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S. HRG. 109–600

DETAINEES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JUNE 15, 2005

Serial No. J–109–25

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 204

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3

prepared statement .......................................................................................... 250

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES

Barr, William P., former Attorney General of the United States, and Executive Vice President and General Counsel, Verizon Corporation, Washington, 

D.C. ........................................................................................................................ 46

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C. .. 11

Hemingway, Thomas L., Brigadier General, Legal Advisor to the Appointing 

Authority for the Office of Military Commissions, Department of Defense, 

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

Margulies, Joseph, Margulies and Richman, Minneapolis, Minnesota ............... 43

McGarrah, James M., Rear Admiral, Director of Administrative Review of 

the Detention of Enemy Combatants, Department of the Navy, Washington, 

D.C. ........................................................................................................................ 5

Schulhofer, Stephen J., Professor, New York University School of Law, New 

York, New York .................................................................................................... 49

Swift, Charles D., Lieutenant Commander, Defense Counsel, Office of Chief 

Justice Counsel, Department of Defense, Washington, D.C. ............................ 48

Wiggins, J. Michael, Deputy Associate Attorney General, Department of Justice, Washington, D.C. ......................................................................................... 9

QUESTIONS AND ANSWERS

Responses of Michael J. Wiggins to questions submitted by Senators Biden, 

Cornyn, Leahy, and Feingold .............................................................................. 65

Responses of Admiral McGarrah and General Hemingway to questions submitted by Senators Leahy, Biden, Feingold and Cornyn .................................. 73

Responses of Joseph Margulies to questions submitted by Senators Specter, 

Leahy, and Members of the Committee ............................................................. 138

Responses of Glenn A. Fine to questions submitted by Senators Biden and 

Feingold ................................................................................................................ 143

Responses of Stephen J. Schulhofer to questions submitted by Senators Biden 

and Leahy ............................................................................................................. 147

SUBMISSIONS FOR THE RECORD

Amnesty International USA, New York, New York, statement .......................... 179

Barr, William P., former Attorney General of the United States, and Executive Vice President and General Counsel, Verizon Corporation, Washington, 

D.C., statement .................................................................................................... 184

Chicago Sun-Times, Mark Steyn, article ............................................................... 202

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C., 

statement .............................................................................................................. 206

Hemingway, Thomas L., Brigadier General, Legal Advisor to the Appointing 

Authority for the Office of Military Commissions, Department of Defense, 

Washington, D.C., statement .............................................................................. 220

Page

IV

Human Rights First, Deborah Pearlstein, Director, U.S. Law and Security 

Program, Washington, D.C., statement .............................................................. 225

Jacoby, Lowell E., Vice Admiral, U.S. Navy and Director, Defense Intelligence 

Agency, Washington, D.C., declaration .............................................................. 237

Margulies, Joseph, Margulies and Richman, Minneapolis, Minnesota, statement and attachments ......................................................................................... 254

McGarrah, James M., Rear Admiral, Director of Administrative Review of 

the Detention of Enemy Combatants, Department of the Navy, Washington, 

D.C., statement .................................................................................................... 282

Schulhofer, Stephen J., Professor, New York University School of Law, New 

York, New York, statement ................................................................................. 287

Swift, Charles D., Lieutenant Commander, Defense Counsel, Office of Chief 

Justice Counsel, Department of Defense, Washington, D.C., statement and 

attachment ............................................................................................................ 302

Wiggins, J. Michael, Deputy Associate Attorney General, Department of Justice, Washington, D.C., statement ...................................................................... 322

(1)

DETAINEES 

WEDNESDAY, JUNE 15, 2005

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Kyl, DeWine, Sessions, Graham, 

Cornyn, Coburn, Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, 

and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. It is 

9:30 on the button. We will proceed with the Judiciary Committee 

hearing on the question of detainees. 

The starting point of this issue is the Constitution of the United 

States. Under Article I, section 8, clauses 10 and 11, the Constitution explicitly confers upon Congress the power ‘‘to define and punish offenses against the laws of nations’’ and ‘‘to make rules concerning captures on land and water.’’ 

The executive branch issued on November 13, 2001, under the 

caption Presidential Executive Military Order, rules promulgated 

for detention, treatment, and trial of certain non-citizens in the 

war against terrorism. Then on July 7, 2004, 9 days after a trilogy 

of Supreme Court cases, the Department of Defense created Combat Status Review Tribunals. 

The focus of today’s hearing is going to be on the procedures used 

with detainees. We do not have within the scope of this hearing the 

issues of torture or mistreatment. The subject we have today is 

very, very complicated in and of itself, and there will be sufficient 

time for later hearings on other related matters. 

The Supreme Court of the United States on June 28th of 2004 

came down with a complex series of opinions in three cases, one of 

which only has a plurality opinion, which means four Justices 

agreed on an opinion so there is not an opinion of the Court. The 

two others were five-person majority opinions, and a total of some 

13 opinions were issued in all, and I think any fair analysis would 

say that we have a crazy quilt which we are dealing with here, and 

that has been supplemented by three opinions in the United States 

District Court for the District of Columbia, two of which have said 

detainees’ rights are being violated, one opinion saying detainees’ 

rights are being upheld. They have been sitting in the court of apVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
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peals for a very long period of time. They were decided, one before 

2004 ended and the other two in early 2005, and the Judiciary 

Committee is going to consider—a touchy subject, but we are going 

to consider putting time limits on the disposition of these highly 

sensitive cases. Judges do not like that. We do not want to interfere with their judicial independence. But the Congress does have 

the authority to establish time parameters, which we have done in 

a number of situations. 

The only unifying factor coming out of the multitude of opinions 

by the Supreme Court of the United States was that it is really the 

job of the Congress, and I think they made a pretty good case for 

that. Senator Durbin and I introduced legislation in 2002, and Congressman Frank introduced legislation, but none of it has gone 

anywhere, and there is a real question as to why Congress has not 

handled it. It may be that it is too hot to handle for Congress. It 

may be that it is too complex to handle for Congress. Or it may be 

that Congress wants to sit back as Congress, we, customarily do 

awaiting some action by the court no matter how long it takes, 

Plessy v. Ferguson in 1896 to Brown v. Board of Education in 1954. 

But, at any rate, Congress has not acted, and that is really what 

the focus of our hearing is today, as to what ought to be done. 

Justice Scalia wrote in an opinion, joined by the Chief Justice 

and Justice Thomas, ‘‘Congress is in session. If it had wished to 

change Federal judges’ habeas jurisdiction from what this Court 

held that to be, it could have done so.’’ Which is certainly true. 

Then Justice Scalia turned his wrath on his colleagues in the Supreme Court of the United States, saying, ‘‘And it could have done 

so by intelligent revision of the statutes instead of today’s clumsy, 

countertextual interpretation that confers upon wartime prisoners 

greater rights than domestic detainees.’’ 

I would ordinarily stop at 5 minutes, but this is a complex subject. I am going to take a very small amount of extra time, colleagues. 

Then Justice Scalia went on to say, in certainly not subdued language, ‘‘For this Court to create such a monstrous scheme in time 

of war and in frustration of our military commanders’ reliance 

upon clearly stated prior law is judicial adventurism of the worst 

sort.’’ We constantly complain that the Court makes the law, and 

here we are having sat back with our constitutional mandate pretty clear. 

In more circumspect language, Justice Stevens went on to make 

a point which is worth emphasizing here this morning. This opinion was joined in by Justice Stevens, in dissent in Hamdi, which 

may account for Justice Scalia’s more temperate language. He 

wrote that he could not determine the ‘‘Government security needs’’ 

or the necessity to ‘‘obtain intelligence through interrogation,’’ concluding, ‘‘It is far beyond my competence or the Court’s competence 

to determine that, but it is not beyond Congress’. If civil rights are 

to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of the Court.’’ 

As noted in the Congressional Research Service, the Supreme 

Court decisions leave many questions unanswered for lower courts: 

the definition of the term ‘‘enemy combatant,’’ the scope of legal 

3

procedures due persons designated as such. Would habeas corpus 

be foreclosed if a detainee is convicted by a military commission? 

Would a detainee have access to United States courts where held 

abroad by the United States military in locations where the United 

States does not exercise full jurisdiction and control? And then in 

Judge Green’s opinion—and I will not take much more time—

Judge Green puts on the line many, many other critical issues 

which have yet to be defined. 

So that it seems to me that Congress has its work cut out for 

it as we look at a very, very tough issue on how we handle detainees. That is a very abbreviated statement of what I would like to 

say. 

Senator Leahy? 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Mr. Chairman, I think it is a valuable one because it has been well over 3 years since the administration began 

to hold detainees at Guantanamo. The first batch of 20 arrived 

January 2002. There are now more than 500 there, although nobody seems to be able to tell us what the exact number is. So this 

is a welcome hearing for us to decide what we should do, and I 

commend the Chairman for holding it. 

I think the amount of interest around the country in the hearing 

shows how the American people feel. This policy on detainees is 

clearly not working. We seem to have a difficulty in getting a coherent theory from the administration how to proceed. 

In 2001, military commissions were defended by the then-Attorney General as tribunals that ‘‘can dispense justice swiftly, close to 

where our forces may be fighting, without years of pre-trial proceeding or post-trial appeals.’’ Now, that was 3 years ago. But far 

from assuring swift justice, we have not seen any justice. There has 

not been a single military commission complete a hearing or convict a suspected terrorist in those 3 years. 

Until a year ago, the administration seemed to hold tight to the 

notion that by detaining prisoners at Guantanamo Bay, a location 

where the prisoners had no right of access to the courts, it could 

shield itself from judicial challenge. But the Supreme Court in 

Rasul v. Bush rejected that legal theory. 

Now we hold to the theory that they will be there until the end 

of the war on terror. All of us know that war will not end in our 

lifetime. 

What has become clear is that the policies were poorly reasoned 

and apparently extremely short-sighted. The administration’s insistence on unilateralism, a tendency and a problem that has colored and undermined so many of the policies, has led to poor decisions and poor practices and detention policies as well. What they 

have said to us from the start is, ‘‘Trust us. Trust us that we know 

the law and that we will comply with it. Trust us to treat detainees 

humanely, in accordance with our laws and treaties. Trust us that 

Guantanamo is going to make Americans safer.’’ 

Now, 3 years later, about the only thing we know for certain is 

that trust may well have been misplaced. Guantanamo Bay is an 

international embarrassment to our Nation, to our ideals, and it reVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
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mains a frustrating threat to our security. Our great country, 

America, was once viewed as a leader in human rights and the rule 

of law, and justly so. But Guantanamo has undermined our leadership and has damaged our credibility. It has drained the world’s 

good will for America at alarming rates. 

I was recently at a meeting of NATO parliamentarians. These 

are countries that are most closely allied with America. They have 

been our strongest supporters. The first question each of them 

asked is: What about Guantanamo? What about Afghanistan and 

Iraq? And they tell us—and I must agree—that these are not the 

policies of a great and just nation. They are not the American system of justice. 

Now, the administration did not want to have Congress as a 

partner in the war on terror and insisted on acting unilaterally. 

From the start of combat in Afghanistan in October 2001, I urge 

President Bush to work with Congress to fashion appropriate rules 

and procedures for detaining and punishing suspected terrorists. 

That was not a partisan thing. Our Chairman, Senator Specter, did 

the same. We both noted at the time that Government is at its 

strongest when the executive and legislative branches of Government act in concert. That was rejected. 

So now I say, What is the administration’s plan for Guantanamo 

Bay, assuming there is a plan? What does the administration intend to do with more than 500 detainees still imprisoned there? 

How many are going to be released and when? How many are 

going to be charged and tried, and win? 

The administration says that these detainees pose a threat to the 

safety of Americans. The Vice President said that the other day. If 

that is true, if they pose a threat to us, then there has to be evidence to support that, or the administration would not tell the 

world that. And if there is evidence, then let’s prosecute them. Let’s 

bring the evidence forward. 

But we also know that some of these detainees have been wrongly detained, and I suspect that there are others who have not been 

released that have weak evidence at best. If they are being detained in accordance with Geneva Conventions, that is one thing. 

But that is not it. This idea of changing the focus, producing props 

of chicken dinners and such, seeming to argue this is more a Club 

Med than a prison, let’s get real. These people have been locked up 

for 3 years, no end in sight, and no process to lead us out of there. 

Guantanamo Bay is causing immeasurable damage to our reputation as a defender of democracy and a beacon of human rights 

around the world. I am proud of what our Nation has accomplished. I want us to be that beacon of human rights. But we are 

not being it with Guantanamo. We do not have a plan to repair the 

damage. Congress has abdicated its oversight responsibilities for 

too long. I think it is time for Congress to demand a way out. 

Mr. Chairman, I applaud you for holding these hearings. 

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

Chairman SPECTER. Thank you very much, Senator Leahy. 

We turn now to our first witness, who is Rear Admiral James 

McGarrah. He has a very, very distinguished record, which will be 

incorporated into our hearing record. But suffice it to say for these 

5

purposes he has been designated by the Secretary of the Navy as 

Director of the Administrative Review of the Detention of Enemy 

Combatants, going right to the heart of our subject. 

Admiral, we have a standard policy of 5 minutes for opening 

statements. All of the statements will be made a part of the record, 

but that leaves us the maximum amount of time for questions and 

answers by members of the Committee, and you can see today that 

this is a hearing where there is a lot of interest and there will be 

a lot of questions. Thank you for joining us, Admiral McGarrah, 

and we appreciate the Department of Defense providing you and 

General Hemingway as experts, and the other witnesses who are 

here today, and we look forward to your testimony. 

STATEMENT OF REAR ADMIRAL JAMES M. MCGARRAH, DIRECTOR OF ADMINISTRATIVE REVIEW OF THE DETENTION OF 

ENEMY COMBATANTS, DEPARTMENT OF THE NAVY, WASHINGTON, D.C. 

Admiral MCGARRAH. Senator Specter, Senator Leahy, members 

of the Committee, I am Admiral Jim McGarrah, Civil Engineer 

Corps, United States Navy, and I really do appreciate the opportunity to be here today. 

In May of last year, Deputy Secretary of Defense Paul Wolfowitz 

named Secretary of the Navy Gordon England the Designated Civilian Official, or DCO, to supervise the process to review annually 

the cases of all detainees held under DOD control at the naval base 

at Guantanamo Bay, Cuba. Secretary England in turn appointed 

me as the Director of the Office for the Administrative Review for 

the Detention of Enemy Combatants, the organization that he 

charged with carrying out this review process. At the time we solicited input from the international Committee of the Red Cross, from 

non-governmental organizations, and from Ambassadors of the 

countries with detainees at Guantanamo Bay, and then worked 

across all U.S. Government agencies to develop a rigorous and fair 

review process called the Administrative Review Board, or ARB. 

The purpose of the ARB process is to assess annually whether each 

enemy combatant at Guantanamo continues to pose a threat to the 

United States or its allies, or whether there are other factors that 

would support the need for continued detention. Based on this assessment, the ARB panel can recommend to Secretary England in 

his role as DCO that individual detainees be released, continue to 

be detained, or be transferred with conditions to their country of 

nationality. Secretary England, as the DCO, is the final decision 

maker for this process. 

While the ARB procedures were being developed last summer, 

the U.S. Supreme Court issued three rulings related to detained 

enemy combatants. Among other things, the Court in one of those 

cases held that Federal courts have jurisdiction, under the Federal 

habeas corpus statute, to hear challenges to the legality of the detention of Guantanamo Bay detainees. In another one of those 

cases, a plurality of the Court cited Section 1–6 of Army Regulation 

190–8 as an example of military regulations that might suffice to 

satisfy the due process requirements that the plurality indicated 

would apply to a U.S. citizen held as an enemy combatant in the 

United States. In light of those decisions, the Deputy Secretary of 

6

Defense established the Combatant Status Review Tribunal, or 

CSRT, process to assess formally whether each detainee was properly detained as an enemy combatant and to permit each detainee 

the opportunity to contest the enemy combatant designation. The 

CSRT process was based on Army Regulation 190–8, which provides policy, procedures, and responsibilities for handling of prisoners of war and other detainees. Specifically, it outlines provisions 

for tribunals that exceed the requirements of tribunals that implement Article 5 of the 1949 Geneva Convention, which requires a 

competent tribunal to determine the status of belligerents in cases 

where any doubt arises as to whether a belligerent satisfies the requirements for prisoner of war status. 

The CSRT is a one-time process for each detainee and provides 

them opportunities: 

The opportunity for review and consideration by a neutral decision-making panel composed of three commissioned military officers sworn to execute their duties faithfully and impartially. The 

tribunals make their decisions by majority vote based on preponderance of evidence; 

The opportunity to attend all open portions of the proceedings; 

The opportunity to call witnesses on his behalf, if those witnesses 

are relevant and reasonably available; 

The opportunity to question witnesses called by the tribunal; 

The opportunity to testify on his own behalf if he desires; 

The opportunity to receive assistance of an interpreter, when 

necessary; and 

The opportunity freely to decline to testify. 

The CSRT process also provides more process and protections 

than Army Regulation 190–8: 

The Detainee is given an opportunity to receive assistance from 

a military officer to ensure he understands the process and the opportunities available, and to prepare for the hearing. 

The CSRTs contain express qualifications to ensure the independence and lack of prejudgment of the tribunal members. 

The CSRT Recorder is obligated to search Government files for 

evidence suggesting the detainee is not an enemy combatant. 

In advance of the hearing, the detainee is provided with an unclassified summary of the evidence supporting his enemy combatant designation. 

And the result of every CSRT is automatically reviewed by a 

higher authority, who is empowered to return the record to the tribunal for further proceedings, if appropriate. 

Secretary England appointed me as the Convening Authority for 

this process. The tribunal panels were the decision makers in this 

process. In my Convening Authority review, I could either approve 

the panel’s decision or I could return it for further deliberation. In 

less than 6 months, tribunal hearings were conducted on all 558 

detainees under Department of Defense control at Guantanamo 

Bay. Of those 558 cases heard, the CSRT panels determined that 

520 of those detainees were properly classified as enemy combatants and that 38 detainees no longer met the criteria for enemy 

combatant designation. Those found to no longer meet the criteria 

were processed for release. Twenty-three have been released, and 

7

the Department of Defense continues to work closely with Department of State to effect the release of the remaining 15. 

The first ARB was conducted in December of 2004. The ARB 

process is ongoing, with the expectation that we will complete the 

first annual review for all eligible detainees by the end of this calendar year. It provides each eligible detainee with opportunities. 

Chairman SPECTER. Admiral McGarrah, could you summarize, 

please? 

Admiral MCGARRAH. I will. The ARB process is intended to be 

similar to the CSRT process in that it is rigorous and fair and will 

assess on an annual basis whether or not the detainees continue 

to pose a threat to the U.S. or its allies. The DCO is the decision 

maker in that process and can decide to continue to detain, to release, or to transfer. 

Because of the highly unusual nature of the global war on terror 

and because we do not want to detain any person longer than is 

necessary, we have taken this unprecedented and historic action to 

establish this process to permit enemy combatants to be heard 

while a conflict is ongoing. 

Mr. Chairman, thank you again for the opportunity to provide 

this information. I would ask that the remainder of my remarks be 

submitted to the record, and I am happy to answer any questions 

that you or the Committee members might have regarding the 

CSRT process or the ARB. 

[The prepared statement of Admiral McGarrah appears as a submission for the record.] 

Chairman SPECTER. All of your statement will be made a part of 

the record, as will the full statements of all of the witnesses. 

We will turn now to General Thomas L. Hemingway. He is the 

Legal Advisor to the Appointing Authority in the Department of 

Defense Office of Military Commissions. General Hemingway’s responsibility covers providing legal advice to the Appointing Authority on referral of charges, questions that arise during trial, and 

other legal matters concerning military commissions. 

Thank you for coming in this morning, General, and we look forward to your testimony. 

STATEMENT OF BRIGADIER GENERAL THOMAS L. HEMINGWAY, LEGAL ADVISOR TO THE APPOINTING AUTHORITY FOR 

THE OFFICE OF MILITARY COMMISSIONS, DEPARTMENT OF 

DEFENSE, WASHINGTON, D.C. 

General HEMINGWAY. Thank you, Mr. Chairman, members of the 

Committee. I am pleased to discuss the operations of our Office of 

Military Commissions. 

America is at war. It is not a metaphorical war. It is as tangible 

as the blood, the rubble that littered the streets of Manhattan on 

September 11, 2001. The reality of this war could be seen in the 

faces of those who stood in stark horror as they saw helpless, innocent people fall and jump to their deaths from the Twin Towers. 

