanamo or in the United States, they are entitled to quite 

robust constitutional protections under the Supreme Court’s decisions. 

Mr. RIVKIN. May I—— 

Chairman FEINGOLD. Go ahead, Mr. Rivkin. 

Mr. RIVKIN. With respect, that may be where the Supreme Court 

or a portion of the Supreme Court would go. That is not the holding of Boumediene. Therefore, in one instance you have uncertainty 

in litigating it. In another instance, if you bring people here, you 

have absolute and utter certainty that they have a full panoply of 

constitutional rights. 

But there is one other important issue. What happens to individuals like the Uyghurs who are being ordered released by the Court, 

despite Judge Urbina’s opinion? If you look at what this administration has continued to do in this area, they are arguing quite vigorously, but the Federal courts, despite the existence of constitutional habeas, lack the power to compel the political branches—the 

executive in this instance—to bring an alien from outside the 

United States to be released. 

If you bring people here, there is no doubt in my mind that anybody who prevails in this habeas case would be released, possibly 

held a few months under the teaching of Zadvydas and immigration detention, but basically if you start bringing people here, you 

better be prepared, despite everything that is said at the political 

level, that dozens and dozens of individuals, if you look at the odds 

so far in the habeas process in the district court for the District of 

Columbia, the Government has not done very well—in my view not 

because they are innocent, but because the evidence is not there. 

So we are going to have hundreds of terrorists walking around 

this country whom we cannot deport, by the way, back to their 

home countries because of concerns about torture. Aggregating the 

world’s worst terrorists on American soil for years to come is not 

a very smart way to wage a wary. 

Chairman FEINGOLD. Let me start another round relating to this. 

Mr. Malinowski, you noted that the Bush administration sent hundreds of former Guantanamo detainees back to their home countries, and the Pentagon believes that some of these men have engaged in terrorist activities. What do we know about these people? 

Do you believe that some of them would have been safely locked 

up in Federal prison if the United States had brought them to 

trial? 

Mr. MALINOWSKI.. We actually know very little about most of 

them. I would start by suggesting that we all need to be cautious 

about the numbers that have been put out. You know, one in seven 

have gone back to the fight, one in ten. The numbers keep changing. The evidence behind those numbers is lacking, to say the least. 

You know, there have been guys put on that list because they gave 

an interview or wrote a book criticizing their treatment in Guantanamo, and that was deemed being part of the propaganda war 

against us. 

26 

There was a guy put on the list who went back to Russia and 

was picked up by the Russian authorities for allegedly committing 

a violent act, and the only evidence against him in trial was a confession that was tortured out of him by the Russian interior police. 

And we believe that is probably not something that we should be 

putting out as information with the U.S. seal of approval. 

That said, there are some number of people, we all have to acknowledge, who have gone back, of the 500-some who were released, who did commit violent acts. And that is something everyone has every right to be concerned about. I would say two things 

about that group of people. 

First, if they had engaged in terrorist acts or supported terrorism 

before they reached Guantanamo, then the best option that the 

Bush administration had was to prosecute them for those crimes, 

as it did with Moussaoui, as it did with Padilla, as it did with Richard Reid, as we have done with a lot of people who have done nothing more than spend time in a training camp or give money to the 

enemy, not particularly dramatic acts and yet they have been prosecuted. And had that been done, these people would be in a super 

max somewhere today and not creating a problem for us somewhere in Saudi Arabia or Yemen. 

Second, if these people did not engage in acts of terrorism or violence before coming to Guantanamo, then it is not correct to say 

that they returned to the fight. It would be more correct to say that 

we recruited them to the fight, which brings out once again the 

fundamental damage that this system has caused us and our national security. 

I think we need to remember, Mr. Chairman, that even as we sit 

here and focus on these 241 detainees in Guantanamo, what to do 

about them, there is a much larger problem out there. It is much 

larger than the number 241. It is the thousands upon thousands 

of young men who are virtually identical in their profiles to these 

men who are at large in the world, who pass through these camps 

in Afghanistan, who read the websites, who harbor the same views, 

who are potential recruits to this cause. But we win this fight by 

diminishing that pool, and what Guantanamo and the system have 

done is to increase that pool of potential terrorists. And that is why 

even as we struggle with the few dozen that we have to find some 

solution for, we have got to keep our eyes on that larger challenge. 

Chairman FEINGOLD. I appreciate that point very much. 

Professor Cleveland, yesterday ABC released a lengthy interview 

with Lakhdar Boumediene, who spent 71⁄2 years enduring harsh 

treatment at Guantanamo until he was finally released by an order 

of a Bush-appointed Federal judge for lack of any credible evidence 

to justify his detention. 

