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37–324 2008

[H.A.S.C. No. 110–51]

MILITARY COMMISSIONS ACT AND THE

CONTINUED USE OF GUANTANAMO BAY

AS A DETENTION FACILITY

COMMITTEE ON ARMED SERVICES

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

HEARING HELD

MARCH 29, 2007

(II)

HOUSE COMMITTEE ON ARMED SERVICES

ONE HUNDRED TENTH CONGRESS

IKE SKELTON, Missouri

JOHN SPRATT, South Carolina

SOLOMON P. ORTIZ, Texas

GENE TAYLOR, Mississippi

NEIL ABERCROMBIE, Hawaii

MARTY MEEHAN, Massachusetts

SILVESTRE REYES, Texas

VIC SNYDER, Arkansas

ADAM SMITH, Washington

LORETTA SANCHEZ, California

MIKE MCINTYRE, North Carolina

ELLEN O. TAUSCHER, California

ROBERT A. BRADY, Pennsylvania

ROBERT ANDREWS, New Jersey

SUSAN A. DAVIS, California

RICK LARSEN, Washington

JIM COOPER, Tennessee

JIM MARSHALL, Georgia

MADELEINE Z. BORDALLO, Guam

MARK UDALL, Colorado

DAN BOREN, Oklahoma

BRAD ELLSWORTH, Indiana

NANCY BOYDA, Kansas

PATRICK J. MURPHY, Pennsylvania

HANK JOHNSON, Georgia

CAROL SHEA-PORTER, New Hampshire

JOE COURTNEY, Connecticut

DAVID LOEBSACK, Iowa

KIRSTEN GILLIBRAND, New York

JOE SESTAK, Pennsylvania

GABRIELLE GIFFORDS, Arizona

ELIJAH E. CUMMINGS, Maryland

KENDRICK B. MEEK, Florida

KATHY CASTOR, Florida

DUNCAN HUNTER, California

JIM SAXTON, New Jersey

JOHN M. MCHUGH, New York

TERRY EVERETT, Alabama

ROSCOE G. BARTLETT, Maryland

HOWARD P. ‘‘BUCK’’ MCKEON, California

MAC THORNBERRY, Texas

WALTER B. JONES, North Carolina

ROBIN HAYES, North Carolina

KEN CALVERT, California

JO ANN DAVIS, Virginia

W. TODD AKIN, Missouri

J. RANDY FORBES, Virginia

JEFF MILLER, Florida

JOE WILSON, South Carolina

FRANK A. LOBIONDO, New Jersey

TOM COLE, Oklahoma

ROB BISHOP, Utah

MICHAEL TURNER, Ohio

JOHN KLINE, Minnesota

CANDICE S. MILLER, Michigan

PHIL GINGREY, Georgia

MIKE ROGERS, Alabama

TRENT FRANKS, Arizona

THELMA DRAKE, Virginia

CATHY MCMORRIS RODGERS, Washington

K. MICHAEL CONAWAY, Texas

GEOFF DAVIS, Kentucky

ERIN C. CONATON, Staff Director

PAUL OOSTBURG SANZ, Professional Staff Member

ROGER ZAKHEIM, Professional Staff Member

MARGEE MECKSTROTH, Staff Assistant

(III)

C O N T E N T S

CHRONOLOGICAL LIST OF HEARINGS

2007

Page

HEARING:

Thursday, March 29, 2007, Military Commissions Act and the Continued

Use of Guantanamo Bay as a Detention Facility .............................................. 1

APPENDIX:

Thursday, March 29, 2007 ...................................................................................... 47

THURSDAY, MARCH 29, 2007

MILITARY COMMISSIONS ACT AND THE CONTINUED USE OF

GUANTANAMO BAY AS A DETENTION FACILITY

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

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

Committee on Armed Services ............................................................................ 3

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

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

WITNESSES

Massimino, Elisa, Director of the Washington, D.C., Office of Human Rights

First ....................................................................................................................... 14

Katyal, Neal, Professor of Law, Georgetown University Law School, Georgetown University .................................................................................................... 12

Philbin, Patrick F., Former Associate Deputy Attorney General, U.S. Department of Justice ..................................................................................................... 10

Taft, William H., IV, of Counsel, Fried, Frank, Harris, Shriver & Jacobson,

LLP, Former Legal Advisor, Department of State, Former Deputy Secretary

of Defense ............................................................................................................. 8

APPENDIX

PREPARED STATEMENTS:

Hunter, Hon. Duncan ....................................................................................... 51

Katyal, Neal ...................................................................................................... 97

Massimino, Elisa .............................................................................................. 111

Philbin, Patick F. .............................................................................................. 68

Taft, William H., IV ......................................................................................... 60

DOCUMENTS SUBMITTED FOR THE RECORD:

Combatant Status Review Tribunal (CSRT) Process at Guantanamo ......... 129

Letter dated March 8, 2007, from civil rights and religious organizations . 136

QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD:

[There were no Questions submitted.]

(1)

MILITARY COMMISSIONS ACT AND THE CONTINUED

USE OF GUANTANAMO BAY AS A DETENTION FACILITY

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Thursday, March 29, 2007.

The committee met, pursuant to call, at 10:06 a.m., in room

2118, Rayburn House Office Building, Hon. Ike Skelton (chairman

of the committee) presiding.

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

SERVICES

The CHAIRMAN. The committee will come to order.

Let me take this opportunity to welcome our witnesses today.

Our old friend, Will Taft IV, it is certainly good to have him once

again before our committee—former deputy secretary of defense,

former legal advisor to the Department of State and a very distinguished career, now a practicing attorney.

Patrick Philbin, former associate deputy attorney general.

Neal Katyal—did I pronounce it correctly? Got it. Professor of

Law, Georgetown Law School at Georgetown University.

Elisa Massimino—do I pronounce it correctly? Good. Director of

the Washington, D.C., office of Human Rights First.

And thank you each for being with us today. This is a very important subject, and we look forward to your expertise.

Now, although the Military Commissions Act and Guantanamo

are nominally the subjects of today’s hearing, our discussion is

about much more. The hearing tackles fundamental questions

about who we are as a nation and how we treat those who are

charged with threatening our security.

Today’s hearing was meant to be the second in a series. Regrettably, yesterday’s hearing with the principal deputy general counsel of the Department of Defense and the chief defense counsel of

the Military Commissions was postponed because of the ongoing

legal proceedings at Guantanamo.

We are considering these issues with a great deal of seriousness

and with a range of perspectives, because the questions before us

are, frankly, complex and very important. They do not lend themselves to simple answers. An example of this is the Military Commissions Act.

Last year, when Congress passed the law, I argued that the most

important task before Congress was to design a system that could

withstand legal scrutiny and would be found to be constitutional

for that reason.

2

I proposed that we expedite the ability of the courts to review the

constitutionality of various provisions of the bill, which I find to be

legally suspect. There are at least seven potential constitutional

challenges.

First, it seems clear to me and many others that the act may be

unconstitutionally stripping the Federal courts of jurisdiction over

habeas cases.

Relatedly, the act may violate the Exceptions Clause under Article III of the Constitution by restricting the Supreme Court’s review.

Third, it is questionable whether the Supreme Court would uphold a system that purports to make the President the final arbiter

of the Geneva Conventions.

Fourth, provisions regarding coerced testimony may be challenged under our Constitution.

Fifth, the act contains very lenient hearsay rules, which rub up

against the right of the accused to confront witnesses.

And sixth, the act may be challenged on equal protection and

other constitutional grounds on how it discriminates against the

detainees for being aliens.

And last, Article I of the Constitution prohibits ex post facto laws,

and that is what this act may have created.

Providing for the expedited review of the Supreme Court of these

seven issues was, and continues to be, important. If the justices

find that the Military Commissions Act includes constitutional infirmities and the government has already secured convictions, it is

likely that known terrorists could receive a ‘‘get out of jail free’’

card or have death penalties reversed.

Permitting hardened terrorists to escape jail time because we did

not do our full job in Congress to fix the Military Commissions Act

would be a travesty of justice.

The bottom line is that we must prosecute those who are terrorists with the full force of the law, but we must also make sure that

the convictions stick. Certainty of convictions must go hand-inhand with tough prosecutions.

And I well know of which I speak, having been a prosecuting attorney a good number of years ago, that the certainty of convictions

and that they stand up on appeal is so very important.

This brings me to the future of Guantanamo—an issue on which,

if we act with haste, we will do so at our peril. I have no doubt

that Guantanamo has become a lightning rod for criticism of American detainee policy and has undermined both our moral authority

and our ability to rally necessary support for policies abroad.

Secretary Gates, Secretary Rice, Senator McCain and former Secretary Powell, among many others, reportedly all have pointed to

the hole that Guantanamo continues to burn in the international

reputation of our country. The morale of our troops overseas and

their level of security rely upon how they are perceived in other

countries.

There are some in Guantanamo who might well be released or

remanded to a home or a third country. Yet there is a core group

of hardened terrorists who must be detained, tried, and confined

for a long time.

3

Determining where we will lock up these hard-core detainees

over the long run, so as to ensure they cannot return to the battlefield, is the question before us.

Some have proposed maintaining Guantanamo’s military

supermax prison for these extremely dangerous individuals. Others

recommend Federal correctional facilities like the Administrative

Maximum facility (ADX) at Florence in Colorado.

This is a hard call, and I look to the witnesses to help inform

this committee to grapple with these very difficult issues.

Now I turn to my good friend, our distinguished Ranking Member and former Chairman, Duncan Hunter.

Mr. Hunter.

STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE

FROM CALIFORNIA, RANKING MEMBER, COMMITTEE ON

ARMED SERVICES

Mr. HUNTER. Mr. Chairman, thank you for holding this hearing,

and I look forward to discussing this issue with our witnesses.

Mr. Chairman, I think that we got it right when we put this bill

together that established what I call the ‘‘terrorist tribunals.’’ We

went through a great deal of analysis. We interacted with military

lawyers, with constitutional scholars, and we put together a bill

that enables us to effectively prosecute people in this new war, in

this long war.

And I just wanted to say, to put my marker out there, stating

that we got it right when we put this thing together. It has now

been upheld in several—this military tribunal system has been

upheld now in two court decisions, one in the district court and one

in the court of appeals, especially with respect to the constitutionality of the law and with respect to the habeas corpus—to the

denial of habeas corpus to these terrorists.

There is a second issue here, which is closing down Guantanamo

Bay.

And, Mr. Chairman, I think we are going in exactly the wrong

direction. It is right to keep Guantanamo open.

There is not a single member of this committee who has not had

10 times the people killed or murdered in their own prisons, in

their own states, as have been murdered in Guantanamo. And the

reason for that is, no one has been murdered in Guantanamo.

They have unfortunately had a couple of suicides, but there have

been no murders in Guantanamo.

Guantanamo has been open to hundreds and hundreds of visits

by international visitors, by congressmen and congresswomen from

the U.S. House and from the U.S. Senate. And the idea that we are

going to close down Guantanamo—because the image, the myth, is

that Guantanamo is a bad place—does nothing but confirm the fiction of the bad image. And you have spoken about the image and

referred to that several times in your opening statement.

When it is not the truth, do not confirm it, and do not concede

it as being the truth, because if we close down Guantanamo and

we move these hardened terrorists to these locations that have

been offered, which involves dozens of American military communities and dozens of American towns and counties across this country, we do several various dangerous things.

4

Number one, you arguably give more rights to these terrorists

once they are on American soil. And number two, I think there is

a real damage and a real danger in bringing in people that know

how to make car bombs, who are experts with explosives, and putting them in any proximity with American prisoners and American

criminals, who might pick up that capability.

The idea that we are going to take these hardened terrorists,

who are very effective in killing people, and move them to communities throughout the United States, I think, is very ill-founded.

So, Mr. Chairman, you know, we put this Military Commissions

Act together to ensure that the U.S. was able to detain, interrogate

and try terrorists and to do it in a manner that was consistent with

the Constitution and the international laws of war.

And, you know, we have had this—it appears to me that the

Democrat leadership does not want to take ‘‘yes’’ for an answer. We

did not get a bad decision from the Court of Appeals or from the

initial D.C. court that ruled on the constitutionality. That was a

D.C. circuit court. We did not get a bad decision from them.

The District of Columbia ruled that this act is indeed constitutional with respect to the habeas corpus issue. And that was a

major issue that was brought up by a number of Democrat leaders

on the House floor.

Not long after that, the D.C. Circuit Court of Appeals held that

the act conforms with the Constitution and that the detainees in

Guantanamo do not have a constitutional right to habeas corpus.

And I might add that this right to habeas corpus that many

would give to these terrorists, including people like Khalid Sheikh

Mohammed, who admitted a few days ago to being the mastermind, the main planner, on the attacks on New York on 9/11 and

the attacks on the Pentagon and the tragedy in Pennsylvania on

9/11. He admitted to doing that, taking part in killing thousands

of Americans.

And the idea that we are stretching to give him more constitutional rights, more rights than American service men and women

who wear the uniform of the United States, I think, is going in exactly the wrong direction.

I think these two decisions that we have seen now, with respect

to the D.C. Circuit Court and the U.S. District Court for the District of Columbia, have been very encouraging. They validated

what we did. They did not say you did it wrong.

And I know lots of people predicted on the House floor, that

when we got to the U.S. District Court for the District of Columbia,

we would get a bad decision. Well, we did not get a bad decision.

We got a decision that said, ‘‘Yes, indeed, what you have done is

constitutional, and especially with respect to the habeas corpus

issue.’’ And then when it went up to the D.C. Circuit Court of Appeals, they did not say Congress messed up. They said, you did it

right. And they found that the detainees in Guantanamo do not

have a constitutional right to habeas corpus.

And I would note that the procedures that are provided in the

Combatant Status Review Tribunal (CSRT) track, they track very,

very closely with Army Regulation 190–8 for enemy prisoners of

war. And in some ways, they exceed those found in A.R. 190–8.

And I would like to submit that for the record, Mr. Chairman.

5

The CHAIRMAN. Without objection.

[The information referred to can be found in the Appendix on

page 129.]

