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i 

45–067 2009

[H.A.S.C. No. 110–79] 

UPHOLDING THE PRINCIPLE OF HABEAS 

CORPUS FOR DETAINEES 

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

HEARING HELD 

JULY 26, 2007 
(II) 

HOUSE COMMITTEE ON ARMED SERVICES 

ONE HUNDRED TENTH CONGRESS

IKE SKELTON, Missouri, Chairman 

JOHN SPRATT, South Carolina 

SOLOMON P. ORTIZ, Texas 

GENE TAYLOR, Mississippi 

NEIL ABERCROMBIE, Hawaii 

SILVESTRE REYES, Texas 

VIC SNYDER, Arkansas 

ADAM SMITH, Washington 

LORETTA SANCHEZ, California 

MIKE MCINTYRE, North Carolina 

ELLEN O. TAUSCHER, California 

ROBERT A. BRADY, Pennsylvania 

ROBERT ANDREWS, New Jersey 

SUSAN A. DAVIS, California 

RICK LARSEN, Washington 

JIM COOPER, Tennessee 

JIM MARSHALL, Georgia 

MADELEINE Z. BORDALLO, Guam 

MARK E. UDALL, Colorado 

DAN BOREN, Oklahoma 

BRAD ELLSWORTH, Indiana 

NANCY BOYDA, Kansas 

PATRICK J. MURPHY, Pennsylvania 

HANK JOHNSON, Georgia 

CAROL SHEA-PORTER, New Hampshire 

JOE COURTNEY, Connecticut 

DAVID LOEBSACK, Iowa 

KIRSTEN E. GILLIBRAND, New York 

JOE SESTAK, Pennsylvania 

GABRIELLE GIFFORDS, Arizona 

ELIJAH E. CUMMINGS, Maryland 

KENDRICK B. MEEK, Florida 

KATHY CASTOR, Florida 

DUNCAN HUNTER, California 

JIM SAXTON, New Jersey 

JOHN M. MCHUGH, New York 

TERRY EVERETT, Alabama 

ROSCOE G. BARTLETT, Maryland 

HOWARD P. ‘‘BUCK’’ MCKEON, California 

MAC THORNBERRY, Texas 

WALTER B. JONES, North Carolina 

ROBIN HAYES, North Carolina 

JO ANN DAVIS, Virginia 

W. TODD AKIN, Missouri 

J. RANDY FORBES, Virginia 

JEFF MILLER, Florida 

JOE WILSON, South Carolina 

FRANK A. LOBIONDO, New Jersey 

TOM COLE, Oklahoma 

ROB BISHOP, Utah 

MICHAEL TURNER, Ohio 

JOHN KLINE, Minnesota 

CANDICE S. MILLER, Michigan 

PHIL GINGREY, Georgia 

MIKE ROGERS, Alabama 

TRENT FRANKS, Arizona 

BILL SHUSTER, Pennsylvania 

THELMA DRAKE, Virginia 

CATHY MCMORRIS RODGERS, Washington 

K. MICHAEL CONAWAY, Texas 

GEOFF DAVIS, Kentucky 

ERIN C. CONATON, Staff Director 

PAUL OOSTBURG, Professional Staff Member 

ROGER ZAKHEIM, Professional Staff Member 

MARGEE MECKSTROTH, Staff Assistant 
(III) 

C O N T E N T S 

CHRONOLOGICAL LIST OF HEARINGS 

2007 

Page 

HEARING: 

Thursday, July 26, 2007, Upholding the Principle of Habeas Corpus for Detainees ................................................................................................................... 1 

APPENDIX: 

Thursday, July 26, 2007 .......................................................................................... 91 

THURSDAY, JULY 26, 2007 

UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR DETAINEES 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

Saxton, Hon. Jim, a Representative from New Jersey, Committee on Armed 

Services ................................................................................................................. 3 

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

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

WITNESSES 

Abraham, Stephen E., Lieutenant Colonel, U.S. Army Reserve .......................... 13 

Dell’Orto, Daniel J., Principal Deputy General Counsel, U.S. Department 

of Defense ............................................................................................................. 66 

Katsas, Gregory G., Principal Deputy Associate Attorney General, U.S. Department of Justice .............................................................................................. 69 

Keene, David A., Chairman, American Conservative Union and Co-Chair 

of the Constitution Project’s Liberty & Security Initiative ............................... 9 

Oleskey, Stephen H., Partner, Wilmer Cutler Pickering Hale and Dorr LLP ... 6 

Philbin, Patrick F., Former Associate Deputy Attorney General, U.S. Department of Justice ..................................................................................................... 11 

APPENDIX 

PREPARED STATEMENTS: 

Abraham, Stephen E. ....................................................................................... 153 

Dell’Orto, Daniel J. ........................................................................................... 176 

Katsas, Gregory G. ........................................................................................... 180 

Keene, David A. ................................................................................................ 115 

Oleskey, Stephen H. ......................................................................................... 95 

Philbin, Patrick F. ............................................................................................ 124 

DOCUMENTS SUBMITTED FOR THE RECORD: 

Report on Guantanamo Detainees, A Profile of 517 Detainees through 

Analysis of Department of Defense Data .................................................... 193 

CTC Report, An Assessment of 516 Combatant Status Review Tribunal 

(CSRT) Unclassified Summaries, 25 July 2007 .......................................... 221 

Preliminary Response to the Pentagon Commissioned Report, by Mark 

Denbeaux and Joshua Denbeaux ................................................................. 228 

Letter from Karen Mathis, President of the American Bar Association ...... 233 
Page

IV 

DOCUMENTS SUBMITTED FOR THE RECORD—Continued 

Excerpts from transcript of June 10, 2007, Meet the Press interview 

with Colin Powell, and September 13, 2006, letter from Colin Powell 

to Senator John McCain ............................................................................... 235 

Letters in support of restoration of habeas corpus ........................................ 239 

Letter from LTC Stephen E. Abraham to Rear Admiral McGarrah, dated 

10 December 2004 ......................................................................................... 267 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

[There were no Questions submitted during the hearing.] 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

Mr. Skelton ....................................................................................................... 271 
(1) 

UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR 

DETAINEES 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ARMED SERVICES, 

Washington, DC, Thursday, July 26, 2007. 

The committee met, pursuant to call, at 9:05 a.m., in room 2118, 

Rayburn House Office Building, Hon. Ike Skelton (chairman of the 

committee) presiding. 

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

SERVICES 

The CHAIRMAN. Ladies and gentlemen, the committee will come 

to order. 

Today’s hearing is about upholding the principles of habeas corpus for detainees at Guantanamo Bay, Cuba. 

Many across the country and some in this hearing room may ask 

why Congress should bother restoring the constitutional right to 

challenge arbitrary detention to the men in Guantanamo (GTMO) 

when some of them are self-avowed terrorists. 

For our first panel today, we have four very distinguished attorneys. 

Mr. Stephen Oleskey, please raise your hand. 

Mr. Oleskey, a partner at Wilmer Cutler Pickering Hale and 

Dorr, has represented six Bosnian Algerian men who have been detained at Guantanamo since 2002. Mr. Oleskey was awarded the 

2007 American Bar Association Pro Bono Publico Award largely because of his work on habeas matters. 

We thank you for being with us. 

Our next witness, Mr. David Keene, since 1984, has served as 

the chairman of the American Conservative Union as well as cochair of the Constitution Project’s Liberty and Security Initiative. 

Mr. Keene. 

Next we welcome back to the committee Patrick Philbin, who 

served as associate deputy attorney general from 2003 to 2005 and 

is currently in private practice. 

And, finally, Mr. Stephen Abraham, lieutenant colonel in the 

United States Army Reserve, although he is testifying as a civilian 

today. He has firsthand knowledge of the Combatant Status Review Tribunals (CSRT) through his work with the Office for the 

Administrative Review of the Detention of Enemy Combatants 

(OARDEC). 

We welcome you, gentlemen. 
2 

Back in 1945, an American country lawyer took to his feet in a 

courtroom in Germany and foreshadowed a couple of answers to 

the important question just put to us. 

Opening the Nuremberg trials of notorious Nazi prisoners, the 

country lawyer said that ‘‘civilization can afford no compromise 

with social forces which would gain renewed strength if we deal 

ambiguously or indecisively with the men in whom those forces 

survive.’’ 

Robert H. Jackson, chief counsel to the United States during the 

Nazi war trials, and later a Supreme Court Justice, could not have 

been more correct. We must prosecute those who are terrorists with 

the full force of the law, but we must also make sure that the convictions stick. And, gentlemen, being a former prosecuting attorney, 

I know full well what it is to make a conviction stick. The certainty 

of convictions must go hand in hand with tough prosecutions. 

The problem that we face is that the Military Commissions Act 

(MCA), which the last Congress passed over my strenuous objections, suffers from numerous flaws that I have outlined on previous 

occasions. Now, none of them is more severe than the stripping of 

habeas corpus from the detainees. In addition, earlier legislation 

established a questionable system of appellate review of the defective Combatant Status Review Tribunals process. 

Already, the legal weaknesses in the existing system have begun 

to crack. Last month, two military judges in separate opinions dismissed all charges against the only two detainees who have pending proceedings under the Military Commissions law because the 

legal process, under which they had been confirmed by a military 

panel to be enemy combatants, had not properly granted the military commissions jurisdiction over these defendants. 

Until this fundamental problem of personal jurisdiction is resolved, all military trials have stopped. 

Assuming that the Administration is able to correct this current 

mess, other legal challenges remain, which could result in known 

terrorists having their future convictions reversed. 

Restoring habeas to the detainees at Guantanamo would enable 

federal courts to help the Administration identify and rectify the 

inherent problems within the military commissions framework 

sooner rather than later, and may even accelerate prosecutions. 

Although the applicability of the holding in the Al-Marri case is 

rather limited and does not apply to the Guantanamo detainees, 

the U.S. Court of Appeals for the Fourth Circuit recently recognized a detainee’s right to habeas and ordered the Administration 

to consider federal civilian prosecution of the individual, among 

other options, after nearly six years of detention. 

As equally important as ensuring tough prosecutions is remaining true to who we are as a nation. We must match our bedrock 

commitment to the rule of law and human rights to the enemy’s 

propaganda of hatred. 

Restoring habeas for detainees allows us to reaffirm our global 

leadership on these values. On the other hand, abandoning a principle which has been a cornerstone of Anglo-American jurisprudence for nearly 600 years, arms the terrorists with another recruiting weapon and undermines our worldwide credibility. 
3 

In the course of prosecuting Nazi war criminals who had committed once-unimaginable atrocities, Robert Jackson, the country 

lawyer, said it best: ‘‘We must never forget that the record on 

which we judge these defendants is the record on which history will 

judge us. To pass these defendants a poisoned chalice is to put it 

to our own lips as well.’’ 

Citing Johnson v. Eisentrager, a 1950 case, some may propose 

that Justice Jackson would not have intended his words to apply 

to the detainees at Guantanamo. On the contrary, I would argue 

that Justice Jackson himself would have been affronted by the situation at Guantanamo and would have readily distinguished his 

Eisentrager holding from it, as the Supreme Court did a few years 

ago in the Rasul decision. 

I am looking forward to hearing from our witnesses on these critical matters. 

I now turn to my good friend, my colleague from New Jersey, a 

senior member of our committee, Mr. Saxton of New Jersey, for any 

opening remarks that he may wish to make. 

Mr. Saxton. 

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE FROM 

NEW JERSEY, COMMITTEE ON ARMED SERVICES 

Mr. SAXTON. Mr. Chairman, thank you very much. 

I want to welcome our distinguished panel as well as the next 

panel of witnesses from the Administration. Thank you for being 

here. I appreciate it. We all appreciate it very much and I look forward to your testimony. 

Over the last few years, this committee has spent a great deal 

of time focusing on our global war on terrorism detainee policy. The 

policy that this committee advanced last Congress takes into account how the war against terror has produced a new type of battlefield and a new type of enemy. 

Our committee worked hard to pass the Detainee Treatment Act 

(DTA) and the Military Commissions Act, ensuring that the United 

States is able to detain, interrogate, try terrorists and to do so in 

a manner that is consistent with the Constitution and the International Laws of Armed Conflict. 

I think we got it right. As we meet today, our detention policy 

is being executed in accordance with requirements of the DTA and 

the MCA and the recently revised Army Field Manual. 

The long-awaited military commissions have begun. Just last 

week, the D.C. Circuit Court issued an opinion with respect to combat status review tribunals, which demonstrated that the DTA and 

the MCA framework provides detainees at Guantanamo Bay with 

unprecedented robust review of their status as enemy combatants. 

A little less than six years after the horrific acts of September 

11, we are finally seeing the congressional-authorized detainee policy beginning to work. There were challenges along the way, and 

through rigorous oversight the Congress improved and in many instances changed the Administration policy. But with the signing of 

the MCA this past October, we are finally moving forward in my 

opinion in the right direction. 

Mr. Chairman, I have taken the time to refer back to the work 

of the previous Congress and to demonstrate that we have worked 
4 

hard on the issue before the Congress today and to say we ought 

to let this policy that Congress authorized in the DTA and the 

MCA have a chance to work. 

Last year on the MCA, this committee voted with a vote of 52 

to 8 to approve this policy. I note that today’s hearing is on the 

principle of habeas corpus as applied to detainee policy at GTMO. 

Context here is important. In the same week that Congress is 

wrestling with how to deal with the national intelligence estimate 

that warns of al Qaeda’s resurgence and its continued resolve to attack the homeland, this committee is considering whether we 

should grant members of al Qaeda detained at Guantanamo Bay 

more access to our courts. 

I emphasize, even more access to our courts because the current 

system does provide significant review of both the detention of 

enemy combatants as well as review of military commission decisions. The DTA and the MCA framework goes beyond what the 

laws of war require and are unprecedented in armed conflict. 

For those who criticize the DTA for not providing adequate review of the CSRT process and status determinations, I suggest you 

read last week’s D.C. Circuit opinion, Bismullah v. Gates. In my 

view, the Bismullah decision bolsters the claim that the DTA and 

the MCA framework provides an adequate alternative to habeas 

corpus. 

Though I would argue that the current statutory framework provides an adequate alternative to habeas corpus, I do not believe 

that combatants captured and detained outside the United States 

on the battlefield have a constitutional right to habeas corpus. The 

D.C. Circuit Court came to this conclusion in a decision earlier this 

year and the Supreme Court will in fact look at this question at 

the end of this year. 

This leads me to the very basic question: Why are we here? Why 

are we seeking to bestow a right upon terrorists held at GTMO 

that the Supreme Court may tell us in the coming months is not 

required under the Constitution? In the absence of compelling national security need or a constitutional requirement, the Congress 

should not move to change the process it put in place less than a 

year ago. 

There is a more fundamental problem with providing habeas 

rights to detainees at GTMO. It will create an avalanche of litigation that will bring our detainee policy potentially to a grinding 

halt. 

I am not here to be an alarmist. Competitive and duplicative litigation will challenge not only the continued detention of detainees 

at GTMO but also the transfer of detainees from GTMO to their 

countries of origin. If the Department cannot continue to detain or 

transfer detainees because of an endless litigation, we will ultimately be forced to release these individuals. This is unacceptable. 

Of the approximately 400 detainees at GTMO that we have 

transferred to or released under the current policy, about 30 have 

been killed or captured after returning to the battlefield. Press reports indicate that one of the former GTMO detainees killed himself earlier this week when Pakistani soldiers tried to capture him. 

Why would we take steps that would result in more detainees returning to the battlefield? Increasing the rights of detained terror-
5 

ists at GTMO will move the present conflict from the battlefield 

into our courts. This would not be to our advantage and this is no 

way to conduct an armed conflict. 

Finally, I fear that adding habeas corpus rights to the current 

statutory framework produces an absurd policy, the result where 

detainees at GTMO would have more due process with respect to 

their detentions than U.S. citizens would in an analogous scenario. 

Additionally, to my knowledge the laws of war do not provide lawful combatants with habeas review. As a result, I am concerned 

that giving enemy combatants habeas corpus would in addition to 

the rights we currently give them create a system that rewards 

combatants for acting unlawfully and for using terrorist tactics. 

Let me just end with one simple point that I mentioned earlier. 

Our terrorist detainee policy was constructed to address a new type 

of enemy in a new type of war. We have used the International 

Laws of War and the Uniform Code of Military Justice as guideposts in crafting this new policy, and that is because it is fundamentally a war policy. 

Amending the DTA and the MCA framework will have the net 

effect of holding up the execution of the global war on terrorism detainee policy. Some would like this result. They would prefer to see 

terrorists tried under a criminal justice system. This is a false 

choice, at least that is my opinion. We can try terrorists for war 

crimes if it requires our soldiers to read terrorists Miranda rights 

or to take a battalion of lawyers onto the battlefield. We have tried 

the former approach, and it doesn’t work. 

During the trial of the terrorists responsible for the first World 

Trade Center bombing, the discovery rules of the criminal justice 

system gave the defense access to information that found its way 

to the al Qaeda camps in Afghanistan. The DTA and the MCA 

framework is crucial because it is crafted for the conduct of war 

providing procedures flexible enough to account for the constraints 

and conditions of the battlefield. 

Mr. Chairman, five years-plus into this war we have crafted a 

new policy tailored for the new conflict that will work. Now it is 

upon us to exercise discretion and give this policy a chance. 

Mr. Chairman, I would like to submit at this time for the record 

the executive summary of a report released just yesterday by the 

Combating Terrorism Center at West Point, which analyzes 516 

CSRT unclassified summaries that took place between July of 2004 

and March of 2005. I note that the CTC study found that 73 percent of the unclassified summaries meet CTC’s highest threshold of 

a demonstrated threat as an enemy combatant, and I have the report here, which I ask unanimous consent be included in the 

record. 

The CHAIRMAN. Without objection, it is included. 

Mr. SAXTON. Thank you, Mr. Chairman. 

The CHAIRMAN. I do, however, introduce the report on Guantanamo detainees by Mark Denbeaux, professor at Seton Hall, and 

Joshua Denbeaux—the West Point report that you have, plus the 

preliminary response to that report. And I wish that they also be 

included in the record. And the one that you, Mr. Saxton, include 

in the record, is the one in the middle. 

Without objection, each of them will be placed in the record. 
6 

[The information referred to can be found in the Appendix beginning on page 193.] 

The CHAIRMAN. I am having a little bit of trouble with your 

name. Is it Oleskey? 

Mr. OLESKEY. It is, Mr. Chairman, yes. Thank you. 

The CHAIRMAN. Okay. Mr. Stephen Oleskey, we will call on you 

first. 

Let me also state that, without objection, each of your written 

statements will be included in the record in total, and if you could 

condense them, that would move us along much more rapidly. 

Mr. Oleskey. Have I got it? 

STEPHEN H. OLESKEY, PARTNER, WILMER CUTLER 

PICKERING HALE AND DORR LLP 

Mr. OLESKEY. You do. 

Mr. Chairman, thank you, Ranking Member Saxton, members of 

this distinguished committee. 

My name is Stephen Oleskey. I am a partner in the law firm of 

Wilmer Cutler Pickering Hale and Dorr. I appear today to testify 

in support of H.R. 2826 filed by the chairman and other members 

of this committee to restore habeas corpus to the approximately 

375 men detained in Guantanamo. 

Since July 2004, my firm has been representing pro bono in habeas corpus proceedings six men from Bosnia. These men were living with their wives and children in Bosnia in October 2001. Bosnia was far from any battlefield. 

The U.S. Government insisted that the Bosnian government arrest the six on suspicion on planning to blow up the U.S. embassy 

in Sarajevo. The Bosnians said they had no evidence of any such 

plot. The U.S. said it wanted the men arrested anyway immediately and so they were. 

The men were held for 90 days while an extensive investigation, 

which included our own FBI agents, was carried out under the supervision of a judge of the Bosnian Supreme Court. The men’s 

homes and offices were searched for incriminating evidence, but no 

evidence of any such plot was uncovered. After 90 days under Bosnian law the Bosnian judge ordered the men released for lack of 

evidence. 

There were rumors, however, that the men would be sent by the 

U.S. to a new prison in Cuba. Therefore, their lawyers sought and 

obtained an order from the Bosnian Human Rights Chamber Court, 

set up by the Dayton Accords, prohibiting such an action. 

At the U.S.’s insistence, however, the men were sent immediately 

to Cuba. They arrived on January 20, 2002, and have been kept 

there without charge or trial for five years, seven months and six 

days. We filed habeas petitions for them in July 2004. We have devoted thousands of hours to investigating their case, including visiting them 11 times in Cuba. 

The men were all labeled as enemy combatants in the fall of 

2004 by CSRT panels. Let me remind you briefly how that CSRT 

system was created in seven days in early July 2004 by then-Deputy Defense Secretary Paul Wolfowitz immediately after a Supreme 

Court decision held there must be some formal process to hold men 

without trial indefinitely in Guantanamo. 
7 

The Administration has said these men can be held until the end 

of the war on terror. This means, as Justice O’Connor wrote in 

2004, that they can be held for the rest of their lives and all as 

a result of a CSRT process in which they had no counsel, were not 

told what the secret evidence was against them, could offer no witnesses except fellow prisoners, and could offer no documents to 

rebut the very sweeping, general claims made against them in the 

secret evidence. 

If all of that was not enough of a stacked deck, all of the evidence 

the government gave the CSRT, whatever the source or quality, 

was presumed by the Wolfowitz order to be correct. 

In 2004 in the Rasul decision, the Supreme Court appeared to 

say that all Guantanamo habeas corpus cases could go forward on 

their merits in federal district court. Then in 2005, in the Detainee 

Treatment Act, a previous Congress provided the limited review of 

CSRT decisions by the Court of Appeals in Washington, but this review was confined to whether the CSRTs had complied with their 

own procedures. 

You will hear today from me and Lieutenant Colonel Abraham 

how one-sided these procedures were and how grossly unfairly they 

were applied. 

Then in 2006, the last Congress passed the Military Commissions Act. This act sought to strip habeas corpus rights from any 

alien anywhere in the world seized by our military and labeled an 

enemy combatant by a CSRT. 

Last week’s decision by the D.C. Court of Appeals on preliminary 

procedural issues in the first cases heard under the DTA underscores how inadequate that review process is compared to a habeas 

procedure before a federal trial judge. 

We are left with a host of unresolved questions about what a 

Court of Appeals review of each CSRT will involve and how long 

it will take to resolve even a single case. These unresolved issues 

are not surprising. Usually, but not here, an appellate court reviews a detailed record of a lower trial court or federal administrative proceeding in which lawyers were present for all parties. Usually, but not here, recognized rules of evidence are applied. Usually, but not here, there is no issue of evidence arising from torture 

or coercion. Usually, but not here, all parties are able to offer documents, witnesses and cross examine each other. But none of this 

happened for any detainee in the hundreds of CSRTs that took 

place. 

Let me give you three brief examples from our own six cases of 

how truly unfair these CSRTs were and why habeas review is required. 

All detainees were declared enemy combatants based almost entirely on secret evidence they were not allowed to see much less 

able to abut. As our client, Mustafa Ait Idir said to his CSRT 

panel, ‘‘You say I am al Qaeda and I say I am not. You say I am 

al Qaeda based on evidence that you cannot show me and that I 

cannot respond to. Maybe if you tell me who says this, I can say 

I know this man from somewhere and I can respond. But this way, 

I can do nothing. Excuse me, but if someone said this to me in my 

country, we would laugh.’’ 
8 

Mr. Ait Idir and another of our clients asked that the decision 

of the Bosnian Supreme Court from January 2002, that they be released immediately for lack of evidence, be given to their panels. 

Obviously, this would be an important fact to consider. Both panels 

found this publicly filed legal document available on the Web and 

in our pleadings not reasonably available. 

Not one of the six panels for our clients ever saw this important 

document. 

Let me give you a third example of how fundamentally unfair 

these procedures were. The procedures allow detainees to call reasonably available witnesses. One of our clients asked that his panel 

contact his boss at the Red Crescent Society of Abu Dhabi in Sarajevo where he was a full-time employee doing relief work with Bosnia orphans when arrested. The panel declared the witness was not 

reasonably available. 

Three months after this finding, I went to Sarajevo. I picked up 

the local telephone book, found the number for the Red Crescent 

Society and called the witness. Within 24 hours, I had interviewed 

him. He confirmed my client’s account of his employment and outstanding character, an account that his CSRT never heard. 

As these and many other examples show, the CSRT process is 

too full of holes for any Court of Appeals to patch years later. 

Based on our extensive experience and observation, the CSRT process is disgraced and disgraceful. No amount of limited tinkering 

with individual CSRT proceedings by a federal appeals court is 

likely to produce a fair result because the CSRT process itself was 

not designed to be fair or to consider objectively whether to continue to hold these men. 

Finally, let me tell you a few important facts about a habeas 

hearing. Habeas is not a jury trial. It is a hearing by an Article 

III federal judge alone, one who reviews habeas petitions frequently. Habeas hearings are not exotic. They are routine. There 

were 22,000 habeas petitions filed last year in the federal courts. 

We are talking only of an additional 375. Habeas is not a criminal 

trial. There will be no Miranda issues. The only issues for a habeas 

judge will be, one, whether the government’s evidence before the 

court is sufficient to hold the detainee indefinitely or, two, in some 

cases whether the detainee can be transferred by the government 

to another country where he fears torture. 

The habeas standard will not be the criminal law standard of 

proof beyond a reasonable doubt but a lesser standard of review. 

The habeas judge will independently review the evidence he or she 

considers relevant, whether that evidence was given to the CSRT 

or not. And that judge will look at exonerating evidence for the 

first time, virtually none of which was provided to any CSRT panel. 

Finally, under habeas the trial judge can order a detainee released in a proper case instead of being sent back for yet another 

CSRT. In a habeas hearing, American citizens can have some confidence there is likely to be a fair and final decision thoughtfully 

arrived at. Contrast this with Brigadier General Jay Hood’s statement several years ago in the press. He had been in charge of 

Guantanamo. He said, ‘‘Sometimes we just didn’t get the right 

folks, but nobody wants to be the one to sign the release orders. 

There is no muscle in the system.’’ 
9 

A federal trial judge in a habeas hearing will put some muscle 

in the system, and some muscle is what the chairman’s bill will 

provide. The jury-built seven-day CSRT process needs finality and 

certainty, not endless do-overs where a Court of Appeals sends 

cases bouncing back to yet another CSRT and the case then rebounds again back to the appeals court while more years pass. 

H.R. 2826 brings integrity and finality to this process. It restores 

the habeas rights that the last Congress took away. It leaves the 

federal trial judges, not appellate judges, doing what trial judges 

do every day and do very well, sift the evidence, assess it, decide 

what other evidence the detainee should be allowed to offer. In a 

habeas case, a trial judge, not three military officers, decides 

whether the government has shown enough to justify holding a detainee for a lifetime or should instead now be released. 

Yes, let us take the truly evil men who our military seized on the 

real battlefields in this world, put them on trial in federal court or 

in appropriate cases before a military commission. There have been 

over 300 terrorists convicted or who have pled guilty in recent 

years in federal court. 

By passing H.R. 2826 this committee can begin to restore the 

confidence of the rest of the world that this great country remains 

a shining example of a nation committed to living by the rule of 

law, no matter how much our new enemies provoke us to experiment with seven-day fixes and seemingly stacked decks. 

Thank you, Mr. Chairman and members of the committee. 

[The prepared statement of Mr. Oleskey can be found in the Appendix on page 95.] 

The CHAIRMAN. Mr. Oleskey, thank you. 

Now Mr. Keene. 

STATEMENT OF DAVID A. KEENE, CHAIRMAN, AMERICAN CONSERVATIVE UNION AND CO-CHAIR OF THE CONSTITUTION 

PROJECT’S LIBERTY & SECURITY INITIATIVE 

Mr. KEENE. Chairman Skelton, Mr. Saxton and members of the 

committee, let me begin by thanking you for the opportunity to appear before you this morning. 

My name is David Keene. I am chairman of the American Conservative Union and co-chair of the Constitution Project’s Liberty 

and Security Initiative. 

I am here today because as a conservative I believe that ours is 

the greatest and freest nation on the face of the earth. I am here 

today because as a conservative I believe we can defeat our enemies without compromising the values that have made this Nation great. 

As citizens, we owe it to ourselves to support realistic measures 

needed to protect our Nation. But men and women of goodwill, regardless of party, have to be able to work together to make certain 

that our rights survive the stresses of the war in which we are 

today engaged and the zeal of those fighting it, who sometimes forget just what it is they are fighting to protect. 

Since 9/11, Congress has granted the executive branch extraordinary powers to identify, pursue, and eliminate threats to the 

safety of this country and her citizens. I am one who believes that 

Congress was correct in granting much of the power sought be-
10 

cause of the need to deal with a new kind of enemy in an age of 

technological advancement that might otherwise have given our enemies advantages that we couldn’t match. 

The fact that we have successfully avoided another attack within 

our borders is testimony to the effective way in which those 

charged with our protection have pursued their mission using the 

traditional and newly granted powers available to them. 

On the other hand, as a conservative I believe it is always wise 

to look critically at every request for more governmental power. 

Those charged with protecting us naturally want all the power and 

flexibility they can get to pursue their mission, but sometimes forget that in protecting us there is a danger that they might inadvertently damage the very values they are trying so desperately to 

protect and preserve. 

A few days after the terrorist attacks in New York and here, 

then-Defense Secretary Don Rumsfeld said that if we change the 

way we live as a result of the terrorist threat we face, the terrorists 

will have won. 

The question we have to ask ourselves as we pursue victory over 

those who would destroy our way of life is whether the steps we 

take to achieve victory risks the destruction of who and what we 

are. It is vital that we preserve the traditional American constitutional and common law rights that have made our regard for 

human liberty unique in world history. 

I am here today not to question the validity of holding terrorist 

suspects at Guantanamo Bay or anywhere else, but to urge that 

those we do hold have the ability to seek an objective review of the 

legality of their incarceration. 

Throughout our Nation’s history, the great writ of habeas corpus 

has served as a fundamental safeguard for individual liberty by enabling prisoners to challenge their detentions and to obtain meaningful judicial review by a neutral decision maker. 

