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i 

67–391 2011

[H.A.S.C. No. 112–42] 

GUANTANAMO DETAINEE TRANSFER 

POLICY AND RECIDIVISM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT 

AND INVESTIGATIONS 

OF THE

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD 

APRIL 13, 2011 
(II) 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

ROB WITTMAN, Virginia, Chairman 

K. MICHAEL CONAWAY, Texas 

MO BROOKS, Alabama 

TODD YOUNG, Indiana 

TOM ROONEY, Florida 

MIKE COFFMAN, Colorado 

JIM COOPER, Tennessee 

ROBERT ANDREWS, New Jersey 

LORETTA SANCHEZ, California 

COLLEEN HANABUSA, Hawaii 

MICHELE PEARCE, Professional Staff Member 

PAUL LEWIS, Professional Staff Member 

FAMID SINHA, Staff Assistant 
(III) 

C O N T E N T S 

CHRONOLOGICAL LIST OF HEARINGS 

2011 

Page 

HEARING: 

Wednesday, April 13, 2011, Guantanamo Detainee Transfer Policy and Recidivism ....................................................................................................................... 1 

APPENDIX: 

Wednesday, April 13, 2011 ..................................................................................... 17 

WEDNESDAY, APRIL 13, 2011 

GUANTANAMO DETAINEE TRANSFER POLICY AND RECIDIVISM 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

Wittman, Hon. Rob, a Representative from Virginia, Chairman, Subcommittee 

on Oversight and Investigations ......................................................................... 1 

WITNESSES 

Fried, Ambassador Daniel, Special Envoy for the Closure of the Guantanamo 

Bay Detention Facility, U.S. Department of State ............................................ 3 

Lietzau, William K., Deputy Assistant Secretary of Defense for Detainee 

Policy, U.S. Department of Defense ................................................................... 2 

APPENDIX 

PREPARED STATEMENTS: 

Fried, Ambassador Daniel ............................................................................... 34 

Lietzau, William K. .......................................................................................... 25 

Wittman, Hon. Rob ........................................................................................... 21 

DOCUMENTS SUBMITTED FOR THE RECORD: 

[There were no Documents submitted.] 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

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

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

Mr. Wittman ..................................................................................................... 47 

(1) 

GUANTANAMO DETAINEE TRANSFER POLICY AND 

RECIDIVISM 

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, Washington, DC, Wednesday, April 13, 2011. 

The subcommittee met, pursuant to call, at 4:00 p.m., in room 

2118, Rayburn House Office Building, Hon. Rob Wittman (chairman of the subcommittee) presiding. 

OPENING STATEMENT OF HON. ROB WITTMAN, A REPRESENTATIVE FROM VIRGINIA, CHAIRMAN, SUBCOMMITTEE ON 

OVERSIGHT AND INVESTIGATIONS 

Mr. WITTMAN. All right, folks, I think everybody is situated, so 

we will get started, in the interest of time. I appreciate everybody’s 

efforts to accommodate us in today’s busy schedule, but I want to 

make sure that we are respecting everybody’s time. 

I want to welcome everybody to the Oversight and Investigations 

Subcommittee hearing on the U.S. Government’s Guantanamo detainee transfer policies and procedures and the reengagement of 

some former detainees in terrorist activities. 

Earlier today, our subcommittee members received a classified 

briefing on these issues from our invited guests in a closed session; 

and we will examine these issues further now in an open hearing. 

I am going to enter my opening remarks for the record and dispense with those in the interest of time. 

[The prepared statement of Mr. Wittman can be found in the Appendix on p. 21.] 

Mr. WITTMAN. But before introducing our witnesses, I ask unanimous consent that non-subcommittee members, if any, be allowed 

to participate in today’s hearing after all subcommittee members 

have had an opportunity to ask questions. Is there any objection? 

Without objection, non-subcommittee members will be recognized 

at the appropriate time for 5 minutes. 

Our witnesses today are Mr. William Lietzau, Deputy Assistant 

Secretary of Defense for Detainee Policy; Ambassador Daniel Fried, 

Special Envoy for the Closure of Guantanamo Bay Detention Facility, Department of State; Mr. Ed Mornston, Director of Joint Intelligence Task Force, Defense Intelligence Agency; Ms. Corin Stone, 

Deputy Assistant Director of National Intelligence for Policy and 

Strategy, Office of the Director of National Intelligence; and Mr. 

Brad Wiegmann, Principal Deputy Assistant Attorney General, National Security Division, Department of Justice. 

I want to welcome you all and thank you for your participation. 

As we previously arranged, only Mr. Lietzau and Ambassador 
2 

Fried will make brief opening statements; and their written testimony, without objection, will be made part of the record. We look 

forward to Mr. Mornston, Ms. Stone, and Mr. Wiegmann responding to questions from the subcommittee members. 

I also want to remind my colleagues that we will use our customary 5-minute rule today for questioning, proceeding by seniority 

and arrival time. 

Mr. Lietzau, let’s start with you; and then we will proceed to Ambassador Fried. Thank you very much. 

STATEMENT OF WILLIAM K. LIETZAU, DEPUTY ASSISTANT 

SECRETARY OF DEFENSE FOR DETAINEE POLICY, U.S. DEPARTMENT OF DEFENSE 

Mr. LIETZAU. Chairman Wittman, thank you for the opportunity 

to be here. 

In order to take this job, I retired from the Marine Corps after 

more than 27 years of service, and I did so because I recognize the 

vital importance of this issue to our warfighting efforts and to our 

broader national security interests. For that same reason, I welcome your investigation and this opportunity to discuss our detention and transfer policies. 