Mr. HUNTER. So, I caution against this committee and this Congress taking any action amending the MCA, because it will have

the effect of delaying or invalidating the commissions that are currently underway.

And let me just end with one simple point.

Our terrorist detainee policy was constructed to address a new

type of enemy and a new type of war. We have used the international laws of war and the Uniform Code of Military Justice

(UCMJ) as guideposts in crafting this new policy, because fundamentally, it is a war policy.

And moving the detainees from Guantanamo or amending the

MCA will have the net effect of holding up the execution of our

global war on terror detainee policy.

Now, some folks would like this result. They would prefer to see

terrorists tried under the criminal justice system.

And I want to remind you, Mr. Chairman, we brought in a Judge

Advocate General (JAG) officer who had tried hundreds of cases.

And we asked him if we took the Uniform Code of Military Justice

and applied it.

The colonel sat there where Mr. Taft is sitting today, and he

said, if we applied that—and I said, ‘‘When would Miranda rights

attach?’’ That is the time when you have a right to have a lawyer

before you say anything else.

And he said—and I gave him the scenario. I said, ‘‘If you had an

American soldier in Afghanistan, and he saw somebody shoot at

him with an AK–47 and he captured that person and threw him

over the hood of a Humvee to search him, when would the rights

to Miranda attach, if you went under the UCMJ?’’

The JAG officer who testified to us said, they would attach at

that point. That means you would have to have lawyers on the battlefield—according to him—to give Miranda rights. In his professional opinion, at that point you would have to give them Miranda

rights. So, I am just reminded of his testimony.

And I know, Mr. Chairman, some people say, well, we think that

JAG officer was wrong. And I think that shows precisely the problem with trying to attach the UCMJ or use the UCMJ, to go back

and use that as the blueprint for this new law.

Now, you know, we tried the terrorists who were responsible for

the first World Trade Center bombing. We all know that. We found

that the discovery rules of the criminal justice system actually gave

the defense access to information under those trials that found

their way to the al Qaeda camps in Afghanistan.

Military commissions are crucial, because they are crafted for the

conduct of war by providing procedures flexible enough to account

for the constraints and conditions of the battlefield. And remember,

we have American troops on that battlefield.

So, if we go back to what we had before the first World Trade

Center bombing, where under the rules of discovery we found out—

and this was undeniable, uncontested—that information that

should not have gotten out, under the rules of discovery it got to

6

defense lawyers. It ended up going back and being taken under the

possession of the al Qaeda on the battlefield.

Remember this, Mr. Chairman, we have troops still in those theaters, still fighting. And their safety depends on that information

being closely held.

So, the idea that we are going to afford new discovery procedures

to terrorists, so that we can feel that somehow we have given them

modicum or some shade of constitutional rights, that will accrue to

the detriment of the young men and women whose lives on the battlefield today depend largely on security on that kind of information.

So, let me just close with a statement that President Lincoln

made when our country faced another daunting challenge. He said

this. He said, ‘‘The dogmas of the quiet past are inadequate to the

stormy present.’’ I think that is very applicable to today. ‘‘As our

case is new, so we must think anew and act anew. We must

disenthrall ourselves, and then we shall save our country.’’ That

was Lincoln’s second annual message to Congress, December 1,

1862.

Mr. Chairman, let us just remember this. We were attacked on

9/11. We discovered we are in a new type of war. It is a war which

often does not know boundary lines between nations. It is a war

in which most of our enemies do not wear uniforms. And we had

to come up with a new system of prosecution to handle the people

that were captured in this new war.

Those people did not wear uniforms. And we found that the

UCMJ could not apply to them totally. We also found, as we found

with the prosecution of the World Trade Center bombers on the

first attack, that you could not give them all the rights that American citizens had.

So we gave them an array of rights. And we went through Nuremberg. And we went through Rwanda. And we went through

these other tribunals, and we took a large array of defendants’

rights, and we gave them to these people who murdered thousands

of Americans—people like Osama bin Laden’s bodyguards, who

were held at Guantanamo; people like Khalid Sheikh Mohammed,

who admitted to participating in the killing of thousands of Americans and said, essentially, ‘‘I will do it again, if I get the opportunity.’’

And the idea that for some wrong-headed notion, some idea that

we have to liberalize every single thing that we do in this country,

we are going to take a body of law—which now is withstanding

court scrutiny and which the courts, these two courts that have

ruled on it and said, ‘‘Yes, it is constitutional, and, no, they do not

have habeas corpus rights,’’ which no American soldiers have—

somehow, we feel that we have to do two things.

First, we have to close down Guantanamo, which gives a higher

level of health care than most health maintenance organizations

(HMOs) in America, which serves a better menu than most American families have on a weekly basis, which interrupts proceedings

five times a day to broadcast over public broadcast system the

prayer for the prisoners, which allows them to have exercise, which

allows them to have games, which allows them to have entertainment, and which, to date, has seen not one single murder of a prisVerDate 22-MAR-2001 08:52 Dec 02, 2008 Jkt 037324 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\DOCS\110-51\088000.000 HAS2 PsN: HAS2
7

oner—and there is not one member of this body, in this committee

or in the House of Representatives who can claim that even about

their county jails, much less their state prisons, where hundreds of

people are murdered on an annual basis.

The idea that we are going to close down Guantanamo, because

you have had some complaints about square footage and because

you have had all that old footage of the old camp that had concertina wire on top of the walls—the idea that we are going to close

that down and confirm the myth that Americans mistreat prisoners

is one of the worst things we could do.

I think it is also a disservice to the men and women that wear

the uniform of the United States. These people risk their lives capturing these people. We now have been treating them very fairly.

We have put in place a good system of justice—emphasis on justice—cross-examination, right to a lawyer, right not to testify on

the stand. All the things that—we gave them everything that they

had in the tribunals at Nuremberg and Rwanda and more.

And we find that somehow we second-guess ourselves and say

that we have done the wrong thing, and reverse this system—

which at least the first two court decisions have validated—is, I

think, wrong-headed.

So, Mr. Chairman, do not put me down as undecided on this. I

strongly oppose closing Guantanamo. And I strongly oppose opening up this criminal justice system that we labored long and hard.

And your staff worked on this and my staff worked on it. We used

lots of outside experts. We collaborated with the Senate on this

thing.

I think we put together a sound body of law. And I think we owe

it to the men and women who risked their lives to capture these

people, to go forward with their prosecution. And the way we do

that is by not undoing the system at this point.

Thank you, Mr. Chairman.

The CHAIRMAN. I thank the gentleman.

Mr. HUNTER. And I would like to put my full statement in the

record, Mr. Chairman.

The CHAIRMAN. Without objection.

[The prepared statement of Mr. Hunter can be found in the Appendix on page 51.]

The CHAIRMAN. I wish to point out to the committee—and you

should know this, if you do not already—before we call on our witnesses that on February the 20th, this year, in a three-to-two panel

decision—not en banc, but a panel decision—the Federal Court of

Appeals for the District of Columbia decided a case known as

Boumediene v. Bush. In that case, it was a consolidation of several habeas corpus

cases, which had been filed by foreign nationals who had been captured abroad and were being held at Guantanamo.

The appellate court, the panel held that the law that was passed

deprived the Federal courts of jurisdiction over habeas corpus, and

that Guantanamo detainees had no constitutional right to habeas

corpus.

However, the court of appeals did not reach the merits of the detainees’ designation as enemy combatants. And by their combatant

status review tribunals.

8

This has been appealed to the United States Supreme Court.

Being a country lawyer, I question why it did not go en banc. However, as I understand it, both sides of the case wanted to go

straight to the Supreme Court, and it was not necessary to go to

the court of appeals en banc, and is now on its way to the Supreme

Court.

And, of course, it would be interesting to see that particular decision when it is handed down.

Really appreciate our witnesses coming, a rare group of firstclass talent, and we appreciate your doing so.

We call on our friend, Will Taft, first. Secretary Taft.

STATEMENT OF WILLIAM H. TAFT, IV, OF COUNSEL, FRIED,

FRANK, HARRIS, SHRIVER & JACOBSON, LLP, FORMER

LEGAL ADVISOR, DEPARTMENT OF STATE, FORMER DEPUTY

SECRETARY OF DEFENSE

Mr. TAFT. Thank you, Mr. Chairman. I am pleased to appear in

response to your invitation to discuss the future of the detention

facility at Guantanamo Bay and the Military Commissions Act.

As you know, I have testified before the committee many times,

but I do not think I have been here since 1988, when I left the Pentagon, almost 20 years ago.

It is good to be back, and I see some faces—I miss some faces

that were here then, but I am glad to see at least a few familiar

ones, and, of course, many new ones, or if not faces, at least name

plates that are new.

Regarding the future of the detention facility at Guantanamo

Bay, I understand that most people would like to close it and transfer the persons we have captured in our conflict with al Qaeda and

the Taliban regime—who are there—to other facilities.

I share this view.

The facility has acquired a notorious reputation around the world

in its continued use as a focal point for criticism of our foreign policy and a drag on our ability to get important things done.

Its notoriety arises, I believe, from two causes.

First, detainees have been abused at the facility, and interrogation methods used there have not complied with our international

obligations.

And second, there is an impression that the facility was established in Guantanamo in order to deprive the persons captured of

access to our courts and other rights that they would have, if they

were being held at a facility in the United States.

Regarding this last point, in my view, persons captured in the

conflict with al Qaeda and the Taliban should not be treated differently, because they are in custody at Guantanamo, from the way

they would be treated if they were in custody in the United States.

The decision, then, about whether the facility is to be closed

should not be based on how this may affect the legal rights of the

detainees. It should not affect them.

Political and logistical factors should determine our course.

Logistically, I imagine, Guantanamo still has a number of advantages over other options.

It seems doubtful, however, that these outweigh the political

costs of continuing its operation. At some point, a brand becomes

9

so toxic that no amount of Madison Avenue talent can rehabilitate

its image.

What the Reverend Jim Jones did for Kool-Aid and the British

penal system did for Van Diemen’s Land, abuse of the detainees—

whether there or at Abu Ghraib or elsewhere—seems to have done

for Guantanamo.

My recommendation would be to cut our losses.

Regarding the Military Commissions Act, I have just three

points.

First, it was a mistake for Congress to preclude judicial review

of the lawfulness of detaining the persons we have captured in the

conflict with al Qaeda and the Taliban. As I understand it, convicted detainees may obtain such review after their criminal cases

are concluded, but persons who are not charged with crimes do not

have access to the courts to challenge their detention.

The benefits of this approach escape me.

The Supreme Court has on two occasions affirmed the lawfulness

of detaining persons captured in the conflict with al Qaeda and the

Taliban, as long as they pose a threat to the United States. This

is black letter law of war.

Prior to the enactment of the Military Commissions Act, consistent with this principle, no court had ordered the release of any of

the detainees, nor will they do so, as long as it is shown that the

detainee poses a threat.

Currently, this determination is made by the military. Having it

endorsed by a court would greatly enhance its credibility and be

consistent with our legal tradition. And I have no doubt it would

be endorsed by a court—any court.

My two other points relating to the Military Commissions Act

concern the rules of evidence in the trials.

I do not think either hearsay evidence or coerced testimony

should be used in these trials. The Sixth Amendment establishes

a defendant’s right to confront witnesses in criminal trials.

Use of hearsay evidence is inconsistent with this right. The hearsay witness is not under oath, on the record or available for crossexamination, so his testimony is presumed automatically to be unreliable.

Coerced testimony is likewise inherently unreliable. Courts normally exclude such testimony, not only because it is unreliable, but

also in order to discourage the use of coercion by the authorities.

Both rationales are relevant here.

If I thought for a moment that Khalid Sheikh Mohammed or

other detainees like him might be released as a result of such

changes, I would not recommend them. What Khalid Sheikh Mohammed says he has done to Daniel Pearl and in planning the 9/

11 attacks enrages all Americans and all normal people around the

world.

But because he is being held consistent with the law of war, he

will not be released. And it is very important when we are enraged,

when our blood boils, that we most need to adhere to the rule of

law and not change it.

And it is in that spirit that I would recommend these changes

to the rules of evidence in the act.

10

Thank you, Mr. Chairman. I am glad to have this opportunity to

appear before your committee. I ask that my full statement be included in the record, and I look forward to answering your questions.

[The prepared statement of Mr. Taft can be found in the Appendix on page 60.]

The CHAIRMAN. Without objection, Mr. Taft’s statement will be

put in the record, and we thank you for your testimony.

Mr. Philbin, please.

STATEMENT OF PATRICK F. PHILBIN, FORMER ASSOCIATE

DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

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

Hunter and members of the committee, I appreciate the opportunity to address the matters before the committee today.

Both the Military Commissions Act of 2006, or the MCA, and the

continued use of the U.S. Naval Base at Guantanamo Bay, Cuba,

as a detention facility are exceedingly important issues for the Nation’s conduct of the continuing armed conflict with al Qaeda and

associated terrorist forces.

In this brief opening statement, I would like to emphasize two

points.

First, in the MCA, Congress has already crafted a set of procedures for military commissions that is both unprecedented in its

detail and fully adequate to satisfy all legal requirements, including those specified by the Supreme Court in Hamdan v. Rumsfeld. Military commissions are finally poised to proceed more than five

years after the President originally issued the order providing for

their creation. At this point, changes to the MCA should be made

only if they are required either by a compelling legal need to remedy some constitutional infirmity or by an imperative operational

need of the military.

In my view, the changes some have proposed are not justified by

either necessity. Instead, they would only add confusion to a workable system and further delay the day when military commissions

become fully operational.

In particular, there is no constitutional need to provide habeas

corpus jurisdiction for petitions from detainees at Guantanamo.

Aliens held at Guantanamo Bay have no constitutional right to habeas corpus.

And in any event, the MCA provides an adequate substitute for

habeas by providing a review in the United States Court of Appeals

for the D.C. Circuit for the decisions of both combatant status review tribunals and military commissions.

That means that both the determination to detain an individual

as an enemy combatant and the final decision of any military commission on a war crime charge are subject to review in a civilian

Article 3 court.