Although I agree that our government must and does have the 

power to detain foreign terrorists to protect national security, repealing federal court jurisdiction over habeas corpus does not serve 

that goal. It is crucial that we maintain habeas to ensure that we 

are detaining the right people and complying with the rule of law. 

Those who argue against extending habeas rights to those being 

held at Guantanamo like to describe those incarcerated there as 

among the most dangerous of our enemies and suggest that anything that might lead to the premature release of any of them 

would constitute a dire and immediate threat to our national security. 

I have no doubt that some of those being held there today are 

enemies who deserve to be exactly where they are. But the purpose 

of a habeas hearing is not to release the guilty but to separate the 

innocent from the guilty. Many of those being held there were 

shipped to Guantanamo without any proof whatever that they ever 

even intended to engage in actions against us. 

Defense Department data suggests that there is evidence that 

about 8 percent of them have actually fought against us, but that 

as much as 55 percent of the remainder have never committed a 

hostile act against the United States or our allies. 
11 

Many of these people have been in prison for five years or longer 

and may be held indefinitely without ever being brought to trial for 

anything at all, even though the Central Intelligence Agency (CIA) 

reported five years ago that most of them don’t belong there. 

If we are to hold people indefinitely without charge, we should 

at the very least want to be certain that we are holding the right 

people. 

Restoring habeas corpus is also important to protecting Americans overseas. America’s detention policy has undermined our reputation in the international community and weakened support for 

our fight against terrorism, particularly in the Arab world. Restoring habeas rights would help repair that damage and demonstrate 

America’s commitment to a tough but rights-respecting counterterrorism policy. 

Having said this, however, I have to say that I am personally 

concerned not so much by what others might think of us or do as 

a result of our policies but of what the cavalier dismissal of fundamental rights for those we are holding says about who we are. 

Therefore, I urge Congress to restore the habeas corpus jurisdiction eliminated by the Military Commissions Act because of who we 

are and what this Nation represents. You can do that by supporting H.R. 2826, reporting it out of committee and urging your 

colleagues to do the same when it reaches the floor of the House 

of Representatives. 

Thank you very much. 

[The prepared statement of Mr. Keene can be found in the Appendix on page 115.] 

The CHAIRMAN. Thank you, Mr. Keene. 

Mr. Philbin. Correct? 

Mr. PHILBIN. Yes, sir. 

The CHAIRMAN. Please proceed. 

STATEMENT OF PATRICK F. PHILBIN, FORMER ASSOCIATE 

DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. PHILBIN. Chairman Skelton, Ranking Member Saxton and 

members of the committee, I appreciate the opportunity to address 

the matters before the committee today. 

The detention and trial of enemy combatants are critical functions in the continuing armed conflict against al Qaeda. The procedural rights that Congress grants enemy combatants to challenge 

their detention and trial are vitally important also both because 

they can affect the success of the military mission at hand and because they play a role in reflecting America’s commitment to fairness and the rule of law. 

The recently released National Intelligence Estimate (NIE) provides a reminder that our conflict with al Qaeda still presents a 

grave continuing threat to our national security. Even in the face 

of this ongoing threat, Congress and the executive branch working 

together under the guidance of the Supreme Court have created a 

fair system for reviewing enemy combatant detention and trial by 

military commission, a system that exceeds the United States’ obligations under the Constitution and under international law. 

First, to address the risk of erroneous detention, the executive 

has established an elaborate system of review, the Combatant Sta-
12 

tus Review Tribunals, or CSRTs. Although none detained at Guantanamo are American citizens, these CSRTs were crafted to satisfy 

the procedural requirement that the Supreme Court had previously 

indicated would be sufficient to justify detaining even American 

citizens as enemy combatants when detained in the United States. 

The Supreme Court outlined those factors in the Hamdi decision. 

Indeed, the CSRTs provide detainees with more rights than are required for status determination under Article V of the third Geneva 

Convention for lawful combatants potentially entitled to prisoner of 

war (POW) status for it grants detainees not only the assistance of 

a personal representative but also a right to review of the CSRTs 

determination in a U.S. Court of Appeals for the D.C. Circuit and 

subsequent review in the U.S. Supreme Court through a Petition 

for Certiorari. 

Just last Friday, moreover, the D.C. Circuit made clear in 

Bismullah versus Gates that its review of the determinations of 

Combatant Status Review Tribunals would be robust. The court rejected the government’s position that reviews should be based solely on the record developed before the CSRT, that is the information 

actually presented to the CSRT. Instead, the court will review all 

information available to the government, whether it actually made 

it into the CSRT process or not. 

That extraordinary level of judicial review for a military decision 

will ensure that even if there have been flaws in a particular CSRT 

proceeding, the court will be able to look beyond what was presented to the CSRT. 

Mr. Oleskey has suggested that habeas is necessary because an 

Article III judge will put muscle into the system. I believe that the 

Article III judges of the D.C. Circuit have already demonstrated 

that they will put muscle into the system of reviewing the CSRT 

decisions. 

Second, Congress has established in the Military Commissions 

Act a set of procedures for military commissions that is both unprecedented in its detail and fully adequate to satisfy all legal requirements, including those specified by the Supreme Court in 

Hamdan versus Rumsfeld. And Congress has also granted detainees the right to challenge military commission judgments in the 

D.C. Circuit as well. 

These review rights are unprecedented in the history of warfare. 

There is no legal requirement to permit detainees another largely 

duplicative round of federal court review through habeas corpus. 

The civilians held at Guantanamo Bay have no constitutional 

rights to assemble under the First Amendment. They also have no 

constitutional right to habeas corpus. And even if they did, the current system nonetheless would satisfy that right by providing an 

adequate substitute for habeas corpus through federal court review 

in the D.C. Circuit. 

Given the absence of any legal defect in the current mechanisms 

Congress has provided for reviewing the detention and trial of 

enemy combatants, it becomes clear that amendments proposed to 

the MCA and DTA should be evaluated solely as policy choices for 

Congress to make. 

But from a policy standpoint, the case for reestablishing habeas 

review is not compelling. It would add a confusing parallel avenue 
13 

of judicial review that would sacrifice the benefits of the order we 

have received through Congress established in the MCA. Moreover, 

it would do so without providing any additional substantive rights 

for the detainees. Nor would the simple step of adding habeas review cure any specific practical deficiencies that might exist within 

the current CSRT and military commission procedures and to 

which the D.C. Circuit might well provide answers in any case as 

the recent Bismullah decision indicates. 

There are also two specific problems with H.R. 2826 that I would 

like to focus members’ attention on. First, there is a substantial 

risk that the geographical reach created by habeas review created 

by H.R. 2826 would burden military commanders in the midst of 

critical operations overseas, precisely the danger the Supreme 

Court wisely warned against more than 50 years ago in Johnson 

versus Eisentrager. 

Although H.R. 2826 contains an exception barring habeas jurisdiction over actions brought by aliens held ‘‘in an active zone of 

combat,’’ it is unclear what areas would qualify under that undefined term. Defining that term would be left up to endless rounds 

of litigation. Moreover, because the laws of war generally require 

commanders to evacuate prisoners from combat zones in any case, 

there can be little assurance that this exception would accomplish 

its apparent objective of preventing the expansion of habeas jurisdiction to areas like Afghanistan. 

Second, as a final point, I would like to make sure that close attention is paid to provisions in H.R. 2826 that would clear the way 

for exercise of jurisdiction over actions, ‘‘for prospective injunctive 

relief against transfer.’’ The transfer of detainees has traditionally 

been an executive process and that is so because it involves delicate and flexible negotiations with foreign powers. Through these 

negotiations, our government assures itself that the receiving government is willing to accept responsibility for ensuring that the detainee will no longer pose a threat to the United States or its allies 

and also that the detainee, once transferred, will not be subjected 

to torture. 

Inserting the courts into this process, which involves negotiation 

with foreign governments, particularly without providing any particular standards they are to apply, would be extremely disruptive. 

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

committee. I would be happy to address any questions the committee may have. 

The CHAIRMAN. Mr. Philbin, thank you so much. 

[The prepared statement of Mr. Philbin can be found in the Appendix on page 124.] 

The CHAIRMAN. Mr. Abraham. 

STATEMENT OF STEPHEN E. ABRAHAM, LIEUTENANT 

COLONEL, U.S. ARMY RESERVE 

Mr. ABRAHAM. Mr. Chairman, Ranking Member Saxton and to 

the honorable members of this committee, I am here to speak as 

a witness to events while assigned to OARDEC. 

The lens through which I describe what occurred was at the time 

of my assignment, based on 22 years as an intelligence officer and 
14 

10 years as a lawyer. I will resist the urge of a lawyer and be brief, 

if I may. 

In that time of note, I served as lead terrorism analyst for the 

Joint Intelligence Center Pacific following the brutal 9/11 attacks. 

I was at OARDEC from September 2004 to March 2005, the time 

during which nearly all of the CSRTs were performed. 

In that time, I was called upon to serve as an intelligence officer, 

a liaison officer with other agencies, and a CSRT tribunal member. 

What I expected and what occurred were two entirely different 

things. 

The process was described to me as one in which we would determine in the first instance if detainees were enemy combatants. The 

reality was that the process was designed to fail, to validate prior 

determinations. The very name OARDEC by its letters, its initials 

and by the words for which they stand, the Administrative Review 

of the Detention of Enemy Combatants, did not merely invoke a 

presumption but a mandate. 

As a liaison officer, I was charged to validate the existence of exculpatory evidence. In practice, I was denied the ability to review 

relevant information or confirm the existence of exculpatory evidence. 

As an intelligence officer, I expected to see files developed on detainees using specific information developed through post coordination with other intelligence agencies. In reality, the information 

upon which CSRT decisions were based were vague, generalized, 

dated, and of little probative value. 

And as a CSRT board member, I expected to be presented with 

sufficient material from which to reach conclusions regarding the 

status of detainees. What our board received was not only insufficient but evidenced a profound lack of credibility as to both the 

source of the information and the process of review. 

When our panel questioned the evidence, we were told to presume it to be true. When we found no evidence to support an 

enemy combatant determination, we were told to leave the hearings open. When we unanimously held the detainee not to be an 

enemy combatant, we were told to reconsider. And ultimately, 

when we did not alter our course, did not change our determination, did not go back and question the very foundation by which we 

had reached our decision, a new panel was selected that reached 

a different result. 

What I expected to see what a fundamentally fair process in 

which we were charged to seek the truth free from command influence. In reality, command influence determined not only the enlightening past face of the 500-plus proceedings but in large part 

the outcome, little more than a validation of prior determination 

that the detainees at Guantanamo were enemy combatants and, as 

we have heard so many times, presumed to be terrorists who could 

be detained indefinitely. 

I am not here today as an advocate for any detainee, no matter 

what their status. I am not here as an advocate for legislation but 

rather for truth silenced too long. I am here as a person charged 

by my oaths as a commissioned officer and as an officer of the court 

to uphold and defend the Constitution of the United States. What 

I witnessed while assigned to OARDEC respected neither oath. 
15 

The process of which I was a part did not discover the truth but 

ratified conclusions made long before my assignment. Those conclusions are entitled no deference by this body or any other. 

If I may, I recall a line from ‘‘Casablanca,’’ where at the end Captain Renault said, ‘‘Round up the usual suspects.’’ Today, they 

would be at Guantanamo. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Abraham can be found in the Appendix on page 153.] 

The CHAIRMAN. Thank you, gentlemen, very, very much. 

Each of the four of you cause me to recall the valiant efforts of 

long deceased Colonel Carl Restine from my hometown of Lexington, Missouri, World War I veteran and recalled as a judge advocate general officer during the Second World War. 

Colonel Restine was appointed to defend a man by the name of 

Dasch, one of the eight German saboteurs captured in 1942, four 

of which landed at Ponte Vedra, Florida, four of whom landed in 

Long Island, New York. They were all captured and tried. 

Colonel Restine, being the great lawyer that he was, and I am 

likening your testimony and your commitment to his record, Colonel Carl Restine’s client, a fellow by the name of Dasch, was not 

executed as the others were as a result of the tribunals conviction 

that year, 1942. 

So I thank each of you for putting forth your thoughts as great 

advocates and I appreciate each of the four of you doing this. 

Mr. Oleskey, in your opening statement you highlighted the reasons why the CSRTs and its appeal are not adequate. Would you 

please review again the reasons why you believe the Supreme 

Court will find that the current system does substitute that for habeas, please? 

Mr. OLESKEY. I think the Supreme Court will find it is not a substitute because it doesn’t allow in the DTA process any real challenge to the evidence that was available to the governments in the 

CSRT. It is going to be impossible in reviewing the record in a 

Court of Appeals to call witnesses, offer affidavits, perhaps to offer 

documents that weren’t included in the CSRT file. 

It is only a record review of what happened in Guantanamo and 

what the statute says is that the Court of Appeals should review 

that record to see if the military complied with its own procedures. 

The burden of the testimony today is that in their creation and 

in the implementation, those procedures were fundamentally unfair. I don’t believe, and many other lawyers and commentators 

don’t believe that in that circumstance the system can be found to 

be an adequate substitute for habeas and it will not be so found. 

The CHAIRMAN. Thank you. 

Mr. Saxton. 

Mr. SAXTON. Let me ask Mr. Abraham, if I may, the case that 

I referred to in my opening statement, the Bismullah case, and I 

said in my view the Bismullah decision bolsters the claim that DTA 

and MCA framework provides an adequate alternative to habeas 

corpus. 

The Bismullah case—and the decision did in fact give the Federal Court of Appeals of the D.C. Circuit the right to review, as 
16 

well as to take into consideration, evidence that was not considered 

by the CSRT, did it not? Do you know? 

Mr. ABRAHAM. My understanding, sir, is that it did. However, 

unfortunately the record that was placed before the court, as are 

the records in the cases of every single detainee, do not contain all 

of the information that was reasonably available. The process was 

never calculated to allow for or accommodate all of the information 

that was immediately or even reasonably available. And moreover, 

the process itself created a scheme, and I don’t mean that in the 

pejorative sense, but a system by which through its streamlining, 

orientation, and focus a quick result was preferred over a probing 

inquiry. 

Mr. SAXTON. My understanding is that the court, under this decision or pursuant to this decision, has the right to look at evidence 

that was considered by the CSRT as well as any other evidence 

that exists. Is that not correct? 

Mr. ABRAHAM. My understanding is that you are correct as to the 

power or reach of the court. The problem is that the tools that are 

available to gather that information, certainly at the disposal of 

any of the intelligence communities and that would have been 

available within any other procedure, were not applied in the case 

of the CSRTs. 

Mr. SAXTON. Just for the record, once the CSRT has rendered its 

determination of status of the detainee, the detainee, under the 

current law that we created last year, is entitled to an annual administrative review board process and, not being satisfied with that 

process, has access to the Federal Court of Appeals in the D.C. Circuit. And it is the Federal Court of Appeals that we are now talking about. 

And of course, if the detainee is not satisfied with the result of 

the Federal Court of Appeals, he has access to the United States 

Supreme Court. Is that correct? 

Mr. ABRAHAM. My understanding, sir, is that that is correct. 

Mr. SAXTON. Mr. Philbin, what is your view of the Bismullah decision and how it affects the ability of the Federal Court of Appeals 

to do its work? 

Mr. PHILBIN. Well, Mr. Saxton, I think you have described it correctly. It shows that the D.C. Circuit will be able to look at not only 

the evidence that was presented to a CSRT, so this is not only review on a closed record. The D.C. Circuit has said that it will have 

access and must be presented all evidence available to the government. 

And even if in the original CSRT proceeding the recorder, I believe it is the recorder that is supposed to gather the information 

available to the government, even if there is some question as to 

whether all of the properly available information has been gathered, that too I believe would be subject to challenge in the D.C. 

Circuit, because part of their view is did the CSRT comply with its 

own rules, which include having available reasonably available evidence. 

The D.C. Circuit will be able to review how that standard is applied and whether it was properly applied in the CSRT in determining whether or not the CSRT complied with its own rules. 
17 

So I think this is a very robust form of review and in fact it is 

a more searching, factual review than has traditionally been allowed in habeas corpus for military tribunal decisions of any sort. 

A lot of the discussion here about habeas is simply assuming that 

habeas review in this circumstance would be identical to the way 

habeas is handled in the criminal justice system. And that is not 

necessarily true. 

The writ of habeas corpus, when it has been applied to military 

decisions in the past, the Supreme Court has made clear is very 

limited in its review and does not include searching into the facts 

and second guessing the facts that were before a military tribunal. 

So new law would have to be made to develop the law of habeas 

corpus to give it the kind of robust application that many are suggesting here. 

Mr. SAXTON. Thank you both very much. 

The CHAIRMAN. Mr. Reyes, please. 

Mr. REYES. Thank you, Mr. Chairman. 

Gentlemen, welcome and thank you for your testimony. 

Mr. Philbin, I first wanted to thank you because we had former 

Deputy Attorney General Comey in my committee, the Intelligence 

Committee, where we were taking his testimony about what had 

transpired on the issue of the Terrorist Surveillance Program, and 

I wanted to thank you for your principled stand on that issue in 

terms of making sure that we comply with the Foreign Intelligence 

Surveillance Act and the deficiencies that were in that program, 

which we are looking into now. But thank you for that principled 

stand. 

Mr. PHILBIN. Thank you, sir. 

Mr. REYES. Knowing your work through that experience in my 

committee, I am interested in getting a reaction from you, because 

in reading your statement you state, ‘‘I gained significant expertise 

with respect to both the legal aspects of the detention of enemy 

combatants and military commissions during my service with the 

Department of Justice (DOJ) from 2001 to 2005. And although it 

has been almost six years since the attack on the World Trade Center, al Qaeda continues to pose a grave threat to the Nation.’’ 

And then you quote from the NIE of this month, which was put 

out last week, and you also state in there that, ‘‘even in the face 

of such a threat, the United States has exceeded its obligations toward detainees in the conflict with al Qaeda under both our Constitution and under international law. The political branches, 

through recent legislation, have crafted a system that provides unprecedented levels of review and access to civilian courts for combatants detained by the United States in the midst of an ongoing 

armed conflict.’’ 

So my question for you is, I would like your reaction to the testimony of Mr. Abraham and his experience being part of one of those 

panels and obvious frustration at what he was anticipating or expecting as a participant of those panels and what his real experience was. What is your reaction to Mr. Abraham’s testimony? 

Mr. PHILBIN. Well, obviously, Mr. Reyes, I have no personal experience with the conduct of a particular CSRT proceeding, and from 

what Mr. Abraham describes, it sounds concerning to me, if that 

is the way a CSRT is conducted. 
18 

But I don’t think that the solution for that, if there is a problem 

in the way particular CSRTs are conducted, because when I was 

in government I dealt at the level of policy, here in Washington. 

We set policies and then expect things to be carried out as the policies are set. 

I believe that the CSRT policy, the way the system is set up as 

a policy, is adequate and ought to work properly. If in fact in the 

field it is not working properly, then the mechanisms for dealing 

with that ought to be more directly addressed to fixing the CSRT 

process rather than doing something like passing legislation that 

simply restores habeas jurisdiction. 

Habeas jurisdiction is just another round of litigation, another 

avenue of federal court review. It doesn’t specifically address the 

kinds of problems that Mr. Abraham was describing. 

I think that the D.C. Circuit has made clear in the review Congress has already provided, the D.C. Circuit is going to be able to 

get into those kinds of problems. If there was other evidence out 

there that wasn’t presented at the CSRT, the D.C. Circuit has already said it is going to be able to look at that and find out about 

that. 

If a CSRT is applying a standard of what is reasonably available 

that makes things that are available seem unavailable, then the 

D.C. Circuit is going to get into that on review. The argument will 

be made to the court that the CSRT did not comply with its own 

standards, that it applied an unreasonable standard of availability, 

and the court will rule on that. 

So I think that the judicial review that is already provided provides a mechanism for getting at the kinds of problems that Mr. 

Abraham was describing. 

Mr. REYES. So if what his experience was, Mr. Abraham’s experience was, if that is the rule rather than the exception, is it your 

feeling or your observation that we don’t need to do anything, that 

the system will take care of that? 

Mr. PHILBIN. It is difficult to say that is the rule rather than the 

exception. I think that—— 

Mr. REYES. Well, I am asking if that were the rule rather than 

the exception, what would you say we would need to do? 

Mr. PHILBIN. I think that Congress ought to allow the D.C. Circuit review process to operate, at least for the time being, to see 

what sort of result it does produce. 

The Bismullah decision already indicates that some of the types 

of problems Mr. Abraham has indicated will be looked into, will be 

questioned by the D.C. Circuit. And if the first round of D.C. Circuit review demonstrates that problems are uncovered and CSRT 

decisions are overturned because those problems are discovered, I 

think that demonstrates the system is working. 

But at least the first round of review ought to be allowed to continue to determine whether or not it is going to have that effect. 

Mr. REYES. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Bartlett. 

Mr. BARTLETT. Thank you very much. 

Thank you, gentlemen, for your testimony. 
19 

We live in a great, free country which I am really honored to 

serve. We are one person out of 22 and we have one-quarter of all 

the good things in the world. And I ask myself, what is so special 

about us that we should be so blessed, so privileged, that this one 

person out of 22 has one-quarter of all the good things in the 

world? 

There are several reasons, perhaps, but I think prime among 

them is our enormous respect for the rights of the individual. There 

is no other constitution, there is no other equivalent to our Bill of 

Rights that provides such rights to the individual. I think this established the climate and milieu in which entrepreneurship and 

creativity could flourish. 

I think we put at risk who we are if we put at risk these great 

civil liberties. 

Civil liberties are always a casualty of war. Abraham Lincoln 

suspended habeas corpus, my second favorite President, and Norm 

Mineta, who served as secretary of transportation, he told me, he 

said, ‘‘Roscoe, I remember as a little boy holding my parents’ hands 

when they ushered us into that concentration camp in Idaho.’’ We 

are embarrassed now that we did that. 

We are engaged in a long war and I want to make sure we don’t 

put at risk our civil liberties as a result of our zeal to catch terrorists. I had some initial concerns about Guantanamo Bay. We put 

those captured men there, saying that since they were not legitimate soldiers they were not protected by the Geneva Conventions. 

And we put them in Guantanamo Bay, which is not on our soil, 

and we said that they are therefore not protected by our Constitution. 

I know that there is a Geneva 4 that protects everybody that has 

fallen through the cracks of the other Geneva Conventions. And I 

know also that the Constitution doesn’t protect just our citizens. It 

protects people, and I am very pleased that the Supreme Court 

said that those who are under our control are people protected by 

our Constitution. 

My concerns were heightened by the Military Tribunals Act. It 

said that we could use coerced evidence. That is torture in common 

language. And that we could use secret evidence that the accused 

couldn’t see in convicting them. I dubbed it the ‘‘let’s torture them 

and then try them in a kangaroo court’’ bill. I voted present when 

that bill was passed out of committee because of my enormous respect for the chairman of this committee. But when it got to the 

floor, I voted against it. 

Mr. Keene, thank you very much for your testimony. I was beginning to lose confidence that many of my conservative colleagues 

didn’t seem to understand the importance of these enormously valuable civil liberties that we had. I thought I might be in trouble 

with my constituents with this vote, but so many of them called in 

saying thank the congressman for voting against the torture bill. 

I want to ask you, why should we be looking for a substitute for 

habeas? Why should we invite criticism? 

Mr. PHILBIN. Is that question directed to me, sir? 

Mr. BARTLETT. No, sir. I am directing the question to all of you. 

I would like all of you to answer. Why should we be looking for a 
20 

substitute for habeas corpus? Why should we invite the criticism of 

the world? 

Mr. OLESKEY. My response, Congressman, is that we shouldn’t. 

You have addressed some of the issues why the Military Commissions Act doesn’t substitute for habeas. 

Just to be clear in view of the prior testimony, the Appeals Court 

will be reviewing what the record is from the CSRT. And whether 

it complied with its own procedures. Those procedures, as you just 

pointed out, allow evidence based on coercion or torture. Those provisions allow the CSRT to determine what was reasonably available. 

The Circuit Court could find that my client’s boss’s testimony in 

Sarajevo wasn’t reasonably available, but in habeas I could supplement that with an affidavit. I probably can’t do that in the Court 

of Appeals. And the Court of Appeals, last week in the decision Mr. 

Philbin is talking about, the Bismullah decision, rejected attorneyclient privilege by allowing mail that I sent my client in Guantanamo—I can’t get there very often. I have to fly there when the 

military allows me to, so mail is a really important way for me to 

communicate with my client. 

The Appeals Court felt under the Military Commissions Act and 

the DTA it had to do what the government wanted, which was to 

say that the government can screen my correspondence with my 

client about their case and if I object to that, that they can go 

ahead and tell somebody in Guantanamo, or in the Defense Department, what it is I am objecting to about the correspondence that 

I am having with my clients. 

Habeas and the existing protective order that exists in the District Court under the original cases won’t allow that kind of interference in a very basic right that is critical to the effective representation of anybody, particularly where potential indefinite life 

sentence may be the result. 

Mr. BARTLETT. Mr. Keene. 

Mr. KEENE. If I may say something, I have listened to all of this 

and I have asked myself that same question. What we have done 

is or what is being suggested here is that Paul Wolfowitz in seven 

days could do a better job than the drafters of the Magna Carta 

and the United States Constitution, the Bill of Rights and the jurisprudence of two centuries. 

And yet we find the court decision, which was argued as a reason 

for not doing anything about it, the court is torturously trying to 

fix what Paul Wolfowitz did, because there was no conceptual part 

of that plan that would have the D.C. Circuit look behind what was 

done at the earlier level. 

So the court is trying to fix something that was thrown together 

and doesn’t work. And I listen to this and I looked out at you. How 

many times have you been told not just on this issue but on dozens 

and dozens of other issues that we do this at a policy level. And 

then after the policy is set by the people who look at things at that 

level, it doesn’t work where the rubber meets the road. 

And there is only one person on this panel that was there where 

the rubber meets the road, and it is not enough to just dismiss 

that. Because we have dismissed it in government action and government action, not just in the national security field but through-
21 

out. And you know, in dealing with your constituents, that those 

folks at the policy level often develop things that just don’t work 

on the ground. 

It has been a long time since I have been to law school, and I 

don’t practice law. But when you look at laws, I think they say 

they have got problems on their face or they have got problems as 

they are applied. What the witnesses here have said today is that 

this law has problems on its face and it has problems as it is applied. 

And an alternative was in place before these laws and procedures 

came into being. It was developed centuries ago and it worked and 

what is wrong with it? 

Mr. PHILBIN. I would like to make a comment, Member Bartlett. 

You ask why should we be looking for a substitute for habeas. 

Let me start by saying the background rule until the Rasul decision and the peculiar circumstances that the Supreme Court saw 

in Guantanamo Bay, the background rule from Johnson versus 

Eisentrager, is that habeas is not available to those detained as 

part of an armed conflict overseas. So the background rule is no habeas, no judicial review at all, whatsoever. 

That was changed by the Rasul decision so that there could be 

habeas for those at Guantanamo Bay, but I think that it is a somewhat pervasive error in my view, an error to claim that habeas review for enemy combatants detained during an armed conflict is 

this very well-defined, very well-known specific set of review rights. 

It is not. 

There has never been habeas review for enemy combatants detained in armed conflict before because of the Johnson v. 

Eisentrager rule. So the law has to be developed about what exactly the court will do in habeas review. 

I think that it was a wise decision for Congress to step in and 

say we are going to have judicial review, we are going to have Article III court review but we are going to set up specific procedures 

for it so that we are not just developing things through litigation, 

through endless litigation about what the habeas review will be. 

We are going to set up specific standards. 

And I think that the standards that were set up for review in 

the DTA are sufficient to address the concerns of allowing serious, 

robust judicial review. 

The D.C. Circuit has made clear that that review is going to go 

outside the record of the CSRT. It is not limited simply to the evidence that was presented to the CSRT. It is going to include all 

available evidence. If there are issues like the particular petitioner 

believes that evidence that was available was improperly ruled unavailable, that can be challenged in the D.C. Circuit, and the D.C. 

Circuit will rule on that. And there is no reason to think that the 

Article III judges in the D.C. Circuit are going to be any worse or 

any more lenient on ruling on basic questions like that than some 

district court judge in a habeas action would be. 

And so I think the question also is now that Congress has established this specific procedure, a new specific procedure to deal with 

a new and unprecedented situation, why should we be adding habeas corpus, an undefined and somewhat amorphous habeas corpus 
22 

review, as an alternative on top of that so that there are two avenues for judicial review that will simply add burdensome litigation? 

I think that the system Congress has set up in the DTA provides 

for adequate Article III court review and returning to allowing habeas as a duplicative form of access to the courts is unnecessary 

and unwise. 

Mr. BARTLETT. If I might say, Mr. Chairman, I think that—— 

The CHAIRMAN. I would suggest that Mr. Abraham answer the 

question. We have run out of time. 

Mr. BARTLETT. Okay. 

The CHAIRMAN. And because of the excellent nature of the question, I think everyone should be given the right to fully answer. 

Mr. Abraham, why don’t you answer it and then your time will 

expire. 

Mr. BARTLETT. Thank you. 

Mr. ABRAHAM. Thank you. I will be very brief, sir. 

I can only speak about the CSRT process, but through a very, I 

think, distinctive perspective. 

Sixty years ago on the soil of two continents people were rounded 

up. Nobody spoke for them and nobody listened. In the past six 

years, people have tried to speak from Guantanamo and elsewhere 

and no one listened. 

I can’t speak to which process is better, but I can tell you today 

the CSRT process was neither a forum for speaking nor for listening. 

The CHAIRMAN. The gentleman’s time has expired. Thank you 

very much. 

Mr. Smith, please. 

Mr. SMITH. Thank you, Mr. Chairman. 

A couple of comments and one question based on, actually, that 

last question there. 

Two things. First of all, the point of habeas corpus, as I understand it, and you know a great deal more about that than me, is 

basically that you should have a review from some group other 

than the people who locked you up in the first place. 

My colleague, Dr. Snyder, was telling me that it is interesting 

that the people who are most excited about habeas corpus are the 

ones who remember what it was like to be a country lawyer back 

in the day, if you will, like our chairman, which is that if you are 

picked up by the local sheriff and your review is his brother-in-law 

and his cousin down the street at the county courthouse, that is 

fundamentally unfair. So we put this in place so that you have 

some place to go where it is not the same people who locked you 

up. 