In response to the attacks on the United States on September 11, 

2002, the President established military commissions to try those 

non-citizen members of al Qaeda and other persons engaged in 

specified terrorist activities who are alleged to have committed violations of the laws of war and related offenses. 

8

The use of military commissions predates the formation of our 

Republic. Since the Revolutionary War, the United States has used 

military commissions to try enemy combatants for law of war violations. In the Mexican-American War, during the Civil War, following the Civil War, during and after World War II, military commissions were used to try enemy combatants for violations of the 

laws of war. In the President’s Military Order establishing military 

commissions, he mandated that the accused shall be afforded a full 

and fair trial. The President also determined that the Federal 

Rules of Evidence are not practicable for military commissions 

given the nature of this conflict. This determination is based on the 

unique factors present in conducting judicial proceedings against 

suspected warm criminals at a time when the United States is actively engaged in an ongoing armed conflict. Instead of the Federal 

Rules of Evidence, military commissions have adopted the internationally accepted standard of admissibility of evidence—probative value. 

The President’s Military Order focuses on the unique factors of 

the current ongoing hostilities and affirms that national security 

interests require the continued application of U.S. national security 

laws in developing commission instructions and orders consistent 

with the accused’s right to a fair trial. These orders, instructions, 

and regulations afford an accused the following rights: the presumption of innocence; trial before an impartial and independent 

panel of three to seven officers; notification of charges in language 

understood by the accused; call witnesses and present evidence; 

cross-examine witnesses and examine evidence; election not to testify with no adverse inference; appointment of military counsel at 

no cost to the defendant and the right to hire a civilian counsel at 

no expense to the government; privileged communications with defense counsel; adequate support and resources to defense counsel; 

appointment of interpreters and translators; open proceedings, except as absolutely necessary to protect national security; proof of 

guilt beyond a reasonable doubt; review of the record of trial by a 

three-member review panel. 

The rules of evidence and procedure established for trials by 

military commission compare favorably to those being used in the 

International Criminal Tribunal for Rwanda and the International 

Criminal Tribunal for the former Yugoslavia. These rules are consistent with our National commitment to adhere to the rule of law. 

The Office of Military Commissions has taken key steps in moving the commission process forward. To date, the President has determined that 12 detainees currently at Guantanamo are subject to 

his order. The Appointing Authority, Mr. John D. Altenburg, has 

approved charges against four accused and referred these charges 

to military commissions for trial. Those trials commenced late in 

the summer of 2004. The Office of Military Commissions has been 

working diligently to convene military commissions; however, the 

trials are stayed pending an appellate court decision in the case of 

Mr. Hamdan. Military and civilian counsel for Mr. Hamdan 

brought an action in the United States District Court to review the 

legality of trial by military commissions. The district court affirmed 

the legality of military commissions to try violators of the law of 

war, and a review panel has an appeals mechanism. However, the 

9

court raised concerns about the commission process whereby an accused may be excluded from the hearing to protect classified and 

protected information. Because this protection is essential to the 

continued effectiveness in our current war on terror, the Government has appealed this ruling. The delays to the commission process are directly attributable to the exercise of the accused’s ability 

to challenge that process in Federal courts. While the appeal is 

pending, investigations and submissions of charges against additional accused continue. 

This is the first time since World War II that the United States 

has had a need to convene military commissions. While it is important to move quickly back to trial, the Office of Military Commissions’ movement forward is measured with full awareness and consideration of the rights of an accused and the needs of our Nation. 

The ongoing global war on terrorism continues to pose many 

unique challenges in this asymmetrical battlefield. Neither the 

United States nor the international community contemplated a 

non-state organization having the capability to wage war on a global scale. Military commissions are the appropriate forum to preserve safety, protect national security, and provide for full and fair 

trials consistent with our standards and those of the international 

community. 

Thank you, Mr. Chairman. 

[The prepared statement of General Hemingway appears as a 

submission for the record.] 

Chairman SPECTER. Thank you very much, General Hemingway. 

Our next witness is Mr. J. Michael Wiggins, Deputy Associate 

Attorney General, having the responsibility for overseeing the Department of Justice Civil Division, civil rights and criminal matters 

within the civil litigating divisions covering the areas of concern 

here. His full resume of a very distinguished record will be included in our record overall, but we appreciate your coming in, Mr. 

Wiggins, and look forward to your testimony. The floor is now 

yours. 

STATEMENT OF J. MICHAEL WIGGINS, DEPUTY ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. WIGGINS. Mr. Chairman, members of the Committee, I am 

a Deputy Associate Attorney General at the Department of Justice, 

and I am pleased to discuss the work of the Department and the 

current status of litigation involving the U.S. Government’s detention of enemy combatants at Guantanamo Bay, Cuba, as part of the 

ongoing war on terror. 

In response to the terrorist attacks of September 11, 2001, the 

President dispatched the U.S. Armed Forces to seek out and subdue the al Qaeda terrorist network and the Taliban regime and 

others that had supported it. In the course of those hostilities, the 

U.S. captured or took custody of a number of enemy combatants. 

As in virtually every other armed conflict in the Nation’s history, 

the military has determined that many of those individuals should 

be detained during the conflict as enemy combatants. Such detention is not for criminal justice purposes and is not part of our Nation’s criminal justice system. Rather, detention of enemy combatVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
10

ants serves the vital military objectives of preventing captured 

combatants from rejoining the conflict and gathering intelligence to 

further the overall war effort and to prevent additional attacks 

against our country. Some of those individuals are being held at 

Guantanamo Bay, Cuba. 

Each Guantanamo Bay detainee has received a formal hearing 

before a Combatant Status Review Tribunal, a CSRT, for determining whether that individual remains properly classified as an 

enemy combatant. 

During the CSRT proceedings, each detainee received substantial 

procedural protections. In addition, a subset of combatants have 

been designated for trial by military commission. Since the founding of our Nation, the United States military has used military 

commissions during wartime to try offenses against the laws of 

war. The Supreme Court has repeatedly upheld the use of these 

military commissions. 

Against this backdrop of legal authority and historic practice, on 

November 13, 2001, the President ordered the establishment of 

military commissions to try a subset of the detainees for violations 

of the laws of war and other applicable laws. Under the military 

order, a military commission may not exercise jurisdiction over a 

detainee unless certain preconditions have been met, always including status as an alien and generally including a determination 

of connection to the violent enemies of the United States and a specific violation of the laws of war. 

On June 28, 2004, the Supreme Court issued a trio of decisions 

that defined the landscape for future litigation involving military 

detention of enemy combatants: Rasul, Hamdi, and Padilla. In the 

aftermath of the decision in Rasul, a large number of habeas petitions have been filed on behalf of Guantanamo Bay detainees. As 

of today, approximately 95 cases have been filed on behalf of 

approximataly 200 detainees. 

While the Government has taken unprecedented steps to allow 

private lawyers access to these detainees and has produced factual 

returns consisting of the records of the CSRTs, including classified 

information, it has moved to dismiss Guantanamo Bay detainee habeas cases on the grounds that alien enemy combatants detained 

abroad lack rights under the United States Constitution. And even 

if Guantanamo Bay detainees do enjoy some rights under the Constitution, the Due Process Clause, the CSRTs provide all the process that is required. Litigation in this area presents a number of 

important issues. The first is whether the Due Process Clause of 

the Fifth Amendment is applicable to aliens captured abroad and 

detained at Guantanamo Bay. The Government believes that a long 

line of Supreme Court and D.C. Circuit precedents foreclose such 

application. 

The second issue is, assuming that aliens detained by the military at Guantanamo Bay enjoy some constitutional rights, what is 

the scope of those rights and how are they to be implemented in 

a judicial proceeding in the United States courts? Again, it is crucial to remember that preventive detention of enemy combatants 

has never been thought of as a criminal matter in which a fullblown trial would be held. 

11

The CSRTs exceed the procedural requirements that were laid 

out in Hamdi for detention of citizens. It surely cannot be the case 

that non-citizen enemy combatants whose only connection to the 

United States is membership in a terrorist organization dedicated 

to destroying it are entitled to more process than that which the 

Constitution requires for citizens. 

As for the military commissions, the Government believes that 

the judge who enjoined them committed several legal errors, and 

we hope that the trials before military commissions for detainees 

will be permitted to proceed after the appeal is resolved. The President’s Military Order is fully consistent with the Constitution, treaties, and laws of the United States and the regulations established 

to govern the commissions reflect proper balancing of the twin objectives of protecting the security of the U.S. and providing captured fighters a full and fair trial. 

In sum, the unprecedented situation created by Rasul in which 

alien enemy combatants detained at Guantanamo Bay by the military have been permitted to pursue habeas claims against their 

custodians in the United States courts has posed a number of challenges and a number of substantial legal issues that await resolution by the courts. 

At this time, Mr. Chairman, I would be happy to address any 

questions you or other members of the Committee may have. 

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

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Wiggins. 

Our final witness on this panel is Inspector General of the Department of Justice. Mr. Glenn A. Fine has had that position since 

the year 2000. We will include in the record his distinguished resume. 

We have asked Mr. Fine to come in today. Although not directly 

related to Guantanamo, it does related to detainees. And there is 

a concern about the 723 aliens who were detained right after September 11th with respect to the basis for their detention. And here, 

again, the Committee is fully aware that you do not have to have 

the evidence to proceed with probable cause for a prosecution or 

any necessarily high standard, but some reason for detention which 

has some overlapping import with respect to the detainee issue 

generally. Again, very flexible standards for what you need, depending upon the risks involved, and we know what those risks are 

for terrorism. But we have asked Mr. Fine to come in on that subject where we did have a hearing in 2003, but the Bureau of Prisons has been investigating the matter for a year and a half, and 

we thought this would be a good occasion for this Committee to be 

informed as to what is happening now. 

Thank you for joining us, Mr. Fine, and we look forward to your 

testimony. 

STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FINE. Mr. Chairman, Senator Leahy, and members of the 

Committee, thank you for inviting me to testify at this morning’s 

hearing regarding two Office of the Inspector General reports 

which examined the treatment of aliens detained on immigration 

12

charges in connection with the terrorism investigations after the 

September 11th attacks. 

My written statement summarizes the findings and recommendations from the OIG’s June 2003 detainee report as well as our December 2003 supplemental report on the treatment of detainees at 

the Metropolitan Detention Center in Brooklyn, New York. 

Given the focus of today’s hearing, my testimony will highlight 

the major findings from these reports that relate to due process 

issues for these immigration detainees. 

The OIG determined that the Department of Justice detained 

762 aliens on immigration charges in connection with its terrorism 

investigation in the first 11 months after the September 11th attacks. Although our report recognized the difficulties and challenges that confronted the Department in investigating the attacks, 

we found significant problems in how these detainees were treated. 

The FBI pursued thousands of leads in the terrorism investigation ranging from information obtained from a search of the hijackers’ cars to anonymous tips called in by people who were suspicious 

of Muslim or Arab neighbors who kept odd schedules. 

Outside of New York, the FBI attempted to screen out cases in 

which aliens showed no indication of any connection to terrorism. 

We found that, in contrast, the FBI in New York did not attempt 

to distinguish between aliens who were suspected of having a connection to the September 11th attacks or terrorism in general from 

aliens who were simply encountered coincidental to a terrorism 

lead. 

We also found that after their arrests, many of these September 

11th detainees did not receive timely notice of the charges against 

them. These delays affected the detainees’ ability to understand 

why they were being held or to obtain legal counsel. 

With regard to the detainees’ conditions of confinement, our review found serious problems in their treatment at the Metropolitan 

Detention Center in Brooklyn. We found that the Bureau of Prisons 

imposed a total communications blackout on the detainees for several weeks after their initial detention and then designated them 

as witness security inmates, which frustrated efforts by the detainees’ attorneys, families, and even law enforcement officials to determine where they were being held. 

The MDC’s restrictive and inconsistent policies on telephone access also prevented many detainees from obtaining legal counsel in 

a timely manner. The MDC permitted detainees only one legal call 

per week, and calls that resulted in a busy signal or calls answered 

by voice mail counted as their single call. We found that many detainees could not obtain counsel for months after their arrest. 

We also found that MDC staff videotaped and audiotaped some 

detainees’ meetings with their attorneys. In addition, we found that 

some correctional officers physically and verbally abused some September 11th detainees at the MDC. While the detainees were not 

brutally beaten, some officers slammed detainees against the wall, 

twisted their arms and hands in painful ways, punished them by 

keeping them restrained for long periods, and made slurs and 

verbal threats against them. 

We recommended that the BOP consider taking disciplinary action against approximately 15 MDC employees. Yet more than 18 

13

months after our report, the BOP still has not imposed discipline 

on any individual for any action we described in our report. In my 

view, this delay is inappropriate and unacceptable. 

While I am told that the BPO’s review of these matters is now 

in its final stages, I urge the BOP to complete its review expeditiously and take appropriate action. 

In addition to recommending discipline for individuals, our two 

reports made a series of recommendations to address systemic 

problems in how the Department, the FBI, and the BOP handle immigration detainees. We are pleased that the Department, the FBI, 

and the BOP have agreed with most of our recommendations and 

have taken steps to implement them. However, two recommendations still have not been sufficiently address. The first is the BOP’s 

delay in implementing discipline for any MDC employees, which I 

have discussed. The second involves our recommendation that the 

Department of Justice and the Department of Homeland Security 

enter into a memorandum of understanding to formalize policies, 

responsibilities, and procedures for managing a national emergency 

that involves alien detainees. 

Finally, one other matter that I wanted to note for the Committee is the ongoing OIG review that is examining FBI employees’ 

observations and actions regarding alleged abuse of military detainees in Guantanamo Bay, Abu Ghraib, and Afghanistan. The 

OIG is examining whether FBI employees participated in any incident of detainee abuse in military facilities at these locations, 

whether FBI employees witnessed incidents of abuse, how FBI employees reported any observations of abuse, and how these reports 

were handled by the FBI. We recognize these are critical issues, 

and we have allocated substantial resources to conducting this important ongoing review. 

I thank the Committee for inviting me to testify about these OIG 

reviews, and I would be pleased to answer any questions. 

[The prepared statement of Mr. Fine appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Mr. Fine. 

We now turn to the questioning by members of the Committee, 

which, in accordance with our tradition, is 5 minutes. 

Before proceeding to the first question, just a comment or two 

about some consideration which had been given by the Committee 

to using the Foreign Intelligence Surveillance Court as the court to 

consolidate these cases. Regrettably, an early draft was circulated 

and has led to a lot of speculation as to what might be done on 

that, and we are not going to proceed with the FISA Court. The 

initial thought had been that the Foreign Intelligence Surveillance 

Court had a lot of experience with classified information. And had 

we gone in that direction, it would not have been a secret court, 

but there is such an overtone of secrecy about FISA that it sounds 

too much like a star chamber. But we are going to take a look at 

consolidating these matters so we do not have a proliferation of 

opinions by the district court and the very long delays to the circuit 

court and the very long delays to the Supreme Court as well. 

Turning now to the first question, I note, Admiral McGarrah, 

that among those who have been released from Guantanamo, custody has been given up after the detainees sign pledges renouncing 

14

violence and promising not to bear arms against the United States 

forces or its allies. I note that Vice President Cheney made a 

speech earlier this week identifying some ten Guantanamo detainees who had been found in combat. Other estimates have gone as 

high as 25, and I think we really do not know the number. And 

while procedural due process is obviously important, we ought to 

be as sure as we can what steps are being taken so that we do not 

release detainees from Guantanamo who turn up on battlefields 

killing Americans. And what is the value of a promise not to bear 

arms against the United States or its allies? 

Admiral MCGARRAH. Senator, the process that I oversee, the 

CSRT process, is a rigorous process to look at all the evidence in 

the Government’s possession and to make a determination as to 

enemy combatant status. It is the most recent and the most formalized review process and follows a number of prior processes that 

made prior determinations. The released that you referred to were 

made under the prior processes, and so I am not aware of the details— 

Chairman SPECTER. Are we not now releasing detainees on their 

promise not to go back to war? It does not seem to me that kind 

of a promise is worth anything. Is it? 

Admiral MCGARRAH. I believe that that is one of the considerations that is in the decision-making process. Once these decisions 

are made— 

Chairman SPECTER. Well, why? What is the value of a detainee’s 

promise not to go back to war? What indicators do we have—this 

goes to the point which a number of the opinions, especially Judge 

Green picks up, as to what is the information that these people are 

connected with al Qaeda. And she cites in her opinion dialogue in 

the court where there is an assertion that this person is a member 

of al Qaeda, and the person comes back and says, ‘‘Well, who says 

I am a member of al Qaeda? I am not.’’ 

I think you have to have the tribunal make that decision beyond 

any question, and you cannot accept a blanket denial. And the 

question is what you know, and we will obviously get into that in 

some detail. But where you have these detainees, there is presumptively some basis for having them to start with. And I am at a loss 

to see why there would be any weight attached to a promise not 

to go back to war. 

Admiral MCGARRAH. Yes, sir. The process examines all the evidence and information available within the U.S. Government, in 

the Government’s possession, and it makes a determination based 

on the preponderance of that evidence. A statement of that sort in 

and of itself would not necessarily be sufficient for a determination— 

Chairman SPECTER. Admiral, would you supplement your answer 

with the other factors? I want to come to General Hemingway with 

a question, and my time is almost up, and I intend to observe my 

time limit here. 

General Hemingway, Article 5 of the Third Geneva Convention 

provides that, ‘‘Should any doubt arise as to whether persons having committed a belligerent act and having fallen into the hands 

of the enemy, such a person shall enjoy the protection of the 

present Convention until such time as their status has been deterVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
15

mined by a competent tribunal.’’ The court then concluded that the 

Combat Status Review Tribunal was not established for that purpose. And the Government said, well, the President has decided 

that these are al Qaeda and not prisoners of war under Geneva, 

and the court came back and said, ‘‘The President is not a tribunal,’’ which obviously the President is not. So where you have 

the President’s conclusion, weighty as it is under our view, what 

do you anticipate with respect to compliance with the Geneva tribunal requirement? 

General HEMINGWAY. Senator, I think that is a question that is 

more appropriately addressed to the Department of Justice, but as 

far as the military commissions are concerned, I think that we are 

in full compliance with the Geneva Convention in the manner in 

which we are conducting them. We are holding people who have 

been caught on the battlefield, given the broad definition of ‘‘battlefield,’’ and we are holding them humanely. 

Chairman SPECTER. Well, my time has expired, and I am going 

to yield to Senator Leahy. They have started the vote. I am going 

to excuse myself and go vote, but I will be back as promptly as I 

can. So let’s retain the witnesses in place, and we are going to try 

to proceed even through the votes we have this morning. 

Senator LEAHY. Tell them I am on my way over. I want to finish 

mine first. 

Chairman SPECTER. Okay. I will tell them you are on your way. 

Senator LEAHY. Let me ask, General, the Department of Defense 

says there are approximately 520 detainees currently at Guantanamo. How many are there? I do not want an approximate number. 

Give me the actual number. 

General HEMINGWAY. Senator, that is outside my scope of responsibility. 

Senator LEAHY. It seems to be outside the scope of everybody’s 

responsibility at DOD. We ask that question of everybody from the 

Secretary on down. Is there anybody who knows? Give me the 

name of the person who knows how many are being detained. 

General HEMINGWAY. Well, I would suggest that you direct your 

question to the Secretary of Defense. 

Senator LEAHY. The Secretary of Defense does not seem—we get 

an approximate from the Secretary of Defense. Is there anybody 

else other than the Secretary of Defense—because he will not give 

us an answer, you will not give us an answer. Is there anybody 

who knows the number? 

General HEMINGWAY. I have given you my best answer, Senator. 

Senator LEAHY. Give me your best answer. 

General HEMINGWAY. I have. 

Senator LEAHY. How many do you think are there? 

General HEMINGWAY. In excess of 500. 

Senator LEAHY. Are any of the detainees being held at Guantanamo in the custody of Government agencies other than the DOD? 

General HEMINGWAY. Not to my knowledge. 

Senator LEAHY. None being held in the custody of Government 

agencies such as the CIA? 

General HEMINGWAY. Senator, not to my knowledge. You would 

have to direct your questions in that regard to some other agency. 

16

Senator LEAHY. How many of the detainees were not captured 

during combat in Afghanistan and Iraq but were picked up from 

other battlefields, such as Bosnia? 

General HEMINGWAY. As I say, that is outside the scope of my 

responsibility. I have not been given that information. 

Senator LEAHY. Admiral, can you answer any of these questions 

I have asked? 

Admiral MCGARRAH. Sir, I do not have the specific numbers, but 

there were some that were picked up outside Afghanistan. 

Senator LEAHY. Where? 

Admiral MCGARRAH. I do not have the locations at my fingertips, 

but I can get back to you on that, sir. 

