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GUANTANAMO DETAINEES AFTER BOUMEDIENE: 

NOW WHAT? 

HEARING 

BEFORE THE

COMMISSION ON SECURITY AND 

COOPERATION IN EUROPE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 15, 2008 

Printed for the use of the 

Commission on Security and Cooperation in Europe 

[CSCE 110–2–16] 

( 

Available via http://www.csce.gov 

COMMISSION ON SECURITY AND COOPERATION IN EUROPE 

LEGISLATIVE BRANCH COMMISSIONERS 

HOUSE SENATE 

ALCEE L. HASTINGS, Florida, 

Chairman 

LOUISE McINTOSH SLAUGHTER, 

New York 

MIKE McINTYRE, North Carolina 

HILDA L. SOLIS, California 

G.K. BUTTERFIELD, North Carolina 

CHRISTOPHER H. SMITH, New Jersey 

ROBERT B. ADERHOLT, Alabama 

JOSEPH R. PITTS, Pennsylvania 

MIKE PENCE, Indiana 

BENJAMIN L. CARDIN, Maryland, 

Co-Chairman 

RUSSELL D. FEINGOLD, Wisconsin 

CHRISTOPHER J. DODD, Connecticut 

HILLARY RODHAM CLINTON, New York 

JOHN F. KERRY, Massachusetts 

SAM BROWNBACK, Kansas 

GORDON SMITH, Oregon 

SAXBY CHAMBLISS, Georgia 

RICHARD BURR, North Carolina 

EXECUTIVE BRANCH COMMISSIONERS 

Hon. David J. Kramer, Department of State 

Hon. Mary Beth Long, Department of Defense 

Hon. David Bohigian, Department of Commerce 

(II) 

GUANTANAMO DETAINEES AFTER 

BOUMEDIENE: NOW WHAT? 

JULY 15, 2008 

COMMISSIONERS 

Page 

Hon. Alcee L. Hastings, Chairman, Commission on Security 

and Cooperation in Europe ..................................................... 1 

Hon. Benjamin L. Cardin, Co-Chairman, Commission on 

Security and Cooperation in Europe ...................................... 26 

Hon. Christopher H. Smith, Ranking Member, Commission 

on Security and Cooperation in Europe ................................. 15 

Hon. Hilda L. Solis, Commissioner, Commission on Security 

and Cooperation in Europe ..................................................... 21 

Hon. G.K. Butterfield, Commissioner, Commission on 

Security and Cooperation in Europe ...................................... 14 

WITNESSES 

Gabor Rona, International Legal Director, Human Rights 

First .......................................................................................... 3 

Matthew C. Waxman, Associate Professor, Columbia Law 

School ........................................................................................ 6 

Jeremy Shapiro, Fellow and Research Director, Center on 

the United States and Europe, The Brookings Institution .. 9 

APPENDICES 

Prepared statement of Hon. Benjamin L. Cardin .................... 33 

Prepared statement of Gabor Rona ........................................... 34 

Prepared statement of Matthew C. Waxman ........................... 40 

Prepared statement of Jeremy Shapiro ..................................... 43 

(III) 

(1) 

GUANTANAMO DETAINEES AFTER 

BOUMEDIENE: NOW WHAT? 

July 15, 2008 

COMMISSION ON SECURITY AND COOPERATION IN EUROPE

WASHINGTON, DC 

The hearing was held at 2:40 p.m. in room B–318 of the Rayburn 

House Office Building, Washington, DC, Hon. Alcee L. Hastings, 

Chairman, Commission on Security and Cooperation in Europe, 

presiding. 

Commissioners present: Hon. Alcee L. Hastings, Chairman, Commission on Security and Cooperation in Europe; Hon. Christopher 

H. Smith, Ranking Member, Commission on Security and Cooperation in Europe; Hon. Hilda L. Solis, Commissioner, Commission on 

Security and Cooperation in Europe; and Hon. G.K. Butterfield, 

Commissioner, Commission on Security and Cooperation in Europe. 

Witnesses present: Gabor Rona, International Legal Director, 

Human Rights First; Matthew C. Waxman, Columbia Law School; 

and Jeremy Shapiro, Fellow and Research Director, Center on the 

United States and Europe, The Brookings Institution. 

HON. ALCEE L. HASTINGS, CHAIRMAN, COMMISSION ON 

SECURITY AND COOPERATION IN EUROPE 

Mr. HASTINGS. If I could gavel our hearing to order and thank 

all of you for being here. 

In January in 2005, 31⁄2 years ago, Brigadier General Jay Hood, 

at that time the U.S. Commander in charge of the detention facility 

at Guantanamo Bay, gave an interview to the Wall Street Journal 

in which he acknowledged, and I quote, ‘‘Sometimes we just didn’t 

get the right folks,’’ unquote. Sometimes we just didn’t get the right 

folks. 

The Wall Street Journal article continued, ‘‘In theory, once a detainee is thought no longer to present a threat to the U.S. or possess any valuable intelligence, he should be sent home. In practice, 

the system is stuck. Releasing a prisoner requires the approval of 

the Defense Department headquarters as well as the State Department, Central Intelligence Agency, and the FBI.’’ 

General Hood further observed, ‘‘Nobody wants to be the one who 

signs the release statement. There’s no muscle in the system.’’ 

And I’m referencing the Wall Street Journal article of January 

26, ’05. 

Unfortunately, 31⁄2 years after General Hood made those comments, and 6 years after the Guantanamo camp was opened, there 

2 

seems to be little progress made in addressing the fundamental 

problems that plague that detention facility. 

In fact, the shortcomings of the Guantanamo system are perhaps 

best illustrated by the fate of the extremes among those detained 

there. 

Last month, the United States Court of Appeals for the District 

of Columbia ordered that 1 of 17 Chinese Uighurs be released or 

given a new military hearing. 

The United States had previously cleared this man, Huzaifa 

Parhat, of the charge of being an enemy combatant, but nonetheless has kept him in prison at Gitmo. He is not an enemy of the 

United States but our country keeps him in prison. 

At the other end of the spectrum, there’s not been a single completed trial of those suspected of the most serious crimes committed 

against our country, including Khalid Sheikh Mohammed, who is 

believed to be responsible for helping to plan the 9/11 attacks. 

The case against alleged 20th hijacker, Mohammed al Qahtani, 

has been dismissed without prejudice for reasons that were not announced. In his case, it is speculated that there is insufficient evidence against him that is not completely tainted by the means used 

to extract it, or that the methods of interrogation used against him 

have rendered him incapable of participating in his trial. 

The fact that Gitmo is still open is a testament to the genuine 

challenges we face in relocating its residents. And we discussed 

those challenges at the hearing the Commission held last year. But 

it also speaks to a lack of political leadership in fixing the problems 

there. 

Today, in light of last month’s Supreme Court’s decision in the 

Boumediene case, upholding the right of Guantanamo detainees to 

habeas corpus, I believe it is timely and appropriate to revisit the 

policy questions related to our detention policy. 

For that purpose we’ve invited Matthew Waxman and Gabor 

Rona to join us and share their considerable insights. 

Mr. Rona, who testified at our Guantanamo hearing last year, 

has just returned from visiting on Guantanamo. 

In addition, we’re joined by Jeremy Shapiro, who is going to discuss the question of what Europe is doing with its terror suspects. 

The United States is not the first country to struggle with terrorism. And perhaps there’s something we can learn from European experiences. 

Clearly, no European country has thrown the prohibition against 

torture out the window or tried to defend waterboarding as a professional interrogation technique. 

But at the same time, if we look carefully at the civilian criminal 

procedures used in Europe, they seem to present their own set of 

challenges. At a minimum, we can say that many European countries are struggling with some of the same issues we are. And I 

look forward to hearing more from Mr. Shapiro. 

The biographies of all our witnesses, ladies and gentlemen, have 

been printed out and made available to everyone attending this 

hearing. And I look forward to all of their remarks. 

Finally, I’d like to know—we did invite witnesses from the administration to join us here today. We asked people from the Department of Defense and the Department of State and the DepartVerDate Nov 24 2008 08:01 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 E:\WORK\071508 HAROLD PsN: HAROLD
3 

ment of Justice. Unfortunately, they are apparently unprepared or 

unwilling to discuss this issue at this time. And in light of the vital 

implications of this subject for our country, I sorely regret the absence of administration witnesses. 

I do however warmly welcome, if he does attend, our fellow commissioner from the Department of State, David Kramer, who may 

be along, as well as Senator Cardin, who is finishing up a hearing 

on the Senate side. 

With that in mind, I guess it doesn’t matter—maybe we’ll start 

with Mr. Rona. 

I don’t know whether you gentlemen have worked it out. 

We’ll go to Mr. Rona, Mr. Waxman and then Mr. Shapiro. 

Gentlemen? 

GABOR RONA, INTERNATIONAL LEGAL DIRECTOR, 

HUMAN RIGHTS FIRST 

Mr. RONA. Thank you, Chairman Hastings. Thank you very 

much for inviting me to share the views of Human Rights First on 

these important issues. 

My name is Gabor Rona. I am the International Legal Director 

of Human Rights First. 

I came before you a year ago to discuss international law applicable to detainees at Guantanamo and others detained in the socalled War on Terror. 

Chairman Hastings, you were especially gracious in your comments about my written testimony and I thank you for that. 

You have asked me to come back to express views on the future 

of Guantanamo detainees following the Supreme Court’s 

Boumediene decision. And as you encapsulated, Boumediene of 

course recognizes the right of detainees to habeas corpus. 

This decision vindicates a bedrock provision of the U.S. Constitution. 

But I want to emphasize that it also comports with majority 

views among the international, legal and policy community that 

human rights law and domestic law operate in concert with the 

laws of war in the times of armed conflict. 

Still, popular but false notions persist and I want to address 

three of those. 

First is that the existing laws of war and criminal law are not 

adequate because they didn’t anticipate today’s conflicts. 

Second, that there is a conflict and a requirement under existing 

law to choose between war and crime paradigms. 

And third, that therefore a new legal architecture needs to be developed to bridge the difference. 

As to the first point that existing laws of war and criminal law 

are inadequate because they didn’t anticipate today’s conflicts, I 

would only say that just because Henry Ford was not foreseen by 

the inventor of the wheel does not mean that wheels are inappropriate to facilitate the locomotion of automobiles. 

The proper question is not whether the traditional criminal law 

and the law of war were built to deal with modern forms of 

transnational terrorism, but rather are they legally applicable to it 

and are they practically applicable to it. 

4 

Second, the either/or, neither/nor approach that pits two distinct 

camps against each other—‘‘It’s a war. No, it’s a crime’’—is also 

misguided. In fact, criminal law applies in war time. And the laws 

of war that apply to detention and trials of terrorism suspects are 

not so different from applicable domestic criminal law and international human rights law. 

Nonetheless, this false ‘‘tastes-great-less-filling’’ argument does 

have staying power. And one reason is that the administration has 

falsely insisted that domestic criminal law and human rights law 

should not or do not apply in this, quote, ‘‘war.’’ And only the laws 

of war apply as a ‘‘lex specialis.’’ 

The lex specialis concept does not, however, mean that one body 

of law applies to the exclusion of others. 

In armed conflicts, for example, it merely means that individual 

law-of-armed-conflict rules trump conflicting and otherwise applicable individual law-of-peacetime rules. 

Critics of the administration naturally gravitated to the opposite 

view, equally incorrect, that only criminal law and human rights 

law should apply, not the laws of war. 

There is a way out of this endless and fruitless exercise in contradiction. And I believe it lies in two steps. 

First, recognizing the difference between how three complimentary legal regimes, domestic law, international human rights law 

and the laws of war, operate in tandem in three different situations, in wars between states, in wars that are not between states 

and in peacetime. 

Second, once that task is accomplished it is of course also important to exercise good faith judgment in deciding in which three of 

those contexts an individual is being held or tried. 

This does not mean that detention under laws of war can have 

no place beyond the battlefield. Far from it. It does, however, mean 

that lines must be drawn between detentions that are truly in the 

context of war and those that are not. 

My third major point is that there is no need for a new legal architecture. The existing one that recognizes the complimentarity of 

domestic criminal law and the international laws of war and 

human rights works well if we let it. That is the law. 

Mr. HASTINGS. Mr. Rona, just hold up just a minute so we can 

get added chairs. 

David, help him. 

Young, Mr. Jeffers, help him with those chairs if you don’t mind. 

I apologize for interrupting you but better to do that than have 

the rumble going on in the back and you not know what’s happening. 

And ladies and gentlemen, those of you that are standing, you’re 

welcome to take seats if you so desire. 

All right. That should just about cover it, I would think. 

Thank you very much. 

And I apologize, and if you would go back maybe to the beginning of your last sentence. 

Mr. RONA. Thank you, Mr. Chairman. 

And that was concerning my third major point that there’s no 

need for a new legal architecture because the existing one recognizes the complimentarity of domestic criminal law and the interVerDate Nov 24 2008 08:01 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 E:\WORK\071508 HAROLD PsN: HAROLD
5 

national law of war and human rights law. And it works well if we 

let it. That is the law. 

This factor has been skewered by the administration’s pick-andchoose approach to the laws of war and its wrongheaded assertions 

about lex specialis. 

I want to make clear what I advocate here is not a mere slavish 

implementation of preexisting rules. 

Within that existing legal architecture, there is more than sufficient flexibility to adopt new rules for current exigencies. 

In fact, Congress has been a player, providing new tools in the 

realms of surveillance, terrorism financing and criminal responsibility for support of terrorism both at home and abroad. 

Some argue that the criminal courts are ill-equipped to prosecute 

terrorism cases. Calls for administrative detention legislation and 

a national security court are built on this premise. 

Human Rights First recently released a report authored by 

former federal prosecutors detailing the experience of the criminal 

justice system in dealing with well over 100 terrorism cases, some 

before, but most after 9/11. 

That study, ‘‘In Pursuit of Justice,’’ is grounded on real experience with real cases, not on speculation. 

And it found that the Federal courts, while not perfect, have 

proven themselves to be capable of bearing the load. 

It found, most significantly, that tools such as the Classified Information Procedures Act operate properly to ensure the protection 

of sensitive information and that there is sufficient substantive law 

to cover preparatory acts and conduct occurring abroad. 

It also found that criticism about soldiers being required to issue 

Miranda warnings and to conduct criminal investigations while 

under fire is simply misplaced. 

U.S. Judge Leonie Brinkema, who presided over the Moussaoui 

trial, noted that that trial featured a variety of challenges, including a defendant serving as his own lawyer and a block of classified 

evidence. She noted that individually those circumstances were not 

unusual, but they are uniquely concentrated in the Moussaoui case. 

She said, ‘‘I’ve reached the conclusion that the system does work 

and that the notion of a national security court should,’’ quote, 

‘‘send shivers down the spine of everyone.’’ 

Because the system works, it enjoys public confidence and is capable of delivering true justice and accountability. 

Now this is not to say that Federal prosecution is the silver bullet. Other strategies, such as intelligence gathering, interruption of 

terrorism financing, diplomacy and even the use of armed force 

have their place. 