And I think I disagree with Mr. Taft on this point. My understanding under the law is that, through the CSRT process there is

review in the D.C. Circuit Court of Appeals, so that determination

to detain is reviewed in an Article 3 court.

Reestablishing habeas jurisdiction at this point would only add

a confusing, parallel avenue of judicial review that would sacrifice

11

the benefits of the orderly procedure Congress has established in

the MCA. Moreover, it would do so without providing any additional substantive rights for the detainees.

Habeas provides an avenue for access to the courts, but it does

not supply the substantive law for the court to apply. So, reestablishing habeas jurisdiction would just entail a new round of wasteful litigation to determine exactly how the habeas proceedings

should fit in with the other review proceedings, and it would not

actually provide additional substantive rights to the detainees.

Second, the continued use of Guantanamo Bay undeniably presents a very difficult question for the United States.

There can be no doubt that Guantanamo has become a lightning

rod for criticism in the international community, and maintaining

good relations with our allies and securing their continuing support, as well as securing the goodwill of other nations more broadly, is an important aspect of winning the conflict with al Qaeda.

When I examine the alternatives, however, I come to the conclusion that Guantanamo remains the only practical facility for its

mission, based on three considerations.

First, I believe the government has a duty to the American people to continue to detain those enemy combatants who would pose

a threat to the United States if released.

Second, the only alternative to holding enemy combatants at

Guantanamo would be bringing them onto U.S. soil. As a practical

matter, that would raise a serious security concern for whatever facility was constructed to house the detainees, and for the vicinity—

the American community around that facility.

As a legal matter, it would spark a completely new round of litigation, because once the detainees are on U.S. soil, they likely will

be held to have constitutional rights. The unprecedented procedures that are provided for the detainees now, I think, may well

satisfy those rights, but it would take years of additional litigation

to determine that.

Third, and finally, I am concerned that simply moving the detainees to the United States will not achieve one of the primary

stated objectives of closing Guantanamo; namely, silencing the

course of international criticism and repairing strained relations

with foreign partners.

International criticism does not depend primarily on the place

where enemy combatants are detained. Instead, at bottom, it rejects the fundamental legal paradigm under which the United

States asserts the right to detain individuals as enemy combatants

and, hence, without charge, in an armed conflict with al Qaeda.

Unless the United States is prepared to abandon the entire law

of war framework governing the conflict with al Qaeda—which I

strongly believe it should not do—I fear that simply moving the detainees to the U.S. is likely to accomplish little in appeasing critics

in the international community.

Thank you, Mr. Chairman, for the opportunity to address the

committee. I would like to have my full written statement submitted for the record, and I would be happy to address any questions

the committee may have.

[The prepared statement of Mr. Philbin can be found in the Appendix on page 68.]

12

The CHAIRMAN. Thank you. Your statement will be put in the

record in total, as well as all four witnesses’.

Mr. Katyal. Do I say it right?

Mr. KATYAL. That is perfect.

The CHAIRMAN. Got it.

STATEMENT OF NEAL KATYAL, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW SCHOOL, GEORGETOWN UNIVERSITY

Mr. KATYAL. Thank you, Chairman Skelton and Ranking Member Hunter, for inviting me.

I want to begin by thanking the chairman’s staff, particularly

Ms. Conaton, Ms. Unmacht and Mr. Oostburg. They are models of

public servants, e-mailing both sides during the 2005 Detainee

Treatment Act (DTA) debates and 2006 MCA debates, frankly, at

all hours of the night, just trying to learn about these issues.

On November 28, 2001, I testified in the Senate about the President’s then-two-week-old military commission plan. I warned that

Congress, not the President, must set them up, or the result would

be no convictions and a court decision striking those tribunals

down.

One thousand nine hundred and forty-seven days have elapsed

since that time. Not a single trial has taken place during that time.

No one was even indicted for over two years. And last year, the Supreme Court invalidated that scheme.

I did not come here to gloat. The decision to file the Hamdan

lawsuit was the hardest one I have ever faced.

I previously served as national security advisor at the Justice

Department, and my academic work extols the idea of the unitary

executive, strong President theory. My work in criminal law centers on the need for tough laws to benefit prosecutors.

Yet today, forward-looking members in Congress have foreseen

the results of the MCA: a new court decision that strikes this tribunal system down and more legislation driven by reaction, not deliberation.

The committee has asked us here today to help avoid this new

round of the same game. Responsibility, not reaction, is required.

I want to make two points.

First, the reported views of Secretaries Gates and Rice that the

commission trials be moved to the United States are a crucial first

step, perhaps more important than repealing the MCA’s habeas

text.

Trials are gripping, dramatic, and easy to follow. They are unlike

detention, which involves little drama and no grand moment of resolution. The trials at Guantanamo will be watched by the world,

and we cannot forget that, in them, our Nation—and not simply

the detainees—face judgment.

Yet the Administration clings to the shortsighted theory that

Guantanamo is a legal black hole where none of the protections of

our great Constitution apply.

This view will corrupt the trials and undermine America’s

image—what Secretary Taft referred to as the ‘‘brand’’ of America.

And these views must be replaced with one that reflects America’s

traditions and values.

13

Second, Congress should repeal the MCA and use our proud tradition of courts-martial.

Here, I think, I just want to focus on one point, a basic point,

about equality.

When I first met Mr. Hamdan at Guantanamo in 2004, he asked

me a simple question. He said, ‘‘Why are you doing this? Why are

you defending me?’’ He said to me, ‘‘Your last client was Al Gore.

What are you doing here?’’ And I told him that my parents came here from India with $8

in their pockets, and they chose this land, because they knew they

could arrive on our shores and be treated fairly.

There is no nation on earth, I told him, that would treat me, the

son of immigrants, and give me the opportunities that I had. I told

him I was deeply patriotic for these reasons.

And when I read the President’s military trial order, for the first

time I felt that vision of America—my parents’ vision—was being

violated.

Remember our history. We are a land of immigrants. The Declaration of Independence lists as its first self-evident truth that all

men are created equal.

This premise is the heart of what Abraham Lincoln did in the

Civil War. It is the heart of the Equal Protection Clause, which

gives all persons constitutional rights, not simply all citizens.

When you think about the MCA, think about that. For the first

time, this body set up a trial system that applies only to the 5 billion people around the world outside the United States and the 12

million green card holders. A United States citizen gets the Cadillac version of justice, the foreigner gets the beat-up Chevy version, a stripped-down Guantanamo trial.

Yet, in all past military commissions in this Nation’s history, foreigners and United States citizens were brought before them equally.

As Justice Scalia has warned, the genius of the Equal Protection

Clause is that it prevents Congress from ducking hard choices by

limiting the rights of the powerless. It is not surprising the MCA

was introduced on September 6th and passes this body a short

three weeks later—in record time.

It passed not because the act was written by Plato. It passed because the only people the Act affected were the powerless, people

who have literally no vote in the process, the five billion people in

the world and the 12 million green card holders.

Ultimately, the MCA will be struck down for this and other reasons.

In summary, I ask you to realize the power that lies in your

hands, the power to ensure the safety of our troops and the dignity

of the values they defend.

I applaud Secretaries Gates and Rice and all others who recognize the only thing worse than making a mistake is failing to correct it when you have the chance.

Thank you.

[The prepared statement of Mr. Katyal can be found in the Appendix on page 97.]

The CHAIRMAN. Thank you. Thank you very much.

Ms. Massimino.

14

Ms. MASSIMINO. ‘‘Massimino.’’

The CHAIRMAN. Try it again. Did I say it right?

Ms. MASSIMINO. ‘‘Massimino.’’

The CHAIRMAN. Got it.

Ms. MASSIMINO. Thank you, Mr. Chairman.

The CHAIRMAN. Please.

STATEMENT OF ELISA MASSIMINO, DIRECTOR OF THE

WASHINGTON, D.C., OFFICE OF HUMAN RIGHTS FIRST

Ms. MASSIMINO. Thank you very much. And thank you for inviting me here today.

These are very difficult issues of great urgency and import for

our Nation. And as you noted, Mr. Chairman, in your opening

statement, while this hearing is framed as being about Guantanamo and the Military Commissions Act, it is part of a larger debate about U.S. counterterrorism policy.

I strongly agree with that view.

And I believe that many of the missteps that we have made in

interrogation policy, in military commissions trials have resulted

from a failure to view those issues as part of the broader

counterterrorism policy. And that is the main point, really, that I

want to bring home today.

The policy of detention, interrogation, and trial, and of terror

suspects at Guantanamo, in our view, has been a failure. And it

is up to you, to Congress, to fix it.

The decision to hold detainees at Guantanamo in the first place

was driven, at least in part, by a desire on the part of the Administration to insulate U.S. actions taken there—detention, interrogation and trials—from judicial scrutiny, and even from the realm of

law itself.

Early on, one Administration official, you might recall, called

Guantanamo the legal equivalent of outer space.

That goal, to create a law-free zone in which certain people are

considered beneath the law, was illegitimate and unworthy of this

Nation, and any policy bent on achieving it was bound to fail.

The policy at Guantanamo has failed in several important respects.

First, and most obviously, it has failed as a legal matter. The Supreme Court has rejected the Government’s detention, interrogation and trial policies at Guantanamo every time it has examined

them, and it likely will do so again.

Of course, I do not need to tell you about—and you have heard

about it already today—how many people, including Secretary

Gates, Secretary Rice, Secretary Powell, and many, many of the

United States’ closest allies have urged the closing of Guantanamo.

And of course, while it is important to take into consideration the

views of our closest allies, nobody argues that the U.S. ought to

change its policy because other countries do not like it.

The questions, the most important questions that you all ought

to be asking about the current policy now is, is it smart, is it working, does it serve our overall objective and does it comport with our

laws and values. And I would say that Guantanamo fails all of

those tests.

15

The military commissions have failed to hold terrorists accountable for their most serious crimes, as you have heard. And in addition, the view of Guantanamo as a legal black hole led it to become

the laboratory for a policy of calculated cruelty that later migrated

to Iraq and was revealed to the world in the photographs from Abu

Ghraib.

Whatever information was gained through those policies, few dispute now that they aided jihadist recruitment and they did immense damage to the honor of the United States and its reputation—undermining, as Secretary Gates recently argued, the war effort itself.

But perhaps most importantly, from a security perspective, the

policy at Guantanamo, which treats terrorists as combatants in a

war against the United States, but rejects application of the laws

of war, has had the doubly pernicious effects of degrading the laws

of war while conferring on suspected terrorists the elevated status

of combatants.

By taking the strategic metaphor of war literally, we have unwittingly ceded an operational and rhetorical advantage to al Qaeda,

allowing them to project themselves to the world—and to potential

recruits and a broader audience in the Middle East—as warriors

rather than criminals.

Nothing brought that home more than the transcript that we all

read from Khalid Sheikh Mohammed’s combatant status review tribunal a couple of weeks ago at Guantanamo.

After ticking off an itemized list of 30-plus crimes that he was

involved in and committed, including 9/11 an the hideous murder

of Daniel Pearl, he addressed—as if soldier-to-soldier—the Navy

captain that was presiding over that proceeding and said, essentially, war is hell and people get killed.

And we, by our policies of treating him as a combatant, has facilitated the ability of him to frame himself in that role and to reinforce the terrorist narrative, that they are in a global war with a

mighty power.

And that, I would say, is not only deeply offensive to our military, our men and women serving in uniform, but it is also operationally not smart.

I would recommend to you, if you have not looked at it, the

brand-new counterinsurgency manual that was drafted under the

supervision of General David Petraeus, which really underscores

the fundamental problems with that kind of approach to dealing

with an enemy like al Qaeda.

And I think, once we start to view Guantanamo and the military

commissions as part of that broader effort to defeat this terrorist

enemy, it will help reconceptualize our entire counterterrorism policy. And that is what I would urge this committee to begin to do.

I look forward to answering your questions.

[The prepared statement of Ms. Massimino can be found in the

Appendix on page 111.]

The CHAIRMAN. Thank you very much.

Let me ask some rather quick questions.

Mr. Katyal, being a law school professor, you are it for the first

question.

16

In 1942, President Roosevelt established by executive order a tribunal that tried eight German saboteurs, six of whom were given

the death penalty. The United States Supreme Court upheld the

tribunal. Two received life imprisonment.

I happen to know a little bit about this. One of the two that received life imprisonment was represented by a lawyer from my

home town named Colonel Carl Ristine, who did a first class representation of Mr. Dasch in that tribunal.

Can we, if you know, tell tribunal executive order and the initial

executive order by this President regarding the present tribunal?

If you know.

Mr. KATYAL. Thank you for the question. And Colonel Ristine did

a fantastic job. I have read the transcript very closely and studied

it.

Now, the difference between those 1942 trials and these ones are

quite marked, both in its procedures and in the way they have ultimately unfolded. Those were quick trials that happened right

away.

They applied the same rules to foreigners and United States citizens.

This trial system, under the Military Commissions Act, applies

a completely different set of rules to one group of people—the five

billion people and the 12 million green card holders—than it does

to United States citizens.

We have never done that before. We have had military commissions since 1847. They have always applied the same rules to foreigners and American citizens.

The MCA, for the first time, does something different.

When we passed the Equal Protection Clause in 1866, when this

body ratified it, one of its objectives was equalizing punishment between aliens and citizens. This Congress passed two laws that implemented the Fourteenth Amendment, that made it a Federal

crime to give aliens different punishments than to give Americans.

Yet, the MCA does precisely that. And for that reason, Chairman

Skelton, I think the MCA will ultimately fail the test that you laid

down last year during the MCA debates, which is, will this system

that this body sets up survive the Supreme Court review process

ultimately?

And I think the answer is ‘‘no.’’ This is a newfangled trial system

that enshrines a cardinal discrimination into the laws of this body.

And I think it cannot withstand Supreme Court review.

And whenever this case gets to the Supreme Court, whether it

is this year or, as the Administration hopes, in 5 or 10 years, it will

get struck down, and all these convictions will have to be overturned.

And then where will we be? We will be where we are right now,

five years later and counting, with not a single person convicted for

these 9/11 attacks in the military commission system.

The CHAIRMAN. Thank you, sir.