Since its creation, the Office of Detainee Policy has worked closely with the House Armed Services Committee to develop durable 

detention policies that conform with our domestic and international 

legal obligations, uphold our national values, and protect and further our national security interests. Together, we have learned that 

there are many challenges when dealing with the complexities of 

detention in a 21st-century, asymmetric armed conflict. 

In the first days of this administration, the President issued 

three executive orders that set forth a robust agenda to develop a 

more sustainable detention policy that reflects our values. Besides 

directing Guantanamo’s closure, a policy to which the administration remains committed, the President ordered a comprehensive review of detainees remaining at the detention facility to determine 

the disposition most appropriate to each individual. This review, 

concluding in January 2010, involved a task force of senior officials 

from across the government. The recently signed executive order 

builds on this effort by providing a periodic review for covered detainees that again looks to the interagency for unanimous agreement on any decision to transfer. 

It is important to remember that a determination that a detainee 

is approved for transfer does not necessarily result in immediate 

departure from Guantanamo. The transfer designation flowing 

from the earlier Justice Department coordinated task force review 

or from a future periodic review board is only the first step in a 

process. 

Finding for a detainee a suitable location from both a security 

and humane treatment perspective is a delicate and difficult task. 

For that reason, Special Envoy Dan Fried and I co-chair an interagency process where we carefully assess all information related to 

transfer modalities and any new information arising since the task 

force review identified the detainee as a transfer candidate. 

Providing a context in which transfers fit, I note that they should 

not be viewed merely as a means towards the end of closing Guan-
3 

tanamo Bay. A transfer process is a necessary component to any 

law of war detention regime. Traditionally in war, militaries capture and detain individuals to mitigate the threat they pose in the 

ongoing conflict. Modern armed conflicts with transnational terrorist organizations severely complicate this effort. Membership is 

difficult to determine, and the scope of the conflict is difficult to define. 

Because of these complicating factors, over the years the Department has developed and refined a series of processes in Afghanistan, Iraq, and Guantanamo Bay, each of which is designed to protect our warfighters by removing threats from the battlefield, while 

ensuring that the United States does not detain someone longer 

than necessary. 

We must carefully weigh the costs and benefits of continued detention in our counterterrorism fight. Just as we do with prisoners 

of war in a more traditional armed conflict, we acknowledge that 

the threat detainees pose change over time. We cannot simply put 

belligerents back on the battlefield, but the absence of process to 

assess whether the threat warrants continued detention comes at 

significant cost in the cooperation and respect of allies and partners. 

To address these very complex matters, we must have a framework that is principled, credible, and sustainable. By principled, I 

mean it must provide fair and humane treatment to each detainee, 

including a process by which we can distinguish between a belligerent who poses a significant threat and one whose detention is no 

longer necessary. In order to be credible, this framework must advance the law in a way that imbues the entire system with legitimacy. 

Finally, the sustainability of such a framework depends not only 

on its principled nature and its credibility but on its ability to address the realities of 21st-century warfare. No review system will 

be perfect. We must be able to guard against belligerent reengagement, while still allowing for the full spectrum of transfer or prosecution options as alternatives to prolonged detention. 

The Department stands ready to work with Congress to further 

the requirements of a principled, credible, and sustainable detention policy. Thank you for your continued support, and I look forward to your questions, Mr. Chairman. 

[The prepared statement of Mr. Lietzau can be found in the Appendix on p. 25.] 

Mr. WITTMAN. Thank you, Mr. Lietzau. Ambassador Fried. 

STATEMENT OF AMBASSADOR DANIEL FRIED, SPECIAL ENVOY 

FOR THE CLOSURE OF THE GUANTANAMO BAY DETENTION 

FACILITY, U.S. DEPARTMENT OF STATE 

Ambassador FRIED. Chairman Wittman, thank you for the opportunity. I welcome the chance to offer background to this important 

and complex issue. 

Working closely with our interagency colleagues, the State Department has been involved in negotiations for the transfer of 67 

detainees to foreign countries during this administration. This includes the transfer of 40 detainees to third countries, that is countries of which they are not nationals. We also follow the progress 
4 

of former detainees, particularly these detainees resettled in third 

countries. 

The detention facilities at Guantanamo are modern and humane; 

and the men and women who run them are serious, capable professionals. Nevertheless, my years of working on this issue directly in 

this administration, indirectly in the last one, lead me to believe 

that the closure of the Guantanamo detention facility is in our national interest. 

The facility’s existence does more to harm than improve our security. Indeed, for many years, the facility has constituted a net liability for our Nation and the world. 

Transferring detainees from Guantanamo and expressing the objective of closing it are not new. In 2006, President Bush publicly 

expressed his desire to close the facility; and the previous administration transferred 537 detainees from Guantanamo, including 198 

to Afghanistan, 121 to Saudi Arabia, 50 to Pakistan, and 14 to 

Yemen. These transfer efforts were publicly known but generated 

neither much credit for the prior administration nor much controversy. 

By January 20, 2009, there were 242 detainees at Guantanamo. 

Many already had been approved for transfer, and 20 had been ordered released by Federal courts. Our allies and partners were calling for action to close Guantanamo. 

President Obama signed Executive Order 13492, which directed 

a comprehensive review of all remaining Guantanamo detainees 

and the closure of the facility. The Guantanamo Review Task Force 

and higher-level review panel established under the executive 

order reviewed 240 detainees. Decisions required unanimity among 

all the agencies represented on the task force. 