But when the question is, according to what legal architecture 

should we detain and try terrorist suspects, the answer is in plain 

sight, not in a hidden, secret place on the distant tip of a Caribbean Island. 

And having just returned from observing military commissions in 

Guantanamo last week, I say this with great conviction. 

H.L. Mencken is reputed to have said that to every complicated 

problem there is a solution that is clear, simple and wrong. The 

choice between crime and war is a debate inviting just such a solution. But the complex world in which we lived has fortunately, over 

6 

considerable time, given us a suitable architecture of overlapping 

legal frameworks. If understood and respected, it will provide the 

tools necessary to meet the challenge of international terrorism 

without the harm to both security and civil liberties that would certainly result should we abandon it. 

Thank you. 

Mr. HASTINGS. Thank you very much. 

Mr. Waxman? 

MATTHEW C. WAXMAN, ASSOCIATE PROFESSOR, 

COLUMBIA LAW SCHOOL 

Mr. WAXMAN. Thank you, Mr. Chairman, for inviting me to testify today. 

And I’d also ask that my complete written statement be entered 

into the record. 

Mr. HASTINGS. Without objection. 

Mr. WAXMAN. My name is Matthew Waxman and I’m currently 

Associate Professor of Law at Columbia Law School where I teach 

national security law and international law. 

I should also mention that from 2004 through 2005, I served as 

Deputy Assistant Secretary of Defense for Detainee Affairs, a position created after the Abu Ghraib crisis to advise on and help manage the improvements of U.S. military detention operations, including to those related to the fight against al Qaida. 

On September 11, 2001, the United States suddenly confronted 

a grave threat for which it was poorly prepared. Alongside the need 

to develop a long-term strategy, the United States had to take urgent and immediate actions under conditions of great uncertainty. 

And neither traditional criminal law, nor the law of war provided 

clear solutions. 

With the past seven years of experience however, we need to reconsider the basic legal and policy decisions taken immediately 

after 9/11. 

Previous reform efforts focused predominately on interrogation 

standards. Although that issue has not yet been satisfactorily resolved, the next reform effort should also focus on the future of 

Guantanamo and the appropriate role of courts in reviewing detention decisions. 

In that regard, let me emphasize three points today. 

First, Guantanamo is a symptom of a much larger problem. And 

we should not consider it in isolation from other U.S. Government 

detention operations. 

Second, closing Guantanamo will be hard; there is no easy fix. 

And third, despite these challenges, Guantanamo should be 

closed because doing so, if handled right, will improve, not detract 

from, our ability to combat terrorism. 

My first point is that Guantanamo is just one part of a much 

larger problem, that for the foreseeable future, the United States 

and its allies will continue to capture suspected terrorists and al 

Qaida affiliates and we need a durable framework for handling 

them. 

This framework must permit the long-term detention of the most 

dangerous individuals while facilitating intelligence collection, including through lawful interrogation, but with rules and proceVerDate Nov 24 2008 08:01 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 E:\WORK\071508 HAROLD PsN: HAROLD
7 

dures that are politically, legally, ethically, and diplomatically sustainable. 

We need to solve the Guantanamo problem. But to consider 

Guantanamo in isolation from other U.S. Government detention operations, including those in Afghanistan and elsewhere, will leave 

significant legal and policy issues unresolved and could produce unintended consequences. 

The Supreme Court’s decision in Boumediene v. Bush, for example, which held that constitutional habeas corpus rights apply to 

detainees at Guantanamo, leaves uncertain whether some of the 

same constitutional rights apply to otherwise similarly situated detainees held near combat zones or in other sites. 

To focus too narrowly on the few hundred detainees currently remaining at Guantanamo fails to address what is really a global 

problem and can, for instance, inadvertently create incentives to 

keep detainees in less transparent conditions in less secure locations. 

My second point is that closing Guantanamo will be difficult. 

There is no easy alternative without significant risks and costs. 

One reason it will be hard is because Guantanamo serves some 

critically important functions. It would be a mistake to exaggerate 

Guantanamo’s continued intelligence value or to deny that some individuals detained there should never have been or should have 

been released long ago. 

But it would also be mistake to deny Guantanamo’s important 

role in incapacitating would-be terrorist plotters and agents and in 

providing a better picture of al Qaida’s structure and operations. 

If we close Guantanamo, we will need alternative detention and 

intelligence capabilities. 

Another reason that closing Guantanamo will be hard is because 

there is no simple and ready alternative. 

Sending detainees back to their home countries has proven difficult. While the U.S. Government continues to make progress in 

transferring or releasing detainees through its administrative review board process, many home countries either will not take them, 

will likely mistreat them, or will likely take inadequate steps to 

mitigate their continuing threat. 

Simply detaining individuals inside the United States instead of 

at Guantanamo requires working through difficult issues of where 

to hold them and pursuant to what rules, and answering tough 

questions, such as what to do with detainees who are ordered released. 

And prosecuting them for crimes in U.S. courts is no easy answer 

either. Criminal prosecutions should be carried out whenever possible. But evidence against a particular suspect sometimes cannot 

be used to prosecute without compromising intelligence sources and 

methods, or the important evidence may not be admissible or sufficient under U.S. criminal laws. 

The most promising alternative to Guantanamo will not entail a 

one-size-fits-all solution. Instead, I believe it will require a combination of prosecuting some of them in civilian or military courts, 

transferring or releasing others to home countries or third countries, and perhaps detaining or even releasing some of them inside 

the United States. 

8 

One of the most significant debates likely to arise as part of any 

effort to close Guantanamo is whether the United States should 

create a new national security court to administer detention outside the normal criminal justice system. Without weighing in for or 

against such proposals, I do want to emphasize that any such longterm detention system outside combat zones, must include, at a 

bare minimum, robust judicial review and a meaningful opportunity for detainees to contest the legal and factual basis for detention with assistance of counsel. Not only are these minimum features required under Boumediene, but without them, any detention 

system will fail the fundamental test of legitimacy. 

My third point is that despite the many challenges I’ve just outlined, Guantanamo should be closed. 

If handled right, doing so will improve, not detract from our ability to combat terrorism. While some may frame the issue as a stark 

choice between preserving principles of liberty and preserving our 

security, I believe closing Guantanamo is an opportunity to achieve 

both. 

Successfully combating terrorism over the long term requires 

building and sustaining webs of cooperative international relationships and promoting principles and institutions of governance inhospitable to violent extremism. 

Continued controversy over Guantanamo has inhibited agreement with our coalition partners on how to confront terrorist networks at the strategic level and has impeded cooperation at the 

operational and tactical levels. Negative perceptions abroad about 

Guantanamo also undermine our ability to promote principles of 

justice, rule of law and good governance, which are tied to our success in combating violent extremism. 

The Supreme Court’s recent decision in Boumediene v. Bush does 

not change the bottom-line conclusion that Guantanamo should be 

closed. The habeas litigation that will now follow Boumediene 

erodes the argument that closing Guantanamo would result in judicial interference with detentions there. But at the same time, that 

ruling is unlikely to wipe away the indelible perception abroad that 

Guantanamo exists to keep detainees beyond oversight and the full 

reach of legal protections due the detainees there. 

So with those three points in mind, let me conclude with one 

final thought. 

All of the alternatives to Guantanamo carry risks, including the 

possibility that some dangerous individuals may be released. But 

this risk should not determine unilaterally our policy. Detention 

policy is not about eliminating risk, but about balancing and managing competing risks, including risks to our values and legal systems. We must assess realistically, not with alarmism or for political advantage the marginal risks entailed and the counter-risks 

our own policies to date have created. 

The legal and policy challenges I’ve outlined are difficult but they 

are surmountable in ways that will simultaneously strengthen both 

our security and our adherence to core democratic principles. 

I thank you for the opportunity to testify and I look forward to 

our discussion. 

Mr. HASTINGS. Thank you, Mr. Waxman. 

Mr. Shapiro? 

9 

JEREMY SHAPIRO, FELLOW AND RESEARCH DIRECTOR, 

CENTER ON THE UNITED STATES AND EUROPE, 

THE BROOKINGS INSTITUTION 

Mr. SHAPIRO. Thank you, and thank you for having me. 

My name is Jeremy Shapiro. I’m the Research Director at the 

Center on the United States and Europe at the Brookings Institution. And I’m going to speak to the experience of detaining terrorism suspects in—I’m going to limit myself I think to France and 

the United Kingdom because Europe is rather large. 

And I want to make two general points first about detention of 

terrorism suspects in Europe. 

The first I think is that these issues of detention that we’re dealing with are not particular U.S. problems. Terrorism, by its nature, 

really always challenges legal regimes. And these issues have not 

been easy anywhere. France, Britain and all the other democratic 

countries that I’ve looked at that have faced terrorist threats have 

struggled with precisely these issues. 

Most of them have made very serious errors in creating a policy 

around detention. They’ve embarked on policies that they have 

later repudiated. And they have had a long painful process of reform, some of which are not over. 

The second general point is that while of course it’s very difficult 

to transfer lessons while the threat situation of every country and 

the domestic political context of every country is different, I think 

one lesson still emerges quite strongly from all of the European 

cases. And that is that counterterrorism measures, including detention measures, need to be rooted in the legal traditions of the country that is employing them, needs to be rooted in the societal notions of fairness, and needs to have broad support across the political spectrum. 

If the detention policies don’t, and they often have not, they will 

not only oppress individual citizens, but they will fail in the long 

term in their very purpose to prevent terrorism as they will be 

unsustainable. And they will often, in falling apart, leave the country unprotected. 

And so in this regard, for both of these lessons, I think it’s instructive to look at Britain and France, which are two very close 

allies with very different systems and experiences. 

First, France. France has a long and very painful history with 

terrorism. They have a firm criminal justice approach. They tried 

extrajudicial mechanisms in the 1960s. These proved divisive and 

ineffective. And they were thrown out when the socialist governments came into office in 1981. 

Still, the criminal justice approach that they take recognizes the 

special nature of the terrorism crime and creates specialized and 

flexible procedures in the law and in the courts for dealing with 

terrorism cases. 

It is a firmly and explicitly preemptive system. And there have 

been no successful terrorist attacks of any consequence since 1996 

in France despite many attempts and much denunciation of France 

by al Qaida and other Islamist terrorist groups. So it appears to 

be a fairly successful system. 

Central to this system are what’s called investigating magistrates. These are sort of a cross between prosecutors and judges 

10 

who are, in theory, impartial investigators with broad powers for 

subpoena, wiretap, detention that only a judge would have in an 

Anglo-Saxon legal system. 

Detention is a very important part of this system. There are essentially two types of detention—pre-charge and pre-trial. 

The law allows for a pre-charge detention in terrorism cases of 

from 4 to 6 days and in pre-trial detention in terrorism cases for 

up to 4 years. 

The question of detention is largely determined by the investigating magistrate. But due to some abuses they had in the late 

1990s, the pre-trial detention is now overseen by a special libertyand-detention judge, who authorizes pre-trial detention and holds 

a hearing to renew it every 4 to 6 months. 

Still, it is the investigating magistrate who largely determines 

the pace of the trial. 

There are in the system many—there have been many individual 

accusations of torture and of out-sourcing of torture, not totally unfamiliar to us. And in response, they have recently created an inspector general of Places of Deprivation of Liberty—they need to 

work on the name—to oversee detention locations, although this is 

not yet operational. 

There is however no—there have been no accusations of systematic abuse. They have never tried to enshrine the use of torture or 

harsh interrogation techniques. But there’s a lot of evidence that 

they have used them. 

French counterterrorism officials view both types of detention as 

important and useful to their counterterrorism system. 

They’ve used pre-charge detention particularly for gathering intelligence, sometimes in mass sweeps as, for example, before the 

1998 World Cup. 

They use pre-trial detention to gather the case, sometimes to replace intelligence information that can’t be used in trial with other 

sources which can be used in trial. 

French counterterrorism officials are broadly satisfied with their 

detention regime, although they sometimes find the pre-charge detention period too short. 

However, the detention system has been roundly criticized by 

human rights groups. 

Just this month, a Human Rights Watch report on the role of investigating magistrates labeled them as far too powerful and abusive of some basic human rights. 

And certainly, from the American perspective, the role of the investigating magistrates does seem very repressive. 

What’s interesting however is that the system is not very controversial within France, even within the communities that you 

would expect to be most affected, the Muslim community and the 

Corsican community. It’s not much of a political issue there, which 

implies that it does have some broad acceptance and that it is rooted in French legal traditions. 

Moving on to Britain. Detention is a much more controversial 

issue in Britain. It’s a big political issue right now. 

Britain also has a very difficult history with terrorism and detention. They implemented a system of internment in Northern Ireland in the 1970s, which was seen as a huge failure that made the 

11 

problem of terrorism in Northern Ireland much worse. And they 

clearly, to this day, have not found a system that meets the needs 

of counterterrorism and satisfies British legal traditions and international obligations. 

I would say their biggest problem is they have no system for plea 

bargaining, very little capacity for post-charge questioning. And it’s 

very hard and very risky to put intelligence information into trials. 

These things mean that the authorities need to gather intelligence in pre-charge detention periods, which means that they 

need increased—as terrorism gets more complex, they need increasingly long periods for pre-charge detention. In fact, they currently 

have a longer period that anywhere else in the developed world. 

And they are looking to extend it. 

The evolution of these pre-charge detention periods began in 

2000 where they instituted a seven-day period. It had been 48 

hours prior to that. And then a 14-day maximum was secured in 

2003. After the 7/7/2005 attack, the government attempted to extend the pre-charge detention to 90 days. Keep in mind this is 48 

hours in the United States. But that was rejected after contentious 

debate in Parliament. 

The current 28-day limit was established in 2006. And the current situation is very shaky. The government is trying to extend 

the period to 42 days with various safeguards, but this remains 

very controversial. 

The security services insist they need this 42-day period, although the current 28-day limit has never been hit and only approached six times. 

After 9/11, the United Kingdom also attempted to put in place 

a separate system for detaining foreign nationals suspected of terrorism and to detain them without charge in a manner similar to 

Guantanamo, though these were suspects not brought in from 

abroad, but arrested in the United Kingdom. 

The indefinite detention-without-charge system that they put in 

place in their 2001 terrorism act was ruled inconsistent with their 

European human rights obligations in 2004 and replaced by socalled Control Orders, essentially house arrest and other restrictions, but which also can be applied to citizens. And this has also 

been very controversial and never been applied to more than 16 

people at one time. So it’s a fairly small system. 

So I would say, in sum, Britain has the biggest problem in Europe in dealing with detention. It’s less publicized, but they have 

probably a bigger legal problem than the United States does. 

They lack the flexibility of the French system and they lack the 

procedural options of the U.S. system. 

So with that, I will take questions. Thank you. 

Mr. HASTINGS. I very much appreciate all of your testimonies. 

And you add clarity to a very complex situation and, at the very 

same time, don’t bring much comfort to the subject that was chosen 

as the head of this hearing, and that is after the Supreme Court 

decision, what next. 

And I’m not clear from either of your testimonies as to just 

where do we go from here. 

12 

So perhaps, Mr. Waxman, I’ll ask you to elaborate a bit more on 

why you believe closing Guantanamo will improve our ability to 

combat terrorism. 