What lessons do we draw from Mr. Boumediene’s experience? 

And do we know how many innocent, non-dangerous false positives, 

if you will, have been imprisoned in Guantanamo? 

Ms. CLEVELAND. I think that Mr. Boumediene’s experience underscores precisely the infirmity of the idea that we can seize people far away from the battlefield, designate them as enemy combatants, and purport to lawfully detain them under the laws of war. 

Mr. Boumediene was working for the Red Crescent in Bosnia 

when he was arrested in October of 2001 and charged with conVerDate Nov 24 2008 14:27 Jun 28, 2010 Jkt 056832 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56832.TXT SJUD1 PsN: CMORC
27 

spiring to blow up the U.S. and British embassies. The Bosnian officials and a Bosnian court found that the allegations were not supported, and he was ordered released. But then the U.S. Government insisted that he be transferred to U.S. custody, and he was 

ultimately taken to Guantanamo and put into detention and coercive interrogation to try to extract from him information about his 

knowledge of al Qaeda, which he did not possess. 

So he, as you said, remained there for 71⁄2 years. The Combatant 

Status Review Tribunal process did not release him. He was only 

released after the Supreme Court ruled in the decision bearing his 

name that habeas jurisdiction applied to Guantanamo. 

So I think the lessons to be drawn are three: First, that this underscores the high risk of false positives for seizures outside the 

battlefield. 

Second, that prolonged detention often goes hand in hand with 

torture and abusive treatment. This is the experience in other 

countries around the world that employ preventive detention, and 

it was the experience in this case. 

And then, third, that robust legal process protects our Government. It does not just protect people like Boumediene. If he had 

been arrested with the expectation that he would be criminally 

prosecuted initially, evidence would have been maintained; he 

would have been put into a regular legal process. A court would 

have come to the conclusion much earlier that the wrong person 

was being held. And the Government would have been saved the 

embarrassment in this case. 

Chairman FEINGOLD. Mr. Laufman, you highlighted the public 

benefit of Federal criminal proceedings and educating the American people and the world about the nature of the terrorist threats 

that we all face. I would like to hear a little bit more about that. 

Would you provide some further details of this public benefit from 

your own experience? 

Mr. LAUFMAN. Well, probably the most signal experience I had 

was in the Abu Ali case, which has some resonance with respect 

to concerns today about whether the United States, like Britain, 

will become a target of homegrown radicalism. Abu Ali was a resident of Falls Church, Virginia, not far from where we are sitting 

here today, born in Houston, Texas, a very bright young man, went 

to Maryland as an engineering student, but became enthralled by 

Islamic radicalism through trips to Saudi Arabia to pursue religious study, and wound up joining an al Qaeda cell at the height 

of al Qaeda’s prominence on the Arabian peninsula, and somehow 

transformed from this young man with an extremely promising future into someone committed to waging acts of violence against the 

highest levels of the United States Government. 

All that information came out through a criminal trial, but it was 

a criminal trial that resulted from a lot of pulling and hauling with 

the U.S. Government about what to do. Abu Ali, it may not be well 

understood, almost became an enemy combatant and hung in the 

balance for some period of months before the Bush administration 

decided upon reviewing assessments by prosecutors that a case 

could be mounted in criminal court. But it hung in the balance for 

a while. 

28 

And our ability to bring a criminal case—and this ought to be 

brought out in this hearing as well—depended to a large extent on 

the cooperation of the intelligence community. My biggest struggles 

as a prosecutor, Mr. Chairman, were not against al Qaeda. They 

were with the general counsel’s office of the CIA. And they have 

a legitimate interest, as we all do, in protecting against the disclosure of classified information improperly. But there is sometimes 

an unduly reflexive response to guard against the sharing of information that could be used in a criminal case even if by any objective standard no harm would truly come to the U.S. national security interest. 

Chairman FEINGOLD. Thank you, Mr. Laufman. I will do a third 

round here, a final round. 

Mr. MALINOWSKI., as you know, any Federal criminal proceeding 

could conceivably end with an acquittal. How would you respond to 

those who would say this would be an unacceptable outcome in a 

terrorist case? And, of course, alluding to the comments of Mr. 

Rivkin, would an acquittal mean the release of an individual on 

American soil? 

Mr. MALINOWSKI.. No, I believe if it is an alien, not talking about 

an American citizen here, if it is an alien that we brought here, an 

acquittal would not result in the release of that person on American soil because we have all kinds of other legal mechanisms to 

detain and deport such people if the Government feels that they 

pose a continuing threat. 