Of the 240 detainees reviewed, 36 were referred for prosecution, 

either in Article III courts or military commissions; 30 from Yemen 

were designated for ‘‘conditional detention’’ because of the deteriorating security environment in that country, meaning that they 

could be repatriated if security conditions in Yemen improved; 48 

were determined to be too dangerous to transfer but not feasible 

for prosecution, and thus were designated for longer-term detention 

under the Authorization for Use of Military Force passed by Congress after the 9/11 attacks; and 126 were approved for transfer. 

My office focused on the 126 detainees approved for transfer. 

These included, first, detainees who could in theory be repatriated 

to their country of origin. This included 35 Yemenis approved for 

transfer before security conditions in Yemen further deteriorated, 

and that is by far the largest national group of detainees remaining 

at Guantanamo. In working on repatriations, my office built on the 

experience of the previous administration. 

The second group approved for transfer included 57 detainees 

who could not be returned to their countries of origin due to treatment concerns, and who therefore required resettlement in third 

countries. As a matter of longstanding policy both in this administration and the previous one, the United States does not send any 

detainee to a country where it is more likely than not that he will 

be tortured. This is consistent with U.S. implementation of its obligations under Article III of the Convention Against Torture. We 

take this obligation seriously. 
5 

Because of the difficulty in finding countries willing to accept detainees not their nationals but also capable of mitigating whatever 

risk the detainee may pose, the bulk of my office’s work focused on 

third-country resettlements. These are labor intensive. 

Each resettlement is individually tailored to the country and detainee concerned. We created solid channels of information sharing 

with potential receiving governments about detainees eligible for 

resettlement; we developed security assurances appropriate to the 

detainee; and we encourage measures to facilitate the former detainees’ successful reintegration into the receiving country. 

We found that receiving governments approached detainee settlement with care and caution. They took their own security as seriously as we take ours. Often, it would take many months to conclude a single resettlement. The time and care invested were worth 

it. 

Our work does not end with the detainee transfer. We follow up 

with receiving governments to know how the resettlement is going, 

both to learn lessons and to determine where there are issues that 

need addressing. So far, our experience has been generally positive, 

though a number of issues, more related to integration than security, have developed. 

We are alert to the potential for reengagement. The interagency 

Guantanamo Detainee Transfer Working Group consults regularly 

and in real time, when appropriate, on issues that arise. 

Of the 126 detainees cleared for transfer, 59 remain at Guantanamo. Twenty-seven of these are Yemenis, and we are not planning 

to repatriate any, absent a court order, until the security situation 

there improves. The remaining 32 are candidates for either repatriation or resettlement, and we continue to assess each potential 

transfer case by case, and my office works on a daily basis with 

members of the working group about this process. 

My office has also the responsibility to help inform the Congress 

about detainee transfers. In that regard, some of the Guantanamorelated reporting requirements, such as the 15-day advance notification of all transfers, have facilitated this flow of information. On 

the other hand, new certification requirements on the transfer of 

detainees to foreign countries interfere with executive branch authority and hinder our ability to act swiftly and with flexibility during negotiations with foreign countries. Flexibility is vital to developing an arrangement that best addresses U.S. national security. 

The Guantanamo Bay detention facility has raised controversy 

and concern since it opened. Closing it remains in the national interest, but doing so raises complex and difficult legal, diplomatic, 

and security questions and choices. It is worthwhile discussing 

these and seeking sound solutions. 

For too long, the debate about Guantanamo has been polarized 

and, frankly, prone to extreme positions. As President Obama said 

in his 2009 speech at the National Archives, we seek to do what 

is right over the long term. We can leave behind a legacy that endures and protects the American people and enjoys a broad legitimacy at home and abroad. 

I hope these remarks and this whole process will help demystify 

the careful work that goes into transferring Guantanamo detainees 

abroad, and I look forward to your questions. Thank you, sir. 
6 

[The prepared statement of Ambassador Fried can be found in 

the Appendix on p. 34.] 

Mr. WITTMAN. Thank you, Ambassador Fried. We appreciate you 

and Mr. Lietzau’s opening comments there, and we will continue 

on with the hearing. 

I want to welcome Mr. Andrews here and offer to him, if he 

would like to enter a statement into the record or to make one for 

the opening, we are open for doing that. 

Mr. ANDREWS. Mr. Chairman, I would just reserve Mr. Cooper’s 

right to do that in the future should he want to before the record 

closes. 

Mr. WITTMAN. Without objection. 

All right, we will move then to questioning, and I will begin the 

questioning. I will begin with Ambassador Fried. 

I wanted to know, are there regions or nations that are more 

likely to accept transferees from Guantanamo than others? And, if 

so, why or what are the specifics that they look at in whether or 

not they will accept detainees? 

Ambassador FRIED. If you are referring to resettlements, that is, 

accepting detainees not their nationals, it has been principally European countries who have been the most responsive. 

Now, it is also true that when we look for countries we look for 

countries that are both willing to accept detainees but also capable, 

that is, have the capacity to mitigate any risk that the detainee 

may pose. So that number of countries quickly drops. But European countries have been very helpful, though not only European 

countries. In working for resettlements abroad, we do keep in mind 

the country’s capacity and the nature of the detainee. 

Mr. WITTMAN. Very good. Are there reimbursements or payments 

that are made to nations or certain nations in exchange for resettlement of these detainees? 

Ambassador FRIED. Yes, sir. Some countries—not—fewer than 

half the countries—but some countries have asked for and we have 

offered, I would say, defraying of some of their costs. These 

amounts have been reported to the Congress. The amounts are 

classified, but let me say that the greatest amount was under—per 

detainee, was under $100,000. So, yes, and I am happy to provide 

the details. 

