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[House Report 111-378]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-378

======================================================================

 
RESOLUTION OF INQUIRY REGARDING THE TRANSFER INTO THE UNITED STATES OF 
     CERTAIN DETAINEES HELD AT NAVAL STATION, GUANTANAMO BAY, CUBA

                                _______
                                

 December 15, 2009.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                       [To accompany H. Res. 920]

                  [Including Committee Cost Estimate]

  The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 920) directing the Attorney General to 
transmit to the House of Representatives all information in the 
Attorney General's possession regarding certain matters 
pertaining to detainees held at Naval Station, Guantanamo Bay, 
Cuba who are transferred into the United States, having 
considered the same, report unfavorably thereon without 
amendment and recommend that the resolution not be agreed to.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background.......................................................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     4
Committee Cost Estimate..........................................     4
Performance Goals and Objectives.................................     5
Constitutional Authority Statement...............................     5
Advisory on Earmarks.............................................     5
Section-by-Section Analysis......................................     5
Dissenting Views.................................................     5

                          Purpose and Summary

    On November 19, 2009, Ranking Member Lamar Smith introduced 
H. Res. 920. The resolution directs the Attorney General to 
transmit to the House of Representatives all documents of the 
Department of Justice that refer or relate to:
    (1) any legal guidance or recommendations made since 
January 20, 2009, regarding additional legal rights or 
protections, including under the Constitution, statutes, and 
treaties, detainees held at Naval Station, Guantanamo Bay, 
Cuba, receive when transferred into the United States from such 
Naval Station, Guantanamo Bay, Cuba; or
    (2) pretrial detention, post conviction incarceration, or 
transportation within the United States, of detainees held at 
Naval Station, Guantanamo Bay, Cuba, who are to be transferred 
into the United States for prosecution and trial in the United 
States District Court of the Southern District of New York.

                               Background

    Under the rules and precedents of the House of 
Representatives, a resolution of inquiry is one of the methods 
that the House can use to obtain information from the Executive 
Branch.\1\ It ``is a simple resolution making a direct request 
or demand of the President or the head of an executive 
department to furnish the House of Representatives with 
specific factual information in the possession of the executive 
branch.''\2\ The typical practice has been to use the verb 
``request'' when asking for information from the President, and 
``direct'' when addressing Executive department heads.\3\ 
Clause 7 of Rule XIII of the Rules of the House of 
Representatives provides that if the committee to which the 
resolution is referred does not act on it within 14 legislative 
days, a privileged motion to discharge the resolution from the 
committee is in order on the House floor.
---------------------------------------------------------------------------
    \1\Christopher Davis, House Resolutions of Inquiry, CRS Report, 
November 25, 2008, at 1 (quoting U.S. Congress, House, Deschler's 
Precedents of the United States House of Representatives, H. Doc. 94-
661, 94th Cong., 2nd sess., vol. 7, ch. 24, Sec. 8.
    \2\Id.
    \3\Id.
---------------------------------------------------------------------------
    While recognizing the importance of the underlying issue 
regarding timely closure of the Guantanamo Bay detention 
facility, for the reasons summarized below, the Committee 
believes that the resolution is unwarranted. In essence, the 
resolution seeks information that the Administration already 
has provided, or is required by law to provide, to the 
Congress.
    First, the Attorney General, the Assistant Attorney General 
in charge of the Justice Department's National Security 
Division, the Director of the Federal Bureau of Investigation, 
and the General Counsel of the Defense Department have all 
testified before this Committee, as well the Senate Judiciary 
Committee, and the House and Senate Armed Services Committees, 
on these very subjects.\4\
---------------------------------------------------------------------------
    \4\Assistant Attorney General Kris and General Counsel Johnson 
testified before the Committee and addressed these subjects on July 30, 
2009. Assistant Attorney General Kris and General Counsel Johnson also 
testified before the Senate Judiciary Committee on July 23, 2009, the 
House Armed Services Committee on July 24, 2009, and the Senate Armed 
Services Committee on July 7, 2009. Attorney General Holder testified 
before the Committee and addressed these subjects on May 14, 2009. 
Attorney General Holder also testified before the Senate Judiciary 
Committee on November 18, 2009, and June 17, 2009. FBI Director Mueller 
testified before the Committee and addressed these subjects on May 20, 
2009. Director Mueller also testified before the Senate Judiciary 
Committee on March 25, 2009, and September 16, 2009.
---------------------------------------------------------------------------
    Second, the Assistant Attorney General of the Justice 
Department's National Security Division has provided written 
answers to specific questions raised by the resolution, such 
as:

         L``What are the advantages and disadvantages 
        of holding trials in the United States?''

         L``Would bringing the detainees into the 
        United States for trial give them additional 
        constitutional rights?''