Mr. WAXMAN. Sure, I’d be happy to. And let me say that there 

will be the need I think, no matter what, for some congressional 

legislation to tackle some of the detainee issues left open by the Supreme Court in Boumediene. It leaves a number of questions unanswered. And it’s possible even to divide them into two categories. 

One of them is that there may be a need for Congress to provide 

for what we may call some ‘‘rules of the road’’ for the wave of habeas litigation that we now expect from the detainees and their 

lawyers at Guantanamo, rules that would guide the Federal courts 

in handling the hundreds of detainee habeas cases, in such terms 

as which court will hear them, pursuant to what type of rules, and 

with what kind of appeal. Those are some immediate procedural 

issues. 

Then I’d call a separate set of issues the ‘‘big picture framework’’ 

issues, looking even beyond perhaps Guantanamo to what kind of 

laws do we want to have in place to hold detainees in the future. 

And it’s on that second question that I would urge some caution. 

There is eventually going to be a need for congressional legislation 

I think to deal with those issues. But I would urge Congress to 

make sure that it gets those laws put into place correctly rather 

than quickly. 

That said, I think closing Guantanamo is the critical part of the 

next phase of reform. And I’ve chosen in my remarks to emphasize 

the counterterrorism benefits of doing so. 

In particular, I’m concerned that the continued controversy between the United States and even its closest allies in Western Europe, for example, over the continued operation of Guantanamo 

continues to risk pushing us apart when it comes to a long-term 

commitment to combating al Qaida. 

I think it erodes the sense of trust that has developed between 

our law enforcement, intelligence and military services and those 

of our allies. 

And I worry that the continued operation of Guantanamo, because of what I call an indelible perception that it exists to keep 

detainees beyond the full reach of legal protection, erodes the sense 

of American commitment to certain rule-of-law values. 

I think those values are important in and of themselves, but they 

also play a valuable role in combating terrorism in the long run; 

that ultimately combating terrorism is about undermining the type 

of radical, violent extremism that feeds it. And I think promotion 

of certain values can play a role in undermining the spread of that 

extremism. 

Mr. HASTINGS. You call for our allies to do more. And don’t you 

think it’s a pretty tough sell to get countries to take detainees that 

we ourselves won’t take? 

Mr. WAXMAN. I can tell you that it is a very hard sell because 

I’ve been part of the negotiating team trying to sell it. 

It’s very hard to sell and get other countries to take some Guantanamo detainees into their territory if we’re not willing to do the 

same. 

13 

And we’re talking about a particular subset here of tough cases 

at Guantanamo. Usually, these are detainees, like the Uighurs, 

who you mentioned, who have been cleared for release from Guantanamo either because they were found not to be an enemy combatant after all or because they were found through the Status Review 

Tribunal process to in fact be an enemy combatant but are not considered a very dangerous, continuing threat. 

And nevertheless, there are some detainees who fall into that 

category, who cannot simply be sent to their home country because 

of concern that that home country will torture, execute or persecute 

those individuals. 

In such cases, the U.S. Government has generally tried to find 

a third country that would be willing to resettle those detainees. 

And that has indeed proven very difficult. 

One of the arguments we hear back from countries when we’ve 

approached them on this is why should we take detainees into our 

country if the United States is not willing to take any. 

Mr. HASTINGS. Well, using the Uighurs, for example, the prohibition immigration-wise to having them released into the United 

States is that they trained as terrorists. But am I correct that they 

trained as terrorists against China and not terrorists against the 

United States? 

Mr. WAXMAN. That’s certainly an issue that’s been disputed. I 

don’t know. It’s been a long time since I’ve looked at these particular cases. But I think that may be a fair interpretation for at 

least some of them. 

I would imagine that it’s complicated to propose taking into the 

United States an individual who trained in a terrorist training 

camp no matter who that training was intended to—was directed 

against, whether the United States or not. I imagine this would 

make the Department of Homeland Security at least anxious, to 

put it mildly. 

That said, Guantanamo is a big problem and especially if there 

are individuals who are deemed to pose very low threat, I think 

bringing some detainees into the United States is one of the very 

tough decisions that I think we may need to swallow if necessary 

as part of a broader plan to shut down Guantanamo. 

And what I tried to emphasize in my statement is that once we 

make a firm commitment to closing Guantanamo, I’d like to see us, 

as a government, leverage that commitment in order to secure cooperation and a sharing of the burden from some of our allies. 

In order words, if we were able to go to our allies and say, ‘‘We 

are committed to shutting down Guantanamo and are even perhaps 

willing to take the following individuals into the United States, but 

in order for us to do so, we need the following assistance from you,’’ 

I think that has at least a better chance of success than our current negotiating posture. 

Mr. HASTINGS. And at the same time, some revision of some of 

our immigration laws. 

Mr. WAXMAN. Correct. 

Mr. HASTINGS. Which would be useful. 

Mr. WAXMAN. Correct. And I don’t want to suggest that this is 

a risk-free suggestion. What I’m saying here does carry some risks. 

But as I emphasized at the end of my remarks, every option on the 

14 

table carries risks, including the status quo, from which we continue to incur significant costs. So there is no risk-free option. It’s 

a matter of weighing and managing competing risks. 

Mr. HASTINGS. Right. 

Before I go to any further questioning of the gentlemen, I’d like 

to bring up to speed my colleagues that have joined me. And that 

is we have just completed the testimony of all three witnesses and 

are in the question period. 

But I would not want to preclude, in the order that they came, 

Commissioner-Congressman Butterfield and Commissioner-Congressman Smith, the Ranking Member, any comments they may 

wish. And then if you care to, spin on in to questions, I’m sure that 

these gentlemen—I heard their testimony. And I’ll tell you, of the 

testimonies that we have had on the subject, it could not be more 

clear, at least in so far as presenting the problem, the solutions are 

up in the air. 

And maybe you all will ask the magic question that will get us 

to the magic solution. 

Mr. Butterfield? 

HON. G.K. BUTTERFIELD, COMMISSIONER, COMMISSION ON 

SECURITY AND COOPERATION IN EUROPE 

Mr. BUTTERFIELD. Thank you very much, Mr. Chairman. 

Let me start by apologizing to all of you for my tardiness. I’ve 

been over on the House floor. The President vetoed the Medicare 

bill that we sent over. And we are trying to override that legislation this afternoon. And so it was called up just a few minutes ago. 

And my committee has jurisdiction over that so please forgive me 

for being late. 

But thank you very much, Mr. Chairman, for convening this very 

important hearing. 

As most of you know, I’ve only been in the Congress now for 

about 4 years. For the 30 years before that, I was in a courtroom. 

For 15 of those years, on the judicial side of the courtroom as a 

judge, and the other 15 years, sitting at the table as a lawyer. And 

so I have a particular interest in this matter, to say the least. 

When I first came to Congress, I went down with a delegation 

to Guantanamo and had an opportunity to look around for myself. 

I believe it was in 2005. And from all appearances, it appeared to 

be a very neat, clean, well-run facility. But after looking into it and 

studying the history of Guantanamo and looking at the President’s 

Executive orders and what he had in mind for due process, I became very disappointed, to say the least. 

What really confused me was the President’s authority, even as 

Commander in Chief, to classify someone as an enemy combatant 

and say that he has the unilateral authority to detain that individual for the duration of the conflict. 

What is the conflict? The conflict apparently is the War on Terror. And more likely than not, we’re going to be engaged in the 

War on Terror for a long time. 

And so if the Commander in Chief has the authority to detain 

someone without the application of Geneva or the application of 

Federal law for the duration conflict, is tantamount of the Commander in Chief imposing a life sentence upon these individuals. 

15 

And that greatly disturbed me, not only as a lawyer, but as an 

American. 

But even more than that, the president also took the unfortunate 

position that those who are detained have no rights whatsoever, no 

rights that are afforded under Geneva, no rights that are afforded 

under habeas corpus, no rights whatsoever, that they don’t have 

the opportunity to visit with family, to have the American Red 

Cross to come by and see how they’re getting along. They have no 

right to counsel, no right to due process as we know it here in this 

country and in Europe. It’s just so disappointing, to say the least. 

And so when, Mr. Chairman, you were the chairman of the Parliamentary Assembly, we were out in Brussels, I suppose it was, 

a couple of years ago. And our European friends were just outraged 

that America would have this approach to those who are suspected 

of terrorism. And I know there was outrage in the European Union 

over this matter. 

And there were numerous petitions that were being prepared to 

offer during the assembly. And the chairman allowed me the opportunity to address the assembly. And I assured our European 

friends that this would not fall on deaf ears. 

Even with our Supreme Court, as conservative as it has become, 

I had every reason to believe that our Supreme Court would favorably address the issue. And it has. 

It has not addressed and brought closure to all of our concerns. 

But at least it has extended the right of habeas to those who have 

been detained. 

But there are unresolved issues under this Supreme Court decision. 

I can’t pronounce the name. I’m from the South and those of us 

from the South can’t pronounce these fancy names. But you know 

what I’m talking about. There are still many unresolved matters 

that have to be addressed. 

But we can be assertive here in the Congress. We can lead the 

way. 

And that’s what the chairman has on his mind. That’s what he 

says privately and publicly. 

The Congress must lead the way. And hopefully, we can have a 

relationship with the new administration, whoever that may be. 

And hopefully, we can put many of these issues to rest. 

So thank you, Mr. Chairman, for your interest in this subject. 

You and I have traveled many times around the world and, everywhere we go, this is a conversation that our leaders in foreign 

countries are terribly concerned about. And we must put this to 

rest. If not, the American image is going to continue to suffer. 

Thank you. I yield back. 

Mr. HASTINGS. Mr. Smith? 

HON. CHRISTOPHER H. SMITH, RANKING MEMBER, 

COMMISSION ON SECURITY AND COOPERATION IN EUROPE 

Mr. SMITH. Thank you very much, Mr. Chairman. Thank you for 

convening this hearing. 

I have not had a chance to read all of your testimonies and I 

apologize for that. But I have read one so far since I’ve been here. 

16 

Let me just ask Mr. Waxman, if I could, you mentioned that 

there are—all of the alternatives to Guantanamo carry risks. And 

one of the things that we’re all concerned about is not only risks 

of an attempt to try to release these people, like violent attacks— 

certainly, where there’s a will, I’m sure there will be a way. And 

unfortunately, Guantanamo has become a lightening rod for international criticism, some of it very well justified. 

I think all of us have been concerned about and have spoken out 

against those methods of interrogation that would be inhumane, 

tortorous, or in any way violations of the Geneva Conventions. So 

hopefully, we’re getting to the point where that is not occurring 

there. But it’s probably an open question from day to day whether 

or not any of this occurs. 

You mentioned in your testimony there’s no simple and ready alternative. And I’m wondering two things. 

And you all might want to speak to this. 

How many people have been released? 

And I think we should prosecute. I think we need to—you know, 

rule of law should mean that. And indefinite periods of detention 

should not lead to months and years without a trial ensuring and 

a process that is completely above board getting to a conclusion. 

But the idea of no simple or ready alternative, do any of you 

have any suggestions as to what might constitute a viable and 

truly just alternative? 

And we hear numbers that people have been released and got 

back onto the battlefield. I’ve heard 30. I don’t know if that’s accurate. Maybe you can shed some light on it. 

You don’t want to have individuals back out in the field hurling 

bombs and the like at our troops or at civilians either. 

So there’s a dilemma there. I mean, this war is unlike perhaps 

any other war we’ve engaged in—the Global War on Terrorism. But 

I think rules, especially how you treat people once they’re incarcerated, tell an awful lot about who we are. 

And if the other side doesn’t do it, which they know they don’t, 

well, we find that. But we need to uphold I think the highest principles of the rule of law. And certainly, that’s called for when you’re 

interrogating. 

But if you could maybe speak to that—simple and no ready alternatives. Are there alternatives? 

Mr. WAXMAN. Thank you, sir. I would say that there—when I say 

that there’s no simple and ready alternative, what I’m really getting at is that there’s no easy solution out there that’s going to take 

care of the whole problem on its own. There are other options that 

I go through. 

And my main point was that rather than looking for a one-sizefits-all solution, such as send them all home to their home country, 

bring them all into the United States, prosecute them all, the solution to Guantanamo probably lies in a combination of all of those 

things. And it means some hard work of going through all of the 

cases and figuring out what’s the most appropriate solution among 

those options—and those are among the main ones—a final option, 

a controversial one being new legislation that might create what is 

sometimes called administrative or preventative detention authority to hold somebody inside the United States. 

17 

But it’s going to be a combination of some or all of those things 

that will be the ultimate solution to the detainees—to the Guantanamo problem. 

Guantanamo should be closed. It can’t be closed over night. This 

process will take some time. 

But I do hope and do think that the U.S. Government can commit in the short term to doing so and doing so quickly. I hope that 

it would do so. 

I’d be happy to talk, if you’d like, about the releases that have 

taken place so far. 

Just in terms of some rough numbers, about 500 detainees have 

been either released or transferred from Guantanamo to date. So 

you had close to 800 at its peak. And I think there are around 270 

now at Guantanamo. 

I say transferred or released because generally, when I was at 

the Pentagon working on this, the distinction between the two was 

a ‘‘release’’ meant simply this person either poses no threat or 

should not have been detained as an enemy combatant. This person 

is free to go and it’s just a matter of negotiating the return of the 

home country. 

A ‘‘transfer’’ was meant to suggest that the individual was indeed 

identified as an enemy combatant, was believed to pose some continuing threat but we didn’t feel that it should be the U.S. Government that held that person. And then it became a matter of negotiating with the home country or a third country a sufficient package 

of guarantees, both security guarantees and humane treatment 

guarantees, to ensure that that country would take appropriate responsibility for the individual. 

It’s difficult to figure out what level of threat the people at Guantanamo pose. 

And I think, speaking frankly from my own experience, there 

have been errors both ways, meaning there have been individuals 

who were thought—highly suspected of involvement with al Qaida 

and terrorism—who were brought to Guantanamo, who should not 

have been. They were erroneously detained. 

On the other hand, there were errors in the other direction, of 

individuals who were believed to pose no threat. They were believed to have been mistakenly detained, for whom now, in retrospect, intelligence indicates we were fooled. And some of those individuals have gone on to commit violence. Most recently, there was 

a former Guantanamo detainee who I believe was a suicide bomber 

in Iraq. 

Your staff may be interested in requesting from the Defense Intelligence Agency, the DIA, a report dated May 12, 2008, which has 

data and information on detainees released from Guantanamo or 

suspected to have gone on to commit further terrorism-related violence. 

Mr. SMITH. I appreciate that. I will follow up on that. 

Mr. HASTINGS. Mr. Rona? 

Mr. RONA. Yes, I would like to make a couple of observations 

about your question. 

The number 30, in the concept of back to the battlefield, first of 

all, of course it assumes that all of those people were in the battlefield in the first place. 

18 

And the definition of enemy combatant encompasses a huge 

swath of activities, many of which have nothing to do with battlefield. Associating with terrorists, for example. 

So when the United States decides that somebody is releasable 

and declares that they are no longer an enemy combatant, that 

doesn’t mean that they made the correct decision in the first place 

that this person had engaged in hostilities against the United 

States. 

