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45–826 2010

[H.A.S.C. No. 110–166] 

IMPLICATIONS OF THE SUPREME 

COURT’S BOUMEDIENE DECISION FOR 

DETAINEES AT GUANTANAMO BAY, CUBA: 

NON-GOVERNMENTAL PERSPECTIVE 

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

HEARING HELD 

JULY 30, 2008 
(II) 

HOUSE COMMITTEE ON ARMED SERVICES 

ONE HUNDRED TENTH CONGRESS

IKE SKELTON, Missouri, Chairman 

JOHN SPRATT, South Carolina 

SOLOMON P. ORTIZ, Texas 

GENE TAYLOR, Mississippi 

NEIL ABERCROMBIE, Hawaii 

SILVESTRE REYES, Texas 

VIC SNYDER, Arkansas 

ADAM SMITH, Washington 

LORETTA SANCHEZ, California 

MIKE MCINTYRE, North Carolina 

ELLEN O. TAUSCHER, California 

ROBERT A. BRADY, Pennsylvania 

ROBERT ANDREWS, New Jersey 

SUSAN A. DAVIS, California 

RICK LARSEN, Washington 

JIM COOPER, Tennessee 

JIM MARSHALL, Georgia 

MADELEINE Z. BORDALLO, Guam 

MARK E. UDALL, Colorado 

DAN BOREN, Oklahoma 

BRAD ELLSWORTH, Indiana 

NANCY BOYDA, Kansas 

PATRICK J. MURPHY, Pennsylvania 

HANK JOHNSON, Georgia 

CAROL SHEA-PORTER, New Hampshire 

JOE COURTNEY, Connecticut 

DAVID LOEBSACK, Iowa 

KIRSTEN E. GILLIBRAND, New York 

JOE SESTAK, Pennsylvania 

GABRIELLE GIFFORDS, Arizona 

NIKI TSONGAS, Massachusetts 

ELIJAH E. CUMMINGS, Maryland 

KENDRICK B. MEEK, Florida 

KATHY CASTOR, Florida 

DUNCAN HUNTER, California 

JIM SAXTON, New Jersey 

JOHN M. MCHUGH, New York 

TERRY EVERETT, Alabama 

ROSCOE G. BARTLETT, Maryland 

HOWARD P. ‘‘BUCK’’ MCKEON, California 

MAC THORNBERRY, Texas 

WALTER B. JONES, North Carolina 

ROBIN HAYES, North Carolina 

W. TODD AKIN, Missouri 

J. RANDY FORBES, Virginia 

JEFF MILLER, Florida 

JOE WILSON, South Carolina 

FRANK A. LOBIONDO, New Jersey 

TOM COLE, Oklahoma 

ROB BISHOP, Utah 

MICHAEL TURNER, Ohio 

JOHN KLINE, Minnesota 

PHIL GINGREY, Georgia 

MIKE ROGERS, Alabama 

TRENT FRANKS, Arizona 

BILL SHUSTER, Pennsylvania 

THELMA DRAKE, Virginia 

CATHY MCMORRIS RODGERS, Washington 

K. MICHAEL CONAWAY, Texas 

GEOFF DAVIS, Kentucky 

DOUG LAMBORN, Colorado 

ROB WITTMAN, Virginia 

ERIN C. CONATON, Staff Director 

PAUL OOSTBURG, Professional Staff Member 

THOMAS HAWLEY, Professional Staff Member 

CATERINA DUTTO, Staff Assistant 
(III) 

C O N T E N T S 

CHRONOLOGICAL LIST OF HEARINGS 

2008 

Page 

HEARING: 

Wednesday, July 30, 2008, Implications of the Supreme Court’s Boumediene 

Decision for Detainees at Guantanamo Bay, Cuba: Non-Governmental Perspective .................................................................................................................. 1 

APPENDIX: 

Wednesday, July 30, 2008 ....................................................................................... 51 

WEDNESDAY, JULY 30, 2008 

IMPLICATIONS OF THE SUPREME COURT’S BOUMEDIENE DECISION 

FOR DETAINEES AT GUANTANAMO BAY, CUBA: NON-GOVERNMENTAL PERSPECTIVE 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

Hunter, Hon. Duncan, a Representative from California, Ranking Member, 

Committee on Armed Services ............................................................................ 3 

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

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

WITNESSES 

Davis, Col. Morris D., USAF, Former Chief Prosecutor, Office of Military 

Commissions (2005–2007) ................................................................................... 14 

Katyal, Neal K., Paul and Patricia Saunders Professor of National Security 

Law, Georgetown University Law Center .......................................................... 10 

Klingler, Richard, Partner, Sidley Austin LLP ..................................................... 12 

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

Counsel for the Guantanamo Prisoners in Boumediene v. Bush ..................... 7 

APPENDIX 

PREPARED STATEMENTS: 

Davis, Col. Morris D. ........................................................................................ 102 

Katyal, Neal K. ................................................................................................. 74 

Klingler, Richard .............................................................................................. 91 

Oleskey, Stephen H. ......................................................................................... 55 

DOCUMENTS SUBMITTED FOR THE RECORD: 

[There were no Documents submitted.] 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

[There were no Questions submitted during the hearing.] 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

[There were no Questions submitted post hearing.] 

(1) 

IMPLICATIONS OF THE SUPREME COURT’S BOUMEDIENE DECISION FOR DETAINEES AT GUANTANAMO 

BAY, CUBA: NON-GOVERNMENTAL PERSPECTIVE 

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Wednesday, July 30, 2008. 

The committee met, pursuant to call, at 10:04 a.m., in room 

2118, Rayburn House Office Building, Hon. Ike Skelton (chairman 

of the committee) presiding. 

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

SERVICES 

The CHAIRMAN. Our committee will come to order. 

Two hundred and twenty years ago, one of our founding fathers, 

Alexander Hamilton, warned that the imprisonment of individuals 

in distant or unknown locations without due process is a very dangerous engine of arbitrary government. 

To guard against the tendencies of such governments, Hamilton 

advocated for the centuries-old power of British courts to order 

wardens to bring prisoners before it, so that a judge as a neutral 

third party could inquire into the basis for continued detention. 

This is the power of habeas corpus, or what became known as the 

‘‘Great Writ.’’ 

The Military Commissions Act (MCA) of 2006, which was enacted 

in the last Congress, stripped our federal courts of this bulwark of 

our Constitution. As a result, the Administration received the 

green light to be jailer, judge, and jury, and it gladly revved its engine. 