Mr. WITTMAN. Very good. And one last question. If you can tell 

us a little bit about the due diligence that goes into place to determine what surrounds a detainee being sent to a country, whether 

it is resettlement or whether it is another set of conditions, if you 

can let us know a little more of the specifics about that. 

And then I know there has been some concern about detainees 

going back to some of the countries that are war-torn and have 

dealt with extremism and give us some of your thoughts about 

those particular transfers that have taken place with those countries. 

Ambassador FRIED. I have to be very careful in an open session, 

so I will watch my words. And there is more to say in a closed session, and I am willing to keep working with the committee and 

with your staff, sir. 

With respect to resettlements, countries that agree to accept a 

detainee are taking on a responsibility to help that detainee find 
7 

a new life and also a responsibility for security. We have found 

that governments have put in a lot of effort to making detainee resettlements successful. Language training, housing, vocational 

training, medical help, sometimes psychological help are all elements of this. 

When we discuss with a prospective receiving country a resettlement, we do want to know in advance what the resettlement will 

look like and in some detail. We also follow up with governments 

to find out how it is going. Our experience with resettlements has 

generally been positive, as I said. 

Repatriations are rather different. Repatriations, of course, mean 

the countries are going—detainees are going back to their country 

of origin. In the previous administration, they did so in rather 

large numbers, as I said. In this administration, we became cautious about repatriations, particularly to Yemen as the security situation deteriorated. 

This was not, I should add, a break with the previous administration. The caution had started in I think the last year or so of 

the prior administration, and we continued it. And, of course, 

President Obama suspended all repatriations to Yemen in early 

2010. 

The challenges of a successful and secure repatriation to countries where there is conflict is obviously greater, and we benefit 

from DIA’s [Defense Intelligence Agency] analysis greatly in making these determinations. 

I should also say, as a final point, that there are very few detainees cleared for transfer, either resettlement or repatriation, who 

are nationals of Afghanistan or Saudi Arabia. So that problem is 

a small one, simply due to the numbers—the remaining problem is 

small due to the numbers. 

Mr. WITTMAN. Thank you, Ambassador Fried. Mr. Andrews. 

Mr. ANDREWS. Thank you, Mr. Chairman. I thank the witnesses 

for your testimony. 

Ambassador, your statement is very factual and very helpful. I 

just want to walk you through it to be sure I understand it correctly. 

Prior to the present administration taking office, 537 detainees 

were transferred from Guantanamo, is that correct? 

Ambassador FRIED. Yes, sir. 

Mr. ANDREWS. And then on the day the administration took office, there were 242 detainees. Only 240 were included in the executive order because one had already been convicted and sentenced 

and the other committed suicide, is that correct? 

Ambassador FRIED. Yes, sir. 

Mr. ANDREWS. Now we are down to 240. And of that 240, your 

focus is on the 126 detainees that were approved for transfer, correct? 

Ambassador FRIED. Correct. 

Mr. ANDREWS. Let me understand. What is the substantive basis 

for the decision to transfer someone out? I am sure there are different rationales, but what is the basis for that decision? 

Ambassador FRIED. The decisions on transfers were made by the 

review panel that was set up pursuant to the President’s executive 

order. And this was an interagency group. Its decisions had to be 
8 

unanimous. That is, if there was no unanimity, there was no decision to transfer. 

The group, the review panel, met weekly under the chairmanship 

of the Department of Justice. It reviewed files of detainees which 

provided the background of each detainee. The principal criterion 

was security. That is, could a detainee be transferred out of Guantanamo into conditions where any remaining threat that detainee 

represented be mitigated in the country to which he was going? 

That was the principal consideration. 

Mr. ANDREWS. Was there any like probable cause determination 

made of innocence or guilt of the person? Presumably—I am sorry, 

presumably, these people were detained in the first place because 

there was some degree of suspicion that they had either participated in some act of violence against the United States or perhaps 

were a great threat to. Were those concerns alleviated before the 

people were transferred? 

Ambassador FRIED. I will defer at some point to my Department 

of Justice colleague, but since I sat on the review panel, I can answer some of this. 

After 2008, detainees had access to the habeas process in Federal 

courts; and one of the criteria that the review panel was supposed 

to use was the legal basis for detention. In other words, we were 

allowed to—in fact, instructed to look at this. But when we were 

looking at the detainees, the principal criterion was the threat that 

this detainee might represent and whether that detainee should be 

detained or could be transferred into a situation where there was 

any residual threat could be mitigated. 

Mr. ANDREWS. Let me ask you this question about no particular 

case, because it would be unwise to ask or have you comment. But, 

hypothetically, if a determination were made that a detainee had 

likely participated in some act of violence against the United States 

but there was a determination that for some reason the person 

wasn’t likely to do it again or wasn’t somehow a threat, would the 

person be detained or shipped out? 

Ambassador FRIED. It was exactly these sorts of considerations 

that occupied the time and discussions of the review panel. We 

looked at everything we had in front of us; that is, the detainee’s 

background, the degree of commitment to his struggle against the 

United States, the likelihood—the severity of his involvement, and 

the likelihood that he would reengage. 

Mr. ANDREWS. Can I just ask you this, though, as a rhetorical— 

and it is not meant to be a rhetorical question, frankly, but if we 

thought there was any reasonable grounds to think the person had 

committed an act of violence against the United States, why would 

we ever release any of these people? 