The question often put to me—and I will ask each of you your

judgment—should Guantanamo facility be shut down, what do you

do with the detainees?

Mr. Taft.

17

Mr. TAFT. Well, sir, I think that the detainees are on their way

to being treated and the numbers diminished, even as we speak.

I gather that some 400 or more have already been returned to

their countries. There are more going each month.

My guess is that the facilities that are available in the United

States could easily accommodate whatever number of detainees remain in Guantanamo.

There are many stockades and brigs available in the country,

and I think that they could be used.

It is obviously an important thing to be sure that these people

are in secure places. But I have not—I am not familiar with any

difficulties that the Army or the Navy have had in keeping people

locked up in the United States in their facilities.

The CHAIRMAN. Thank you.

Mr. Philbin.

Mr. PHILBIN. I think that is a difficult question, Mr. Chairman.

Where would they go?

From the time that I was in government, it was—you know, it

has been considered for many years. Is there an alternative to

Guantanamo? And if so, what is it? Where would they go?

And it is my understanding that the military has serious concerns with having enough high security places where they could

put over 300 people from Guantanamo. You create a security concern for that facility and for the community around that facility.

No place in the United States is as remote and as secure as

Guantanamo.

And in addition, you have the options. You have options of either

splitting them up amongst a whole bunch of facilities, in which

case you have got to increase the security at all of those facilities,

or building some new facility that is secure enough to house all of

them.

In addition to that, you have to take into consideration the intelligence mission that goes on at Guantanamo. Guantanamo continues today to receive new detainees.

Just this week someone was transferred who was captured in

Kenya, who is considered to have significant operational intelligence about al Qaeda’s East African network, was transferred to

Guantanamo. There is going to be an intelligence mission there.

And part of the advantage of Guantanamo is that all the detainees are in one spot. So, if, in interrogating one detainee, you get

some information that seems relevant to another or that might

play into something that someone else has said, interrogators on

the team working on that can go back around to the other detainee.

If you have them spread out among different facilities all over

the country, that becomes more difficult. Those are operational concerns that I think that the military would be better able to address.

But I think there are a lot of difficulties, a lot of serious problems

with where will you put them if they were not at Guantanamo.

Mr. Chairman, if I could, just to add something briefly to your

question to Professor Katyal.

In comparing the President’s initial, November 13, 2001, order to

President Roosevelt’s order—just specifically comparing those

two—President Bush’s order very closely parallels FDR’s order. It

was, in fact, modeled after it, and intentionally so.

18

And the initial military commission system then set up actually,

because the military supplemented the President’s order with Military Commission Order No. 1, and other procedures, provided a

great deal more procedures than were provided in the trials for

those in Ex parte Quirin.

So, the initial Presidential order was similar, but then there

were additional procedures added to it.

The CHAIRMAN. Thank you.

I am not sure who argued the case on behalf of the German convicted saboteurs, whether Colonel Ristine did or not, before the Supreme Court. But it is interesting to note that the Supreme Court

very quickly held that to be proper and constitutional.

Mr. Katyal.

Mr. KATYAL. Colonel Royall argued the case on behalf of the saboteurs, Chairman, and it was upheld, precisely because it applied

equally to foreigners and United States citizens.

This order—President Bush’s order—explicitly deviated from

FDR’s by only applying it to foreigners.

With respect to what we do with Guantanamo, I would do two

things. First, I would move the small number of anticipated trials

to the United States.

That is a small number of detainees. Right now it is only three.

There are Pentagon projections it might go as high as 80.

Trials are high-visibility events, unlike detention. So, the eyes of

the world are going to be watching these trials. And right now they

are taking place under a legal theory of the Administration that

the Constitution does not apply at all—no part of it—to Guantanamo.

That is one reason why you have so much outrage internationally

at what is going on at Guantanamo. Within these trials people may

be put to death.

And the idea that the United States is going to put them to

death with no constitutional protections at all—literally none—I

think, will undermine the image of the United States and undermine our Constitution.

Second, with respect to the larger group of detainees, I think Mr.

Philbin raises some very good security points. I still think that a

military base may be an appropriate place, but it should be the

subject of inquiry by this committee.

Whatever happens, though, I think a national security court is

something that this body should consider authorizing. This unites

people on both the political left and the right, people like Andrew

McCarthy of the National Review, people like myself, who are identified more on the Democratic side of the aisle.

And it is a way to try and think through detention issues in the

form of a specialized court that hears the cases and evaluates them

fairly.

The CHAIRMAN. Ms. Massimino.

Ms. MASSIMINO. Thank you.

Your question about what to do if we were to close Guantanamo

is a very important, practical, operational question, and I appreciate it. And there is no question that that is going to be difficult.

As with all of these questions, there is going to have to be a balancing, whether the liabilities of continuing to hold people at GuanVerDate 22-MAR-2001 08:52 Dec 02, 2008 Jkt 037324 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\DOCS\110-51\088000.000 HAS2 PsN: HAS2
19

tanamo outweigh the clear risks, as Mr. Philbin outlined, the security risks and others, of bringing them here.

But the Administration is now working, I think, as hard as it can

to convince other governments to take many of the detainees at

Guantanamo. As Secretary Taft said, they are trying very hard to

unload people.

I think—I believe that U.S. allies, particularly the Europeans,

who have called so loudly for the closing of Guantanamo, ought to

be doing more to help the U.S. The U.S. may have climbed into this

box by itself, but it is the responsibility of all of our allies to help

get out of that.

And I think that that would be made easier, were we to bring

the remaining detainees from Guantanamo to military installations

in the United States.

If we were to do that, I think that would indicate to the Europeans, in particular, that we are not afraid of that, and that the

ones that we have determined are no longer of a danger to the

United States should be sent elsewhere.

The CHAIRMAN. Thank you.

Before I ask my friend, Mr. Hunter, to ask questions, I remind

the committee members that we are under the five-minute rule.

Mr. Hunter.

Mr. HUNTER. Thank you, Mr. Chairman.

Mr. Katyal, you are Mr. Hamdan’s lawyer, are you not?

Mr. KATYAL. I am.

Mr. HUNTER. Okay. What new rights will attach to Mr. Hamdan,

in your opinion—in your legal opinion—if he is moved to the

United States?

Mr. KATYAL. In my opinion, none. That is because I think, ultimately, the Supreme Court will hold, as it has already hinted, that

Guantanamo is, for all practical purposes, United States soil.

The relevant test is the Supreme Court’s case in 1990, in a case

called Verdugo-Urquidez, which says that, basically, when you are

dealing with territory of the United States in which the United

States has absolute control, the fundamental rights of the Constitution apply.

The Supreme Court in 2004, in Rasul v. Bush, said that Guantanamo—unlike, say, Iraq or Afghanistan or France or Germany—is

a place in which the United States has permanent, total control

over the area. And for that reason——

Mr. HUNTER. Okay. So, we have now basically separated these

two issues, because you have established by your statement that

we are to take it as being a valid representation of rights that attach to Guantanamo versus the United States, that the movement

of prisoners from Guantanamo to the United States does not have

legal impact on the rights of the defendants.

That is basically what you have said. Is that right?

Mr. KATYAL. What I am saying, the Administration takes a different view right now——

Mr. HUNTER. Well, I understand, but I am just asking you for

your position.

Mr. KATYAL. That is right.

Mr. HUNTER. Does anybody else have a different position? Are

there any of you think that there is a difference in the rights of

20

the prisoners, of the detainees, dependent on whether they are located in Guantanamo or the United States?

Anybody have a view on that?

Mr. Philbin.

Mr. PHILBIN. Yes, Mr. Hunter. I disagree with Professor Katyal.

I think that the detainees now at Guantanamo are not on U.S.

soil, that the controlling opinion is Johnson v. Eisentrager from

1950, which holds that constitutional protections, like those of the

Fifth Amendment, do not apply to aliens held outside the United

States, so that they do not have those constitutional protections.

Now, as a practical matter, since they have been given, through

CSRTs, a procedure——

Mr. HUNTER. Pull that mike a little bit closer to you, so we can

hear you a little bit better.

Mr. PHILBIN. As a practical matter, since they have been given

procedures through the combatant status review tribunals, that

were designed to meet the due process requirements, the Supreme

Court plurality in the Hamdi case—Hamdi v. Rumsfeld—outlined

as what would be necessary to detain a U.S. citizen in the United

States as an enemy combatant.

Those procedures have been given to the detainees at GTMO.

And they have Article 3 court review with that. And given the procedures in the Military Commissions Act, and the Article 3 court

review with that, I am not sure that there would be much practical

difference. But they would be able to challenge those, if brought to

the United States.

But as a legal matter of their status, they would gain constitutional rights that they do not have now.

Mr. HUNTER. So, in your opinion, they would have new rights as

a result of being located here, rather than being located there.

Mr. PHILBIN. Yes.

Mr. HUNTER. That is the essence of your testimony.

Mr. PHILBIN. Yes.

Mr. HUNTER. We are discussing, really, whether or not this new

body of law that we have created is going to make it, all the way

up through review that includes going up to the U.S. Supreme

Court.

That is largely going to depend on the array of rights that we

have granted, as we deliberated and wrote and wrote this bill and

put it together, along with our counterparts in the Senate, whether

we gave an adequate array of rights to the defendants.

For practical purposes, fairness is manifested in the rights that

you give to the individuals who are tried.

Now, I have got the rights that are given to Khalid Sheikh Mohammed, and all of the other prisoners.

And I want to go over them: right to counsel; right to an impartial judge; presumption of innocence; standard of proof beyond a

reasonable doubt; right to be informed of the charges as soon as

practicable; right to service of charges sufficiently in advance of

trial; right to reasonable continuances; right to preempt or rechallenge against members of the commission, and challenges for cause

against members of the commission and the military judge; witness

must testify under oath; judges, counsel, and members of military

commission must take oath; right to enter a plea of not guilty;

21

right to obtain witnesses and other evidence; right to exculpatory

evidence as soon as practicable; right to be present at all proceedings with the exception of certain classified evidence involving national security, preservation or safety, or preventing disruption of

proceedings; right to public trial, except for national security issues

or physical safety issues; right to have any findings or sentences

announced as soon as determined; right against compulsory self-incrimination; right against double jeopardy; right to the defense of

lack of mental responsibility; voting by members of the military

commission by secret written ballot; prohibitions against unlawful

command influence toward members of the commission counsel or

military judges; two-thirds vote of members required for conviction;

three-quarters vote required for sentences of life over 10 years;

unanimous verdict required for death penalty; verbatim, authenticated record of trial; cruel or unusual punishments prohibited;

treatment and discipline during confinement the same as afforded

to prisoners in U.S. domestic courts; right to review a full factual

record by convening authority; and right to at least two appeals,

including to a federal, Article 3 appellate court.

I want to ask each of you, and let us start with Mr. Katyal, what

rights in this array of rights that we have given to Khalid Sheikh

Mohammed—who has now said that he, in fact did participate in

putting together the plan that killed thousands of Americans—

which rights would you give him in addition to the rights that he

now has?

Because that is the body of this law, not some generalized discussion about vague statements about Guantanamo or about whether

the United States has made mistakes in terms of the legal standing

for the body of law that was put together in violation of Geneva

Article 3, which required participation by Congress, basically, arguments that go to the structure of the law and the way the Administration acted without Congress’ participation.

This is the bundle of rights that every single defendant has.

Which rights, above and beyond these, would you give to the defendants, substantive rights?

Mr. Katyal.

Mr. KATYAL. Representative Hunter, I appreciate the excellent

question. And I would say three things.

First, the list that you just read is the same list that the Administration read about its November 13, 2001, order, that many of us

warned would get struck down by the courts.

It is not simply the rights that are written on the paper; it is the

fundamental way those rights are enforced.

And here, the Administration says the Constitution does not protect the detainees at all. And if that is true, none of the laundry

list of rights you have read actually give the detainees any right

in court that enforces all of the things that you read.

Mr. HUNTER. Actually, Mr. Katyal, there is a difference with respect to the classification of the classified evidence to which the defendant has a right to review. Evidence upon which he is convicted,

he does have a right to be present——

Mr. KATYAL. He now cannot be kicked out of the trial. That is

one——

22

Mr. HUNTER. That is a change in what the Administration

has——

Mr. KATYAL. Absolutely. And it is a wonderful change. And I

think many appreciate it, that——

Mr. HUNTER. So, which substantive rights, again, do you think

that the prisoners should have—the defendants should have—that

I did not read here? Rather than simply say, this is what has gone

before.

Mr. KATYAL. I think it should——

Mr. HUNTER. And Mr. Katyal, this has gone before, not only—

I mean, basic rights like the right to counsel, the right to the presumption of innocence—those are not things that are unique to the

Administration’s proposal. Those are rights that are embodied in

legal systems around the world, as you know.

And also, a number of them were manifested in Nuremberg,

Rwanda, and other military proceedings.

Mr. KATYAL. Absolutely.

Mr. HUNTER. So, if there are substantive rights that you think

that your defendant should have that are not on this list, I want

to know what they are. I think that is a reasonable question.

Mr. KATYAL. Absolutely. It is a great question.

It is not the rights that—or it is not what the paper says about

the rights. It is how they are enforced and implemented. And let

me give you one example, Representative Hunter.

You pointed out in your list the right to obtain exculpatory evidence. That is——

Mr. HUNTER. Okay. But let me stop you for one minute. I want

to hear that. If you are saying these rights are not enforced, now

that is a second answer.

The first thing I want you to do is to presume that the rights

that I just listed are enforceable—are, in fact, enforceable and are

defendants’ rights. Are there other substantive defendants’ rights

that are not on here?

Mr. KATYAL. Yes.

Mr. HUNTER. For example, maybe saying I think that they

should be—there should be a unanimous verdict for a conviction.

Mr. KATYAL. Yes. The most important——

Mr. HUNTER. Okay. What I want to hear is the substantive

rights.

Mr. KATYAL. The most important substantive rights that are not

on there are the right of equality—same treatment for citizens and

aliens, which would mean court-martial systems, which would

mean a procedure that we know enforces the rights, as opposed to

a newfangled one, which we do not know is going to actually enforce the rights in practice.