But here is a bigger concern. Let us say we start with this proposition that we cannot afford an acquittal, and so we create a system that provides near certainty that someone who we believe is 

dangerous can be detained on an ongoing basis. If we have that option, that vastly easier option, my fear is that the government will 

always be tempted to use that option first, even for terrorist suspects against whom there is a pretty good likelihood of conviction. 

And so people who could be convicted, who could be put away for 

years and years and years, for life, then get put into this easier 

box, because in the short term it is more expedient. 

And then that box comes under challenge. It comes under legal 

challenge. Detainees get to argue that they should be released 

based on the illegitimacy of the system, not on the basis of their 

innocence. It comes under political challenge. It comes under international challenge. And it is not stable, and eventually we come 

under great pressure, legally and politically, to release these people. 

So, in the short term, it is expedient. In the long term, I think 

the danger of dangerous people being released is greater if we use 

a system that lacks stability. 

Chairman FEINGOLD. Thank you. 

Professor Cleveland, as you eloquently noted, the Bush administration’s failed experiment at Guantanamo has made it all the 

more difficult for America to promote the rule of law abroad. Could 

you give some examples of other countries that have used the prolonged detention regime at Guantanamo as a justification for their 

own human rights abuses? 

29 

Ms. CLEVELAND. In Egypt, for example, the Prime Minister pointed to U.S. post-9/11 security measures as a justification for renewing the emergency in Egypt. 

Perhaps the most disturbing example was in 2002, in his speech 

to the nation, When Muammar Qaddafi of Libya bragged to the 

Libyan public that he was treating terrorism suspects just like 

America does. 

In December of 2007, when U.S. officials tried to criticize Malaysia for its preventive detention of five Hindu rights activists, the 

response of the Deputy Prime Minister was, ‘‘Well, you clean up 

Guantanamo, and until you clean up Guantanamo, we don’t want 

to talk to you about having to justify our detention practices.’’ 

So there is an extremely corrosive impact on the rule of law in 

other countries, and many of these are countries where the rule of 

law is extremely fragile. We cannot afford to have the rule of law 

in countries like Egypt and Pakistan deteriorate, particularly not 

in response to the model that we have put out. 

Chairman FEINGOLD. Thank you, Professor. 

Mr. MALINOWSKI.. If I could maybe add one point to that. There 

are dozens of examples like that, but I think we also—when we put 

forward these theoretical arguments, we need to ask ourselves: 

Would we be comfortable if other countries applied similar theoretical arguments to their own conflicts and wars on terror? There 

are a lot of countries around the world that claim to be engaged 

in their own wars on terror—Russia, for example, which, you know, 

sees virtually anybody who stands up to its rule in the Caucasus 

and Chechnya, et cetera, to be a terrorist engaged in a war against 

the Russian state. 

Would we be comfortable if Russia started making the argument 

that, well, that is part of the global war, anybody who supports the 

Chechen cause in any way around the world is a combatant in that 

cause and, therefore, can be detained or killed as a combatant 

wherever they may be found? Not exactly a theoretical notion, as 

the Helsinki Commission knows quite well, given what has been 

happening to Russian dissidents in places like London and other 

places around the world. 

Would we be comfortable if the Chinese were going around the 

world rounding up Uyghurs because they were suspected of being 

part of a war on terror that China is waging? These are dangerous 

things. 

Chairman FEINGOLD. Thank you, Mr. Malinowski. 

I want Mr. Rivkin to have a quick chance to respond. 

Mr. RIVKIN. Mr. Chairman, I appreciate your indulgence, and I 

will be brief. I just want to say two things. 

First of all, there is an enormous difference in causation and correlation. Just because a bunch of hypocritical politicians in Russia 

or China or Malaysia or Egypt claim to be inspired by our example 

does not make it so. I think even a casual reader of newspapers 

would acknowledge that there was plenty of torture and horrible 

misbehavior by Egyptian authorities long before Guantanamo, by 

Libyan authorities, by Russian authorities, and the Chinese authorities. I mean, the notion that we caused those things just does 

not hold true. And just because an Egyptian official claims to be 

inspired by it, it does not make it so. 

30 

Chairman FEINGOLD. Ms. Massimino, I will let you do a very 

brief response. 

Ms. MASSIMINO. Very brief. 

Chairman FEINGOLD. But I do want Senator Cardin to have—— 

Ms. MASSIMINO. Absolutely, and I just want to distinguish. I 

think that the view that was just put forward by Mr. Rivkin devalues what I believe is the incredible force of the United States 

as an example for good in the world and the ability of the United 

States to challenge those policies. It is not that we are saying that 

the Russians or the Chinese are doing this because of the U.S. example but, rather, that our doing those things deprives us of the 

moral authority and standing to stand up for those people who are 

suffering in those countries. And the world very much needs that. 