Ambassador FRIED. The review panel took a look at the totality 

of the detainee. All of its decisions were unanimous. And, of course, 

the Joint Chiefs of Staff, the Defense Department, Intelligence 

Community were sitting on the panel, as well as the State Department, Department of Justice, and Homeland Security. We certainly 

did take into account any credible information in the file about a 

detainee’s involvement. 

I am not talking about particulars, but I want to give you a sense 

of the sorts of factors we had to consider. Was the detainee actually 
9 

ever in combat? Did the detainee participate in a terrorist act? Did 

the detainee participate in training but never actually did anything? Did the detainee not even participate in training? 

In other words, you had a variety of factors, and we made decisions based on the background of the detainee. But the question 

you posed, that is, did the detainee fight against American forces, 

was a major consideration. 

Mr. ANDREWS. But not a dispositive consideration? 

Ambassador FRIED. Without going back into the files, each and 

every one, I don’t want to make categorical statements, but I would 

say it was an important consideration. 

And, as I said, many detainees were not in the fight at all. They 

had had—I am not talking about any particular detainee—but 

maybe 2 weeks of training, never did anything, picked up while 

fleeing. No terrorism, no attacks on the U.S., not much of a history 

of commitment. 

But there were other detainees. 

Mr. ANDREWS. Thank you, Mr. Chairman. 

Mr. WITTMAN. Thank you. Mr. Conaway. 

Mr. CONAWAY. Thank you, and I apologize to the witnesses I 

didn’t hear. 

But, Ambassador, I am struck, having been in this thing since 

2005, that all of those folks who could have been released with the 

least amount of risk were in the 537 and that we had whittled this 

thing down to 242 really bad guys. 

Now this whole conversation has been held in a very sterile environment. We say ‘‘resettlement,’’ we say ‘‘detainees,’’ you say ‘‘it is 

the struggle against the United States.’’ That belies how dangerous 

these folks may very well be to this country, without getting to specifics on this thing. 

The other thing that occurs to me is your open bias against 

Guantanamo Bay colors your judgment as to whether or not these 

guys should be let go. Because one way to get rid of them is to let 

them go into resettlement, whatever that phrase means. And somehow if you could visit with us about how your bias to close Guantanamo Bay but for the greater good did not influence your decisionmaking when it came to looking at these guys who are the worst 

of the worst. 

If our review system, which all of these detainees have gone 

through multiple, multiple assessments as to who they are, what 

they are, what they did, and what they didn’t do since they were 

detained, at least since 2005 when I came into the Congress, how 

we wound up keeping the shopkeeper or the farmer who got swept 

up on the battlefield by accident, how any of those were in the 242. 

So it is a little troubling about how cavalier and how sterile this 

conversation is. These are bad guys who either did or want to hurt 

Americans and may very well want to again. Their recidivism rate 

is high enough among the ones we did let go, even under the Bush 

administration, that it gives all of us involved in that idea or in 

that process great pause that, one, we make a mistake, a grievous 

mistake and let somebody go that we shouldn’t, and they turn 

around and hurt one of our young men and women in this fight. 
10 

So can you visit with me a little about my perception that, because you are so driven to close Guantanamo Bay, that that helped 

you with your decision as to who to let go? 

Ambassador FRIED. Of course, it is the policy of this administration that Guantanamo should be closed. It isn’t a personal policy. 

I happen to agree with it. 

But it was also—— 

Mr. CONAWAY. It turned into a personal policy. It is weird that 

you would—— 

Ambassador FRIED. No, no. 

Mr. CONAWAY. Well, I don’t want to be argumentative. Never 

mind. 

Ambassador FRIED. President Bush also said he wanted to close 

Guantanamo. 

Mr. CONYERS. We all want to, but whether or not we can is the 

issue. 

Ambassador FRIED. But, to be clear, the administration’s policy 

includes long-term detention for detainees who are deemed too dangerous to be released; and we believe—the administration believes 

that that is legal, justified, and prudent. 

You mentioned that the 242 that were at Guantanamo were the 

worst of the worst, the most dangerous. I believe you said that. 

Mr. CONAWAY. You would expect that given the process—— 

Ambassador FRIED. In some cases, that is certainly true. That is, 

the most dangerous detainees at Guantanamo are still at Guantanamo, and they were not let out under the previous administration. 

They are not going to be let out under this one. 

However, in some cases, the detainees—in other words, some of 

the detainees in that group of 242 were not more dangerous. They 

were not let out not because of any particular danger that they 

posed but because they could not be sent back to their country of 

origin. 

For example, when in January 2009, there were 17 Uyghurs— 

that is a Turkic people, Chinese minority. They could not be sent 

back to China because of treatment concerns. They had been ordered released by U.S. courts, and there were no countries willing 

to take them. One of the jobs of my office was to find countries willing to take them, and we did so. 

Other detainees, for example, Syrians, Egyptians, Uzbeks, could 

not be sent back to their countries of origin. 

Mr. CONAWAY. I understand that. Excuse me, my time is about 

to expire. 

I also understand that there is a group there we all agree never 

gets let out, and then there is the rest. So the further down that 

food chain you go to get to that group that we never let out, the 

risks increase. 

I have got good confidence in you. You have let go all the 

Uyghurs and the folks who don’t—but as you close on that number 

of folks who should not ever be let go, then you run the risk of letting somebody go that shouldn’t be. 

So you really didn’t address whether or not your personal bias 

and/or the administration’s bias to close Guantanamo had an effect 

on letting people go that shouldn’t have been let go. 
11 

Ambassador FRIED. I will answer that straight up. Absolutely 

not. I am perfectly comfortable and was perfectly comfortable on 

the review panel with decisions not to transfer detainees. That is 

part of the process. That is perfectly legitimate. That is a perfectly 

legitimate, justified decision. If it is a question of security and it 

is a judgment of the review panel that someone should remain at 

Guantanamo for security reasons or remain in detention for security reasons, that is a legitimate, valid call, fully supported. 