Another one. The list you had does not provide a right against

evidence taken under coercion, which, you know, the American

courts, the Supreme Court has said, is absolutely essential to the

fairness of any military tribunal system.

But here is the fundamental point——

Mr. HUNTER. Okay. So, you have got two—hold on a second. This

is a careful procedure. Let us walk down this.

You say, first——

The CHAIRMAN. Just a minute. Let the gentleman answer.

23

Are you through answering the full question?

Mr. HUNTER. Well, I know. But I want to make sure that we lay

this out in an orderly way.

You have got court-martial procedures. So you think under the

UCMJ—is that what you are saying?

Mr. KATYAL. That is right.

Mr. HUNTER. The UCMJ system should have been followed. And

second, you think that evidence that is taken under coercion should

be excluded.

Mr. KATYAL. That is correct.

Mr. HUNTER. Okay.

Mr. KATYAL. And then, my fundamental point, Representative

Hunter, is this. If you are convinced that these trials are fair, that

is all the more reason to bring them to the United States and have

the type of orderly review that this Nation has always had, up to

the Supreme Court.

Let us test that. Let us see if these things are really fair.

Let us not have these trials in a place which the Administration

says is a legal black hole in which people are going to be convicted

and these convictions are ultimately going to have to be undone.

Mr. HUNTER. Okay, Mr. Katyal.

Let me ask—let the other folks ask—are there any of the array

of rights that I read—and I am going to give you each a copy of

those. We have one—I see one substantive right; that is that evidence under coercion should be excluded. That is Mr. Katyal’s recommendation.

Ms. Massimino.

Ms. MASSIMINO. Yes.

Mr. HUNTER. Have I got it right?

Ms. MASSIMINO. Yes, you do.

Mr. HUNTER. What other substantive rights would you give the

defendants?

Ms. MASSIMINO. Well, I would put the one that we just discussed,

that you just discussed with Mr. Katyal at the top of the list. And

that is the introduction of evidence based on coercion.

I think that that alone risks undermining the fairness of the

trial, even if you do not look at all of these other issues.

In a fair trial, Khalid Sheikh Mohammed would have a very difficult time raising a defense. But we are giving him a defense——

Mr. HUNTER. Now let me remind you——

Ms. MASSIMINO [continuing]. After we fixed that problem.

Mr. HUNTER. I believe—and we had the rights that attached at

Nuremberg—I believe that that was not an exclusion at Nuremberg. Now, if that was, correct me.

So, you are saying that these people should have at least, in that

case, more rights than attached at Nuremberg.

And I believe that they—I do not believe that that right, the exclusion of evidence that was derived under coercion, attached at

Rwanda.

So, you are saying, if, in fact that is the case, they should have

additional rights beyond what those folks had in those two military

tribunals.

Ms. MASSIMINO. I am saying that, yes. And I think that our own

understanding of the fundamental due process rights that adhere

24

in a fair system has evolved, and it clearly includes that right

today.

Mr. HUNTER. Okay.

Mr. Philbin. What additional rights would you give beyond that

array of rights that I just read?

Mr. PHILBIN. I would not add additional rights. But could I make

two comments on what the other panelists have suggested?

Mr. HUNTER. Well, sure, just—yes, sir, quickly. And then we will

move on to Mr. Taft.

Mr. PHILBIN. Yes, sir.

Professor Katyal has, at a number of points, suggested that there

must be equal protection, that the Equal Protection Clause here requires that citizens and aliens be treated the same.

And I do not think that that is a serious constitutional issue

here.

The Supreme Court has always allowed the Federal Government

to make distinctions between citizens and aliens, particularly nonresident aliens—we are not talking about resident aliens here—and

has not applied it to strict scrutiny.

And the Supreme Court has said specifically, any policy toward

aliens is vitally and intricately interwoven with contemporaneous

policies in regard to the conduct of foreign relations, the war power

and the maintenance of a republican form of government. Such

matters are so exclusively entrusted to the political branches of

government as to be largely immune from judicial inquiry or interference.

And similarly, in the Eisentrager case, the Court made clear that

there was a distinction between citizens and aliens that was particularly important in wartime.

And in terms of evidence obtained by court—and I believe you

are correct, Representative Hunter, that in Rwanda and the International Criminal Tribunal for Rwanda and for Yugoslavia, the

way the issue of coercion is dealt with is that, hearsay evidence

may be admitted, but there is then some probe into the reliability

of it, which is a similar standard to what is in the MCA today, that

there is a probe into whether or not evidence is reliable.

Mr. HUNTER. Mr. Chairman, I understand we have got very little

time left for this vote. If we could break here.

I think this is a really critical question, because this goes to the

heart of what we wrote——

The CHAIRMAN. The gentleman will be able to resume his questions when we get back.

[Recess.]

The CHAIRMAN. I thank the witnesses for resuming, for staying

at the table.

Mr. Hunter had to break as we went over to vote.

Mr. Hunter.

Mr. HUNTER. Thank you, Mr. Chairman.

And, Mr. Chairman, I would ask for unanimous consent just to

distribute the list of rights that are derived from the tribunal legislation that this body passed and that is now the law.

The CHAIRMAN. Yes, without objection.

May I make an inquiry? Let me ask inquiry as to where this was

derived from?

25

Mr. HUNTER. Derived from our legislation. This is the right to

counsel, right to impartial judge, et cetera.

The CHAIRMAN. Thank you. You bet.

Mr. HUNTER. Let me continue. My question simply was, of this

array of rights that I read off, which of them—what additional

rights would you give to the accused terrorists, including people

like Khalid Sheikh Mohammed, that are not in the law that we

passed?

And Mr. Katyal said that he would also add the exclusion of evidence that is obtained under coercion. Ms. Massimino said also she

would add that right to exclude evidence obtained under coercion.

And I might note that the only way that evidence obtained under

coercion can be introduced is if the judge finds—and I am looking

at the statute—one, the totality of the circumstances renders the

statement reliable and possessing sufficient probative value; and,

two, the interests of justice would best be served by admission of

the statement into evidence.

And that that is an exclusion that you are asking for, under my

understanding, did not attach to the defendants at the Nuremberg

trials, nor did it attach to the Rwanda trials.

And I would now ask Mr. Taft if there are any additional rights,

substantive rights for the accused that you would add to this list

of rights that we gave him.

Mr. TAFT. Well, Mr. Hunter, the two points that I mentioned in

my testimony are the only things that I would——

Mr. HUNTER. Bring that mike a little closer, sir, if you could.

Mr. TAFT. The two points that I mentioned in my testimony are

the only ones that I would bring in.

I do think that coerced testimony should not be admitted, even

in the circumstances that you have—the finding that you said, just

described. And I would——

Mr. HUNTER. Okay. Well, let me just ask one question on that,

because I——

Mr. TAFT. Could I just finish the second one?

Mr. HUNTER. That is a common point. I will let you make your

second one, but since that is a common point——

Mr. TAFT. Thank you. It is just the hearsay. I would also exclude

hearsay.

Mr. HUNTER. Okay. You would exclude hearsay. And hearsay

was not excluded at the Nuremberg trials, nor was it excluded in

Rwanda.

But let me just say that one of the testimonies that was given

to us as we very carefully put this legislation together, with respect

to the potential exclusion of any coerced testimony, one of our JAG

officers testified to us, in essence, he said, any time you capture

somebody at the point of a gun, and you have got a loaded gun

pointed at them, and they make statements, there is always an element of coercion that attends that.

And he said, if you flatly exclude any evidence that is excluded

under coercion, you have an argument with respect to any statement at all that is made on the battlefield, because battlefield

statements are always extracted, generally by somebody who is at

the other end of a loaded weapon.

26

And so, once again, I would offer that that evidence is excluded,

unless a judge makes the two findings that we put in as conditions

upon which that evidence can be admitted.

And so, let me ask another follow-up on this.

You stated—you have all stated, except for Mr. Philbin—that

Guantanamo should be closed or people should be moved from

Guantanamo.

Now, my understanding is that not a single person has been

murdered at Guantanamo. And yet, there is nobody sitting in this

hearing today, nor is there a single Member of Congress who can

say that about the prisons in their respective states.

There is not a major prison in this country which has not been

the site of murders.

So, Mr. Taft, do you think, in light of that, that we should close

down domestic prisons when murders occur in those prisons on the

basis that they have been given a stigma or have been given a bad

image, and that that detracts from the world view of America?

Mr. TAFT. No——

Mr. HUNTER. Do you think we should close down domestic prisons, if murders occur in domestic prisons?

Mr. TAFT. No, sir.

Mr. HUNTER. Mr. Philbin.

Mr. PHILBIN. No, sir.

Mr. HUNTER. Mr. Katyal.

Mr. KATYAL. No, sir. And I would add that, if the best we can

say about Guantanamo is that no murders occurred there, that

strikes me as not the most important thing.

We are in a war on terror, and our reputation and our values are

how we win this war on terror.

Mr. HUNTER. Okay.

Mr. Katyal, let me ask you this question, then, since you have

stated that that is not the full picture, in essence.

If you have looked over—and I am sure you have—the health

care that is delivered to the people in Guantanamo, which appears

to me, and by testimony of our doctors who were there, that it is

really a higher quality than many HMOs and Americans receive.

The average prisoner has gained something over six pounds in

weight since he has been there, that the medical care is good.

The diet—in fact, when we went down on our bipartisan congressional delegation (CODEL), we ate the same menu that the prisoners had. As I recall, on one Friday it was honey-glazed chicken.

It was lemon fish for Saturday, served with rice pilaf. It is quite

an attractive menu, if that is attractive.

If we are paying for prayer rugs, if we interrupt the daily routine

five times a day to give prayer call for all the prisoners over the

loud speakers.

When we left they were—they had a soccer game going on when

our CODEL left.

What additional things do you think we should give those prisoners, in any setting, that they are not receiving?

Mr. KATYAL. Again, a great question. And there are undoubtedly

great stories about treatment at Guantanamo, about the food,

about guards who care for the detainees, and the like.

27

There are also bad stories about what happens at Guantanamo,

whether it be——

Mr. HUNTER. Well, Mr. Katyal, I want your opinion, based on defects that you see. Do not accept my statement as a fact.

Do you see a—is there anything else that you would give those

people right now that they do not have?

Mr. KATYAL. Let me point to one from my own experience.

Mr. Hamdan was put in solitary isolation, did not see another

human being for 10 months. Our own CIA manuals say, if you put

someone in solitary isolation for three days, it causes permanent

psychological damage.

Yet, we want to try these people after they have been put

through that long period of isolation. That strikes me as a dangerous strategy.

What I would say, Mr. Hunter, is that, Representative

Hunter——

Mr. HUNTER. Okay, so isolation——

Mr. KATYAL. Yes, so what I——

Mr. HUNTER. Isolation is a substantive—you think we have isolated some people too long, and that that is a condition you would

change.

Although my understanding is that nobody there right now is

isolated beyond very short periods of time.

Mr. KATYAL. I believe that is inaccurate, and that camp six effectively amounts to a solitary isolation facility, which houses dozens

of detainees.

But, again, I do not know exactly the details——

Mr. HUNTER. Okay. But let us put you down as saying isolation

is a condition you would change.

Mr. KATYAL. And then——

Mr. HUNTER. What else?

Mr. KATYAL [continuing]. I think the most important thing is the

trials—not the detention, but the trials—because that is what the

world is watching. And the trials have to take place under a regime

of fairness, with review that we know will survive the Supreme

Court’s test——

Mr. HUNTER. Okay, key question. And, Mr. Chairman, I will then

move on—but this is a complicated area. We devoted hundreds of

hours, and therefore, the consideration of reviewing this record—

and what we did has to be very carefully looked at.

You said the fairness of trials, and that has been used interchangeably with moving the site from Guantanamo to the U.S.

Why can’t you have just as fair a trial at one site? Because fairness in trials is manifested in rights and the application of rights.

Why can’t you have just as fair a trial inside a building in Guantanamo as you have inside a building somewhere else in the world?

Mr. KATYAL. Because the trials that take place at Guantanamo

take place against the Government’s argument that the Constitution does not constrain what they do.

Again, Representative Hunter, it is not the rights on the piece

of paper; it is the way the rights are enforced.

So, for example, on that piece of paper you read, it said there is

a right to exculpatory evidence. That is the same right that was

there in the last military commission system.

28

And what happened? There were front page stories in the New

York Times and the Wall Street Journal, that the military commission prosecutors protested the system, because it was not turning

over exculpatory evidence for the defense.

Mr. HUNTER. What does that have to do with the location, in

which building the trial is held?

Mr. KATYAL. Because if——

Mr. HUNTER. Why would in one building you would not get exculpatory evidence, in another building you would have it?

Mr. KATYAL. Because if it takes place in America, the Administration cannot cling to its wrong argument——

Mr. HUNTER. Mr. Katyal, you have just contradicted yourself, because you told me, your first answer to the question was, there

were no substantive rights that were changed as a result in the difference in sites between Guantanamo and America.

Now you tell me you must have them in America, because there

are new rights that attach.

Now, which one is it?

Mr. KATYAL. With all due respect, it is not a contradiction. It is

the same argument. That is, if the trials take place now at Guantanamo, they will take place with no constitutional rights. That is

what the Administration is saying.

That will get struck down by the Supreme Court, and we will be

left years from now with no convictions.

I am saying, Representative Hunter, move them to the United

States where it is undoubtedly the case, and the Administration

cannot cling to its bad argument that no constitutional rights

apply. And then you will see the discovery process unfold more fairly. You will see the rights given mirror those of our courts-martial

system.

And I think the world will be on notice that America does justice

fairly and proudly.

Mr. HUNTER. Okay. Ms. Massimino.

Ms. MASSIMINO. Yes. I have to——

Mr. HUNTER. What are your thoughts here?

Ms. MASSIMINO. I have to admit that I am a little confused by

your framing of the question about the safety of the prisoners at

Guantanamo. I do not hear anyone arguing that Guantanamo

ought to be closed because it is unsafe for the prisoners.