And some of the individuals, who have no doubt been released 

and gone on to undertake hostilities, are individuals who, before 

they were detained, did not engage in hostilities against the United 

States. But it is completely conceivable and obvious that somebody 

might engage in hostilities against the United States after they 

have experienced Guantanamo. That is something that needs to 

stop. 

Second, I believe that the universe of activities that have been 

deemed to be re-engaging in hostilities, in one case, even includes 

the act of an individual who wrote an op-ed piece in a newspaper 

in Great Britain against the United States’ practices and policies. 

So that too has to be—the reason why we take this number 30 with 

a grain of salt. 

I also just wanted to make the observation that—I agree entirely 

with Mr. Waxman that there’s no easy solution. But that doesn’t 

mean there isn’t a solution. 

Whether we’ve been in a courtroom or not, I think we’re all 

aware of the idea that hard cases make bad law. And while Guantanamo is a hard case and it has to be solved with law, Guantanamo should not be the template for a universal solution to the 

question of what to do with suspected terrorists. 

If we take the entire population that is at Guantanamo now and 

we bring them onto U.S. soil, into secure facilities—Leavenworth 

has been suggested—and charge them with federal crimes—there 

are crimes of conspiracy. There are crimes of material support for 

terrorism, which are very broad in their particular application. 

That statute now has extraterritorial application. 

There are, in the Human Rights First report on the experience 

on the federal judiciary concerning international terrorism cases, 

both before and after 9/11, there have been identified a huge swath 

of potential criminal charges that can be used and have been used 

against suspected terrorists. 

So I think it shouldn’t be too difficult to come to the conclusion 

that the devil that we know, which is our criminal justice system 

and is not a devil at all, in fact has shown itself to be able to be 

quite capable of handling cases involving suspected international 

terrorism. 

There has also, on the other hand, been speculation that if we 

close Guantanamo and bring these individuals into the criminal 

justice system, well, there may be problems with classified evidence, there may be problems with inadmissibility of certain evidence. This is speculation. 

That speculation can be matched against what we, in our report, 

concluded and showed to be the experience of the federal criminal 

justice system in over 100 cases involving international terrorism. 

19 

Now there may indeed be cases that cannot be brought. And that 

brings us back to the point that Mr. Waxman was making that 

there is no perfect solution. But if we continue to look for the perfect, we will never be able to find a solution. And it will continue 

to be the enemy of the good. The good is the criminal federal justice 

system. 

Mr. HASTINGS. Yes, Mr. Shapiro? 

Mr. SHAPIRO. Yes, I think that I would like to emphasize some 

of those points. 

I think this question of return to the battlefield, while it has happened, is exactly the wrong metric to use because, as Mr. Waxman 

said, there are no cost-free alternatives. And the question of whether a returned detainee may present a danger needs to be weighed 

against the danger that the existence of Guantanamo is doing 

every day in creating recruits for terrorism. 

So it’s not simply the case that you will release somebody into 

a static pool of terrorists. The problem of Guantanamo, the image 

that Guantanamo is creating is Europe and in the rest of the world 

is, I would argue, on a daily basis is adding to our terrorism problem. And that needs to be weighed against the possibility—a very 

real possibility, I would admit—that some people who are released 

might constitute a danger. 

I think when you weigh those two things in the balance, the case 

will be quite clear, the danger of release of these few dozen individuals that we’re talking about is much less than the damage and the 

extra recruits that terrorist groups are getting from the existence 

of Guantanamo. 

Mr. WAXMAN. If I could just add, I think there’s a lot of agreement among us on the panel and with some of the points that you 

began with, Mr. Smith. 

You used the term lightening rod. And I think all of us have 

made a similar point up here which is that ultimately the fight 

against terrorism is not going to be won or lost based on whether 

a particular individual goes free or not, with a few exceptions. I 

mean, there are certain people, certain masterminds that it’s critical that we get our hands on. 

But over the long term, much more important than whether a 

particular individual is captured or goes free, is the question of 

whether we can set up, like I said in my statement, a framework 

for detaining and collecting intelligence that is legally, ethically, 

politically and diplomatically durable. And right now, we don’t 

have that. We don’t have that system. 

I also agree with Mr. Rona, at least in large part with many of 

his points, on the value of prosecution. I would say that prosecution 

has certainly become a much more powerful tool since 9/11 due to 

some changes in our criminal law, greater experience in our court 

system with handling terrorism cases. 

And I certainly commend a really excellent report by Human 

Rights First on this, which Mr. Rona referred to in his statement. 

It’s an excellent report. It is limited to those cases that have been 

brought by federal prosecutors, meaning it doesn’t necessarily address the questions of, well, what about cases that DOJ—that Federal prosecutors—did not believe they could successfully bring to 

trial. 

20 

And really, the question is not whether prosecution should or 

should not be used. I think we are in perfect agreement that, 

where possible, it should be used. It’s a very powerful tool. And it’s 

really the best solution because it has the most legitimacy of any 

of the options. 

The real question is, is prosecution a sufficient tool? And I think 

I would say that is a very, very difficult question. 

Mr. HASTINGS. From the standpoint of our image, to the degree 

that’s important—and I suggest it is in light of the fact that we 

have suffered consequences of poor image by virtue of the existence 

of Guantanamo—then it would seem to me that if we were to be 

in a position to establish an appropriate architecture for trying individuals, we would stand a much better chance of having a better 

image if we were to at least have the trail of a person. 

I do disagree, in part, Mr. Shapiro, with the notion that Guantanamo standing alone—I agree that it is a recruiting tool. But I 

think we ignore the real harshness of those who would do us and 

our allies harm in the sense that if we take, for example, Khalid 

Sheikh Mohammed, you could hold him anywhere and he has established his martyrdom in the minds of those that would be his 

followers. And therefore, whether he’s at Guantanamo or in Leavenworth or wherever he was before they took him to Guantanamo, 

he as a recruiting tool, as an individual—and there are others that 

are there—is already established. 

And so while I have been in the vanguard of those that argue 

that Guantanamo should be closed, I think for the purposes that 

it was opened, it should never have been opened in the first place. 

But at the very same time, I think we ignore, to our peril, the 

fact that the persons that would do us harm, I don’t think we have 

as much clarity about them as we are hopeful of establishing for 

ourselves and trying to make sure that our traditions and our culture and our judicial system speaks to this very difficult and delicate issue. And I think you all have done us proud in that regard. 

I think, as I listen to you, although we don’t have Russia on our 

agenda, I just would be interested, what do they do with persons 

that they perceive as terrorists. And we know, I think, a little bit 

of what they do. 

And then the other thing that the world needs to do is to have 

some international conventions that treat this subject in an appropriate way. But you can’t even get a good definition of terrorism. 

My colleagues in Europe are always trying to get that definition 

established. And I’m not so sure that the French model or the British model or many of the others that I have seen come any closer 

to what is needed—and that’s justice, swift and true—to answer 

what is a complex problem for us. 

We’ve been joined by our colleague, Commissioner and Congresswoman Hilda Solis. 

And Hilda, all of us have made comments. If you’re desirous of 

doing so, then please feel free to do so. 

Thanks, Chris. 

21 

HON. HILDA L. SOLIS, COMMISSIONER, COMMISSION ON 

SECURITY AND COOPERATION IN EUROPE 

Ms. SOLIS. Yes, thank you, Mr. Chairman. I apologize for coming 

in late. We were on the floor debating the override of the President’s veto on the physicians’ payment, which is very important, I 

know, to all of us. 

I just wanted to mention too, this is such an important issue and 

one that I know that we need to spend a lot of time on. 

And I just want to, for the record, state that I also voted against 

the Military Commission Act back in 2006, and know that it is 

quite an embarrassment when we go out and represent our country 

to other countries, talking about democratization and free will and 

transparency, and it’s hard to explain to some of our colleagues of 

member OSCE states that some of us in fact, from the Congress, 

would like to see a change in direction in this particular policy. 

And because of recent activity with our Supreme Court, I know 

there are some very important issues and opinions that I think 

some of us would like to get clarified. And I just have two questions 

that apply to the Supreme Court’s most recent decision. 

And I wanted to ask Mr. Waxman and Mr. Rona if they could 

address this, whether or not the Constitution applies to detainees 

held outside of Gitmo. 

And, two, what the substantive standard for detention is. Specifically, the court said, and I quote, ‘‘It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined,’’ quote, 

unquote. 

So I’d like to get your feedback from you two gentlemen on that. 

Mr. WAXMAN. Thank you. Those are two huge questions left unanswered by the Supreme Court in Boumediene. In fact, the Supreme Court, as you say, at the end of the opinion says, ‘‘we’re not 

reaching those substantive questions.’’ 

So the Supreme Court held that constitutional habeas corpus 

rights apply to detainees at Guantanamo. It left open the possibility that similar habeas corpus rights might apply to other sites 

of detention. And it mentioned that there were a number of factors 

that would weigh in that determination, including the practicality 

to extending the habeas corpus rights there, the conditions of confinement and the conditions under which detainees were—the circumstances of capture. 

As to the issue of the substantive scope of, for example, what 

does it mean to be an enemy combatant, or ‘‘what is the substantive scope of the president’s detention authority?,’’ again, the 

Supreme Court didn’t need to reach that in this case and it left it 

alone. 

What this means is, I think, the U.S. Government is in need of 

some clarity of the law here. 

I read the Supreme Court’s decision in that regard as trying to 

put the onus on the Congress and the executive branch to work together on legislation that would answer some of those questions. 

As I said earlier, I think there’s very much a need for legislation 

in this area that would clarify some of the procedural protections 

that detainees have and that would also clarify issues of the substantive scope of the executive detention authority. 

22 

I would also, though, caution that it’s more important that we 

get this right than that we get it done quickly. 

There may be a need in the short term for some legislation to, 

as I said before, provide some rules of the road in the short term 

for habeas litigation to proceed, to streamline the habeas litigation 

that’s going to ensue from Boumediene. 

In terms of the broader issues of where does the executive’s detention authority extend, what is the substantive scope of it, what 

are the procedures that might be required beyond Guantanamo, 

those are issues that are extremely complex. And I would just urge 

some caution in rushing too quickly to answer them, especially during a politically charged time. 

Ms. SOLIS. Thank you. 

Mr. HASTINGS. Mr. Rona, you are the most recent, at least among 

us, that have been to Guantanamo. When I was there, on at least 

two occasions and another before, I was there in my capacity as a 

member of the Intelligence Committee. I’m not on that committee 

as we speak. But I came away from those two experiences—and I 

believe my good friend, Mr. Butterfield, and I have had this experience with detention facilities in the United States of America, both 

of us having been judges that sent people to prison, visited prisons. 

I take full responsibility for causing the prison to be built that’s 

in Palm Beach County because of overcrowding, et cetera. And the 

political will didn’t exist because it costs money. And the thencounty commissioners could do it until they were forced by the federal courts. And I had that responsibility. The same with the 

Miami-Dade detention facility, so a good deal of experience. 

But when I came from Guantanamo, quite frankly, I felt just like 

I did when I visited the prison. I know that they had washed it 

that day. Cleaned it up. And the prisoners were eating the best 

meal that they had gotten in a week. And I could go on and on and 

on and on. 

I even remember I got there—I did so deliberately—2 hours early 

one day. And they were still whitewashing the walls and what 

have you. 

I wasn’t impressed. I just called it a dog and pony show. And I 

think I may have seen more than you did, in one sense of the work. 

What’s your recent impression from your visit? 

Mr. RONA. Mr. Chairman, as a representative of a non-governmental organization, we’re kept on an extremely short leash in 

Guantanamo. And the only thing that we were allowed to observe 

is the military commission proceedings. 

I can tell you however that I did spend 6 years in the legal division of the International Committee of the Red Cross. And in that 

capacity, I had a good deal of exposure to the type of interactions 

with the facility and detainees that only the Red Cross has. And 

I cannot and will not say anything about what I saw and what I 

learned in that capacity. It would be a violation of everything that 

the ICRC stands for. 

However, as we all know, there have been a number of ICRC reports that have been leaked, not by the ICRC, but there are a number of individuals in the U.S. Government that receive ICRC reports. And on a couple of occasions those reports have been leaked. 

23 

Those reports, and particularly one that was referred to recently 

in a book just published—I think that just comes out this week by 

New Yorker columnist, Jane Mayer—have indicated that the content of ICRC reports reflect upon the conditions in Guantanamo 

and the treatment that some detainees have been subjected to, as 

not only being tantamount to torture, but having been indeed torture, and potentially creating liability on the part of the detaining 

authorities, either those who have implemented interrogation techniques and detention techniques, or those who have crafted and ordered them, as being war crimes. 

Mr. HASTINGS. Mr. Butterfield, was there something you—— 

Mr. BUTTERFIELD. Yes, let me just go back to Mr. Waxman, if I 

can, for a moment. 

As we try to construct a body of law that will apply to the prosecution of alleged enemy combatants, can we use the Geneva Conventions as a framework for constructing this body of law or do we 

need to start afresh? 

Mr. WAXMAN. The Geneva Conventions help, but they don’t answer many important questions, is my first point. 

And my second point is I’d be very wary of opening them up, the 

Geneva Conventions, for any sort of renegotiations because where 

the Geneva Conventions do clearly apply, they serve a very good 

purpose. And I’d be very nervous about the idea of opening up 

some of those provisions for any sort of renegotiating. 

Mr. BUTTERFIELD. What about the UCMJ? 

Mr. WAXMAN. Oh, the UCMJ is helpful. But what I was going to 

suggest though is that—— 

Mr. HASTINGS. For the purpose of the audience, he’s talking 

about the United States Code of Uniform—— 

Mr. BUTTERFIELD. Code of Military Justice. 

Mr. WAXMAN. Code of Military Justice. 

Mr. HASTINGS [continuing]. Or Code of Military Justice. 

Mr. WAXMAN. Both the Geneva Conventions and the Uniform 

Code of Military Justice are useful guides for answering some questions, in particular, the questions concerning the treatment of detainees. 

What neither the UCMJ nor the Geneva Conventions tell us too 

much about are the questions of who can be detained in a war. 

If we do indeed accept that we are in an armed conflict, for example, with al Qaida or with the Taliban in Afghanistan, who can 

be detained? That’s a question that the UCMJ and the Geneva 

Conventions don’t provide a lot of guidance on. 

And another question is that of regular procedural due process. 

What kinds of processes are detainees entitled to, to review their 

detentions? 

The Geneva Conventions do give a little bit of guidance on that. 

There’s Article 5 of the third Geneva Convention—calls for a competent tribunal to review the status of detainees if there’s some uncertainty there, several articles of the fourth Geneva Convention 

when it comes to security internees, calls for review by a tribunal 

of the continuing need to detain a person. But it’s very sparse in 

its detail. And the reason for that is the Geneva Conventions were 

not designed to deal with the kind of fight that we’re now in with 

a transnational, borderless terrorist organization. Now—— 

24 

Mr. BUTTERFIELD. Are you telling me that there’s no universal 

definition of what a terrorist is? 

Mr. WAXMAN. I do agree with that statement that there is no 

universal agreement. 