The engine roared until the highest court in our land determined 

that the price of fuel for that engine was more than our Constitution could bear. Last month, the Supreme Court, in a five-to-four 

opinion, decided that the detainees who were being held at the U.S. 

Navy station in Guantanamo Bay, Cuba, do have the habeas corpus privilege under the suspension clause of the Constitution and 

that Section 7 of the Military Commissions Act is unconstitutional. 

As a former prosecutor, it is gratifying to know that the federal 

courts will resume their traditional role of ensuring that only the 

corrupt remain behind bars. 

While I still believe the current military commissions system has 

some other significant weaknesses, this ruling of the court will help 

by ensuring that any commission ruling which is designed to bring 

terrorists to justice can better withstand judicial scrutiny, for certain convictions must go hand-in-hand with tough prosecution. 
2 

In addition to the now largely addressed habeas issue, I have repeatedly identified six other potential unlawful defects in the current military commissions framework. 

First, the Military Commissions Act may violate the exceptions 

clause under Article III of the Constitution by impermissibly restricting the Supreme Court’s review. 

Second, it is questionable whether the Supreme Court would uphold a system that purports to make the President the final arbiter 

of the Geneva Convention. 

Third, the provisions regarding coerced testimony may be challenged under our Constitution. 

Fourth, the act contains very lenient hearsay rules, which rub up 

against the right of the accused to confront witnesses in evidence, 

as guaranteed by the Constitution. 

Fifth, the act may be challenged on equal protection and other 

constitutional grounds for how it discriminates against the detainees for being aliens. 

Last, Article I of the Constitution prohibits ex-post-facto laws, 

and that is what this act may have created. 

Although I don’t anticipate that all of these issues will be resolved before high-value detainees, such as Khalid Sheikh Mohammed, self-confessed mastermind of 9/11, go to trial, I have confidence that the courts and we here in our Congress will be deliberate and decisive, rather than recklessly headstrong on how we 

approach these very difficult questions. We must make sure that 

the verdicts of the military juries stick. 

I look forward to hearing from our witnesses today. 

We have as our witnesses in front of us Stephen Oleskey, a partner in Wilmer, Cutler, Pickering, Hale, and Dorr, and has represented six Bosnian Algerian men who have been detained at 

Guantanamo since 2002. Mr. Oleskey was awarded the 2007 American Bar Association Pro Bono Publico Award, largely because of 

his work on habeas corpus. 

Would you raise your hand? We will know who is who. There you 

are. Thank you very much. 

Next witness: Neal Katyal is a Saunders professional in national 

security law at Georgetown University Law School. In Hamdan v. 

Rumsfeld, he successfully argued before the Supreme Court that 

the Military Commissions Act, which predated the Military Commissions Act, were unconstitutional. 

Would you raise your hand? Just want to thank you. 

Richard Klingler, who served as the National Security Council’s 

general counsel and legal adviser from 2006 to 2007 and is a partner in the law firm of Sidley Austin. 

Thank you. 

Mr. Morris Davis, colonel in the United States Air Force, although he is testifying as a civilian while on terminal leave. Colonel Davis was formerly the chief prosecutor for the Office of Military Commissions. 

We certainly appreciate your being with us and giving us your 

thoughts on this highly important issue. 

Ranking Member Duncan Hunter. 
3 

STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE 

FROM CALIFORNIA, RANKING MEMBER, COMMITTEE ON 

ARMED SERVICES 

Mr. HUNTER. Thank you, Mr. Chairman. And thanks for holding 

this important hearing. 

And I would simply note that Alexander Hamilton, however, 

never recommended that habeas be given to prisoners of war 

(POWs). In fact, the habeas rights that have been directed by the 

court’s decision are rights that terrorists have at this point, which 

no American soldiers have. 

Over the last couple of years, this committee has spent a lot of 

time focusing on our detainee policy for the global war on terrorism. And the policy that the committee advanced took into account that this war against terror has produced a new type of battlefield and a new type of enemy. 

In the last Congress, we worked hard to pass the Detainee Treatment Act (DTA) and the Military Commissions Act, MCA, ensuring 

that the United States is able to detain, interrogate, and try terrorists. 

We had a practical problem that we had to address, this new 

type of war that doesn’t involve particularly uniformed adversaries 

on the battlefield, but nonetheless very deadly adversaries. And we 

had to do so in a manner that is consistent with the Constitution 

and the international rules of war. 

As the attorney general recently remarked about the DTA and 

the MCA, the Detainee Treatment Act and the Military Commissions Act, and he said, ‘‘These laws give more procedural protections than the United States or any other country, for that matter, 

had ever given to war-time captives, whether those captives were 

lawful soldiers in foreign armies or unlawful combatants who target civilians and hide in civilian populations.’’ 

And, Mr. Chairman, I just asked the staff, as we kick this thing 

off, to give me the list of procedural protections that we gave to accused terrorists when we put this bill together. Let me just go over 

these because I think this is important. 

The right to counsel, none of our POWs have that. The presumption of innocence, POWs don’t have that. Proof beyond a reasonable 

doubt, opportunity to obtain witnesses and other evidence, right to 

discovery, exculpatory evidence provided to defense counsel. 

Statements obtained through torture are excluded. Classified evidence must be declassified, redacted or summarized to the maximum extent possible. Statements allegedly obtained through coercion are only admissible if the military judge rules that the statement is reliable and probative. A certified, impartial judge will preside over all proceedings of individual military commissions. 

The U.S. Government must provide defense counsel, including 

counsel with the necessary clearances to review classified information on the accused terrorists they have. In capital cases, the military commissions’ 12 panelists must unanimously agree on the verdict, and the President has a final review. 

Panel votes are secret ballot, which ensures panelists are allowed 

to vote their own conscience. Right to appeal to a new military— 

a new court, a military commissions review, and the Court of Ap-
4 

peals for the District of Columbia, and the right against double 

jeopardy. 

Those, gentlemen, were derived from our scrutiny of other councils that were similar, tribunals, including Nuremberg, Rwanda, 

and others. And I think you could accurately say that we actually 

gave more rights to accused terrorists than any councils, any tribunals ever assembled. 

If you have got some others that give more rights to accused terrorists, I would like to hear about it. And if you don’t think that 

list of rights is long enough, I would like to know what you think 

we should—what additional rights we should give. 