         L``What additional constitutional rights will 
        a detainee gain if they are tried in the United States 
        versus Guantanamo?''\5\
---------------------------------------------------------------------------
    \5\Responses of David S. Kris to Questions for the Record, July 7, 
2009, Hearing of the Senate Armed Services Committee ``To Receive 
Testimony on Legal Issues Regarding Military Commissions and the Trial 
of Detainees for Violations of the Law of War.''
---------------------------------------------------------------------------
    Third, in September 2009, in response to a Committee 
request, the Department of Justice provided the Committee with 
legal analysis of ``baseline due process protections'' that 
would apply to military commission proceedings if held in the 
United States or Guantanamo Bay.
    Fourth, Committee staff have received several bipartisan 
briefings on the progress and findings of the several 
Administration task forces convened to address legal and 
operational issues regarding detention and transfer policy.
    Fifth, the Congress and the Administration have 
negotiated--and enacted into law--a detailed set of reporting 
requirements obligating the Administration to transmit 
extensive information on the issues raised by the resolution to 
Congress before any detainee is transferred to the United 
States for trial.\6\
---------------------------------------------------------------------------
    \6\See, e.g., Section 319, Supplemental Appropriations Act of 2009, 
P.L. 111-32, Department of Homeland Security Appropriations Act of 
2010, P.L. 111-83.
---------------------------------------------------------------------------
    In light of these facts, the Committee approved adversely 
reporting H. Res. 920 to the House, without amendment.

                                Hearings

    No hearings were held in the Committee on H. Res. 920.

                        Committee Consideration

    On December 9, 2009, the Committee met in open session and 
ordered H. Res. 920 adversely reported, without amendment, by a 
rollcall vote of 20 yeas to 13 nays, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall vote occurred during the Committee's 
consideration of H. Res. 920:
    1. H. Res. 920 was ordered reported unfavorably by a vote 
of 20 to 13.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Delahunt....................................................              X
Mr. Wexler......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Gutierrez...................................................              X
Ms. Baldwin.....................................................
Mr. Gonzalez....................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................              X
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................                              X
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             20              13
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this resolution does 
not provide new budgetary authority or increased tax 
expenditures.

                        Committee Cost Estimate

    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee estimates that 
implementing the resolution would not result in any significant 
costs. The Congressional Budget Office did not provide a cost 
estimate for the resolution.

                    Performance Goals and Objectives

    Clause 3(c)(4) of rule XIII of the Rules of the House of 
Representatives is inapplicable, because H. Res. 920 does not 
authorize funding.

                   Constitutional Authority Statement

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives is inapplicable, because H. Res. 920 is not a 
bill or a joint resolution that may be enacted into law.

                          Advisory on Earmarks

    Clause 9 of rule XXI of the Rules of the House of 
Representatives is inapplicable, because H. Res. 920 is not a 
bill or a joint resolution.

                      Section-by-Section Analysis

    H. Res. 920 directs the Attorney General to transmit to the 
House of Representatives, not later than 14 days after the date 
of adoption, all documents of the Department of Justice that 
refer or relate to:
    (1) any legal guidance or recommendations made since 
January 20, 2009, regarding additional legal rights or 
protections, including under the Constitution, statutes, and 
treaties, detainees held at Naval Station, Guantanamo Bay, 
Cuba, receive when transferred into the United States from such 
Naval Station, Guantanamo Bay, Cuba; or
    (2) pretrial detention, post conviction incarceration, or 
transportation within the United States, of detainees held at 
Naval Station, Guantanamo Bay, Cuba, who are to be transferred 
into the United States for prosecution and trial in the United 
States District Court of the Southern District of New York.