Chairman FEINGOLD. Thank you. 

Senator Cardin? 

Senator Cardin. Well, thank you, Mr. Chairman. First, I want to 

thank you very much for holding this hearing. I apologize for not 

being here to listen to your testimonies. I can assure you that I will 

read them. This is an area of great interest, and as it has been 

pointed out, the Helsinki Commission that I chair—and Senator 

Feingold is a Commissioner—it is probably the No. 1 issue we hear 

about as we travel around Europe, around Asia. We hear more 

about the detainee issue than any other single issue for America. 

There is no one who challenges us, a country that is under attack 

by terrorists, for detaining suspected terrorists. They expect us to 

detain and try to get information to protect our Nation. But the 

fatal mistake that the United States made in this effort—and has 

caused significant damage to America—from my point of view, I 

think, of our national security as well as our international reputation, was the fact that we said we could do this alone, we did not 

need the understanding or support of the international community 

in the way that we were going to detain individuals, question them, 

and hold them accountable. 

The danger here is what I think some of you have already alluded to. How do you distinguish that from another country which 

is a threat, as they see it, an autocratic society that sees the free 

press as a threat to their way of life? So, therefore, isn’t it fair 

game to detain individuals that are proposing a free press or free 

expression and not have to deal with the international community 

because the United States did not have to deal with the international community and took steps in order to protect its society? 

So I think that is where we put our Nation at severe risk by 

what we did. And, obviously, the motivation is not being questioned 

here. We were under a severe threat. So this country developed 

policies on its own, did not encourage the international community’s participation. Worse than that, we were very secretive about 

it. There was no transparency. There was no effort to include the 

international community. 

And then we went one step further by the use of torture, which 

is unacceptable under any scenario, counterproductive to U.S. values and to the pragmatic way of trying to get information. 

So for all those reasons, we are now in a place that we have to 

repair the damage that has been done. And I think this hearing is 

particularly important because we talk about those categories of 

31 

detainees that are very dangerous. They are very dangerous. And 

no one wants them released into the community where they can go 

back and do their damage. But we do have a rule of law that we 

have to figure out how we are going to deal with this. 

There are no easy answers here, but we certainly are going to 

have a better chance to get it right if we have open hearings and 

discussion and debate on this subject. And that is why I wanted to 

particularly thank Senator Feingold for convening this hearing so 

that we can have a discussion about these issues and try to figure 

out what is the best way to carry out U.S. interests. 

But I must tell you what I will be recommending is that we involve the international community in making these decisions, that 

it should not just be a U.S. policy. The threat of terrorism is global. 

There is a need for the United States to lead internationally to develop the appropriate way that individuals should be treated who 

are suspected terrorists, and it involves getting information to keep 

us safe. It involves holding terrorists accountable for their criminal 

actions. But it also involves respecting the rule of law. And it is 

not the U.S. rule of law. It is the international accepted standards 

that the United States has helped develop over the years. 

And I think we will get back to that. I do not really have any 

specific questions, Mr. Chairman, because some of these questions 

have already been asked, and I really will read the record very 

carefully. But I just thank our panel for being engaged in this discussion. Sometimes it is a little painful, but it is something that 

we need to do, and a great democracy is prepared to take on these 

types of challenges. 

Chairman FEINGOLD. Thank you, Senator Cardin. I appreciate 

your comments very much, and your presence, of course. 

I want to once again thank all of our witnesses for being here 

today and for their testimony. This is obviously a very important 

issue, and I believe that the insights you have shared today will 

be very useful to the Senate as it considers any legislative proposal 

that comes before it. They will also be helpful to the administration 

as it weighs the costs and benefits of creating a new regime of prolonged detention. 

Our discussion today poses very difficult questions for an administration that, of course, seeks to be devoted to restoring the rule 

of law and trust in our values and our institutions. I plan to closely 

monitor the issue. 

The record of this hearing will remain open for one week to allow 

our witnesses and any interested individual or group to submit 

supplemental materials. In addition, members of the Subcommittee 

have 1 week to submit written follow-up questions for the witnesses. We will ask the witnesses to answer any such questions 

promptly so we can complete the record. 

With that, the hearing is adjourned. 

[Whereupon, at 11:41 a.m., the Subcommittee was adjourned.] 