And once again, the right to habeas is a right that no American 

soldier enjoys. 

This is a delicate and carefully balanced framework, agreed to by 

the large majorities in both Houses of Congress, and it was thrown 

into question as a result of the recent Supreme Court decision in 

Boumediene. And in a deeply divided opinion, a five-to-four majority made the unprecedented decision to afford a constitutional right 

of habeas corpus on alien enemies detained abroad by our military 

forces in the course of an ongoing war. 

And while I disagree with the court’s opinion, the decision is now 

the law of the land. The challenge before the committee today is 

clarifying the implications of the Supreme Court decision. 

Though some of our panelists today advance the argument that 

the Supreme Court decision suggests other constitutional infirmities with the Military Commissions Act that warrant congressional action, I continue to believe that absent an explicit decision 

by the court that the commissions process is unconstitutional, the 

trials should go forward without congressional interference. 

It is important to note that the majority in Boumediene addressed the process for status determinations regarding detention. 

The court was silent with respect to commissions. 

Currently there are 20 commissions in the works, and the first 

trial has just commenced. Under the MCA, each of the accused will 

have the right to appeal a guilty verdict to the Court of Military 

Commission Review, to the Court of Appeals for the D.C. court circuit, and then to the Supreme Court. 

I encourage the committee to heed the underlying principle of 

Chief Justice Roberts’ dissent in Boumediene: ‘‘We should not rush 

to judgment on the constitutionality of the commissions until the 

process is complete and the trials have exhausted their reviews.’’ 

As we meet today, the case against the 9/11 conspirators is moving forward. As the Congress intended, the U.S. is in the process 

of bringing those responsible for the attacks on the World Trade 

Center and the Pentagon to justice. Congress should exercise discretion. 

While Boumediene did not reach the issue of military commissions directly, it did raise a host of issues related to the process required to detain an individual the military believes to be a terrorist. 

Moreover, the basis for which the court determined that detainees in Guantanamo have a constitutional right raises questions as 

to whether the court’s rationale could extend to other places where 

the military holds detainees, like Iraq and Afghanistan. 
5 

I share Justice Scalia’s concern that, absent congressional action, 

the policy for handling enemy prisoners in this war will ultimately 

lie with the branch that knows the least about the national security concerns the subject entails. I believe these are matters best 

left to political branches to decide. 

So what policy matters are put into question by Boumediene that 

should not be left to the court to decide? Attorney General 

Mukasey’s recent speech on the subject highlights six critical areas 

that need congressional action. 

First and most important, Congress should make clear that a 

federal court may not order the government to bring enemy combatants into the United States. Even under the current system, we 

have released detainees that have resurfaced on the battlefield and 

engaged in armed conflict. 

I share Justice Scalia’s concern that, post-Boumediene, the number of enemy returned to combat will increase. And I remind my 

colleagues that we have had a number of people who were released 

from Guantanamo who showed up on the battlefield again, attempting to kill American soldiers. 

Second, it is imperative that the proceedings for these enemy 

combatants be conducted in a way that protects how our Nation 

gathers intelligence and what that intelligence is. 

Attorney General Mukasey cites a terrorism case he presided 

over when he sat on the federal bench where the government was 

required by law to hand over to the defense a list of unindicted coconspirators. This list found its way through the lawyers to Osama 

bin Laden in Khartoum. 

Third, Congress should make clear that habeas proceedings 

should not delay the military commission trials of detainees 

charged with war crimes. Fortunately, one federal judge has already ruled on this matter, deciding that the trial should go forward, but this question is still at issue. The victims of September 

11th should not have to wait any longer to see those who stand accused face trial. That is what he said. 

Fourth, Congress should re-affirm that, for the duration of the 

conflict, the United States may detain as enemy combatants those 

who have engaged in hostilities or purposefully supported al 

Qaeda, the Taliban, and associated organizations. Large majorities 

of this Congress support supplemental spending bills that pay for 

the war and allow for the continued fight against al Qaeda, yet 

there are judges who question whether there is still authorization 

to detain. We should put any doubt to rest. 

Fifth, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that 

common legal issues be decided by one judge in a coordinated fashion. It is simply absurd to have the rules of the game change from 

one detainee’s case to the next. 

Last, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. Simply 

put, detainees should not have two bites at the apple. Now that 

they will receive habeas review, there is no reason for the D.C. circuit to review status determinations also. 

At stake here is whether this Congress and this committee in 

particular will allow the slow creep of lawfare to replace warfare. 
6 

Our men and women in uniform are trained in armed conflict. The 

battlefield is not a place for a crime scene investigative unit. 

And I can recall, Mr. Chairman, when we had one of our hearings on the proposed Detainee Treatment Act and we asked one of 

our very experienced litigators, one of our lawyers, in-service lawyers who understood the Uniform Code of Military Justice (UCMJ), 

and a number of people were saying, ‘‘Let us apply the UCMJ to 

detainees on the battlefield.’’ 

And we asked that particular attorney whether that would mean 

that when a Marine squad saw a terrorist shoot at him on the battlefield in Afghanistan, he would then have to give him his Miranda rights, as he interrogated him at the Humvee. And the answer was, in that lawyer’s opinion, yes, he would have to do that, 

leading to the question of whether we were going to be able to assign lawyers to each squad of Marine combatants. 

So I think this is an issue that we should look at very clearly 

from the perspective of people on the battlefield. 

As the attorney general recently argued, military personnel 

should not be required to risk their lives to create the sort of arrest 

reports and chain-of-custody reports that are used under very different circumstances by ordinary law enforcement officers in the 

United States. Battlefields are not an environment where such reports can be generated without substantial risk to American lives. 

Finally, Mr. Chairman, it is the battlefield that this committee 

needs to keep in mind here. We are the Armed Services Committee. 

We protect members of the Armed Services and try to make sure 

we have policies that allow them to execute their very difficult mission with a modicum of safety. 

My greatest concern, in light of this recent Supreme Court decision, is its potential effect on operations in Iraq and Afghanistan. 

We detain thousands of detainees in Iraq and hundreds in Afghanistan. Detention is a fundamental component of warfare. It keeps 

combatants off the battlefield and provides actionable intelligence. 

We can’t hamper our warfighters by providing them with the 

perilous choice of releasing detainees or complying with process requirements of the criminal justice system that are impossible to 

comply with on the battlefield. 

