89–006 

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 


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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, § 8. 2 Id. 

3 Id. 

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 

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. 

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


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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. 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.’’ 6See, 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. 

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: 

• ‘‘What are the advantages and disadvantages of holding 

trials in the United States?’’ 

• ‘‘Would bringing the detainees into the United States for 

trial give them additional constitutional rights?’’ 

• ‘‘What additional constitutional rights will a detainee gain if 

they are tried in the United States versus Guantanamo?’’ 5

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

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 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

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. Sa ́nchez ......................................................................................................

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. 


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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 


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1See ‘‘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). 

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

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. 


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2 Jess Bravin, ‘‘New Rift Opens Over Rights of Detainees,’’ The Wall Street Journal (June 29, 

2009). 

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

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. 


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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 


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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. § 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 


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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. AccordVerDate Nov 24 2008 05:32 Dec 16, 2009 Jkt 089006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR378.XXX HR378

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ing 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 


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3Letter to Congressman Trent Franks from the Federal Bureau of Prisons, U.S. DEPARTMENT

OF JUSTICE, Sept. 10, 2007. 

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

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 


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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 highlevel 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 coconspirator), 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 


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4 Id. 

5 533 U.S. 678 (2001). 

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

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

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 


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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. 


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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. 

Æ 


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