And that is an obvious problem with the CSRT process, is it is 

in essence the same organization if not the same people, and I 

think that is what Mr. Abraham encountered. So that is to credibility. And I understand it is a little bit different in each case. 

And that is the second point which Mr. Bartlett made quite well, 

and that is we have a major public relations problem in the world 

right now in what we have chosen to call the global war on terror. 

We are losing the larger battle for ideas, which as I like to put it 

means that somehow we have found a way to lose a public relations war to Osama bin Laden. 
23 

This is a piece of it, okay? There are other pieces and I think the 

focus on this has a lot to do with some of those other pieces. But 

to come out and say, look, we have habeas corpus that is established, as Mr. Keene described, let’s stick with that, would help us 

enormously in that larger battle, and ultimately that does help our 

troops, that does help the fight. I think our values are very important, and this in Guantanamo is one thing that is undermining 

them. 

And, you know, the final point on this, Mr. Saxton made the 

point that this overwhelming cost, I gather, of doing habeas, which 

I find just not terribly supportable when you are spending $12 billion a month in Iraq. The defense budget has gone up enormously 

since 9/11, which is fine. You know, we are spending all this money 

to fight this battle. But, you know, a few cases, a few judicial reviews are going to break the bank? 

I would submit that having our credibility intact is every little 

bit as important in fighting this battle as making sure that we 

have our troops where we need them. 

So with all of that said, the judicial review point that was made, 

I would like to ask the first two witnesses to comment on that. 

Why do you not think that this judicial review process, as was described, is adequate? 

Now, my bias is that it is not, that habeas is, basically, as we 

have said, well-defined law. It gives you that clean look, whereas 

this is going to be necessarily restricted to a few things. I mean, 

the first thing that occurred to me was the whole, you know, innocence is not a bar to conviction thing. That basically judicially you 

just look to see if the process worked. Not if the process worked, 

sorry, but if the rules were followed. And if the rules were followed, 

then however bad the result may be, that is fine. 

But I am curious on your thoughts on the judicial review process 

and why it is not an adequate substitute in this case for habeas. 

Mr. OLESKEY. Well, first, because, as several speakers have 

pointed out among the Congress and here, coerced testimony, testimony procured by torture, can and apparently was admitted in the 

CSRTs and may stand on review by the Appeals Court. 

Second, because as you just pointed out, Congressman, by specific command, the Detainee Treatment Act of 2005, the Appeals 

Court review is limited to reviewing the record. And Mr. Philbin 

says, well, the Appeals Court just said last week it can go to what 

would have been reasonably available, but that leaves out all kinds 

of evidence that an advocate would want a fact finder to have in 

the first instance and therefore on review, if that fact finder is 

going to say you can be locked up for the rest of your life based 

on this kind of limited review. 

So it is a limited review. It ultimately will turn on what an Appeals Court says was or should have been reasonably available, so 

that is a limit placed by Congress. It is a limit placed by Congress 

to determine whether the procedures were followed, and those procedures were written by Paul Wolfowitz in seven days. 

And as to the point about taking time and money, you know, 

there are 22,000 habeas reviews a year. We are talking about 

375—— 

Mr. SMITH. At most. 
24 

Mr. OLESKEY. At most. And these are not new skills for these 

trial judges to learn. It is what they do. It is not what Appeals 

Court judges do. These are very smart, talented judges in the circuit here, they are very respected judges, but they are now being 

asked to do something by Congress that they shouldn’t be asked to 

do in making these reviews. 

Mr. SMITH. Mr. Keene, if you could just quickly, if you have any 

thoughts on the judicial review process versus habeas. I am asking 

you to respond to your thoughts on the judicial review process 

versus habeas. 

Mr. KEENE. As I indicated earlier, as it was designed, the court 

was not to look beyond what was presented from the initial hearing. And this decision, the recent decision where the court says, 

well, we are going to look at what might have been reasonably 

available at the hearing level, is an attempt to fix that. 

But going to the question of why do we need to do it this way 

rather than through habeas, I hear the objection that, well, the habeas route requires a lot of effort and judicial, all this stuff. And 

yet what we are trying to do is replace it with procedures, as the 

previous—as Mr. Oleskey pointed out—procedures where we lay 

the same responsibilities or similar responsibilities on people who 

haven’t had to do that before when there is a whole process and 

a whole body of law and a whole way to do it. 

And I just don’t understand it. I have to tell you, I think your 

point—people understand because of the fact that the right to habeas corpus, the right to have somebody look at whether you ought 

to be where you are or whether there is a case that you should be 

there, is something that is understood worldwide, and people that 

don’t have that right in nations that don’t have it, wish they do. 

So why replace something that is one of the, from the beginning 

of our Nation, has been one of the things that we have been most 

proud of and one of the rights of our citizens that we are most 

proud of? 

Even if you come up with something and name it something else 

which reasonably accomplishes the same thing, which we haven’t, 

why would you do that? 

Mr. SMITH. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank the gentleman. 

I lay before the committee a letter dated July 25 this year by 

Karen Mathis of the American Bar Association and ask that it be 

placed in the record without objection. 

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

page 233.] 

The CHAIRMAN. And I also notice that several members are not 

present at this moment that came in before the gavel, so we will 

go to the list of after the gavel. 

Mr. Jones. 

Mr. JONES. Mr. Chairman, thank you very much. 

I am not a lawyer. I think I understand the Constitution and the 

importance that each one of you have in your own way made reference. 

I want to read a quote, then I think I do have a question. 
25 

General Matthew Ridgway, a great World War II general, wrote 

a book ‘‘Soldier, the Memoirs of Matthew B. Ridgway,’’ in 1956. In 

it, he said, ‘‘To me, nothing could more tragically demonstrate our 

complete and utter moral bankruptcy than for us deliberately to 

initiate a preventive war. Once we take that absolutely fatal step, 

our civilization would be doomed. We would have to rely on conquests for survival from then on until our society crumbled as the 

empires of Alexander and of Rome crumbled from their own inner 

decay. In all the history of the world, no civilization based on conquest has long endured. America would be no exception.’’ 

When I think about Paul Wolfowitz, Richard Perle, David 

Wurmser, Douglas Feith and all these neo-cons that created the 

justification to go into Iraq, and I listen to learned men like the 

four of you on this panel today, I am offended. And I voted for this 

legislation, quite frankly. I am offended that we have to be here 

today to try to defend and protect habeas corpus, which as Mr. 

Keene said is the bedrock, one of the bedrocks of this Nation. 

I just want to know when I hear each of you speak, and Mr. 

Philbin let me say that I have great respect for you and I don’t disagree with you, but any time—and it should be debated and thoroughly analyzed by courts, what the Congress does, and there is no 

question about that. I fully agree with you. 

But as was said by Adam Smith earlier, and said by many of you 

who spoke today, the world looks at America. We have been and 

I hope we can still be the great nation that people across this world 

have envied. But one of those reasons is because we have two sacred documents in this country that we revere. The Bible and the 

Constitution. And I do not understand how people who believe that 

they have been given a privilege to serve in the Congress, and we 

can all disagree on what the policies should be as it relates to terrorists and terrorism. 

But my question is a simple question. I am not the intellect that 

my friend from Maryland, Mr. Bartlett, is. But the simple question 

is, how would you say to the average American, like myself, that 

this is critical to maintaining a strong America? 

I will start with you, David Keene. I know you will probably be 

repetitive, each one of you, but I heard the colonel say that, you 

know, you were told to assume that it is true. I know that is military, but it is still wrong. We shouldn’t assume truth. Truth should 

be true, just like the words of Jesus Christ. 

David, would you try to give me an answer to what I am fumbling with? 

Mr. KEENE. Well, I think the purpose here, to discuss the question of whether or not we should grant habeas corpus rights to 

those goes to the nature of what our country is. And as I said in 

my prepared remarks, I am not so concerned—it should be a concern of this committee and it should be a concern of our policymakers. But I am not so concerned about what others think of us 

as I am about what we think of ourselves and who we are. 

And I urge the support of the chairman’s bill to restore these 

rights precisely because I think it reflects who we are and who we 

should be. 

The CHAIRMAN. I thank you gentleman. 

Ms. Sanchez. 
26 

Ms. SANCHEZ. Thank you, Mr. Chairman. 

As you know, I am very interested in this subject having brought 

the Commissions Act Bill two years before this committee ever took 

it up. I also, as you know, have a bill out, H.R. 2543, the Military 

Commissions Revision Act of 2007, which would address the concerns, I believe by the Administration about giving unprecedented 

habeas access to war prisoners which, as Mr. Philbin said, has 

never been done before in the history of this Nation, and also the 

need for the executive to have his Article 2 power to conduct military and intelligence operations free from judicial interference, but 

also recognizes the gravity of the liberty interest involved, the ambiguous and unconventional nature of this conflict and the inadequacy of the CSRTs to ensure that mistakes and executive abuses 

are curbed. 

So I would encourage members to take a look at that piece of legislation. 

International law and the Supreme Court recognize the power of 

military commanders in warring nations to capture and to detain 

enemy combatants for the duration of a conflict. Historically, the 

U.S. has not extended the right of habeas corpus to alien enemy 

combatants held as POWs. In fact, in 1925, Johnson v. Eisentrager, 

these prisoners did not have a constitutional right to habeas corpus 

review. 

And, of course, in 2004 the court said that enemy combatants 

held at Guantanamo Bay, Cuba, did have statutory rights to habeas review, but that decision was, of course, pretty much mollified 

by the MCA last year. 

So my question to you is, if you can write some of these down 

because they are detailed. I want to ask the panel, do you believe 

that enemy POWs or detainees have a constitutional right to habeas? And if so, what is the basis of your view? What limitations 

would such a right have? And if so, why was the court wrong in 

Eisentrager? And would you favor the statutory right of habeas corpus to apply everywhere, to all enemy POWs? 

For example, would you have granted it to Iraqi prisoners captured in Kuwait during the first Gulf War, go to into the federal 

courts in D.C. and to challenge their capture on the battlefield? 

Would you have permitted German POWs captured in North Africa 

or Sicily in 1943 the right to challenge their internment through 

habeas? 

And if we could start down at the end. 

Mr. OLESKEY. I will be happy to start, Congresswoman. 

Johnson and Eisentrager, the case at the end of World War II, 

involved prisoners who had been through military commissions 

with lawyers and trials. Evidence was taken. It was a regular procedure that you have some confidence in. And the Supreme Court 

looked at that and said we will examine whether habeas should 

apply to German prisoners who did acts in China, who are held in 

an allied war prison in Germany. We don’t think that habeas 

should extend that far. It never has. So it didn’t go any further. 

And then in the Hamdi and Rasul cases, as you say, in 2004, 

they looked at the people in Guantanamo and said, you know, this 

is, under that lease that the United States had since 2001 that 

gives us a unilateral right to be there, this essentially is part of the 
27 

United States. These people didn’t get the screening the POWs get 

under Geneva or Army Regulation 19080 on the battlefield, unlike 

what happened in the first Gulf War or in most other wars that 

I am aware of. 

Therefore, there needs to be some process put in place now. 

Ms. SANCHEZ. But now we have the MCA. Do you believe that 

they have a constitutional right to habeas now that we have the 

MCA? 

Mr. OLESKEY. The Supreme Court has said in some cases that 

fundamental rights under the Constitution can extend outside of 

the continental United States. It addressed in the Rasul case in a 

footnote that has been much discussed, it said if what these men 

are alleging is found to be correct, it would make our conduct in 

violation of the Constitution, statutes or laws of the United States. 

That is as far as the Supreme Court has gone. 

My own view is that the right to be free from indefinite imprisonment without a hearing is so fundamental. It is in the Constitution, 

it is right there, the framers put it in Article I, Section IX. 

Ms. SANCHEZ. And it applies to United States citizens and those 

people within our boundaries. But would you extend it to Sicily? 

Would you extend it to a war in Iraq? And after you answer that, 

I really need to move on. I want to hear the other opinions. 

Mr. OLESKEY. I am only advocating today for this bill, which does 

not extend it to those places, does not extend it to battlefields, talks 

about restoring habeas for Guantanamo, where my clients are. 

Ms. SANCHEZ. Anybody else? 

Mr. KEENE. I am not going to speak to the constitutional history, 

but I will suggest that there are some differences. 

I wouldn’t extend it as a matter of policy to battlefield POWs and 

the like. Many of the people that are being held at Guantanamo, 

like your clients, were not picked up on the battlefield, scooped up 

by American troops. Many of them were picked up on vague suspicion. Some were in fact turned over to us by tribes that were collecting bounties for doing it. 

And then what makes matters worse is then we have a situation 

in which we are not holding them until an emergency in historical 

terms is over, but we can hold them forever in essence because the 

war on terror could go on forever. And that I think qualitatively 

changes the situation and is why the chairman’s bill addressing 

those kinds of prisoners in that location is worthy of support. 

Ms. SANCHEZ. I would just say read my bill, because it addresses 

that also. 

And, Mr. Chairman, if you would indulge me Mr. Philbin’s comment, I would like to hear it. 

The CHAIRMAN. Mr. Philbin. 

Mr. PHILBIN. Thank you, Mr. Chairman. 

I will just make two brief points. I do not believe that aliens outside the United States have a constitutional right to habeas. I 

think the Supreme Court got that right in Eisentrager. And the 

Eisentrager decision was not based in any way on the fact that 

there had been military commission proceedings. It was based on 

a fundamental assessment of whether constitutional rights extended extraterritorially to aliens. 
28 

And in the 1990’s, the Supreme Court emphasized, and I am 

quoting, ‘‘Our rejection of extraterritorial application of the Fifth 

Amendment was emphatic in Eisentrager.’’ It had to do with 

extraterritorial application. 

And in terms of extending habeas all around the world, certainly 

it would not extend habeas to detainees or POWs outside the 

United States, but I think that the committee should be aware that 

there is a very real risk in H.R. 2826 that by excluding simply active combat zones, that bill could create a negative implication that 

anything that is not an active combat zone, and who knows exactly 

what that is, anywhere else in the world, habeas does apply. It will 

have that negative implication of extending habeas, and I think 

that is a serious problem with the bill. 

Ms. SANCHEZ. Thank you, gentlemen. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Mr. McHugh, now. 

Mr. MCHUGH. Thank you, Mr. Chairman. 

Gentlemen, welcome. I appreciate your comments. 

I want to play a little bit off of what the gentlelady from California was pursuing, but I would like to start with Mr. Philbin. You 

said something pretty emphatically. You stated that the process 

and the review and such under our current system, the CSRTs as 

well as the MCA, give rights that are, ‘‘unprecedented in the history of warfare.’’ 

I assume I can deduct and deduce from that that you feel that 

our obligations as a lawful and as a respectful country are being 

fully met as defined under the third Geneva Convention for enemy 

combatants. Is that true? 

Mr. PHILBIN. That is true. In particular because the third Geneva Convention doesn’t apply to al Qaeda. Al Qaeda is not a signatory, so al Qaeda combatants have no rights under it. And for 

Taliban detainees, they don’t have status as POWs. 

Mr. MCHUGH. Well, that was actually going to be my next question. I appreciate your prescience. 

Therefore, the fact that you just defined these are not signatories, they are not technically covered, yet we extend at least equivalent rights, would kind of suggest we are more than meeting what 

most nations on this earth would consider our legal obligations, 

true? 

Mr. PHILBIN. Yes, sir, that is true. 

In fact, we are going beyond. If we were in a conflict with another signatory and detained people outside the United States and 

gave them POW status, they would have no right to access U.S. 

courts. 

Mr. MCHUGH. Two other things. I assume one of the reasons we 

encourage people to participate under the Geneva Conventions is 

that there will be some semblance of rule and some semblance of 

propriety in warfare. My understanding is that if this bill were to 

be enacted and if those who are detained currently at Guantanamo 

extended the rights, the rights would actually be duplicative. 

In other words, there is nothing in the bill before us that in any 

way takes away the current CSRT and MCA process but in fact 
29 

layers another process of appeals and habeas corpus review. Is that 

true? 

Mr. PHILBIN. That is my understanding, yes. 

Mr. MCHUGH. Would we not, in your language of creating sort 

of a perverse incentive, would we not therefore almost be encouraging people not to abide by Geneva, to in fact participate in this 

kind of unlawful combat and hopefully get sent to Guantanamo? 

They would actually have better protections than those afforded 

under the rules of standard warfare? 

Mr. PHILBIN. Well, it would be backwards, yes, sir. Because we 

would be providing more process to those who are unlawful combatants than would be provided to those with POW status under Geneva. 

Mr. MCHUGH. Thank you very much. 

Mr. Keene, I noted in your very impassioned plea about restoring 

habeas rights, and that was the word you repeated used, restoring 

habeas rights. You also used the comment, ‘‘Those are the things 

that we have always provided to our citizens,’’ and those were your 

words, ‘‘our citizens.’’ 

You are not arguing that we somehow on these detainees 

stripped them for the first time of rights of due process and such 

and that they are citizens of the United States? 

Mr. KEENE. No, Congressman. I was referring to the fact that the 

court had statutorily suggested that there were habeas rights extended there until it was removed by the Military Commissions 

Act. And my reference to our citizens was that habeas is one of the 

things that we have always valued in this country for our citizens. 

I did not mean to confuse those two. 

Mr. MCHUGH. So I take it from that that you don’t take exception or disagree with Ms. Sanchez’s comments that the provision of 

habeas rights would be revolutionary in our history, we have never 

done that before? 

Mr. KEENE. I would not support extending it, as the examples 

she was giving, to battlefields, to everybody outside the United 

States. 

I think that the situation that we face with these people in that 

location, because of all of the contingencies that we know about, 

the fact that they can be held there forever, the fact that they were 

not captured, many of them, on the battlefield, and extending habeas rights there, where the question is not whether you can hold 

without these rights enemy combatants, the question is whether 

they are. And that is the threshold question that is not being answered under the current process. 

Mr. MCHUGH. I thank the gentleman. 

Mr. Chairman, with your forbearance, and I would use as precedent I think every other member here has gone well over, I appreciate the comment. 

I just, for the record, I am very concerned that there have been 

statements from the witness panel today that somehow the United 

States, and by suggestion this Congress, supports torture and that 

torture is part of that. The fact of the matter is, the MCA expressively and very clearly excludes the admission of any statement or 

evidence by torture, a statement attained by the use of torture 
30 

shall not be admissible under military commission under this chapter. 

So I understand the passion that is involved here, but I think 

when you start accusing the United States of formally using torture in a process and, by rote and by suggestion this Congress of 

formally endorsing torture, it is just not correct. 

Mr. KEENE. If you are referring to my testimony, I never used 

the word torture and never talked about it—— 

Mr. MCHUGH. I am not asking. That is not a question. With all 

due respect, Mr. Keene, that was not—— 

Mr. KEENE [continuing]. And it has nothing to do with what I 

had to say. 

Mr. MCHUGH [continuing]. Your question. It was my statement. 

The CHAIRMAN. Thank the gentleman. 

Mr. Andrews from New Jersey. 

Mr. ANDREWS. Thank you, Mr. Chairman. 

I thank the witnesses. 

I think the meaning of the suspension clause of the Constitution 

is that absent some emergency limited circumstances, this country 

will not be a party to a situation where any person can be held indefinitely without being confronted with the charges against him or 

her so there can be some fair and just resolution of those claims. 

And so, Mr. Philbin, I wanted to explore with you your conclusion that the procedures that have been set up under the CSRTs 

are a sufficient guarantee that such procedures are in place for the 

detainees that we are discussing here today. 

Is there any provision in the law or regulation that sets up the 

CSRTs for competent and effective counsel for the detainees? 

Mr. PHILBIN. There is not a provision for legal counsel, no. There 

is a provision for—— 

Mr. ANDREWS. So a personal representative, which I think is the 

phrase that you use, need not be a lawyer, correct? 

Mr. PHILBIN. Correct. 

Mr. ANDREWS. Need not be a competent lawyer, if the person is 

a lawyer, correct? 

Mr. PHILBIN. Well, it is not defined in terms of legal ability. 

Mr. ANDREWS. So the person could be a person who is trained to 

process paperwork, for example, correct? That could be the personal representative, who doesn’t know the law. 

Mr. PHILBIN. It is a military officer who is not necessarily trained 

in the law. 

Mr. ANDREWS. Okay. Under the provisions that are set up for the 

CSRT, is a detainee permitted to see evidence that would be used 

against him subject to some in camera limitation or emergency limitation? Can they see all the evidence that is going to be used 

against them? 

Mr. PHILBIN. I believe that they cannot see the classified evidence. 

Mr. ANDREWS. Well, isn’t the phrase they can see written summaries of the evidence that is going to be used against them? 

Mr. PHILBIN. I don’t recall the exact phrasing of the rule. 

Mr. ANDREWS. It is the phrase that I think is used in your testimony. 
31 

So if a detainee were held because of a hearsay report of someone 

in Bosnia, for example, the detainee would not know who the person who made the hearsay statement was, necessarily, would he? 

Mr. PHILBIN. I am not aware exactly how the rules are applied, 

sir. I believe that that is possible. But if I could go to—— 

Mr. ANDREWS. I think Mr. Abraham has given us a very detailed 

description of how the rules are applied. My understanding is—— 

Mr. PHILBIN. Well, in some circumstances. But if I could go to 

the basic—— 

Mr. ANDREWS. Well, no, I would prefer that you answer my questions. 

Under the procedures that were set up on the CSRT, is the right 

of the detainee to confront witnesses in the proceeding guaranteed? 

Mr. PHILBIN. I believe that he has a right to call witnesses who 

are reasonably available and may not be able to confront all witnesses because of security or classification or other restrictions. 

Mr. ANDREWS. Well, and under habeas proceedings, isn’t it true 

that if there is a witness that might disclose something classified 

or sensitive, there would be an in camera proceeding in front of a 

judge, where the competent lawyer representing the person who is 

the subject of the habeas petition would have a chance to confront 

the witness in that limited setting? Isn’t that right? 

Mr. PHILBIN. That is not necessarily true. I think that if you are 

talking about a habeas proceeding in a criminal case in the United 

States, where all of the constitutional protections that are attached 

to criminal prosecutions apply, that might be the case. But for a 

habeas proceeding coming out of the detention of an enemy combatant, it is not clear what rules will be applied. 

And this goes back to something that is fundamental to what we 

are discussing here, which is whether or not there are constitutional rights that bring the suspension clause into play. And I don’t 

think there are constitutional rights for enemy combatants detained at Guantanamo. 

Mr. ANDREWS. Well, of course, sir, that is—higher authorities 

than you or me are going to litigate and decide that question of 

what the suspension clause means. 

I wanted to ask you about the review. You put great credence in 

the review that takes place in the D.C. Circuit, but that review is 

based on the record that is created below by the CSRT, isn’t it? 

Mr. PHILBIN. I don’t think that is accurate, sir, because of the decision just last Friday in Bismullah. The government had argued—— 

Mr. ANDREWS. I understand that decision. I understand that it 

says that all the evidence that was available to the tribunal has 

to be made available to the Court of Appeals. But of course, that 

is evidence that has not been vetted through the process of confrontation of witnesses. That is evidence that has not been vetted 

through the process of discovery. There is a difference between evidence and documentation. That is the essence of our adversarial 

system. 

So I respectfully disagree with your conclusion and I would yield 

back. 

Mr. PHILBIN. Well, sir, you are correct that it is not the way 

things are handled in our adversarial system. Our adversarial sys-
32 

tem was developed for criminal law. These are not criminal prosecutions. This is fighting a war. 

The CHAIRMAN. Thank the gentleman. 

Mrs. Drake. 

Mrs. DRAKE. Thank you, Mr. Chairman. 

Gentlemen, thank you for being here. 

I have to start by saying I think Congresswoman Sanchez really 

summed this debate up very well and what divides this discussion 

in my mind is whether or not you think an enemy combatant who 

is captured on a foreign battlefield, a person who has sworn to kill 

each and every one of us, is covered by the U.S. Constitution. And 

I personally do not believe that they are. 

Now, reasonable people can disagree, and we have heard that 

disagreement here today, but I truly do agree with Congressman 

Saxton and his assessment that we have not given these laws an 

opportunity to work, and this discussion may be a little bit premature. 

But what I wanted to ask about, and to me it is really apparent 

and I think to everyone, that our terrorist enemies are really adept 

at public relations, much better than we are. They have proven 

quite capable of using the World Wide Web to promote their message, their hate, and to recruit others to their cause. 

So the question is if additional rights are extended to unlawful 

enemy combatants, would you agree that this would greatly assist 

their efforts to recruit other people to their cause? 

And the second question I have is if we do extend habeas rights 

to unlawful enemy combatants, what would be the expectation for 

our military at that point? Are they now going to be charged with 

collecting evidence? Are they going to have a dual role as a 

warfighter and as a police officer to compile this information? And 

so what would their role be? 

So those two questions, what impact it will have on what appears to be the success of our enemy, and we all know from previous NIE reports that the one thing that will destroy them is if 

they believe and the world believes they are losing. And I think 

this argument would give them the opportunity to think that that 

is one more thing they are winning on. 

Mr. OLESKEY. Congresswoman, let me start off on that. 

The issue of the rights extension troubles me because I have 

been to Guantanamo 9 times personally, my firm has been 11 

times. I have seen what happened to my clients there in the early 

years. I have seen my client has been in solitary confinement for 

14 months, 24/7. I have seen my client has he is trying to commit 

suicide right now because he thinks that is the only thing that he 

has left that he has any control over. And the notion that any of 

these people would want to go there and be held as they are held, 

even my clients who are not now in solitary confinement, I just 

think is a nonstarter. 

As Mr. Keene has said repeatedly, we are not talking about people in most cases who were found on the battlefield. Five percent 

of them were. We are talking about people who were not found on 

battlefields and the very question or the issue is are they unlawful 

enemy combatants or not. And we need a fair process to resolve 

that. 
33 

In terms of the second part of your question, what the military 

obligations will be, if the military had been allowed to do what it 

has done in every other war, as to the five to eight percent found 

on the battlefield, and made screenings then of whether they were 

lawful or unlawful combatants, we probably wouldn’t have this 

today if the Administration hadn’t decided back in 2001 that it 

would be a great idea to put people in Guantanamo, because then 

the Eisentrager case from 1945 could be cited as precedent where 

they wouldn’t have any right to habeas, even though habeas goes 

back to the Magna Carta and aliens got habeas in the New World, 

before the Constitution, then we wouldn’t be here today. 

So that is my answer to your questions and I hope I am responsive. 

Mrs. DRAKE. Mr. Philbin, would you like to answer? 

Mr. PHILBIN. Sure. I think that in terms of how it would affect 

al Qaeda, I am not sure that it would affect their ability to recruit 

more members, but it would be helpful to them, particularly in 

training operatives for resistance to interrogation. 

We know from captured al Qaeda manuals that they are trained 

to exploit what they perceive to be the weaknesses provided by our 

legal system in order to resist interrogation. And the more it is apparent that they will have access to courts and will have access to 

lawyers, that is something that they can train for and use to resist 

interrogation when captured. 

I think that in terms of how it would change the military’s role, 

it depends on how broadly habeas is provided. And I think there 

are dangers in the current proposal, H.R. 2826, that it would go 

well beyond just Guantanamo and you would just be burdening the 

military. You know, there are already attempts to have habeas petitions, I believe, in Iraq and in Afghanistan, and you could end up, 

you know, as Mr. Oleskey said, his firm has been down to Guantanamo 11 times. Lots of other firms have been down there lots of 

times. You could have lawyers going to bases in Iraq and Bagram, 

Afghanistan, and diverting the military, just as the court warned 

in Eisentrager, from its mission. 

Mrs. DRAKE. Thank you, Mr. Chairman. 

I yield back. 

The CHAIRMAN. Thank you. 

Before I call on Mr. Loebsack, Mr. Abraham, true or false, coerced statements are allowed in CSRTs as has to do with continued 

detention. 

Mr. ABRAHAM. I am sorry, sir, I didn’t hear the question. 

The CHAIRMAN. Coerced statements are allowed in CSRTs as it 

has to do with continued detention, on the one hand, as opposed 

to the military commissions which are for the purpose of prosecution and finding of guilt under a crime. Is that correct? 

Mr. ABRAHAM. It is true, but fundamentally flawed in the question asked. Through the process—— 

The CHAIRMAN. My question is flawed, Mr. Abraham? 

Mr. ABRAHAM. Forgive me, sir. It presumes that in the CSRT 

process—— 

The CHAIRMAN. Wait a minute. How would you rephrase the 

question, Mr. Abraham? 
34 

Mr. ABRAHAM. Well, what I would have asked is, ‘‘In the CSRT 

process do you know anything about how you got the information?’’ 

It is an important first question, because while it is true in the 

commission process, in the trial, the war crimes trials, that coerced 

statements, the fruits of terror, may not be used, none of these are 

issues that we can retrospectively examine properly nor could even 

have answered through the CSRT process. 

You have to understand, the documents that the individuals saw, 

not only the recorder who summarized documents given to him by 

report writers, but that the board saw, were heavily redacted. They 

were excerpts. They were summaries. You didn’t know where it 

came from in large part, whether it was the product of coercion, 

and in fact the only thing that you would know and the only remarkable document would be one where it was explicitly noted ‘‘the 

detainee said.’’ So you knew a source, but you didn’t know how that 

information had been obtained. 

Mr. MCHUGH. Mr. Chairman, will the gentleman yield for a moment? 

The CHAIRMAN. You bet. 

Mr. MCHUGH. Thank you. 

I have great respect for the chair and my point, because I believe 

your comment was directed to the comment or the reading I made, 

was that several of the witnesses, contrary to Mr. Keene’s objection, I never mentioned that it was his statement, I want him to 

be clear on that. I didn’t accuse you of that. 

But witnesses today have said very affirmatively, as have members of this panel, that torture, I didn’t use the word coercion, nor 

does the MCA, torture was being used. And I think that is an important point that needed to be clarified. 

So my point was to torture, Mr. Chairman, as it applies in the 

MCA. 