In the past, I would have thought such a concern was remote, 

bordering on paranoia. However, as we meet today, detainees in Afghanistan have filed petitions for habeas relief in U.S. courts. 

As one editorialist recently pointed out, the Supreme Court rejected the concept that court jurisdiction is limited to sovereign 

American territory and could extend not just to captives at Guantanamo, but all detainees abroad. And I think this is simply untenable. 

So, Mr. Chairman, thank you for holding this very important 

hearing today. I look forward to the testimony of our witnesses. 

The CHAIRMAN. I thank the gentleman. 

We are extremely fortunate to have the witnesses we have on 

this panel. And we look forward to hearing from you. I hope I don’t 

mispronounce your name as I call on it, but let me try. 

Stephen Oleskey, did I get it? All right. Get the—— 

Mr. OLESKEY. Yes, you did, Mr. Chairman. Thank you. 
7 

The CHAIRMAN. Okay. With that, we will call on you first, so we 

hope you will summarize your testimony. We on the committee are 

governed, as you know, by the five-minute rule, and we will proceed. 

STATEMENT OF STEPHEN H. OLESKEY, PARTNER, WILMER 

CUTLER PICKERING HALE AND DORR LLP, COUNSEL FOR 

THE GUANTANAMO PRISONERS IN BOUMEDIENE V. BUSH 

Mr. OLESKEY. Thank you, Mr. Chairman, Ranking Member Hunter, members of the committee. 

I have been since July 2004 co-lead counsel in the case which the 

Supreme Court decided on June 12th, Boumediene against Bush. 

My clients, as the chairman mentioned, were arrested at the behest 

of the United States in Bosnia in the fall of 2001, despite the fact 

that the Bosnians had no evidence—— 

The CHAIRMAN. Could you get just a little closer to the microphone? 

Mr. OLESKEY [continuing]. Despite the fact that the Bosnians 

had no evidence to arrest them, were investigated thoroughly by 

the Bosnia system, with the cooperation of the United States, and 

then ordered released in January 2002. 

However, instead of being released, they were turned over again 

at the demand of the United States to our forces there and flown 

to Guantanamo, where they have been since January 20, 2002. So 

they are now completing six and a half years in Guantanamo without charge or a hearing. 

Our case was originally dismissed in January of 2002. Another 

parallel case was ordered to go forward. Both cases then went up 

through the appellate system. While that was happening, this Congress—the previous Congresses passed first the Detainee Treatment Act of 2005 and then the Military Commissions Act of 2006, 

both of which you have referred to in your opening remarks. 

Then, in 2006, the Supreme Court held in the Hamdan case that 

habeas had not been stripped or taken away by the Detainee Treatment Act and habeas could go forward. 

Thereafter, the Congress passed the Military Commissions Act, 

which dealt both with military commissions and with the status of 

habeas corpus for the detainees in Guantanamo who had been 

characterized as enemy combatants. And that law appeared to say 

on its face that there could be no habeas corpus rights to be pursued by men designated as enemy combatants through the military 

Combat Status Review Tribunal, or CSRT, a design which was established in 2004. 

Our clients and others then challenged that habeas-stripping 

provision both in the circuit court and in the court of the—and in 

the United States Supreme Court, resulting in the Boumediene decision of June 12th. 

That decision holds for the first time that Congress has unlawfully suspended the writ of habeas corpus provided in Article I, 

Clause 9 of the Constitution, because, in the circumstances existing 

in Guantanamo, the court found that habeas rights ran there and 

could be invoked by those prisoners, a decision that was foreshadowed in the Rasul and Hamdi decisions of 2004, also by the 

Supreme Court. 
8 

Now, the suspension clause states that the privilege of the writ 

of habeas corpus may not be suspended, except when in times of 

rebellion or invasion the public safety may require it. That is bedrock. It is in the body of the Constitution. It was so important to 

the Founders that they didn’t wait for a Bill of Rights. They put 

it as a limitation on the power of the Executive and of the Congress 

right in the body of the Constitution. 

The Supreme Court then found in Boumediene that prisoners 

could claim habeas corpus despite the fact that the Cuban government retains legal sovereignty over the United States’ base there 

because the United States has had total control and jurisdiction 

over that 45-mile enclave since the lease of 1903 under which we 

obtained the right in perpetuity to hold that base as a military facility for the United States. 

The Supreme Court also found that the prisoners’ alien or foreign 

status was not a part of their invoking habeas corpus in the context of Guantanamo, in view of the Framers’ intent in enshrining 

habeas corpus in the body of the Constitution and the Supreme 

Court’s history of construing some fundamental constitutional 

rights as applying outside the United States, depending on particular facts and circumstances, that is a history that goes back 

over 100 years. 

Since there was no congressional finding in these cases of rebellion or invasion, the Supreme Court concluded there was no lawful 

basis for Congress to suspend habeas corpus for the approximately 

275 men remaining in Guantanamo. 

Then the court examined whether the statutes that you enacted, 

particularly the Detainee Treatment Act and the habeas-stripping 

provision of the Military Commissions Act of 2006, together provide 

an adequate substitute or an acceptable remedy for habeas, which 

it found had been stripped. 

The court found that these congressional remedies were not adequate substitutes because the underlying process in Guantanamo, 

unlike a trial in federal court, a criminal trial or another adversarial proceeding, was fundamentally not adversarial. There was 

no evidence, no classified evidence made available to anyone there 

to defend himself. No one had lawyers. They had limited ability to 

call witnesses and offer documents. And the government evidence 

was presumed valid. 

The only review that Congress allowed of this was a limited review, an administrative review, essentially, a record review by the 

Court of Appeals in Washington, which could not make new factfinding, unless a federal habeas court, which could not go beyond 

the record from Guantanamo, which was this extremely non-adversarial record that resulted from a process created by the Defense 

Department in 2004. 

In effect, this Court of Appeals would be reviewing a baked-in 

record with many procedural deficiencies that the court found 

would not begin to provide anything approximating fair or due 

process. For example, there would be no ability to challenge the 

legal authorization for detention, which the Administration has always asserted is found in the Authorization for Use of Military 

Force resolution of Congress in September of 2001. 
9 

There is no authority in the district court to order conditional release of any prisoner found to be entitled to the grant of habeas 

corpus. A federal district court can order a conditional release. I 

say that release is conditional because that is the word the Supreme Court used. 