I should say—and if I don’t, I think my colleague, Mr. Rona, will 

jump in—there are some parts of the fight against al Qaida, the 

fight against the Taliban where the laws of war do provide some 

clear guidance. 

For example, on the battlefield of Afghanistan, the Geneva Conventions have a very important role to play. It’s really beyond these 

kinds of traditional battlefields that the traditional law of war 

doesn’t provide a lot of clear guidance. 

Mr. BUTTERFIELD. I think my time has expired. I yield back. 

Mr. HASTINGS. We’ve been joined by Senator Cardin. 

And while he’s gathering his thoughts on the subject, Mr. Shapiro, I’ll ask you if you would evaluate the ability of European 

countries to establish counterterrorism systems that are consistent 

with their values and how important that is. 

And as a second question, what do you think the reaction of 

countries in Europe would be if we continued our plans to try suspects by military trials. And not necessary as currently conceived, 

but maybe under the trials under the Uniform Code of Military 

Justice? 

If you would answer those two questions, then we’ll turn to Senator Cardin. 

Mr. SHAPIRO. Sure, I’ll give it a shot. 

In terms of the ability of the European countries to handle terrorism in a way that’s consistent with their values, I think the 

record is very mixed. 

First of all, a lot of the counties haven’t really faced a terrorism 

problem. And it’s quite clear that they don’t put these procedures 

into place preemptively. 

There are several countries that have faced the problem I think 

preeminently, Britain, France, Spain, and to a certain degree Italy 

and Germany. 

I think there’s really a markedly consistent record across all of 

those countries. They all—— 

Mr. HASTINGS. But not as it pertains to international law. It’s 

part of their tradition and legal codes? 

Mr. SHAPIRO. No, even as it pertains to international law. They 

go through similar struggles that we have gone through. 

And I think maybe as you’re going out and taking it on the chin, 

as you mentioned, from European colleagues, you might mention 

this to them. I think many of them are much further down the road 

than we are, but they have all traveled the same road. 

As Spain, for example, sent hit squads into France to assassinate 

Basque terrorists who were finding sanctuary there, in clear violation of their own domestic law and in clear violation of international law. I think the interior minister eventually went to jail 

because of it. It was a government operation that killed a lot of innocent people. 

Pretty much all the countries have struggled with this. All of the 

threatened countries have violated various international laws and 

some of their own domestic traditions somewhere along the line. 

25 

And then they have all engaged in a process where they sort of 

retreated back onto their traditions, retreated back into frankly 

their criminal justice systems because they had no other place to 

go, because they realized—they saw very quickly—Britain is a very 

good example of this—they didn’t see quickly, but they saw it—that 

this effort to crush terrorism in the short term by betraying your 

own values was counterproductive. It never worked. It particularly 

doesn’t work in the domestic environment. But it actually doesn’t 

even work abroad, I would argue. 

As to your question, what would be the reaction of our European 

allies, I was interested to hear Mr. Waxman saying that European 

officials are very much bothered by Guantanamo. I haven’t personally—although I’m not as privy to it I think as Mr. Waxman is— 

seen this really affecting sort of day-to-day European cooperation. 

I think one of the problems for responding to the demands of our 

allies is that they make one demand on a political level, but really 

don’t pay a price at an operational level. In fact, the cooperation, 

in my view, works quite well. And that’s actually sort of a problem 

in the long run because we can do a lot without really hearing very 

much substantive. We’ll hear complaints, but we won’t really suffer 

in any way from our European allies, from the officials. 

What happens is that we become increasingly unpopular in the 

domestic societies of these European allies. And that’s a slow erosion that suddenly has a political effect after some election, not 

after we implement some change. 

And that actually represents a danger for us. We can get, I 

think, pretty far out ahead of the populations of our allies without 

really hearing from it, from the operation officials, and without suffering any material damage. And then suddenly, it comes back to 

haunt us when it’s too late. 

Mr. HASTINGS. Well, let me tell you one of the things that we did 

do through the Helsinki Commission, and just before asking the 

Senator to precede. He is fully mindful of what I’m about to say. 

One of our French colleagues came to me when I had just been 

elected President of the Parliamentary Assembly. And, boy, you 

talking about taking it on the chin, I mean, he was really laying 

into me. 

This was Senator Blum, Ben and Hilda. 

So actually, what we wound up with was sort of a working group 

within the organization. And then I appointed he and others, headed by the woman who was then President of the Belgian Senate, 

to chair a working group, an ad-hoc committee on Guantanamo inside the OSCE Parliamentary Assembly. And to her credit and to 

ours and to our State Department’s credit, they were permitted to 

visit Guantanamo. And it has produced, as lately as in 

Kazakhstan, when all of us where just in our annual meeting, a 

report on—I left before it was reported, so I don’t have it in hand. 

But we are doing some things to block some of that criticism, and 

are mindful of many of their responsibilities. 

Senator, if you would go forward? 

And I think you hear that I’m—— 

[Crosstalk.] 

26 

HON. BENJAMIN L. CARDIN, CO-CHAIRMAN, COMMISSION ON 

SECURITY AND COOPERATION IN EUROPE 

Mr. CARDIN. I’m not going to take it personally, Mr. Chairman, 

when you all walk out in the middle of my questions. [Laughter.] 

Mr. HASTINGS. I know you will, but we understand. 

Mr. CARDIN. Wait until you hear what I say about you after you 

leave. Don’t worry about a thing. [Laughter.] 

Let me first thank Chairman Hastings for conducting this hearing and holding this hearing. 

We have been very open about Guantanamo Bay internationally 

over the last 5 years, plus. And when he mentioned Senator Blum, 

he’s one of the more moderates within the OSCE on this issue. 

So this has been a constant area of concern and has clearly impacted the ability of the U.S. Helsinki Commission to lead on 

human rights issues generally because it has been a matter that 

has been brought up over and over again. And we’ve spent a lot 

of energy trying to deal with Guantanamo Bay when we could have 

been using that I think to advance the many other issues of importance to the United States, where the United States needed to exercise leadership. 

My questions really deal with we are where we are today. It is 

unlikely we will see a credible change in U.S. policy until the next 

administration as it relates to Guantanamo. There may be some 

statements made. But as a practical matter the United States will 

not, through this administration, exercise the type of leadership 

internationally to deal with the relatively new issue of how do you 

deal with terrorists, how do you deal with individuals who are apprehended who are not in uniform, who are conducting war against 

the United States or our allies or other countries. How do you deal 

with their detention? How do you deal with their rights? How do 

you deal with the relationship to their native country or their country of citizenship? 

The 9/11 Commission recognized this as a matter that we needed 

to deal with. 

And their recommendation, if I’m correct on it—and if you have 

a different understanding, please correct the record. They thought 

that we should seek international norms as to how to deal with 

this, that we should go to the international community and either 

through treaty or through some other means, develop a way in 

which we deal with terrorists who are apprehended, as to protect 

the countries’ legitimate needs to receive and interrogate not only 

those who are planning to do harm to do us, but also protecting the 

rule of law and international norms on appropriate conduct of people that are under our control. 

Knowing where we are today, what advice would you give President Obama or President McCain next year when one of those individuals will be seeking, I believe, stronger international understanding on what to do here? What process should we go forward 

with as it relates to Guantanamo Bay and as it relates to what 

form we should use, what means should we use to establish acceptable international standards for dealing with what we call unlawful 

combatants, because clearly, this issue will be with us for the foreseeable future? 

27 

Mr. WAXMAN. Thank you, Senator. I begin by saying that on 

some of the questions, there already are clear international norms, 

especially when it comes to questions of baseline treatment. So in 

some cases I think international law is and should have been regarded as clear. 

On other issues—especially issues related to the process by 

which an individual is detained, perhaps for thinking about the 

transfers of individuals from one country to another, if needed, outside of the criminal justice system, what to do with detainees who 

are ultimately released—those are some questions where I think 

international law is perhaps—— 

Mr. CARDIN. Let me just stop you for one moment. The confusion 

that the United States played over, whether these were detainees 

are prisoners of war or not, subject to the treaties of the prisoners 

of war, the administration took the position they were not considered prisoners of war. 

If they had taken the position they’re prisoners of war, they 

could argue they could detain them until the war is over, the War 

against Terror. 

Mr. WAXMAN. Sure. Sure. 

Mr. CARDIN. Which could be never. So in one respect, classifying 

them as prisoners of war might have meant that they could be kept 

under our control indefinitely, which is what they’re doing anyway. 

Mr. WAXMAN. I think that’s right, Senator. I mean, ironically, 

had the administration accepted a tighter interpretation of the 

laws of war when it came to the treatment, for example, it might 

have found itself in a much stronger position when litigating the 

cases now as to its authority to continue to detain. 

Given that, as you say, we are where we are, I would issue two 

pieces of advice based on what I see as some mistakes of this administration, And that is that in developing in what I call in my 

statement a ‘‘legal framework that is durable’’ that meets the durability tests in terms of legal durability, political durability, diplomatic and ethical durability—it’s critically important that the next 

administration work both with the Congress and with our coalition 

partners. And it’s going to be a difficult negotiation to conduct simultaneously. 

But we do need, I think, agreement among the political branches 

on the scope and process that would govern detention authority. 

And I do think we need to do a better job of developing some common rules and standards with our coalition partners because right 

now we’re quite far apart. 

Mr. CARDIN. Let’s assume we could reach standards. How would 

those standards be enforced? 

Mr. WAXMAN. In part of the previous discussion, it came up, do 

we need perhaps changes to the Geneva Conventions, suggesting 

that maybe the solution is a new treaty regime. 

I actually would go a different direction. 

What I would suggest is that if the United States and some of 

its closest allies and partners were able to come together and agree 

at the political level on some common baseline standards that 

would govern—and these would be minimum standards—that 

would govern issues of detainee treatments, the process to which 

individuals would be entitled to review their detention, access to 

28 

the International Committee of the Red Cross, rules for transferring detainees between countries—if we and our closest allies were 

able to reach some basic agreement—in some cases, there’s already 

international law on this. And so it would really a matter of reaffirming—— 

Mr. CARDIN. So you’re suggesting on a bilateral basis or a multinational basis? 

Mr. WAXMAN. I would do it on a multinational basis that the 

United States would lead. 

Mr. CARDIN. But then we would not have agreements with those 

areas which are most likely to be countries that could be involved 

with citizens that we might be detaining. 

Mr. WAXMAN. Eventually, I would hope that the standards that 

we worked out with our closest allies would basically become the 

gold standard and that it would be adhered to and agreed to, much 

beyond that core group of like-minded allies. 

What I have in mind is something called the Proliferation Security Initiative, which started out as an agreement among just a 

core group of like-minded allies to develop some rules for handling 

the interdiction of weapons of mass destruction material. And ultimately, once a core set of sensible rules were developed and had 

some international legitimacy, even if not enshrined in treaty, but 

had some international standing and legitimacy, other countries 

have been eager to sign onto them and adhere to them. 

And I’d like to see the United States lead a similar process when 

it comes to handling suspected terrorists. 

Mr. CARDIN. Does that worry you at all about the impact it has 

on the Geneva provisions that we are now, in a way, undermining 

the potential broadness of using the Geneva protections? 

Mr. WAXMAN. No. I would use this actually as an opportunity to 

strengthen the force of the Geneva Conventions because I would 

use it as an opportunity to reaffirm that the baseline treatment 

standards found in Common Article 3 of the Geneva Conventions 

represent an absolute floor of treatment, an absolute minimum of 

treatment of any suspect regardless of legal status in our custody 

or in the custody of any of our coalition partners. I would borrow 

from the Geneva Conventions in that regard. 

Mr. CARDIN. Let me put one more question on the table and then 

I’ll ask the other two witnesses if they want to comment. 

How would you deal with the concern that is expressed by those 

involved in collecting intelligence information that, at least for a 

limited period of time, it’s important to have total isolation of terrorists who are apprehended so that the regime legitimately, to collect information, is not compromised by outside contacts? 

Mr. WAXMAN. I’ll begin by saying I’m not an intelligence specialist. But I have spoken to them and interacted with them on this 

question. My sense from them is that there is sometimes an important value when what’s often called a high-value detainee is taken 

into custody to keep that individual isolated from outside contact 

as part of the interrogation process. 

At the same time, I think that it’s important that any such provisions in the rules be measured in sort of days and weeks rather 

than months and years if we were to allow such an exception. 

29 

And that it be done with some important tools of oversight, 

whether that’s oversight by, say, the Congress or by courts, it is 

important that there be some additional oversight for any system 

of detention that would involve a lack of outside contact. One, as 

a matter of principle, two, because I think historically there is an 

added risk of abuse when there is no outside contact. 

So to sum up, I think there is some intelligence value. It may be 

possible to craft a sensible rule there that would allow for sort of 

isolation of short duration, but it would be important that it be 

cabined with oversight processes. 

Mr. CARDIN. Mr. Rona? 

Mr. RONA. Thank you, Senator. When Latin dictatorships did it, 

we called it enforced disappearance. 

That’s not to say that there can’t be intelligence gathered from 

keeping people in isolation and even potentially from torturing 

them. But the cost is great. 

We’ve spoken to interrogators at some length at Human Rights 

First. We’ve had meetings with them in larger numbers, one-onone. And inevitably, what they tell us is that the way to get the 

goods from a suspect or from a person, who may not even be suspected of criminal activity but may know something, is to establish 

rapport and to treat them humanely. 

The problem with isolating an individual is, as Mr. Waxman 

said, it leaves much too much of a door open for potential abuses. 

But even incommunicado, detention itself is a form of abuse. 

Now, it is absolutely clear that in international armed conflict 

situations, people may be detained. But it is just as clear that they 

are entitled to have access and to be accessed by the International 

Committee of the Red Cross. 

That doesn’t mean they can’t be interrogated. That doesn’t mean 

that they can’t be prevented from communicating with the outside 

world. But at the very least, what is critical in any detention situation is that an individual not be disappeared. And that’s essential. 

I wanted to also make a comment about your reference to the 

question of how the U.S. could go forward in connection with its 

allies or the international community, and particularly in relationship to establishing legal frameworks. 

My point in my testimony—I testified before you last year at 

which time I submitted some written comments concerning what 

the legal frameworks are for dealing with terrorism. And at that 

point, I emphasized, and what I reemphasize today is that we 

shouldn’t be looking for an either/or solution. Either it’s war or it’s 

crime. The fact is that laws of war have their place. Domestic 

criminal law has its place. And international human rights law has 

its place. 

And if we see how those three legal frameworks complement— 

and they complement each differently in different situations. They 

complement each other one way in state-to-state wars. They complement each other a different way in insurgency, armed conflict. 

And they complement each other a different way in non-war situations. But in each of those situations, those legal frameworks give 

us the answers to the questions of detention, treatment and trail 

of detainees. 

30 

I don’t think we need a new legal architecture. We only need to 

look in the toolbox that we already have to see that detainees have 

to be treated humanely, that in international armed conflict, people 

can be detained as POWs or as civilians without any recourse to 

habeas. But in peace time situations and in non-international 

armed conflict situations, I think the best thing to do and what the 

legal frameworks tell us to do is to let the domestic criminal law 

take its course. 