                            Dissenting Views

    We strongly support H. Res. 920 and oppose adversely 
reporting this resolution to the House. H. Res. 920 directs the 
Attorney General to transmit to the House of Representatives 
all information in the Attorney General's possession regarding 
certain matters pertaining to detainees held at Naval Station, 
Guantanamo Bay, Cuba, who are transferred into the United 
States.
    Attorney General Holder recently announced his decision to 
try five plotters of the 9/11 terrorist attacks, including 
mastermind Khalid Sheikh Mohammad (KSM), in a domestic criminal 
trial in the U.S. District Court for the Southern District of 
New York. This decision threatens the safety of the American 
people and sets a dangerous precedent for future enemy 
combatants apprehended on the battlefield.
    The majority accuses us of hypocrisy for opposing the New 
York trial of KSM and the others because we wholeheartedly 
supported the domestic prosecution of another 9/11 terrorist, 
Zacarias Moussaoui. While we did support the prosecution of 
Moussaoui in the U.S. District Court for the Eastern District 
of Virginia, there is no hypocrisy. The majority fails to 
acknowledge several important distinctions between the 
Moussaoui case and the proposed trial of KSM and the other 9/11 
plotters.
    Most importantly, Moussaoui was apprehended inside the 
United States. He was taken into custody on August 16, 2001, in 
Minnesota on immigration violations. After his connection to 
the 9/11 attacks was established, the government tried him in 
Federal court because that was the only forum available--there 
were no military commissions in place at that time.
    The case against KSM and his co-conspirators is entirely 
different. Never before in U.S. history has an enemy 
combatant--who was caught on the battlefield fighting and 
killing Americans--been tried in a U.S. civilian court. 
Importing terrorists into the United States for purposes of 
criminal prosecution grants them additional constitutional 
rights. Once on U.S. soil, terrorists can argue for additional 
rights that may make it harder for prosecutors to obtain a 
conviction in a criminal trial.
    KSM recognized this advantage when he was first captured in 
2003. According to CIA Director, George Tenet (appointed by 
President Clinton), KSM said ``I'll talk to you guys after I 
get to New York and see my lawyer.'' KSM is not a common 
criminal who committed a homicide on the streets of New York. 
He is an enemy combatant who committed an act of war against 
the United States, killing thousands of innocent Americans.
    At one time, General Holder himself recognized the need to 
be able to detain and interrogate terrorists outside the normal 
process of criminal prosecution, going so far as to recognize 
that terrorists are not even entitled to prisoner-of-war 
protections under the Geneva Conventions. In an interview on 
CNN in January 2002, General Holder said:

        It seems to me that given the way in which [the 
        terrorists] have conducted themselves, however, that 
        they are not, in fact, people entitled to the 
        protection of the Geneva Convention. They are not 
        prisoners of war. If, for instance, Mohamed Atta had 
        survived the attack on the World Trade Center, would we 
        now be calling him a prisoner of war? I think not. 
        Should Zacarias Moussaoui be called a prisoner of war? 
        Again, I think not.\1\
---------------------------------------------------------------------------
    \1\See ``2002 Video Flashback--Eric Holder: Terrorist Detainees 
Don't Fall Under Geneva Conventions,'' available at http://
newsbusters.org/blogs/kerry-picket (also featuring video of Holder 
interview).

    But now, the administration's Office of Legal Counsel has 
apparently concluded that even detainees tried by military 
commission on United States soil will be given constitutional 
protections against self-incrimination, without attracting much 
support elsewhere for holding trials by military commissions in 
---------------------------------------------------------------------------
the U.S. According to the Wall Street Journal:

        The Justice Department has determined that detainees 
        tried by military commissions in the U.S. can claim at 
        least some constitutional rights, particularly 
        protection against the use of statements taken through 
        coercive interrogations, officials said.

        The conclusion, explained in a confidential memorandum 
        whose contents were shared with The Wall Street 
        Journal, could alter significantly the way the 
        commissions operate--and has created new divisions 
        among the agencies responsible for overseeing the 
        commissions.

        Defense Department officials warn that the Justice 
        Department position could reduce the chance of 
        convicting some defendants. Military prosecutors have 
        said involuntary statements comprise the lion's share 
        of their evidence against dozens of Guantanamo 
        prisoners who could be tried.

        . . . ``There is a school of thought . . . that if they 
        actually convene these things in the [U.S.], the courts 
        will quickly find that all the due process 
        constitutional stuff we deal with in criminal courts 
        will be applicable,'' said another military official 
        familiar with the talks. ``The main push for this 
        argument comes out of'' the Justice Department and the 
        Office of Legal Counsel, the official said. ``It hasn't 
        gotten a lot of traction with other folks.''

        This person said Pentagon officials preferred not to 
        provide defendants additional rights unless courts 
        forced them to.\2\
---------------------------------------------------------------------------
    \2\Jess Bravin, ``New Rift Opens Over Rights of Detainees,'' The 
Wall Street Journal (June 29, 2009).

    During testimony before the Senate Judiciary Committee, 
General Holder said he believes a U.S. court, rather than a 
military commission, gives the government its best chance for 
success. This is contrary to common sense. A military 
commission trial would likely take half as long, be more likely 
to succeed, and be less risky for the American people.
    And, in the case of the 9/11 conspirators, success was 
already guaranteed. Before President Obama announced his plan 
to close Gitmo, KSM and his co-conspirators had planned to 
plead guilty to charges and proceed to execution. But the Obama 
administration decided to forgo the assured success of the 
military commissions and take its chances with a civilian 
criminal trial, giving the 9/11 conspirators a second chance.
    Now, to no one's surprise, KSM and the others are expected 
to plead not guilty to forthcoming charges in New York, 
creating a public platform for the 9/11 terrorists to advertise 
their anti-American propaganda around the world. By trying the 
terrorists in civilian court, the Administration is granting 
the 9/11 conspirators rights far beyond those provided under 
the Geneva Conventions, namely the full rights of domestic 
criminal defendants.