The CHAIRMAN. Thank you, sir. 

Mr. MCHUGH. I thank the gentleman for yielding. 

The CHAIRMAN. You bet. 

Now, Mr. Loebsack, maybe you can ask a clearly defined question of the panel. Mr. Loebsack. 

Mr. LOEBSACK. Not being a country lawyer or any kind of lawyer, 

I am not sure that I can do much better, but thank you, Mr. Chairman. 

And not being an attorney, this is all very interesting to me, but 

I want to move away from some of the, I guess, the legal aspects 

of what we are talking about, because I have a grave concern, as 

others on both sides of the aisle have expressed today, about the 

reputation of the United States and what all of this has done to 

the reputation of the United States. 

I just want to begin by mentioning a ‘‘Meet the Press’’ interview 

where Colin Powell was present on June 10, 2007. And for the 

record, I ask unanimous consent that we put that transcript in the 

record. Is that okay, Mr. Chairman? Thank you. 

Colin Powell was asked about Iraq by Tim Russert and in the 

course of that discussion Colin Powell mentioned a letter that he 

had sent to Senator McCain and he is quoted as saying, ‘‘The world 

is beginning to doubt the moral basis of our fight against ter-
35 

rorism.’’ And also I would like to put that letter in the record, if 

I may as well ask unanimous consent. 

The CHAIRMAN. Without objection. 

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

page 235.] 

Mr. LOEBSACK. Thank you. 

Colin Powell went on to—he was asked about Guantanamo, 

among other things, and he went on to say, ‘‘I would simply move 

them,’’ talking about the prisoners, ‘‘to the United States and put 

them into our federal legal system.’’ The concern was, ‘‘Well, then 

they will have access to lawyers, then they will have access to writs 

of habeas corpus. So what, let them. Isn’t that what our system is 

all about? And by the way, America, unfortunately, has two million 

people in jail, all of whom have lawyers and access to writs of habeas corpus.’’ 

And then he goes on to conclude, ‘‘And so, essentially, we have 

shaken the belief that the world had in America’s justice system 

by keeping a place like Guantanamo open and creating things like 

the Military Commission. We don’t need it and it is causing us far 

more damage than any good we could get for it, but remember 

when I started in this discussion saying, ‘‘Don’t let any of them go,’’ 

put them into a different system, a system that is experienced, that 

knows how to handle people like this.’’ 

In other words, Colin Powell, like I think everyone on this panel 

and everyone on this committee, is concerned, obviously, that we 

are at war with terrorists, and that we have to do what we can, 

of course, to protect American interests. But at the same time, part 

of America’s interest has to do with values, as has already been 

mentioned here. We talked about—many of us have talked over the 

course of American history about America as an exceptional nation. 

Ronald Reagan talked about that and ‘‘Beacon on the Hill’’ with 

John Winthrop back in the 1600s. 

And I think a lot of us have the concern that what is happening 

with Guantanamo and by withholding habeas from these prisoners, 

that we are not a beacon on the hill around the world. Now, some 

will say that is fuzzy thinking, that is naive, what have you. But 

I would submit that it is in fact a vital American interest that we 

maintain our reputation, because we do need, whether we like it 

or not, cooperation of countries around the world to fight this war 

and to protect our vital national interests as well. 

So I just have one question for Mr. Philbin, when, in December, 

he wrote this letter to John Yoo, or this memorandum, that was 

in December 2001, and you mentioned the Eisentrager case that 

has been mentioned here a number of times, and you talked about 

Guantanamo and how none of this applies to Guantanamo because 

it is outside the sovereignty of the United States, and I realize that 

the Justice Department doesn’t deal in foreign policy. 

But did anyone think about at that time the consequences for 

America’s reputation when you were discussing these issues? And 

did anybody in the Administration that you know of, and I will ask 

witnesses of the next panel the same question, but did anybody 

give any consideration to how this might affect our reputation and 

our standing in the world? 
36 

Mr. PHILBIN. Well, sir, let me just correct one item for the record. 

It was a memorandum co-authored by John Yoo and myself—— 

Mr. LOEBSACK. I apologize. 

Mr. PHILBIN [continuing]. Which we addressed to the Department of Defense (DOD). We were just addressing a legal question 

and I couldn’t go into policy discussions in any event. I think that 

is a question better asked of the Administration witnesses. 

Mr. LOEBSACK. I will ask Mr. Keene, because you said that, you 

know, you weren’t quite as concerned, but that you were concerned, 

obviously, about the United States and our citizens and who we 

are. But are you at all concerned about our reputation as well 

around the world? 

Mr. KEENE. Of course I am, because America has always stood 

for something special to the people of the rest of the world. What 

I am merely saying is that my real concern is not about what others think about us. That is something that should be of particular 

concern to this committee because of your mission and responsibilities. 

But my concern is us, not them and not what they think, but 

what we think and what we are. 

Mr. LOEBSACK. Thank you. 

Mr. PHILBIN. If I could add one further comment, I certainly 

agree with you that it is important for the United States how the 

United States is perceived around the world, because we do need 

allies. But I believe that a fundamental problem many countries 

around the world have with the United States is the basic war paradigm that we have used for handling the conflict with al Qaeda, 

treating it as an armed conflict. And it is not just habeas, and habeas is not going to solve the problem that the rest of the world 

has, of those who have a problem with us, with the way we are 

handling the conflict. 

Mr. LOEBSACK. Thank you and I yield back. 

The CHAIRMAN. Thank the gentleman. 

Mr. Kline. 

Mr. KLINE. Thank you, Mr. Chairman. 

And thanks to the witnesses for being here. 

It has been a tremendously interesting discussion today, whether 

or not you are a lawyer, and I hasten to say that I am not, like 

my friend Mr. Loebsack. 

It seems to me that we are fundamentally trying to answer the 

question whether we are in a war paradigm, a law of war paradigm, or a criminal paradigm as we look to whether or not we 

should grant habeas rights to enemy combatants for the first time 

ever. 

I would just like to make a comment. There has been a lot of discussion about the Constitution. I firmly believe that every member 

of this committee has a great love for the Constitution. We are all 

of us sworn to uphold and defend that Constitution and I believe 

that we are trying to do so to the best of our abilities. 

One of the issues we have discussed quite a bit is this issue of 

CSRTs that has been folded into this discussion. And so Colonel 

Abraham, Mr. Abraham, you are the expert witness here and I 

would like to ask a series of questions here so we can better understand your level of experience and expertise, if I can do that. 
37 

So I would just like to go through these and have you answer as 

quickly as you can, please. 

In your opening statement, you have a discussion about what 

was done by case writers, those people whose job it is to gather information. Were you ever a case writer? 

Mr. ABRAHAM. I worked close with the case writers. 

Mr. KLINE. You were not a case writer? 

Mr. ABRAHAM. I did not physically write many reports. 

Mr. KLINE. Thank you, sir. 

Your statement also discusses what members of quality assurance teams do. Were you ever a member of a quality assurance 

team? 

Mr. ABRAHAM. No, I was not. 

Mr. KLINE. You were not a member. Thank you. 

Mr. ABRAHAM. Correct. 

Mr. KLINE. You were an intelligence liaison as I understand it. 

Can you give us some idea of how many times you visited intelligence agencies? 

Mr. ABRAHAM. Three to four times I physically went to one particular agency. And on many other occasions I communicated directly with those agency representatives. 

Mr. KLINE. Three or four times. Thank you very much. 

There were, according to my notes here, panels—there were a 

number of duties that people could perform, recorder, personal representative, convening authority, legal advisor. Were you ever any 

of those? 

Mr. ABRAHAM. Well, I was in fact a member of a tribunal. I was 

thereby prohibited from serving in any of the other positions. 

Mr. KLINE. So you were a panel member? 

Mr. ABRAHAM. I was a panel member. 

Mr. KLINE. Okay. My notes here show that we have had 558 

CSRTs conducted. How many of those were you involved in? How 

many panels were you on? 

Mr. ABRAHAM. I was on one panel that heard one detainee’s case. 

Mr. KLINE. So I appreciate that that brings a perspective, but we 

are looking to you for information about this entire process and you 

have served on one panel out of 558 in a role as a panel member 

where you were precluded from these other things and you weren’t 

a case writer and you weren’t on the quality assurance team. 

So I don’t doubt that you paid close attention and you are reporting accurately on your participation, but it seems to me that this 

is not the depth and breadth of experience that we probably ought 

to be hanging our decisions on. Why do you feel qualified to tell us 

about the entire process with what appears to be a fairly limited 

participation? 

Mr. ABRAHAM. If I may, sir—— 

Mr. KLINE. Please. It is a question to you. 

Mr. ABRAHAM. Thank you, sir. 

The questions that were asked do not necessarily reflect the totality of the experiences that I had. Specifically, you asked me if 

I was a case writer. Case writing was the responsibility of many 

individuals who were assigned there, very few of them having any 

involvement in intelligence activities or intelligence products. 
38 

One of the things that I did as a qualified intelligence officer was 

work with each of those case writers as questions arose, as the circumstance dictated, explaining to them the type of products that 

they were reviewing and, in fact, dealing with them on questions 

of the very products they were reviewing. 

In that regard, then, I saw not just one file or one detainee’s file 

but more than 300 files and thousands of individual documents. 

Mr. KLINE. Excuse me. What did you do most of the time? What 

were the majority of your duties? 

Mr. ABRAHAM. The majority of my duties—— 

Mr. KLINE. Were you involved with the tracking system or what 

was your principal function down there? 

Mr. ABRAHAM. Well, sir, I had three functions, neither of which 

I don’t think anybody could describe as being principal. 

One of them was to individually track every step of the process 

for the detainees that were being tracked between September 2004 

and February 2005. So what I literally did, if I may, sir, was I generated the letters that gave notice to the detainees that they were 

going to have a hearing within 30 days. I generated the letters that 

were sent out to the various ambassadors, to the Department of 

State, to the intelligence agencies, asking them to begin to review 

their files. I generated the letters that were used to identify the individuals that were going to be put on the panels. 

Mr. KLINE. Excuse me. So most of your time, you were writing 

letters? 

Mr. ABRAHAM. No, sir. 

Mr. KLINE. Or were you participating in panels? I mean, what 

concerns me, I know that somebody has to track. There has to be 

a tracking system—— 

Ms. TAUSCHER. Will the gentleman yield? 

Mr. KLINE. I would be happy to yield. 

Ms. TAUSCHER. Mr. Kline, I am much more interested in understanding about habeas corpus than I am in having you impeach 

this witness. 

Mr. KLINE. Thank you. 

Reclaiming my time, this issue of CSRTs was brought up by the 

chairman by bringing this witness, and I think we need to understand better what the witness’ level of experience is, because his 

testimony is relevant to what the chairman wanted to do. 

I yield back. 

The CHAIRMAN. Before I yield to Mr. Sestak, let me ask the witness, was there any command influence, in your opinion, on your 

work in CSRT? 

Mr. ABRAHAM. Yes, sir. There were two aspects where command 

influence came directly to bear, again, in my perspective and based 

on my experience. 

The first related to one of the what I believe was highly significant tasks that I was charged to do. Following the opinions of the 

courts as were then applied in the practices of the CSRT process, 

through OARDEC, I was specifically charged to go certain intelligence organizations, whether physically, directly, or through communications, and validate the existence or nonexistence of exculpatory information. 
39 

As a part of that process, I also reviewed the thousands of documents that were included with many of the tribunal packets. I immediately advised my seniors, senior leadership, the deputy director of OARDEC and the director of OARDEC, that, one, when I 

went to the agencies I was not only frustrated but prevented from 

seeing or knowing the extent or even the existence of exculpatory 

evidence. That to my mind was a mission show stopped and I was 

dismissed by the comments. 

Second, as related to the documents themselves, I raised frequent concerns with the individuals who asked me about the documents, the individuals who used the documents, regarding their 

substance, the so-to-speak logical leaps that were included in their 

superficial oftentimes review or review of incomplete documents. I 

expressed these concerns. These were dismissed. 

Finally, when I was on a tribunal, yes, sir, one tribunal, all three 

members said this is not even evidence. We were told, go back and 

do it again. 

And if I may address a prior question that was asked of whether 

or not these practices followed a procedure or whether they were 

just individual string, in fact if you look at the CSRT implementing 

guidelines, they very specifically say that no matter what we find 

it is little more than a recommendation to the director of OARDEC, 

who can choose to accept or reject it. 

It was that rejection to my mind was the paramount and clearest 

expression of command influence that I could have seen in the entirety of the time that I was there. 

The CHAIRMAN. Thank the gentleman. 

Mr. Sestak. 

Mr. SESTAK. Thanks, Mr. Chairman. 

Listening to today’s discussion does give me concern why we 

don’t have habeas corpus. I remember being at the U.S. Naval 

Academy and they gave us a book to read, ‘‘Military Justice is to 

Justice as Military Music is to Music.’’ Obviously, it was a critique 

of the uniform code of military justice. 

But I was taken, when I read it, in this profession that I was 

about to embark on for 30-some years, in the middle of a war, Vietnam, that how we try to instill the dignity, even in a war, the dignity in danger by the rule of law, not of command influence. 

I then ended my profession having walked through Kuwait in another war and discovering that there were 50,000 individuals there 

that have nowhere to go because when Kuwait was established you 

had to find your lineage to a certain number of family, and if you 

couldn’t, you couldn’t leave Kuwait but you couldn’t be a member 

of Kuwait. So they are the ones you see along the road selling rags 

and stuff. They have nowhere to go. No law to resort to, no court. 

So as I stepped back, I was taken in warfare that we always 

wanted to have still the rule of law. And I looked at Kuwait and 

it just reminded me that down here in GTMO, Guantanamo Bay, 

we actually are holding men on trial for how long? Until a man decides, not the rule of law. And as I look at how the CSRT was originally established, it is a man, not a court, that decides whether 

statements of coercion, however anyone wants to describe that, are 

actually—statements that are actually a result of coercion and if 

there is value to them. 
40 

So as I step back, I am concerned for three reasons. Mr. Keene, 

you stressed the first for me. What was I fighting for? Everybody 

knows when you are out there in combat you are fighting for the 

guy beside you. But for this Nation, you are fighting for these 

ideals. 

So two questions, since they have gone back and forth on almost 

everything. If this really is, sir, for you such an important issue, 

why only GTMO? Habeas corpus is so simple. You talked about the 

great right in the 14th century. All it is is for an individual to go 

have the government order a court to tell a warden the legal authority for detainees. Why only GTMO? Why not elsewhere? 

And sir, for you, I was taken by your comment, it is disruptive. 

Mr. Oleskey, please for that first. You kept coming back, why set 

a second system up, because it is disruptive. I have seen a lot of 

disruptive things in my career, but to have that as the basis for 

why not beginning with a system that has already established, habeas corpus, which you may not agree goes to an individual, but 

I do think the suspension clause is important. 

Somebody, as Mr. Andrews said, higher will decide. But here we 

have taken a judiciary, in my opinion, and deprived it of the jurisdiction over law which the Constitution gives it. 

Tell me why disruption, a second system, has anything to do 

with the concern of starting out initially with what was already 

given by this Nation, the rule of law by habeas corpus. Sir, could 

you answer that, first, Mr. Oleskey. Why not have habeas corpus 

for wherever the U.S. Government detains people? Why only in 

GTMO? 

Mr. OLESKEY. Which one of us are you addressing? 

Mr. SESTAK. You. Yes, sir. You. You touched upon it but you 

never went over. 

Mr. OLESKEY. I am a lawyer, so I generally argue and respond 

in terms of the law as I have understood it and as it may evolve. 

The law as it stood has been that habeas corpus can be extended 

beyond the United States in some instances. 

What the Supreme Court has been grappling with are some of 

the issues that we have been talking about today, which is where 

is it appropriate to extend the writ. Thus far, it has been extended 

to the Philippines in limited cases and in other dependencies and 

now to Guantanamo. 

As a lawyer who advocates for personal liberty, I would be willing to see the process more broadly extended. As a lawyer advocating for clients in Guantanamo, I make the case for my clients 

within the bounds of where the law has been. The law has been 

that they are entitled to habeas since Rasul in 2004. I just want 

that process to go forward. 

I know that the Court of Appeals under the Military Commissions Act and the DTA doesn’t have the power to release people, 

even if they disagree with what the CSRTs did. They can apparently just send it back for another round of CSRTs and we are 

right back in what Lieutenant Colonel Abraham was talking about. 

A habeas judge can release people he determines who have been 

held for five or six or seven years, which is what we are getting 

to, who shouldn’t be kept any longer without trial or charge. 
41 

So within those bounds, as an advocate, that is where I come out. 

I take your larger point, but it goes beyond what I am here to advocate for today. 

Mr. SESTAK. Sir? 

Mr. PHILBIN. I think that we fundamentally disagree on whether 

or not there are constitutional rights—of the privilege of the writ 

of habeas corpus. The privilege of the writ does not extend to aliens 

outside the United States. 

In getting to your question about disruption and why is that a 

basis, that the law all along until Rasul for the Nation’s entire history has been that when the Nation conducts military operations 

overseas and seizes people in military operations, they are not entitled to the writ of habeas corpus. Over 600 attempts to get writs 

of habeas corpus after World War II were turned down by the Supreme Court and the big opinion that explained why was 

Eisentrager and it said rights do not extend to aliens outside the 

United States. 

And that explained part of the reason that that makes sense, a 

practical reason that the Constitution is structured that way, is 

that it would be a great hindrance to military commanders in the 

field who are trying to subdue an enemy. 

Mr. SESTAK. I am out of time, but I meant with GTMO, why 

would it be disruptive? 

Mr. PHILBIN. It has been disruptive with GTMO. When—— 

Mr. SPRATT [presiding]. We need to move on to the rest of the 

members here today, if you will wrap it up in a sentence or two. 

Mr. PHILBIN. The habeas actions were disruptive in the amount 

of control that petitioners wanted courts to exercise over access to 

GTMO and conditions there, and I think Congress responded responsibly by providing judicial review through a mechanism that is 

less disruptive to the military operation of GTMO but that still provides Article III court review. 

Mr. SPRATT. Mr. Wilson of South Carolina. 

Mr. WILSON. Thank you, Mr. Chairman. 

As I hear the discussion about military law, I served 31 years in 

the Army National Guard, 28 years as a Judge Advocate General 

(JAG) officer, and I have always been impressed by the people serving in the JAG corps, their professionalism, their efforts to be fair. 

I have heard criticism of the military code of military justice, but 

in each instance that I have had the opportunity to proceed with 

the code and work with the code and work with Guard and military 

members, I have just been so impressed by fellow JAG officers and 

the code and the whole system of military justice. 

And additionally, I have visited Guantanamo Bay twice. I was 

very impressed by the military personnel there, the intelligence 

personnel. We had full briefings. We had full access. It was incredible to me to see through interrogation the information that was received which uncovered terrorist cells in Europe, in the Middle 

East, in the United States. It was incredible the information that 

protected and saved, I think, thousands of lives of determining 

techniques of recruiting, the extraordinary ability to finance attacks on the United States, attacks on other countries around the 

world. 
42 

And all of this because of the ability we have had of detaining 

people who have every desire and intent to kill all of the American 

public. 

As I look at this and look at the bill before us, Mr. Philbin, I am 

very concerned that there are legal landmines present in what we 

are discussing. And in particular, that habeas corpus for alien combatants would not apply for persons who are in a zone of active 

combat. And the question would be, does that include Iraq and Afghanistan, all of Iraq and Afghanistan? 

Mr. PHILBIN. I think that that is a difficult question and that is 

a problem, in my view, with the bill, because the term is not defined what is an active zone of combat. 

And what will happen in litigation, people have already filed and 

others will file petitions for habeas corpus for persons held in Iraq 

or at Bagram in Afghanistan, and then they will start to argue in 

the courts about what does an active zone of combat mean. 

And there are probably other provisions in the U.S. Code that 

will refer to zones of combat. I am not specifically sure, but for purposes of combat pay or other reasons, and they might be defined 

in a certain way and they might be only zones of combat but not 

active zones of combat. And then that will be a way for lawyer to 

say, well, even if DOD considers all of Afghanistan a zone of combat for one reason, it is not an active zone of combat under this 

provision. 

If there is going to be a carve out that works and is intended to 

ensure that habeas petitions are not entertained from Afghanistan 

or from Iraq, it ought to be a much more well-defined provision. 

And as I pointed out in my prepared statement, there is also the 

concern that under the laws of war, generally commanders are required to remove prisoners from the zone of combat. That is the 

term used in the third Geneva Convention. 

And while that convention doesn’t specifically apply here, the 

general presumption under the laws of war is that you must take 

those that you detain out of the zone of combat. There is an argument for lawyers to make that anywhere they are held is not part 

of the zone of combat and that habeas therefore would apply. 

So those are big dangers, big unknowns with using that language 

in this bill. 

Mr. WILSON. Additionally, I have had the opportunity to visit 

with our troops who I so greatly appreciate. I have got four sons 

serving in the military, so I have a personal interest. I have visited 

with the troops in Kuwait. I have visited troops in Kyrgyzstan. My 

next-door neighbor served in Djibouti. Would those be active zones 

of combat? 

Mr. PHILBIN. Again, it is hard to say because the term is not defined. I think that it is most likely that some place like Djibouti 

would not be considered an active zone of combat, at least from 

what I know. 

Mr. WILSON. Well, having heard discussions from people serving 

there, it is a very interesting place. 

My final question. There is also reference to action solely for perspective injunction relief against transfer. What does relief against 

transfer mean? 
43 

Mr. PHILBIN. I believe that what that is intended to do is give 

the courts authority to stop temporarily, hear and decide on whether or not a detainee can be transferred to the custody of another 

country. 

It is part of the United States’ policy at GTMO to try to transfer 

as many detainees as possible to the custody of other nations who 

are willing to accept responsibility for them. 

Mr. WILSON. But they couldn’t—there is a potential they could 

not be held and could not be transferred. 

I yield the balance of my time. Thank you, Mr. Chairman. 

Mr. SPRATT. Ms. Boyda. 

Mrs. BOYDA. Thank you, Mr. Chairman. 

And I certainly appreciate the testimony of all four of you this 

morning, taking your time to do this. 

I would ask the committee’s indulgence for a few minutes to 

share my own personal story in this. 

Five years ago, if somebody would have said I was nonpolitical, 

that would have been an overstatement. I was completely apolitical 

for some different reasons, and have listened to my father and my 

mother and my grandparents carry on for years about the younger 

generation and what is going on in our country and what is going 

to happen, and listened to this debate, and worried about our country for years on how things are going to resolve themselves, but always rested in that assurance that things would take care of themselves. And that it didn’t need my participation. 

About four years ago I stood up, kind of like you, Mr. Abraham, 

and said I can’t remain quiet any longer. I don’t know what to do. 

The very core of our foundation of our country is about a balance 

of power, it is about checks and balances, so that nothing can get 

too far out of line and that the problems we solve some way or another, the pendulum will swing back and we will get this country 

back on track. 

The reason that I sit here today is because I believe that those 

checks and balances have been so severely undermined, and the 

CSRT, it may be a good system, it might work, but it doesn’t provide us any assurance that there are any checks and balances, and 

that is a very fundamental right and a fundamental core of our democracy. 

And so I applaud what you are doing to stand up and talk about 

what has been going on and I hope that you are able to get that 

message out. It is not just that it didn’t work. It is just that it was 

fundamentally flawed. And a core value that we share in this country is now under the consideration of this committee and will be 

under the consideration of this entire House of Representatives, 

and I hope that our country has not gone so far that we cannot 

bring it back into balance. 

I certainly sit here today as one of those people who is a new kid 

in Congress because enough people in Kansas said it has gone too 

far. And that gives me hope. 

Now let me ask my question. I do represent Kansas. I represent 

Leavenworth. And so the discussion certainly is about GTMO and 

I have a very specific question for you. 

Does the problem that we have seen at GTMO, somebody will go 

down and say, you know, they have got good meals, they have got 
44 

a good place to exercise in the day, there is not a problem. And we 

are going that is not the issue at GTMO. The issue is are people 

being held, detained, without being charged? Do they have a right 

to even ask questions about their detention in a way that we are 

used to in these United States? 

So it is not about the physical facility. It is about the black eye 

that has been put on. 

And my question to you would be, can we carry out justice at 

GTMO were this Congress to say we do want to return to the fundamentals of our democracy and we do want to bring back habeas 

corpus? Can justice be served at GTMO? Do we have to physically 

close GTMO or can we do it there? 

Mr. ABRAHAM. What I can speak to, Madam Representative, is 

to what happened in the CSRT process. But we have to begin by 

remembering that the Constitution did not invent the rights of life 

and liberty, that all it took was the absence of truth, a silence demonstrated in the CSRT process, to literally extinguish it. 

We speak of the bulwarks of our Constitution of rights that, at 

least as far as this Nation is concerned, existed for 200 years, and 

yet we measure the lives of men in decades. Some of these individuals will spend a great part of their adult lives in detention, whether it is at GTMO or somewhere else. 

Again, I can’t speak to how the freedoms that we enjoy are eroded or our reputations are eroded, but what I can do, if I may, is 

say that the CSRT process was our opportunity to find the truth, 

to identify the truth, and by that process determine whether these 

individuals should be detained for one more day than they were at 

the time of the CSRT process. Now, years later, we still don’t know 

why many of them—— 

Mrs. BOYDA. Let me just yield. The point of my question is, 

again, now that this has such a black eye, the good people of Leavenworth, Kansas, are asking why do we want to bring that into our 

community? And some are asking—these are different opinions. 

But I, on the position of do we close GTMO, I have said we don’t 

have to close GTMO to have justice being served. Would you care 

to, or would anyone else, care to comment on that? 

Mr. OLESKEY. I agree with you, Congresswoman, and I thank you 

for your time and the time you extended to me in May when we 

chatted briefly about this issue. 

The issue is justice. It is the principle to be served. There are 

issues raised today about whether it will be litigation, about restoring habeas. There has already litigation about the system in place 

and a point of fact, if the Administration had accepted the Rasul 

ruling and Hamdi and put in place a proper process and agreed to 

let habeas go forward, we wouldn’t be having this discussion today. 

Mrs. BOYDA. Exactly. 

Mr. OLESKEY. So I think that you are on the right track, absolutely. 

Now, the question is when and where are we going to serve the 

interest of justice, in this case individual liberty, not where are we 

going to put people who we continue to deny those rights. 

Mrs. BOYDA. Thank you. 

Mr. SPRATT. Mr. Franks of Arizona. 

Mr. PHILBIN. If I can make a brief comment. 
45 

Mr. SPRATT. Who would like to comment? 

Mr. PHILBIN. I would, sir, on the representative’s question. 

Mr. SPRATT. I am not trying to truncate anybody’s full explanation of the facts of the law, but we do have a full day, so do it 

as expeditiously as possible, please. 

Mr. PHILBIN. I agree with you, Madam Representative, that 

Guantanamo does not need to be closed for justice to be served. But 

I just wanted to comment that when the discussion refers to the 

rights we are used to, the things we are used to and people being 

held without charge, I think that is putting the discussion in the 

wrong context, because it is importing the rights of the criminal 

law into war fighting. 

People can be held at GTMO without charge. That is what happens in war. And I think it is important to keep that distinction 

in mind. 

Mr. SPRATT. Thank you, sir. 

Mr. Franks of Arizona. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, I first want to say that I identify so much with 

the heart and the sentiments of Mr. Keene and Mr. Bartlett, that 

this country is unique and that we do have a higher standard than 

the rest of the world, because we are not only the unipolar superpower of the world, that we are essentially the focus of freedom 

and the depot of freedom throughout the planet. 

That said, I have a great concern here that today we are inflating, if that is a good term, war and law enforcement. I serve as 

ranking member on the Constitution Committee and with the committee’s indulgence here, I would like to do two things. I would like 

to read in the Constitution where the writ of habeas corpus I think 

has its most relevant reference for us today, and then to relate 

some of the testimony given before the Constitution Committee. 

In Article I, Section IX of the Constitution, it says, ‘‘The privilege 

of the writ of habeas corpus shall not be suspended unless when 

in cases of rebellion or invasion the public safety may require it.’’ 

Now, the Founding Fathers anticipating the possibility of having 

to suspend the privilege of habeas corpus, even in this country, for 

certain critical reasons, to protect this Nation. And I think it is important here, first of all, for us to realize that this action in Guantanamo Bay, this action in the fight against jihadist terrorism, is 

not law enforcement. This is a war between the free peoples of the 

world and the most dangerous enemy they have thus far ever 

faced. 

In the Constitutional Committee, we have had testimony that essentially went this way: habeas rights would also give detainees 

the ability to compel witnesses, the context of enemy combatant 

combatant detention, in that context, the most relevant witnesses 

would be those soldiers who captured those detainees. It is hard to 

contemplate a system in which our soldiers are recalled from the 

battlefield to be cross-examined by the very enemy combatants 

whom they captured. Indeed, it would be hard to think of anything 

more demoralizing for our soldiers. 

As the court in Eisentrager noted, ‘‘It would be difficult to devise 

more effective fettering of field commanders than to allow the very 

enemies he is ordered to reduce to submission to call him to ac-
46 

count in his own civil courts and divert his efforts and attention 

from the military offensive abroad to the legal defensive at home. 

The detention of enemy combatants during wartime is not criminal 

punishment.’’ And I think that is so important for us to understand. 

The purpose of detention is prevent combatants from returning 

to the battlefield, as some have done upon their release. Detention 

is a matter of military necessity that has long been recognized as 

legitimate under international law. 

As former Attorney General William Barr testified before the 

Senate Judiciary Committee in July of 2005, he said, ‘‘What we are 

seeing today is an effort to take the judicial rules and standards 

applicable in domestic law enforcement context and extend them to 

fighting wars. Nothing could be more farcical or more dangerous.’’ 

And, you know, I have a hard time understanding that if indeed 

we are committed to extending habeas corpus to enemy, in this 

case unlawful enemy combatants, why don’t we go ahead and extend bail and Miranda rights and counsel. Why don’t we make sure 

that our soldiers, before they fire on anybody, give them their 

rights and all of these kinds of—it is just an hysterical notion. It 

just does not work in reality. 