Mr. CARDIN. Mr. Shapiro? 

Mr. SHAPIRO. Yes, we can usually refer to the French experience 

in answering your question. The French have also been concerned 

about this question about getting intelligence early on in detentions. And they built a process to do just that where essentially the 

investigators have three days with the suspect without even the 

presence of a lawyer in a terrorism case, and then a further three 

days with the presence of a lawyer in some cases. 

And this is a process which is entirely in the cadre of the judicial 

system. It is strictly regulated. It has a huge number of safeguards 

of the type that Mr. Waxman referred to associated with it, including oversight by a special judge who is focused on these issues. 

It’s come under a lot of fire for this process because it’s quite exceptional and it’s really only used for terrorism cases. 

I personally feel though that it has a lot of benefits from it. 

One of the things that makes me feel it might have hit on something is that the counterterrorism officials complain that they don’t 

have enough time and the human rights advocates complain that 

they have too much. So they must be hitting it in the middle somewhere. 

And it’s interesting when you talk to them about the United 

States adjusting to this system, to the U.S. system, you sometimes 

say, ‘‘Well, what is your problem with what we’re doing? You’re 

doing it too.’’ And they say, ‘‘Well, yes, but what we’re doing is in 

a cadre of laws, and so we can understand and our partners can 

understand what our obligations are and what the rules are. The 

problem with what you’re doing is not so much precisely what 

you’re doing, but that it is not regulated.’’ 

And I think our partners actually are not looking for us to adopt 

everything that they do. And they aren’t looking for us to adopt 

even wholesale the power of international law to regulate these 

very precise domestic issues. 

But what they are looking for is something they have usually 

found from the United States, is a system of laws that delineates 

for them very specifically what the process is, what the protections 

are and what they can expect from the process. And then they can 

interact with that type of judicial process even if it’s not exactly the 

same as there. 

Mr. CARDIN. Well, let me first agree, particularly with Mr. Rona’s 

point. And I think it answered—Mr. Rona’s point answers a lot of 

the questions here. And that is that our criminal statutes, our 

international obligations are firm. They don’t change because of the 

circumstances that we find ourselves in. We are a country of the 

rule of law. 

As our courts have said now pretty clearly, we might be in difficult and stressful and extraordinary times, but the Constitution 

31 

still is in effect. And it’s there for the calm times and difficult 

times. 

And that the difficulty we have on this subject of course is because the president has exercised, as he has announced, under Article II, certain extraordinary procedures which, in many cases, the 

courts have struck down. But he’s done it. And it caused a great 

deal of problems for the United States. And it caused a lot of problems for us internationally. So I think it is important that there be 

efforts made to clarify internationally the appropriate conduct. 

But just to underscore a couple of points. Torture is against 

international law. It’s against our domestic law. It can never be 

condoned under any circumstances, including the 3-day rule in 

France or the whatever. And the definition of what is torture is 

really not up for us to determine and really is an international definition. And some of the enhanced procedures used by the United 

States clearly violate international definitions of torture. It might 

too violate our domestic definitions of torture. And it cannot be condoned under any scenario. 

And, Mr. Waxman, I’m not an intelligence expert either. But 

from what we have learned in our hearings, it also is not a good 

idea to do it from the point of view of trying to get reliable information. 

So it’s not even a good thing to do from a pragmatic point of view 

if you’re trying to get information in those first three days, and you 

use enhanced procedures or torture, you’re more likely to get unreliable information than reliable information. So you’re wasting the 

opportunity to try to get valuable information. 

Mr. WAXMAN. That’s a point I certainly would agree with. I 

wasn’t sure whether you were suggesting that I—— 

[Crosstalk.] 

Mr. CARDIN. Oh, OK. No, I was agreeing with what you were 

saying. 

Mr. WAXMAN. OK, good. Thank you. [Laughter.] 

Mr. CARDIN. So, no, we’re in agreement on that. 

But it doesn’t negate the importance of individuals who are expert in getting information using legitimate procedures during a 

critical period of time to get valuable information that can save 

lives and help us. That’s certainly a legitimate—not legitimate, an 

obligation we have to make sure that our rules of law and international standards avail that type of interrogation. 

But it has to be conformed to international norms and our domestic laws. And I think we can come up with it. 

But I think as a result of what’s happened by the creation of 

Guantanamo Bay, which has become the icon internationally of 

how not to do things, that it’s important that we do convene international—our allies to establish what is expected moving forward 

under a new administration. 

And I think your comments helped us in trying to deal with it. 

This Commission sometimes has been the only focus of the U.S. 

Congress on Guantanamo Bay. Now there are many committees 

that have been interested in it. And the courts have obviously 

played a very active role. 

And thanks to your involvement, I think we’re in a better position to move forward. 

32 

And I thank each of your for your participation in today’s hearing. 

With that, the hearing will stand adjourned. Thank you all very 

much. 

Mr. WAXMAN. Thank you. 

Mr. RONA. Thank you. 

[Whereupon, at 4:23 p.m., the hearing was adjourned.] 

33 

A P P E N D I C E S 

PREPARED STATEMENT OF HON. BENJAMIN L. CARDIN, 

CO-CHAIRMAN, COMMISSION ON SECURITY AND 

COOPERATION IN EUROPE 

Mr. Chairman, as you and I know from our work in the OSCE 

Parliamentary Assembly, the detention facility at Guantanamo Bay 

serves as a lightning rod for international human rights criticism 

of the United States. As I’ve said before, I am happy to defend the 

United States when we’re right—even if we’re alone—but in this 

case, I’d don’t think we are right. I think the detention facility 

there should be closed. 

I therefore welcome your convening this hearing so we can revisit 

some of the issues we addressed at last year’s hearing on Guantanamo, now taking into consideration the Supreme Court’s recent 

decision in Boumediene. 

In fact, in light of the latest defeat for the administration’s detention policies at the hands of the Supreme Court, as well as several unfavorable lower court rulings, I think it is high time to stop 

tinkering with a failed system and re-open entirely the question of 

how we handle terrorism suspects. 

In that regard, the United States has an opportunity to act on 

one of the unimplemented recommendations of the 9/11 Commission, which is ‘‘to engage its friends and allies to develop a common 

coalition approach toward the detention and trial of captured terrorists, including drawing on Article 3 of the Geneva Conventions 

on the law of armed conflict.’’ 

I’m not sure that the various national systems in Europe for 

handing terror suspects provide a model that can be transposed to 

the United States—many European countries have restrictions on 

religious clothing, permit broad surveillance in public places including of demonstrations, criminalize mere membership in organizations, criminalize speech based on content alone, and have other 

substantive law provisions that I think many Americans would find 

unacceptable. 

But so far, there has been precious little discussion in this town 

of what other countries do, and I think we need to broaden our examination of these issues to at least consider what European countries are doing with their terror suspects. And I certainly believe 

that whatever detainee policies are developed by the next administration must have more support from countries that we look to for 

critical counter-terrorism cooperation. 

I would also note for the record that the Senate Judiciary Committee, on which I sit, is holding a hearing tomorrow on how the 

Administration’s failed detainee policies have hurt the fight against 

terrorism. The Committee will examine how to put the fight 

against terrorism on sound legal foundations. 

I look forward to the testimony of our distinguished witnesses. 

Thank you. 

34 

PREPARED STATEMENT OF GABOR RONA, INTERNATIONAL 

LEGAL DIRECTOR, HUMAN RIGHTS FIRST 

Chairman Hastings, Co-Chairman Cardin and Members of the 

Commission, thank you for inviting me to share the views of 

Human Rights First on these important issues. We appreciate the 

work of the Helsinki Commission and in particular its leadership 

among OSCE member states in the areas of human rights and humanitarian affairs—‘‘the human dimension.’’ Human Rights First is 

honored to have the opportunity to express its views to you today 

about how best to ensure that U.S. policy on the detention, interrogation and trial of terrorist suspects is effective, humane and consistent with our laws and values. 

My name is Gabor Rona and I am the International Legal Director of Human Rights First. For thirty years, Human Rights First 

has worked in the United States and abroad to create a secure and 

humane world by advancing justice, human dignity and respect for 

the rule of law. We support human rights activists who fight for 

basic freedoms and peaceful change at the local level; protect refugees in flight from persecution and repression; help build a strong 

international system of justice and accountability; and work to ensure that human rights laws and principles are enforced in the 

United States and abroad. 

I last came before you a year ago to lay out the international law 

applicable to the detainees held at Guantanamo and others detained in the so-called ‘‘War on Terror’’ and to make recommendations designed to bring U.S. policies and practices back into the 

fold of the international legal order that the United States shares 

with its OSCE partner-States. You have asked me back to express 

views on the future of Guantanamo detainees following the Supreme Court’s Boumediene decision. 

I want to start by noting, with some satisfaction, that each successive decision of the Supreme Court on the subject of post-9/11 

detention has brought the United States further back toward, if not 

into, the fold of respect for international human rights and humanitarian law and the purposes they serve. Boumediene recognizes 

the right of detainees to habeas corpus, and in so doing, not only 

vindicates a bedrock provision of the U.S. Constitution, but also 

comports with majority views among the international legal and 

political community that human rights law and domestic law operate in concert with the laws of war in times of armed conflict. 

Still, popular notions persists that a) existing laws of war and 

criminal law are inadequate because they did not anticipate today’s 

conflicts, b) that there is conflict and a requirement to choose between ‘‘war’’ and ‘‘crime’’ paradigms, and c) that therefore, a new 

‘‘legal architecture’’ needs to be developed. I will address each of 

these three notions. 

First, just because Henry Ford was not foreseen by the inventor 

of the wheel, does not mean that wheels are inappropriate to facilitate the locomotion of automobiles. The proper question is not 

whether traditional criminal law and the law of war were built to 

deal with modern forms of transnational terrorism, but rather, 

whether they are legally and practicably applicable to it. 

Second, the ‘‘either/or’’ and ‘‘neither/nor’’ approach that pits two 

distinct camps against each other (‘‘it’s a war, no it’s a crime’’) is 

35 

misguided. In fact, criminal law applies in wartime. And the laws 

of war that apply to detention and trial of terrorism suspects in today’s conflicts are not materially different from domestic criminal 

law, as tempered by international human rights law. Nonetheless, 

this false ‘‘tastes great/less filling’’ argument has staying power. 

One reason is that the administration has falsely insisted that domestic criminal law and human rights law do not apply in this 

‘‘war’’ and only the laws of war apply. Critics naturally gravitated 

to the converse view, equally incorrect, that only criminal law and 

human rights law should apply, not the laws of war. The administration was able to build up steam for its inaccurate vision because 

there is relatively little familiarity with how the laws of war, domestic law and international human rights law interact, both complementing and indeed, reinforcing one another. The way out of 

this endless and fruitless exercise in contradiction lies in two steps: 

first, recognizing the difference between how these three complementary legal regimes (domestic law, human rights law, laws of 

war) operate in three situations: in war between states, in war not 

between states, and in peacetime; and second, in exercising good 

faith judgment in deciding in which of those three contexts an individual is being held or tried. This does not mean that detention 

under the laws of war can have no place beyond the battlefield. Far 

from it. It does mean, however, that lines must be drawn between 

detentions that are truly in the context of war, and those that are 

not. 

Third, this third way—the one that does not require a choice between competing visions of war and peace, but rather, recognizes 

the complementarity of domestic criminal law and international 

laws of war and human rights—does not need to be ‘‘invented’’ with 

new laws, as some have advocated. It is the law. That fact has been 

obscured by the administration’s pick-and-choose approach to the 

laws of war and its wrong-headed assertions about what it means 

for the law of war to be the lex specialis, or specialized law, in 

times of war. ‘‘Lex specialis’’ does not mean that one body of laws 

applies to the exclusion of others. In armed conflict, for example, 

it merely means that individual law-of-war rules trump conflicting, 

and otherwise applicable, law-of-peacetime rules. 

Critics who scoff at this vision of complementary relations among 

applicable legal regimes think it naı ̈ve. I believe they overstate the 

benefits and underestimate the costs of ignoring domestic criminal 

and international human rights law in both liberty and security 

terms. 

What I envision is not a mere slavish implementation of pre-existing rules. The changing meaning of sovereignty in an increasingly interconnected world, the shifting focus of international law 

from state-to-state to state-to-individual relationships, the post-Second World War flowering of the age of rights, the maturation of the 

laws of war (sponsored in large part by the United States) into 

ever-more finely tuned rules designed to protect those who are not, 

or are no longer, taking part in hostilities—these are the moving 

parts in a delicate architecture upon which counterterrorism practices and policies are built. It’s a finely tuned balance derived of 

experience and negotiation among generations of lawyers, politicians, diplomats and other experts. This is the china shop into 

36 

1See AP article, attached. 

which the U.S. has now injected itself like a bull. The cries that 

the old rules are quaint, or that they were not designed for this 

new model of conflict, or that their imprecision makes it impossible 

for us to behave humanely, are shallow arguments in light of the 

grand interests that those rules are designed to vindicate. In other 

words a new ‘‘legal architecture’’ for terrorism is not merely unnecessary. It would risk doing more violence to the relationship among 

existing applicable criminal law, human rights law and the laws of 

war than the U.S. has already done, and of most importance, to the 

humanitarian purposes those laws serve. 

And within the existing legal architecture, there is more than 

sufficient flexibility to adopt new rules for current exigencies. In 

fact, Congress has been a player, providing new tools in relation to 

surveillance, terrorism financing, and criminal responsibility for 

support of terrorism at home and abroad. 

Some argue that the criminal courts are ill-equipped to prosecute 

terrorism cases. Calls for an administrative detention law and/or 

the establishment of a new national security court are built on this 

premise. Human Rights First recently released a report authored 

by former federal prosecutors detailing the experience of the criminal justice system in dealing with over 120 terrorism cases some 

before, and most after 9/11. The study, ‘‘In Pursuit of Justice: Prosecuting Terrorism in the Federal Courts,’’ is grounded in real experience with real cases, not on speculation. It found that the federal 

courts, while not perfect, have proven themselves to be capable of 

bearing the load and capable of flexing to meet the exigencies of 

cases brought before them. It found, most significantly, that tools 

such as the Classified Information Procedures Act (CIPA) operate 

properly to assure the protection of sensitive information and that 

there is sufficient substantive law to cover preparatory acts and 

conduct occurring abroad. It also found that criticism about soldiers 

being required to issue ‘‘Miranda’’ warnings and to conduct criminal investigations while under fire is simply misplaced. 

U.S. District Judge Leonie Brinkema, has presided over multiple 

terror trials including that of the so-called ‘‘20th hijacker’’—possibly the most notorious and complicated post-9/11 terrorism prosecution—the Moussaoui case. The trial featured a variety of challenges, including a defendant serving as his own lawyer and a 

block of classified evidence. Judge Brinkema noted that individually those circumstances are not unusual, but they were uniquely 

concentrated in Moussaoui. She said ‘‘I’ve reached the conclusion 

that the system does work,’’ and that the notion of a national security court should ‘‘send shivers down the spine of everyone.’’ 1

In other settings, federal judges have confided that where federal 

terrorism prosecutions falter or run aground, it is because the Justice Department had hyped and politicized the cases and brought 

charges not sustained by the evidence. 