Senator LEAHY. Other than Afghanistan or Iraq. 

Admiral MCGARRAH. Sir, the Guantanamo detainees do not include detainees from Iraq. We are talking about the global war 

on— 

Senator LEAHY. Okay. Do you have any idea what these other 

countries are? You will supply it for the record? 

Admiral MCGARRAH. Yes, sir. We will get back to you. 

Senator LEAHY. Countries other than Afghanistan. 

Admiral MCGARRAH. We will get back to you, sir. 

Senator LEAHY. But there were countries other than Afghanistan? 

Admiral MCGARRAH. Yes, sir, there were. 

Senator LEAHY. Do you know if there is anybody being held there 

in custody by a Government agency other than DOD? 

Admiral MCGARRAH. No, sir, I am not aware of any held outside 

DOD control. 

Senator LEAHY. Mr. Wiggins? 

Mr. WIGGINS. I cannot answer the question. 

Senator LEAHY. You cannot answer because you do not know? 

Mr. WIGGINS. I do not know, Senator. 

Senator LEAHY. Okay. Mr. Fine? 

Mr. FINE. I do not know, Senator Leahy. 

Senator LEAHY. Okay. General Hemingway, you said earlier the 

Attorney General has defended military commissions on the ground 

they could deliver swift justice. That was back in 2001. Of course, 

now it has been nearly 4 years since 9/11. There has not been a 

single trial that has been completed. I realize 3 years after that, 

in November 2004, a Federal court declared the current regulations 

for military commissions unlawful, and you are seeking to overrule 

that. 

Why weren’t any prosecutions begun for nearly 3 years? I mean, 

we were told that this would be swift and it would be the quickest 

way to go, but for 3 years, nothing. 

General HEMINGWAY. Senator, I think that we have moved with 

considerable dispatch. A lot of people think that all we did was 

dust off World War II procedures. We— 

Senator LEAHY. That is not my question. Why wasn’t anything— 

General HEMINGWAY. We have— 

Senator LEAHY. —done for 3 years? 

General HEMINGWAY. We have built a whole judicial system to 

try these cases, and the Appointing Authority, John Altenburg, 

came on in the spring of 2004, and by August we were in trial. And 

17

the only reason we are not in trial today is because of the exercise 

of the defense counsel and the detainees’ rights in Federal courts. 

We are under a restraining order, or we would be trying cases right 

now down at Guantanamo. 

Senator LEAHY. Those pesky rights and they— 

General HEMINGWAY. Well, you asked—Senator, you asked me 

about delay, and that is the reason for the delay. 

Senator LEAHY. I was a prosecutor, General, and I have some 

idea of what is involved. And a 3-year delay does seem rather 

strange with so many people being held because it is vital to our 

security that they be held. Now, do we have a plan? I mean, do we 

have a plan of how much longer these people could be held without 

any charge? 

General HEMINGWAY. Senator, we have charges against four people. I cannot tell you how long an unprivileged belligerent is going 

to be held because I do not know how long this war is going to last. 

I do know that we are in compliance with the law by holding them. 

Senator LEAHY. Most say that the war will last throughout our 

lifetime. Does that mean that we will always face, as most other 

countries have faced, terrorist actions as long as you and I live? 

Does that mean we could hold them that long without any charges? 

General HEMINGWAY. I think that we can hold them as long as 

the conflict endures, but we have, as Admiral McGarrah has already pointed out, a very detailed process for releasing them if they 

no longer present a threat. 

Senator LEAHY. Well, we now have a government in Afghanistan, 

yet the conflict continues. Is that what you are saying? 

General HEMINGWAY. The conflict is not with the government of 

Afghanistan. The conflict is— 

Senator LEAHY. The prisoners are from there. 

General HEMINGWAY. —with a non-state organization. 

Senator LEAHY. The prisoners are from there, though. 

General HEMINGWAY. They are from all over the place. You 

know, we have citizens of 40 different countries, I think has been 

publicly released. 

Senator LEAHY. Can you give me the list then of what other 

countries they are from? 

General HEMINGWAY. I do not have that— 

Senator LEAHY. The same question I asked Admiral McGarrah. 

General HEMINGWAY. The citizenship, the countries, we will get 

back to you for the record. 

Senator LEAHY. Please. Thank you. 

Senator Kyl? 

Senator Kyl. [Presiding.] Thank you. I think in view of the fact 

that the vote is now about half over and probably Senator Leahy 

and I should both go to vote, on behalf of the Chairman I am going 

to recess the Committee until Chairman Specter returns, in which 

case then he can reconvene the hearing. So for the moment, the 

hearing is recessed. 

[Recess 10:24 to 10:33 a.m.] 

Chairman SPECTER. The hearing will resume, and we will, in accordance with our custom, alternate—if I could have the attention 

of Senator Cornyn? If I could have the attention of Senator Cornyn, 

18

we are alternating, and with all these empty chairs—people are out 

voting—it means you are next. 

Senator CORNYN. Well, thank you very much. That is an unexpected pleasure, Mr. Chairman. Thank you for letting me ask a few 

questions. 

We have concluded all the statements of the panel. I was out for 

part of it, but I caught most of it. I just want to ask—maybe I will 

start with Mr. Wiggins. You know, time after time after 9/11, we 

heard experts talk about how we needed to change our framework 

to adapt to a post-9/11 environment. We heard in the intelligence 

arena that we needed to do more information sharing. We remember testimony of former Attorney General Janet Reno and others 

about bringing down the wall that separated the ability to share 

certain critical intelligence between our counterterrorism officials 

and law enforcement officials. And I wanted to ask you in particular, a lot of the concerns that I hear expressed about detention 

and interrogation start from the perspective of a law enforcement 

framework. In other words, the framework, the procedures, the 

constitutional requirements for someone who is accused of a crime 

are pretty clearly spelled out over 200 years of decisions by the Supreme Court and other courts, and spelled out by Federal statute. 

But could you explain to us how this is a different paradigm 

based on the President’s authority under Article II, section 2 of the 

Constitution as commander in chief and why it is important for us 

to understand that we have a new post-9/11 paradigm that we need 

to deal with? 

Mr. WIGGINS. I will try, Senator. The Supreme Court has made 

plain that the President’s commander in chief powers include all 

those powers necessary and proper to conduct war, to win war, and 

to defend the country. Not only does he have the power, he has the 

duty to do that. An incident, a necessary and important incident 

of that power, also confirmed by the Supreme Court, is the power 

to detain enemy combatants for the duration of the hostilities, most 

recently confirmed by the Hamdi decision, including those enemy 

combatants who are United States citizens, and as commander in 

chief of the military, the necessary and proper and essential authority to hold for trial those combatants who are unlawful belligerents or unprivileged belligerents for those crimes that violate the 

laws of war or other crimes that are regularly tried before military 

commissions. That power is not only resident in the Constitution, 

it has been confirmed by this body in the Uniform Code of Military 

Justice, which expressly recognizes and approves the military commission aspect of that authority, and it has been recognized and 

confirmed by the Court. 

Senator CORNYN. Let me interject. In other words, the people 

who are currently detained at Guantanamo Bay are not accused of 

a crime per se, but are enemy combatants, unlawful combatants, 

most who do not wear a uniform, recognize the laws of war, aren’t 

a representative of a nation’s military. So they fall into a unique 

category under Article II, section 2 of the Constitution, and the 

President’s power as commander in chief to conduct military operations. Is that a rough summary? 

Mr. WIGGINS. That is correct, Senator. 

Senator CORNYN. Okay. Thank you. 

19

Let me ask maybe both Admiral McGarrah and General Hemingway to respond to this question. The people who are at Guantanamo now have been categorized as terrorist trainers, bomb makers, recruiters and facilitators, terrorist financers, bodyguards of 

Osama bin Laden, and would-be suicide bombers. And I have been 

apprised that the U.S. has actually learned through interrogating 

these terrorists that the organizational structure of al Qaeda and 

other terrorist groups, the extent of terrorist presence in Europe, 

the U.S., and the Middle East, al Qaeda’s pursuit of weapons of 

mass destruction, methods of recruitment and location of recruitment centers, terrorist skill sets, general and specialized operative 

training, and how legitimate financial activities are used to hide 

terrorist operations. 

I would like perhaps for you to comment on to what extent has 

using every lawful means available to the United States to secure 

actionable intelligence from detainees at Guantanamo Bay made 

America safer and saved American lives. 

Admiral MCGARRAH. Sir, I think the primary basis for detaining 

individuals, whether it be at Guantanamo or elsewhere, is there 

determination as enemy combatant and the authorization under 

the law of armed conflict and the acceptable laws of war to keep 

those combatants from returning to the battlefield. 

In addition to that, the interrogation that might provide us information to avoid future attacks and to understand our enemy is important. But the primary basis is to detain the combatants and to 

prevent them from returning to the conflict. 

General HEMINGWAY. Senator, I cannot comment on what the intelligence community has gained through this particular process, 

but I can tell you that—and I am somewhat limited, since I am on 

the Government side of the house, in discussing evidence of cases 

that have not been brought to trial yet. But I think it is safe to 

say that the evidence that the Government will present in the 

trials by military commission will be consistent with the statements that you have made. 

Senator CORNYN. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Graham has commented that he is due in the chair at 

11 o’clock, and I am going to go to Senator Biden next on our alternate approach. But I just wanted to ask Senator Kyl, who has been 

here from the very start, and Senator DeWine if they would mind 

yielding to Senator Graham so that he can question next and then 

fulfill his obligation to the chair. 

Senator Biden? 

Senator BIDEN. Thank you, Mr. Chairman. Thank you for holding this hearing, and thank you for the way you characterized the 

purpose of the hearing. I think it is overdue, and I cannot think 

of anybody to be in better hands to try to work out—I mean it sincerely—the Congress’s responsibility and role in dealing with these 

issues. And I am glad you are in the chair, and I am glad you have 

called the hearings. And the only thing I can say that I do not miss 

about being in the majority is having to sit in that other chair on 

the floor of the Senate. 

Gentlemen, we have a legitimate need for a facility to deal with 

enemy combatants, and there is no question about that in my 

20

mind. We also have a real problem, though, guys. We have a war, 

as you said, General, but we have two wars going on. We have a 

war that actually relates to people who are trying to do bad things 

to us and strapping bombs on themselves and planning on how to 

run planes into buildings, et cetera. We also have a war for the 

hearts and minds of those folks because you know, your staff, colleagues, they point out you cannot win that war by a military response alone. We have to dry up those pools where they recruit, 

and we have 1.2 billion Muslims in the world. And guess what, 

General? We are doing real badly. We are doing real badly on that 

part of the war. As a matter of fact, it is a disaster. 

My concern—and I know it is broader. We will get back to it 

hopefully in another context. My concern relates to the fact that, 

rightly, wrongly, good, bad, or indifferent, the reality is that the 

vast majority of the rest of the world, and particularly the Muslim 

world, thinks what we are doing at Guantanamo is very bad. All 

you have to do is hear an article written in a thing called Periscope 

about the treatment of the Koran, and you have got 100,000 people 

in our allies’ street—in our allies’ street in Pakistan. 

We got ourselves a problem, as they say in those old movies. We 

got ourselves a communications problem. So we better figure something out. Whether or not it is totally appropriate under every 

international law and constitutional prescription that we do exactly 

what we are doing in Guantanamo, we have got a problem. I realize it is above each of your pay grades. In a sense, it is above my 

pay grade. I am not the President. None of us here are. Not much 

you can do about it, but that is why I have called for an independent commission. The first bill introduced, S. 12, we called for 

an independent commission to be set up so we take it out of the 

partisan realm, move it into a realm where we have a group like 

the 9/11 Commission, give us some real live recommendations 

about how we should proceed from here, what we should do, because anybody who thinks it is not causing us some difficulty 

around the world I think is not reading the press or traveling 

around the world, as I have been and many of us up here have 

been. 

So I want to let you know that is the backdrop of my questions 

here. I am not going to spend the remaining 4 minutes, or whatever I have, on the detail that we are going to have to go into in 

terms of how to rewrite legislation consistent with our desires, as 

the Court has suggested. 

But the first question I have—and as briefly as you can answer, 

I would appreciate it. This is an ongoing conflict. What is the definition of when the conflict ends? Because if there is no definition 

as to when the conflict ends, that means forever. Forever. Forever 

these folks get held at Guantanamo Bay. That is part of the problem here. 

And I realize it is difficult, General. You point out this is not the 

same kind of war. Before, you would end a war with an armistice. 

There is an agreement. War is over, detainees go home. 

Has anybody at Justice defined when there is the end of conflict? 

Mr. WIGGINS. No, sir. 

21

Senator BIDEN. Now, does that mean that it is the administration’s position that the folks who we consider a danger, 550 or so 

folks at Guantanamo, will be held in perpetuity? 

Mr. WIGGINS. It is our position that legally they could be held in 

perpetuity, what in fact is happening is the annual review boards, 

the CSRT process. In fact, many have been released and prior to 

the institution of those proceedings. 

Senator BIDEN. Well, I think for the record it would be useful—

my time is up—that if not in this Committee, through the Intelligence Committee, if they tell us we cannot do it here—we should 

know what the criteria of a threat is. The Admiral answered the 

question absolutely accurately asked by my colleague from Texas: 

What is the reason we are holding these people? They are enemy 

combatants. Not that they are terrorists, not that they present an 

extraordinary danger. The rationale is they are enemy combatants. 

I thought my colleague was telling me to stop, but I should stop 

anyway. 

At any rate, I would like to know at some point, if it means even 

in a classified context, what is the definition applied for the criteria 

as to why we are keeping these folks, if it anything beyond the fact 

that they are designated as enemy combatant, because we use a lot 

of rhetoric that gets the American people all juiced up that they 

are terrorists who are going to do these horrible things to us. You 

do not have to get to that point, I don’t think, to hold them. I think 

all you have got to do is determine they are enemy combatants. So 

I would like to know what the criteria is, and I thank the Chair. 

My time is up. 

Chairman SPECTER. Thank you very much, Senator Biden. 

Senator Graham? 

Senator GRAHAM. Thank you, Mr. Chairman. 

Sort of building on what Senator Biden said, one thing we have 

learned in this war is that what happens at Gitmo and Abu Ghraib 

does not stay at Gitmo and Abu Ghraib. It is kind of like the old 

rule, what happens TDY stays TDY. We have learned that if Newsweek gets it wrong, people can get killed. So image is very important. 

And there is a side to Gitmo that you probably cannot tell us 

about. I do believe we are safer by having a Gitmo. There are three 

goals that I would like to articulate here and see how we can come 

up with a legislative buy-in. 

Number one, there should be a place where you can gather good 

intelligence to make this country safer, and I think you have done 

a pretty good job of doing that, but some of the techniques have 

seeped out and created problems. The idea of physical or psychological stress to get good information to me is acceptable in the 

international norms, and we need to look at a way to standardize 

that, because I worry about some of our own troops getting prosecuted under our own laws if we do not have standardization 

Accountability. An enemy combatant in this war almost is a per 

se assumption that you are involved in terrorist activity. So once 

the determination that an enemy combatant status has been conferred upon someone, to me it is almost impossible not to envision 

that some form of prosecution would follow. I think it is very important for the people who join up with these terrorist organizaVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
22

tions to know that their day of reckoning is coming, either on the 

battlefield as a casualty or in some courtroom somewhere, that 

they cannot do this without some accountability. So I do hope that 

we do not lose sight that accountability is very important, and 

there is some information down there that would be good for the 

world to hear about who we have, and the best way to hear it is 

through an open process called a military tribunal. 

And the third is that we can do this and be a rule of law nation. 

We can prove to the world that even among the worst people in the 

world, the rule of law is not an inconsistent concept. 

So my question basically goes to this proposition: There is not 

enough buy-in by the Congress to what is going on at Gitmo. There 

is a buy-in on my part, and I think many others, that we need this 

place desperately to protect us in this war on terror, to hold people 

accountable, to get good intelligence, and the rule of law aspects of 

how it is working is not well known or is not hitting on all cylinders because we are in court arguing about this. 

Do you believe, each of you, that if the Congress developed some 

statutory provisions defining enemy combatant status and standardizing intelligence-gathering techniques and detention policy it 

would help our cause, it would help what you are doing? What is 

your view of the Congress’s involvement in this? We will start with 

the Admiral, go to the General, and all the way down. 

Admiral MCGARRAH. Sir, I have no idea what you meant about 

TDY. 

Senator GRAHAM. Good answer. 

[Laughter.] 

Admiral MCGARRAH. Sir, I do think we need an internationally 

accepted definition of enemy combatant, and I think the definition 

we are using has precedent. I was not involved in— 

Senator GRAHAM. Do you think if the Congress got involved to 

write a statute defining enemy combatant, that if the Congress 

bought into this whole concept, it would help your effort or not? 

Admiral MCGARRAH. I think the concept already exists in international law. I think anything that can be done to help clarify this 

would help. 

Senator GRAHAM. General? For disclosure, he was my first boss 

in the Air Force. 

General HEMINGWAY. Senator, I think it is fair to say that the 

Department of Defense is always willing to consider anything that 

Congress wants to propose. 

Senator GRAHAM. Thank you, sir. 

Mr. WIGGINS. I agree with General Hemingway. We are happy, 

as always, the Justice Department would be, to review any proposed legislation, Senator. 

Mr. FINE. I do not have a position on that. I am going to have 

to defer to the Department of Justice on that. That is not really 

within my jurisdiction, Senator. 

Senator GRAHAM. Well, I am going to yield back my 50 seconds 

by concluding with this: I think it would be tremendously helpful 

is the Congress and the administration came together with some 

general statutory language to help define what is going on at 

Guantanamo Bay, to better define what an enemy combatant is, to 

make sure that due process is affordable. But the main goal of this 

23

war is to protect Americans, and it is not inconsistent with the rule 

of law. The more buy-in, the better, so that would be my recommendation to this panel and to the Committee that we jointly 

work on this problem, because if we do not have the buy-in across 

the country in all three branches of Government, we are going to 

lose this war if we do not watch it. 

Chairman SPECTER. Thank you, Senator Graham. 

Senator Kennedy? 

Senator KENNEDY. Thank you very much, Mr. Chairman. I am 

going to make a brief comment and then just have a question or 

two for my time. 

I first of all want to commend you, Mr. Chairman, for calling this 

hearing. For too long we have had no genuine inquiry into the 

abuses of Guantanamo and how they happened, and those abuses 

have shamed the Nation in the eyes of the world and made the war 

on terror harder to win. And in many parts of the world, we are 

no longer viewed as the Nation of Jefferson, Hamilton, and Madison. Instead, we are seen as a country that imprisons people without trial and degrades and tortures them. Our moral authority 

went into a free fall. 

The FBI has reported the use of torture as an interrogation tool 

at Guantanamo and complained to the Justice Department and the 

Defense Department about its use. And the Red Cross has documented scores of abuses at Guantanamo and elsewhere. Top officials in the administration have endorsed and defended interrogation that we have condemned in other countries, including forcing 

prisoners into painful stress positions for hours, threatening them 

with dogs, depriving them of sleep, using so-called water-boarding 

to simulate drowning. We have degraded and exploited our own female military personnel by encouraging them to use sexually degrading methods of interrogation. We have locked people away 

without creating an adequate process to distinguish who belongs 

and who should be released. Detainees have been held year after 

year under the worst possible conditions, and we fail to provide any 

way to determine whether they are guilty of anything. 

The endless detention without safeguards is an additional 

shameful abuse that has to be corrected. there is no question that 

Guantanamo has undermined our efforts in the war on terrorism. 

It has stained our reputation on human rights. It has inflamed the 

Muslim world, and it became a powerful recruiting tool for terrorists. Its continued existence only makes it more likely that Americans will be attacked by terrorists at home or in other nations 

throughout the world. 

Closing Guantanamo makes sense. It has become a symbol of 

U.S. hypocrisy on human rights, but merely emptying the prison 

and bulldozing its walls will not cure the illegality. We need a thorough investigation of what happened there and at other detention 

and interrogation facilities around the world. In particular, we 

need to know whether it was approved at the highest levels of our 

Government. 

Closing the facility without a full investigation only makes it 

easier to pretend that the executive branch is above the law. We 

also need to make sure that the administration does not send these 

24

and future detainees to places unknown that are even more difficult to monitor. 

Guantanamo was conceived and created to be a place beyond judicial review, and the administration tried to ensure that it would 

be accountable to no one in deciding who should be detained and 

how they would be interrogated. The resulting physical abuses and 

denial of due process were the direct result of this misguided policy 

that thumbed its nose at the rule of law. 