And this notion of torture that was brought up, Mr. Chairman, 

it is—our penalty for torturing a prisoner is 20 years. If the prisoner dies, it could be the death penalty. So this nonsense that we 

are in this country trying to torture our prisoners is just that. 

And the idea of bringing back habeas corpus, that was mentioned 

earlier today, that is another misnomer. Habeas corpus has never 

been given to military combatants, especially nonlawful ones. 

I guess I will just close up my thoughts here and ask Mr. Philbin 

to respond. 

We face the most dangerous enemy we have ever faced. We are 

at war and the survival of this republic, I am afraid, is in question 

if we are unable to not be the victims of our own sense of propriety 

to the point that we throw out every justice point of view completely, then we will, I am afraid, disintegrate from within. 

Mr. Philbin, do you think that if we apply full habeas corpus 

rights to prisoners, that somehow this will denigrate our ability to 

fight war? 

The CHAIRMAN [presiding]. Please proceed. 

Mr. PHILBIN. I think that it would have a deleterious impact on 

the war fighting mission. I think that Congress responsively in the 

DTA and the MCA provided a review mechanism that is keyed onto 

a military procedure first, to something that the Supreme Court 

suggested in the Hamdi decision would be a fine mechanism, that 

would satisfy due process rights, even for American citizens, and 

it already adapts a mechanism for going beyond anything that is 

provided before to the war fighting situation by providing a form 

of review that keys off of prior military proceedings. 

Habeas corpus would be a disruption and the current system 

should be allowed to play itself out. 

Mr. FRANKS. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank the gentleman. 
47 

Let me remind the members that we have another panel following these distinguished gentlemen, and please proceed accordingly. 

Ms. Tauscher? 

Ms. TAUSCHER. Thank you, Mr. Chairman. Thank you for holding 

this hearing. 

I am honored to be an original cosponsor of your legislation and 

I think it is very important that we move ahead to restore habeas 

corpus. 

Gentlemen, thank you for being here. 

Mr. Chairman, I have, with your permission, some letters for the 

record in support of the restoration of habeas corpus that I would 

like to include in the record. 

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

page 239.] 

Ms. TAUSCHER. I represent Walnut Creek, California, some of the 

smartest people in the world, not because they have elected me six 

times but because they understand fairness very up close and very 

far away. And I think what my constituents and what I think 

many people around the world understand about how we have created a Gumby-like situation with the Constitution and thrown the 

Constitution up as an excuse when we choose to and then quickly 

hide it when we don’t, is a stain on the conscience of the American 

people. 

And it is about Guantanamo and those people that are there 

now, that they cannot find any way to prove who they are and 

what they were doing in a situation that is completely asymmetrical to any war that we have ever done. And frankly the situation 

of how they got to Guantanamo is completely different to anything 

that has ever been done in American history. 

And the fact is that we have people that are absolutely willing 

to justify this by comments, Mr. Philbin, that say even in the face 

of such a threat, the United States has exceeded its obligations toward the detainees in the conflict under both the Constitution and 

under international law. 

That does not satisfy me and it doesn’t satisfy my constituents, 

because they know that there is actually something even better 

than the Constitution and international law. It is their own gut 

sense that these men, particularly in Guantanamo, specifically in 

Guantanamo, have never been given a chance to understand who 

turned them in, how they got picked up and how they are going 

to get themselves home. How are they going to get themselves 

home? 

And for our government to constantly bend like a pretzel the excuses for why these habeas rights shouldn’t be extended to these 

people after we intricately designed Guantanamo to be a place 

where we can slip the noose on having anybody really pay attention to what we were doing there for a long time is on the face of 

it very necessarily rejected by my constituents and average Americans. 

Why is this stain of Guantanamo not enough for us to understand as we are battered about the head internationally, consistently, by our friends and our allies? Why isn’t it enough for us to 
48 

understand that this is wrong and that we have to do something 

about it? 

Mr. Philbin. 

Mr. PHILBIN. I think that it is certainly the case that we withstand, we take criticism internationally, for Guantanamo. 

Ms. TAUSCHER. Why? 

Mr. PHILBIN. I do not think that the policies at Guantanamo, 

though, should be changed to provide habeas corpus rights for 

enemy combatants detained there in response to that. 

I believe that the United States—— 

Ms. TAUSCHER. Because the criticism is illegitimate or because 

we don’t deal with what other people think? 

Mr. PHILBIN. But the criticism doesn’t depend simply on habeas 

corpus rights or on specific judicial review rights. The United 

States has already provided—— 

Ms. TAUSCHER. Mr. Philbin, the criticism is consistent. It is specific to this issue. 

Mr. PHILBIN. The criticism relates to what you have referred to 

as the stain of Guantanamo. It is an abomination of various things 

that other—— 

Ms. TAUSCHER. Is it legitimate? 

Mr. PHILBIN. I do not believe that it is legitimate. I do not. 

Ms. TAUSCHER. I do. 

Mr. PHILBIN. Well, we disagree, Madam Representative, and—— 

Ms. TAUSCHER. I will tell you one other thing—— 

Mr. PHILBIN [continuing]. I believe that—— 

Ms. TAUSCHER. Excuse me. In your comments, I find it fascinating that you say, ‘‘The political branches through recent legislation.’’ I am not a political branch, Mr. Philbin. I am a legislator. 

Mr. PHILBIN. Forgive me, Madam Representative, but lawyers 

refer to both the legislative branch and the executive branch as political branches because they are politically elected, they are representative bodies. Those are the political branches, and then the 

judicial branch is not a political branch. 

Ms. TAUSCHER. We are the legislative branch. But let’s get back 

to the issue. 

Mr. PHILBIN. And the issue, in terms of criticism of the United 

States will not be solved by providing habeas corpus rights to detainees at Guantanamo. 

The United States has already provided mechanisms of judicial 

review and Article III courts that go beyond anything that has ever 

been provided to any detainees in wartime before. And the—— 

Ms. TAUSCHER. The only thing that will solve the problem of 

Guantanamo is to close it. The only thing that will solve the problem of Guantanamo is to make sure we don’t repeat the mistakes 

that we made in creating Guantanamo. 

Mr. PHILBIN. The problem—— 

Ms. TAUSCHER. I yield back, Mr. Chairman. 

Mr. PHILBIN. If I could respond, Mr. Chairman. 

If the problem of Guantanamo to which you refer is that we receive international criticism about it, then I believe you are correct, 

that the only way to stop all of our critics from—— 

Ms. TAUSCHER. No, the problem is that we are wrong. 
49 

Mr. PHILBIN. If I could finish—if I could finish, Madam Representative, answering your question. The only way that we could 

respond to all our critics is to do everything that they want and 

to stop treating this as a war and to start treating it as criminal 

law enforcement. And that is not—— 

Ms. TAUSCHER. That cannot be your legal opinion. I would say 

that is your ideological opinion. 

Mr. PHILBIN. No. That is my view of the only mechanism that 

could be used to stop all international critics of the United States. 

And that is why I do not believe that U.S. policy should be dictated 

by whether or not we receive international criticism for it. 

We have determined that we are in a war and that we will conduct our conflict with al Qaeda according to the laws of war, and 

I believe that is the right decision and it is the policy that we 

should stick with. 

Ms. TAUSCHER. This is not—— 

The CHAIRMAN. The gentlelady’s request regarding the documents will be entered into the record without objection. 

Ms. TAUSCHER. Thank you, sir. 

The CHAIRMAN. Thank you. 

And now Mr. Hayes from North Carolina. 

Mr. HAYES. Thank you, Mr. Chairman. 

I know that it has been a long session and thank you all for your 

time and interest and intellect. 

And, Mr. Chairman, I think this is a very worthwhile discussion. 

I have listened with fascination and come away with a conclusion 

that Guantanamo is the right thing to do. We don’t need to close 

it. And our enemies, who are very hard to define, they don’t typically wear uniforms, have declared the whole world as a battlefield. 

To close Guantanamo Bay and bring these people to a community near you, as Ms. Boyda pointed out, she is not particularly 

anxious to have them at Fort Leavenworth. I agree. 

A couple other points. As I look at a press clipping from July 25, 

a top Taliban commander who became one of Pakistan’s most wanted men after his release from Guantanamo Bay, Abdullah Mehsud, 

killed himself because he didn’t want to be captured. We have got 

some dangerous people here. They are not jaywalkers. They are not 

there for littering. 

We had a process, and Mr. Abraham I find your testimony quite 

fascinating and I think Colonel Kline’s comments were appropriate 

because in this kind of forum, the public has a hard time seeing 

and understanding everything that goes on in a broader context, so 

your comments are appropriate but I think Colonel Kline was saying it shouldn’t be disproportionately weighted in the overall process. 

And in the interim, the responsibility of this committee is to protect and defend, raise an army, whatever it takes to defend this 

country. I am going to ask you a hypothetical question. It may not 

be quite fair, but each one of you all is an attorney, and that is 

perfectly fine. The professional responsibility you have is to defend 

your client, and that is crucial. That is crucial to our rule of law 

and the way we look at things. And you all have done an admirable 

job of that in the abstract and in the specific today. 
50 

Given the circumstance that you were defending a murderer, you 

knew he was guilty, the whole world knew he was guilty, couldn’t 

get a fair trial because of the weight of the evidence against him, 

all of the sudden you had to reverse and no longer were you the 

defense attorney. You sat on the jury. What would you do? 

We in this committee are a jury of sorts charged to defend this 

Nation. The Cole, they didn’t have habeas corpus. Daniel Pearl had 

no habeas corpus. Folks in the 82nd who are faced with improvised 

explosive devices (IEDs) every day, there is no habeas corpus there. 

We are defending the country. 

My question to you, if you had to come sit on the jury all of the 

sudden and defend these people that you know are guilty, how 

would you do that? Because that is what we are called to do here. 

And people back home want to know—it is a criticism. We are all 

criticized because, as you said, we are in the political branch. Criticism, one of the reasons that we are criticized by the world is that 

it is an easy thing to do, and witnesses and members create the 

ability and information that we are criticized. 

Guantanamo is correct. If we need to have another combatant 

status review tribunal, then that is what we need to do. But the 

Magna Carta and habeas corpus said we have to have these people 

a chance to have a review of their status. Well, we have done that. 

And, Mr. Abraham, you said we didn’t do it that well, but the 

Federal Court of Appeals said it was done right. So it seems if anything has come out of this, it is we got a process that is not as good 

as it ought to be. Let’s go back and correct that process. But to give 

people who are out to do away with us, to give them rights as 

though they were U.S. citizens having earned this right would be 

a terrible mistake. 

I know I am running out of time, but again, the jury question, 

you all left, you are no longer the defender, you are the jury. What 

would you do? 

Mr. Keene, you have got a smile on your face. That is a good 

start. 

Mr. KEENE. Well, Congressman, I agree with almost all that you 

say. I have listened to some of these things. I don’t think there is 

a need to close Guantanamo. I don’t think the question is whether 

people are well-fed at Guantanamo. I think what we are discussing 

is how do you get an answer to the threshold question does someone belong there. 

There have been references to that they are all unlawful enemy 

combatants, but that is the question and that is the threshold 

question. Are they? Many of them weren’t captured on the battlefield. Many of them were turned in for bounties. And the process 

by which we ask that question, not the subsequent questions—I 

think they ought to be interrogated, I think all of those things are 

true. 

And, actually, I am agreeing with you because you say whether 

it is habeas or something else, if we need to review that, let’s fix 

it. 

What we have doesn’t or hasn’t or is demonstrably in some cases 

not gotten to the threshold question, not answered that accurately. 

And that is what you, as the jury, have to decide how to do. We 

think that habeas is a way to do it. But at the end of the day, you 
51 

have to say can you go to sleep knowing that all of the 375 people 

that are at Guantanamo deserve to be there. And that the process 

that we now have that says that they do deserve to be there, is it 

flawed? And if it is flawed, does that mean some of them don’t? 

And that is the question, and that is what you have to wrestle 

with. 

Mr. HAYES. Thank you, Mr. Chairman. 

I don’t think habeas is the way to go, and I don’t think we ought 

to close Guantanamo. 

Thank you very much. 

The CHAIRMAN. Thank you very much. 

Ms. Davis from California. 

Mrs. DAVIS OF CALIFORNIA. Thank you. Thank you, Mr. Chairman. 

Thank you to all of you for being here. 

I wanted to follow up with a few things that were said, if I may. 

Mr. Philbin, you mentioned that we have many, several hundred, 

many hundred individuals that have not come under habeas, would 

not come under habeas. But as I understand it, I think they would 

be covered by the Geneva Convention. Is that not correct? Who are 

you referring to that we would have to—if we chose to bring enemy 

combatants under the habeas corpus, who else would that impact? 

Who else would that include? 

Mr. PHILBIN. Well, I am not sure. I think what I referred to was 

that at the end of World War II the Supreme Court rejected habeas 

corpus petitions from over 600 people who were being held. I think 

that is the only—— 

Mrs. DAVIS OF CALIFORNIA. Were those individuals, though, 

whose countries were signatories to the Geneva Convention? 

Mr. PHILBIN. Most probably were. I don’t know if all were. 

But—— 

Mrs. DAVIS OF CALIFORNIA. But that makes a difference, correct? 

That they at least are covered as opposed to being in what we 

would consider this kind of ‘‘Never Never Land’’? 

Mr. PHILBIN. Well, those who have POW, who are members of 

the armed forces of signatory nations and who meet the requirements of POW status will have protections under the Geneva Convention (GPW). Those protections do not include Article III court 

review of their detention. They are simply held until the end of the 

conflict. 

But if I could get, I think, to part of the point of your question, 

what would happen if Congress now passed legislation that broadly 

said habeas corpus is available for enemy combatants overseas and 

we will have a carve out for active combat zones. There will be a 

ton of litigation about what an active combat zone is, and people 

particularly in Afghanistan, who do not have POW status under 

the GPW would have access to habeas corpus if it were determined 

through litigation that they were being held in an area that is not 

an active zone of combat. 

Mrs. DAVIS OF CALIFORNIA. Would you advocate, do you think it 

would be better to bring everyone in a war zone, even if their countries are not signatories to the Geneva Convention, would it be 

preferable to have them covered under the Geneva Convention? 

Mr. PHILBIN. To have—— 
52 

Mrs. DAVIS OF CALIFORNIA. Would it be preferable to have them 

basically be POWs then as opposed to coming under the folds of habeas corpus, if in fact this was changed? 

Mr. PHILBIN. I don’t think so. I think—— 

Mrs. DAVIS OF CALIFORNIA. Let me move on. 

Mr. PHILBIN. The Geneva Conventions are set up to create a series of incentives for conducting war in a certain fashion. To give 

POW status to those who are actually unlawful combatants, I 

think, is a very bad idea, because it perverts the incentives of the 

entire Geneva Convention system, which is designed to force people 

to do things like wear uniforms and not attack civilians. 

Mrs. DAVIS OF CALIFORNIA. I understand that, but I am just trying to—see, we have individuals who are in this ‘‘Never Never 

Land’’ and we are trying to—in some ways, is it true that we are 

trying to find a home for them of sorts? So that the laws—— 

Mr. PHILBIN. I don’t think—— 

Mr. OLESKEY. We are trying to find a remedy for this unusual 

situation that has been created by the decision to put people deliberately in a place where they have no rights, which is what Mr. 

Philbin was tasked in doing, as I understand it, when he was in 

the Justice Department, and he makes no bones about that, and I 

understand and appreciate his candor. 

But now we have this situation. There has been a lot of talk 

about criminal process today. Habeas is not a criminal process, but 

the confusion is that usually when we deprive people of liberty, for 

their lives, we do it through a criminal process which has all kinds 

of safeguards. And I think what is running around in this room is, 

we are holding folks, which the Administration says it can hold for 

the rest of their lives, without the safeguards that most of us feel, 

at least folks I talk to, ought to attend taking away your life and 

liberty forever. 

So we are talking about a problem that has been created that 

needs a solution, and does this thing that Wolfowitz, Secretary 

Wolfowitz built hastily in seven days withstand six years? And the 

burden of the argument from this side of the table is it doesn’t. 

Mrs. DAVIS OF CALIFORNIA. I was concerned, Mr. Philbin, because I think at one point you did say that habeas is just another 

round of litigation. Does that sound true to what you meant, that 

it is just another round of litigation? Or is that—— 

Mr. PHILBIN. Well, let me address that, and if I could address 

some other points from what Mr. Oleskey said. 

First, I believe he mischaracterized my testimony in saying that 

I made no bones about the fact that, as he put it, my job at DOJ 

was to find someplace to put these people where they had no 

rights. I was asked to answer a legal question about whether or not 

there would be habeas jurisdiction at Guantanamo, and I answered 

that question. 

Second, Mr. Oleskey referred to this process that Paul Wolfowitz 

put together in seven days. In fact, the CSRT process had been in 

the planning stages for much longer, before the Rasul decision, and 

in any event is modeled on AR190–8. It is not something that was 

just dreamed up in seven days. It is modeled on an existing set of 

Army regulations and provides more protections than that set of 
53 

regulations, which is usually what is used to determine on detaining someone. 

In terms of my reference to habeas as another round of litigation, 

I don’t know if I said it exactly that way, but let me put it this 

way. Congress has already provided an adequate mechanism for 

Article III court review. It has established a system of review both 

for military commissions and CSRTs that allows Article III courts 

to examine those decisions. 

Habeas corpus petitions will be duplicative and an additional 

round of litigation under this bill if they are added, and there 

seems to be an assumption that habeas corpus will mean this specific set of procedures that will be used and this specific review 

mechanism, but I—— 

It seems to be an assumption that habeas corpus will mean this 

specific set of procedures that will be used and this specific review 

mechanism. But I don’t think that that is a correct assumption. 

The law on what habeas corpus review provides varies from one 

situation from another. It is a set system of rules when it is review 

in the criminal justice system. That is a very well-developed system. But habeas corpus review of a military decision to detain 

someone is not a well-developed system. 

And what standard of review will be applied in those cases and 

what exactly that would provide is going to be determined by a big 

round of litigation. And the precedents are from World War II in 

Yamashita v. Styer and in the Kearing case that judicial review by 

habeas corpus of a decision of a military tribunal is very limited 

and does not inquire into the facts. It only inquires into the jurisdiction of the tribunal. 

Mrs. DAVIS OF CALIFORNIA. Could I just say ask for a motion because I know our time is up? 

The CHAIRMAN. Thank you. 

Mrs. DAVIS OF CALIFORNIA. Would you all agree it is ill-defined, 

it would be ill-defined under the military? 

Mr. OLESKEY. That what would be ill-defined? Habeas? 

Mrs. DAVIS OF CALIFORNIA. Yes. 

Mr. OLESKEY. I don’t think the military has any business in habeas. I don’t think the military thinks it has any business in habeas. That is the business of the federal courts. And the genius 

that habeas is it is flexible. So where Mr. Philbin sees lemons, I 

see a sweeter fruit. 

The CHAIRMAN. I thank the gentlelady. 

Dr. Gingrey. 

Dr. GINGREY. Mr. Chairman, thank you. 

And, Mr. Oleskey, you have stated several times in your testimony that Secretary Wolfowitz literally threw this detention facility together and the legal policy. I think Mr. Philbin just stated 

that, in fact, that was not the case. 

There was certainly a very careful judicial review with the Justice Department, and this was not something that was just thrown 

together. And I want to start out my questioning though and ask 

the panelists just in a show of hands how many of you who have 

actually been to Guantanamo Bay, to GTMO. 

Okay, thank you. 
54 

And I see, in particular, Mr. Keene, that you have not been 

there. And I would like to point out that I have been there. I have 

been there twice. And when I was there back in 2004, early 2004, 

again in 2005, I saw the detention, the interrogation process. I saw 

the food service. I saw the exercise facility. 

I saw detainees having an opportunity daily to meet privately 

with members of the International Committee of the Red Cross. 

This at the same time while some of our soldiers in Iraq were 

treated a little differently when they were detained. 

And I could name several names that were very prominent in the 

news, but one in particular, a contract worker from my home town 

of Marietta, Georgia, Jack Hensley, was beheaded, cruelly beheaded without any right of habeas corpus. 

So therefore, I don’t feel, I certainly don’t feel we need to take 

the additional unprecedented step of allowing foreign terrorists, not 

prisoners of war, but foreign terrorists, enemy combatants that 

were detained not because they were jaywalking or spitting on the 

sidewalk. Indeed, one of these terrorists that was released just last 

week, Abdullah Mehsud, was released after the review commission 

decided that maybe he was no longer a threat, but went back and 

rejoined the fight. And when he was cornered, he blew himself up. 

So the difference between the way we treat our detainees and the 

way our enemy does could not be greater. Simply restoring habeas 

corpus privileges for terrorists or closing GTMO is not the answer. 

What it is is throwing the baby out with the bath water. 

Back to allowing foreign terrorists access to our judicial system, 

let me point this out. Between July 2004 and early 2005, the Department of Defense conducted 528 CSRTs, combatant status review tribunals, resulting in 38 determinations of no longer enemy 

combatant. Further, the administrative review board process is 

conducted annually. It is done every year to consider whether an 

enemy combatant should remain detained. 

After the first two cycles, there were 14 decisions to release. And 

there are now 83 more detainees approved for release. Does this 

not indicate—and this is my question—that there is a review process in place outside of habeas petitions for evaluating the status of 

detainees and their detention, which, by the way, goes beyond the 

Geneva Conventions, which do not bestow rights to challenge detention or the opportunity to be released as this thug was, 

Abdullah Mehsud prior to the end of hostilities? 

Mr. KEENE. This was directed at me, I believe. And I think first 

of all I should point out, as I have said repeated here, I am not 

in favor of closing Guantanamo Bay. I don’t think the question has 

anything to do with whether Guantanamo is open or closed or 

whether they have exercise facilities or whether they have good 

food. That is nice that they do. 

We treat prisoners, prisoners of war, and our criminals better 

than do most nations. That is a different question. 

The question is is there an independent way to determine whether or not people actually belong there. We refer to them all as terrorists. We refer to them all as hostile enemy combatants. Do we 

know that? And that is the question. That is the threshold question 

that these things have to answer. 
55 

Initially we didn’t do much at all. The system that we have in 

place now was a response to the court’s criticism of that and saying 

that you have got to do something. So the question is not whether 

we are doing anything. And obviously we are doing more than we 

did before. We are maybe doing more than some other country 

would do. 

That is good. The question is is that the best way to make that 

determination. And the difference between habeas and the others 

is something that one of the other Members of Congress raised earlier. And that is that it is independent. It is not asking the person 

in charge of doing it whether they are doing the right thing. 

So I think we can do it better. I think that the Administration 

and the people in charge of Guantanamo Bay have moved admirably. But the question is whether we are confident that that 

threshold question is being answered. 

Do we know and is there a fair way to determine whether all the 

people there belong there? It is not a question of how they are 

treated once they are there. It is a question of whether they belong 

there because many of these people were not picked up on the battlefield. 

The Defense Department itself—— 

Dr. GINGREY. Mr. Chairman, I thank you for your indulgence in 

the time for both me and the witness. I yield back. 

The CHAIRMAN. Okay. Thank you so much. 

Mr. Murphy from Pennsylvania. 

Mr. MURPHY. Thank you, Mr. Chairman. 

Gentlemen, thank you all for your testimony today and for being 

here. I am Patrick Murphy from the Eighth District of Pennsylvania. Before I came in Congress, I used to be a professor at West 

Point. And I used to teach constitutional law. 

And in 2002, I was fortunate enough to lead the cadet team for 

the first ever law of war competition. It was all the military academies throughout the world. It was being held in San Remo, Italy. 

And about the third day of the week-long course and competition, 

a cadet from Belgium grabbed me, and she pulled me aside. She 

said, ‘‘Captain Murphy, can I see you, talk to you in private?’’ I 

said, ‘‘Sure.’’ 

And she had this look on her face that I will never forget. And 

she said to me, she said, ‘‘Captain Murphy,’’ she said, ‘‘why doesn’t 

America give Article 5 hearings to those detainees in Guantanamo 

Bay?’’ And I had to look at her, and I had no real legitimate answer. 

I said, ‘‘I don’t know why. I don’t know why.’’ And it wasn’t until 

2004 until the United States Supreme Court stepped in that forced 

this Administration to allow detainees at Guantanamo Bay to at 

least look at and challenge their detainment. And since the combatant status review tribunal, the CSRT, was instituted, every detainee in Guantanamo Bay has been through the CSRT process. 

And from the statistics that I have seen, in over 550 CSRTs conducted by the Department of Defense, the detainees’ enemy combatant status is being reaffirmed 93 percent of the time. So my 

question is first to the panel, but first to Colonel Abraham. 

And, sir, thank you for your service to our country and for standing up like you are. Do you think that the CSRT process is in line 
56 

with the letter and the spirit of Article 5 of the Geneva Convention? 

Mr. ABRAHAM. Thank you very much, sir, for your comments. It 

is not. 

Both in looking at the percentages, the 93 percent affirmed, the 

annual reviews, of the 38 non-enemy combatants and of the large 

number of individuals who have been alleged to have been released 

and then returned the battlefield, the one message that comes 

through with clear resonance is that the process achieved arbitrary 

results. By that I mean are there certain terrorists at Guantanamo. 

Absolutely. I followed one of them for a year during my duties 

in the Pacific theater. I know about him. I know what he has done. 

And he should be there for the rest of his life. 

Are there people who did nothing? Absolutely. But between those 

two extremes there is a chasm in which we have filled the bodies, 

in excess of 500 bodies. And that is all they are. What they have 

been reduced to are statistics. 

They were processed through a system that was, as you rightly 

point out, not the Article 5 proceeding. Because the presumption 

was under Article 4 that they didn’t need that level of protection, 

we didn’t need that level of protection for them. 

The annual review process does not deal with the same question, 

the validity of their detention. Rather it deals with the two questions that are completely different: are they any longer a threat to 

the United States and is there any more intelligence value or some 

other reason why we should keep them. We lost sight in all of that 

process of the first question that we as a part of OARDEC involved 

in the CSRT process were charged to answer to the best of our 

abilities: should they be there in the first place. 

Mr. MURPHY. Thanks, Colonel. 

Gentlemen, could you please respond as well? 

Mr. KEENE. I think that he has pretty much nailed it. 

Mr. MURPHY. I would agree. 

Mr. OLESKEY. I agree. 

Mr. PHILBIN. I will respond to a couple points. Article 5 tribunals 

were not required because al Qaeda is not a signatory GPW. So 

those who were detained who were al Qaeda were not entitled to 

that. And—— 

Mr. MURPHY. Well, actually, sir, it is actually the term whether 

or not someone is a lawful combatant or an unlawful combatant. 

I would agree with you that al Qaeda is an unlawful combatant because they don’t adhere to the same rules that our professional soldiers do. But I would argue that that is exactly the premise behind 

the Article 5 hearing, to determine that. 

Mr. PHILBIN. The Article 5 hearing is to determine POW status. 

And POW status can only be for those who are signatories. 

Mr. MURPHY. Right. And the argument that you and I will probably have is that just because Secretary of Defense Rumsfeld or 

whoever it was in charge said they are all al Qaeda, they are all 

unlawful combatants, that is not for him to decide. That is not for 

him to decide. And that is exactly why we have the United States 

of America signing on to these international agreements, to lead 

the world, to show them that we believe in the rule of law. 
57 

Mr. PHILBIN. Well, I disagree with the representative on whether 

or not it can be determined. It was determined by the President 

himself that, given their tactics, their failure to use uniforms, that 

the Taliban generally were not entitled to POW status. 

But in any event, as to the CSRTs, do they comply with Article 

5? Again, I dealt when I was in the government at the policy level. 

I didn’t sit on a CSRT. But in terms of the way the CSRTs are 

structured, they provide more process, they provide more protections than Army Regulation 190–8, which is what is used to comply 

with GPW Article 5. So as a matter of how the system is set up, 

it is set up to comply, more than comply with Article 5. 

The CHAIRMAN. I thank the gentleman. 

We have four members who have not asked questions. We have 

a second panel waiting. So let us proceed. 

Ms. Castor. 

Ms. CASTOR. Thank you, Mr. Chairman. 

And thank the gentlemen. 

And, Mr. Abraham, thank you for your 22 years of service as a 

military intelligence officer. 

Mr. ABRAHAM. Thank you, ma’am. 

Ms. CASTOR. Regardless of how folks feel about the closure of 

Guantanamo, we are out to find out the truth here. And I think 

that, regardless of your political stripes, that is the intention of this 

committee. 

Mr. Abraham, in your testimony you state that these CSRTs and 

the whole process was designed not to ascertain the truth, but to 

legitimize the detention. The process was nothing more than an effort by the executive to ratify its exercise of power to detain anyone 

it pleases. 

You say the system was designed to fail. The combatant status 

review tribunal panels were an effort to lend a veneer of legitimacy 

to the detentions, to launder decisions already made. The CSRTs 

were not provided with the information necessary to make any 

sound fact-based determinations. Instead, the Office for Administrative Review, the leadership there, exerted considerable pressure 

and was under considerable pressure itself to confirm prior determinations. 

I would like you to go a step further than your answer to Chairman Skelton on where the pressure came from, explain the command influence in greater detail and how the chain of command— 

who was in the chain of command, and how far up did it go, in 

your experience. 

Mr. ABRAHAM. I can’t speak ultimately as to how far it went. My 

experiences stopped with Rear Admiral McGarrah. But above me 

and beside me were were commanders, two of them JAG officers 

with whom I consulted on a daily basis. We dealt with the issues 

of evidence and of the law applying it to the proceeding. 

I asked them questions and got their feedback to my concerns. 

There were then two captains, Navy captains, the equivalent of an 

Army full colonel, above me in the leadership chain, one, the assistant to the deputy and one the deputy director. And these individuals were essentially the intermediate level of command between, 

so to speak, myself or—and I don’t want to imply that I was in any 

position of command—but between me and Admiral McGarrah. 
58 

In terms of the specific pressure that was applied to this process 

and as it specifically applied to me, I was directly cast to gather 

information and to validate the existence or non-existence of exculpatory evidence. I went to one particular agency and said, ‘‘Where 

is the evidence?’’ They literally put a laptop in front of me and said, 

‘‘This is all you get to look at. We did the search for you. Accept 

that what we have given you is all there is.’’ 