               ADDITIONAL CONSTITUTIONAL AND LEGAL RIGHTS

    Supreme Court precedents indicate courts can bestow more 
constitutional rights on people simply in virtue of their being 
on U.S. soil. The Supreme Court has held, for example, that 
constitutional rights can protect people who have ``developed 
sufficient connection'' with the U.S. Clearly, if a terrorist 
detainee is housed on American soil, he could be deemed to have 
``sufficient connection'' to the U.S. to be granted additional 
constitutional rights.
    President Obama's own Solicitor General, Elena Kagan, 
signed a brief in the Supreme Court in a related case earlier 
this year in which she argued that only the President and 
Congress, and not the courts, had the authority to order the 
transfer of a non-citizen into the U.S. In that brief, 
Solicitor General Kagan recognized ``the critical distinction'' 
the Supreme Court has drawn ``between an alien who has effected 
[sic] an entry into the United States and one who has never 
entered.''
    Solicitor General Kagan further cautioned the Supreme Court 
not to ``blur the previously clear distinction between aliens 
outside the United States and aliens inside this country or at 
its borders.'' ``This basic distinction,'' she elaborated, 
``serves as the framework on which our immigration laws are 
structured, and repeatedly has been recognized as significant 
not just under the Constitution but also as a matter of 
statutory and treaty law.''
    The President should not now make the mistake that his own 
Solicitor General argued the courts should not make, namely 
ordering non-citizen terrorists onto U.S. soil. Under existing 
law, the U.S. already gives terrorists more rights than any 
other country has given them in the history of the world. It 
should not grant them even more by placing them on U.S. soil.
    By prosecuting KSM and the others in a U.S. civilian 
criminal court, the Obama Administration is guaranteeing these 
terrorists the ability to argue that certain constitutional 
rights have been denied or are afforded them including (1) 6th 
amendment speedy and public trial rights; (2) 4th amendment 
unreasonable search and seizure rights; (3) 5th amendment right 
against self-incrimination; (4) and 6th amendment right to 
counsel, trial by jury, and right to confront their accusers.
    Thus, the detainees could succeed in suppressing certain 
evidence, such as statements or confessions made without proper 
Miranda warnings and a waiver of such warnings, or statements 
made as a result of interrogation techniques not used by 
criminal investigators, or any possible evidence seized without 
appropriate probable cause or warrant.
    The detainees will also argue their right to call any 
number of witnesses from foreign or U.S. authorities who 
apprehended them overseas to high-ranking Bush Administration 
officials. Although this trial will focus on the 9/11 attacks, 
savvy defense attorneys could and likely will use it as a 
platform for denouncing Guantanamo Bay, interrogation 
techniques, or even the U.S. presence in Iraq and Afghanistan 
and a host of other perceived wrongs.
    Any one of these could threaten the government's ability to 
obtain a conviction. The right to a public trial not only 
threatens the disclosure of classified information (discussed 
below) but will also provide a platform for the detainees to 
espouse their hatred for America and stir up renewed support 
for their jihad around the world.
    In addition to constitutional rights, the detainees will be 
able to draw out this dramatic process with any number of 
challenges and motions including a motion for change of venue 
or a motion to sever the trial into separate trials.
    ``Welcome to New York, Now Die,'' was the headline of the 
New York Post the day after General Holder announced his 
decision to try these five terrorists in New York City. ``Kill 
them without a trial, just a bullet in the head and say, 
`Goodbye.' Why waste taxpayer money?'' This statement, from a 
70-year-old truck driver from New York, and many others like 
it, as well as the numerous newspaper headlines and editorials, 
will all be admissible in a venue hearing.
    Federal Rule of Criminal Procedure 18 and the ``continuing 
offense venue provision'' of 18 U.S.C. Sec. 3237(a) provide 
that ``any offense against the United States . . . committed in 
more than one district'' may be prosecuted in ``any district in 
which such offense was begun, continued, or completed.''
    Given this provision, Federal Rule of Criminal Procedure 21 
allows the accused to unduly complicate the proceedings against 
them, because Rule 21 states that ``the court must transfer the 
proceeding . . . if the court is satisfied that so great a 
prejudice against the defendant exists in the transferring 
district that the defendant cannot obtain a fair and impartial 
trial there.'' (Emphasis added.)
    Can the Department of Justice be confident that its choice 
of the Southern District of New York will even remain the venue 
since there is case law granting venue motions due to 
prejudicial pretrial publicity, and since there will be the 
inarguable difficulty of finding unbiased jurors from a pool of 
citizens in New York, who, as adults, will certainly have a 
living memory of this monstrous attack on their own city?
    In early December, hundreds of people gathered outside the 
Federal courthouse in Manhattan to protest this trial. Many of 
these protestors are surviving family members and friends of 
those killed in the 9/11 attacks. With this protest and the 
extensive media coverage in the few weeks since General 
Holder's announcement, we have barely scratched the surface on 
the publicity that this trial of the century will attract.
    In addition to a request for change of venue, it's not 
unreasonable to expect a request for severance of this trial, 
particularly from the other, lesser known defendants. The 
standard for severance under Federal Rule of Criminal Procedure 
14 likewise concerns whether a particular defendant's own 
defense is compromised by prejudice as a result of his case 
being joined to those of other defendants. Prejudice can be 
shown when a joined defendant cannot receive a fair trial 
because publicity against another defendant will be 
prejudicial. In a typical trial, prejudicial pretrial publicity 
may demand that the court grant a severance motion.
    What consideration has the Department of Justice given to 
the fact that having KSM as a co-defendant, someone who has 
shown a willingness to publicly declare his guilt and his 
desire to engage in militant jihad against Americans, will 
likely amount to prejudice for the other defendants?