One of the great tragedies of Guantanamo is that the consequences were so foreseeable and avoidable if the administration 

had simply chosen to use the existing legal framework already in 

place both to protect our security and to grant due process. William 

Taft, the State Department’s legal advisor in President Bush’s first 

term, recently called it a source of amazement and disappointment 

that the Justice Department severely limited the applicability of 

the Geneva Conventions to the detainees. In an address at American University, he said, ‘‘The decision to do so unhinged those responsible for the treatment of detainees from the legal guidelines 

for interrogation embodied in the Army Field Manual for decades. 

Set adrift in uncharted waters and under pressure from their leaders to develop information on the plans and practices of al Qaeda, 

it was predictable that those managing the interrogation would 

eventually go too far. That is why we have checks and balances in 

our democracy. What happened at Guantanamo is proof of the famous truth that power corrupts and absolute power corrupts absolutely.’’ 

Laws enacted long before the 9/11 tragedy authorized effective 

interrogation and legitimate detention of prisoners. The Geneva 

Convention permits interrogation. The criminal laws permit interrogation. The Army Field Manual provided long-standing guidelines for interrogation. But indefinite and unreviewable detention 

to interrogate prisoners is not permissible, and we have learned 

how dangerous it is to our ideals and our respect in the world. 

The administration tried to redefine torture to make many 

abuses permissible. They rejected the Geneva Convention over the 

objections of Secretary of State Colin Powell. They abandoned traditional military justice in favor of a system that experts warned 

would be unworkable and unjust. We cannot stay silent while the 

administration prosecutes a few low-level soldiers and tells us that 

no one else that no one else bears responsibility for the abuses or 

while CIA planes fly detainees in secret to other countries that we 

know engage in torture. 

It is wrong to hold detainees indefinitely, deny them the same 

rights that we would want for our own captured servicemen and 

-women. Guantanamo symbolizes reprehensible policies and a set 

of values that are unacceptable and un-American and that reflect 

the standards of behavior well below what we have tried to achieve 

for 200 years, and those who are responsible for designing the system must be held accountable. 

I realize my time is up, Mr. Chairman. I will wait until the next 

round. 

Chairman SPECTER. Thank you, Senator Kennedy. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

25

I would like to, before I pose a question, get back to a couple of 

basics. We are talking, first of all, about people who have been captured on the battlefield right after they have been shooting at our 

soldiers. And we all like to immediately join in healthy applause 

when someone mentions our young men and women that we have 

sent into battle. It is the thing to do. It is heartfelt. And yet for 

some reason, immediately after doing that, we are prepared to 

jump to conclusions that U.S. officials, including people in the military, are prone to violate people’s human rights. They have been 

shot at. People have been captured on the battlefield. And you have 

got to have a place to hold them. There has to be some place to 

do two key things: prevent them from causing further damage, killing American service people, among other people; and, secondly, to 

use the appropriate interrogation techniques to learn everything 

you can in order to save additional lives. And so that is the basic 

thing we are talking about here. 

I want to ask a question based upon a declaration of Vice Admiral Lowell Jacoby, who is the Director of the Defense Intelligence 

Agency, and I ask unanimous consent, Mr. Chairman, to put this 

entire declaration into the record. 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

Senator KYL. Thank you. Just a couple of provisions of it. 

He says, ‘‘Interrogation is a fundamental tool used in the gathering of intelligence. Interrogations are vital in all combat operations, regardless of the intensity of the conflict. When done effectively, interrogation provides information that likely could not be 

gained from another source.’’ 

He points out that after World War II, 43 percent of all the intelligence produced in the European theater was from human intelligence and 84 percent of that was from interrogation, and that the 

majority of everyone surveyed agreed that interrogation was the 

most valuable of the collection techniques. 

He points out that insertion of things which disrupt the trust 

and reliance which the captors need to establish with regard to detainees prevents the effective gathering of intelligence, a process 

that he notes can take a long period of time. Just one quotation, 

he says, ‘‘Anything that threatens the perceived dependency and 

trust between the subject and interrogator directly threatens the 

value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts 

on the delicate subject-interrogator relationship. Any insertion of 

counsel into the subject-interrogator relationship, for example, even 

if only for a limited duration or for a specific purpose, can undo 

months of work and may permanently shut down the interrogation 

process.’’ 

There is much more in this declaration, but he concludes by saying, ‘‘In summary, the war on terrorism cannot be won without 

timely, reliable, and abundant intelligence. That intelligence cannot be obtained without robust interrogation efforts. Impairment of 

the interrogation tool, especially with respect to enemy combatants 

associated with al Qaeda, would undermine our Nation’s intelligence-gathering efforts, thus jeopardizing the national security of 

the United States.’’ 

26

Now, colleagues have talked about other aspects of the war on 

terror, how it is important to win hearts and minds, and we all 

agree that that is important, too. It is important to win on the battlefield. There are a lot of things that are important. But Admiral 

Jacoby points out that the war cannot be won without good intelligence, much of which comes from these very combatants that 

have been captured on the battlefield. 

My question, beginning with you, Admiral, and then General, 

and Mr. Wiggins, if you would like to respond, is whether you 

agree or disagree with what Admiral Jacoby has said with respect 

to interrogation and the problems that interruption of that interrogation can cause. 

Admiral MCGARRAH. Senator, I think it is always important for 

operational commanders to have a situational awareness of their 

enemy and of their battlefield, and anything that can provide the 

kind of intelligence that we need to do the right thing is important. 

Senator KYL. General? 

General HEMINGWAY. Senator, the Admiral is far more capable of 

making that point than I, and I agree with everything he said. 

Senator KYL. Thank you, sir. 

Mr. Wiggins? 

Mr. WIGGINS. Senator, I have no basis, no legal basis to judge the 

Admiral’s declaration. I will point out, however, that it was a part 

of the record in the Padilla case— 

Senator KYL. I am sorry? 

Mr. WIGGINS. It was a part of the record in the Padilla case at 

the Supreme Court. 

Senator KYL. Yes, indeed. And, in fact, he specifically noted the 

problems that would arise in the Padilla case itself were this interrogation system to be disrupted. 

I gather, Mr. Fine, this is not something you want to discuss 

based on your responsibilities. 

Mr. FINE. No, sir. 

Senator KYL. And I understand that very much. 

Mr. Chairman, I just think it is important to establish that you 

have got to keep the people off the battlefield if they are going to 

go right back and kill you, as approximately 5 percent of these 

folks have when they have been released. To your important question, what makes you think that their promise of not wanting to 

kill you again is going to be kept? And, secondly, that this interrogation process is very important to saving American lives, both on 

the battlefield and here at home, and that we have to be mindful 

of the situations in which we can preserve that kind of legitimate 

interrogation technique. 

Chairman SPECTER. Thank you very much, Senator Kyl. 

Senator Feinstein? 

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

you also for holding this hearing. 

I would just like to respond to Senator Kyl’s analysis of the battlefield and prisoners after shooting, all of whom are shooting at 

our soldiers. I would submit that the battlefield is a very varied 

place in this war on terror. And I would also submit that people 

can be swept into the battlefield and be arrested and detained who 

are not necessarily terrorists. 

27

In any event, I have written a letter to the Department of Defense, asked 12 questions, have a response to four. I would like to 

submit that for the record, with an additional letter sent to the Intelligence Committee. 

Chairman SPECTER. Without objection, they will be made a part 

of the record. 

Senator FEINSTEIN. Thanks, Mr. Chairman. 

This letter says there are approximately 520 detainees at Guantanamo; 750 have been processed through the facility. As of April 

of 2005, Defense has released 167 and transferred 67 to other Governments subject to conditions, and there have been no detainee 

deaths at Guantanamo. 

I also asked questions about other places—Bagram, everywhere 

that we have detainees sequestered. I have not had answers to 

these questions. I hope they will be forthcoming. 

I would like to call everybody’s attention to the testimony about 

to come from Lieutenant Commander Swift. It is very brave testimony, and let me preface my remarks with the hope that there is 

no reprisal against Lieutenant Commander Swift. 

I think his testimony in writing is eloquent. It points out what 

is wrong, and it also points out what a remedy has to be. I am 

going to try to very briefly synthesize his testimony, and I would 

like to ask General Hemingway to respond. 

Lieutenant Commander Swift is a 17-year Navy veteran, 11 

years a member of the JAG Corps. He was assigned to represent 

a Salim Ahmed Hamdan, a Yemeni national facing trial before this 

military commission. Let me quote from his remarks. 

‘‘At the onset of my representation * * * I was deeply troubled 

by the fact that to ensure that Mr. Hamdan would plead guilty as 

planned, the Chief Prosecutor’s request came with a critical condition that the Defense Counsel was for the limited purpose of ‘negotiating a guilty plea’ to an unspecified offense and that Mr. 

Hamdan’s access to counsel was conditioned on his willingness to 

negotiate such a plea.’’ 

Now, I am skipping around, but it is all in the record here, and 

everyone can read it. 

‘‘I knew that I had to tell Mr. Hamdan that if he decided not to 

plead guilty, he may never see me again.’’ 

‘‘Upon meeting with [him] I was * * * confronted with the fact 

that the realities of his pretrial confinement did not live up to

* * * promise of humane conditions * * * Mr. Hamdan was 

held in isolation for more than 7 months in violation of the Geneva 

Convention. [His] cell lacked both natural light and ventilation. 

For * * * the first 60 days of that pretrial detention, [he]

was only permitted * * * a half-hour of exercise and then only

at night* * * [He] was not permitted any reading material beyond 

* * * the Koran’’ or ‘‘free exercise of religion.’’ 

‘‘Despite Attorney General Ashcroft’s assurances to Senator Edwards that the President’s Military Order would not be used to detain a person for an unlimited period of time, General Hemingway 

rejected Mr. Hamdan’s request for a speedy trial, finding that he 

had no right to a speedy trial and could be held indefinitely.’’ 

‘‘Mr. Hamdan’s request for independent medical evaluation was 

rejected in favor of a cursory twenty minute psychiatric examinaVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
28

tion * * * the extent of damage done to Mr. Hamdan by the conditions of his confinement and the methods utilized in his interrogation was able to be determined * * * Mr. Hamdan suffered from 

Post Traumatic Stress Disorder as a result of the abuse he had suffered during his detention and had experience of major depression 

during his solitary confinement.’’ 

‘‘After 4 months in solitary * * * [he] was on the verge of being 

coerced into a guilty plea or deteriorating mentally to the point 

that he would be unable to assist in his defense if he ever came 

to trial.’’ 

The attorney goes on to say that he has filed a petition for writ 

of mandamus and habeas, challenging both the lawfulness of procedures and the jurisdiction of the proceeding. 

‘‘After the Supreme Court determined that detention in Guantanamo Bay was not a bar to Habeas Corpus, the Prosecution hastily 

referred a single charge of conspiracy against Mr. Hamdan.’’ 

And then it goes on to show the deterioration. ‘‘The Department 

of Justice maintains that three military officers, two of which have 

no legal training or experience, are better suited to determine a 

commission’s lawful jurisdiction than a Federal court.’’ And it goes 

on and on. 

I would like to ask, General Hemingway, since you were mentioned, I would like to ask for your response. 

General HEMINGWAY. Well, we could be here all afternoon. It is 

a fairly lengthy statement on Lieutenant Commander Swift’s part. 

In the first place, the chief defense counsel is the individual who 

appointed Lieutenant Commander Swift to defend Mr. Hamdan, 

not the prosecutor. And I am unaware of any threats whatsoever 

that were ever made through Mr. Swift to Mr. Hamdan of the nature that he recounts in his statement. 

As far as the demand for a speedy trial is concerned, he sent a 

letter to me last fall invoking Article 10 of the UCMJ, and I responded by informing him that Mr. Hamdan was held as an 

unprivileged belligerent and that Article 10 did not apply under 

those circumstances. 

As far as his mental health is concerned, he was seen by a mental health professional, a psychiatrist, at Guantanamo Bay, and he 

accepted weekly mental health visits, and the information that has 

been provided to me by those people is that his mental health is 

satisfactory. 

As far as referral is concerned, I can guarantee you that that was 

not done hastily in response to any Federal court decision. The timing might have been coincidental, but the office of the chief prosecutor had been working that for quite some time. 

He also asserts that he was not given the names of the people 

who had interrogated or interviewed Mr. Hamdan. He signed a receipt on the 27th of September last year acknowledging receipt of 

the names of all of those people. 

My time is up. 

Senator FEINSTEIN. Was his representation conditioned on pleading guilty? 

General HEMINGWAY. No. 

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

29

Chairman SPECTER. Senator Feinstein, if you want to pursue 

this, you may. 

Senator FEINSTEIN. Well, what you have said to me, General, is 

that this man has no rights at all, essentially. He is charged with 

conspiracy. That is it. He has been there, 4 months in isolation, 

contrary to Geneva Convention, and he could be there essentially 

forever. That is how I interpret what you have said. If it is different, please tell me. 

General HEMINGWAY. Well, he is not being held contrary to the 

Geneva Convention. He is being held humanely— 

Senator FEINSTEIN. The isolation for— 

General HEMINGWAY. —and it is my understanding that he is in 

the general population at Guantanamo Bay. As far as his rights 

are concerned, I have mentioned in some detail the rights that all 

of these people would have available before a military commission: 

the presumption of innocence, the appointment of an attorney free 

of charge, proof beyond a reasonable doubt, the right to call witnesses, the right to cross-examine, the right to review. And as far 

as resources are concerned, we have provided extraordinary resources to both Lieutenant Commander Swift and to the Office of 

the Chief Counsel, Chief Defense Counsel. 

Senator FEINSTEIN. Well, that is not what this statement says, 

and this— 

General HEMINGWAY. Oh, I understand that is not what it says, 

but his recollection of these events and my view of the procedures 

are considerably different than what he represents in that statement. 

Senator FEINSTEIN. Let me ask you this: So pre-commission, 

housing in solitary for 7 months is not a violation of the Geneva 

Convention? 

General HEMINGWAY. I would not consider the conditions under 

which he was held to be solitary confinement. I have seen the facilities. From what the people at Guantanamo Bay have told me 

about the conditions and the treatment he received, I would not 

call it solitary confinement. He was removed from the general population, but I would not call what he was in solitary confinement. 

Senator FEINSTEIN. Would you call it ‘‘isolation’’? 

General HEMINGWAY. I would call it ‘‘segregation.’’ 

[Laughter.] 

Senator FEINSTEIN. Well, I think, Mr. Chairman, if I might, Lieutenant Commander Swift is going to come before us. I mean, this 

is a case study and everything that we have read it is a case study 

and what Time magazine has just written about. If I understand 

the Supreme Court decision correctly, detainees do have habeas 

corpus rights. They do have a right to be brought before a process, 

and I would be rather surprised that Lieutenant Commander Swift 

would say that he had to plead guilty to get counsel if he did not, 

because that is a rather dramatic statement. 

Chairman SPECTER. Senator Feinstein, as you noted, Lieutenant 

Commander Charles Swift will be on the second panel, and if it is 

not inconvenient, General Hemingway, we would appreciate it if 

you would stay. There may be a follow-up. I have allowed you more 

time. 

Senator FEINSTEIN. I appreciate that. 

30

Chairman SPECTER. It took your full amount of time to pose the 

question, and understandably because you went through a very detailed record. 

Senator FEINSTEIN. You are very generous. Thank you. 

Chairman SPECTER. One of the difficulties of the whole hearing 

process is that we have many witnesses. We have a second panel. 

We have a lot of interest by members, and in 5 minutes you do not 

get a whole lot done. But when you had raised the issue in those 

details, it seemed to me appropriate to have that extra latitude. 

But Lieutenant Commander Swift will be present. 

General Hemingway, would your schedule permit you staying 

through his testimony? 

General HEMINGWAY. Yes, Senator. 

Chairman SPECTER. Thank you. 

Okay. Senator DeWine? 

Senator DEWINE. Thank you, Mr. Chairman. 

Admiral and General, I have just one question for each one of 

you. Maybe you can clarify something for me. 

Admiral, I do not quite understand. How does a detainee go from 

being an enemy combatant to not being an enemy combatant? I 

mean, presumably this person has been detained all this time. 

What changes? How does the status change? Was a mistake made 

originally or what changes the status? 

Admiral MCGARRAH. Senator, my process is the latest and most 

formalized of the determinations of enemy combatant status. Prior 

determinations were made based on the information that was 

available at the time that determined that these detainees were 

enemy combatants. There are a variety of things that might 

change. There could be some additional information that is made 

available. These cases, for the most part, are not black and white. 

There are ambiguous facts, and the panels take the information, all 

the information available to the Government at the time, and make 

the best determination that they can at the time. 

That does not mean the prior determinations were wrong. It 

means that based on the information available to us, our panels 

made the determination. 

Senator DEWINE. Well, I appreciate that. I heard you say two 

things, and I want to make sure I have got it correctly, and you 

can tell me if I am wrong. 

You indicated that your process was different. You also indicated 

that in some cases the facts were different. Now, is that correct? 

We have a different process, we have new facts. 

Admiral MCGARRAH. I am not familiar with the details of the 

prior processes, but my understanding is that ours is the most formalized of the determinations that are made. The different facts 

would relate to information obtained subsequent to the original apprehension. 

Senator DEWINE. So your answer is that it could be because we 

have new facts, it could be because we have a new process. Could 

be. 

Admiral MCGARRAH. Yes, sir, those are all factors, and the members of the tribunal look at all the information available and make 

the best determination they can at the time. 

31

Senator DEWINE. And you are not familiar with the previous 

process? 

Admiral MCGARRAH. No, sir, I am not familiar with the detailed 

mechanics of the previous processes. 

Senator DEWINE. You said that, I believe, 12 of the 520 detainees 

have been referred for trial before a military commission. Obviously, that leaves the question about what about the other detainees, and I may have missed this in your testimony. I was voting. 

I apologize. But what happens to the other ones, and what is the 

process? What can we expect? 

General HEMINGWAY. Well, you can expect that the office of the 

Chief Prosecutor will be sending more information forward for 

Presidential determinations as t whether or not there is a reason 

to believe that there are people subject to trial by military commission. There are three currently in movement, and I know that the 

office of the Chief Prosecutor is working on more. And as the investigators present more and more evidence to the office of the prosecutor, they valuate them to determine whether or not charges can 

be brought for violations of the law of war. 

Senator DEWINE. General, is this a case of not being able to process them fast enough, in other words, you do not have enough people? Or what is the situation? It is kind of hard for a lay person 

sitting here to understand what is going on and not only— 

General HEMINGWAY. Well— 

Senator DEWINE. Let me just finish, if I could, sir. You know, 

this is the Judiciary Committee. We are lawyers here. I am a 

former prosecutor. We have got other former prosecutors up here. 

And, you know, our whole training, our whole system is that people 

determine what the facts are, you charge them, and you move 

ahead. And I understand that your life is not that simple. I appreciate that. But explain to me, you know, what is going on here. 

This seems to be a horribly slow process. 

General HEMINGWAY. Well, in the first place, the primary reason 

that we hold people is to get them off the battlefield and, secondarily, to gain intelligence. 

Senator DEWINE. I understand. 

General HEMINGWAY. Until the intelligence effort has concluded 

on any particular detainee, the law enforcement effort really does 

not commence. Once we know that the intelligence people have finished in their analysis of the individual, we look at what they have 

collected and make a determination whether or not this individual 

is a candidate for trial by military commission. 

As far as the current status is concerned, we are under a restraining order. 

Senator DEWINE. I understand that, but should we assume that 

in most of these cases you would be telling us that the intelligence 

gathering is continuing on most of these 500-and-some individuals? 

General HEMINGWAY. I would have to say that is probably correct. When we get files— 

Senator DEWINE. I want to— 

General HEMINGWAY. When we get files from— 

Senator DEWINE. Excuse me, sir. Is it probably or is it? I mean, 

do you know? If you don’t know, that is fine. 

General HEMINGWAY. I don’t know. 

32

Senator DEWINE. You don’t know. 

General HEMINGWAY. I don’t know exactly how many people that 

they are done with, but I do know that the office of the Chief Prosecutor aggressively collects information to develop cases. 

Senator DEWINE. But as far as the question of how many of 

them they have actually gotten all the intelligence they think they 

can get, you don’t know what that figure— 

General HEMINGWAY. I couldn’t give you a good figure. 

Senator DEWINE. Well, my time is up, Mr. Chairman. Thank 

you. 

Chairman SPECTER. Thank you very much, Senator DeWine. 

Senator Durbin? 

Senator DURBIN. Mr. Chairman, let me thank you personally for 

holding this hearing. I have been hoping for such a hearing for a 

long time, and I think you show extraordinary courage in holding 

it, and I appreciate it very much. 