Mr. WITTMAN. Thank you. Mr. Coffman. 

Mr. COFFMAN. Thank you, Mr. Chairman. First of all, I just want 

to say that what we have is a politically driven failed policy and 

really maybe by both administrations. But certainly in 2000 I think 

the decision—when was the decision not to put any more prisoners 

in Guantanamo Bay? When was that decision made? 

Ambassador FRIED. It was 2006 or 2007. The last administration. 

My colleague may know. 

Mr. LIETZAU. The last detainee went in 2008. But certainly if you 

track how the detainees went in, there was a waning before that, 

making it clear that there was an intent to not put anyone there 

if you could avoid it. 

Mr. COFFMAN. Right. I think perhaps when candidate Barack 

Obama was running for the Presidency, he distinguished himself 

from his rivals by certainly using this as an issue. And I think not 

only did he convince the majority of the American electorate that 

it was an issue, but I think he convinced the international community at the same time that it was an issue. 

But I think the greatest failure of the policy is that it doesn’t 

admit that we are a nation at war. That I think it is part of this 

administration’s fiction that we no longer have the global war on 

terror, we have overseas contingency operations; and we no longer 

have terrorist attacks, we have man-caused disasters. So since we 

are removing certainly the vocabulary from the lexicon of war, we 

therefore need to close Guantanamo Bay. 

We still need it. Because there are still individuals that want to 

kill American civilians. And I really think that we ought to consider the lives of Americans as more important than the rights of 

terrorists, and that ties into military commissions versus bringing 

them to U.S. soil and trying them there. So that is just my view 

of the policy. 

Let me ask a question. Ms. Stone or Mr. Mornston, what impact 

has recidivism had on U.S. troops in Afghanistan and elsewhere? 

A news article earlier this week highlighted two former Gitmo detainees who were among America’s most wanted, Mullah Abdul 

Qayum Zakir—if I am saying this right—and Mullah Abdul Rauf 

Khadim. Why were these detainees released from Gitmo? 

Mr. MORNSTON. Sir, there have been instances where detainees 

who have been transferred from Gitmo have reengaged and have 

been in the fight and have impacted the lives of U.S. service members. We do track that. I can’t discuss that much further in this 

open session, but we do in fact know that that has happened. 

Mr. COFFMAN. Okay. Ms. Stone. 

Ms. STONE. Again, I would echo my colleague. We track that information, but we would have to discuss it further in a closed session. 
12 

Mr. COFFMAN. When we resettle these terrorists because we no 

longer think they are a problem, yet we have had a recidivism rate 

of 14 percent that we know of—and, obviously, the rate is much 

higher than that, probably, and I think there is an admission that 

it is higher than that—what costs do U.S. taxpayers bear in the resettlement? 

Ambassador FRIED. There are some cases in which the U.S. Government has offered to defray some of the receiving country’s costs. 

Those figures have been reported to Congress. 

But in this—I can’t in this session give the exact number, but I will say that the highest per detainee was under $100,000. This 

was used to defray housing costs, language training, costs associated with a successful and secure resettlement. But those figures 

are available, and they can be provided to this committee. 

Mr. COFFMAN. For the record, I would like them provided to this 

committee. 

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

printing.] 

Mr. WITTMAN. Thank you. Mr. Rooney. 

Mr. ROONEY. I will try and be quicker this time, Mr. Chairman. 

I know we are voting. 

During opening statements of both the gentlemen at the witness 

table, I kind of got the sense that there is this perception problem 

with Gitmo. I have heard it a million times before. You know, we 

are better off without Gitmo than we are with it, regardless of if 

you have gone down there and you have seen it, what is actually 

happening at Gitmo versus the perception of it. 

And one of the things that always bothered me was when you 

talk about these guys that can’t be released because they are too 

dangerous, I mean, isn’t there a perception problem with that, that 

we in America detain people? If we are going to try them, I assume 

some of these guys we are going to put through military commissions or Article III or whatever comes down the pike, and they are 

going to be found not guilty perhaps or guilty. But if they are found 

not guilty because of lack of evidence or because we gained evidence through what is now termed as torture and we re-detain 

them anyway, isn’t there a perception problem with that internationally? That is just as bad as whatever people think of Guantanamo Bay, realistic or not? 

Ambassador FRIED. There have been enormous perception problems with Guantanamo; and Guantanamo has been the subject of 

heated, exaggerated, and often highly polarized and inaccurate debate from both sides, from all sides. 

Guantanamo itself, the facilities itself are modern, decent, humane; and the people who work there should be given credit for 

doing a tough job and doing it, as far as I can tell, doing it extremely well. 

Mr. ROONEY. Because I am running out of time, isn’t that our 

problem then? Isn’t that a leadership problem from both Bush and 

Obama, that we have let it become something that it is not globally? And don’t we owe it to whatever we are trying to do down 

there and for whatever reason why to say to the international community, come to Guantanamo Bay and see what is really going on 

there, rather than just saying like, okay, we will shut it down? You 
13 

know, we might end up detaining these people forever, even though 

they may be found not guilty. 

Ambassador FRIED. Well, before I had this job, I was Assistant 

Secretary of State for European Affairs in the Bush administration; 

and I saw firsthand the liability that Guantanamo constituted for 

our country and the world. 

Mr. ROONEY. How do you measure that? How do you measure 

the liability? 