I went back and I said, ‘‘I cannot perform this mission.’’ That is, 

specifically, I can tell you that I went to the agency. I can tell you 

they showed me things. And I can tell you what I said. But I can 

give you no independent basis for concluding, one, that there is or 

is not exculpatory evidence or that I have satisfied your charge to 

me. I was told, ‘‘That is fine. That is all you need to do.’’ 

That, however, was not my charge. But where it specifically came 

to bear was when I sat on a CSRT and I looked at the very same 

kind of evidence, so to speak, that I had seen for months. And not 

only I, but the other members of the panel said, ‘‘This is garbage.’’ 

And as a matter of fact, when we looked at direct statements 

that came from interrogators, where they said, ‘‘Our conclusion as 

to the facts is that this individual was involved in activities,’’ and 

we said, one, ‘‘That is not even a rational conclusion that you could 

reach, but, two, we have no reason for presuming the validity of 

that,’’ we were told, ‘‘You have to accept that as true.’’ 

The presumption is it is true, it is valid. And when we asked 

questions, we were told more time should be allowed for them to 

get the answers. And the answers didn’t come. 

And we concluded that the individual was not an enemy combatant. We were told, ‘‘Keep the hearings open so that they can come 

back.’’ We were told, ‘‘Reconsider when there is other residents.’’ 

Ms. CASTOR. And then ultimately you were not asked to return 

to a tribunal panel. 

Mr. ABRAHAM. That is correct. What I found—in fact, I didn’t 

even know that the individual received another panel’s—was involved in another hearing. 

Ms. CASTOR. Did they have similar interest when there was a determination that they qualified as an enemy combatant? 

Mr. ABRAHAM. Absolutely not, Madam Representative. 

Ms. CASTOR. And who did Captain Sweigart and Admiral 

McGarrah report to? 

Mr. ABRAHAM. My understanding is that—and, again, I may be 

off as to the number of steps. But Secretary England was within 

that chain of command. 

The CHAIRMAN. I thank the gentlelady. 

Mr. Courtney. 

Mr. COURTNEY. Thank you, Mr. Chairman. I just want to follow 

up that line of questions. 

When panel 23 reached its conclusion, and then was told to look 

again, and then panel 32 was convened and just overruled or contradicted your findings, how did OARDEC do that? I mean, did 

they reconvene the second panel because of their guidelines that 

you mentioned in earlier testimony? I mean, what is the authority 

they have to just reconstitute a second panel? 

The CHAIRMAN. Would the gentleman suspend for just a moment? 
59 

As I understand it, Mr. Philbin has a prior commitment and 

must leave. Am I correct? 

Mr. PHILBIN. Yes, sir. 

The CHAIRMAN. We appreciate your being with us this long. 

Mr. PHILBIN. Thank you. 

The CHAIRMAN. Thank you so much. 

Mr. PHILBIN. Thank you, Mr. Chairman. 

The CHAIRMAN. Please proceed. 

Mr. ABRAHAM. If I may, sir, I knew of no authority for holding 

a second CSRT or what has been referred to as a redo. I do know, 

my understanding based upon my reading of the procedures and as 

they were applied, was that each individual got a CSRT. The statement being no matter what happens as to that outcome, that is, if 

they continue to be detained, if they are identified as enemy combatants or an unlawful enemy combatant, in the ARB process we 

will smooth over any problems. 

I had never heard of a redo. I was not only shocked much later 

to have learned of it, but surprised as to its results because the information that we were given I had known from my experience 

working with it, and not just working with it through OARDEC, 

but in the years that I have worked with information from various 

agencies, very detailed and specific information contrasting that to 

what I saw, there was no way that our board could reach any other 

conclusion. 

It wasn’t a close call. And we weren’t giving the benefit of the 

doubt to small holes in the evidence. It simply didn’t even rise to 

the level of evidence. 

So I didn’t understand from two aspects how this happened. One, 

procedurally, I had never heard of it and never saw a basis for it. 

And two, the evidence simply was not there when that CSRT was 

scheduled. 

It is important to note, however, because I think one of the 

things you touch upon in your question is the fact that in many respects, the CSRT panel is merely advisory because the rules that 

instituted the CSRT procedures give the director of OARDEC the 

absolute authority to disregard the findings and recommendations. 

Essentially the judgment of the tribunal becomes little more than 

the findings and recommendations that a magistrate that a judge 

can accept or reject. 

Mr. COURTNEY. I am sorry Mr. Philbin had to leave because he 

actually just finished praising the structure of CSRTs. And it is 

hard to see how a structure that basically says the whole process 

can just get trumped by someone who is not even within that tribunal process or an independent magistrate just doesn’t comport 

with any structure of any kind of independent judicial review that 

I have ever heard of. 

Mr. ABRAHAM. If I may, there is a saying in the military repeated 

by everybody. I think they are born knowing it: ‘‘It is the doctrine, 

not reality.’’ It is a recognition of the dichotomy between what we 

are taught in class and what is applied on the field. 

In the instance of the CSRTs, there was no such dichotomy. It 

wasn’t as if there was a procedure that anyone in the trenches disobeyed. And that much should be made very, very clear. 
60 

Talking about the qualifications, the personal representative only 

had to be a major, no other qualifications. That was it. The recorder only had to be a captain equivalent, an O-3. And that was 

it. 

They were required to faithfully discharge their duties. And to 

the best of their abilities, I think they did. 

The fundamental flaw was in the fact that OARDEC was not an 

embedded consumer of intelligence or information. It was a stranger to most of these agencies making requests when it could, giving 

very little time to get meaningful responses from them, and physically constrained by the necessary limitations that involved the 

use of sensitive intelligence products. 

In other words, when they were handed a diluted, watered down, 

summarized statement that might or might not even apply to the 

individual, it was the best they got. It was all they had. 

In the case of our board, we said, ‘‘That is not to justify holding 

somebody perhaps for the rest of their life.’’ To our mind, to reach 

any other conclusion would have validated what we would then 

have had to have regarded as an arbitrary process, a game of spin 

the wheel. 

Mr. COURTNEY. All right. 

I yield back, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. 

Ms. Giffords. 

Ms. GIFFORDS. Thank you, Mr. Chairman. I appreciate the opportunity to have such a distinguished group of panelists. And I find 

the discussion absolutely fascinating. 

When you think about whether or not the people that are being 

held at Guantanamo Bay should be issued habeas corpus, it really 

cuts to the core of who we are as a nation and our status internationally. I think that it is a difficult discussion. But I also think 

it is tempting to think about restricting detainees’ rights just because of the fact of who they are, and the fact that we have military expediency, that always seems to take over and to take command of the situation. 

I mean, after all, I look at the attorneys who are representing 

these individuals. And many of these individuals who are currently 

being held don’t believe in the very legal or justice system that we 

have here in this country. And perhaps, if given the opportunity, 

they would destroy it or have attempted to destroy the values that 

we think are so important here in this Nation. 

But I also think that the lack of appropriate habeas corpus really 

undermines our standing internationally. And I think about how 

we are going to fight this global war against radical idealism, 

whether they are Jihadists or Muslim extremists or other types of 

extremists. And I think our reputation as a nation in terms of justice, and our commitment to freedom, is really important. 

The more we have discussions like this, and the more that people 

are internationally concerned about what is happening, I think 

that we drive away potential allies. And for those radical individuals that may be on the fence, I think that we are losing people. 

So my question is to Colonel Abraham. Giving fair trials to 360 

detainees at Guantanamo, I don’t believe, could possibly be more 

dangerous to our national security than to the thousands of indi-
61 

viduals, perhaps young Muslims, who are aspiring to hate us based 

on what they see happening. In your opinion, based on your experience with the CSRT and the intelligence community, do you believe 

that the situation in Guantanamo currently is reducing or increasing the overall violence and hatred toward the United States? 

Mr. ABRAHAM. Although this is purely my personal opinion, I 

think it makes tremendously difficult both the military and political aspects of what we do. One of the assignments that I had long 

before I came to work, either at Pacific Command or with 

OARDEC, was as a member of a psychological operations unit and 

military organization specifically designed to go out and, as we like 

to remind ourselves, win the hearts and minds of individuals, both 

in wartime and in peace. 

Most of those individuals are reservists. It is largely a Reserve 

function, the way that it is constructed. 

It has been tremendously difficult as I have seen it to get across 

a message. And it is a message based on an interesting paradox. 

On the battlefield when an enemy faces us with his gun, we can 

kill him. Yet the moment he raises his hand and drops his gun, we 

have to protect him. 

He may not understand the distinction between those two moments. But it is important enough that we do. 

As we sat at OARDEC dealing with these questions, it wasn’t important that somebody else know the difference between the rule 

of law and lawlessness, the difference between those who would destroy our country and those that support our country. The question 

was whether we understood the difference. 

I think most of the people at OARDEC did. But I think the system in which they worked made it impossible to find a meaningful 

distinction between those two sides of the line. 

Ms. GIFFORDS. And, Colonel, given just what you said, how would 

you personally recommend implementing habeas corpus or another 

appellate system to reduce the rate at which we have this conflict 

and perhaps a misconception, reduce the ability to radicalize our 

enemies, but also not provide for these folks to basically be able to 

talk their way out of prison? 

Mr. ABRAHAM. I can’t speak ultimately for the effect of habeas or 

some other proceeding. There are eminent experts surrounding me 

to my left, my right, my front, even my rear that know better about 

that. But I think we begin when we do what the CSRTs and 

OARDEC were charged to do, find the truth, find the truth as to 

these individuals. 

When you take away the generalizations and the claims and the 

categorizations and the ease with which you can put somebody in 

a broad, sweeping stroke into one category or another, decide they 

are terrorists and keep them in Guantanamo for the rest of their 

lives—when you stop that by first examining the truth as we were 

charged to do, I think you take away the fertilizer from that tree 

of which you speak. 

The CHAIRMAN. I thank you. 

Ms. GIFFORDS. Thank you. 

The CHAIRMAN. The gentlelady. I have remaining Ms. Shea-Porter and Mr. Cummings who have not asked questions. And when 

they have finished, we will then go to the second panel. 
62 

Ms. Shea-Porter. 

Ms. SHEA-PORTER. Thank you, Mr. Chairman. I think we have 

heard some people who have confused safety with this Nation with 

habeas corpus. I, too, worry about the danger this Nation faces. 

But that does not mean that we can’t have habeas corpus. 

John Adams said that we were a nation of laws, not men. And 

I am afraid that we have gotten that confused. 

But what really concerns me are the statements coming from our 

friends. And so, I would like to quote a BBC news security correspondent talking about the report that came out and was on BBC 

News yesterday about the U.S./U.K. relationship: Dilemmas Revealed in U.S./U.K. Relationship. Intelligence and security committee report had this to say. 

The IST report reveals aspects of the usually close Anglo-American intelligence relationship that are surprising and concerning. 

These tensions have centered on the evolving U.S. policy of rendition, the transferring detainees from one country to another, in 

some cases to stand trial, in other cases to U.S. military detention 

or even to third countries for interrogation and to alleged mistreatment. 

This policy has meant that for British intelligence, ethical dilemmas are not confined to countries with poor track records on 

human rights. The United Kingdom now has an ethical dilemmas 

with our closest allies because of very different legal guidelines and 

ethical approaches. 

This should horrify all of us, all of us good Americans who understand what our role has been in this world, to be embarrassed that 

the United Kingdom is concerned about some of our practices. We 

are supposed to be the beacon of light and freedom in this world. 

Mr. Oleskey, I would like to ask you a couple of questions. You 

were talking about your client 24/7 in his cell. 

Mr. OLESKEY. Yes. 

Ms. SHEA-PORTER. Okay. That is against everything we understand about human rights. That is the kind of stuff that we read 

about in newspapers or in books and they talk about some other 

government, not ours. Would you like to talk a moment about that? 

And then I have a couple of other questions to ask. 

Mr. OLESKEY. Yes. It is a man named Saber Lahmar, who is one 

of my six clients from Bosnia. I can’t tell you why he is there because no one in the system will tell me. I have written letters. I 

have asked that he be released from solitary. The last time I was 

able to see him last fall he told me he was hearing voices. 

I have tried to get him medical attention. I have tried to, in 

every way I can. But without access to habeas, there is no way for 

anybody to pass upon why he is there at all, much less why he 

should be punished in this fashion. 

But I am very concerned about because I think he is—I am losing him. And I can’t even talk to him about it because he seems 

to have lost the ability to leave his cell and talk to anyone. 

Ms. SHEA-PORTER. I don’t think any American would approve of 

somebody being kept 24/7 in darkness like that, especially without 

hearing what the story was. 
63 

Mr. OLESKEY. Actually, it is worse than darkness. He has a light 

on 24 hours a day, so he never knows when it is day and when it 

is night. 

Ms. SHEA-PORTER. These are the kinds of stories that my father 

told me about why our Constitution was so wonderful, because we 

were protected from this kind of activity. 

I wanted to ask you a couple of questions. 

And I had one to ask Mr. Philbin, and I hope that he will answer 

in writing to me. 

Some of these people were not picked up on a battlefield. 

Mr. OLESKEY. Yes, in fact, it appears that it is not disputed that 

the majority was not picked up on a battlefield as it would be defined by anybody, unless we define the whole world as a battlefield. 

Ms. SHEA-PORTER. Yes. Right. So they are not technically enemy 

combatants. 

Mr. OLESKEY. Not as I would view it. 

Ms. SHEA-PORTER. Okay. They can’t see all the evidence. Some 

is classified. 

Mr. OLESKEY. They can’t see most of the evidence because most 

of what the panels are shown, in my experience, is classified, not 

unclassified. And I am sure Colonel Abraham from what he said 

would agree. 

Ms. SHEA-PORTER. Who determines what is classified and what 

is not? 

Mr. OLESKEY. People in the military, people in civilian intelligence. 

Ms. SHEA-PORTER. So we don’t know who really determines that. 

And we don’t know what evidence is—— 

Mr. OLESKEY. That is correct. And I can’t tell you what evidence—I can’t even discuss classified evidence, much less whether 

I have seen at all. 

Ms. SHEA-PORTER. How is a personal representative chosen? 

Mr. OLESKEY. As I understand it, the personal representatives 

were not to be lawyers. And so, they were chosen by the command 

structure as non-lawyers, as Colonel Abraham said, relatively low 

rank in the officer corps. In my experience, they did not function 

as advocates at all. 

Ms. SHEA-PORTER. And one last question. How did they go from 

combatant to no longer an enemy combatant? Whatever happened 

to innocent or guilty? 

Mr. OLESKEY. That is a very good question. I would note that in 

the first Gulf War when this Article 5 process was used on the battlefield, the numbers of people who were screened out as not military, civilian, you go home was 70 percent. 

At Guantanamo, as you have heard this morning, it was 10 percent. That is because, in my view, the process was applied three 

years after the battlefield, and it is a battlefield process. It is not 

a process designed to be used after the fact, especially long years 

after the fact. 

Ms. SHEA-PORTER. Thank you. 

The CHAIRMAN. I thank the gentlelady. 

Mr. Cummings. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 
64 

I want to thank our witnesses for being here. I am the last questioner. All of you, I thank you for standing up for what you believe 

in. 

And, Mr. Abraham, as I listened to your testimony, I could not 

help but say to myself that this is truly a brave man. 

And all of you, standing up for what you believe in. 

And I also thought about the fact that I heard a number of concerns about inconvenience. You know, if it were for the inconvenience of the courts, I wouldn’t be sitting here today. I mean, when 

you think about all the cases that have been brought by Thurgood 

Marshall and so many others, if inconvenience was the standard 

for not doing something, not hearing cases, I wouldn’t be here 

today. 

But one of the things that concern me, Mr. Abraham, was something that you said that. I am having trouble as a lawyer dealing 

with this enemy combatant status. And perhaps the other two witnesses can talk about this, too. 

When I heard what you said about what happens from the beginning, that is, that exculpatory evidence—I mean, what you witnessed, what you said you witnessed, it seems like some of these 

folks should have never been picked up from the beginning. And 

that seems to taint almost everything down the line. 

And then when I hear you, Mr. Oleskey, say that you don’t have 

to be picked up on the battlefield, that makes me wonder, too. And 

then I wondered about this so-called war on terror. Does that then 

give every single inch of the world—I mean, anybody can be picked 

up, considered an enemy combatant wherever they may be found, 

anywhere in the world? Because when we say war on terror, that 

is pretty broad. 

And I am just wondering, would you all comment on those 

things? 

Mr. ABRAHAM. I can, if I may, sir. One of the problems is that 

we think of war in the traditional sense, and we say we know 

where the battlefield is. Well, let us take a very specific example 

of an individual who is in Guantanamo. He is identified by the 

name Haballi. He was the head of Gamaz Lamyia. 

We had been watching him for years. The South Pacific was his 

battlefield from Indonesia up the peninsula to Thailand. He gave 

little regard to the notions of even what was going on in the Middle 

East. 

In that sense, he created his battlefield. The battlefield itself is 

not the problem and has never been a problem for the intelligence 

community in dealing with its relationship with the legal questions, the Article 4 and Article 5 questions. 

That was never a concern. When I go to an intelligence agency, 

and I ask it the question, ‘‘What are the circumstances of this individual’s capture, what are the circumstances of his activities, do 

you have any evidence relating to the question of whether or not— 

he didn’t do any of those things?’’ 

They don’t come to me and say, ‘‘Gee, Colonel Abraham, he 

wasn’t really found on a battlefield.’’ It is not a meaningful question. So that was never a problem of where the individual came 

from. 
65 

In my mind, the question squarely before us was what evidence 

do you have of what he did, whether he moved money, whether he 

fired a gun, whether he trained terrorists, or whether he was sent 

by his wife to get a gallon of milk. The answer to that question was 

the most important piece of information in this process. And 

whether it came from a highly classified source or somebody saying, ‘‘Yes, I sent him, and between that chore, he had other chores,’’ 

those are probative pieces of evidence. 

Mr. CUMMINGS. And assuming that kind of information was lacking, Mr. Oleskey, I guess, they would almost have to let your client 

go, is that right, under habeas? 

Mr. OLESKEY. They would have to let my client go, in my view, 

if they looked at all the evidence. As the colonel is pointing out, 

they didn’t see much of the evidence. 

And we filed with the military, as a result of doing our own review, a lengthy document, 128 pages, where we pointed out that 

these 6 men, who are said to be commonly linked in a conspiracy, 

had in one of their CSRTs somebody sent in after a CSRT in the 

system, somebody in the system, something they said was exculpatory. And that panel said, ‘‘No, we have already closed the 

books.’’ 

And nobody in the chain of command said, well, if these men 

were all supposed to be part of a common plot and somebody in the 

military thinks that whatever this information is could be exculpatory, it must relate to all of them potentially, not just to this one. 

But it wasn’t shown to any of the other five panels. 

And you talk about the expansion of this doctrine under the Military Commission Act of withdrawing habeas corpus. Mr. al-Marri 

was a student at Bradley University. Mr. Padilla stepped off a 

plane in Chicago. 

So this doctrine that if you label anyone a combatant you can 

take them anywhere in the world, not just off a battlefield in Bosnia, but in the United States, has been greatly expanded by this 

Administration. I think that the muscle the chairman’s bill puts 

back in this to circle around to where we were would help stop 

what many people regard as some of those excesses. 

Mr. CUMMINGS. Thank you all very much. 

The CHAIRMAN. Thank you. I thank the gentleman from Maryland. 

And again, thanks to this panel. It has just been excellent. We 

appreciate your expertise. 

We will now go to our second panel. We will give them time to 

enter the room. 

Again, thank you, gentlemen. 

The gentlelady from New Hampshire is to submit some additional questions for the last panel. And without objection, that will 

be so ordered. Just submit them in. We will make sure that they 

receive those. Thank you very much. 

The second panel, Mr. Daniel Dell’Orto, principal deputy general 

counsel for the Department of Defense; Mr. Gregory Katsas, principal deputy associate attorney general of the United States. And 

with us also is Rear Admiral James McGarrah, retired, director of 

the Office for Administrative Review of the detention of enemy 
66 

combatants from 2004 to 2006. And he is here to answer questions 

as well. 

As I understand, Mr. Dell’Orto and Mr. Katsas will make presentations. 

And, Admiral, you will just be available. Am I correct in that? 

Mr. MCGARRAH. Yes, sir. 

The CHAIRMAN. Well, thank you very, very much. 

Mr. Dell’Orto. 

Mr. DELL’ORTO. Thank you, Mr. Chairman. 

The CHAIRMAN. First, let me say that any prepared remarks will 

be placed into the record en toto. And if you could condense your 

comments, that would help us. Thank you. 

Mr. Dell’Orto. 

STATEMENT OF DANIEL J. DELL’ORTO, PRINCIPAL DEPUTY 

GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE 

Mr. DELL’ORTO. Again, thank you, Mr. Chairman, members of 

the committee for the opportunity to testify before you today regarding individuals detained by the Department of Defense as unlawful enemy combatants. 

The United States is in a state of armed conflict with al Qaeda, 

the Taliban, and its associated forces. During this conflict, persons 

have been captured by the United States and its allies. And some 

of those persons have been detained as enemy combatants. 

The United States is entitled to hold these enemy combatant detainees until the end of hostilities. The principle purpose of this detention is to prevent the persons, those persons, from returning to 

the battlefield, as some have done when released. 

Detention of enemy combatants in wartime is not criminal punishment, and therefore, does not require that the individual be 

charged or tried in a court of law. It is a matter of security and 

military necessity that has long been recognized as legitimate 

under international law. 

In Hamdi v. Rumsfeld, the Supreme Court confirmed this principle of international law and held that the United States is entitled to detain enemy combatants, even American citizens, until the 

end of hostilities, in order to prevent the enemy combatants from 

returning to the field of battle and again taking up arms. The court 

recognized the detention of such individuals is such a fundamental 

and accepted incident of war that it is part of the necessary and 

appropriate force that Congress authorized the President to use 

against nations, organizations, or persons associated with the September 11th, 2001, terrorist attacks. 

The U.S. relies on commanders in the field to make the initial 

determination of whether persons detained by United States forces 

qualify as enemy combatants. And we have done this throughout 

our history. 

Since the war in Afghanistan began, the United States has captured, screened, and released approximately 10,000 individuals. 

Initial screening has resulted in only a small percentage of those 

captured being transferred to Guantanamo. The United States only 

wishes to hold those who are enemy combatants and who pose a 

continuing threat to the United States and its allies. 
67 

In addition to the screening procedures used initially to screen 

detainees at the point of capture, the Department of Defense created two administrative review processes at Guantanamo in the 

wake of the Hamdi and Rasul cases: Combatant Status Review Tribunals, CSRTs, and Administrative Review Boards, ARBs. The 

CSRT and ARB processes provide detainees with a measure of 

process significantly beyond that which is required by international 

law. 

The CSRT is a formal review process created by the Department 

of Defense, and incorporated into the Detainee Treatment Act of 

2005 that provides the detainee with the opportunity to have his 

status considered by a neutral decision-making panel composed of 

three commissioned military officers sworn to execute their duties 

faithfully and impartially. The CSRTs provide significant process 

and protections, building upon procedures found in Army Regulation 190–8. 

The Supreme Court specifically cited these Army procedures and 

that regulation as sufficient for U.S. citizen-detainees entitled to 

due process under the United States Constitution. The CSRT guarantees the detainee rights notable beyond those provided by an Article 5 tribunal. 

In addition to the opportunity to be heard in person and to 

present additional evidence that might benefit him, a detainee can 

receive assistance from a military officer to prepare for his hearing 

and to ensure that he understands the process. This personal representative has the opportunity to review the government information relevant to the detainee. 

Furthermore, a CSRT recorder is obligated to search government 

files for evidence suggesting the detainee is not an enemy combatant and to present such evidence to the tribunal. Moreover, in advance of the hearing, the detainee is provided with an unclassified 

summary of the evidence supporting his enemy combatant classification. 

Every decision by a tribunal is subject to review by a higher authority, empowered to return the record to the tribunal for further 

proceedings. In addition, if new evidence comes to light relating to 

a detainee’s enemy combatant status, a CSRT can be reconvened 

to reevaluate that status. 

In addition to the CSRT, an ARB conducts an annual review to 

determine the need to continue the detention of those enemy combatants not charged by military commission. The review includes 

an assessment of whether the detainee poses a threat to the United 

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

support the need for continued detention, intelligence value, as an 

example. 

Based on this assessment, the ARB can recommend to a designated civilian official that the individual continue to be detained, 

be released, or be transferred. The ARB process also is unprecedented and is not required by the law of war or by international 

or domestic law. The United States created this process to ensure 

that we detain individuals no longer than necessary. 

In Rasul v. Bush, the Supreme Court ruled that the federal habeas corpus statute applied to Guantanamo and therefore, federal 

courts have jurisdiction to consider habeas challenges to the legal-
68 

ity of the detention of foreign nationals at Guantanamo. The court 

accordingly held that aliens apprehended abroad and detained at 

Guantanamo Bay, Cuba, as enemy combatants could invoke the habeas jurisdiction of a district court. Of course, there is not and has 

never been a constitutional habeas right that attaches in this setting. 

In the Detainee Treatment Act of 2005, Congress established additional procedural protections for future CSRTs and provided for 

judicial review of final CSRT decisions regarding enemy-combatant 

status in the U.S. Court of Appeals for the District of Columbia 

Circuit. At the same time, Congress foreclosed the Guantanamo detainees from pursuing alternative avenues of judicial review, including through statutory habeas corpus. The Military Commissions Act of 2006 made the provisions providing for judicial review 

of final CSRT decision and foreclosing statutory habeas expressly 

applicable to pending cases. 

The DTA and the Military Commissions Act permit the D.C. Circuit to review CSRT determinations of detainees at Guantanamo. 

Traditional habeas review in alien-specific contexts involved, in 

general, review of questions of law, but other than the question of 

whether there was some evidence to support the order, the courts 

generally did not review the factual determinations made by the 

executive. 

However, under the Detainee Treatment Act, or DTA, to the extent an alien-petitioner has concerns about the legal adequacy of 

the CSRT standards and procedures used to make an enemy combatant determination, he may squarely raise those concerns and 

have them adjudicated in the court of appeals. Further, the court 

of appeals’ review involves an assessment by that court of whether 

the CSRT, in reaching its decision, complied with the requirement 

that the conclusion of the tribunal be supported by a preponderance of the evidence. Providing review of an enemy combatant determination in a nation’s own domestic courts is an unprecedented 

process in the history of war. 

As some of you know, the Department has filed motions to dismiss all habeas cases brought by detainees at Guantanamo Bay. 

Under the MCA, and as affirmed by the D.C. Circuit in 

Boumediene, the appropriate venue for detainee challenges to the 

lawfulness of their detention is in the D.C. Circuit. As you also 

may be aware, the Supreme Court recently granted certiorari to review the Boumediene decision. We look forward to presenting our 

argument to the court in the fall and are confident in our legal position, as upheld by the D.C. Circuit. 

Extending statutory habeas to aliens held at Guantanamo Bay is 

both unnecessary and unwise. Together, Congress and the President developed the Detainee Treatment Act and the Military Commissions Act. Those statutes, which were passed with bipartisan 

majorities, along with the CSRT and ARB processes, represent the 

result of the combined wisdom of the President, the Congress, and 

numerous military and civilian personnel, applied to the Nation’s 

accumulated experience in fighting an entirely new kind of war. 

They seek to provide justice, fairly and lawfully administered, 

while safeguarding the security of the American people. To discard 

this system, or any element of it, would be to ignore wisdom and 
69 

experience. And doing so would do a disservice to the American 

public. 

Thank you, Mr. Chairman. And I await your questions. 

[The prepared statement of Mr. Dell’Orto can be found in the Appendix on page 176.] 

The CHAIRMAN. Thank you, sir, for being with us. 

Mr. Katsas. 

STATEMENT OF GREGORY G. KATSAS, PRINCIPAL DEPUTY ASSOCIATE ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. KATSAS. Mr. Chairman, members of the subcommittee, since 

September 11, 2001, the United States has been engaged in an 

armed conflict unprecedented in our history. Like past enemies we 

have faced, al Qaeda and its affiliates possess both the intention 

and the ability to inflict catastrophic harm on this Nation. But unlike past enemies, al Qaeda forces show no respect for the law of 

war as they direct attacks primarily against civilians. 

In one day, they destroyed the World Trade Center, severely 

damaged the Pentagon, and inflicted greater casualties than did 

the Japanese at Pearl Harbor. They are actively plotting further attacks. 

To prevent such attacks, the United States is detaining selected 

members of al Qaeda and the Taliban at a military base leased by 

the United States at Guantanamo Bay, Cuba. Each of those detainees has received a hearing before a CSRT. These CSRTs afford detainees more rights than ever before provided for wartime status 

determinations. 

They also afford more rights than those deemed by the Supreme 

Court to be appropriate for American citizens detained as enemy 

combatants on American soil. And they afford more rights than 

those given for status determinations under the Geneva Convention. 

Congress has recently provided the detainees with even greater 

protections than that. In the Detainee Treatment Act, Congress 

prohibited the government from subjecting detainees to inhumane 

and degrading treatment, established additional protections for future CSRTs, and guaranteed judicial review of final CSRT decisions 

and final criminal convictions before military commissions. 

At the same time, Congress barred the detainees from seeking 

judicial review through habeas consistent with the traditional understanding that habeas is unavailable to aliens held outside the 

United States, particularly during wartime. In the Military Commissions Act, Congress codified procedures for war crimes prosecutions before a military commission. The MCA affords defendants 

more rights than those available in past military commission prosecutions by the United States and more rights than those available 

in international war crimes prosecutions like those conducted at 

Nuremberg. 

Like the DTA, the MCA provides for judicial review, but just not 

through habeas. Extending habeas to aliens abroad is unnecessary 

and unwise. Over 50 years ago, the Supreme Court in Johnson v. 

Eisentrager held that aliens outside the United States have no constitutional right to habeas. In the words of Justice Jackson, the 
70 

same country lawyer mentioned by the chairman and others, wartime habeas trial would bring aid and comfort to the enemy, and 

it would be, in Justice Jackson’s words, difficult to devise a more 

effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him into account 

in his own civil courts and divert his efforts and attention from the 

military offensive abroad to the legal defensive at home. 