              PUBLIC DISCLOSURE OF CLASSIFIED INFORMATION

    The New York City trial of KSM and four other 9/11 plotters 
threatens the disclosure of classified or sensitive 
information--potentially arming terrorists around the world 
with information to use in a future attack against America.
    At trial, prosecutors may be forced to reveal U.S. 
intelligence on the detainees, along with the methods and 
sources used in acquiring it. This will put sensitive 
information directly in the hands of al Qaeda to better 
understand our intelligence-gathering techniques and respond 
accordingly. For example, the trial of the 1993 WTC bombing 
disclosed information regarding the WTC's architectural design 
and structure and even what size plane it would take to bring 
down a WTC tower.
    General Holder alleges that these concerns are not 
legitimate because the government can shield the public release 
of classified information through the Classified Information 
Procedures Act (CIPA). CIPA ``provides pretrial procedures that 
will permit the trial judge to rule on questions of 
admissibility involving classified information before 
introduction of the evidence in open court.'' These procedures 
are intended to provide a means for the court to determine 
whether classified information is actually material to the 
defense.
    But CIPA is not an outright bar to the disclosure of 
classified information. Rather, it precludes only that 
information which the judge determines is neither discoverable 
under the rules nor relevant to the trial. So, if it's 
discoverable and relevant--the judge can require its disclosure 
to the defense.
    General Holder in his testimony before the Senate Judiciary 
Committee stated that the potential disclosure of classified 
information in a civilian trial is really no different from 
that of a military commission trial because the commission 
rules are based on CIPA. As former Federal terrorism prosecutor 
Andrew McCarthy has pointed out, however, the commission rules 
may be based on CIPA, but they are not the same as CIPA. On the 
contrary, the Military Commissions Act allows for (1) deletions 
of classified material from discovery documents made available 
to the accused; (2) the withholding of methods and sources of 
intelligence collection from the accused; and (3) the deletion 
of classified information from exculpatory evidence.
    And unlike military commissions, where the presumption is 
to withhold classified information (especially if it involves 
sources and methods), in civilian trials under CIPA, the 
presumption is to disclose classified information if it is 
relevant.
    CIPA is flawed in other respects as well--a fact the 
Justice Department has previously acknowledged and even offered 
amendments to correct. These revisions include (1) authorizing 
ex parte government requests for CIPA protective orders; (2) 
restricting access to classified information obtained from non-
documentary sources; and (3) allowing interlocutory appeals 
from any order for access to classified information.
    If General Holder is content to rely upon CIPA to protect 
the disclosure of classified information in this trial, then he 
must do the responsible thing and insist upon these much-needed 
revisions to the law, and we should enact them promptly.