Ambassador FRIED. I will give you an example. Every time I 

went to Europe as Assistant Secretary and asked our allies for 

something, help in Afghanistan or some common project, it was as 

if I was sailing into the wind or swimming with a 50-pound weight 

tied to a leg—choose your metaphor—because of the problem that 

Guantanamo represented. 

Now, you might argue—and I might agree with you—that there 

was misinformation, a lot of the problems were exaggerated, there 

was a lot of ignorance. But it was a genuine problem. I don’t want 

to see any American administration saddled with that sort of a 

problem in the future. 

Now, for the past 2 years, a lot of that problem has been alleviated. And I agree with you that it is important to make the case 

for a sound, sustainable, well-grounded detention policy which is 

not going to satisfy either extreme. This administration has sought 

to do it, and it is part of our job to explain it. 

Mr. ROONEY. Can I ask you really quickly, the third-country 

transferees, are they released in the third country or are some of 

them released and some of them imprisoned by that country? How 

does that work? 

Ambassador FRIED. Most of them, with the exception, in fact, of 

two who went to Italy for prosecution, all the others have been 

transferred for resettlement, which means they are—— 

Mr. ROONEY. Monitored. 

Ambassador FRIED. In this unclassified session, I will say they 

are strongly assisted by the receiving government. 

Mr. ROONEY. Ms. Stone, why doesn’t the DIA provide the names 

of these individuals or publish the names of these individuals anymore as they used to? 

Ms. STONE. I will let my DIA colleague answer that. 

Mr. MORNSTON. Thank you for that question, Congressman. 

Mr. ROONEY. I just wanted to stop picking on the Ambassador for 

a minute. 

Mr. MORNSTON. I understand. I am glad to take the heat off of 

him for a second. 

DIA publishes a classified report concerning the reengagement of 

individual detainees. We use all sources of intelligence, some clandestinely collected, some collected through open sources. But my 

big concern and the concern of the Intelligence Community is protecting those sources and methods. 

We do the work that we do to provide information that is used 

to warn our troops, inform our commanders and policymakers of 

the potential risks on the battlefield; and my strongest concern is 

that we perform that function and we can do that best by keeping 

that classified information in very closed channels. 

Mr. WITTMAN. Mr. Johnson. 
14 

Mr. JOHNSON. Thank you, Mr. Chairman. Is it fair to say, Ambassador Fried or Mr. Lietzau, that some of the persons detained 

in Guantanamo were scooped up in operations that perhaps caught 

them in the wrong place at the wrong time but really there were 

no factual bases in place to support them being enemy combatants? 

Is that true? Real quick because our time is running out. 

Ambassador FRIED. Okay. When I look at the Guantanamo detainees, at least the 242 that were there when this administration 

took office, I think it is best put in terms of a bell curve. At one 

end are truly dangerous people. The phrase ‘‘the worst of the 

worst’’ applies to them. At the other end, there are people who may 

have been at the wrong place at the wrong time but not many of 

them. 

Mr. JOHNSON. And, of course, you came in at only 242 that were 

in, but it was a total of 779 since January of 2002, some of whom, 

I would argue, were just caught in the wrong place at the wrong 

time, scooped up, brought over. A decision was made either by the 

courts or by the Bush administration to release them. It was about 

537 released under Bush. And of those 537, I think I show where 

79 confirmed cases where detainees went out and reengaged, 79 of 

those detainees were released under the Bush administration 

watch. Would you disagree? Anybody? 

Mr. LIETZAU. I think you are correct in both assertions. There 

were people in the first large group that were just scooped up; and 

they have been cleared out through previous processes, as Congressman Conaway was alluding to in his earlier question. And 

there are those who have reengaged, or in this case were found to 

have reengaged, may not still be in that status right now. But, yes, 

that mostly come from the earlier, larger group. 

Mr. JOHNSON. And only two confirmed cases of detainees being 

released under the Obama administration. 

Ambassador FRIED. Three confirmed cases and two suspected. 

Mr. JOHNSON. All right. So now what you have been doing is 

evaluating these remaining 242, I believe, detainees. We know 

some of them, like the high-value detainees that we have, are going 

to stand trial. Others, we don’t know whether or not they will 

stand trial or not. I seem to remember that there was an issue with 

there being an adequate file in existence on each detainee. 

Do we have any detainees down in Guantanamo at this point 

where we have that kind of a problem, where there is no file that 

documents any evidence against the detainee that could support a 

court case? 

Mr. WIEGMANN. I will take that question. 

In the Guantanamo Review Task Force process, all the detainees 

were evaluated. One of the factors was how many of them could be 

prosecuted. There were only about 36 who were evaluated and determined they could be prosecuted, either in a military commission 

or a Federal Court. 

So for the remaining detainees down there, I think it is fair to 

assume—well, actually, the ones who are transferred are being 

transferred. But for those who are being kept, there is another 48 

who, it is fair to assume, can’t be tried. So there is 36 who can be 

prosecuted out of the 242. 
15 

Mr. JOHNSON. So a civilized society like the one that we live in 

cannot be known as being a place where we can go and take a citizen from another country and hold them in prison or in detention, 

whatever you want to call it, forever. We just can’t do that. 

Thank you. 

Mr. WITTMAN. Thank you, Mr. Johnson. 

I would like to thank our witnesses today for your testimony and 

responses. We have a vote on the floor, so we are going to need to 

head down there. But we appreciate all of your time and effort. We 

would appreciate your prompt response to any questions for the 

record that we may send you after this session. There may be some 

things that we weren’t able to encompass in the time provided. 