The Supreme Court’s decision in Rasul, which addressed only the 

scope of the habeas statute, does not undermine this constitutional 

holding of Eisentrager. Habeas restrictions are important for national security as explained in Eisentrager and borne out by recent 

Guantanamo experience. 

During the last few years, more than 200 habeas actions were 

filed on behalf of more than 300 detainees. The litigation imposed 

substantial burdens on the operation of a military base in time of 

war. 

It prevented military commission prosecutions from even beginning. And it impeded interrogations critical to preventing further 

attacks. These burdens would be even greater if habeas were made 

available in larger conflicts such as World War II when the United 

States detained not hundreds of enemy combatants, but more than 

two million enemy combatants. 

Habeas review is also unnecessary. As I have noted, the CSRT 

and military commission procedures give detainees unprecedented 

wartime protections. Moreover, detainees may challenge those procedures in court and may raise any constitutional or statutory 

claim of their choosing. That alone would make this scheme an 

adequate substitute for habeas. 

But Congress went even further and allowed detainees to challenge both the sufficiency of evidence underlying the tribunal’s decision and the tribunal’s compliance with its own procedures. Even 

where habeas had been available, prior law would have barred 

those claims. 

In sum, the existing system represents a careful balance between 

the interests of detainees and the exigencies of wartime. It is both 

constitutional and prudent and should not be upset. Thank you. 

[The prepared statement of Mr. Katsas can be found in the Appendix on page 180.] 

The CHAIRMAN. Thank you very much. 

Mr. Katsas, before I ask Mr. Saxton, under the statute passed by 

Congress regarding the review process, who has the burden of proof 

in that process? 

Mr. KATSAS. In the combatant status review tribunal? 

The CHAIRMAN. Yes. 

Mr. KATSAS. I think initially the government has the burden of 

proving enemy combatants. 

The CHAIRMAN. Wait. What do you mean ‘‘initially’’? 

Mr. KATSAS. In the combatant status review? 

The CHAIRMAN. Yes, sir. 

Mr. KATSAS. Well, the government has the burden of proving 

enemy combatant status by a preponderance of the evidence. There 

is a provision in the CSRT procedures affording to government evidence a presumption of regularity that comes straight out of the 

Supreme Court’s opinion in Hamdi where the Supreme Court said 
71 

that a presumption like that would be appropriate even where you 

are talking about the detention of an American citizen. 

The CHAIRMAN. Who has the presumption of proof in a habeas 

corpus case? 

Mr. KATSAS. In a habeas? I think similarly the government has 

the burden of justifying detention. The structures are analytically 

similar, Mr. Chairman, in that we are not talking about—— 

The CHAIRMAN. I am not talking about structures. I am talking 

about who has the burden of proof. You understand what burden 

of proof is? 

Mr. KATSAS. I do, sir. The government—— 

The CHAIRMAN. You have tried a few cases, I take it? 

Mr. KATSAS. I am sorry. 

The CHAIRMAN. You have tried a few cases? 

Mr. KATSAS. I have argued a few appeals. 

The CHAIRMAN. All right. Well, you understand. 

Mr. KATSAS. The government—— 

The CHAIRMAN. Are they exactly the same, the review process 

that is set forth in the statute and the habeas corpus? Is the burden of proof exactly the same? 

Mr. KATSAS. I think it is. There is a—— 

The CHAIRMAN. Now, wait a minute. 

Mr. KATSAS. May I? 

The CHAIRMAN. In your opinion, yes, sir, it is. 

Mr. KATSAS. Yes. But—— 

The CHAIRMAN. The answer is yes. 

Mr. KATSAS. Well, yes. But may I explain? 

The CHAIRMAN. Sure. 

Mr. KATSAS. The one respect in which the combatant status review tribunal procedures is arguably distinctive in terms of presumptions and burdens from normal procedures is the presumption 

that the government’s evidence is true and accurate. Now, the Supreme Court in the Hamdi case made clear that that kind of presumption in favor of the government’s evidence, which is not found 

in habeas corpus generally, would be appropriate in habeas corpus 

proceedings to address status determinations for Americans held in 

this country. So if you compare habeas under Hamdi to combatant 

status review tribunal procedures at GTMO, I think the burdens 

are essentially the same. 

The CHAIRMAN. Thank you very much. 

Mr. Saxton. 

Mr. SAXTON. Mr. Chairman, thank you. 

Mr. Dell’Orto and Mr. Katsas, for purposes of clarification for 

members who are here or for anyone who may be listening, I suspect this is a fairly complicated conversation that we are having, 

particularly for those of us who haven’t practiced law or are not 

lawyers. 

So I would just kind of like to walk through this for purposes of 

clarification and walk through what is current law or what I perceive is current law and what I perceive as the main provisions of 

what has been proposed in the way of new law, a bill to be passed, 

which is the subject of this hearing. 

Under current law, an individual is apprehended as being suspected of being an illegal enemy combatant. Under the proposal, 
72 

that doesn’t change obviously. Somewhere on the ‘‘battlefield’’ in 

this new kind of warfare, an individual is apprehended and is suspected of being an enemy combatant. No difference. 

Under current law, there is a process that has come to be known 

as the combatant status review tribunal. And that is where the status of the individual is reviewed and, my word, confirmed, if that 

is what it is. He is an enemy combatant or he is not. 

Under new law, there is something called habeas corpus, which 

I interpret from a layman’s point of view as going to court to make 

the same kind of determination. Now, from there on in this process, 

under current law we go to appeals court. And under the chairman’s proposal, or whoever’s bill this is, we go to federal appeals 

court. 

The only difference being that we specify under current law the 

D.C. appeals court. And under the new proposal, it could be one of 

12 circuit courts. Does that follow along? Okay. So no difference 

there, except that there is a broader set of choices, if you will, for 

the individual to choose a court. 

Mr. KATSAS. Presumably, it would be one of 93 or 94 different 

United States district courts under habeas then. 

Mr. SAXTON. Okay. But the point that I am trying to make is 

that it is a federal appeals court, which is the next step beyond either CSRT or habeas corpus. Right? And finally, the last step, of 

course, would be to appeal, that if the enemy combatant was not 

satisfied with the result of the appeals court, he would go to the 

Supreme Court in both cases. No difference there. 

Mr. KATSAS. Right. 

Mr. SAXTON. So the real difference in this is whether we subscribe to the concept in current law of a combat status review tribunal or the habeas corpus process. 

Mr. KATSAS. I agree with that. 

Mr. DELL’ORTO. I agree as well. 

Mr. SAXTON. Okay. Why then do we think that the CSRT, combat 

status review tribunal, is the way we ought to go rather than habeas corpus? 

Mr. KATSAS. I think for some of the reasons that Mr. Philbin explained, in terms of the legal uncertainty about how habeas plays 

out for some practical reasons, in terms of the burdens habeas imposes, and for some security reasons. And let me try to spell all of 

those out for you. 

We had experience with habeas corpus at Guantanamo in the period between 2004 when Rasul was decided, and 2006 when this 

Congress said no, we want you to go seek review by other means. 

The experience in that interval is exactly what Justice Jackson predicted in terms of the tremendous burdens imposed on military operations with the hundreds of cases, with the Defense Department 

having to accommodate essentially full-time visits to a military 

base. 

We had problems with information slipping into Guantanamo 

getting to detainees, sensitive information that risked security. The 

D.C. Circuit averred to that in Bismullah. 

We had problems with frustrating interrogations, as one of the 

detainee lawyers has publicly boasted. We have under habeas questions about whether discovery will be available so that detainees 
73 

and their counsel could rifle through government files. We would 

oppose that. But as Mr. Philbin explained, the standards are unclear, and we might or might not win. 

We would have uncertainty about trial procedures. Possibly there 

would be strict evidentiary rules. If there were strict evidentiary 

rules, we would have to summon military commanders back from 

half a world away to avoid hearsay evidence, to establish chain of 

custody. We would impose on those people evidence gathering requirements. 

Habeas corpus literally means ‘‘produce the body.’’ We would face 

arguments about having to bring someone like Khalid Sheikh Mohammed into New York or Washington for a habeas trial. Presumably we are trying to keep people like that out of our major cities. 

We might well have to bring them into court to present testimony 

at a habeas hearing. 

Obviously that creates huge security risks. The district court 

judge in New York who tried the World Trade Center I bombings 

required security, personal security escort 24 hours a day, 7 days 

a week for over a decade based on his presiding at that trial. Imagine the spectacle of dozens of folks like Khalid Sheikh Mohammed 

coming before a United States district court judge in this country. 

Habeas also enables detainees to raise collateral claims about 

treatment, about conditions of confinement, about transfer. In our 

view, that is not proper because habeas is only about detention. 

But the standards are unclear, and we have to litigate out of all 

of those issues. 

Finally, if you have the enemy combatant determination being 

done by a court in this country, there would be stronger arguments 

on the other side for the application of full constitutional protections. And then we would be in the nightmare world of arguing 

about Miranda warnings or Mr. Mohammed before his interrogation and knock and announce rules before we go into caves in Afghanistan. 

I am not saying we would necessarily end up there. But those 

are all the risks attendant with habeas. 

And finally, if you create habeas across the board, you are doing 

so not only for the conflict at Guantanamo where things might arguably look manageable because we are talking about 300 some 

odd detainees. You are changing the rules across the board. And 

God forbid we should ever find ourselves in a larger conflict. 

But we have historic precedent where this Nation detained two 

million enemy combatants in World War II. If you apply the litigation standards that prevailed at Guantanamo between 2004 and 

2006 to a conflict like World War II where we are talking not hundreds, but millions, that system is not remotely sustainable. 

Mr. SAXTON. Thank you. 

Mr. Dell’Orto. 

Mr. DELL’ORTO. Congressman, I would only add a very small 

postscript to what Mr. Katsas has eloquently stated. We should not 

fool ourselves into thinking that this conflict that we are now engaged in is the only one we will fight against an enemy that doesn’t 

want to follow traditional rules about conventional war fighting. 

If you pick most any potential adversary out there right now, I 

suspect that if we were to engage that adversary in battle today, 
74 

we would be fighting the conflict the way we have been fighting it 

in Afghanistan and in Iraq, where the enemy is not lining up as 

an armed force in uniform, so that we know who we have. 

We would potentially have tens of thousands, maybe more, captured combatants on the battlefield who are unlawful in the way 

they conduct their operations. And thus we would clearly overwhelm any system that we have in the United States court system 

or Article III system for dealing with this. And even if we didn’t 

overwhelm them in pure numbers, the burdens on commanders, 

soldiers in the field would completely disrupt our ability to conduct 

our operations on the ground. 

Mr. SAXTON. Okay, thank you. Let me ask this now. There is a 

difference between wartime activities that threaten a people and 

criminal activities that exist in society. Would you agree? 

Mr. DELL’ORTO. Yes. 

Mr. SAXTON. In this case, these detainees have been accused of 

wartime activities that threaten a people. And I believe our court 

system was essentially designed and carries out a mission of taking 

care of problems that relate to criminal activity. Would you speak 

to those two concepts and say why they are different? 

Mr. DELL’ORTO. Let me begin. Military commissions are not a 

new concept. Military detentions of combatants on the battlefield or 

taken away from the battlefield is not a new concept. 

When our forefathers penned the Constitution and created the 

rights that are our baseline rights for this Nation, we had been at 

war with Britain at the time. We chose and in the many years 

since, the centuries since, to maintain a system of justice focused 

on criminal behavior, a system of laws dealing with civil issues, but 

also recognize and by design did not incorporate into those structures—that is for dealing with criminal processes and civil judicial 

processes—the military commission process, because the drafters of 

the Constitution understood that what happens in a wartime setting is going to be different. 

And traditionally over the years, over the decades, there has 

been no change in that philosophy. Military commissions starting 

during the Revolutionary War and have proceeded ever since 

through the most recent wars that this Nation has fought. 

And so, I would assert that we as a Nation and those who built 

the foundation for this Nation understood that difference and 

maintained that difference. And there is no reason why that difference should be changed at this particular point and have those 

systems blended because we are engaged in combat. 

I would ask anyone to admit for discussion a criminal enterprise 

that has ever in our Nation’s history had the effect and the purpose 

that we saw on September 11, 2001, which went to the very core 

of our Nation’s economic well-being and its governance. 

Mr. KATSAS. I think the rules are different because the stakes 

are different. In the criminal context, if a guilty person is turned 

loose, a bad act goes unpunished. In the wartime context, if an 

enemy combatant is wrongly turned loose, that is someone who is 

trying to kill us. And I think you need look no farther than the example of Mr. Mehsud, the guy who was on the front page of yesterday’s Washington Post. 
75 

He is someone who was mistakenly let go from Guantanamo 

who, in fact, had been an enemy combatant, one person. He was 

let go. He rose to become one of the Taliban’s leading commanders 

in Pakistan, orchestrated the kidnapping of various Chinese civilians and because a big part of the Taliban resurgency in that country. Those are the stakes from even one erroneous decision to release someone who should have been kept at Guantanamo. 

Mr. SAXTON. Mr. Chairman, if I could just ask one short question 

to Admiral McGarrah? 

Admiral, I am sure that you were within earshot of the testimony that was offered by the previous panel and particularly Mr. 

Abraham. I would just like to give you an opportunity to describe 

the activities that you oversaw and perhaps respond to some of Mr. 

Abraham’s statements. 

Mr. MCGARRAH. Thank you, Representative Saxton. I came to 

work directly for Gordon England, who was then secretary of the 

Navy in July of 2004. When he initially interviewed me, I was coming to the position of director of the Office of the Administrative 

Review of the Detention of Enemy Combatants. And we were going 

to implement the ARB process. And Mr. Dell’Orto just mentioned 

the annual review. 

Between the time of my interview and the time of my reporting, 

the Supreme Court on June 28th issued three decisions. Based on 

those decisions, we stopped what we were doing on the ARB process and started to structure the CSRT process based on Army Regulation 190–8, which is the regulation that outlines the competent 

tribunal portion designed to meet the requirements of Geneva Article 5. 

I had over 200 people assigned to me from all 4 services for various periods. We were one of what was called then ‘‘individual augment organization,’’ which meant the services were tasked with 

providing staffing for us for various, generally temporary, periods 

of time, usually three to six months each. Although I had some 

that were detailed to me for longer, one to two years. 

We started to avail ourselves of the training that was available 

from organizations and intelligence agencies that had been involved in the detention business from the start because one of our 

requirements was that anybody detailed to my process should not 

have been involved in any prior way in the apprehension, detention 

or interrogation of detained enemy combatants. We didn’t want to 

create any possibility of a conflict or a bias on the part of the people that were assigned to us. 

We began the CSRT hearings at the end of July 2004. We had 

the last hearing in January of 2005 and the last decision that I 

signed the final paperwork on for the CSRT as the convening authority in March of 2005. 

Let me talk a little bit about the processes that we had. And let 

me clarify one thing that came up in the earlier panel. As the convening authority, I only had two options when a decision came to 

me. The tribunal members, who were three senior military officers, 

the senior of which was an O-6, a Navy captain or an Army, Air 

Force colonel. Those were the decision makers in this process. 

As the convening authority, I could either concur in their decision, or if something didn’t look right to me, I could send it back 
76 

for further deliberations. I did not have the authority to reverse 

that decision. That was by design. And we did not want to put in 

place a single individual who had the capability to make those decisions. 

We solicited input from the intelligence agencies per our procedures. They were tasked with looking at their files and identifying 

information that was relevant to enemy combatant status determination. 

We then collected and reviewed that information, including reviewing on the site of some of the intelligence agencies. And we 

culled from that information the information that we felt was directly applicable to a status review. And we provided that to the 

tribunal. 

The CHAIRMAN. I thank the gentleman from New Jersey. 

Mr. SAXTON. Thank you very much. 

The CHAIRMAN. Mr. Katsas, in your opinion, you told us a few 

moments ago that there was no difference in the burden of proof 

between the CSRT’s procedure and the procedure of habeas corpus. 

In the Rogers dissent, Judge Rogers dissent and what is known 

as the Boumediene case, D.C. Circuit, under the common law, 

when a detainee files a habeas petition, the burden shifts to the 

government to justify the detention in its return of the writ. It goes 

on to say the CSRT works quite differently. The detainee bears the 

burden of coming forward with evidence explaining why he should 

not be detained. 

Mr. Loebsack. 

Mr. LOEBSACK. Thank you, Mr. Chair. 

I just want to follow up on some issues that I raised in the earlier panel. I know you folks were not here. But one of my big concerns as a new Member of Congress, as somebody who follows 

international politics, taught it at a small college for 24 years also 

at a small college in Iowa, is the reputation of the United States 

in the world community. 

And there have been a number of folks who have talked about— 

academics primarily, and I will admit not practitioners so much, 

unfortunately—but who have talked about so-called soft power. 

And I am sure you are familiar with what that means, our values, 

what we represent to the rest of the world and how the rest of the 

world looks at those values and our system and all the rest. 

One of my big concerns with respect to this particular issue is 

that our soft power, if you will, around the world has declined dramatically over the course of the last five years, in particular with 

respect to this issue that we are talking about today. I would never 

make the argument; I don’t want anyone to mistake what I am 

going to say. I would never make the argument that we should extend habeas corpus everywhere around the world to all folks we 

have detained all over the world. But I do support what the chairman’s bill is attempting to do. 

But I am just wondering. You know, I have got in front of me 

here a letter that 34 former members of the diplomatic corps, including former Secretary of State William Rogers and former National Security Advisor Anthony Lake, wrote in September of 2006. 

They wrote it to Members of the Senate, to Members of the House 

and the Senate, urging us—not me at the time, but Members—not 
77 

to go along essentially with the legislation that was adopted having 

to do with detainees. 

And I just want to mention, one part of it here where they say 

that, ‘‘Judicial relief from arbitrary detention should be preserved 

here, else our personnel serving abroad will suffer the consequences. To deny habeas corpus to our detainees can be seen as 

a prescription for how the captured members of our own military, 

diplomatic, and NGO personnel stationed abroad may be treated.’’ 

And I mentioned our values and our soft power. I am very concerned, obviously, as I think a lot of people are, and no doubt you 

folks as well, that when we begin to sacrifice our own values at 

home, that other nations around the world will begin to treat our 

personnel around the world as they believe we are treating these 

detainees at GTMO in particular. 

When you folks were considering some of these, you know, the 

new regulations, I mean, did you think about, I guess, the broader 

context, the role of America in the world and our reputation and 

what that may, in fact, do to our national interests? Because I 

would argue that our reputation is part of our national interest. 

We have to have allies in this war on terror. We have to have 

allies to help us protect our national interests. Did that factor into 

the discussion at all? Anybody? 

Mr. DELL’ORTO. Congressman, let me try to address that in a 

more indirect way. As a government lawyer, my principle role is to 

advise the decision maker about the law. That is what by statute 

the general counsel of the Department of Defense is obligated to do. 

And I as the principal deputy obviously follow that lead. 

And I think a lawyer does a disservice if he or she in advising 

a client says, you should do this or you shouldn’t do that, without 

making it clear that the law permits you to do something or prohibits you from doing something. So your first charge is to give 

your best advice as a lawyer about the law. 

Now, lawyers in government service have, I think, a secondary 

aspect to their job. And it is probably not defined in statute anywhere. But we do have a vantage point, as we look over an organization to which we provide legal advice, that because the scope of 

our legal responsibilities generally runs through the breadth of 

that organization, we are in a position to supplement that legal advice, again, if the client desires that, with our views as to policy. 

Mr. LOEBSACK. Right. 

Mr. DELL’ORTO. But one of the problems, I think, lawyers have 

today is too often they don’t distinguish between those two roles. 

And so, they do say, you shouldn’t do this or you shouldn’t do that. 

And the decision maker walks away from that thinking the law has 

told him or her that he can’t do something or she can’t do something. 

With respect to these issues, certainly our principal focus was on 

the law and what the risks of taking certain actions were under the 

law. I think all of us were mindful of broader policy concerns. 

And you try to take those into account. But you have to be careful in doing so that you deal with the law first, and then the policy 

piece later, because you don’t ever want to co-opt all those other 

people who are standing at the side of the decision maker and pro-
78 

viding the policy advice that they are charged to do by statute and 

their assigned responsibilities by the decision maker. 

Mr. LOEBSACK. Thank you. 

Mr. DELL’ORTO. So I think certainly aspects of this were taken 

into account by lawyers. But I think they were also taken into account by those other people who were providing advice. 

Mr. LOEBSACK. Right. 

Mr. DELL’ORTO. And this was and is new, unique, and novel 

under many aspects of the law, but even many more aspects from 

a policy standpoint. And in the face of what we had suffered on 

September 11th, 2001, what we knew about what had transpired 

prior to September 11th, 2001, the attacks we had suffered overseas prior to that date going back to the bombing in Lebanon at 

the Marine barracks, going back to Office of the Program Manager–Saudi Arabian National Guard (OPM–SANG) and Saudi Arabia, going back to Cobar Towers, going back to the Cole, going back 

to the embassy bombings. 

I mean, you could see a trend line of greater and greater vulnerability to this Nation on its home soil. And so, that becomes your 

principal policy focus. How do we stop this from happening again? 

Mr. LOEBSACK. Right. 

Mr. DELL’ORTO. And it remains our principal policy focus. 

Now, I mean, clearly, other people around the world disagree 

with the notion that we are at war. They view this as a criminal 

law enterprise. We respectfully disagree. 

When 3,000 people, more than Pearl Harbor, more than died on 

the beaches of Normandy on D-Day in one single event, and innocent civilians pay that price, then I think it is incumbent upon us 

to provide the decision maker with the broadest possible latitude 

under the law to make the calls he or she needs to make to defend 

the country. And I think that is the perspective we brought to the 

decisions that stem from that horrific day on September 11th. 

Mr. LOEBSACK. Okay. 

The CHAIRMAN. I thank the gentleman. 

You know, I just can’t let it go, Mr. Katsas. 

Mr. KATSAS. Mr. Chairman, may I respond? 

The CHAIRMAN. Just a minute. Just a minute. I think you are 

leading us to believe that under the review commission, the CSRT, 

is a substitute for habeas corpus. Truth in fact, it isn’t, and it can’t 

be. 

Though you said in your opinion, Mr. Katsas, that the burden of 

proof was the same, according to the Rogers dissent, it is not the 

same. And for us to have the opinion from anyone that the burden 

of proof is the same under the statute as opposed to the common 

law habeas corpus is incorrect. 

Mr. KATSAS. I respectfully disagree with that. 

The CHAIRMAN. You would disagree with the court dissent, is 

that correct? 

Mr. KATSAS. I—— 

The CHAIRMAN. Are you familiar with it? 

Mr. KATSAS. I argued the case and won the case and agree with 

the views of the majority, not the views of Judge Rogers in dissent. 

The CHAIRMAN. Thank you very much. 

Mr. KATSAS. May I respond to your question about standards? 
79 

The CHAIRMAN. How many cases have you tried, Mr. Katsas? 

Mr. KATSAS. Tried? 

The CHAIRMAN. Yes, sir. 

Mr. KATSAS. Zero. I have argued some 40 appeals. I am an appellate lawyer by training, sir. 

The CHAIRMAN. I see. Okay. Go ahead. You want to say something. Go ahead. 

Mr. KATSAS. Yes. You made reference to the rules that would 

apply generally in habeas corpus. 

The CHAIRMAN. That is correct. 

Mr. KATSAS. The more specific focus has to be, though, on the 

rules that apply to status determinations made by habeas courts. 

And on that point, the Supreme Court spoke in the Hamdi case 

and said that even in habeas corpus, and even where the detainee 

was an American, and even where the detention was in this country, it would be appropriate because of the nature of war to apply 

a presumption in favor of the government’s evidence. 

And that holding of the Supreme Court in the Hamdi case is the 

very basis for the combatant status review tribunal provision that 

I think we are discussing. So if you compare CSRTs to habeas in 

Hamdi, the principles are analogous. 

The CHAIRMAN. Okay. I appreciate your comments. And I am 

pleased to know you won that case. That is good. 

Mr. Hayes. 

Mr. HAYES. Thank you, Mr. Chairman. 

Mr. Chairman, again my compliments to you for providing this 

forum today. As you know better than anybody in the room, once 

this process begins up here it takes a life of its own. I might observe that it is unfortunate, or at least to me, that we spent three 

and a half hours, constructive though it may be, on the other side 

of this issue. 

And now, again because of things that happened here and the 

business of the place we have a very, by comparison, small group 

of folks who are able to hear—I am not sure if it is the rest of the 

story, but a very important part of what is going on here. 

Admiral, Colonel Abraham made a very eloquent and obviously 

informed and well-researched presentation, which led me to believe 

that the review process was deeply flawed, that even reviewed by 

the appeals court that really didn’t count for much. I tend to disagree very much with what he had to say. 

Could you elaborate on your earlier comment and again expand 

on the idea that the review process and the appeals process, if not 

in theory a substitute for—is this not, given the nature of the 

enemy who are not only combatants—they are assassins. Would 

you comment on the process from your perspective? 

And is this something that we need to go back—again, I totally 

disagree with granting habeas corpus. In spite of all the good legal 

arguments here, I think it is not appropriate. 

Having said that, how do you see the process in context of what 

Colonel Abraham said over and over again? 

Mr. MCGARRAH. Sir, I will confine my comments to the CSRT 

process and defer to the lawyers at the table for discussion of the 

appellate process. 

Mr. HAYES. Perfect. 
80 

Mr. MCGARRAH. My personal view is the CSRT process was an 

extremely robust process. Keep in mind that the 558 CSRT hearings that were conducted when I was the director of OARDEC—all 

of those at Guantanamo that went through those hearings had had 

at least one, and many times multiple prior determinations of 

enemy combatant status because combatant status determinations 

are, in fact, typically done by the military commander on the field. 

Regardless of that, we went and did a search through the records 

of government agencies, both within DOD and outside DOD seeking all the information that was relevant to that status determination, including a specific request to government agencies for anything that might tend to indicate that an individual should not be 

an enemy combatant. I shy away from using the word exculpatory 

because that connotes a legal process. My direction in the procedures was to look for anything and everything that might tend to 

indicate that an individual should not be classified as an enemy 

combatant. 

We expended hundreds of hours working with the interagency. 

We talked to them early on, even before the start of the formal 

process. 

They understood the importance of the process. They had a 

wealth of information that dated back to the point of capture, 

which was included in my charge to try to seek information on the 

conditions of capture, through the time at which we conducted the 

hearings. 

We had a process in place where we added resources, significant 

resources to supplement the positions that were identified in our 

procedures to collect that information. We added dozens of people 

to supplement that because of the importance and because of the 

thousands and thousands of pages and documents that we found 

were available and relevant, or potentially relevant to these determinations. 

We had a process that we invoked, or that we implemented, 

called a request for information process where anybody in the 

CSRT process if they had a doubt as to the sufficiency of the information or if they had a question of the information that was collected and being considered, could request additional information 

or clarification. We had those requests that were initiated by our 

dedicated intelligence section. 

Those requests were initiated by recorders, by personal representatives. And some personal representatives actually brought 

requests that originated with detainees who asked questions about 

specific information. And we had information requests that came 

from our panel members, hundreds of those requests. And in some 

cases we put in recess the CSRT panels until we were able to provide the panel members with answers for that information. 

So we had dozens of people working on the information collection. And my personal view is it was a very robust process. 

Mr. HAYES. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Mr. Andrews. 

Mr. ANDREWS. Thank you. 

I thank the panels for their testimony this afternoon. 
81 

Let me start by saying I think there is unanimity on the committee, close to unanimity in the country, that if someone is a terrorist that wants to kill Americans, the last thing in the world we 

want them to do is be released from anywhere under any circumstance. 

Second, it is my strongly held view that you gentlemen and your 

colleagues are doing your job with integrity as well as you can do 

it under very difficult circumstances. And I don’t doubt for one moment your veracity or your commitment to justice, not for one moment. 

I do have a grave concern about a process where the first time 

at which an innocent detainee or any detainee is in front of a fact 

finder who is independent of the executive branch, is in the court 

of appeals. That is my concern. 

I do not in any way mean to impugn the integrity of those in the 

executive branch that are conducting these processes, not at all. 

But this is my concern. 

Let me ask you this question. From a practical point of view toward the twin goals, the complementary goals of holding people for 

whom there is good cause to hold while not holding those for whom 

there is no such good cause. If we were to institute habeas, how 

would things be different from a practical point of view for the 

work that you are doing? 

Let us say we pick somebody up on the streets of Beirut and determine that the person was a threat to the country and incarcerated him in Guantanamo. And he files an application for a habeas 

proceeding, and it is heard in a federal district court in Miami. 

How would it be different the way you do your job, different than 

what we have now? 

Mr. KATSAS. I would just repeat my earlier answer about the 

practical and security harms that we faced at Guantanamo. 

Mr. ANDREWS. What are they? 

Mr. KATSAS. Under habeas. 

Mr. ANDREWS. Let us be specific. 

Mr. KATSAS. Okay. Well, as I said, the burden of having hundreds of cases, hundreds of lawyers visiting a foreign military base 

in time of war, the security risks coming from information slippage 

from the outside world to the detainees, the harm—— 

Mr. ANDREWS. Let us take these one at a time. 

Mr. KATSAS. Okay. 

Mr. ANDREWS. Is it that big of a deal to have attorneys under supervision of military police visit their clients in a jail? 

Mr. KATSAS. When in a foreign military base in time of war when 

there are hundreds of cases, yes, it can be. And we have documented instances of detainees getting information that caused security problems. We have concern that—— 

Mr. ANDREWS. If there is a situation where a detainee is getting 

information that causes a security problem and the attorney who 

conveyed that information has done so knowingly or intentionally, 

I think they have committed a federal crime. And I think the remedy would be to prosecute that attorney, not to have a procedure 

that is totally devoid of an independent review before you get to 

the court of appeal. 
82 

Mr. KATSAS. I would agree there might well be a federal crime 

there. I am just saying we have experience at Guantanamo for a 

few years of what habeas is like even with respect to what one 

might call the pre-trial skirmishing. 