Let me say at the outset here that I am troubled by what has 

happened at Guantanamo, and I am troubled by the recent debates 

about whether we need to close this piece of real estate. I don’t 

think this hearing should be about a piece of real estate or where 

it is located. It should be about the conduct of the United States 

wherever prisoners are in our control. And I think that really gets 

to the heart of the issue, whether it is in Guantanamo, in Iraq, Afghanistan, or in undisclosed locations. 

Before 9/11, we had signed on with the rest of the world to certain standards of conduct. We said civilized nations, even in the 

course of war, will play by certain rules to a certain level. And 

then, of course, we know what happened after 9/11. Without consulting Congress, this administration unilaterally set aside many of 

the provisions of these treaties that we had said were part of the 

law of the land, and they created a detention policy that violates 

many of those treaties. They claimed the right to seize anyone, including an American citizen, anywhere in the world, including the 

United States, and to hold them until the end of the war on terrorism, whenever that may be. 

There were dissenters to that point of view, and it was not from 

civil libertarians. The dissension came first from Colin Powell, 

former Chairman of the Joint Chiefs of Staff, who warned this administration that this was a bad idea. Colin Powell said to the administration it will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of law of war for our troops, both in this specific conflict 

and in general. 

But the administration persisted in this new approach—persisted 

until it reached the point where it came to the Supreme Court, and 

the Supreme Court ruled that the administration is wrong. 

The question I would like to ask Mr. Wiggins is this: Last year, 

in two landmark decisions the Supreme Court rejected the administration’s detention policy. The Court held that detainees at Guantanamo have the right to challenge their detention in Federal court. 

I am troubled by your response, the administration’s response to 

these decisions. Your approach seems to be to interpret them as 

narrowly as possible, even when the interpretation does not withstand close scrutiny. 

33

Let me give you an example. The administration now acknowledges that Guantanamo detainees can challenge their detention in 

Federal court, but you still claim that once the detainees get to 

court, they have no legal rights. In other words, you believe a detainee can go to the courthouse but cannot come inside. One Federal court has already rejected your position. 

Mr. Wiggins, the Supreme Court held that Guantanamo detainees’ claims that they were detained for over 2 years without charge 

and without access to counsel, and I quote, ‘‘unquestionably describes custody in violation of the Constitution or laws or treaties 

of the United States.’’ 

If the administration’s position is that detainees have no legal 

rights, as you claim, how could the Court say that the claims of the 

detainees described violations of their rights? 

Mr. WIGGINS. Senator, the text that you quoted is from a footnote, Footnote 15 of the Rasul decision. The Supreme Court said 

numerous times during the course of the decision, including at the 

end, that the only issue they were deciding was the jurisdiction of 

the United States courts to hear habeas petitions. That footnote 

says what it says. It is appended to a paragraph that says that 

we—it talks about facts pled for jurisdictional purposes. We think, 

and we have told the court in our pleadings that we think that the 

most logical reading of that decision, of that footnote, is that it describes jurisdictional facts and it makes sense in that context. It 

would not make sense in the context of the paragraph overruling 

years of precedent in the Eisentrager case— 

Senator DURBIN. Mr. Wiggins— 

Mr. WIGGINS. —the Verdugo case, the Zadvydas case, all of 

which said— 

Senator DURBIN. Mr. Wiggins, I am not carping on a trifle. I am 

not sitting on a footnote here. How can you have a habeas right 

if you don’t acknowledge that the detainee has some rights? I 

mean, that is what it boils down to. And I cannot understand the 

administration’s position of ignoring what the Supreme Court has 

said, even if it is from a jurisdictional viewpoint. 

Let me go to another example. You claim that you are complying 

with Supreme Court decisions because you have created military 

tribunals, the CSRTs. These tribunals are supposed to determine 

whether a detainee has been accurately designated as an enemy 

combatant. The detainee is not entitled to an attorney. The CSRTs 

rely upon secret evidence that the detainee is not allowed to review. That does not seem like due process by any stretch. 

In fact, two Federal courts have already held CSRTs fail to comply with Supreme Court rulings. One court concluded they deprive 

the detainees of sufficient notice of the factual basis for their detention and deny them a fair opportunity to challenge their incarceration. 

How can a detainee challenge the grounds of his enemy combatant designation if he does not have access to the evidence supporting that designation? 

Mr. WIGGINS. Senator, he does have access to the information. 

The procedures that are set up for the CSRT are procedures that 

the Supreme Court in Hamdi, the plurality, expressed the view 

that those procedures would be sufficient—more than sufficient, acVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
34

tually. They expressed the view that an Article 5-type hearing or 

a hearing set forward in the military regulations that provided 

very basic due process rights was all that was required. The CSRT 

procedures, as established by the military order, provide that the 

detainee will have the factual basis for his detention disclosed to 

him before the tribunal— 

Senator DURBIN. Mr. Wiggins, my time is running out, and I 

would like to read to you from the decision so you understand what 

you just said is not true, and I quote— 

Chairman SPECTER. Senator Durbin, would you make this brief, 

please? 

Senator DURBIN. I would be happy to, Mr. Chairman. Thank you. 

And I quote: ‘‘In sum, the CSRT’s extensive reliance on classified 

information in its resolution of enemy combatant status, the detainees’ inability to review that information, and the prohibition of 

assistance by counsel jointly deprive the detainees of sufficient notice of the factual basis of their detention and deny them a fair opportunity to challenge their incarceration.’’ And what I just read to 

you is not in a footnote. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Durbin. 

Senator Feingold, I think I erred in not calling on you earlier. It 

is a little hard. We go by the early-bird rule about people who come 

and leave, and you were on the earlier list, so you will be recognized next after we turn to Senator Coburn, who I think has early 

bird— 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Senator LEAHY. I should also apologize to Senator Feingold. I did 

not have the list until after— 

Senator FEINGOLD. Don’t worry about it. 

Chairman SPECTER. It is a juggling act under the early-bird rule 

and seniority and people who come and go, but I think you should 

have been recognized earlier. 

Senator Coburn, you were here earlier. Senator Sessions came a 

little later. Both of you have been in and out. Senator Sessions, will 

you yield to Senator Coburn? 

Senator Sessions. I would be pleased to. 

Senator COBURN. I just want to clarify for the record a couple of 

things on the IG report in terms of the Manhattan Detention Center. Mr. Fine, all these individuals were illegal aliens. Is that correct? 

Mr. FINE. All but one had violated immigration law in some context, either by overstaying their visa or entering the country illegally. That is correct. 

Senator COBURN. All right. And some of them had not come back 

for detention hearings. Is that correct? 

Mr. FINE. Some of them had not been—had absconded from detention— 

Senator COBURN. So they were twice violators of the law. 

Mr. FINE. They were violators of the law. That is correct. 

Senator COBURN. Multiple times. 

Mr. FINE. I don’t know how many of them were in that category, 

but I believe there were some in that category. 

35

Senator COBURN. But the fact is they had already proven a disdain for the law. 

Mr. FINE. They had violated immigration law. That is correct. 

Senator COBURN. Okay. I do not see that any different than any 

other law. They had demonstrated a disdain for the law because 

they had, in fact, violated the law. Is that correct? 

Mr. FINE. That is correct. They had violated immigration law. 

Senator COBURN. I don’t have any other questions, Mr. Chairman. 

Chairman SPECTER. I was talking to Senator Kyl about asbestos. 

Every now and then we have another matter we have to be concerned with. 

Senator COBURN. I have no additional questions. 

Senator LEAHY. Boy, do I miss those hearings, Mr. Chairman. 

[Laughter.] 

Chairman SPECTER. Well, it has been a busy Committee. Senator 

Kyl and I are coming to grips with one of the tough issues on asbestos, and pardon me for taking 10 seconds out. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman, and thank you for 

holding this hearing. I believe that the long-term detention of socalled enemy combatants at Guantanamo Bay is one of the most 

important national security and civil liberties issues facing us 

today. I have been concerned for a long time that Congress has not 

done as much oversight on this issue as it should, so I do appreciate hearing from these witnesses. 

Mr. Chairman, the situation at Guantanamo Bay has become so 

troubling that a growing chorus of people are calling for that facility to be shut down entirely. Now, it may be that the word ‘‘Guantanamo’’ has become so synonymous in the Arab and Muslim world 

with American abuses that we must close the prison down. But we 

did not have to reach this point. If the administration had not argued that these detainees were not subject to the Geneva Conventions, if this administration had not argued that these detainees 

had no right to counsel or to make their case in Federal court, if 

this administration had not insisted on trying the few of these detainees who are charged with crimes in military commission lacking basic due process, if this administration had not sought to exploit every single ambiguity in the law to justify its unprecedented 

actions, we would not be where we are today. We would not even 

be talking about closing Guantanamo. 

So when we talk about closing down this facility, let us remember that the problem is not just Guantanamo. The problem is an 

administration that thinks it does not have to play by the rules. 

Wherever these detainees are held, they must be accorded basic 

due process rights and treated humanely, pursuant to universally 

respected standards. And I would ask, Mr. Chairman, that my complete statement be included in the record. 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

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

Senator FEINGOLD. Admiral McGarrah, many of the prisoners at 

Guantanamo Bay were first detained by the U.S. Government 3 

36

years or more ago on the theory that they are enemy combatants 

subject to indefinite detention. In Judge Joyce Hens Green’s recent 

decision finding the procedures of the Combatant Status Review 

Tribunals unconstitutional, she noted that the Government did not 

formally define the term ‘‘enemy combatant’’ until July 2004. 

If the U.S. Government did not formally define who was an 

enemy combatant until 2004, on what basis did it detain the hundreds of individuals picked up and transferred to Guantanamo Bay 

prior to that time? 

Admiral MCGARRAH. Senator, I cannot comment on the definitions that were used in prior reviews. I can only comment on the 

process for which I was responsible for. I would defer to the Department of Justice for legal definitions. 

Senator FEINGOLD. General, do you have an answer to what 

basis these folks were held on if the term was not defined until 

later? 

General HEMINGWAY. Senator, I was not responsible for making 

that. As far as my view at the present time, they are held because 

they are unprivileged belligerents who have been removed from the 

battlefield. 

Senator FEINGOLD. Mr. Wiggins, could you answer? 

Mr. WIGGINS. Would you repeat the question, please? 

Senator FEINGOLD. Yes. Given the fact that the term ‘‘enemy 

combatant’’ was not defined until years later, on what basis were 

the hundreds of detainees held prior to that time? What was the 

basis? 

Mr. WIGGINS. I don’t know the answer to that question, Senator. 

Senator FEINGOLD. Thank you. 

Admiral, Judge Green’s decision also stated that the Government 

attorney in the case conceded that under the U.S. Government’s 

definition of enemy combatant, ‘‘a little old lady in Switzerland who 

writes checks to what she thinks is a charity that helps orphans 

in Afghanistan, but what really is a front to finance al Qaeda activities’’ could be considered an enemy combatant. Do you agree 

with that? 

Admiral MCGARRAH. Sir, that was extracted from the body of evidence in that particular case and was not the sole factor in that 

determination. Our panels looked at all the information available 

in the Government’s possession and made the determination based 

on a preponderance of evidence standard. 

Senator FEINGOLD. But do you agree with the conclusion that a 

person could be categorized in that way? 

Admiral MCGARRAH. Sir, I agree with the conclusion that an 

enemy combatant status designation could be made based on a 

view of all the evidence if the preponderance of evidence indicated 

that that classification was appropriate. 

Senator FEINGOLD. All right. Mr. Wiggins, several witnesses on 

the second panel have submitted written testimony raising concerns that in the tribunal set up to try or evaluate the status of 

detainees at Guantanamo Bay, the Government may rely on evidence obtained through torture or coercive means. As Assistant Attorney General for Civil Rights at the Justice Department, doesn’t 

that give you pause? 

37

Mr. WIGGINS. Senator, the President and the Attorney General 

have made clear that the United States does not condone nor will 

it commit torture and that we will seek out and punish those who 

commit such acts. Beyond that, I cannot respond. 

Senator FEINGOLD. But what about the reliance on evidence obtained through torture or coercive means? As a Justice Department 

official, doesn’t it give you pause that we might use such evidence? 

Mr. WIGGINS. The training manual for al Qaeda encourages them 

to allege mistreatment. We take every—the military, at least, as do 

we, take every allegation seriously. They look into it. But the tribunals are free to test the weight of that evidence. They make the decision based on the weight of all the evidence that they have. It 

would include perhaps in some cases evidence where a detainee 

has alleged that it was a product of mistreatment. But it is up to 

the tribunal to determine whether to accept that evidence or not. 

Admiral McGarrah is more familiar with the details of the cases, 

but it is not uncommon. 

Senator FEINGOLD. I think the question is fairly straightforward. 

I don’t think that is much of an answer. The question is whether 

evidence obtained through torture is something that ought to give 

somebody in our United States Justice Department pause. I think 

it would give you pause. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feingold. 

Senator Sessions? 

Senator SESSIONS. Mr. Chairman, the thing that troubles me 

most about this hearing is that I believe it conveys a completely 

incorrect vision of how prisoners are being handled who are apprehended by the United States Armed Forces. And we are focusing 

on problems and due processes and things that suggest that these 

prisoners are being tortured, that they are being abused in unconscionable ways and suggesting to our enemies around the world 

that this is occurring, and they are using that information to promote their own agenda to kill American soldiers. And we are placing them at greater risk, and we are making it more difficult for 

our policy to be successful. 

So I feel very strongly that this is a legitimate hearing to find 

out how people are being held, but to suggest that our activities, 

as one member of the new left compared it to—or the left, compared it to the gulag of our time, where, as the Chairman knows, 

30 million people were killed in Soviet prisons. And we had 700 in 

Guantanamo, and not a single one has died. Not a single one has 

been shown to be seriously injured. So I think we need some perspective here. 

We have high standards. We prosecuted people who violated prisoners. We cashiered out a fine Army colonel who fired a gun near 

somebody’s head in combat to try to get information to save his life. 

We prosecuted one officer who was found to be innocent. We prosecuted the people at Abu Ghraib, and they said the higher-ups 

were involved. And they had their trial, and they never showed any 

higher-ups ordered them to do that. Just like the evidence was 

from the beginning. 

I am concerned about the tone of this hearing. First of all, our 

policy has been to treat detainees humanely, consistent with the 

38

principles of the Geneva Convention, even though they are unlawful combatants or, as General Hemingway used the phrase, 

‘‘unprivileged belligerents.’’ You know what that means? That 

means because they did not conduct their warfare against the 

United States consistent with the rules of war, they are not entitled to the protections of the Geneva Convention. They do not apply 

to them. 

Is that not right, General Hemingway, that if people come into 

this country surreptitiously, conduct activities to bomb civilians 

against the rules of war, they are not entitled to the protections of 

the Geneva Convention? 

General HEMINGWAY. That is precisely my position. 

Senator SESSIONS. And we have not violated a treaty, therefore, 

if we do not treat each one of these prisoners precisely in accordance with all the language in the Geneva Convention that provides 

for libraries and things of that nature. I think that is important for 

us to know. 

They are provided more due process than required, but the most 

important point here for us to remember, these are not people 

charged with bank fraud in the Southern District of New York, 

American citizens entitled to a Federal court trial. They are unlawful combatants, and they may be detained under the rules of war 

until the war is over. And we know that they present a danger to 

us. We know at least 12 who have been released have been re-apprehended for attacking the United States of America. 

We spent $109 million building a new facility in Guantanamo. I 

visited the old temporary facility, and they showed me the site 

where the new one would be. It would make a magnificent resort. 

It is on level land. It sits right out on the water. It is a beautiful 

site. We spent a lot of money on it; $42 million more is going to 

be spent to upgrade it. We are spending $140 million to improve 

housing and detention facilities in Iraq and Afghanistan. 

This country is not systematically abusing prisoners. We have no 

policy to do so, and it is wrong to suggest that, and it puts our soldiers at risk who are in this battle because we went them there. 

And we have an obligation to them not to make the situation worse 

than it is. If we made errors, we will bring them up and we will 

prosecute the people. But to suggest that we are in wholesale violation of the rules of war I suggest is wrong. 

Mr. Chairman, there are 520 individuals in Guantanamo today; 

234 have been transferred out 164 have been released outright; and 

67 have been handed over to another government. 

My time has expired, but I would just say that we have heard 

today that these individuals were screened before they were 

brought to Guantanamo; 10,000 have been detained. Only five, six, 

seven hundred have been brought to Guantanamo. They were 

screened before they were sent there to make sure that they were 

dangerous. We do not have any interest in bringing somebody, frivolous nature, to house in Guantanamo. It is a burden on our military. They do not want that. 

So I think some of them are entitled to be prosecuted, as they 

were in the Ex Parte Quirin case, approved by President Franklin 

Roosevelt and the United States Supreme Court for violations of 

rules of war, and some of them needed to be executed. And I asVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
39

sume that when this dust settles on some of these court hearings, 

we will be moving forward with that if they deserve it. If they 

don’t, so be it. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Well, thank you very much, Senator Sessions. 

As I said at the outset on the parameter, we are looking at the 

procedures here. The Committee is taking up about 15 Supreme 

Court opinions—one plurality, two five-person opinions, and a 

bunch of concurring opinions, and a bunch of dissenting opinions, 

and then three district court opinions. And it is a genuine crazy 

quilt to try to figure out where the due process rights lie. The Supreme Court has said there are due process rights. And I think we 

have done a fair job today in staying away from the questions of 

torture, the questions of mistreatment. We have been pretty much 

within the parameter. There have been some comments— 

Senator SESSIONS. Well, these fine men in uniform here today 

and those out there at risk in these prisons I think have been maligned, frankly, I think unfairly. 

Chairman SPECTER. Well, and we are looking at trying to keep 

some more. We are questioning why they released some on a promise that they would not go back to war and what good that kind 

of a promise was. And I think that some Congressional input is salutary. We are going to have a lot of work to do following this hearing with the military, with the military commissions, and with the 

Department of Justice in the parameters and definitions and the 

procedures. And we are going to have a second panel which will get 

into some of these questions in some greater detail. 

There is no doubt that when you talk about evidence, you are not 

talking about evidence in a criminal trial or something in the 

United States District Court. But the question is how much and 

right to counsel. We have heard testimony about right to counsel, 

and these are issues which the Constitution says are for the Congress. And to read the opinions of the Supreme Court Justices in 

the way we have left them hanging trying to figure out where to 

go piece by piece, it is our responsibility, and to make these judgments we have to know much more about the facts. 

Senator SESSIONS. Mr. Chairman, I would just agree that it is 

fine for us to inquire into this, but I would note in the history of 

warfare, we have not provided trials to prisoners who have been 

seized on the battlefield. That has been left to the military to handle. 

Chairman SPECTER. Senator Kohl? 

Senator KOHL. Thank you, Mr. Chairman, for holding this hearing. The stories coming out of the detention center at Guantanamo 

Bay continue to harm our image around the world. Guantanamo 

does not represent the America we know. Instead, it stands in 

stark contrast to the values that our Nation symbolizes. 

Since the first prisoners were wheeled off the plane in January 

2002, the detention center in Guantanamo has been on trial in two 

courts: our Federal courts and the court of public opinion. It has 

not fared very well in either. Indefinite detention of prisoners in 

Guantanamo has failed the test of fundamental fairness in our 

Federal courts. 

40

Of great importance also is the fact that Guantanamo has proved 

to be a failure in the court of world opinion. To be sure, the goal 

is not to win a popularity contest. Of course, the goal is to defeat 

terrorism. Yet to win the war on terrorism, we must engage in and 

win the battle of ideas in the Muslim world. 

Guantanamo is impeding our efforts to win this war of ideas. 

Shortly after 9/11, hundreds of people gathered in the streets of 

Iran and other countries around the world to honor the victims of 

those horrific attacks. Support for the United States at that time 

was at an all-time high. Yet today, less than 4 years later, we see 

a much different picture. Instead, it is anti-Americanism that has 

never been higher. The alleged abuses and incommunicado detentions at Guantanamo which have come to define the United States 

around the world eroded that support, adding fuel to the fire of 

anti-Americanism and making it easier for those seeking to do us 

harm to enlist recruits for their cause. 

We believe that security and adherence to the rule of law are not 

mutually exclusive principles. We have the best justice system in 

the world, and I believe that we can find a way to make this work. 

Nobody is advocating the release of suspected terrorists. In fact, 

quite the opposite, they must be detained or prosecuted. But this 

must be done in a way that is consistent with our values, and there 

is growing realization that the policies Guantanamo has come to 

represent should not continue. 