Because this system works, it enjoys public confidence and is capable of delivering true justice and accountability. This is not to 

say that federal prosecution is the silver bullet answer to terrorism. Other strategies such as intelligence gathering, interruption of terrorism financing, diplomacy and even the use of armed 

37 

force have their place. But when the question is ‘‘According to what 

legal architecture should we detain and try terrorist suspects?’’ the 

answer is in plain sight, not in some hidden, secret place on the 

distant tip of a Caribbean island. 

In the Hamdan case, the Supreme Court recognized that Common Article 3 of the Geneva Conventions applies to wars that are 

not between two states, in this case, between the United States 

and al Qaeda. Boumediene takes the next logical step, consistent 

with the notion of complementarity among domestic law, human 

rights law and laws of war. It decides that, at least with reference 

to Guantanamo, where Common Article 3 applies, so can provisions 

of domestic law relevant to detention and trial, in this case, habeas 

corpus. While the Court focused its attentions on the constitutional 

right to habeas, it is equally important to note that Article 9 of the 

International Covenant on Civil and Political Rights, to which the 

U.S. is a party, also recognizes a prohibition against arbitrary detention, enforced by a right to judicial challenge of detention. This 

is a classic example of the co-operation of domestic law, human 

rights law and the law of war. 

In a somewhat anachronistic but pregnant phrase, Common Article 3 requires trials conducted in the context of wars that are not 

between two or more states to afford ‘‘all the judicial guarantees 

which are recognized as indispensible by civilized peoples.’’ This 

reference to law beyond the pages of the Geneva Conventions, 

themselves, is in contrast to the Conventions’ other sections dealing 

with wars that are between states. In state-to-state wars detainees 

have no right to habeas. Domestic and international human rights 

law have a minimal role. But these absences are compensated for 

by the fact that in wars between states, elements of fair trial are 

spelled out in detail that trumps inconsistent rules of domestic law 

and international human rights law. 

This distinction that the Conventions make between rules that 

govern state-to-state armed conflicts and rules that govern other 

armed conflict makes sense. In state-to-state conflict, a captured 

enemy combatant or civilian fighter does not get a habeas review, 

but instead, benefits from administrative review of detention. In 

lieu of judicial review to challenge detention, the Conventions provide detailed protections for treatment and trial of both prisoners 

of war and civilians. Such details are conspicuously absent from 

Common Article 3. Their absence is no accident. Combatants in 

state-to-state armed conflict are privileged belligerents who break 

no law by their mere participation in hostilities. But in other forms 

of conflict, fighters are unprivileged belligerents. And while 

unprivileged belligerency, contrary to the belief of some, is not a 

violation of the laws of war, it is definitely a violation of domestic 

criminal laws. In other words, where fighters are mere criminals 

the law of war anticipates that they would be treated under domestic law as tempered by international human rights law obligations. 

H.L. Mencken is reputed to have said that to every complicated 

problem there is a solution that is clear, simple, and wrong. The 

choice between crime and war is a debate inviting just such a solution. The complex real world in which we live has fortunately, and 

over considerable time, given us a suitably complex architecture of 

overlapping legal frameworks. If understood and respected, this arVerDate Nov 24 2008 08:01 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 E:\WORK\071508 HAROLD PsN: HAROLD
38 

chitecture will provide the tools necessary to meet the challenge of 

international terrorism without the harm to both security and civil 

liberties that would certainly result should we abandon it. 

THE ASSOCIATED PRESS

SATURDAY, FEBRUARY 2, 2008 

WASHINGTON: The judge who presided over Zacarias 

Moussaoui’s trial questioned the government’s decision to seek a 

death sentence against the Sept. 11 conspirator, and offered a 

strong defense of federal courts’ ability to handle terror trials. 

U.S. District Judge Leonie Brinkema said in a speech Friday at 

the American University law school that the government’s decision 

to seek a death sentence against Moussaoui appeared to be politically motivated, and that the zealous pursuit of a death sentence 

opened up numerous issues of exposing classified information that 

otherwise could have been avoided. 

‘‘The war on terror is an important piece of political leverage,’’ 

Brinkema said. ‘‘Don’t lose sight of the political realities.’’ 

Because the trial was a capital case, Moussaoui was allowed access to a wide array of evidence that would have been irrelevant 

in a non-capital case, including statements from captured al-Qaida 

leaders that Moussaoui was at best a bit player in their plans. 

The court struggled for nearly two years in trying to balance 

Moussaoui’s right to have access to those witnesses with the government’s right to continue its ongoing interrogations of those witnesses, including Sept. 11 mastermind Khalid Sheikh Mohammed, 

without interruption. Eventually the 4th U.S. Circuit Court of Appeals ordered that summaries of the men’s statements be prepared 

for trial without allowing defense depositions. 

At one point Brinkema barred the government from pursuing the 

death penalty as a sanction for its refusal to make key witnesses 

available, although an appellate court later lifted that sanction. 

Moussaoui pleaded guilty in 2005 to conspiring with al-Qaida to 

hijack aircraft, among other crimes. In a 2006 sentencing trial, a 

jury concluded that Moussaoui’s actions furthered the Sept. 11 plot. 

But the jury ultimately decided to spare his life and sentence him 

to life in prison. 

Rob Spencer, the lead prosecutor in the Moussaoui case, who is 

now in private practice at Lockheed Martin Corp., agreed that the 

case would have been much simpler as a non-capital case. 

‘‘But it was the greatest mass murder in our history, and it 

should have been charged as a death-penalty case,’’ Spencer said 

in a telephone interview. 

Both Brinkema and Spencer are in agreement, though, that the 

federal courts are equipped to handle terror trials, despite suggestions by Attorney General Michael Mukasey and others that some 

sort of new national security court should be considered to handle 

such cases. 

Brinkema, who has presided over multiple terror trials in Alexandria, Va., in addition to the Moussaoui case, said the notion of 

a national security court should ‘‘send shivers down the spine of everyone.’’ 

39 

The judge said she bristles at descriptions of Moussaoui’s trial— 

which included frequent outbursts by the defendant and a retracted confession—as a circus. Instead, she said the trial included 

a variety of challenges, like a defendant serving as his own lawyer 

and a block of classified evidence. Individually those circumstances 

are not unusual, but they were uniquely concentrated in the 

Moussaoui case, she said. 

‘‘I’ve reached the conclusion that the system does work,’’ 

Brinkema said. 

Spencer said a jury trial ‘‘serves a useful public purpose. It lets 

the public see what a terrorist really looks like. It lets the victims 

participate in the process.’’ 

David Laufman, a former assistant U.S. attorney in Alexandria 

who prosecuted Ahmed Omar Abu Ali, a U.S. citizen from Falls 

Church who was convicted of joining al-Qaida and plotting to assassinate President Bush, acknowledged that such trials can be 

complicated. But he said in a telephone interview that courts have 

‘‘legitimate constitutionally defensible mechanisms to allow these 

cases to go forward while protecting the rights of the accused.’’ 

Laws exist, for example, to develop declassified substitutions at 

trial for classified evidence under a judge’s supervision. 

Brinkema also said in her speech that there is no room in the 

American justice system for evidence obtained through torture, saying that ‘‘coerced testimony is inherently unreliable.’’ 

She cited Moussaoui as an example of an individual who likely 

would have cooperated with the right kind of questioning. 

‘‘I’m convinced that if someone sat down and had tea with him 

and could put up with his ramblings, that they could have gotten 

some information from him because he couldn’t keep his mouth 

shut,’’ Brinkema said. 

40 

PREPARED STATEMENT OF MATTHEW C. WAXMAN, ASSOCIATE 

PROFESSOR, COLUMBIA LAW SCHOOL 

I want to thank Chairman Hastings, Co-Chairman Cardin, and 

members of the Commission for inviting me to testify today. 

My name is Matthew Waxman and I am an Associate Professor 

at Columbia Law School, where I teach national security law and 

international law. I am also an Adjunct Senior Fellow for Law and 

Foreign Policy at the Council on Foreign Relations and a member 

of the Hoover Institution’s Task Force on Law and National Security. From 2001 to 2007 I served in several national security policy 

positions within the executive branch. Most relevant to today’s 

hearing, from 2004 through 2005 I served as Deputy Assistant Secretary of Defense for Detainee Affairs, a position created after the 

Abu Ghraib crisis to advise on and help manage the improvement 

of U.S. military detention policy and operations, including those related to the fight against al Qaeda. 

On September 11, 2001, the United States suddenly confronted 

a grave threat for which it was poorly prepared. Alongside the need 

to develop a long-term strategy the United States had to take urgent and immediate actions under conditions of great uncertainty, 

and neither traditional criminal law nor the law of war provided 

clear solutions. 

With the past seven years of experience, however, including important victories against terrorist networks as well as setbacks and 

mistakes, we need to reconsider the basic legal and policy decisions 

taken immediately after 9/11. Previous reform efforts, sparked by 

images and allegations of abuses, focused predominantly on interrogation standards. Although that issue has not yet been satisfactorily resolved, the next reform effort should also focus on two 

interlocking issues: the future of Guantanamo and the appropriate 

role for courts in reviewing detention decisions. I commend the 

Commission for holding today’s hearing to grapple with these crucial and vexing issues. 

In that regard, let me emphasize three points today: 

First, Guantanamo is a symptom of a much larger problem, and 

we should not consider it in isolation from other U.S. Government 

detention operations. 

Second, closing Guantanamo will be hard. There is no easy fix. 

And, third, despite these challenges, Guantanamo should closed 

because doing so—if handled right—will improve, not detract from, 

our ability to combat terrorism. 

My first point is that Guantanamo is just one part of a much 

larger problem: for the foreseeable future the United States and its 

allies will continue to capture suspected terrorists and al Qaida affiliates, and we need a durable framework for handling them. This 

framework must permit the long-term detention of the most dangerous individuals while facilitating intelligence collection (including through lawful interrogation), but with rules and procedures 

that are politically, legally, ethically and diplomatically sustainable. 

We need to solve the Guantanamo problem. But to consider 

Guantanamo in isolation from other U.S. Government detention operations, including those in Afghanistan and elsewhere, will leave 

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41 

intended consequences. Indeed one problem with previous, incremental legislative and judicial decisions is that they have focused 

on Guantanamo as a unique geographic location. The Supreme 

Court’s decision in Boumediene v. Bush, for example, which held 

that constitutional habeas corpus rights apply to detainees at 

Guantanamo, leaves uncertain whether some of the same constitutional rights apply to otherwise similarly-situated detainees held 

near combat zones or in other sites. To focus too narrowly on the 

few hundred detainees currently remaining at Guantanamo fails to 

address what is really a global problem, and can, for instance, inadvertently create incentives to keep detainees in less transparent 

conditions, in less secure locations. 

My second point is that closing Guantanamo will be difficult. 

There is no easy alternative without significant risks and costs. 

One reason it will be hard is because Guantanamo serves some 

critically important functions. It would be a mistake to exaggerate 

Guantanamo’s continued intelligence value or to deny that some individuals detained there should never have been or should have 

been released long ago. But it would also be a mistake to deny 

Guantanamo’s important role in incapacitating would-be terrorist 

plotters and agents and in providing a better picture of al Qaida’s 

structure and operations. If we close Guantanamo we will need alternative detention and intelligence capabilities. 

Another reason that closing Guantanamo will be hard is because 

there is no simple and ready alternative. Sending detainees back 

to their home countries has proven difficult. While the U.S. Government continues to make progress in transferring or releasing 

detainees through its Administrative Review Board process, many 

home countries either will not take them, will likely mistreat them, 

or will likely take inadequate steps to mitigate their continuing 

threat. Simply detaining individuals inside the United States instead of at Guantanamo requires working through difficult issues 

of where to hold them and pursuant to what rules, and answering 

tough questions such as what to do with detainees who are ordered 

released. And prosecuting them for crimes in U.S. courts is no easy 

answer either. Criminal prosecutions should be carried out whenever possible, but the evidence against a particular suspect sometimes cannot be used to prosecute without compromising intelligence sources and methods, or the important evidence may not be 

admissible or sufficient under U.S. criminal law rules. 

The most promising alternative to Guantanamo will not entail a 

one-size-fits-all approach. Instead, I believe it will require a combination of prosecuting some of them in civilian or military courts, 

transferring or releasing others to home countries or third countries, and perhaps detaining or even releasing some of them inside 

the United States. These efforts should be made in close consultation with our allies, for greater international transparency as well 

as to make clear that the pace of Guantanamo’s closure will depend 

on our allies’ greater willingness and ability to shoulder a greater 

share of the burden, including taking custody of some Guantanamo 

detainees and pressuring diplomatically home countries to do so 

under appropriate conditions. 

One of the most significant debates likely to arise as part of any 

effort to close Guantanamo is whether the United States should 

42 

create a new ‘‘national security court’’ to administer detention outside the normal criminal justice system. Such proposals involve 

complex policy and legal questions and carry major risks. Without 

weighing in for or against such proposals, I do want to emphasize 

that any such long-term detention system outside of combat zones 

must include, at a bare minimum, (1) robust judicial review; and 

(2) a meaningful opportunity for detainees to contest the legal and 

factual basis for detention, with assistance of counsel. Not only are 

these minimum features required under Boumediene, but without 

them any detention system will fail the fundamental test of legitimacy. 

My third point is that despite the many challenges I have just 

outlined, Guantanamo should be closed. If handled right, doing so 

will improve, not detract from, our ability to combat terrorism. 

While some may frame the issue as a stark choice between preserving principles of liberty and preserving our security, I believe 

closing Guantanamo is an opportunity to achieve both objectives. 

Successfully combating terrorism over the long term requires 

building and sustaining webs of cooperative international relationships and promoting principles and institutions of governance inhospitable to violent extremism. Continued controversy over Guantanamo has inhibited agreement with our coalition partners on how 

to confront terrorist networks at the strategic level, and has impeded cooperation—information-sharing, law enforcement collaboration, etc.—at the operational and tactical level. Negative perceptions abroad about Guantanamo also undermine our ability to promote principles of justice, rule-of-law and good governance, which 

are tied to our success in combating violent extremism. Closing 

Guantanamo alone will not solve these issues. But continuing to 

operate it as a long-term detention site certainly will make it difficult to do so. 

The Supreme Court’s recent decision in Boumediene v. Bush does 

not change the bottom line conclusion that Guantanamo should be 

closed. The habeas litigation that will now follow Boumediene 

erodes the argument that closing Guantanamo would result in judicial interference with detentions there. At the same time, that ruling is unlikely to wipe away the indelible perception abroad that 

Guantanamo exists to keep detainees beyond oversight and the full 

reach of legal protections due detainees there. 

With those three points in mind, let me conclude with one final 

thought: All of the alternatives to Guantanamo carry risks, including the possibility that some dangerous individuals may be released. But this risk should not determine unilaterally our policy. 

Detention policy is not about eliminating risk, but about balancing 

and managing competing risks, including risks to our values and 

legal system. We must assess realistically—not with alarmism or 

for political advantage—the marginal risks entailed and the 

counter-risks our own policies to date have created. 