Now, Human Rights First, my organization, has not been permitted to go to Guantanamo for the purpose of a fact-finding mission about the treatment of the prisoners. We go down to observe

the military commissions trial.

But we are not arguing, and we have not argued that it should

be closed because it is unsafe for the prisoners, because they might

be murdered there. But——

Mr. HUNTER. Well, are they inhospitable?

Ms. MASSIMINO. Excuse me, but——

Mr. HUNTER. Let me just address that, since you asked that—

you made that point. My point is that, if there is a reason to close

down a prison, it is because people are murdered in the prison. The

first thing you go to is murder. And the point is, every single prison

in the United States has had murders occur in it. Guantanamo has

never had a murder occur in it.

29

So, if you go on the basis that severe acts—that is, murder—occurring to the inmates justify closure, we would justify closure of

every prison in America before we closed Guantanamo, because nobody has been murdered in Guantanamo.

Ms. MASSIMINO. That is a straw—with respect, that is a straw

man. No one is making that argument. And that is not——

Mr. HUNTER. Well, then, how about the treatment?

Ms. MASSIMINO. And that is not the sole reason why we—the

only consideration that ought to be—that you all ought to be thinking about when you decide where we ought to hold these

prisoners——

Mr. HUNTER. How about the treatment of the prisoners?

Ms. MASSIMINO. Well, as I say, we have not been able to go there

to make any kind of independent judgment. But I will say that people who have, including Secretary Gates, has said that the trials

there will never be viewed as fair by the rest of the world.

Now, that is a very sad fact, but it is a fact. And we have to

grapple with that.

When the government originally argued that Guantanamo was

the legal equivalent of outer space—now, thankfully, because of our

courts and this Congress, that is no longer really true.

But the rest of the world believes that. And unfortunately, they

always will.

Now, you know, we have not been clamoring for years that Guantanamo be closed, frankly, because for us, as Will Taft said, it is

more important how they are treated and the legal system under

which they are judged, than whether they are 90 miles south of the

United States or they are here.

But you must consider, I would submit, whether the liabilities of

continuing to hold people there under the system that we have constructed, outweigh the benefits.

Now, there are clearly some benefits, as you have heard. But

there are serious liabilities. And people much more close to the national security interests of the United States than I am have made

that judgment and are making that argument.

And I would submit to you, that when you think about Guantanamo, and the Military Commissions Act in particular, until you

start to consider that those issues must be addressed in the context

of a broader strategy to defeat al Qaeda, then we will continue to

make these kind of shortsighted mistakes.

Mr. HUNTER. Okay.

Mr. Chairman, thank you for that time.

I would just recount that, with respect to going through this

large array of defendants’ rights, the basic defendants’ rights in

any trial—there were precisely two recommendations that were

made for expansion of those substantive rights.

And no one gave a condition, a living condition, that they would

change in Guantanamo, except Mr. Katyal said that he thought

that isolation was, in and of itself, an inappropriate aspect of incarceration.

But with respect to the food, with respect to the medical treatment, with respect to the prayer call, with respect to the exercise,

no one had a complaint.

Ms. MASSIMINO. Excuse me.

30

Mr. HUNTER. And, Mr. Chairman, I think that closing down a

base to fulfill a myth, which is that we brutalize people at Guantanamo, only confirms the myth. It certainly does not alleviate those

who would criticize our country.

The CHAIRMAN. I thank the gentleman.

Dr. Snyder, please.

Dr. SNYDER. Thank you, Mr. Chairman.

We have been here an hour and 50 minutes, and so you finally

get to look at a different face than our chairman and ranking member.

We have a policy here of what we call ‘‘questions for the record’’,

in which sometimes something comes up that you may not know

the answer and that we give you a chance to submit it in written

form.

Mr. Chairman. Mr. Chairman.

What I want to do is—my question for the record is—I think

every one of you have been interrupted multiple times in your answers so far today, and these are very complex questions.

If, after this hearing is over, on review you believe that you

would like to provide either more complete answers to any questions you have been asked by any member or amplify on anything

that has come up, please submit your statements and as a response

to my question for the record that you have that opportunity to do

that.

The CHAIRMAN. Without objection.

Dr. SNYDER. The posture we are in as a committee in the Congress is that the President——

Mr. HUNTER. Mr. Chairman, just reserving the right to object, I

just want to comment on that.

I would just say to my friend that we have gone—it is important

when you have a limited amount of time in a hearing, we all have

our statements and our positions that we want to take, and that

is absolutely appropriate with respect to our witnesses.

But there are several key facts that we have the right to explore.

And so, when I ask the question, what additional rights would you

give, above and beyond the ones that I read, it was important to

get an answer to that. And that is why I asked the witnesses to,

along with the rest of their statements, answer those questions,

and they did.

So, I would just say to my friend——

The CHAIRMAN. It has occurred——

Mr. HUNTER [continuing]. That I did not intend to cut anybody

off, and I want to see, if you have reams of paper in explanations

that you want to give with respect to your answers, let us do it.

But I thought it was important, because the rights that we put

together and the deliberation that we undertook built this bill, this

body of law, that we are now using.

And the substantive rights that accrue to those defendants under

this body of law are the key to whether a reviewing court is going

to uphold this law in the future. That is why those questions were

critical.

With respect to Guantanamo, the condition and treatment of the

prisoners is everything. And so, while world opinion may be an important thing, the actual treatment of the prisoners, and whether

31

or not prisoners have been murdered, is absolutely crucial to this

question of whether we should close down Guantanamo.

So, I thank my friend, but I think it was important to get those

answers on the record, and I would be happy to agree with him

that, if they have extended answers, that is absolutely fine with

this member.

And I would withdraw my objection.

The CHAIRMAN. I was about to say, doesn’t it constitute an objection? But we will see.

Dr. Snyder, your time will be adjusted.

Dr. SNYDER. Mr. Chairman, in response to this discussion, it is

a matter of the rules of this committee that I can ask a question

for the record. No member has the right to object to any question

I ask for the record.

So this discussion about, in which you said, without objection,

and Mr. Hunter reserved the right to object, that is not the way

the rules are.

I have a right to ask a question for the record. I have done that,

and I look forward to any response or——

The CHAIRMAN. You certainly do, and let me tell the gentleman

that he withdrew his objection. And I also understood that it was

not a proper objection.

Dr. SNYDER. Thank you.

One of the issues that has come up is—what I started to say is,

in leaving this question, I find this very complex. And I guess that

is the nature of the topic, as Mr. Hunter’s discussion brought out.

We are in a posture where the President made a decision to do

the Guantanamo facility. There have been no legislative restrictions placed on that.

He has the authority at this time to continue it. He has authority

to move the prisoners, as he has done. He has authority to shut

the thing down tomorrow and move everyone.

Apparently, there has been a very, very vigorous debate within

the Administration about what they want to do. But there has not

been any restrictions put on that.

In our subcommittee a couple of weeks ago, a Military Personnel

Subcommittee, we did our wounded warriors bill, and there was an

amendment that went to a vote—unfortunately it was a party line

vote, and it was, I think fortunately, voted down—in which the

basic language would be, if Guantanamo were to be shut down,

that none of those enemy combatants could be located anywhere

within 50 miles of a military medical treatment facility.

Well, that brings—Mr. Philbin, your point is a great one—security has got to be the number one issue. I always thought the most

secure place for these people would be on a military base. All bases

have military treatment facilities.

So it means they could be on no military base in the United

States. We then put ourselves in the position of contracting out

with a state facility, trying to find room on another Federal facility,

building something out on state land.

So, my specific question is with regard to this geography determining rights.

If the amendment that was proposed by one of my Republican

colleagues were to be law and we could not place these people on

32

military bases, because they would be in proximity to a military

treatment facility, and we ended up putting them not on Federal

property, then do we have any issues with regard to any state

rights that would complicate this matter further?

Two weeks ago I would have thought this was completely hypothetical until my colleagues presented this amendment.

Mr. PHILBIN. I am not sure I know the answer to that legally.

I would assume that, even if not on a military base, that they

would be located on Federal property.

Dr. SNYDER. I thought so, too, until this discussion. You could

easily see that being farmed out to—the state of Arkansas has 20

empty beds. We will pay you to incarcerate these folks.

Mr. PHILBIN. And I have to caveat this. I am not really sure. But

I think that the Bureau of Prisons has contracts with states’ facilities all the time to house prisoners. That is the nearest analogy I

can think of.

I do not think that that creates additional complications, additional rights, because they are contracted in a way that they are

still in Federal custody. So, it does not give them different rights

arising from state law that they would have—other than the rights

they have as Federal prisoners in a Federal facility.

Dr. SNYDER. It is still not clear to me, this issue that the geography of being on the federal, clearly U.S.-controlled property at

Guantanamo versus in the United States.

Mr. Philbin, you think it is settled law about what kind of rights

they have.

Are all three of our legal experts—or, Ms. Massimino, you are a

lawyer. Are you an attorney also?

Ms. MASSIMINO. Yes, sir.

Dr. SNYDER. Oh, all are. Are you all in agreement with that proposal? I mean, does the geography change the rights when they

come to the United States?

Mr. PHILBIN. Well, if I could give a brief answer first.

I think that it is settled law that aliens outside the United States

do not have rights under the Constitution. And other members of

the panel can object or disagree. But I do not think——

Dr. SNYDER. On federal-controlled property.

Mr. PHILBIN. Well, but then, I think that is where the disagreement on this panel will come, that Professor Katyal will suggest

that there are indications in recent Supreme Court decisions and

a footnote into the Rasul decision and in a concurring opinion by

Justice Kennedy in Verdugo-Urquidez and a concurring opinion by

Justice Kennedy in Rasul, that the absolute control, the jurisdiction and control over the physical land at Guantanamo that the

U.S. has makes it different, and that it should be treated just as

if it were U.S. soil for purposes of the extension of constitutional

rights.

I disagree with that. I mean, there is a footnote there in the

Rasul opinion. It is just a footnote. It is not a holding yet.

I believe the current law is that, as held recently by the U.S.

Court of Appeals for the D.C. Circuit, that Guantanamo is outside

the United States. It is not United States territory.

As a result, U.S. constitutional rights do not extend to aliens

there.

33

And one would have to consider that, if it were true that just jurisdiction and control means that constitutional rights extend to a

place, occupied Germany was occupied for years. The Landsberg

prison where prisoners were held in the Eisentrager case was controlled by the United States.

The U.S. sector in Berlin was controlled for decades by the

United States. And whether or not just control over a place for an

extended period of time means the constitutional rights extend

there is a very dicey issue. And——

Dr. SNYDER. Mr. Philbin, my time has long expired, but thank

you for your answer.

The CHAIRMAN. Thank the gentleman.

Going down the list, before the gavel, Mr. Johnson of Georgia.

Mr. JOHNSON. Thank you, Mr. Chairman.

The CHAIRMAN. Ms. Sanchez, thank you.

Mr. JOHNSON. What evidence, Mr. Philbin—well, let me ask the

question this way.

The CHAIRMAN. Would the gentleman suspend? I apologize. I

misread the list. It is Ms. Sanchez before the gentleman from Georgia.

The gentlelady from California is recognized.

Ms. SANCHEZ. Thank you, Mr. Chairman.

And thank you, all of you, for being before us today.

As the chairman knows, I have been very interested in this topic,

probably even before most of the members of this committee.

I believe that the Supreme Court will uphold the MCA. And I do

believe that aliens outside the United States do not have U.S. constitutional rights for some very good reasons. I think the Supreme

Court will not extend the reach of our Constitution to the four corners of the globe.

The Constitution is our national law. Outside the territory, international law applies.

And I think it would be very poor on their part to extend constitutional rights to people detained, for example, for war reasons

elsewhere, like in Iraq. I mean, what are we going to do, let Iraqis

bring equal protection claims in U.S. courts?

I really think the idea is so ludicrous, it is almost self-refuting.

So, I would begin with the process that there is a reason why we

have these detainees in Guantanamo rather than here in the

United States.

I have some questions for Mr. Katyal. Is that how you pronounce

it?

Mr. KATYAL. That is fine.

Ms. SANCHEZ. I have a number of concerns about trying cases by

courts-martial, because I believe that the MCA looks like and functions like the court-martial, but it is not. And we determined, when

we passed that law, that military commissions would have a legitimate place in U.S. military law, and that would be an alternative

for trying alien, unlawful, enemy combatants.

And I would also point out that MCA authorizes the use of military commissions, but it does not require their use in war crime

cases. In fact, if the President wanted to, he could still direct that

Hamdan, Hicks, or other detainees be tried by courts-martial instead of military commissions.

34

But since you are such an advocate of courts-martial, the MCA

expands the kinds of offenses that may be tried by military commissions to include certain offenses that are not traditional war

crimes, but are still offenses that should be available, I believe, to

the prosecution of international terrorism.

For example, crimes of hijacking, material support to terrorism,

and even conspiracy are arguably not war crimes per se.

Do you believe that such crimes could legally be tried by courtsmartial under the UCMJ today? Because, if we were to use courtsmartial for these trials, we would have to give up the possibility

of charging your clients with these kinds of terrorism offenses. Isn’t

that right?

These offenses can be tried by the military commissions under

the MCA.

Mr. KATYAL. A terrific question, Representative Sanchez.

First of all, I do not think that the MCA can both look like a

court-martial and not be a court-martial at the same time. It is one

or the other.

And my view is that it should be a court-martial, these trials

should be courts-martial, to signal to the world and comply with

our Geneva Convention obligations, regular courts with offenses defined ahead of time, not before.

The crimes you mention—crimes like hijacking and conspiracy—

were added in October of last year. And we cannot turn back the

clock and apply them to people who have already committed their

acts. After all, that is what the Article 1, Section 9 ex post facto

prohibition is all about.

Of course, those crimes that you mention are crimes at least in

the civilian code, if not in the military code, as well.

But let me point out two fundamental defects between—for the

reason why courts-martial do not—why the MCA does not look like

a court-martial. One is expedited review. Representative Skelton’s

opening remarks about how a court-martial—we know the system

is fair. It has been upheld by the Supreme Court time and time

again.