And what the court was saying was that, even if someone has ordered release, it is still up to the political branches—in this case, 

the Executive—to negotiate their return to the country from which 

they were taken or to some other country which is willing to take 

them. 

And as the committee may be aware, there are a number of men 

who the Defense Department itself has cleared, has said are not 

enemy combatants or are no longer enemy combatants, who are 

awaiting in Guantanamo for some country to be willing to take 

them. 

The United States has said properly that no one would be sent 

back at this time to a country where they will be tortured or mistreated, for example, the Chinese Uyghurs we are not willing to return to China for that reason. So they are actually being held, 

many of them, as cleared men, but with no place to go. 

So those are the deficiencies that the Supreme Court found in 

the existing process and why it found that the circuit court process 

for limited review that Congress enacted was not sufficient in view 

of the constitutional entitlement of these men to some fair process. 

It is correct that the Supreme Court left various details about 

how the habeas trials would be conducted to the federal district 

court in Washington, right down the street in the Prettyman 

Courthouse, but this result that experienced Article III federal 

judges, sitting in the trial court, will now do their jobs and conduct 

habeas trials is unremarkable and scarcely a justification, let alone 

one rising to a necessity, for additional congressional action with 

respect to habeas corpus at this time. 

Former Chief Judge Hogan is presiding over the bulk of those 

cases which are before him on remand from the Supreme Court in 

the short time since June 12th. He has had a number of hearings, 

has had briefings, and has begun to issue orders. 

The balance of the cases are before Judge Richard Leon, including my case. He has also held a number of hearings, is beginning 

to issue orders, and has stated publicly that he intends to have all 

the cases before him, involving approximately 25 prisoners, completely resolved and final orders issued by the end of calendar 

2008. 

Both judges are consulting closely, they have assured us, in 

meeting the Supreme Court’s mandate to move these cases expeditiously. These cases are heavily fact-intensive and, in my view, 

would be difficult for Congress to weigh in on with respect to habeas at this time because the facts and circumstances are so different among the varying cases. 

For example, as I mentioned, my clients were arrested not on a 

battlefield, but in a friendly country, Bosnia, where they were 

working, living with their families, and not with any criminal 

record or any indication that they would be terrorists. Other people 

were arrested in Africa, other places in the world far from Afghanistan or Iraq. 
10 

Moreover, the enactment of both the DTA and the MCA with respect to habeas has caused extensive delays already in resolving 

these cases, as the court of appeals here in Washington sought additional briefing and argument each time on the significance of 

these acts to the pending appeals. Therefore, the appeals took from 

early 2005 until the middle of 2007 to resolve at the Court of Appeals level and, obviously, until June of 2008 to resolve at the Supreme Court level. 

Given the recognition of Secretary Rice, Secretary Gates, many 

others in the Congress and the Government of the great damage 

done to U.S. prestige and reputation by our perceived failure to 

give the 275 men in Guantanamo any fair hearing, despite the passage of six and a half years, it would be my suggestion that Congress stay its hand at this time with regard to any further actions 

concerning habeas and let the experienced federal trial judges 

down the street at the Prettyman Courthouse do their job, which 

is at long last to review the specific individual facts concerning 

these 6—these remaining 275 men to determine which should be 

held and which should be ordered conditionally released. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Oleskey can be found in the Appendix on page 55.] 

The CHAIRMAN. Thank you so much. 

Now, you all correct me if I mispronounce your name. Katyal. 

Mr. KATYAL. Perfect. 

The CHAIRMAN. I got it? 

Mr. KATYAL. That is perfect. 

The CHAIRMAN. Okay, please. 

STATEMENT OF NEAL K. KATYAL, PAUL AND PATRICIA SAUNDERS PROFESSOR OF NATIONAL SECURITY LAW, GEORGETOWN UNIVERSITY LAW CENTER 

Mr. KATYAL. Thank you, Chairman Skelton, Representative Hunter, and members of the committee. 

The last time I was before your committee was in March of last 

year. And as I was preparing for today, I was reminded of your 

opening words, Chairman Skelton, at that hearing. You said, ‘‘Last 

year, when Congress passed the MCA, I argued that the most important task was to design a system that could withstand legal 

scrutiny. There are at least seven potential constitutional defects.’’ 

‘‘First, it seems clear to me and many others that the act may 

be unconstitutionally stripping the federal courts of jurisdiction 

over habeas cases.’’ 

Your opening statement, like the one you made today, went on 

to list a number of infirmities, including violations of the Geneva 

Conventions and equal protection, as ex post facto, confrontation, 

and exceptions clause problems under our Constitution. 

And you concluded, ‘‘Providing for expedited review by the Supreme Court of these seven issues continues to be important. If the 

justices find the Military Commission Act includes constitutional 

infirmities, it is likely that known terrorists could receive a get-outof-jail-free card or have their death sentences reversed.’’ 

Chairman Skelton, what you said back in 2007 looks prophetic 

now in 2008. We stand now with that very act invalidated on the 
11 

very grounds you mentioned: stripping habeas corpus, a part of 

Anglo-American jurisprudence since the Magna Carta of 1215. 

Even before 2007, during those hasty Military Commission Act 

debates of 2006, many warned the Administration that, if they 

rushed to implement their proposed legislation, they would accomplish very little because that legislation had constitutional infirmities and courts would strike it down. 

But the Administration’s defenders reassured Congress that the 

Constitution did not apply to Guantanamo and not to worry. That 

legal advice was always dubious, and the Supreme Court put an 

end to it. 

In the Boumediene decision last month, the court stated that political branches cannot switch the Constitution on and off as they 

please. Our basic charter cannot be contracted away like this, they 

said. 

And so here we are again, nearly seven years after the horrible 

9/11 attacks, with only half of a single trial completed at Guantanamo and the Military Commission Act already struck down in 

part by our highest court. 

Now some are proposing yet again another rushed proposal to respond to the new court decision. The proposals are legion. Some 

would create a national security court; others would centralize litigation in a few judges; and still others would try to overhaul the 

military commission process. 

I support many of these proposals. I think the military commissions created in 2006 are deficient and unlikely to survive judicial 

scrutiny. 

The act’s foundational presumption in 2006 was that the Constitution did not apply to Guantanamo and so the trials need not 

have even basic rights guaranteed by the Constitution, such as the 

right of a defendant not to have coerced testimony used against 

him. 

This system is going down, and it is right and proper for this 

body to put commissions on hold as soon as possible to develop appropriate, constitutionally balanced legislation. 