      CONFLICTS OF INTEREST WITHIN THE U.S. DEPARTMENT OF JUSTICE

    Of great concern to us with the decision to bring KSM and 
the others to New York for a domestic trial is the number of 
senior Justice Department officials with the potential for 
serious conflicts or, at a minimum, the appearance of such 
conflicts of interest in the case, beginning with the Attorney 
General himself.
    General Holder worked as a partner at Covington & Burling 
in Washington, D.C. before being appointed Attorney General. 
According to the firm's website, it represents 16 detainees at 
Guantanamo Bay. The head of the Department's Criminal Division, 
Lanny Breuer, is also a former partner at Covington & Burling, 
which reportedly owed Mr. Breuer many millions of dollars when 
he left for the Justice Department.
    Deputy Attorney General David Ogden was a partner at Wilmer 
Hale, a firm whose website also boasts about its representation 
of multiple detainees at Guantanamo Bay. Associate Attorney 
General Tom Perrelli was a partner at Jenner & Block in D.C. 
This firm too has a website boasting of the firm's 
representation of multiple detainees. In Mr. Perrelli's case, 
the conflicts are more real than apparent, as he has had to 
recuse himself from 39 cases involving terrorism-related 
detainees.
    As a professor at Georgetown, Principal Deputy Solicitor 
General Neal Katyal represented many detainees in ground-
breaking cases before the Supreme Court. Mr. Katyal, a 
distinguished lawyer, is significantly responsible for getting 
us to the point at which these detainees enjoy certain 
constitutional rights. And he has been committed to getting 
these enemies of the United States as many rights as possible.
    Assistant Attorney General Tony West, who runs the Civil 
Division, which defends the government in civil claims brought 
by the detainees, including habeas claims, was a partner at 
Morrison & Forester, which represents a Guantanamo Bay detainee 
in a habeas case brought in Federal court in Washington.
    We do not have a complete list of lower level political 
appointees or of possible career appointees who might have some 
responsibility for terrorism prosecutions or policy and who 
have been hired by the Department since President Obama took 
office. But we note that serving under Deputy Attorney General 
are three former Wilmer Hale lawyers, Stuart Delery, Eric 
Columbus, and Chad Golder; serving with Associate Attorney 
General Perrelli are former Jenner lawyers Donald Verrilli and 
Brian Hauck.
    Finally, we wish to highlight the Department's hiring of 
Jennifer Daskal, a harsh critic of U.S. policy towards 
detainees, as a senior advisor in the Department's National 
Security Division, where she serves on a task force for 
detainee policy.
    The potential for conflicts of interest here is great, but 
the silence of the media and the Justice Department about this 
issue is deafening. Can you imagine what the media and the 
majority would be saying about Republican appointees whose 
firms had represented companies with interests before the 
Justice Department?
    This Committee and this House have a duty to uphold our 
Constitution and we should demand answers from the Justice 
Department about these conflicts. Yet, here, with our national 
security at stake, we have a scene from a cartoon, where one 
hears only crickets chirping.