This is a newfangled system operating in what the Administration calls a legal black hole.

Ms. SANCHEZ. Reclaiming my time for a moment.

If we were worried about every time we make a new law and

there was not case law for it, then we would never make new laws.

If we were worried about every time we tried a person that we

were going on new ground, then we would never make a new system.

So, I think that that is neither here nor there.

Mr. KATYAL. What I am saying——

Ms. SANCHEZ. The Supreme Court will decide.

Mr. KATYAL. And what I am saying, Representative Sanchez, is

that it is not just that it is a new law. There is law that is fundamentally against what the MCA is all about. And the arguments

that you would advance, the arguments Representative Skelton has

advanced, are the same arguments we have heard for five years.

Johnson v. Eisentrager is going to uphold this military commission system. We do not have to give Geneva Convention protection.

We do not have to give habeas——

35

Ms. SANCHEZ. No. Again, reclaiming my time, that is not the

case.

In fact, I argued to the former chairman, now the ranking member, and to the chairman during the year, that I thought the Supreme Court would come back and tell the Congress, ‘‘You are in

charge of writing the rules for these military commissions, or whatever it is you decide to do, not the President.’’

But I believe that we had a very thorough process in doing this.

And I do believe the Congress had that right and it was their responsibility. And we did it.

If you will indulge me just—I have one more question that I have

for the gentleman, Mr. Chairman.

The CHAIRMAN. Please proceed.

Ms. SANCHEZ. I am very concerned about you wanting to go to

courts-martial versus what we have done in the MCA. And it has

to do with the rules of evidence, in fact, Military Rule of Evidence

305.

Because, as you know, battlefield interrogation, other types of interrogations that have gone on have not been with Miranda rights.

And so, it is my opinion that, if somebody who is on the side of

a defendant right now—of course, you would like to kick this into

a courts-martial process, because the evidence in the interrogation

and any of the information we may have had since your client did

not have Miranda rights read to him, would be thrown out automatically. Don’t you believe that?

Mr. KATYAL. Absolutely not.

As I testified in the Senate in July of last year, the United States

Court of Armed Forces—our highest military court—has issued an

opinion called United States v. Lonetree, in 1992. The Lonetree decision says that when interrogation is taking place for purposes of

intelligence gathering, no Miranda warnings need be given.

And so, I would respectfully disagree with the judge advocate

general that Mr. Hunter referred to earlier, because it is quite

clear under existing military law that no Miranda warnings need

be given, and the evidence would not be excluded, so long as the

interrogation is being undertaken for purposes of intelligence gathering, which is, as I understand it, what these interrogations were

all about.

Ms. SANCHEZ. And I would differ with you, in that the line of

case asked in Lonetree asked whether the intelligence and law enforcement investigations have merged.

And if they have merged, then the exception does not apply. And

as you know, at GTMO, it is almost a total merge of intelligence

and law enforcement purposes and routine sharing of information

between intel and criminal investigators.

And I realize my time is over, but I would disagree with the gentleman.

The CHAIRMAN. Thank the gentlelady.

Ms. Castor and then Dr. Gingrey.

Ms. CASTOR. Thank you very much for your testimony today.

I am very concerned that the Bush-Cheney policy here has undermined our national security and, in fact, unnecessarily delayed

bringing terrorists to account. It has not been smart or strategic

36

from a counterterrorism point of view, because it has fed the radical jihadist terrorist movement.

I think it has been very interesting, just in recent days, the press

reports about the struggle in the executive branch. It has been reported in his first week, says Defense Secretary Robert Gates repeatedly argued that the detention facility at Guantanamo Bay,

Cuba, had become so tainted abroad that legal proceedings at

Guantanamo would be viewed as illegitimate.

He told President Bush and others that it should be shut down

as quickly as possible. And he was joined by Secretary Rice.

It has been reported President Bush and Attorney General

Alberto Gonzales and Vice President Dick Cheney rejected those

arguments.

So, as I think it is going to be vital to look at this from two

points of view. One is the broader view. As you put it, reconceptualize our counterterrorism strategy and strengthen it, try to repair the damage done to the relationships with the global community and our allies.

But then I would like you all to focus now on specific recommendations to this committee moving forward. I have heard a

few—a national security corps ensuring that rights that are written

on paper are implemented and enforced, and not just written down.

But what else specifically can you recommend to this committee

right now that should be changed, should be implemented, should

be adhered to?

Secretary Taft.

Mr. TAFT. My recommendation, as I said, was that we should

shut down the facility at Guantanamo. I understand the factors,

that it is mostly logistical convenience that suggests that it has advantages.

But on the whole, it seems to me that the political cost is too

high.

I do not see that there is any great difficulty in finding places

in the United States in the military facilities to house the detainees

there that we are entitled to have in custody.

I mean, I am familiar with a number of situations where, for example, when we took in the Vietnamese refugees in the late 1970’s,

we had over 100,000 people housed over a period of 8 months on

military bases.

There is plenty of room. There are facilities. We can get security.

The military can do this.

And I was in the Pentagon for eight years, so I know a little bit

about this. And it can happen.

So, logistically, it will cost some money, but it costs some money

in Guantanamo. They can do it. It will be secure. It will be safe.

And that is what we ought to do.

The cost politically is too high. And that is my recommendation

to the committee.

Mr. PHILBIN. Representative Castor, I would not recommend

abandoning Guantanamo and making that sort of change.

And I would just like to respond, and respond to your question

also, to something that you picked up on from Ms. Massimino’s earlier comments about reconceptualizing our approach to the war on

terror.

37

Part of the reason that I think closing down Guantanamo will

not achieve the intended objective of repairing relations, strained

relations, with foreign partners is that, the real criticism is not just

Guantanamo.

As Secretary Taft put it, you know, some brands become toxic.

I think the brand that is toxic is not just Guantanamo. It is not

the place.

The reason that we get criticism from our foreign partners is

that they fundamentally reject the law of war paradigm that we

are applying to the conflict with al Qaeda. They reject the idea that

we can hold people as enemy combatants for years without charging them and trying them for something.

And I do not think that we should abandon that law of war paradigm.

And to get back to what Ms. Massimino said at the beginning,

I do not think that law of war paradigm in any way empowers or

heightens or raises the terrorists that we are fighting against by

giving them some sort of legitimacy as combatants.

We have recognized that this is an armed conflict, but that our

opponents, al Qaeda, are unlawful combatants in that conflict.

They are not legitimate belligerents.

They are violating the laws of war in everything they do. It is

an unlawful armed conflict. They attack women and children. They

operate without uniforms. They do not abide by the laws of war.

And it does not in any way diminish the laws of war to treat this

as an armed conflict. What would diminish the laws of war is, in

treating this as an armed conflict, to treat them as if they were legitimate belligerents, as if they had rights as lawful belligerents.

And that is not the approach we have taken.

We have recognized that this is an armed conflict, because of the

level of hostility, the level of destruction that is involved in the attacks and the transnational attacks, but at the same time have recognized that it is a conflict carried on by unlawful belligerents who

can be prosecuted for their war crimes.

And I think that is the right paradigm and that we should not

abandon that paradigm.

Mr. KATYAL. I would fundamentally disagree with Mr. Philbin

that the idea for why Guantanamo is so offensive to the world is

because of the law of war paradigm. I do not think there are a

bunch of law professors sitting around analyzing what legal regime

applies, the law of war or law of peace.

The real problem, as Secretary Gates and Secretary Rice have

said, is that Guantanamo has become a black hole where no law

applies. The rest of the world is very concerned about that idea.

And so, that is why Britain, Australia, and all these other countries—Britain refuses to let its own citizens be tried at these Guantanamo commissions for this reason.

So, I would do three things.

First, I would move the trials to the United States. They are

high-visibility events. Second, I would restore habeas corpus to the

people at Guantanamo.

And third, I would abandon the MCA project in favor of a courtmartial review, or at the very least, take up Representative SkelVerDate 22-MAR-2001 08:52 Dec 02, 2008 Jkt 037324 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 C:\DOCS\110-51\088000.000 HAS2 PsN: HAS2
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ton’s idea about expedited review of these military commission procedures.

Ms. MASSIMINO. Thank you.

The CHAIRMAN. Do you have a comment, Ms. Massimino?

Ms. MASSIMINO. I was going to answer——

The CHAIRMAN. Go ahead.

Ms. MASSIMINO [continuing]. The congresswoman’s question, the

recommendations that I would make right now.

And they are informed by a belief that this view that there is a

stark, binary choice between the criminal justice system and war

is a trap that we have fallen into.

First, I would close Guantanamo. And I think that that will

speed up the process of repatriating the people that the United

States finds is no longer a threat.

I would try them in either regular courts-martial proceedings or

in Federal court, as we have done with many other al Qaeda terrorists since 9/11.

I would restore habeas corpus to the detainees.

I would repeal the MCA, or at the very least, fix the overly broad

definition of enemy combatant, which funnels people who have

never been considered combatants under the laws of war into this

military system.

And I would—something we have not addressed here, but should

be of great concern to this committee—I would engage very quickly

on the Administration’s current consideration of how it will interpret Common Article 3 of the Geneva Conventions, because while

that is being framed as the rules for interrogation for the CIA, essentially what that project is, right now is deciding what protections our military will have when they are engaged in non-international armed conflicts.

And that is very, very important for our people and should be of

interest to this committee.

The CHAIRMAN. I thank the gentlelady.

Dr. Gingrey, then Mr. Johnson.

Dr. GINGREY. Mr. Chairman, thank you.

First of all, let me just comment in regard to what Mr. Taft said

a few seconds ago in regard to how we dealt with the Vietnamese

refugees in Federal facilities.

I would suggest to the gentleman that Khalid Sheikh Mohammed

is a little different than Vietnamese refugees in regard to security

or for housing these enemy combatants.

I want to direct my question to Mr. Katyal first. I want to ask

the gentleman, the professor of law at Georgetown University, if he

is permitted to have any outside employment other than, I guess,

full-time faculty position. Are you able to take any consults or consultations or anything?

Mr. KATYAL. I am.

Dr. GINGREY. In regard to that response, have you ever been of

counsel or represented in any way, shape or form any of these

enemy combatants that are detained at Guantanamo Bay?

Mr. KATYAL. Yes, Representative. As my prepared statement said

and my oral statement, I represented Mr. Hamdan pro bono all the

way up to the Supreme Court of the United States and argued his

case in the Supreme Court.

39

Dr. GINGREY. Very, very interesting.

Well, thank you. I got here late, and I am sorry I did not hear

that initial testimony. I think that, certainly for this member,

sheds some additional light on maybe where you are coming from

in regard to some of your testimony that I have heard.

I do want to ask you, in regard to the issue of an alien, I think

we all know pretty much the definition of an alien—an

unnaturalized foreign resident of another country.

And I think you have spent some time this morning in your testimony trying to state that Guantanamo Bay, Cuba, is United States

territory in some way, shape, or form.

But I think you probably are aware that we lease Guantanamo

Bay from the sovereign country of Cuba. And, in fact—and I would

expect that you would know this, as well, that Castro has, in fact,

not even cashed the checks that we have submitted to him as the

lease payment on an annual basis. So, he does not even recognize

the lease as legal.

So, I just find it amazing that you could consider this United

States sovereign territory and apply the same rights to these

enemy combatant detainees that are there at Guantanamo Bay as

if they were aliens—legal or illegal—in this country or a territory

owned by this country.

Could you explain that to me?

Mr. KATYAL. Absolutely. And my position is that—it is not my

view—it is the view, I think, of the United States Supreme Court

that Guantanamo, because of the degree of American control over

the base, is, for all practical purposes—that is Justice Kennedy’s

quote from the last Supreme Court decision—United States territory. And let me explain to you why.

This is a lease unlike any other lease. I lease an apartment, and

I am sure many of your constituents do. The lease with Cuba says

that we lease this big piece of land, 45 square miles, from Cuba for

$4,000, or something, a year until both parties say the lease should

be broken—both.

So, this is effectively permanent territory of the United States,

regardless of what Mr. Castro decides to do or not.

And the fundamental point is this. Guantanamo——

Dr. GINGREY. Well, I think the fundamental point, with all due

respect, is that we would be a tenant at will in that situation.

Mr. KATYAL. Our position is that we have that lease indefinitely

and that the laws of Cuba do not apply to protect these detainees.

Neither does the Constitution of the United States.

That is different from every other parcel of land in the world.

That is why Guantanamo Bay was chosen by the Administration.

They adopted a legal theory that said, ‘‘Well, this is a place

where we have absolute control, but we do not have to follow the

laws of Cuba, because we are effectively permanent leaseholders in

this area.’’

That is why, I think, you have seen the degree of condemnation

internationally, and why Secretary Gates and Rice are reportedly

wanting to close Guantanamo——

Dr. GINGREY. Well, I appreciate your response. My time is limited, and I want to move on to the next question, because you just

40

quoted a Court precedent in regard to Justice Kennedy’s opinion on

that.

You commented just a few minutes ago in regard to restoring the

rights of habeas corpus. So, let us go to another court decision

then.

February 20, 2007, the United States Court of Appeals for the

District of Columbia decided—I think I am pronouncing this correctly—Boumediene v. Bush, that Guantanamo detainees have no

constitutional rights to habeas corpus. And I tend to agree with

that opinion.

And I further note that the Constitution clearly calls—clearly

calls—for the speech and of habeas with the existence of an invasion or a threat to public safety.

I would like, Mr. Chairman, if you will indulge me, I realize that

the time has expired, but let Mr. Katyal respond to that, if he

would.

Mr. KATYAL. I have great respect for that court, the Court of Appeals for the D.C. Circuit. I think their track record in these cases

has not been good.

The decision on February 20th is the same sort of decision as the

one they issued in 2003 on habeas corpus rights of Guantanamo detainees. It was reversed by the Supreme Court, as was that court’s

later decision about military commissions at Guantanamo Bay.

So, I would caution this body to read too much into a two-to-one

decision by that court.

The CHAIRMAN. I think I would point out to the gentleman that

it was a three-to-two decision, if I am not correct.

Mr. KATYAL. I think it is two-to-one.