I am also a believer, to the chagrin of some, in a national security court to authorize a very limited preventative detention system 

for individuals who truly are unable to be tried in military or civilian court. I have been studying such a court for well over a year 

now, and the one thing I can say with certainty is that it is a very 

difficult undertaking. 

Who will the judges be? Who will the defense lawyers be, if any? 

How long will the detention periods last? Will there be periodic review? What evidence is going to come in? Who will be subject to 

the court’s jurisdiction? Will there be appeals? 

There are hundreds of different models from which to choose. 

And yet each of them will differ from our traditional system of justice. 

Americans take pride in our criminal justice system. And our 

system works best when we convict terrorists in it. We showcase 

the rule of law and contrast it with the despicable world of the 

enemy, who lacks respect for our way of life and our values. 

If we are to modify this system, we should do so cautiously with 

appreciation for the risks involved. That is why, moving forward, 
12 

the most important line in Boumediene belonged not to the majority, but to the dissent by Chief Justice John Roberts. 

He said, ‘‘After the court in 2004 gave Guantanamo detainees habeas corpus rights, Congress responded 18 months later and cannot 

be faulted for taking that time to consider how best to accommodate both the detainees’ interests and the need to keep the American people safe,’’ cannot be faulted for taking that time. 

The very worst time, it occurs to me, to contemplate such 

changes is a few months before an election, particularly when both 

Presidential candidates have announced that they will close Guantanamo. A rush to judgment runs the risk of creating slogans, not 

sustainability. That is exactly what happened in 2006 with the 

Military Commission Act. 

We need a better plan than simply looking tough if we want to 

demonstrate to our courts and to the world that we are serious 

about terrorism. This country desperately needs and deserves a serious inquiry, perhaps catalyzed by a bipartisan national commission to examine whether a national security court is necessary and, 

if so, what it should look like. 

We have spent far too many years with intemperate solutions 

that have gotten us nowhere. Many warned the Administration 

that they needed a plan for the day after the Supreme Court’s 

highly predictable decision to restore basic habeas corpus rights to 

detainees, but the Administration stubbornly clung to notions of 

Executive power that the Supreme Court in Boumediene eviscerated. 

If we rush into legislation today, we will need yet another plan 

for the next predictable day after. 

Thank you. 

[The prepared statement of Mr. Katyal can be found in the Appendix on page 74.] 

The CHAIRMAN. I thank the gentleman. 

I think I can pronounce this next one. Mr. Klingler. Did I get it? 

Okay. 

STATEMENT OF RICHARD KLINGLER, PARTNER, SIDLEY 

AUSTIN LLP 

Mr. KLINGLER. Mr. Chairman, Ranking Member Hunter, members of the committee, I appreciate the—— 

The CHAIRMAN. Be sure and—you are going to have to get real 

close to the microphone so that we will hear you. 

Mr. KLINGLER. Sorry about that. Can you hear me now? 

The CHAIRMAN. Yes, sir. 

Mr. KLINGLER. I appreciate the opportunity to address you today 

in my personal capacity regarding the important issues raised by 

the U.S. Supreme Court’s decision in Boumediene v. Bush. I would 

like to emphasize a few points canvassed at greater length in my 

written testimony. 

Boumediene presents very significant issues that only legislation 

can address effectively. 

The CHAIRMAN. A little closer, please. Just speak right into it. 

Mr. KLINGLER. Better? 

The CHAIRMAN. Yes, stay close to it. 

Mr. KLINGLER. I will try to. Thank you. 
13 

Federal courts have traditionally deferred very considerably to 

the executive branch and to Congress on military matters. Detaining persons the military has found to be enemy combatants is a 

central and legitimate component of the war on terrorists. 

As a unanimous Supreme Court indicated in a separate case just 

last month, the Constitution requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army 

must be scrupulous not to intervene in judicial matters. 

Boumediene abandoned that tradition of deference. It opens the 

door to an unprecedented era of judicial policymaking in military 

matters. At the same time, the decision provided almost no guidance to lower courts regarding the processes to be used in the 

newly required proceedings, the detainees’ substantive rights, or 

the protections that must be afforded to military and security interests. 

The resulting problem is straightforward. In their new, undefined role overseeing military functions, civilian judges are likely to 

draw too directly on processes designed to protect U.S. citizens in 

traditional criminal proceedings. They are unlikely to appreciate 

how their decisions affect national security policy or the conduct of 

military operations. 

The principal problem created by the decision is not, I believe, 

with the military commission trials. Assertions of equal protection 

in international law difficulties are considerably overstated on the 

merits and have already been presented to federal courts and will 

be presented to them again upon review of any convictions. 

Some portray the issue as simply ensuring that the military 

holds people at Guantanamo who actually threaten Americans. The 

actual issue is far broader and more complex. The Boumediene decision is not limited by its terms to Guantanamo and has implications far beyond, including for Iraq and Afghanistan. 

The resulting judicial proceedings will allow judges to review the 

military’s evidence supporting detention, but also to decide when 

and how the military is empowered to detain enemy combatants, 

as judges find and define them. They create open-ended litigation 

regarding counterterrorist capabilities. 

Particular issues extend to how to resolve overlapping judicial 

processes, how to protect sensitive information, and how to ensure 

that military resources aren’t diverted from their core tasks. And 

in the end, judges may make decisions for reasons having nothing 

to do with the evidence of threat or may make mistakes leading to 

the release of persons who do, in fact, seek to kill American soldiers, civilians, and their allies. 

In these circumstances, Congress should fulfill the political 

branch’s constitutional role. Legislation would create legal certainty and operational flexibility. 

The executive branch, through the attorney general, has requested legislation to protect military and security interests, and 

the judiciary, through the chief judge of the district court most burdened by the uncertainties of litigation surrounding habeas petitions, has very unusually welcomed guidance from Congress and 

indicated that ‘‘such guidance sooner rather than later would certainly be most helpful.’’ 
14 

More broadly, Congress has the opportunity to re-affirm the principles underlying the military’s actions against terrorists. The nub 

of many of the judicial disputes is simply that some members of the 

judiciary and the bar do not believe that we are truly or appropriately at war against those who would use terror against our soldiers and this Nation, or they believe that time is—the threats we 

face to those we can manage through criminal-like processes. 

Assuming that Congress continues to support the military’s 

counterterrorism efforts, re-affirming and clarifying the bounds of 

the Authorization for Use of Military Force (AUMF) would update 

that authorization in light of our increased knowledge of the foes 

we face. 