                  SECURITY DURING AND AFTER THE TRIAL

Trying Cases in New York City
    According to Governor David Paterson (D-NY), ``This is not 
a decision that I would have made. . . . It's very painful . . 
. We still have been unable to rebuild that site, and having 
those terrorists tried so close to the attack is going to be an 
encumbrance on all New Yorkers.'' The Southern District Court 
House is within walking distance of Ground Zero, City Hall, the 
Brooklyn Bridge, NYPD Headquarters, Wall Street and the Battery 
Tunnel.
    The trial of Zacarias Moussaoui in Alexandria, Virginia, 
demonstrated the risk posed to trial cities. Alexandria was a 
scene of rooftop snipers, bomb-sniffing dogs inspecting cars, 
identification checks, and heavily armed patrols. Replicating 
this security presence on a larger stage in New York will come 
at a huge cost to the Federal, State, and local governments and 
enormous inconvenience and risk to residents and taxpayers.
Pretrial Detention
    The Bureau of Prisons (BOP) operates all Federal prison 
facilities in the United States. According to a 2007 letter 
from the BOP to Members of Congress, the BOP would ``consider 
the individuals confined in Guantanamo Bay to be high security; 
therefore, they would require the highest level of escort 
staff, type of restraints, and other security measures if they 
were to be transferred into BOP custody.''\3\
---------------------------------------------------------------------------
    \3\Letter to Congressman Trent Franks from the Federal Bureau of 
Prisons, U.S. Department of Justice, Sept. 10, 2007.
---------------------------------------------------------------------------
    BOP operates 15 high security penitentiaries in ten states: 
Arizona, California, Colorado, Florida, Indiana, Kentucky, 
Louisiana, Pennsylvania, Virginia, and West Virginia.
    New York does not have a high-security Federal 
penitentiary. It houses two medium security facilities, a 
community corrections program, and two administrative-level MCC 
facilities that function as jails (rather than prisons) by 
housing pretrial Federal defendants and material witnesses. 
These MCC facilities are NOT high-security facilities. The 
closest Federal high-security penitentiary is the Canaan 
Penitentiary in Pennsylvania, over 120 miles from New York 
City.
    The Administration may then call upon state and city 
facilities near the U.S. District Courthouse in New York City 
to house the detainees. Sing Sing is the closest state maximum 
security prison to New York City and the U.S. District 
Courthouse and houses just over 1,700 inmates.
    New York City's Rikers Island is not a prison--it is a city 
jail operated by the New York City Department of Corrections. 
The facility, which consists of ten jails, holds local 
offenders who are awaiting trial and cannot afford or cannot 
obtain bail or were not given bail from a judge, those serving 
sentences of one year or less, and those temporarily placed 
there pending transfer to another facility. Rikers Island is 
not a maximum security facility.
    The costs associated with housing the detainees in either a 
Federal, State, or city facility with sufficient security 
protections for all of the pretrial motions, trial, sentence, 
and appeals is unknown. But given the potential length of all 
of these proceedings, it is fair to say it will be very costly 
to taxpayers.
Transportation for Court Appearances
    The transportation of Federal inmates and detainees is 
coordinated through the Justice Prisoner and Alien 
Transportation System (JPATS) within the U.S. Marshals Service. 
JPATS transports sentenced prisoners who are in the BOP custody 
as well as ICE criminal/administrative aliens to hearings, 
court appearances and detention facilities. JPATS also provides 
regular international flights for the removal of deportable 
aliens. Military and civilian law enforcement agencies use 
JPATS to shuttle their prisoners between different 
jurisdictions at a fraction of what commercial sources would 
charge.
    On average, JPATS completes over 300,000 prisoner/alien 
movements per year. A network of aircraft, cars, vans and buses 
accomplishes these coordinated movements. JPATS operates a 
fleet of aircraft which moves prisoners over long distances 
more economically and with higher security than commercial 
airlines. Nearly all air movements are done aboard large and 
small jets that JPATS owns or leases. Ground transportation is 
usually provided by the Marshals Service, ICE and the BOP.
    As indicated by the 2007 BOP letter, the transport of the 
detainees to and from the courthouse will involve high security 
with high-level escort staff and additional security measures. 
The cost of such measures and the disruption to New York City 
traffic and regular courthouse business is unknown.
Post-conviction Incarceration
    If the detainees are convicted, they will be incarcerated 
either to serve their sentence or while awaiting execution. 
Such incarceration would likely occur in one of the 15 Federal 
high-security penitentiaries. Even detention at a very high 
level of security may pose problems, including radicalization 
of other inmates, assaults on guards (routine at Guantanamo 
Bay), and efforts to escape or from the outside to free the 
inmates. As FBI Director Mueller has testified before this 
Committee, the prospect of keeping these offenders incarcerated 
in a regular Federal prison poses many challenges and causes 
concern.
    Perhaps the most famous of these is the ADX facility in 
Florence, Colorado--the Nation's only Federal Supermax 
facility. ADX is home to some of the country's most notorious 
criminals including Theodore Kaczynski (the Unabomber), Eric 
Robert Rudolph (the Olympic bomber), Ramzi Yousef (1993 WTC 
bomber), Timothy McVeigh (deceased OK City bomber), Zacarias 
Moussaoui (9/11 co-conspirator), and Robert Hanssen (FBI agent 
turned spy).
    Most inmates at ADX are kept for at least 23 hours each day 
in solitary confinement. They are housed in a 7 foot (2.1 
meters) by 12 foot (3.7 meters) room, built behind a steel door 
and grate. Their free hour is spent exercising alone in a 
separate concrete chamber. Prisoners seldom see one another, 
and the inmates' only direct human interaction is with 
correctional officers or other prison staff. Visiting from 
outside the prison is conducted through glass, with each 
prisoner in a separate chamber. Religious services are 
broadcast from a small chapel.
    The 2007 BOP letter stated that

        [T]here is not sufficient bedspace at any high-security 
        Federal prison to confine these individuals. Our high-
        security institutions are operating at 55 percent above 
        capacity. There are approximately 199,700 Federal 
        inmates at present, and we are expecting the inmate 
        population to increase to over 221,000 by the end of 
        fiscal year 2011. The average yearly cost of confining 
        a high-security inmate in the BOP is approximately 
        $25,400.

        We would most likely confine these detainees in one or 
        two penitentiaries. This would require us to transfer a 
        sufficient number of inmates to other penitentiaries in 
        order to create the necessary bedspace. Such transfers 
        would add to the cost of confining the enemy combatants 
        and would impose significant additional challenges to 
        our agency (based [on] the level of crowding in all 
        high-security BOP institutions).\4\
---------------------------------------------------------------------------
    \4\Id.