It is important to remember that Guantanamo is in large part 

a symbol. It is a symbol of bad acts and misguided policies that 

must be reviewed immediately. So I commend Senator Biden for 

calling for an independent commission to take a close look at Guantanamo and make recommendations on how to move forward. I believe this will lead us down a path toward fixing what is wrong 

with Guantanamo and moving us today a system that can withstand international scrutiny as well as keep us safe from terrorist 

threats. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Kohl. 

Thank you very much. It has been a lengthy panel— 

Senator LEAHY. Mr. Chairman? 

Chairman SPECTER. Senator Leahy? 

Senator LEAHY. I was just wondering if I could do a couple of 

quick follow-ups. 

Chairman SPECTER. Sure. 

Senator LEAHY. We have talked about these people being held as 

being captured on the battlefield. Admiral, you said this is a very 

broad definition of ‘‘battlefield.’’ Am I correct that some of the detainees were captured outside Afghanistan? Is that correct? 

Admiral MCGARRAH. Yes, sir, that is correct. 

Senator LEAHY. And you are going to supply for the record the 

places they were captured? 

Admiral MCGARRAH. We will follow up with you on that issue, 

sir. 

Senator LEAHY. But you will supply the places where they were 

captured. 

Admiral MCGARRAH. That is outside my responsibility, but I will 

make sure that that gets referred to the right people, sir. 

41

Senator LEAHY. I appreciate that. We had three people arrested 

in the United States who were designed at enemy combatants by 

the President. I mention that because the battlefield is not somebody who is out there necessarily in immediate armed combat with 

us. It seems to be the whole globe is the battlefield. Not all the detainees were captured during active combat. Am I correct in that, 

General Hemingway? 

General HEMINGWAY. I could not give you an accurate statement 

on that, Senator, because I have not reviewed the files of every single one. The only ones I have looked at are those who have been 

referred for trial by military commission. 

Senator LEAHY. Is it your understanding that all the people there 

were in active combat? 

General HEMINGWAY. It is not my understanding, and I cannot 

give you an accurate assessment of that because I have not looked 

at those files, and I would not want to speculate. 

Senator LEAHY. Thank you. 

Inspector General Fine, I want to thank you for your efforts over 

the past year to produce a declassified version of your investigation 

of FBI steps, many would say failures, leading up to September 

11th. I know you originally produced a report last year. Your efforts to declassify it prior to the election had failed, but Senator 

Grassley and I, among others, requested a public version be released. It was released last week. I just wanted to publicly thank 

you. I know you worked hard to have that happen. I know both 

Senator Grassley and I appreciate it. 

You are currently conducting an investigation of the FBI’s action 

at Guantanamo, what steps the FBI agents took to prevent the 

mistreatment of prisoners report misconduct. Does your investigation cover the question of the FBI’s reporting of complaints to DOJ, 

Department of Justice lawyers and then what the Department of 

Justice reported to the Department of Defense? 

Mr. FINE. Yes, Senator, our investigation is looking into what the 

FBI did, what they observed, what reports they made and how they 

were handled. 

Senator LEAHY. And have you interviewed the four Department 

of Justice lawyers who, according to FBI e-mail, received the FBI 

complaints? 

Mr. FINE. We have interviewed some Department of Justice officials. We are in the middle of our investigation, so I don’t believe 

we have interviewed all the people we need to. 

Senator LEAHY. Do you know when a preliminary result of the 

inquiry might be available? 

Mr. FINE. It would be impossible for me to predict that. We are 

going to do it as expeditiously as we can and we have allocated 

substantial resources to it. 

Senator LEAHY. Thank you, Mr. Chairman, and I will count on 

Admiral McGarrah and General Hemingway to follow up with answers to the questions I have asked. We will refine those for you 

more if you would like. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Biden asked me to say publicly that 

he has some questions for the record, and there may be some other 

Senators who will submit questions for the record. 

42

Senator CORNYN. Mr. Chairman, may I be permitted just a couple of very quick questions? 

Chairman SPECTER. Yes, Senator Cornyn. 

Senator CORNYN. I very much appreciate it. Thank you very 

much. 

Mr. Chairman, I am advised that we have had 11 members of 

the United States Senate visit Guantanamo Bay, and I was privileged to be one of those Senators who had a chance to actually see 

with my own eyes and to talk to the people in charge there, as well 

as to observe the detainees and talk to some of the teams that conduct interrogations. It was a very edifying experience for me, and 

I would think that, of course, any of us who have not yet had an 

opportunity to do that would benefit from that personal trip to 

Guantanamo Bay. 

I would just agree with the Chairman when you say that the Supreme Court opinions and the Federal court opinions in this area 

are a crazy quilt, and that we are struggling on this Committee to 

try to figure out exactly what the rules are and what the parameters should be and what the court has said. 

I would suggest that we ought to provide the same opportunity 

for both the Department of Defense and the administration in trying to deal with what in many ways is an unprecedented set of circumstances. We ought to engage in a presumption of innocence 

rather than the presumption of guilt, which our enemies seem to 

apply whenever a charge is made against the United States as regards Guantanamo Bay and our treatment of detainees. 

There have been ten different investigations conducted by the 

Department of Defense into interrogation practices and the alleged 

abuses and some factual instances of abuses at Abu Ghraib. But 

this has been extensively reviewed by impartial tribunals and I 

think that, in the main, our Department of Defense and people in 

charge of this facility have conducted themselves admirably under 

difficult circumstances. 

Thank you for giving me a couple of minutes. 

Chairman SPECTER. Thank you, Senator Cornyn. There is no 

doubt about the need for inputs, very heavy and very substantial, 

from the Department of Defense and from the Attorney General. 

There is one quotation that I did not start with, but I think it 

is worth just a moment of the Committee’s time, even though it is 

late, and this is Justice Scalia urging us to deal with this issue. 

He puts it this way: ‘‘There is a certain harmony of approach in 

the plurality’s making up for Congress’s failure to invoke the Suspension Clause and making up for the Executive’s failure to apply 

what it says are needed procedures, an approach that reflects on 

what might be called a Mr. Fix It mentality. The plurality seems 

to view it as a mission to make everything come out right, rather 

than merely to decree the consequences as far as individual rights 

are concerned, of the other two branches’ actions and omissions. As 

the legislature failed to suspend the Writ in the current dire emergency, well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have been included. And 

as the Executive failed to live up to those reasonable conditions, 

well, we will ourselves make up for that failure so that this dangerous fellow, if he is dangerous, need not be set free. The problem 

43

with this approach is not only that it steps out of the Court’s modest and limited role in a democratic society, but that by repeatedly 

doing what it thinks the political branches ought to do, it encourages their lassitude and saps the vitality of government by the people.’’ 

‘‘Lassitude’’ is not a word too often used for the Congress and 

probably ought to be used more often. But that is what we are confronting, with the DOD and the military and the Department of 

Justice grappling with these issues and the Court proliferating all 

over the place. ‘‘Crazy quilt’’ are the best words for it. So we have 

our work cut out for us, among a number of other subjects. 

Thank you for agreeing to stay, General Hemingway. Admiral 

McGarrah, to the extent you could stay, too, it would be helpful. 

We turn now, finally, to the second panel. Our first witness is 

Mr. Joseph Margulies, a principal in the firm of Margulies and 

Richman, and a trial attorney with the MacArthur Justice Center 

at the University of Chicago. He is the lead counsel in Rasul v. 

Bush, involving the Guantanamo detainees. He has a very distinguished academic and professional record which will be included in 

the record in full. 

Mr. Margulies, if you would step forward, along with former Attorney General William Barr, Lieutenant Commander Charles D. 

Swift and Professor Stephen Schulhofer, we will begin the second 

panel. 

Mr. Margulies, thank you for joining us. As soon as you are seated, the clock is going to start. 

STATEMENT OF JOSEPH MARGULIES, MARGULIES AND 

RICHMAN, MINNEAPOLIS, MINNESOTA 

Mr. MARGULIES. Senator Specter, Senator Leahy, Members of the 

Committee, the prisoners at Guantanamo can be divided into two 

categories. One is very small, one is very large. One category has 

four people; that is, as we heard this morning, the group of people 

who have been charged by military commissions. That category 

also includes another seven who have designated as potential candidates for prosecution, but we are talking about a total universe 

in the military commission context of about a dozen people. 

Lieutenant Commander Swift is going to talk about that group, 

but the rest, and the overwhelming majority of the people at Guantanamo Bay have never been charged with any wrongdoing. They 

have never appeared before any court of law. They have received 

nothing but a hearing before the CSRT, which you heard about this 

morning, or the Combatant Status Review Tribunal. The position 

of the administration is that this is all the process that they get, 

and that now they may be held for as long as the President sees 

fit, under any conditions the military may devise. 

You heard this morning how the CSRT operates in theory; that 

is, how it is written to operate. I want to talk about the reality. 

I want to talk about the reality because while my written testimony addresses the deficiencies of the CSRTs in some detail, what 

was absent from the discussion this morning and from the written 

testimony is a focus on an individual, and there are real people at 

Guantanamo and I would like to turn our attention to them. 

44

One of my clients is a man named Mamdouh Habib. Mr. Habib 

is Australian. In October of 2001, he was arrested not on the battlefield, not in Afghanistan, but in Pakistan by Pakistani police. 

They turned him over to the United States, who, after a period of 

a couple of weeks, bundled him onto a U.S. military plane in Pakistan and flew him to Cairo, Egypt, where he was held for 6 

months. There are no disputes about the facts that I am relating 

in that regard. 

During that 6 months, Mr. Habib was subjected to ingenious tortures. I realize that there are some reservations about making this 

into a hearing about torture. I say this only as it bears on the 

CSRT proceeding, however. Let me describe just one of the techniques that was used during that six weeks. 

Mr. Habib’s captors would bring him to a small windowless room. 

He was brought there handcuffed behind his back. The room was 

dark, and water starts to pour into the room and he watches as the 

water rises up past his knees, past his waist, rising above his 

chest, past his shoulders, finally past his neck. Mr. Habib, held 

there, has no idea when or if this water will stop. When it finally 

stops, it is past his chin and Mr. Habib can keep his mouth above 

the water only if he stands on the tips of his toes, and his Egyptian 

captors left him there for hours. 

Other tortures that Mr. Habib endured were considerably less 

creative. They beat him, they kicked him, they shocked him with 

something that would be fairly described as a cattle prod. Over the 

course of 6 months, Mr. Habib, as any of us would have expected, 

confessed to all manner of allegations. He told me he signed everything—and I learned this from him when I went down to talk to 

him at Guantanamo—he told me he signed everything that they 

put in front of him. Some of the papers he, in fact, signed were 

blank. He has no idea what was later written down on them. 

The U.S. Government, Senators, has never denied Mr. Habib’s allegations in this regard, which are now a matter of public record. 

In fact, quite the contrary. The State Department has protested repeatedly and for years, including post-9/11, against state-sponsored 

torture in Egypt. And many of the things that happened to Mr. 

Habib have been documented to have happened to other people as 

well. 

Senators, my point is simply this: The CSRT relied on Mr. 

Habib’s statements given in Egypt to support its conclusion that he 

was an enemy combatant. In fact, I have reviewed the allegations 

against Mr. Habib, and as far as I can tell and as far as the Government has disclosed in court, the CSRT had nothing except Mr. 

Habib’s own uncorroborated statements made during interrogations. My point would just be this: Any process that relies information secured in this way is just not worthy of American justice. It 

is as simple as that. 

So I am here to tell you three things, in addition to trying to answer whatever questions may be posed of me. I want to impart to 

you only three things. One, if you look at them fairly, the CSRTs 

are a sham. As I said to Judge Green, and she agreed with me, in 

the argument of December 1st of 2004, they mock this Nation’s 

commitment to due process and it past time for this mockery to 

end. 

45

Second, these prisoners must have their day in court. In response 

to questions, I can address the difference between these prisoners 

and those 400,000-plus who were held in World War II and given 

the benefits of the Geneva Conventions. It is past time for them to 

be held simply on the undifferentiated characterization of them as 

the worst of the worst. If the administration can prove in a Federal 

habeas hearing that these people belong in custody, then so be it. 

But bring that proof on. They have been there more than 3 years 

and it is time to put up or shut up. 

Third, respectfully, Congress must get to the bottom of this. The 

American people simply have to know what it is that is going on. 

We cannot tolerate any more black holes and we have a model for 

what we should do. We need an independent, bipartisan inquiry to 

figure out just what the administration’s detention policy is. What 

is it all about? What has been done, to whom, on whose authority, 

and at what facilities? 

I would close with these brief comments. Mr. Habib, Senators, is 

now out of custody, and let me tell you how that happened. When 

I learned the information that I have related to you today, I filed 

it in the district court of the District of Columbia, and those papers 

became public the first week of January. 

The next day, they appeared in a front-page article in the Washington Post, and after the front-page coverage it became apparent 

that Mr. Habib’s rendition would become a subject of inquiry within the Federal court. Five days later, after having described Mr. 

Habib, as they describe all of them, as the worst of the worst and 

dangerous terrorists—5 days after the account of his rendition became public, the Department of Defense announced that Mr. Habib 

would be released. 

I flew home with him. So far as I know, I am the only attorney 

who has been allowed to accompany his client home from Guantanamo. At the request of the Australian government, I went from 

Miami to Guantanamo, where we picked up Mr. Habib, and we 

flew to Sydney and I had the privilege, Senators, to be with Mr. 

Habib when he was reunited with his wife, whom he had not seen 

for more than 3 years, at the airport in Sydney. And when he saw 

her, he almost collapsed on the tarmac. I will never forget it. It is 

an experience I will never forget and one of the most memorable 

I have ever had as a lawyer and I think about it again today in 

this hearing. 

Thank you for your time. 

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

Chairman SPECTER. Thank you, Mr. Margulies. 

We have had another vote, so we will excuse ourselves for as 

brief a period of time as we can go and vote. For those of you who 

don’t know, we are up on the energy bill, and we will return as 

soon as we can. 

Senator LEAHY. With as much energy as we can muster. 

[Recess 12:06 p.m. to 12:29 p.m.] 

Chairman SPECTER. The hearing will resume. Our next witness 

is Hon. William Barr, who has a very distinguished record, most 

specifically as Attorney General of the United States from 1991 to 

46

1993, and his now Executive Vice President and General Counsel 

for Verizon. 

When the Department of Defense suggested former Attorney 

General Barr, I said excellent, he has got a lot of experience. 

Thank you for joining us, Mr. Attorney General, and we look forward to your testimony. 

STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF THE UNITED STATES, AND EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, VERIZON CORPORATION, 

WASHINGTON, D.C. 

Mr. BARR. Thank you, Mr. Chairman. It is good to see you and 

members of the Committee. 

Rarely have I seen a controversy that has less substance behind 

it. Frankly, I think the various criticisms that have been leveled 

at the administration’s detention policies are totally without foundation and unjustified. 

I would like to distinguish between three different kinds of activity that are underway in Guantanamo. First, Guantanamo is a facility for holding enemy combatants are that are captured in the 

battle theater. We have been fighting wars for 230 years. As the 

Supreme Court recognized, fighting wars is about destroying the 

enemy’s forces either by killing them or capturing them. And when 

you capture them, you detain them, and we have been holding 

enemy combatants, as I say, for 230 years in various facilities. 

There is nothing punitive about it. This is not a legal proceeding. 

There is no need to bring charges. They are being held because 

they were identified on the battlefield as threats to our forces and 

to our military mission. That determination has already been treated as a military determination, and it is not one that gives foreigners who encounter our troops on the battlefield due process 

rights to hearings and evidentiary hearings as to whether they 

were, in fact, or not enemy combatants. There has never been a 

case to suggest that. In fact, the Supreme Court cases say that foreigners outside the United States with no connection to the United 

States do not have due process rights. 

Now, I would like to analogize to World War II. We held over two 

million Axis prisoners during World War II. Over 400,000 were 

here in the United States, in camps, in Utah, Texas and Arkansas. 

And it wasn’t cut and dry. As a matter of fact, there was a lot of 

confusion about who was who because we seized a lot of Eastern 

Europeans and Asians who had been fighting in the Soviet army, 

captured by the Germans and conscripted into forced labor battalions who were claiming, hey, I am a Soviet citizen, I am not an 

enemy combatant. 

They didn’t get into U.S. courts. They didn’t get lawyers. They 

didn’t get hearings as to are you a member of the Werhmarcht or 

not. They were detained until the end of hostilities. So there are 

no due process rights for foreigners encountered on the battlefield. 

However, this should be a moot issue because the administration 

has provided—for the first time I am aware of in United States history, is providing an adversarial process to each of these individuals to contest whether or not they are, in fact, enemy combatants. 

This is the CSRT process, and that comports with the process alVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
47

luded by the Supreme Court in Hamdi that should be followed for 

American citizens here in the United States. So they are getting 

whatever due process rights could theoretically exist, and I submit 

none do. They are getting more than ample process. 

The second issues goes to the Geneva Convention. I hear a lot 

of pontificating about the Geneva Convention, but I don’t see what 

the issue is. The Geneva Convention applies to signatory powers. 

Al Qaeda hasn’t signed it. They are not covered by the Geneva 

Convention, period. With all this pontificating, I haven’t heard anyone allege any set of facts that would change that. 

The President absolutely correct in saying they are not entitled 

to protection. Does this mean they are without rights? No. If you 

are not covered by the Geneva Convention, then you are held in detention under the common law of war and you are treated humanely. But to say that terrorist like al Qaeda are entitled to protections of the Geneva Convention demeans international law, the 

Geneva Convention and our troops. 

The third point I want to make is about military tribunals. I 

guess we have come a long way because when the President first 

put out his order on military tribunals, there was all this strum 

and drone and, gee, this is a big end run around Article III courts 

and the world is coming to an end and this is unprecedented and 

this is a big deal. 

Well, the debate seems to have recentered a bit. I haven’t heard 

any serious argument that these cases belong anywhere else than 

military tribunals. Now, military tribunals are different than this 

issue of whether you are an enemy combatant. As to some set of 

people in our custody, we will choose to bring prosecutions. That 

is a punitive action and we will try them for violations of the laws 

of war. Historically, that has always been done by military courts. 

So, for example, in World War II when we tried German soldiers 

for atrocities like the massacre at Malmady, they were tried not in 

Article III courts here in the United States. They were tried by 

military courts. And the President has quite rightly, consistent 

with 230 years of history, set up military courts to try violations 

of the laws of war. 

Part of what is going on here, I think, in this debate is a fundamental misapprehension between two different kinds of constitutional activity. One is law enforcement and the other is waging 

war. They are different, and it is fundamentally incompatible with 

our Constitution and constitutional principles to try to take the 

strictures on executive power that exist in the law enforcement 

arena and carry them over and try to apply them when the country 

is waging war against foreign foe. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Barr appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Mr. Barr. 

Our next witness is Lieutenant Commander Charles Swift, who 

is defense counsel in the Office of Department of Defense Military 

Commissions. He is currently detailed to represent Salim Hamdan, 

who is facing trial by the military commission. 

Lieutenant Commander Swift is a graduate of the United States 

Naval Academy and has a law degree from the University of Puget 

48

Sound, graduating cum laude there. He has been affiliated with the 

Navy’s Judge Advocate General Corps after returning to active 

service in 1994. 

Thank you for your service, Commander Swift, and we look forward to your testimony. 

STATEMENT OF LIEUTENANT COMMANDER CHARLES D. 

SWIFT, DEFENSE COUNSEL, OFFICE OF CHIEF JUSTICE 

COUNSEL, DEPARTMENT OF DEFENSE, WASHINGTON, D.C. 

Commander SWIFT. Mr. Chairman, members of the Committee, 

as the Chairman stated, my name is Lieutenant Commander 

Charles Swift and I am with the Office of Military Commissions for 

the past 2 years and I represent Salim Ahmed Hamdan. I also was 

in line to represent Mr. Habib, until the press releases regarding 

his treatment caused his—or charges were not approved against 

him following those press releases. 

My testimony today is made in my capacity as Mr. Hamdan’s attorney. And, as such, it does not necessarily represent the opinions 

of the Department of Defense or the Department of the Navy. 

I first got to Military Commissions in March of 2003. Prior to 

coming to the commissions, I had absolute respect for military justice. I had worked in it. I am extremely proud of our military justice system. So it was surprising to me to get to Military Commissions and during my in-brief be told Mr. Haynes, the general counsel, that Mr. Lloyd Cutler, who has participated in the Quirin Commission as a prosecutor, one of the junior people on it, considered 

that commission that only thing in his distinguished legal career 

of which he was not proud. I couldn’t really put those two things 

together—military justice and not being proud. After 2 years at the 

Military Commissions, I regret to say I can. 