It would remind the court to the commitment of two coordinate 

branches to using all appropriate means to confront pressing 

threats to our national security. Doing so may even return the 

courts to a centuries-old tradition of deferring to the political 

branches in matters of military and foreign affairs. 

Thank you. 

[The prepared statement of Mr. Klingler can be found in the Appendix on page 91.] 

The CHAIRMAN. Colonel Davis. 

STATEMENT OF COL. MORRIS D. DAVIS, USAF, FORMER CHIEF 

PROSECUTOR, OFFICE OF MILITARY COMMISSIONS (2005–2007) 

Colonel DAVIS. Thank you. 

Chairman Skelton, Mr. Hunter, members of the committee, 

thank you for allowing me to participate in the hearing today. 

Much of what I have to say this morning is based upon my twoplus years of experience as the chief prosecutor at Guantanamo 

Bay, Cuba. However, I am here speaking in my personal capacity, 

not on behalf of the Department of Defense (DOD) or the Department of the Air Force. And I think you would have figured that out 

in any event, but I wanted to make that clear. 

The CHAIRMAN. You are going to have to get closer, too, just like 

everyone. 

Colonel DAVIS. Yes, sir. 

For more than two years, I spent time inside the camp. I have 

sat down with some of the detainees. I have reviewed the evidence, 

both classified and unclassified. I led the prosecution for more than 

two years. In fact, the cases that are being tried today, the 

Hamdan case, I personally authorized and approved those charges. 

So I hope my experience and my observations will contribute to 

finding a credible way forward on how we deal with this important 

issue that in many ways defines who we are. 

I was privileged to serve for a quarter century as an Air Force 

judge advocate and to participate in the military justice system at 

almost every level and in a variety of different capacities. For most 

of my career, the military justice system operated in relative obscurity with little attention from the media, the public, or even Congress. 

Those of us who worked inside the military justice system always 

knew what a good system it was, but until the post-9/11 era, when 

the military justice system gained some notoriety as a basis of com-
15 

parison for the processes we would use to prosecute detainees, it 

was largely unknown and under-appreciated. 

I was pleased that during the debate over the Military Commissions Act people from across the political and ideological spectrum 

referred to military justice as the gold standard of justice. Some of 

us knew that all along, but it was nice to see it recognized on a 

broad scale. 

The processes currently in place to deal with detainees, particularly those at Guantanamo Bay, Cuba, are being sold to the public 

as part of the ongoing war on terrorism. They are included in Title 

10 of the United States Code, the section on Air Force, not Title 

18. And they are supposedly wrapped under the military justice 

banner. 

In my view, what we are doing at Guantanamo Bay is neither 

military nor justice, and if this reflects what passes for military 

justice in 2008, I am glad my uniform is hanging in a closet. This 

isn’t the military justice system I respected and admired for nearly 

25 years. 

Over the past several months, I have written a number of articles, and given talks, and done interviews, and shared my observations with special interest groups, nongovernmental organizations 

(NGOs), think tanks, and some members of this body. 

The question of how we move forward to ensure the treatment 

of detainees and to begin to restore our reputation in the eyes of 

the world is an important issue. But with soaring gas prices, plunging home values, rising foreclosures, a looming record deficit, and 

wars in Iraq and Afghanistan, and all of that taking place within 

100 days of an election, this probably isn’t the number one issue 

on a lot of people’s lists. 

I understand that. As someone about to be unemployed and with 

an interest-only adjustable-rate mortgage, it is probably not number one on my list either, but it should be on everybody’s top 10 

list. 

It is an issue that warrants thoughtful consideration now. And 

we shouldn’t wait until after November 4th or January 20th to 

begin having this discussion. 

Now, I think the most beneficial use of our time today will be in 

answering your questions, so I am going to keep my comments relatively brief. However, there are a few points to keep in mind in 

discussing detainees at Guantanamo Bay. 

One thing I found in talking to different groups is apparently I 

am in the middle of the road. I tend to get hit by folks on either 

side. I tend to aggravate everybody because I think my views are 

neither left nor right. 

I think, first, it is important to recognize that there is an internationally recognized right during a period of armed conflict to indefinitely detain the enemy to keep him from inflicting harm on us 

and on others. To the best of my knowledge, there has never been 

and there never will be a date certain that we know when an 

armed conflict is going to end. 

Now, that is not to discount in any way the $64,000 question of 

how we assess who is or is not the enemy, but some seem to argue 

and believe that unless we bring criminal charges or release a de-
16 

tainee within some prescribed period of time, that we have committed a foul. And that is just not the case. 

Second, the intelligence community wants to know what is going 

to happen in the future in order to prevent the next 9/11. The law 

enforcement community wants to know what happened in the past 

to punish those responsible for the last 9/11. 

As you can see, the perspectives are in opposite directions, one 

being prospective and one being retrospective. Add to that that one 

agency operates in a very rigid and very visible environment where 

the rules are well-known, things like Miranda rights, speedy trial, 

chain of custody, search warrants, and such. 

The other operates in a very fluid and invisible environment, 

where the rules are generally secret. When you try to overlay the 

two communities, you get a lot of square peg and round hole problems. And in a nutshell, that is Guantanamo Bay, which began as 

an intelligence operation and largely is still to this day an intelligence operation, with any thought of some law enforcement or 

criminal prosecution process taking a back seat at best. 

Now, it is wonderful when those two conflicting communities 

overlap and dovetail, but that is seldom the case, and that is the 

real conundrum with Guantanamo Bay. 

Lloyd Cutler was a giant in the legal community, having served 

as White House counsel twice and as co-founder of one of the most 

prestigious law firms in the world. In 1942, when he was just beginning his career, he served as a prosecutor in the trial of the 

eight Nazi saboteurs, which took place not too far from where we 

are today, and which led to the Supreme Court decision in Ex Parte 

Kiernan. 

In December 2001, Mr. Cutler wrote an article in the Wall Street 

Journal drawing on his experience from more than 60 years earlier. He said, ‘‘How we prosecute the members of al Qaeda and 

their supporters will say as much about the American legal system 

as it does about al Qaeda.’’ 

Now, Mr. Cutler passed away in 2005, and I doubt if he was here 

today he would be pleased with what the past 80 months have said 

about the American legal system. We are better than that. 