We appreciate your patience and diligence through this process 

with us going in and out with votes and the other activities of the 

day. So we appreciate that and look forward to your answers to our 

written questions. Thanks again. 

[Whereupon, at 4:52 p.m., the subcommittee was adjourned.] 

A P P E N D I X 

APRIL 13, 2011 

PREPARED STATEMENTS SUBMITTED FOR THE RECORD 

APRIL 13, 2011 

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QUESTIONS SUBMITTED BY MEMBERS POST HEARING 

APRIL 13, 2011 

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QUESTIONS SUBMITTED BY MR. WITTMAN 

Mr. WITTMAN. For many years, the U.S. government has sought security and humane treatment assurances from countries prior to the transfer of detainees. How 

effective are these assurances? Where and under what circumstances have they 

worked and not worked well? Why have they not been effective in some cases? What 

needs to be done to ensure effective assurances are in place before transferring any 

detainees in the future? Please provide response in classified form, if necessary. 

Mr. LIETZAU. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. Why did the U.S. government send detainees to war-torn, unstable 

locations such as Afghanistan? Were detainees transferred to these locations even 

after cases of recidivism had been identified? Please provide response in classified 

form, if necessary. 

Mr. LIETZAU. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. Given the rate of reengagement reported, were there errors in judgment with respect to transfer decisions? What lessons have been learned and to 

what extent have they been applied in more recent detainee transfer determinations? Please provide response in classified form, if necessary. 

Mr. LIETZAU. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. Did the Executive Order Task Force review result in different assessments of the security threats posed by detainees? If so, please explain. Please 

provide response in classified form, if necessary. 

Mr. LIETZAU. Of the 126 detainees approved for transfer by the Task Force, 63 

had previously been approved for transfer during the prior administration, ordered 

released by a court, or both. The remaining detainees approved for transfer had not 

previously been approved. 

However, this result does not necessarily reflect a change in the threat assessment of each detainee. Rather, the decision reflects the best predictive judgment of 

senior government officials, based on the available information, that any threat 

posed by the detainee can be sufficiently mitigated through feasible and appropriate 

security measures in the receiving country. Indeed, all transfer decisions were made 

subject to the implementation of appropriate security measures in the receiving 

country, and sensitive discussions are conducted with the receiving country about 

such security measures before any transfer is implemented. Thus the assessment of 

the prospects for mitigating a threat in a receiving country is a key factor that may 

lead to different results over time. 

Moreover, the Task Force for the first time systematically consolidated information and expertise from across the United States Government and provided detailed 

guidance as to how both the detainee’s threat and the ability of a receiving country 

to mitigate that threat should be evaluated. In all instances, the Task Force reviewed all prior threat assessments. In many cases, the resulting Task Force assessments were consistent with those prior assessments. In others, the assessments differed, just as security assessments made during the prior administration sometimes 

differed from one another or evolved over time. In some cases a different assessment 

could be based on the fact that the Task Force was evaluating a wider array of material than had been previously considered and that the input of all relevant agencies on the decision was received. In other cases, facts may have changed since prior 

assessments, including facts bearing on the credibility of some of the relevant evidence concerning the detainee or the situation in the potential receiving country. 

Again, all transfer decisions were ultimately based on the unanimous agreement 

of DOD, DOS, DOJ, DHS, the Joint Chiefs of Staff, and the Office of the Director 

of the National Intelligence. 

Mr. WITTMAN. In December 2010, the U.S. government reported that 25 percent 

of former detainees from Guantanamo are confirmed or suspected of reengaging in 

terrorist activities. Do you believe this is an accurate estimate of the number of recidivists? Could it be much higher than what you confirm or suspect? What would 

be your best guess as to what the rate actually is? 
48 

Please provide response in classified form, if necessary. 

Mr. MORNSTON. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. What impacts have recidivists had on U.S. troops in Afghanistan 

and elsewhere? A news article earlier this week highlighted 2 former GTMO detainees who are among America’s most wanted—Mullah Abdul Qayyum Zakir and 

Maulvi Abdul Rauf Khadim. Why were these detainees released from GTMO? Please 

provide response in classified form, if necessary. 

Mr. MORNSTON. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. The rate of former Guantanamo detainees confirmed or suspected 

of re-engaging in terrorist-related activities remained relatively constant during the 

years 2004 to 2008, at about 5 to 8 percent. However, since 2008 the rate has increased to 25 percent. What accounts for this dramatic increase in the past 2 years? 

Is it due to the transfer and release of higher threat detainees, a change in reporting criteria, improved government monitoring, or something else? Please provide response in classified form, if necessary. 

Mr. MORNSTON. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. Are there particular groups of former detainees or countries where 

monitoring and follow-up is problematic? What is being done to increase our government’s capacity to track these former detainees? Please provide response in classified form, if necessary. 

Mr. MORNSTON. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. The Defense Intelligence Agency previously published names of 

some former detainees suspected or confirmed of reengagement. This allowed the 

lists to be scrutinized by outside individuals and groups. Why did DIA publish these 

names in the past? Why does DIA no longer provide any specific names of individuals known or thought to be reengaged? Will it ever return to the previous practice? 

Please provide response in classified form, if necessary. 

Mr. MORNSTON. [The information referred to is classified and retained in the subcommittee files.] 

Mr. WITTMAN. What analysis has DIA conducted, or plans to conduct, to identify 

the key characteristics or factors associated with former detainees who have reengaged in terrorist activities? Please provide response in classified form, if necessary. 

Mr. MORNSTON. [The information referred to is classified and retained in the subcommittee files.] 

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