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

32 


56832.001
33 


56832.002
34 


56832.003
35 


56832.004
36 


56832.005
37 


56832.006
38 


56832.007
39 


56832.008
40 


56832.009
41 


56832.010
42 


56832.011
43 


56832.241
44 


56832.012
45 


56832.013
46 


56832.014
47 


56832.015
48 


56832.016
49 


56832.017
50 


56832.018
51 


56832.019
52 


56832.020
53 


56832.021
54 


56832.022
55 


56832.023
56 


56832.024
57 


56832.025
58 


56832.026
59 


56832.027
60 


56832.028
61 


56832.029
62 


56832.030
63 


56832.031
64 


56832.032
65 


56832.033
66 


56832.034
67 


56832.035
68 


56832.036
69 


56832.037
70 


56832.038
71 


56832.039
72 


56832.040
73 


56832.041
74 


56832.042
75 


56832.043
76 


56832.044
77 


56832.045
78 


56832.046
79 


56832.047
80 


56832.048
81 


56832.049
82 


56832.050
83 


56832.051
84 


56832.052
85 


56832.053
86 


56832.054
87 


56832.055
88 


56832.056
89 


56832.057
90 


56832.058
91 


56832.059
92 


56832.060
93 


56832.061
94 


56832.062
95 


56832.063
96 


56832.064
97 


56832.065
98 


56832.066
99 


56832.067
100 


56832.068
101 


56832.069
102 


56832.070
103 


56832.071
104 


56832.072
105 


56832.073
106 


56832.074
107 


56832.075
108 


56832.076
109 


56832.077
110 


56832.078
111 


56832.079
112 


56832.080
113 


56832.081
114 


56832.082
115 


56832.083
116 


56832.084
117 


56832.085
118 


56832.086
119 


56832.087
120 


56832.088
121 


56832.089
122 


56832.090
123 


56832.091
124 


56832.092
125 


56832.093
126 


56832.094
127 


56832.095
128 


56832.096
129 


56832.097
130 


56832.098
131 


56832.099
132 


56832.100
133 


56832.101
134 


56832.102
135 


56832.103
136 


56832.104
137 


56832.105
138 


56832.106
139 


56832.107
140 


56832.108
141 


56832.109
142 


56832.110
143 


56832.111
144 


56832.112
145 


56832.113
146 


56832.114
147 


56832.115
148 


56832.116
149 


56832.117
150 


56832.118
151 


56832.119
152 


56832.120
153 


56832.121
154 


56832.122
155 


56832.123
156 


56832.124
157 


56832.125
158 


56832.126
159 


56832.127
160 


56832.128
161 


56832.129
162 


56832.130
163 


56832.131
164 


56832.132
165 


56832.133
166 


56832.134
167 


56832.135
168 


56832.136
169 


56832.137
170 


56832.138
171 


56832.139
172 


56832.140
173 


56832.141
174 


56832.142
175 


56832.143
176 


56832.144
177 


56832.145
178 


56832.146
179 


56832.147
180 


56832.148
181 


56832.149
182 


56832.150
183 


56832.151
184 


56832.152
185 


56832.153
186 


56832.154
187 


56832.155
188 


56832.156
189 


56832.157
190 


56832.158
191 


56832.159
192 


56832.160
193 


56832.161
194 


56832.162
195 


56832.163
196 


56832.164
197 


56832.165
198 


56832.166
199 


56832.167
200 


56832.168
201 


56832.169
202 


56832.170
203 


56832.171
204 


56832.172
205 


56832.173
206 


56832.174
207 


56832.175
208 


56832.176
209 


56832.177
210 


56832.178
211 


56832.179
212 


56832.180
213 


56832.181
214 


56832.182
215 


56832.183
216 


56832.184
217 


56832.185
218 


56832.186
219 


56832.187
220 


56832.188
221 


56832.189
222 


56832.190
223 


56832.191
224 


56832.192
225 


56832.193
226 


56832.194
227 


56832.195
228 


56832.196
229 


56832.197
230 


56832.198
231 


56832.199
232 


56832.200
233 


56832.201
234 


56832.202
235 


56832.203
236 


56832.204
237 


56832.205
238 


56832.206
239 


56832.207
240 


56832.208
241 


56832.209
242 


56832.210
243 


56832.211
244 


56832.212
245 


56832.213
246 


56832.214
247 


56832.215
248 


56832.216
249 


56832.217
250 


56832.218
251 


56832.219
252 


56832.220
253 


56832.221
254 


56832.222
255 


56832.223
256 


56832.224
257 


56832.225
258 


56832.226
259 


56832.227
260 


56832.228
261 


56832.229
262 


56832.230
263 


56832.231
264 


56832.232
265 


56832.233
266 


56832.234
267 


56832.235
268 


56832.236
269 


56832.237
270 


56832.238
271 


56832.239
272 

Æ 


56832.240