Mr. ANDREWS. Have there been any security breaches when habeas was in effect? Were there any security breaches that involved 

conversations between attorneys and detainees? 

Mr. KATSAS. There were numerous instances. They were referred 

to in an affidavit filed by, I believe it is, Commander McCarthy, 

that we filed in the D.C. Circuit explaining all of this and that are 

summarized in the majority’s opinion in Bismullah. 

Mr. ANDREWS. If the government in making its proofs in the habeas proceedings says, ‘‘Look, this guy is here because informant X 

said he is a terrorist,’’ wouldn’t that take place in in camera proceeding before a judge? What is the security problem with that 

happening in an in camera proceeding in a habeas proceeding? 

Mr. KATSAS. It might or it might not if we have a habeas trial 

in the United States. As I said, the detainees’ arguments were fullblown, constitutionally based, trial-like procedures would be much 

stronger than they are in the context of a military proceeding outside the United States. 

And we faced these arguments, sir. We had habeas proceedings 

for two years in which the detainees said, ‘‘Of course, we are entitled to see the evidence against us.’’ 

Mr. ANDREWS. And they were dealt with in the normal regular 

order of the law, weren’t they? 

Mr. KATSAS. Well, they were suspended because we prevailed on 

our broad legal argument that the Constitution doesn’t apply at 

Guantanamo. If the habeas trials are in Washington, D.C., we 

might or might not win that argument. 

Mr. ANDREWS. I understand. 

I see my time is up. Thank you. 

The CHAIRMAN. Thank you. 

Ms. Sanchez. 

Ms. SANCHEZ. Thank you, Mr. Chairman. 

And, gentlemen, I had some other business to attend to so I 

didn’t get to hear your testimony and see the questions. I hope I 

am not repeating what has gone on already. 

We have historically given the President broad latitude to establish policy and procedures for the detention and the reparation of 

the enemy POWs in traditional conflicts. I believe, however, that 

our concerns about habeas in the present campaign against international terrorist organizations is justified for two primary considerations: one, the problem of indefinite detention of the enemy detainees in a war that may last indefinitely, and, two, the ambiguous status of many of the detainees who were not captured by soldiers on the battlefield but may have been apprehended by intelligence or law enforcement officers far away from the battlefield. 

I believe that the Congress should restore a limited statutory 

right of habeas for detainees in the present conflict. And I actually 

have a bill that I have dropped into the Congress that has proposed 

a limited right. And under my proposal, detained alien enemy combatants can petition for writ if they haven’t had a CSRT, if they 
83 

haven’t been charged with a crime, or if they have been in detention for at least two years. 

And the compromise acknowledges, I think, the concern given the 

unprecedented habeas access to war prisoners, giving them something that traditionally we really haven’t ever given as a country 

and the need to give the executive his Article 2 power to conduct 

military and intelligence operations free from judicial interference. 

And I believe that given the gravity of the interests involved, especially when we heard the colonel on panel one, that the combat 

status review tribunals are not sufficient to ensure confidence in 

executive decisions about detention of individuals for indefinite periods of time under conditions that look more like punitive incarceration rather than administrative wartime internment. 

So my proposal would be to grant a habeas right that is triggered 

after a certain period of time has elapsed. My question is, would 

you support a statutory right to habeas if it contained some limitation of that sort? 

Mr. DELL’ORTO. Congresswoman, from the standpoint of the Department of Defense I think where we are right now, given the posture of current litigation, it would be preferable to allow the courts 

as they are undertaking their review to complete their review of 

what we believe is a very robust assessment of the basis for detention for the detainees we currently have. 

We have taken—between the Department and certainly Congress 

and the President in the various Detainee Treatment Act and the 

Military Commissions Act—we have taken the process for review 

of detention far beyond what it either has historically been or what 

we believe either international law or our domestic law requires. 

Ms. SANCHEZ. I would agree with that comment, by the way. But 

you still are detaining people indefinitely. 

Mr. DELL’ORTO. Well, again—— 

Ms. SANCHEZ. And the court has just ruled that they have constitutional rights. 

Mr. DELL’ORTO. I am not sure that the court has given us that 

ruling yet. 

Mr. KATSAS. The court has ruled exactly the opposite. 

Mr. DELL’ORTO. But in either event, I mean, this conflict, although it is not likely to, could end tomorrow and we would be perhaps faced with the prospect of what are we going to do with some 

of these folks who clearly are dangerous. And it may not be that 

a review process does that. 

And I think the secretary has indicated this. We may need to 

look at some statutory fixes for indefinite detention beyond the notion of detention pursuant to the hostilities as they exist right now. 

But with respect to the people we currently have, while hostilities 

are currently underway, we believe that the process that is in place 

right now and the review that is being undertaken in the courts 

should be allowed to run its course before we entertain a further 

level of statutory changes into what we are attempting to do on a 

day-to-day basis in the Department of Defense. 

Ms. SANCHEZ. Let me ask you just one other question. It is my 

information that the detainees that we have at GTMO are not just 

from the Iraqi War, but maybe from Afghanistan and other countries. Is that true? 
84 

Mr. DELL’ORTO. We have, to the best of my knowledge, no one 

in Guantanamo who has been brought there from Iraq. 

Ms. SANCHEZ. Okay. 

Mr. DELL’ORTO. There are several detainees in Guantanamo who 

are Iraqis, but who were apprehended prior to the initiation of 

combat activities on the ground in Iraq. So they were part of the 

war on terror in advance of the invasion of Iraq in March of 2003. 

Ms. SANCHEZ. Great. Thank you for that clarification. 

The CHAIRMAN. Thank you very much. 

Mr. Hayes. 

Mr. HAYES. Thank you, Mr. Chairman. 

Would the gentlelady yield for a question? 

Ms. SANCHEZ. Certainly. 

The CHAIRMAN. You have the floor, she doesn’t. 

Ms. SANCHEZ. I will entertain a question. 

Mr. HAYES. Thank you. Were you here when I asked Admiral 

McGarrah about the process from his perspective? I couldn’t remember whether you were in the room or not. 

Ms. SANCHEZ. I don’t believe that I was. 

Mr. HAYES. Okay, I don’t think so, either. But, I mean, the questions that you asked a moment ago really go to the heart of what 

we are talking about here. 

And picking up on her question about how the detainees are 

questioned and how you determine keeping them, in the context of 

our conversation, Admiral McGarrah, which was a very robust 

process of finding out where they came from, how they got there, 

what the circumstances are, would you elaborate and expand on 

your answer so that it directly addresses the very good questions 

that Congresswoman Sanchez just asked? 

Mr. MCGARRAH. Yes, sir. What I tried to describe pursuant to the 

prior question was what I think is a very robust process, the CSRT 

process. Keep in mind that the 558 that we ran when I was the 

director or OARDEC, all 558 came to us with at least one prior determination, typically by the military commander, which is traditionally how this is done, but at least one prior status determination of enemy combatant. 

We work closely with over 200 people in my organization. We 

work closely with the intelligence agencies, both inside the Department of Defense and outside Department of Defense and with other 

groups that might have relevant information to collect thousands 

of pages and thousands of documents of that information. 

Those documents were then provided through the process ultimately into the CSRT record. And that was what was before the 

three-person panel. 

The officers on the panels were senior military officers, no more 

junior than O-4, the senior of which was an O-6, which is a colonel 

or captain. We had resources that I dedicated to supplement the recorders in the gathering of information because it became such a 

huge task. So I added a couple of dozen people to assist in the 

gathering of information. 

And we had a process by which if there was any question about 

the information or any apparent gap in the information, anybody 

in that process, the intel section, the case writer, the recorder, the 

personal representative or even tribunal members. In some cases, 
85 

we had requests from detainees that came to us through the personal representative. We could stop that process and pursue answers to those questions. 

Mr. HAYES. Thank you very much. 

Ms. SANCHEZ. Would the gentleman yield just for a second? 

Mr. HAYES. Yes, ma’am. 

Ms. SANCHEZ. May I ask why is that in such stark contrast to 

what the colonel testified on panel one, do you think? 

Mr. MCGARRAH. Colonel Abraham was assigned to us for six 

months from September of 2004 until March of 2005. The role that 

he functioned primarily in for me was utilizing some pretty strong 

information technology skills to build a database that we use to 

track every step of this process. 

We tracked our contacts with the source agencies of information. 

We tracked when we had drafted, for instance, the unclassified 

summary of evidence that was shared with the detainees in advance of the hearing. We tracked the scheduling of the hearing. 

We tracked things like the requests for information. So the vast 

majority of his time was spent in helping us to build the database 

and the mechanics of that database structure to do that tracking. 

He did a little bit of intelligence information gathering, as he alluded to before, but only about two weeks of the time that he was 

assigned to me. So he had a much narrower view of the process 

than I had or my deputy or some of our other staff that was involved in dozens and hundreds of those cases. 

I do know that he made a point in the earlier hearing of saying 

that he was not assigned to another panel after his panel made a 

determination of no longer an enemy combatant. That was actually 

at his request. That panel was in early December. He did write a 

letter to me in December where he expressed concern about his 

serving on the administrative review board process versus his obligations as an attorney. 

When we discussed that with him, my deputy met with him directly about that. And the issue that was the genesis of his concern 

was an issue that is referred to as a ‘‘professional responsibility’’ 

issue. That is, one lawyer can not deal with a client of another lawyer without that other lawyer’s permission. That issue had come up 

from habeas counsel back in August that actually caused us to suspend for several weeks anything in the CSRT process while we resolved that issue. 

So the bottom line is that while he had a personal involvement 

in this, his view was to a very narrow piece of the total process. 

Ms. SANCHEZ. I thank the gentleman for yielding. 

The CHAIRMAN. Mr. Hayes. 

Mr. HAYES. Thank you. 

And I thank the gentlelady again for a very thoughtful question. 

It would be appropriate, Mr. Chairman, and I think it would be 

helpful to this committee for the admiral to give us that or submit 

that letter for the record as it relates to the hearing today. 

The CHAIRMAN. Excellent. 

Do you have it, Admiral? 

Mr. MCGARRAH. Yes, sir, I have a copy with me. I would be glad 

to. 
86 

The CHAIRMAN. Well, then, it is so entered, without objection. 

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

page 267.] 

Mr. HAYES. Okay. In summation, one of the incredible wonders 

and the beauty of the process that people have witnessed here 

today, people can come before the U.S. Congress, civilians, military, 

Members of Congress. They can say what they believe. They can 

defend passionately their position. They can ask questions. 

They have the right to be heard. And the ‘‘blame America first’’ 

crowd, whether they be foreign or domestic, I hope, as they seek 

to sometimes point the finger at America for not being fair would 

look at this process today, where people from varying opinions, 

varying points of view have brought the facts to the table, where 

their right to express them was protected. And the facts stand on 

their own. 

So, Mr. Chairman, again, I think you have done a wonderful job 

of putting the process out for people to see. And you all and others 

have made a very strong case that we treat people right. We don’t 

torture them. But habeas corpus is not where we need to go with 

these terrorists. 

And I thank you and yield back. 

The CHAIRMAN. Well, thank you very much. 

It looks like that Shea-Porter is the only one—just a moment. 

Does Mr. Saxton have a question? No. 

Ms. Shea-Porter, please. 

Ms. SHEA-PORTER. Thank you. And I do think we have a wonderful system of government that we are able to have this conversation. But we are also interested in other human beings being protected, not being held without the evidence. And that is why we are 

here. This is a pretty important conversation. 

I would like to just confirm that habeas would only be for land 

that is under U.S. jurisdiction. Is that so? I mean, that is how they 

are looking at Guantanamo, right, that it would be under our jurisdiction? The United States has that right to put habeas there. 

Mr. KATSAS. It would depend on how you write the bill, of course. 

If you simply restore—— 

Ms. SHEA-PORTER. Okay, I understand. So in other words, all 

that argument that you have put forth about having it everywhere 

around the world, that is not even the issue on the table. 

Mr. KATSAS. I am not sure that is right. If you simply restore habeas corpus, there would be credible arguments against us if habeas runs worldwide. 

Ms. SHEA-PORTER. I think I read the language to talk about—I 

read the language. And it is—— 

Mr. KATSAS. Subject to the one exception of zones of conflict, 

which I think Mr. Philbin discussed. 

Ms. SHEA-PORTER. Okay. Well, I read the language. But we will 

move on. 

And it is very possible we use habeas corpus in this Nation. And 

we still have vigorous prosecutions and sentencing, including the 

death penalty. So if we had people committing crimes against this 

Nation, habeas corpus would not strike any of that. So when we 
87 

talk about worried about punishing, we certainly would be capable 

of doing that, we just would ask for the evidence first. 

Mr. Dell’Orto, I would like to ask you the first question. You 

talked about the administrative review board in your writing. And 

you said it was created to ensure that we detain individuals no 

longer than necessary. Are you saying that before that board we 

did keep people longer than necessary? When was that board created? 

Mr. DELL’ORTO. The board was created—I think Admiral 

McGarrah has indicated we were in the process of putting that together in 2004. But even before the formalized process, or that formalized process was put in place, we had fairly early on in the conflict determined that we did not just want to hold these people, all 

of these people, indefinitely. 

Ms. SHEA-PORTER. Okay. Let us—— 

Mr. DELL’ORTO. And so, we were actively through an interagency 

process screening individuals for return to their countries of origin, 

and had moved some number of people, certainly in the tens at 

that point, maybe dozens, back to their countries under various 

conditions of transfer. So we had already undertaken to do that. 

Ms. SHEA-PORTER. Right. And we do know that we have been 

holding people. But let us go on about these questions, please. 

You also wrote about Detainee Treatment Act and Military Commissions. And you said in your writings they seek to provide justice 

fairly and lawfully administered while safeguarding the security of 

the American people. And I wanted to ask you does it trouble you 

that not all of the people that are being held right now came from 

a battlefield, when you talk about enemy combatants and battlefield. 

Mr. DELL’ORTO. Well, I think given the way this conflict has unfolded and the fact that the individual operators, the combatants, 

the cells in which many of them operate, their ability to move 

across international boundaries and put themselves beyond the 

reach of our armed forces who are respecting those international 

boundaries creates—— 

Ms. SHEA-PORTER. Again, if I may answer that. 

Mr. DELL’ORTO [continuing]. A necessity for being able to reach 

out and have others capture them for us and bring them to us. 

Ms. SHEA-PORTER. Thank you. But what I am concerned about, 

and I think we should all be concerned about, is that some of these 

were picked up as a punishment. They got caught in some tribal 

feud. Do you acknowledge that there are people there who were not 

supposed to be there, that never intended any harm to the United 

States? They were picked up and turned over by a possible tribal 

feud or other issues. 

Mr. DELL’ORTO. Well, as I said, we looked at over 10,000 individuals who were provided to us either as a result of our own captures, the captures by our allies or who may have been provided 

to us by others who were reacting to rewards that were put out. 

But they were screened in Afghanistan before being sent to Guantanamo. 

Ms. SHEA-PORTER. So bounties were paid? There was some incentive for somebody who had a feud with somebody else? 
88 

Mr. DELL’ORTO. We have a public rewards program that is sponsored both by the Department of Defense and the Department of 

State for the capture of individuals. 

Ms. SHEA-PORTER. And, you know, Mr. Dell’Orto, these things 

happen. But that is why you have to have a thing to bring evidence 

so that we can figure out who is there lawfully, who committed 

crimes, and who did not. They can’t see the classified evidence. Is 

that correct? 

Mr. DELL’ORTO. The detainee himself or his representative? 

Ms. SHEA-PORTER. The detainee cannot see classified evidence. 

Mr. DELL’ORTO. Correct. I mean—— 

Ms. SHEA-PORTER. Okay. Who determines whether the evidence 

is classified or not? 

Mr. DELL’ORTO. The original classification authority who would 

be the source of the information, whether it be one of the intelligence agencies or the commanders on the battlefield themselves. 

Ms. SHEA-PORTER. Okay. And the personal representative, again, 

is not a lawyer? 

Mr. DELL’ORTO. Correct. 

Ms. SHEA-PORTER. Okay. So they may or may not know how to 

interpret whether that should be classified evidence or not? 

Mr. DELL’ORTO. Well—— 

Ms. SHEA-PORTER. As a matter of fact, I believe I heard they 

don’t even see the classified evidence. 

Mr. DELL’ORTO. No, they have access to the classified evidence. 

But I will tell you—— 

Ms. SHEA-PORTER. Am I wrong when the attorney who sat in 

your seat earlier said that he doesn’t even really know why his client is there, that he has not seen the classified evidence? 

Mr. DELL’ORTO. No, I think we are talking about the personal 

representative. He does get an opportunity to see the classified evidence. And the notion of classified evidence is a military connotation. These are military officers. They know what the standards are 

for classification of information. 

Ms. SHEA-PORTER. Mr. Chairman, if I could just ask one last 

question. 

How come when you determine they are no longer enemies— 

what standard do you use? You don’t say guilty or not guilty. When 

did they shift from that to ‘‘no longer’’ instead of not an enemy 

combatant? 

Mr. DELL’ORTO. The process at Guantanamo envisions continuing gathering of information. If their circumstances change because new information has become available that changes the original determination—— 

Ms. SHEA-PORTER. So it is not no longer. It is simply not an 

enemy combatant. 

Mr. DELL’ORTO. They are considered no longer to be an enemy 

combatant because new information may have surfaced to change 

that original determination or to update that original determination. 

Ms. SHEA-PORTER. Okay, so not an enemy combatant as in innocent? 

Mr. DELL’ORTO. No, we are not talking about guilt or innocence 

here, ma’am. This is no longer an enemy combatant, an adminis-
89 

trative determination based on the laws of armed conflict, not a judicial or criminal determination. 

Ms. SHEA-PORTER. Okay. But you understand the phrasing there, 

‘‘no longer an enemy combatant’’? It would be clearer, I think, and 

am I correct when I am saying it turned out they were not an 

enemy combatant? 

Mr. DELL’ORTO. Well, again, a commander has made a call on 

the ground. He has, as commanders traditionally do throughout our 

history based upon the circumstances and factors that are available 

to them on the ground in the heat of battle, you know, in a dusty 

hut somewhere as this individual is presented to him by his soldiers. This is who we picked up. This is what we found in his pockets. This is what people have told us about him. 

Ms. SHEA-PORTER. Okay. 

Mr. DELL’ORTO. The commander has made that call. 

Ms. SHEA-PORTER. Right. Again, let me state that I certainly 

want to catch anybody who has any harm. But we should not catch 

those who did not intend us harm. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentlelady. 

I note the presence of the gentleman from Texas, Mr. Conaway. 

I understand you have no questions, however. Is that correct? 

Mr. CONAWAY. That is correct, Mr. Chairman. Thank you very 

much. 

The CHAIRMAN. All right. Thank you. 

Gentlemen, thank you. You have been excellent witnesses. We 

appreciate your being with us and your expertise. 

Mr. Katsas, your expertise on the preponderance of evidence, we 

thank you very much. 

Mr. DELL’ORTO. Mr. Chairman, could I address that for a second 

to perhaps help? 

The CHAIRMAN. You know, I have been wanting to ask you that 

all afternoon since Mr. Katsas and I disagreed on it. Please go 

right ahead. 

Mr. DELL’ORTO. And let me give you my background. As a—— 

The CHAIRMAN. But now you must understand he is the expert 

since he actually argued the case itself. But you must yield to him 

as being the expert. 

Mr. DELL’ORTO. I do in all matters of the law, Mr. Chairman. 

The CHAIRMAN. Go ahead. 

Mr. DELL’ORTO. But let me at least from my more simplistic view 

of things offer this. If we conducted a combatant status review tribunal of an individual and the recorder introduced no evidence 

about that individual’s situation, none, and the detainee, as it is 

his right to do under this system, said nothing, didn’t object, said 

nothing, the government would not have carried its burden and he 

would be declared not to be or no longer an enemy combatant. And 

he would be released. 

I mean, that is what all burden is all about. If the government 

produced no evidence, he would win without saying a word of his 

own. That is my more simplistic view based upon my years as a 

prosecutor, defense counsel, trial and appellate judge. 

The CHAIRMAN. Thank you. Thank you very much. 
90 

Gentlemen, thank you. This has been an excellent hearing. And 

we are most appreciative. 

And to the members, thank you. 

[Whereupon, at 2:06 p.m., the committee was adjourned.] 
A P P E N D I X 

JULY 26, 2007 

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DOCUMENTS SUBMITTED FOR THE RECORD 

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QUESTIONS SUBMITTED BY MEMBERS POST HEARING 

JULY 26, 2007 

(271) 

QUESTIONS SUBMITTED BY MR. SKELTON 

The CHAIRMAN. As of August 1, 2007, are the United States Armed Forces applying Army Regulation 190-8 in Iraq and Afghanistan? 

Mr. DELL’ORTO. Army Regulation 190-8 is being applied by the United States 

Armed Forces in Iraq and Afghanistan as of August 1, 2007, as it was before that 

date. As with all doctrine, it is subject to further guidance issued by the chain of 

command. 

The CHAIRMAN. In response to a question, Admiral McGarrah (Ret.) stated that 

he intended to submit for the record a letter which he says you sent to him, expressing your desire not to be assigned to any future Combatant Status Review Tribunal 

(CSRT). Did you submit such a letter? If so, what reasons did you have for such 

a submission? 

Mr. ABRAHAM. As to the first question, Admiral McGarrah has mischaracterized 

my letter of December 10, 2004. Attached is a copy of the letter that I sent to Admiral McGarrah. The letter was not a request to not be assigned to any future CSRT 

but, rather, a request to be released from my tour of duty at OARDEC. The letter 

made no specific reference to my assignment as a CSRT panel member. 

[The information referred to can be found in the Appendix on page 267.] 

I wrote the letter because of my considerable concerns about participating in the 

process of prosecuting the CSRTs where my questions regarding the lack of fairness 

and absence of constitutional due process were repeatedly ignored. My concerns did 

not relate specifically to my service on a CSRT panel, where, at least, I had the ability to challenge evidence that I found to be insufficient, even if my panel’s decision 

might later be reversed. Rather I was concerned about assisting in the prosecution 

of the CSRT cases by compiling evidence that I knew was not reliable or sufficient. 

As a lawyer, I was familiar with the Supreme Court’s decisions in Rasul v. Bush 

and Hamdi v. Rumsfeld, and I was concerned that my participation in the prosecution of CSRT cases did not respect the Constitution or the Supreme Court’s decisions. When I addressed these concerns with Rear Admiral McGarrah and Captain 

Sweigart, they were dismissive. When I addressed my concerns with OARDEC’s 

legal advisor, he informed me that other lawyers had expressed similar concerns 

and that the Department of Defense would probably not offer any protection if allegations of misconduct were made against me by my state bars or in federal court. 

After I submitted the December 10th letter to Admiral McGarrah, I was not assigned to another CSRT. No explanation was given. However, I was told that I 

would continue in my other assignments at OARDEC notwithstanding my specific 

request. This did nothing to assuage my concerns about my duties and potential liability that I might face upon return to my law practice. In fact, the response to 

my letter was directly counter to my request and increased my concern. As a Tribunal member, I could act in accordance with my obligations under the Constitution 

notwithstanding the deficiencies about which I previously testified. However, I saw 

no way that I could perform other tasks in support of the CSRT process, a fundamentally flawed process, without violating my legal and ethical duties. 

The CHAIRMAN. In addition to the one CSRT on which you served on the Tribunal, 

in how many other CSRTs did you actively participate in the preparation of the materials for the CSRT hearings? What was the nature of your participation on these 

other CSRTs? 

Mr. ABRAHAM. The CSRT process, generally speaking, consisted of two phases, a 

preparatory phase and a hearing phase. Between October 1, 2004 and December 8, 

2004, OARDEC prepared more than 200 research packages for CSRT hearings and 

conducted approximately 350 hearings. I was involved, to varying degrees, in each 

of the packages and its associated hearing. 

I was closely involved in every aspect of the preparatory phase. At the outset, I 

singlehandedly created the database that not only tracked all aspects of the CSRT 

process in DC but served as the repository of information collected and assembled 

for use in the CSRTs both in Washington and in Guantanamo. 

I personally coordinated with various agencies and reviewed information received 

from those agencies regarding most of the detainees for whom Tribunals were held 

between October and December and many others thereafter. Notwithstanding fun-
272 

damental constraints imposed upon and by OARDEC, this coordination resulted in 

increased access to information by research writers. 

I reviewed thousands of documents that were used by the Recorders and Tribunal 

members during the CSRT hearings in nearly all of those cases. Throughout the 

process, I worked closely with the researchers, answering questions regarding particular intelligence products or the source agencies. My involvement constituted one 

of the only instances of substantive and critical review of intelligence information 

used in support of the hearings. 

I was directly involved in the revisions of the templates that were used to structure the unclassified and classified summaries for the hundreds of CSRT’s for which 

research was conducted in OARDEC’s DC offices. I was involved in the compilation 

of information and inputs from research writers and others that was used to prepare the materials to be presented to the Tribunals. 

Ultimately, my direct involvement touched upon nearly every aspect of the CSRT 

process, from the moment that a detainee’s hearing was scheduled until the hearing 

packets were received by the Tribunals. 

The CHAIRMAN. Do you agree with the proposition that ‘‘the military’s determination to detain an alien overseas as an enemy combatant in an armed conflict has 

never been reviewable in civilian court’’? Why or why not? Even if correct, is this 

proposition applicable to the detainees at the U.S. Naval Station, Guantanamo Bay, 

Cuba? 

Mr. OLESKEY. First, I disagree that the proposition quoted above is accurate. 

Aliens detained by the military as enemy combatants have always had the right to 

contest the factual basis for their classification, wherever they were detained—so 

long as it was within the jurisdiction of functioning civilian courts and away from 

active hostilities. See, e.g., Case of Three Spanish Sailors, 96 Eng. Rep. 775 (C.P. 

1779) (taking evidence in challenge by prisoners of war to their detention); R. v. 

Schiever, 97 Eng. Rep. 551 (K.B. 1759) (reviewing affidavits submitted by petitioner 

and a third party in review of a Swedish national’s detention as a prisoner of war); 

Du Castro’s Case, 92 Eng. Rep. 816 (K.B. 1697) (ordering discharge of alleged foreign spy); cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121 (1866) (reviewing citizen’s 

challenge to his classification as a prisoner of war). 

This is no less true where prisoners are held overseas. In the case of Yamashita 

v. Styer, for example, the Supreme Court reviewed a habeas challenge brought by 

a Japanese general in United States custody in the Philippines. 327 U.S. 1 (1946). 

Despite the fact that Yamashita was held in overseas military custody as an enemy 

combatant and was a convicted war criminal, the Supreme Court exercised jurisdiction over his challenge to his detention. See id. at 25 (‘‘We therefore conclude that 

the detention of petitioner for trial and his detention upon his conviction, subject 

to the prescribed review by the military authorities, were lawful.’’). Indeed, the Supreme Court considered not only whether the military commission that tried 

Yamashita had lawful jurisdiction, but also the substantive question whether the 

commission which tried him had ‘‘violate[d] any military, statutory, or constitutional 

command.’’ Id.; see also, e.g., 18-19 (adjudicating challenge to prosecution’s use of 

deposition testimony as well as other hearsay and opinion evidence). 

Second, even if the proposition quoted above were correct as applied to certain 

overseas detention facilities, it would certainly be inaccurate as applied to Guantanamo Bay. In fact, the Supreme Court has already held that Guantanamo detainees 

had the right to challenge their imprisonment, because ‘‘the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention 

of individuals who claim to be wholly innocent of wrongdoing.’’ Rasul v. Bush, 542 

U.S. 466, 484 n.15, 485 (2004). 

Even though the statutory framework has changed in the three years since Rasul 

was decided, I note that the Supreme Court has also held as a constitutional matter 

that, ‘‘at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’ INS v. St. Cyr, 533 U.S. 289, 301 (2001) (quoting Felker v. Turpin, 

518 U.S. 651, 663-664 (1996)). In this context, it has already been established by 

the Supreme Court that the historical writ of habeas corpus—which permits prisoners to test the lawfulness of executive detention before an independent judge in 

civilian courts—would have extended to detainees at Guantanamo Bay. As explained in Rasul, the right of ‘‘persons detained at the [Guantanamo] base’’ to challenge their detention on habeas is wholly ‘‘consistent with the historical reach of the 

writ of habeas corpus.’’ 542 U.S. at 481. In sum, because petitioners held under 

similar circumstances at the time of the Founding would have had access to habeas 

review, detainees at Guantanamo Bay cannot be denied access to such review unless 

Congress validly suspends habeas corpus, which it has not done here. 

Moreover, habeas corpus extends to Guantanamo Bay because the naval base 

there ‘‘is in every practical respect a United States territory, and it is one far re-
273 

moved from any hostilities.’’ Id. at 487 (Kennedy, J., concurring in the judgment). 

Because ‘‘the indefinite lease of Guantanamo Bay has produced a place that belongs 

to the United States,’’ the United States’ permanent ownership and control has extended ‘‘the ‘implied protection’ of the United States to it.’’ Id. (quoting Johnson v. 

Eisentrager, 339 U.S. 763, 777-778 (1950)). In such circumstances, far from any battlefield, military claims of a right to detain present ‘‘a weaker case of military necessity and much greater alignment with the traditional fimction of habeas corpus.’’ Id. 

at 488. 

The CHAIRMAN. Beyond the U.S. Naval Station, Guantanamo Bay, Cuba, what 

was the extraterritorial reach of 28 U.S.C. § 2241 before the enactment of Detainee 

Treatment Act of 2005 (DTA)? After the DTA but before the enactment of Military 

Commissions Act of 2006 (MCA)? After the MCA? 

Mr. KATSAS. [The information referred to was not available at the time of printing.] 

The CHAIRMAN. How many habeas petitions had been filed in United States federal district courts on behalf of detainees in Iraq or Afghanistan from October 31, 

2001, to August 1, 2007? Have these petitions generally been dismissed? 

Mr. KATSAS. [The information referred to was not available at the time of printing.] 

The CHAIRMAN. In the last five years, on average, how many habeas petitions 

have been filed in United States federal district courts by detainees or prisoners in 

the United States? 

Mr. KATSAS. [The information referred to was not available at the time of printing.] 

Æ