    On December 15, 2009, the Administration announced the use 
of a state prison facility in Illinois to house many of the 
remaining detainees after the detention facility at Guantanamo 
Bay is closed.
    The plan being considered for the Thomson Correctional 
Center, pitched by Illinois Governor Quinn in a meeting with 
President Obama earlier this year, calls for the Federal Bureau 
of Prisons to operate the Center as a high-security Federal 
penitentiary and lease a portion to the Defense Department to 
house fewer than 100 Guantanamo detainees.
    The plans could include a purchase of the facility by the 
Federal Government, Quinn said. The Thomson Correctional 
Center, located about 150 miles (240 kilometers) west of 
Chicago, was built by the state in 2001 and has 1,600 cells, 
but houses only about 150 minimum-security prisoners. The 
facility sits on 146 acres (59 hectares) and is enclosed by a 
12 foot (3.6 meter) exterior fence and 15 foot (4.6 meter) 
interior fence.
    A preliminary economic impact analysis found that Federal 
operation of the facility could generate between 2,340 and 
3,250 ongoing jobs. The analysis estimates that the overall 
injection of funds into the local economy would be between $790 
million and $1.09 billion over the first four years.
    The Federal high security penitentiary in Terre Haute, 
Indiana currently houses the death row for Federal inmates. If 
KSM and the four other plotters are sentenced to death, they 
will likely be detained in the Indiana prison. If they do not 
receive the death penalty, they may be housed in the ADX 
facility in Florence, Colorado, or perhaps the new facility in 
Illinois that is being proposed to house other Guantanamo Bay 
detainees.

                   IMMIGRATION AND DEPORTATION ISSUES

    If the Administration brings foreign terrorists to our 
shores from Guantanamo Bay, we may never be able to deport 
them. Even worse, we may not be able to even keep them in 
immigration detention and off our streets. Even if we manage to 
convict these terrorists, they may one day become our 
constituents' new neighbors. How is this possible? Because of 
the confluence of two factors--1) the Convention against 
Torture and 2) the Supreme Court's 2001 decision in Zadvydas v. 
Davis.\5\
---------------------------------------------------------------------------
    \5\533 U.S. 678 (2001).
---------------------------------------------------------------------------
    The Convention prohibits the return of aliens to countries 
where they may be tortured. The Department of Justice's 
regulations implementing the Convention made no exceptions 
whatsoever--rapists, murderers, participants in genocide and 
terrorists are equally protected. Hundreds of criminals have 
already received relief from deportation as a result of the 
Convention--and so has an alien involved in the assassination 
of Anwar Sadat.
    Osama Bin Laden himself could probably frustrate 
deportation by making a Convention claim. After all, the more 
heinous a person's actions and consequently the more hated they 
are in their home countries, the more likely that they might be 
subject to torture.
    The ability of terrorists to frustrate deportation might be 
barely tolerable if we were sure we could keep them detained. 
But even this may not be the case. Section 412 of the PATRIOT 
Act does wisely provide for the indefinite detention of 
terrorist aliens, regardless of whether they qualify under the 
Convention against Torture or have other available relief from 
removal. However, it is very possible that the Supreme Court 
will rule this provision unconstitutional.
    In Zadvydas, the Supreme Court ruled that under a different 
law, aliens who had been admitted to the U.S. and then ordered 
removed could not be detained for more than six months if for 
some reason--such as the Convention against Torture--they could 
not be removed. In Zadvydas, the Supreme Court made a statutory 
interpretation. However, the Court stated that it was 
``interpreting the statute to avoid a serious constitutional 
threat.'' The Court believed that ``[a] statute permitting 
indefinite detention of an alien would raise a serious 
constitutional problem.''
    Already, the Zadvydas decision has resulted in the release 
of hundreds of alien criminals into our communities. Jonathan 
Cohn, former Deputy Assistant Attorney General, has testified 
that ``the government is [now] required to release numerous 
rapists, child molesters, murderers, and other dangerous 
illegal aliens into our streets. . . . [V]icious criminal 
aliens are now being set free within the U.S.''
    It seems incredible that the Administration would 
intentionally bring alien terrorists into the United States, 
knowing that we may never be able to deport them, or even 
detain them on a long-term basis.

                               CONCLUSION

    We introduced this Resolution of Inquiry to request Justice 
Department documents that would inform Congress what extra 
constitutional and legal rights will be afforded these 
terrorists once they are brought to the U.S. for criminal 
prosecution. This resolution also requests documents relating 
to the detention, transportation, and incarceration of these 
terrorists before, during, and after the trial.
    The decision to try KSM and the other 9/11 plotters in New 
York is not based in legal precedent or grounded in national 
security considerations. It is based on the liberal ideology 
that terrorists deserve the same rights as citizens. We 
introduced this resolution because we fear the Justice 
Department failed to consider--or chose to ignore--the myriad 
of issues raised by this decision, only a handful of which are 
addressed herein. Unfortunately, the majority chose to reject 
its well-established oversight responsibilities and instead 
continue to blindly rely upon the assurances of General Holder 
that America will not regret this decision.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Howard Coble.
                                   Elton Gallegly.
                                   Bob Goodlatte.
                                   Daniel E. Lungren.
                                   Darrell E. Issa.
                                   J. Randy Forbes.
                                   Steve King.
                                   Trent Franks.
                                   Louie Gohmert.
                                   Jim Jordan.
                                   Ted Poe.
                                   Jason Chaffetz.
                                   Tom Rooney.
                                   Gregg Harper.

                                  

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