I met Mr. Hamdan in December of 2003. I was detailed pursuant 

to an order or a request by the chief prosecutor. That request said 

that the purpose in detailing me was to negotiate a guilty plea. It 

also said that my access to Mr. Hamdan was contingent upon the 

fact that he engage in those negotiations toward a guilty plea and 

that if he didn’t, then we wouldn’t have access anymore. In my 

military career as an attorney, I had never been detailed to represent somebody under those circumstances. 

When I met him, he had already been in solitary confinement for 

more than 45 days. I call it solitary confinement because Mr. 

Hamdan was by himself. He was in a windowless room where ventilation was provided only by an air conditioner and where there 

was no natural lighting. He exercised—and the guards confirmed 

this—only at night for about 30 minutes. He didn’t see any other 

detainees at any other time, and he was already, in my observation—I am not a physician, but in my observation, under extreme 

mental stress. 

I had to tell him that the only way I could guarantee that I 

would see him again was if he agreed that we were going to plead 

guilty to something. To do that ethically, I decided that the only 

way to do that was to tell him I can’t guarantee you—I don’t know 

what the Supreme Court is going to say, but if I am not allowed 

to see you— 

Chairman SPECTER. This is a guilty plea to what? 

49

Commander SWIFT. War crime unspecified, sir. 

That if I am not allowed to see, I will file a habeas and a mandamus writ in Federal court on your behalf. I don’t know that that 

would work, but that is what I will do. 

I subsequently requested speedy trial. I had requested that in 

February of 2004. General Hemingway responded in March of the 

same year saying that—I requested it under the UCMJ because 

Congress had said in passing Article 36 for commissions that the 

standards would never be less than the UCMJ. So I felt that surely 

a speedy trial would be available. I was told no, and it wasn’t until 

I filed a suit in Federal court that Mr. Hamdan got charges. In 

fact, it was only when the Supreme Court guaranteed that that option existed. 

The problem with military commissions ultimately, sir, comes 

somewhat to what General Hemingway said, and I have the most 

respect for him. He said I am here on behalf of here on behalf of 

the Government. The problem is that General Hemingway advises 

General Altenburg, who is the ultimate judge. A military commission under the rules doesn’t have the ability to make any final ruling. They have to send it to General Hemingway for legal review. 

But he is also here as the prosecutor; he has already made up his 

mind. We can’t say that this is an independent and fair process. 

It is not befitting of America. If we had the judge also be the prosecutor, would that be an American process, sirs and ma’am? 

Thank you. I yield the rest of my time and I would ask that you 

consider my written testimony. 

[The prepared statement of Commander Swift appears as a submission for the record.] 

Chairman SPECTER. Your full statement will be made part of the 

record, Commander Swift. 

Our next witness and final witness on this panel is Professor Stephen Schulhofer, Professor of Law at New York University. He has 

authored some 50 scholarly articles and books, six books, and his 

recently published work goes to the core of the issues we have here 

today, called, quote, ‘‘The Enemy Within: Intelligence-Gathering, 

Law Enforcement and Civil Liberties in the Wake of 9/11.’’ 

Thank you very much for coming in today, Professor Schulhofer, 

and we look forward to your testimony. 

STATEMENT OF STEPHEN J. SCHULHOFER, PROFESSOR, NEW 

YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK 

Mr. SCHULHOFER. Thank you, Senator Specter, members of the 

Committee. 

The issues arising out of the Guantanamo detentions are enormously important to our National security because it is essential 

that we be able to convince the world that America is fighting for 

freedom and for human dignity. We can’t defeat terrorism if we win 

battles at Tora Bora, but lose the cooperation and respect of the 

world’s one billion law-abiding Muslim citizens. Guantanamo is 

hurting us very badly. 

Senator Cornyn, nobody wants to turn loose the dangerous terrorists you describe; nobody does. Nobody wants to miss the chance 

to get life-saving intelligence, but we can’t let our actions create 

50

dozens of new terrorists for every terrorist we capture, and that is 

what now seems to be happening. 

I have been asked to focus on solutions to this dilemma. That is 

a problem we have been studying carefully at the Brennan Center 

for the past 2 years. Global terrorism poses unique challenges, but 

when it comes to detention, interrogation and trial, we have found 

no reason to think that the traditional institutions used in all prior 

wars aren’t up to the task. I should say that again because it is 

obviously not conventional wisdom. In matters of interrogation, detention and trial, we have found no reason to think that traditional 

institutions aren’t up to the task. 

The principles that should guide our response to Guantanamo 

are basically three. First, we should stick closely to the pre-9/11 

procedures. Doing that will minimize start-up costs. And most important, it will give us the legitimacy that has been disastrously 

missing from our detentions at Guantanamo. 

Second, our aim should not be to see how many safeguards we 

can avoid. That is the thinking that has brought us to where we 

are today. We must maximize transparency and accountability. We 

must do that even if the lawyers convince you that it is not legally 

required. 

Third, Congress and the administration need to address these 

issues quickly, but there is no point in doing that in a way that 

will simply re-inflame world opinion. The point of acting quickly is 

to show that we are ready to embrace accountability and accept the 

rule of law, openly administered by independent tribunals. Courts 

and courts martial already can do that effectively, particularly with 

the tools provided by the Classified Information Procedures Act. 

With that straightforward solution right at our fingertips, it is 

simply tragic that we are letting ourselves lose this propaganda 

war. It is tragic that we are letting hardened terrorists paint themselves as victims and elude the punishments that are long overdue, 

and it is not because defense counsel have had the audacity to file 

motions. That is not the cause of this delay. It is because the administration is trying to build an entirely new system from scratch. 

In terms of intelligence, Admiral Jacoby has one view that you 

heard read into the record this morning, but let’s be clear about 

this. No other country in the Western world claims that successful 

interrogation requires keeping terrorism suspects in isolation for 

years on end. Britain, when it faced a grave emergency in Northern 

Ireland, extended incommunicado detention from its normal period, 

which was 48 hours, to a maximum of 5 days—5 days, Mr. Chairman. For the Israelis, even in areas under military occupation, the 

detention of suspected terrorists before their first court hearing is 

limited to a maximum of 8 days. 

How can we be surprised that the world doesn’t buy into Admiral 

Jacoby’s view? How can we be surprised that the world recoils at 

incommunicado detentions that are lasting for more than 3 years? 

Congress and the administration should move quickly to start cutting our losses. As I mentioned, there is no reason to think the traditional war-time procedures can’t handle the issues. The details 

are in my written statement. 

That said, some of the key facts are still obscure, and ‘‘trust us’’ 

is just not an answer that works beyond our own borders. So as 

51

Senator Biden said, we do need a bipartisan study, this one focused 

on detention, interrogation and trials. I know Washington doesn’t 

want another study commission, but there may be no other way to 

demonstrate our commitment to the rule of law. I think what is 

equally important is there may be no other way to be sure that our 

tough-minded practices aren’t helping the enemy more than they 

are helping us. The stakes are very high and we have to get this 

right. 

Thank you for your attention. 

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

Chairman SPECTER. Thank you very much, Professor Schulhofer. 

We now come to the questioning of the panel, and let me begin 

with you, Commander Swift. When your instructions to obtain a 

guilty plea did not work out, you then represented Mr. Hamdan in 

the habeas corpus proceedings in the United States District Court 

for the District of Columbia. Is that correct? 

Commander SWIFT. Yes, sir. 

Chairman SPECTER. And was there any limitation placed upon 

your representation of him there? 

Commander SWIFT. No, sir, there wasn’t. During this entire proceeding, I want to assure this panel, this Committee, that I have 

never felt any pressure from my seniors or from my bosses or anyone in the military— 

Chairman SPECTER. So you just proceeded to do a lawyer’s job? 

Commander SWIFT. Sir? 

Chairman SPECTER. You just proceeded to do a lawyer’s job? 

Commander SWIFT. Sir, I proceeded to do the job I believed to be 

as a lawyer and an officer in that situation required. 

Chairman SPECTER. Is it customary, or are there many other 

cases where a detainee like Mr. Hamdan is provided counsel like 

you, well-trained and versed in the field, with experience and expertise? 

Commander SWIFT. To my knowledge, two of the cases that were 

cited for commission’s proposition are the Yamashida case and the 

Quirin case. In both of those, Colonel Royale brought that case to 

the Supreme Court, and the defense counsel, who will go unnamed 

in the Yamashida case, went so far as to fly their petition for habeas to the Supreme Court out on an airplane from the Philippines. 

Chairman SPECTER. There has been testimony here today that 

counsel is available in these proceedings before the military commission. To what extent have you found that to be true? 

Commander SWIFT. Well, there was counsel available at one 

time, sir. The problem is that that time has passed. At its height, 

the Office of Military Commissions and the defense counsel’s office 

was six full-time attorneys. As of July 22nd, it will be down to one, 

unless reliefs are identified. I am no longer attached directly to the 

office, in that I went on to other orders. I continue to represent Mr. 

Hamdan. 

Chairman SPECTER. Would the availability of defense counsel impede what Senator Kyl had spoken about here earlier today as the 

interrogation process which needs to be a continuum? 

Commander SWIFT. I don’t agree that it would, sir. After an immediate position, my experience—and I can only speak for my exVerDate 0ct 09 2002 11:24 Oct 06, 2006 Jkt 024332 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24332.TXT SJUD4 PsN: CMORC
52

perience here, sir—is that more times than not, when my client has 

valuable information and there is an opportunity to benefit the 

Government and benefit himself, my immediate advice is let’s give 

the information and get the benefit of it. 

Chairman SPECTER. Let me turn to former Attorney General 

Barr. In the opinion which Judge Green handed down on a series 

of Guantanamo cases, she found deficiencies in the CSRT’s failure 

to provide detainees with access to material evidence upon which 

the tribunal affirmed their, quote, ‘‘enemy combatant status,’’ and 

the failure to permit the assistance of counsel to compensate for 

the Government’s refusal to disclose classified information directly 

to the detainees. 

Mr. Barr, to what extent is it realistic to give detainees access 

to classified information so that they are able to defend themselves? You made a comment about this is not an adversarial proceeding; the rights are limited. How do you balance that out, or is 

there no balance? 

Mr. BARR. In my mind, it is a prudential judgment by the chief 

executive, the commander in chief, because it is preposterous to say 

that there is some kind of constitutional right that the foreign person seized on the battlefield has to look into American intelligence 

during a way. 

I mean, just think about the enormity of that. You know, our 

troops make a judgment that someone is a hostile and then we 

have to have an adversary proceeding and then they get free rein 

into looking into classified material. It is ridiculous. 

Chairman SPECTER. Let me turn to Mr. Margulies. My time is 

nearly expired. 

Your representation of Mr. Habib certainly was successful. Was 

there any evidence to the extent that you feel free to comment 

about the substance of the Government’s charges? 

Mr. MARGULIES. What I can say is that I have reviewed the classified and the unclassified portions of the returns. I can only discuss the classified portions to the extent that it has become public. 

For instance, portions of it are discussed in Judge Green’s decision. 

If the allegations against him were true, he wouldn’t be home. If 

there were an atom’s weight worth of true to them, he would still 

be in custody. 

The Department of Defense does not disclose why it is it releases. 

What it does is puts them on a plane and sends them home. I am 

the only person who actually got to go home with him, and so we 

had advanced notice of it. But all we know is that they made very 

strong allegations against him and then the facts came out that it 

appears that those allegations were based on statements taken 

when he was in Egypt. And when that fact came out, he was released. 

Chairman SPECTER. I am past time, which I don’t like to be, but 

we are not going to have another round, so I want to follow up with 

you on just one further area, Mr. Margulies. 

Your job as defense counsel is obviously to represent your client, 

to secure his release if you can. But you have heard the testimony 

and you know the circumstances of the problems of a terrorist attack and you know the difficulties of producing competent evidence 

53

and giving detainees access to confidential information because of 

the security problems. 

Can you take a step backward and give us a view as to how you 

would reconcile these differences? 

Mr. MARGULIES. I can try. 

Chairman SPECTER. That is too broad a question for now, but I 

will ask you to respond to it. But I would like to ask you to respond 

further when we work through these issues after this hearing is 

over today. This is just the start of a lot of hard work on the part 

of the Committee in trying to figure out what our constitutional 

duty is to establish these rules. 

But what would you say on this tough issue of balance? 

Mr. MARGULIES. Two things, Senator. One, my colleagues and I—

and when I say my colleagues, that is the lawyers that I have been 

working with, and there is now a substantial number. I have to 

give a particular nod to the lawyers at the Center for Constitutional Rights who have been my colleagues in Rasul since the case 

began, and at Sherman and Sterling here in D.C. who have represented the companion case of Al-Odah. We stand ready to work 

with you and your colleagues in whatever capacity you want. 

I know Professor Schulhofer can address this as well. Regarding 

your other question, the Federal courts of the United States are 

steeped in the procedures and statutes governing the use and dissemination of classified information. We have dealt with this problem for decades, and dealt with it successfully in terrorism trials. 

We know how to create a process that both comports with the requirements of the law and protects national security classified information. We have an entire body of statutes—the Classified Information Protection Act, or CIPA—that can be imported into, either by legislation or by the habeas rules, to control the flow of information in habeas proceedings for the 540 people who are not 

going to be subject to military commissions. 

The problem is that the CSRTs not only rely on classified information that is not shared with the prisoner, but do not share it 

with counsel. So he must rebut—in fact, the burden is on him to 

rebut secret information that is not shared with him that he 

doesn’t know about. That is what collectively makes it an invalid 

process. 

Chairman SPECTER. Okay, thank you very much, Mr. Margulies. 

Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. Thank you, all four 

of you, for being here. 

Professor, let me ask you a question. I have sort of been thinking 

about this this morning. General Hemingway said one of the reasons it took 3 years to begin commissions was because they had to 

build a whole new judicial system. 

Was it necessary to build a whole new judicial system? 

Mr. SCHULHOFER. Senator, it was not necessary. For people who 

have been captured overseas on the battlefield, we have procedures—Army Regulation 190–8—for prompt determinations right 

on the battlefield of their status. We have procedures. If they are 

claimed to be unprivileged combatants, as General Barr claimed a 

minute ago, our own procedures require further process because 

treating them as unprivileged means that they don’t have the 

54

rights to communicate with their families and other principals 

under the Geneva Convention. 

Senator LEAHY. Let me follow that up just a little bit further because you said if they are picked up on the battlefield. Have you 

heard, as I have, that some of the individuals picked up were not 

captured during combat, but were picked up far from any battlefield; I have been told in countries such as Bosnia? Does that raise 

a concern for you if that is so? 

Mr. SCHULHOFER. Absolutely. We know for a fact—even though 

the Government has simply refused to give a direct answer to questions about this, we know for a fact that many of the people, even 

people seized in Afghanistan, were not seized by our own troops, 

which was the formulation General Barr mentioned. These are people who were seized by warlords in Afghanistan and literally sold 

to us under the claim that they had been fighting. That is just Afghanistan for a starter. 

Then we know for a fact that some people were picked up in Bosnia. We know for a fact that some of the enemy combatants were 

arrested right here in the United States. One of them was arrested 

at O’Hare Airport in Chicago. One of them was arrested by the FBI 

in Peoria, Illinois. And these people have been determined to be 

enemy combatants on the theory that the entire world is a metaphorical battlefield. So we know for a fact that that is going on. 

Senator LEAHY. It is interesting. I am not looking for answer to 

this, but if the entire world is a metaphorical battlefield and we 

know that we will be facing terrorists as long as anybody in this 

room lives, that gives you an awful lot of leeway if you follow these 

rules. 

Lieutenant Commander Swift, you have been in the military for 

18 years. You are obviously there as a career military officer. Defending suspected terrorists probably doesn’t make you the most 

popular person at the officer’s club, if I am correct. 

Commander SWIFT. I was concerned about that, sir. To relate, 

though—I think that this is incredibly important to the military—

I went back to my 20th reunion at the Naval Academy. One of the 

people I was kind of worried about seeing is a Marine Corps lieutenant colonel who has had an awful lot of combat time. He has 

been in every campaign. And he came up to me at the reunion and 

he looked at me and said, I go out there everyday to fight for our 

freedom on the battlefield; don’t you do dare stop fighting in the 

courts. 

Senator LEAHY. As the proud father of a former Marine, I am delighted to hear that response. When I was a prosecutor, I recall always arguing that we get the best defense attorney possible. The 

system works better. 

You heard General Hemingway’s testimony this morning about 

the military commissions. Is there anything you would like to add 

to his testimony, or disagree with his testimony? 

Commander SWIFT. I would start principally with the idea of 

rights. The first thing we do is list rights, but they don’t read you 

the last paragraph. The last paragraph says that nothing in the instruction that supposedly creates these rights actually creates a 

right in any court. Moreover, they are subject to change at any 

time and cannot be enforced by the accused. 

55

Now, to me, a right is something you get to keep and you get to 

have unless due process takes it away from you, not a change in 

the instruction, and it can be enforced. So I think when we start 

with the entire process, when these have been listed as rights to 

you, they are not actually rights. They are the current processes 

and they can be changed at any time and they are unenforceable 

by the accused. 

Senator LEAHY. I think I referred to this morning those pesky 

rights. Again, when I was a prosecutor—and Senator Specter had 

far more experience as a prosecutor—those rights oftentimes made 

our life more difficult, but I don’t think either one of us would ever 

suggest that we not have them. 

The administration has argued that if the Geneva Conventions 

apply to the war on terror, then members of al Qaeda would receive prisoner of war protections and we would not be able to interrogate them. One, is that correct? And, secondly, what advantages 

would there be for the U.S. to apply the Geneva Conventions to the 

war on terror? 

Commander SWIFT. There would be one—just to relate from history, sir, the Japanese were certainly considered during World War 

II to be fanatical, willing to die rather than surrender. In fact, they 

had the precursor of suicide bombers, the kamikaze pilot. 

Senator LEAHY. The battles of Mount Surabachi show that. 

Commander SWIFT. Yes, sir. The most effective interrogations of 

the Japanese who were captured were conducted in accordance 

with the Geneva Conventions. They were conducted by a Marine 

colonel who was steeped in the Japanese language, their philosophy and understanding. By treating them kindly and humanely, 

he undercut the propaganda that they had been fed that the Americans were simply out to annihilate the Japanese. When they found 

that not to be true, they cooperated. 

I would also say that as far as applying the Geneva Conventions 

to al Qaeda, I would harken back to what the Milliken court said. 

At the end of the court, it said it makes no sense to apply the pains 

of the law of war to those who cannot claim its protections. 

Milliken was a terrorist presumably of his day. He was supposed 

to be supporting an insurrection in the north against—overthrow 

of the army behind enemy lines. They said if you are not going to 

apply the protections of the military to him, you can’t apply the 

military law to him. 

If we apply the Geneva Conventions and say we are holding ourselves under their accountability, then we can say we are going to 

hold you accountable, too. We cannot start this process by saying, 

well, the Geneva Conventions don’t apply to you, you have no protections, we don’t have to follow them, and now we are going to 

hold you accountable for violating them. 

Senator LEAHY. Thank you, Commander. I am proud of your response and I think you reflect the feelings of many in the military. 

And I think you are fighting to make sure we have all of those 

rights, all of the military are, and I applaud you for upholding 

them. 

I wonder, Mr. Chairman, could I ask Attorney General Barr one 

question? 

Chairman SPECTER. Sure. Go ahead, Senator Leahy. 

56

Senator LEAHY. It is always a pleasure to see Attorney General 

Barr here. He is no stranger to this Committee in good times and 

bad. I hope they are mostly good times. 

John Walker Lindh was a U.S. citizen who fought alongside the 

Taliban. To begin with, I am not holding any brief for Mr. Lindh, 

but he was prosecuted in Federal court and he is now serving a 20-

year sentence. Yasir Hamdi, who was another U.S. citizen, was 

captured in Afghanistan. He was designated an enemy combatant 

and he was held in a Navy brig for more than 2 years. He was not 

allowed access to either a lawyer or family. 

The Supreme Court then said he was entitled to a fair hearing—

hardly a radical ruling from hardly a radical Supreme Court. But 

the administration said, well, rather than give him the hearing, we 

will release him. So one minute, he is too dangerous to be allowed 

access to a lawyer. The next minute, all of a sudden he is free to 

go. 

Quite a bit different, the treatment between Lindh and Hamdi. 

Which case had a better result? 

Mr. BARR. Well, obviously, the Lindh case had a better result, 

but I think you are mixing up two different things here. One is the 

legal regime that applies to American citizens, and I think the administration has always taken the position and recognized that in 

any war you will find American citizens fighting in enemy forces. 

That has been the case. 