The legal and policy challenges I have outlined are difficult, but 

they are surmountable in ways that will simultaneously strengthen 

both our security and our adherence to core democratic principles. 

I thank you for the opportunity to testify and look forward to our 

discussion. 

43 

PREPARED STATEMENT OF JEREMY SHAPIRO, FELLOW AND 

RESEARCH DIRECTOR, CENTER ON THE UNITED STATES 

AND EUROPE, THE BROOKINGS INSTITUTION 

Thank you for the opportunity to testify. I’ve spent the last several years trying to glean lessons from Europe’s long and troubled 

history with terrorism. I think it is a worthwhile effort and I commend this commission for this effort on the issue of detention. 

The problem of creating a system of norms and laws for detaining terrorism suspects has been a challenge for every democratic 

government that has faced a terrorist threat. The system of detention established in the United States after 9/11 has come under 

much justifiable criticism, but we should not infer from those errors that the U.S. government did not correctly identify an inadequacy in existing laws and practice. Terrorism always challenges 

existing legal regimes. One result is that effective and accepted 

standards for the detention of terrorism suspects are not well defined by the laws of war, by international human rights law, or by 

the domestic law of any democratic country that I have studied. 

Each democratic country that has faced a terrorist threat has 

struggled with precisely these issues; most have made very serious 

errors, embarked on policies that they later repudiated, and engaged in a long, painful process of reform. There are no silver bullets in the experience of other countries. 

It is also moreover the case that the threat and the domestic situation in every country are unique and policies cannot simply be 

transferred from one context to another. One other general lesson, 

however, does emerge quite strongly from the experience of other 

democratic countries. Counterterrorism measures, including those 

regarding detention, need to be rooted in pre-existing notions of 

law and fairness and they need to have broad support across the 

political spectrum. In the face of an imminent threat or after an 

attack, there is always pressure to act quickly and forcefully. But 

this is a long-term struggle and the record shows that ad-hoc antiterrorist measures that have little basis in societal values and shallow support in public opinion will not only oppress individual citizens, but they will ultimately fail, even by the standard of preventing future terrorist actions. 

With those general lessons in mind, I think it will be useful to 

look at the experience of two of America’s closest allies, France and 

Britain. 

FRANCE

France has a long and painful history with terrorism. In the 

1960s, the French struggled with both left- and right-wing terrorism stemming from the Algerian War of Independence; in the 

1970s, they suffered through attacks by Palestinian terrorists led 

by Carlos the Jackal; in the 1980s they faced persistent bomb attacks in Paris from groups sponsored by Iran and Syria; and in the 

1990s, they dealt fairly effectively with the first deadly stirrings of 

the Islamist threat, including a 1994 attempt to fly a hijacked airliner into the Eiffel Tower. 

French counterterrorism is firmly rooted in the criminal justice 

system, French officials emphasize that they do use extrajudicial or 

44 

administrative measures. This commitment reflects some hard-won 

experience. During the 1960s, De Gaulle created a quasi-military 

court, Le Cour de Sureˆte de l’Etat (the State Security Court) to try 

national security cases. The court was composed of three civilian 

judges and two military officers, it conducted trials in secret and 

offered no right of appeal. While that court was reasonably effective at its immediate task, it was very controversial and seen as 

a creature of the political party that created it. It lacked the legitimacy of a normal judicial procedure that could sustain it through 

the inevitable lulls in France’s struggle against terrorism. When 

the opposition socialists came to power in 1981, during a time of 

diminished terrorist threat, they eliminated the State Security 

Court. 

The current system was developed after the terrorist threat returned to France in the mid-1980s. Although based in the criminal 

justice system, counterterrorism in France recognizes the special 

nature of the terrorist crime and creates exceptional and flexible 

procedures in law for terrorist cases. In the view of the French 

legal scholar Antoine Garapon, it is precisely the flexibility of the 

French legal system that has eliminated the need to resort to 

extrajudicial measures. The French also take a self-consciously preemptive approach—they intend to stop terrorist attacks before they 

happen, not simply prosecute afterwards. They seem to be fairly 

good at this—there have been no serious terrorist attacks in France 

since 1996 despite several attempts and despite the frequent denunciations of France by Islamist terrorist groups, including alQa’eda. 

Detention is an important part of this pre-emptive system. It’s 

important to note that the French system of justice is based on an 

inquisitorial approach in which an investigating magistrate (an inexact translation of juge d’instruction) conducts a judicial investigation of serious criminal offenses. The investigating magistrate, 

somewhat of a cross between a prosecutor and a judge, has no precise analogue in the Anglo-Saxon system of justice. He is not an advocate for the prosecution or the defense, but rather he is charged 

with conducting an impartial investigation to determine whether a 

crime worthy of a prosecution has been committed. Because these 

magistrates are in theory impartial arbiters, they are granted fairly wide powers to open judicial inquiries, authorize search warrants and wiretaps, and issue subpoenas—powers that in the U.S. 

would require authorization from a judge. There are seven investigating magistrates in France that handle all of the terrorism 

cases in the country. In practice, the terrorism magistrates are not 

impartial investigators, they act like prosecutors but have the powers of a judge—a fact often noted by human rights advocates. 

The investigating magistrate can make use of two types of detention, both highly regulated within the judicial system: pre-charge 

detention (garde a` vue) and pre-trial detention (de ́tention 

provisoire). In normal cases, pre-charge detention is allowed for 24 

hours, extendible once. But if the case involves terrorism or a few 

other serious crimes, the investigating magistrates can authorize 

pre-charge detention for four days and, under some circumstances, 

six days. Suspects are not entitled to see their lawyer until after 

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45 

utes with the suspect. The suspect can usually notify his representatives of his arrest, but that privilege can be denied by the prosecutor if he believes it might prejudice investigations and it often 

is in terrorism cases. He is also not notified of his right to silence 

and can be interrogated without his lawyer present. As noted, the 

limitation of these rights is justified by the supposed impartiality 

of the investigating magistrate who is not considered an advocate 

for the prosecution. 

If the investigating magistrate recommends that the suspect be 

charged, he may also recommend pre-trial detention. Such detention is by law recommended only if it is necessary to preserve material evidence, prevent witness pressure, prevent flight, or to protect the accused, but it is quite common in terrorism cases. Pretrial detention can last for up to four years in terrorism cases with 

the investigating magistrate effectively determining the pace of the 

investigation and therefore the trial. Alternatively, the investigating magistrates can also decide on house arrest and other limitations, such bail or the surrender of a passport. There were some 

well-publicized abuses of pre-trial detention in terrorism cases during the 1990s, so since 2001, all pre-trial detentions must be approved a new type of independent magistrate, the Liberty and Detention Judge (juge des liberte ́s et de la detention). That judge 

must also hold a hearing every four or six months (depending on 

the charge) to re-authorize pre-trial detention in which he insures 

that that the investigation and trial are progressing at a reasonable pace. 

There have been many allegations of torture taking place during 

detentions, particularly of the use extended questioning periods 

and sleep deprivation, but no accusation of systematic abuse. In response, France created in 2007 an independent authority for the 

monitoring of all places of detention, the Inspector General of 

Places of Deprivation of Liberty (Controleur Ge ́ne ́ral des lieux de 

privation de liberte ́), but it is not yet operational. There are also 

controls in place to ensure that the suspects are seen by doctors at 

various points in the process. 

French counterterrorism officials view both types of detentions as 

critical to their success. The ability to hold essentially anybody for 

four days and to hold charged suspects for four years gives them 

ample opportunity to assemble a case. The investigating magistrates have occasionally chafed at the short pre-charge detention 

period, gaining an increase to six days under exceptional circumstances in 2006. But they consider the ability to question suspects for three days without a lawyer as critical and usually sufficient to obtain information about terrorist networks. In the 1990s, 

there were many instances of mass arrest (50–100 people) for preventative and intelligence purposes, including before the 1998 

World Cup in Paris in which people would be arrested in what 

were essentially sweeps. That technique is no longer used, but the 

pre-charge detention period is still clearly used as investigative 

technique in a more individualized fashion. The investigating magistrates also see the pre-trial detention as allowing them the time 

to assemble evidence from multiple sources, and to find alternatives sources for intelligence information that can’t be used in 

trial. 

46 

This system of detention has been roundly criticized by human 

rights organizations within and beyond France, including in a highly critical report by Human Rights Watch released this month. The 

role of the investigating magistrates is broadly condemned as too 

powerful and lacking in procedural checks, even after the reforms 

to create a Liberty and Detention Judge. Certainly, by American 

standards, the French counterterrorism apparatus is extraordinarily repressive and intrusive and this repression falls particularly on specific groups, primarily Muslims and Corsicans. During 

the wave of terrorist attacks in 1995, French authorities detained 

some 70,000 people for questioning; the vast majority of them were 

North African. 

Given these facts, the criticism of the system, including of detention, in French civil society has been rather tepid. Attacks on 

counterterrorism enforcement in France have not generally emanated from Muslim civil society groups. There is very little talk 

about the degree to which this cadre of special anti-terrorism legislation contributes to the frictions between the Muslim community 

and the state—a debate which is almost glaring in its absence. The 

Muslim community in France apparently has bigger issues with 

which to contend—issues of cultural integration and economic opportunity, the plague of ‘‘normal’’ criminal activity in Muslim areas, 

and the debate over public religious expression. In this generally 

highly contentious environment, occasional counterterrorism actions that affect the Muslim population do not generate much public outcry from within the Muslim community. This fact that these 

measures are consistent with French traditions and firmly embedded in law helps to limit public disapproval. 

UNITED KINGDOM

As in France, the history of detention policy in the UK is a contentious one, but in the British case, the controversy continues. 

The backdrop for the current debate is the British experience in 

Northern Ireland, particularly during the 1970s. In response to the 

violence in Northern Ireland, the British introduced internment, 

essentially rounding up terrorism suspects in camps without recourse to any judicial process. In a manner similar to the U.S. government after 9/11, the British authorities at the time showed a 

deep lack of confidence in the courts, especially in the capacity of 

juries to confront the problem of terrorism and to persevere in an 

environment of intimidation (and also sympathy for many of the 

accused.) Hundreds were rounded-up and interned. In part because 

the internees were overwhelmingly Catholics, the internment system was seen as biased and was very controversial. Internees were 

interrogated without trials and there were many accusations of torture. The system eventually collapsed under its own weight when 

a British Commission ruled that internment was contrary to British domestic law. The European Court of Human Rights later determined that the interrogation techniques were not torture but 

‘‘amounted to a practice of inhuman and degrading treatment.’’ In 

retrospect, most scholars believe the internment policy accomplished little beyond helping the IRA with recruitment. 

After this experience, the British government made a conscious 

effort beginning from the late 1970s to ‘‘criminalize’’ the terrorism 

47 

problem. As Margaret Thatcher so eloquently put it, ‘‘a crime is a 

crime is a crime.’’ In a similar manner to France, they created special courts and rules of evidence, but made a conscious effort to 

model them on the existing criminal justice system and to apply 

criminal law to the special circumstances of the terrorist crime. 

Judges were able under this system to authorize detentions. The 

IRA resisted the criminal label and, in part because of continual 

abuses of the system in Northern Ireland, in part because it still 

did not meet the test of living up to British legal traditions, the 

system did not succeed in de-politicizing terrorism in Britain. It 

was gradually abandoned, although not finally until 2005. 

As a result, the UK had still not found by 9/11 a method for detention that both comports with Britain legal traditions and its 

international obligations, and also meets the requirements of 

counterterrorism. In part, this is because the British system is 

more inflexible in its procedures than the French, but also it is because it doesn’t have the procedural options of the American system. Britain relies on a common law, adversarial system which 

means that the pace of the process is controlled throughout by the 

judge who is a neutral arbiter. The system permits post-charge 

questioning only in very limited circumstances and mostly rules 

out plea bargaining. The result is that gathering intelligence and 

evidence, must take place before an arrest, or at least before the 

charge is laid. In practice, this means that the questioning suspects 

can only be done in the limited pre-charge detention period. As the 

needs of intelligence on terrorism have mounted, the result has 

been a continual expansion of the pre-charge detention period 

Originally, the pre-charge detention period was limited to 48 

hours. It was extended in stages to 14 days (with a district judge’s 

approval) and then 28 days (with a high court judge’s approval). 

Currently, there is a bill before parliament to extend the period to 

42 days for special circumstances (i.e. the Home Secretary declares 

an exceptionally grave terrorist threat.) The bill will also allow 

some post-charge questioning in terrorism cases for 24 hours, with 

five day extensions available with the authorization of a justice of 

the peace. Each of these extensions has occasioned greater controversy than the last—the 2006 Terrorism Act had originally 

sought a 90 day detention period, but this was scaled back to 28 

days in response to parliamentary opposition. 

The current situation is very shaky—the 42 day period will probably pass, but not without great controversy and thus with fairly 

shallow support. The government remains wedded to the project, 

insisting that the long detention periods are necessary for terrorism investigations, although they have presented no evidence 

that this is the case. They will probably seek even greater extensions if there is another terrorist attacks in the United Kingdom. 

Eventually, the pre-charge detention period will run up against 

Britain’s European Charter of Human Rights (ECHR) Article 5 obligation to inform suspects ‘‘promptly’’ of the charges against them 

(if it has not already done so.) 

A separate but related issue concerns the British government’s 

efforts to detain foreign nationals without charge in a manner similar to that done by the US government in Guantanamo, albeit on 

a much smaller scale. The Anti-Terrorism Crimes and Security Act 

48 

of 2001 permitted such detention of foreign nationals on suspicion 

of being international terrorists. It applied to those who could not 

be deported and could not be tried because the government claimed 

that doing so would reveal sensitive and dangerous intelligence. In 

2004, the House of Lords ruled such detentions incompatible with 

Britain’s obligations under the ECHR Article 5, which forbids depriving any person of their liberty without due process of law. To 

avoid freeing suspected terrorists, the Prevention of Terrorism Act 

of 2005 replaced the detentions with a regime of ‘‘control orders’’ 

that was immediately applied to the ten individuals detained under 

the 2001 Act. The Act allows the Home Secretary to subject persons he reasonably suspects to be involved in terrorist activity, including British citizens, to a range of varied obligations including 

curfews, prohibition on arranged meetings with non-approved persons, prohibition on use of the internet or mobile phones, and a requirement to live at a specified address. Control orders that meet 

certain rather unclear standards are not considered deprivations of 

liberty under ECHR Article 5. This regime has also been immensely controversial and has only been applied to at most 16 individuals at a time. 

The British case presents a cautionary tale. The British experience in Northern Ireland led them to seek legislative solutions rooted in criminal law to the problem of counterterrorism after 9/11, 

but they were unable to find solutions that met both the test of efficacy and the test of comporting with British legal traditions and 

their international human rights obligations. The result has been 

continuing controversy and a continuing lack, in the views of 

counterterrorism officials, of the necessary tools for combating terrorism in the United Kingdom. In part, this was because they were 

too reactive to attacks and failed to think creatively about what 

modifications to their legal system were most necessary and possible in the long term. But it is also because they began with a very 

serious lack of flexibility. 

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