The CHAIRMAN. Was it two-to-one?

It is, as I understand it, on the way to the Supreme Court. Is

that correct?

Mr. KATYAL. The Supreme Court tomorrow is scheduled to decide

in conference whether to hear that case, yes.

The CHAIRMAN. I see.

Mr. Johnson.

Mr. JOHNSON. Thank you.

The Military Commissions Act of 2006 authorized the establishment of military commissions to try alien unlawful enemy combatants. And prior to that time, there had not been that class of alien

that was recognized in law.

But with the advent of that act, we carved out, instead of a prisoner of war, now we have this second class of alien unlawful enemy

combatant.

And that was a law that was passed by the 109th Congress, that

put it into the hands of the secretary of defense, in consultation

with the attorney general, to formulate rules for the conducting of

trials of these enemy combatants.

And then at the same time, the Administration, under the leadership of the now-embattled attorney general, whose respect for notions of constitutional principles are suspect, in coordination with

the secretary of defense, who is now thoroughly discredited, they

had embarked upon this plan to establish that black hole, Guantanamo Bay, which is not subject to this legal fiction.

41

It is not subject to U.S. jurisdiction or Cuban jurisdiction—or any

other jurisdiction. And so, therefore, no rights apply—no Geneva

Convention rights, no U.S. constitutional rights. We will just decide

as we go along, and we will leave it up to the attorney general—

we will leave it up to the secretary of defense, along with the attorney general—to promulgate these rights.

And Congress has absolutely no say-so about those particular

rules that have now been established and that we are now operating on in trying these enemy combatants. Congress has not approved them. The only thing that happened was this committee

was briefed on those rules. And it was about a 45-minute briefing.

And so now, the constitutional bedrock principles that this country has been founded upon have been thrown out of the window,

and we are told to assume that the arrest and detention of any person in, say, Iraq or Afghanistan, but certainly not limited to those

two places—anywhere in the world that we decide to arrest somebody.

Then we start referring to them as terrorists, and there is no

idea of probable cause that is given to these people to challenge the

detention in advance of being charged. And, in fact, they can be

held indefinitely.

And they have been held for, as you note, Mr. Katyal, five years

or more—five years without charges, people still being held, held

incognito in Guantanamo, not able to notify family, not able to

have an attorney to represent them to contest the merits of their

detention.

And now they are being brought to trial under these principles

that have been established by the attorney general and the secretary of defense, which enable or allow for the use of coerced testimony, torture, to convict the accused. And it is held in a secret

trial.

So, my question is to Mr. Philbin.

Evidence obtained from a witness who was forced to stand up

non-stop for 20 hours is admissible in a trial of an enemy combatant. Is not that correct? Isn’t that correct?

Mr. PHILBIN. That is not clear from the rules. It would have to

be determined by a military judge in charge of the tribunal. If——

Mr. JOHNSON. And it would be the burden of—that the presumption would be that the evidence obtained in that manner was, in

fact, probative and——

Mr. PHILBIN. No, I do not think there is any presumption like

that put into the Military Commissions Act. The Military Commissions Act says that, if there is a disputed amount of coercion with

respect to some evidence, if the conduct occurred after passage of

the Detainee Treatment Act and the conduct violated the Detainee

Treatment Act, that the evidence cannot come in, period.

If it is does not violate the Detainee Treatment Act, the military

judge must find that, in the totality of the circumstances—all of the

circumstances, including everything that you have described—that

the evidence was reliable and that it had probative value.

Mr. JOHNSON. But to make that——

Mr. PHILBIN. And it would be in the interest of justice for it to

come in.

42

Mr. JOHNSON. And this would be a military judge with a military

prosecutor, with a military jury and a military defense attorney,

who could be subject to being coerced himself, as is the case with

Colonel Morris Davis, the chief prosecutor—excuse me, Major Michael Mori, the military defense lawyer—for David Hicks, the Australian, who has been accused by Colonel Morris Davis, the chief

prosecutor in the case, with possible prosecution himself.

Mr. PHILBIN. If I understand it, there are rules in place for the

military commissions, just as there are the same rules that would

apply in the court-martial system. That if there is influence by a

superior—improper influence to try to pressure one of those on the

defense counsel—that that is a violation of the UCMJ, and that the

person who applied that pressure improperly could be prosecuted

for that.

Mr. JOHNSON. Well, let me ask you this.

Mr. PHILBIN. The same protection would apply. And I would like

to——

Mr. JOHNSON. Let me ask you this question.

Mr. PHILBIN. I would like to respond to some of the earlier parts

of your question, if I may, Representative.

Mr. JOHNSON. Let me just ask you this question, because I am

out of time.

Mr. PHILBIN. You are——

Mr. JOHNSON. Do you have any information as to whether or

not—or can you guarantee the international community that

Khalid Sheikh Mohammed was not subjected to torture prior to his

confession?

Mr. PHILBIN. I cannot make personal guarantees. The President

of the United States has said——

Mr. JOHNSON. I think that is the problem that we have with this

entire——

Mr. PHILBIN. You want me to answer your question, sir? The

President of the United States——

Mr. JOHNSON [continuing]. Because it does not hold us in good

regard to the public.

Mr. PHILBIN [continuing]. Says that we do not torture. It is the

policy of the United States that we do not torture. The United

States has never conducted——

Mr. JOHNSON. But we allow other countries to torture. We will

allow people in other countries to torture, and then we will leave

it up to the judge to decide whether or not that information is relevant, probative, or whether or not it is——

Mr. PHILBIN. Not that I am aware of, sir.

And I would like to go back to some of the earlier part of your

question, because it contained a number of misstatements.

You said that the Military Commissions Act allows military commissions to admit evidence obtained by torture. That is explicitly

prohibited by the Military Commissions Act.

Mr. JOHNSON. Well, it is prohibited in terms of the person who

is charged.

The person who is accused, if they were tortured, then evidence

derived from that torturous conduct would be excluded, correct?

Mr. PHILBIN. I believe that the statement in the Military Commissions Act is that statements obtained by torture are prohibited.

43

Mr. JOHNSON. Well, let me read it to you.

The CHAIRMAN. I thank the gentleman. Do you have a—do you

wish to complete your question, Mr. Johnson?

Mr. JOHNSON. Yes.

The CHAIRMAN. Please proceed. We are going to try and get the

next two members before we break to go vote.

Mr. JOHNSON. Yes. The military code of—MCA allows for the admission of hearsay testimony—or excuse me—it allows for the use

of torture testimony, so long as that torture was not against the individual who is standing trial.

But statements that were obtained through cruel, inhumane or

degrading treatment that does not amount to torture is admissible.

And it is not defined. Torture is not defined.

But that kind of evidence is admissible under certain circumstances. And so, we have some problems with this legislation,

insofar as the use of information derived from torture. And that is

the point that I want to make.

The CHAIRMAN. Sir, do you have an answer?

Mr. PHILBIN. Yes. I believe that the representative’s characterization of the Military Commissions Act is incorrect. The Military

Commissions Act prohibits the admission of any statement obtained by torture, whether it is a statement of the accused or a

statement of any other person, and as consistent with the United

States obligations under the Convention Against Torture.

And just to go back to some of the earlier statements the representative may have——

Mr. JOHNSON. Torture is not defined, though, is it?

Mr. PHILBIN. Torture is explicitly defined in the Convention

Against Torture and in the United States statute.

The CHAIRMAN. I thank the gentleman.

We are going to squeeze in the next two, Mr. Wilson and Mr.

Sestak, and then we will end the hearing.

We will have to vote shortly.

Mr. Wilson.

Mr. WILSON. Mr. Chairman, thank you very much.

And we do have votes, but I would like to make an observation.

I have visited Guantanamo Bay twice. I have the background of

seeing a first class detention facility. I served on the Corrections

and Penology Committee in the State Senate of South Carolina for

a number of years.

I know prisons inside and out, not from having been placed

there, but having visited and asking questions. Additionally, I was

the chairman of our county law enforcement advisory committee

working with the detention facility.

In my visit to Guantanamo Bay, I saw a first class facility with

trained personnel, professionals, who were well treating the detainees, and in particular, it was very impressive to me—giving the

highest respect for all religious observances.

I was surprised on my visits to find there, that these alien detainees from the battlefield were highly educated people, highly

trained people to commit mass murder. It was extraordinary to me

to find out that such people indeed are enthusiastic in their efforts

to want to harm the people of the United States.

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I also found out that the interrogation produced information on

overseas cells of terrorists in Europe, Asia, the United States.

We found out their training ability, the extraordinary financing

capability they had. These are not poor people. These are very

wealthy people, who have every intent to kill the people of the

United States.

We found out their methods of operation. And indeed, I believe

that Guantanamo Bay and the interrogation has saved thousands

of lives.

I also have a background—I was 28 years as a judge advocate

general in the Army National Guard. And so, I have worked very

closely with the court-martial system. And I respectfully disagree

with any thought that we would provide our constitutional benefits

to people worldwide.

And so, I respect the view of the congresswoman from California.

Indeed, I believe that military commissions protect American families.

And very important, Chairman Skelton, when this issue came up

previously, stated our first goal is to protect American troops.

And I really want to see a system in place that does that.

Mr. Chairman, I yield the balance of my time.

The CHAIRMAN. Thank you very much.

Mr. Sestak. You are recognized. And then we will close the hearing.

Mr. SESTAK. Thanks, Mr. Chairman.

Mr. Philbin, I just had a couple of quick ones.

What are the consequences, and particularly security, if any, of

transferring detainees from Guantanamo Bay to America? Maybe

you have already answered this.

Mr. PHILBIN. I addressed it to some——

Mr. SESTAK. I am sorry, to comment on the United States.

Mr. PHILBIN. I addressed it to some extent in my written testimony. And, of course, I am not an expert on this. I think that members of the military from DOD could give you a more precise answer.

But my understanding is there are obvious security issues. You

have 273 enemy combatants held at Guantanamo now, who

through multiple screenings have been determined to be a continuing threat, that if they were released they would return to the fight

to try to kill Americans.

To bring them to the United States, you have either got to distribute them around to a bunch of different military facilities, because no one facility right now has the capacity for them, in which

case you have to increase the security at each of those.

I visited the Naval consolidated brig at Charleston, South Carolina, where Jose Padilla is housed. It is not a very large facility.

Some could be housed there, but you would have to increase the

security, and it is right near a population center.

Any place that you put some of these detainees, particularly, I

think, if you put them all in one spot—which is what would be

helpful for continuing the intelligence mission that goes on now at

Guantanamo—you make it a huge target for any potential terrorist

attack that al Qaeda could mount in the United States.

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Mr. SESTAK. What would the concern be for the supermax prison

at Florence, in Florence, Colorado, today, where we have terrorists

kept?

Mr. PHILBIN. I do not think it——

Mr. SESTAK. Are they—do you happen to even know if Florence,

Colorado, is on a potential terrorist list?

Mr. PHILBIN. I do not——

Mr. SESTAK. I mean, you know, the vulnerability list that we

keep?

Mr. PHILBIN. I am sorry, I do not know that. And I think that

it would be a different situation from supermax. We have got

Ramsey Yousef and a few other terrorists to transporting several

hundred and concentrating them at one site, particularly where

these would be the comrades in arms of the actual people who are

still out there.

Mr. SESTAK. May I ask you, if you can tell me—and we only have

a moment or two.

In regard to the most important changes you would like to see

in the Military Commissions Act that this Congress could make,

and particularly hearsay evidence, what would it be?

Ms. MASSIMINO. Well, if you are asking, Mr. Sestak, about the

military commission rules themselves, there is a long list of defects,

and I go through them in my testimony.

Mr. SESTAK. Could you speak to the hearsay?

Ms. MASSIMINO. Yes. The biggest concern, frankly, that we have

about the current hearsay rules is that they will provide a means

for a backdoor way for there to be the admission actually of evidenced obtained through torture, frankly.

And that, because of the restrictions that are in there of preserving the classified nature of sources and methods, the problem we

have is that the operation of the hearsay rule and the classified

evidence rule will mean that the protections against the admission

of coerced testimony, evidence obtained through cruel, inhumane

and degrading treatment will end up coming in, despite the characterization, which was correct, of Mr. Philbin of the protections

against the admission of that kind of evidence into military commissions.

Mr. SESTAK. Mr. Katyal, do you have a comment on that?

Mr. KATYAL. Maybe I will just defer to Secretary Taft, who has

spoken on the hearsay rules.

Mr. SESTAK. Mr. Taft.

Mr. TAFT. Congressman, my concern about the hearsay rule is

simply that it is inconsistent with our approach embodied in the

Sixth Amendment of the right to confront a witness. A hearsay witness is not under oath, he is not on the record, he is not there, he

cannot be subject to cross-examination.

Such testimony should be excluded. It is not a——

Mr. SESTAK. Mr. Taft, would you——

Mr. TAFT. It is not improper——

Mr. SESTAK. I understand.

Mr. TAFT [continuing]. To say, to want to have a different rule.

Mr. SESTAK. But do you think that the hearsay evidence that

was submitted at the International Criminal Tribunal for the

former Yugoslavia, are they doing it wrong to do that?

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Mr. TAFT. They have a very different——

Mr. SESTAK. Or is there some sort of structure——

Mr. TAFT. No, I do not——

Mr. SESTAK [continuing]. That we could take from that to consider?

Mr. TAFT. No, they have a very different system in that tribunal.

Also in the Rwanda tribunal, and indeed, in national courts in Europe. Hearsay is admitted there because of the whole different

structure that they have for conducting criminal trials, where the

judge and the prosecutor play very different roles from what our

system is.

And we have not adopted it in our own civilian criminal trials,

and I do not think we should be adopting it here.

The CHAIRMAN. There is a vote on.

I thank the gentleman.

Without objection, the letter dated March 8th this year from certain civil rights and religious organizations, is submitted into the

record.

[The information referred to can be found in the Appendix on

page 136.]

The CHAIRMAN. I thank the witnesses very, very much. I am

sorry we have to close the hearing, because there is a vote pending.

Thank you. Adjourned.

[Whereupon, at 12:42 p.m., the committee was adjourned.]

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