That was the case in World War II. There were Americans fighting in the Werhmarcht, and we had captured some, and the administration took the position that they were always entitled to habeas 

corpus. They can get habeas corpus review of their detention, and 

the question is what standard applies; what is the showing that 

has to be made in habeas corpus review to justify continued detention of an American citizen. It didn’t address foreigners who do not 

have a connection with the United States. The court laid out very 

roughly what the procedures are and those are essentially the procedures that are being given to the foreign detainees at Guantanamo. 

But I don’t know why the administration dropped the case, although I heard Mr. Margulies talk about all this great way we 

have of handling classified information. That is nonsense. I had to 

make the decision to drop many prosecutions precisely because at 

the end of the day there was no way of protecting that classified 

information in a criminal prosecution if it was material to the conviction. 

Senator LEAHY. So Hamdi got a free pass? 

Mr. BARR. I don’t know why they dropped it. 

Senator LEAHY. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. I was thinking 

about the subject matter of today’s hearing and the rules by which 

enemy combatants are detained, interrogated and the like, and it 

struck me as somewhat ironic when I considered what sort of rules 

and facilities are provided by our enemy for Americans and our allies who are captured during hostilities. 

57

Of course, it occurred to me also that our enemy doesn’t capture 

any Americans or allies. They kill them, they blow them up, which 

I think again demonstrates that are engaged in a different kind of 

conflict and a different kind of war. But it is nonetheless a war, 

but with an enemy that does not respect or observe the law of war 

or the conventions that we think of when we think about two countries fighting each other through uniform forces. 

As the 9/11 Commission and others have observed, we can’t rely 

strictly on a law enforcement paradigm that it seems has infused 

so much of the comment here today. We have got to adopt a new 

paradigm, both to share intelligence and to deal with the need to 

get actionable intelligence from these detainees, and, yes, to even 

detain them, these dangerous individuals who are likely to go back 

and kill more Americans, if released, until the end of the hostilities, as peculiar as that may seem to our modern sensibilities. 

I certainly understand and endorse the work that Commander 

Swift and Mr. Margulies are doing as lawyers. As lawyers in an adversary system, their job is to present the best arguments that they 

can think of for their client, and I understand and respect that role 

that lawyers play. But I do believe, and I think we all would agree 

that the courts are ultimately the ones who are going to make the 

decision on this. In fact, the courts have. Indeed, in some cases the 

administration has prevailed and in some cases they have not prevailed. 

Let me just ask you, Mr. Barr, with regard to the Geneva Convention issue, hasn’t the administration’s position that al Qaeda 

fighters do not have privileges of a POW been upheld by Federal 

courts? As a matter of fact, according to my count, it is at least 

three Federal courts. It has been endorsed by the 9/11 Commission 

and by the Schlesinger report. 

Is that your understanding, sir? 

Mr. BARR. Yes, Senator, that is my understanding. And as I said 

earlier, I have not heard any allegation or contention that could 

possibly bring al Qaeda under the protections of the Geneva Convention. 

Senator CORNYN. Now, with regard to the Supreme Court’s recent decisions which we are talking about here during this hearing, 

Mr. Barr, didn’t the Court agree with the administration’s position 

that the President has the power to detain enemy combatants and 

reject legal challenges to that position? 

Mr. BARR. Yes. I think one of the things that has been missed 

by the media in reporting those decisions is all the core positions 

of the administration that were sustained. The Court specifically 

said, yes, you can detain enemy combatants. It is not punitive, it 

is not a trial-type situation where you are trying to punish them. 

Number two, it said you can even detain American citizens as 

enemy combatants. It was in that context that they elaborated on 

the standard you need for keeping an American citizen in the 

United States. They also seemingly endorsed use of military tribunals, and they pointed out that military tribunals are inherently 

flexible and they talked about the need for flexibility in dealing 

with these kinds of procedures in the national security arena and 

how the flexibility of military tribunals permits that. 

58

In fact, notwithstanding the professor’s comments that we sort of 

have things on the shelf we can use, that is simply not true. These 

kinds of situations always involve unique circumstances, which is 

why we have generally constituted military commissions directed 

at specific conflicts. And I think that the President’s order did exactly what we needed for this particular conflict. 

Senator CORNYN. Thank you very much. 

Well, in the end I hope we at least all can agree that notwithstanding the arguments people may make in court, or people of 

good faith who are trying to advance the cause of actually getting 

a decision on this, that we will ultimately at least agree that the 

courts are going to be the ones who are ultimately going to decide 

the parameters of the rights accorded to these detainees, as they 

have already largely through the Supreme Court’s decisions in 

Hamdi and Padilla and others. 

Thank you very much, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Feinstein. 

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

Chairman, I just want the Committee to know that today Attorney 

General Gonzales, I gather in Brussels, has said, and I quote—and 

this is about Guantanamo—‘‘We have been thinking about and continue to think about whether or not this is the right approach. Is 

this the right place, is this the right manner in which to deal with 

unlawful combatants,’’ he told reporters in Brussels, and I must 

commend him for that open view. 

Mr. Chairman, I would also like to put in the record something 

we downloaded from the White House fact sheet yesterday, and 

that is a statement on detainees and it says the United States is 

treating and will continue to treat all of the individuals detained 

at Guantanamo humanely, and to the extent appropriate and consistent with military necessity in a manner consistent with the 

principles of the Third Geneva Convention, 1949. 

Then the fact sheet goes on to discern Taliban are entitled to 

POW status, but al Qaeda detainees are not. And I think in a way, 

that is the rub. I think, in a way, it is the determination of who 

is who, guilty of what, that is a real problem here. And I have just 

about reached the conclusion that this special military commission 

is not a positive thing, but the Uniform Code of Military Justice 

really is. 

Could I ask this question of anybody that knows: How many 

cases have come before the military commission? 

Commander SWIFT. To date, there are four. Two cases actually 

had commissions convened in them. The other two cases did not get 

that far. So there are four people identified at present. Two of the 

individuals who were to be tried by military commissions requested 

to represent themselves—or excuse me—one did, and in the other 

one there was a question regarding counsel so they never started. 

So there are a total of four. 

Senator FEINSTEIN. Thank you. Commander Swift, if I might, you 

mentioned that you had been told you could only represent Mr. 

Hamdan as long as it was to negotiate a guilty plea. Did you receive any document to that effect? 

Commander SWIFT. Yes, ma’am, I did. 

59

Senator FEINSTEIN. And could you tell us about that document, 

please? 

Commander SWIFT. Ma’am, it was a target letter to the acting 

chief defense counsel, who at that time was Colonel Will Gunn—

he is now the chief defense counsel—on December 15, 2003. It requested Colonel Gunn, who was the detailing authority, to make 

counsel available for Mr. Hamdan. It was from the chief prosecutor, 

Colonel Fred Bork, who was at that time the acting chief prosecutor for the military commissions. He said that they were considering preparing charges and that they desired to have a defense 

counsel detailed. He then put some limitations on that. 

Senator FEINSTEIN. And what were those limitations? 

Commander SWIFT. Specifically, ma’am, he said that he was authorized to detail a military defense counsel to advise Mr. Hamdan 

on how he might engage in pre-trial discussions with a view toward 

resolving the allegations against him; that the prosecutor’s office 

would make arrangements with Commander, Joint Task Force 

Guantanamo, for such detailed military counsel to have access to 

Mr. Hamdan. 

Senator FEINSTEIN. Now, how do you interpret that? 

Commander SWIFT. Well, I interpreted it most on this last line, 

ma’am: ‘‘Such access shall continue so long as we are engaged in 

pre-trial negotiations.’’ I interpreted that, ma’am, to mean when I 

was detailed that the only way I could see Mr. Hamdan was we 

were negotiating for a guilty plea. There are no negotiations in a 

not guilty plea. 

Senator FEINSTEIN. Mr. Chairman, may I enter that memo into 

the record, please? 

Chairman SPECTER. Without objection, it will be made part of the 

record. 

Senator FEINSTEIN. Thank you. 

I would like to ask Professor Schulhofer a question. In your written testimony, you refer to Congress’s law-making power under Article I, section 8, of the Constitution. It has been my view that Congress has both the power and the responsibility to take on the issue 

of detentions and interrogations, specifically pursuant to two 

clauses of section 8, to make rules concerning captures on land and 

water, and to make rules for the government and regulation of the 

land and naval forces. 

Do you agree, and are these the particular sources you are referring to? 

Mr. SCHULHOFER. Thank you, Senator. Yes, I believe that those 

two clauses are as explicit and clear as anything could be, and they 

are not in footnotes. They say that Congress shall have the power 

to make rules concerning captures and to make rules concerning 

the regulation of the armed forces. In the absence of congressional 

action, unquestionably the President must take action as commander in chief, but there is absolutely no room for doubt that this 

is an appropriate responsibility for Congress. 

Senator FEINSTEIN. I think, Mr. Chairman, at best what we have 

is a very confused situation, depending on interpretation, how commanders interpret how orders are given. And I think we have seen 

this over and over again. What is clear to me is that we have the 

legal responsibility to make the rules and I think we ought to do 

60

that. And I think we ought to see that they are consistent with the 

Geneva Conventions. 

I would like to ask you this question. How would you recommend 

that the question of habeas corpus be handled? 

Mr. SCHULHOFER. Thank you, Senator. I have tried to spell out 

some of the details in my written testimony. I think one place to 

start, just to be very clear about this, is we are not talking about 

a law enforcement paradigm. I think it is quite misleading to think 

that those like myself who have concerns about this process are 

simply saying you should follow a law enforcement paradigm. 

What we are saying is that we should follow the normal military 

procedure for people who are captured in battle. The normal procedure would have been a prompt battlefield determination of status. 

Three years later, it is very difficult to do that when the President 

and the Secretary of Defense and right down the chain of command 

have already announced that these people are the worst of the 

worst. 

So in that context, there needs to be some other process. 

With respect to people accused of committing war crimes, there 

is, as well, a process already in place in terms of military courts 

martial. We are not talking about ordinary law enforcement. We 

are talking about military courts martial under the Uniform Code 

of Military Justice. So that would be the beginning framework. I 

think there is room for Congress to make refinements of the Classified Information Procedures Act. If Congress is not able to act, the 

courts have residual authority to address new situations, but that 

would be the basic approach. 

And then I think the last thing I would want to say about that 

is I have said that this is a question of the war paradigm, but there 

is one important limit to that. If we accept the idea that the entire 

world is a battlefield—and I understand that. My office is less than 

a mile from Ground Zero. I understand that extremely well. And 

September 11th for us was not a day; it was months that we had 

the smoke and the National Guard. It was months that we could 

smell human flesh burning at Ground Zero. So I know what that 

means. 

But if we accept the analogy, the conclusion is that the President 

then has unlimited discretion to swallow up the law enforcement 

paradigm even— 

Chairman SPECTER. Professor Schulhofer, could you summarize 

this answer? We are trying to at least conclude by 1:30. 

Mr. SCHULHOFER. Yes. I apologize, Senator. I think I have actually reached the conclusion of my answer and I will be happy to 

elaborate further after the hearing. 

Chairman SPECTER. That sounds like a good idea. 

Anything further, Senator Feinstein? 

Senator FEINSTEIN. Thank you. 

Chairman SPECTER. Senator Sessions. 

Senator SESSIONS. Mr. Chairman, this has been a good and interesting discussion. I wish I had been able to hear all of it since the 

second panel had come. 

I think, in general, the tone of this hearing has suggested widespread abuses on the part of our military, whereas what really is 

at stake here is a legal debate over exactly what procedures ought 

61

to be utilized. If someone has violated the procedures, they ought 

to be disciplined. 

Commander Swift, with regard to your appointment, isn’t it true 

that you were appointed as counsel for Hamdan for all matters relating to military commission proceedings involving him? 

Commander SWIFT. I was so appointed. 

Senator SESSIONS. Not just solely to take a guilty plea. 

Commander SWIFT. Sir, when I was appointed, my access to Mr. 

Hamdan was not controlled by the Office of the Chief Defense 

Counsel. It was controlled by the prosecutor, and the prosecutor 

told me at the time of my appointment that my access was controlled contingent upon him pleading guilty. In fact, he told me further that I had to give him an answer in 30 days and if I didn’t 

give him an answer in 30 days, I had to request extensions. He was 

in control of whether I saw my client or not. 

I believed as a lawyer that once I had an attorney-client relationship, then I had a duty to represent him, no matter what. But the 

truth of the matter was I had to advise Mr. Hamdan of the real 

practicalities, and that was that if he wasn’t going to plead guilty, 

he might not see my again. 

Senator SESSIONS. Well, Lieutenant Commander Swift, you are a 

lieutenant commander, a JAG officer. Prosecutors don’t order 

around JAG defense counsel. I know that and you know that from 

the little time I had as a JAG officer, and I would note that the 

order directing you to represent him says ‘‘all matters relating to 

military commission proceedings,’’ close quote. 

Mr. BARR. Excuse me, Senator. Could I something there? 

Senator SESSIONS. Yes, Mr. Barr. 

Mr. BARR. Let’s put something in perspective here. The United 

States has a lot of people that they could charge with war crimes. 

We are not under any obligation to try these people when they 

want to be tried. We can try them when we want to try them. Rudolph Hess was captured in 1939 and he was tried in 1946. These 

people are in detention as combatants. So we can take our time 

and judge who we want to do. 

And it doesn’t surprise me that as an initial matter, in terms of 

allocating our resources, the United States wanted to see if anyone 

was ready to plead guilty. And if they are ready to plead guilty, 

we will provide them with counsel. If they are not ready to plead 

guilty, they can stand in line and wait to be prosecuted down the 

road. That is not a surprising thing. 

Senator SESSIONS. I would also note, Mr. Barr, that the— 

Senator LEAHY. Can we have the Lieutenant Commander’s answer? 

Senator SESSIONS. I thought he answered. 

Commander SWIFT. Sir, I would like to respond. As you said, this 

was extraordinary circumstances, though. I can’t see my client 

without the permission of JTF. I have to write a message every single time and be approved. 

Senator SESSIONS. Well, you are unhappy that you have to write 

a message to see the client. That is one thing. It is another thing 

to say that you weren’t commissioned to represent him on anything 

but a guilty plea. 

62

Commander SWIFT. My access was contingent upon it, sir. Also, 

he differed from the situation that Mr. Barr described in that he 

was in solitary confinement. Had he been among the general detainee population, I would be more willing to agree. 

Mr. BARR. Another point on that. Anyone who has gone into a 

Federal maximum-security prison—you know, these violin strings 

about people being held in segregation, getting out of their cell 20 

minutes a day—I am sorry; that is our system in our maximumsecurity prisons in the United States for American citizens. 

Senator SESSIONS. I couldn’t agree more, Attorney General Barr. 

I would just like to point out that we have regular visits by the 

Red Cross. Two hundred of these detainees now have habeas corpus petitions pending in Federal courts. A thorough investigation 

of all procedures has been undertaken as part of ten major reviews, 

assessments, inspections and investigations, and we have had hearings on that repeatedly. Seventeen hundred interviews have been 

conducted. Sixteen thousand pages of documents have been delivered to Congress. 

Detention operation enhancements and improvements have involved increased oversight and expanded training of the guards 

and interrogators to improve facilities. 390-plus criminal investigations have been completed or are ongoing. More than 29 congressional hearings have addressed this issue—29 congressional hearings. Those responsible are being held accountable. 

In the Army, one general officer has been relieved from command. Thirty-five soldiers have been referred to trial by court martial, 68 soldiers have received non-judicial punishment, 22 memoranda of reprimand have been issued, 18 soldiers have been administratively separated. The Navy has had nine receive non-judicial 

punishment. The Marines: 15 convicted by court martial. Seven received non-judicial punishment, and four reprimanded. 

So I think it is important for the people who are listening to this 

hearing today to know that our United States military takes this 

issue seriously. They brought up the Abu Ghraib matter before the 

press did. They announced it. They commenced their own investigation. People have been prosecuted and convicted, and we are 

not going to tolerate the kind of behavior that we have seen in certain of these instances. 

But the fact is these are not American criminals, Mr. Barr. I 

think you have indicated that, and they are not entitled to the 

same due process rights an American does who expects to be tried 

in Federal district court somewhere. 

Could I ask Mr. Barr one more thing? 

Chairman SPECTER. Go ahead, Senator Sessions. 

Senator SESSIONS. As Attorney General of the United States, you 

understand that an Executive has certain powers. The courts have 

certain powers and the legislative branch has certain powers. 

Speaking as an attorney general who would be representing a 

President of the United States, do you have concerns about what 

could be an erosion of the Executive’s power to conduct a war on 

behalf of the citizens of the United States? 

Mr. BARR. Absolutely, Senator, and what we are seeing, I think, 

today is really a perversion of the Constitution. The Constitution 

sets up a body politic, members of a political community, and in 

63

that body politic we have rules that govern us. And what the Constitution is all about is to say that when the Government acts 

against a member of the body politic to enforce our own domestic 

laws—that is, the Government acting against one of the people—

the judicial branch backs off and acts as a neutral arbiter and various standards are imposed on the executive. And those standards 

sacrifice efficiency in order to be perfect. We don’t want to make 

a mistake. We would rather let guilty people go and pay that price 

because we want to get it absolutely right. 

That is not what is going on here. What is going on here is our 

body politic, the people, are under attack from foreigners, a different people. They are trying to impose their will on us and kill 

us. In that situation, the very notion of the judiciary backing off 

and playing some role as a neutral arbiter between the people of 

the United States and a foreign adversary is ludicrous and perverse. 

The idea that we can fight a war with the same degree of perfection we try to impose on our law enforcement system, which is to 

say we will not tolerate any collateral damage in law enforcement 

and we have to be absolutely mistake-free—to try to use those 

rules and impose them on a war-fighting machine, to say it has to 

be absolutely perfect and we can’t hold anyone in detention and 

they have all kinds of due process—the idea that a foreign person 

that our troops believe is a combatant is going to be held, you 

know, and we are going to turn the earth upside down and turn 

our army into detectives to figure out whether it is true or not is 

ridiculous. We will lose wars. We will lose our freedom. 

Chairman SPECTER. Commander Swift, do you have a final comment? I note you straining to be recognized, so you are. 

Commander SWIFT. Well, thank you, sir. Just a couple of points 

in response to what I have heard here today. I would point that 

where Mr. Hamdan is held is equivalent to the maximum-security 

prisons of the United States. The difference is it is called administrative by criminal sanction. 

I agree that we need every tool available as a military officer to 

fight and win wars, and that they are not the same thing. I would 

point out, though, that when we go to hold accountability, when 

you hold a trial, sir, it says as much about the man who is being 

accused—it says as much about the society that holds the trial as 

it does about the individual before it. Our trials in the United 

States reflect who we are. They are the models of the world. 

We heard statistics from Senator Sessions, and I couldn’t agree 

more. What they demonstrated was that the Uniform Code of Military Justice works. It was able to try people who had been inside 

those prisons. All of those trials are done. It worked great. Why 

don’t we use it and start holding the people who attacked us accountable? 

Thank you for your time, sirs. 

Chairman SPECTER. Thank you very much. Senator Leahy has 

one more comment and then we are going to conclude. 

Senator LEAHY. Mr. Chairman, I would note, with all due respect, about the administration coming forth on Abu Ghraib and 

Afghanistan, a lot of people had asked questions about what was 

64

going on there long before anything was said by the administration, and it was said only after it became public. 

Senator SESSIONS. No. 

Senator LEAHY. We, will go back— 

Senator SESSIONS. The General in his press briefing announced 

that they were conducting an investigation of abuses at Abu 

Ghraib before anybody raised it. 

Chairman SPECTER. We will continue this debate at tomorrow’s 

executive session. It starts at 9:30. 

[Laughter.] 

Chairman SPECTER. Do you have a final statement, Senator 

Leahy? 

Senator LEAHY. Well, Attorney General Barr, whom I have a 

great deal of respect for, made a strong statement about how people were held in maximum-security, allowed only a few minutes out 

and everything else. I would just remind him of something that he 

is well aware of. Those are people who have been convicted and 

then sentenced. They weren’t just being held under charges. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Well, thank you, Senator Leahy, and I thank 

the panel and the first panel. We have a great deal of work to do 

beyond what we have done here today, and we are going to be following up on some of the specifics for ideas as to how to implement 

the kinds of approaches which have been articulated here today. 

I want to thank the staff, Evan Kelly especially, for wading 

through an extraordinarily difficult series of judicial opinions. It is 

worthwhile to go back to some of the basics. This has been as lively 

a Judiciary Committee hearing as we have had in a long time, absent a Supreme Court nomination, and we have a lot more work 

to do to follow up. 

So thank you all. 

[Whereupon, at 1:34 p.m., the Committee was adjourned.] 

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

[Additional material is being retained in the Committee files.]

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Æ


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