Military commissions apply to only some of the detainees, certainly not the entirety. And my experience is pretty much limited 

to the military commission cases. 

Judge James Robertson, in his decision on July 18th denying 

Salim Hamdan’s request for an injunction in the military commissions, said, ‘‘The eyes of the world are on Guantanamo Bay. Justice 

must be done there, and it must be seen to be done there fairly and 

impartially.’’ 

Now, I believe the current system may do justice in some cases— 

perhaps in many cases—but we need a system that is capable of 

doing justice in all cases. 

There are, in my view, four main problems with the current military justice process. And I would stop to say that I believe that the 

Military Commissions Act was a commendable piece of legislation. 

And I still believe that. It was the implementation by political appointees after it had been passed by Congress, signed by the President where it was hijacked along the way. 
17 

The four areas are, one, if the military commission is really a 

military commission, it should be under military control and free 

of political interference. Now, proponents argue that a commission 

is really, for all practical purposes, just like a court martial. 

Well, for a variety of reasons, the analogy to the court martial 

system does not fit. And I will give you one example. Since 9/11, 

the Army, the Navy, the Air Force, and the Marine Corps have conducted in excess of 50,000 court martials. To the best of my knowledge, each of those 50,000 court martials was convened by a military officer, not by a political appointee. 

So if the military commissions are just like a court martial, why 

are these the only Title 10 criminal proceedings convened by a political appointee who had never worn a military uniform a day in 

her life? 

Second, in the court martial system, the convening authority and 

his or her senior attorney, what we refer to as the staff judge advocate, has some oversight authority over the prosecutors. And it is 

that level of command involvement in the military justice system 

that is often cited as the greatest weakness in the court martial 

process. 

All of the international—all the comparable international tribunals that are sanctioned by the United Nations (U.N.) guarantee 

the independence of the prosecutors. Trying to explain what a convening authority is, is a difficult proposition, particularly to an 

international audience who is accustomed to that international 

model where the prosecutors are independent. 

Now, I thought language that Senator Lindsey Graham added to 

the Military Commissions Act at my request ensured that no one 

could try to influence the exercise of professional judgment by me 

or the prosecutors. And it aligned us more closely with the international model that would be more understandable to the international community, but it hadn’t stopped some from continuing to 

try to influence the process. 

The military judge in the Hamdan case is Navy Captain Keith 

Allred. And he ruled that the legal adviser to the convening authority, Brigadier General Tom Hartmann, broke the law by engaging 

in unlawful influence over me and the prosecution in the Hamdan 

case. And he disqualified General Hartmann from any further involvement in the Hamdan case. 

Unlawful influence has been called the moral enemy of military 

justice, so many waited to see how the Department of Defense 

would respond to a finding that the legal adviser broke the law. 

What has happened since that finding that he broke the law has 

been nine more detainees have been charged. The 9/11 cases have 

been referred to trial. And General Hartmann is still in place and 

pressing ahead at full speed. 

Third, we have to make a commitment to open and transparent 

trials. Some closed sessions are inevitable, but that should be the 

exception and not the rule. I can tell you from firsthand experience 

that the evidence declassification process is time-consuming and is 

frustrating, but it is necessary if we are going to have open trials. 

You can have speed, but if you have speed it comes at the expense of transparency. And as tainted as the process has become 

in the eyes of the world, I believe it is imperative that we take the 
18 

time and the effort to make these trials as open and transparent 

as possible. 

In fact, I had often joked in the past that we should have these 

proceedings on Court TV, and I still think that might be a good 

idea. 

Finally, we must reject the use of evidence obtained by unduly 

coercive techniques such as waterboarding. Those techniques may 

produce useful intelligence, but they do not produce reliable evidence suitable for use in an American court of justice. If we condone it now, we forfeit the right to condemn it later when the shoe 

is on the other foot. 

Information obtained by convincing a man to say what the interrogator wants to hear or possibly die, which is really what 

waterboarding is, or the same as putting a gun to someone’s head 

and saying, ‘‘I am going to count to 10 and pull the trigger if you 

don’t talk,’’ is what the person on the other end believes. 

It doesn’t matter if the gun is empty and there is no possibility 

of death or if the waterboarder is not going to drown the individual. The person on the other end doesn’t know that, and he believes his choices are talk or possibly die. That practice has no 

place in an American court of justice, and it should be banned. 

In a speech delivered in April at West Point, Secretary Gates 

said, ‘‘Listen to me very carefully. If as an officer you don’t tell 

blunt truths, then you have done yourself and the institution a disservice.’’ 

Later, in June at a speech he gave at Langley Air Force Base, 

he said, ‘‘None of the services easily accept honest criticism or scrutiny that expose institutional shortcomings. This is something I believe must change across the military.’’ 

Secretary Gates went on to say, ‘‘When you see failures or problems, throw a flag. Bring them to the attention of people who can 

do something about it.’’ 

Mr. Chairman, members of the committee, I have thrown the flag 

and I have told blunt truth. As a result, my service has been characterized as dishonorable. I was denied a medal for my service as 

chief prosecutor. And I find that the truth not only sets you free; 

it also makes you largely unemployable. 

And that is fine. To me, it would be a disservice if I would put 

my head down, pressed ahead, and pretended everything was fine 

when it was not, and I have no regrets about doing what I did. 

Thank you for allowing me to be here today. 

[The prepared statement of Colonel Davis can be found in the 

Appendix on page 102.] 

The CHAIRMAN. We thank you for your testimony and for each 

of you and your excellent words of wisdom and advice for us. 

Colonel Davis, it is interesting to note your reference to the 1942 

case. Of personal interest, there was a World War I soldier who 

stayed in the Army Reserve as a Judge Advocate General (JAG) officer by the name of Colonel Carl Ristine from my home town of 

Lexington, Missouri, and was quite a well-known lawyer in western 

Missouri. 

When the Second World War came along, he returned to active 

duty and was the lawyer for one of the two—I think his name was 
19 

Dasch—who was not given the death penalty from the 1942 commission. 

My recollection is that six of the eight German saboteurs-to-be 

were given the death penalty, and that was carried out immediately. Two were not, as my recollection. And Colonel Carl Ristine 

represented the one. 

And a footnote: He was my father’s mentor when my father graduated from law school. So it is really interesting that today in your 

testimony you mentioned it. 

Let me ask one question before I ask Mr. Hunter. 

Mr. Oleskey, could you address the suggested points that the attorney general made for or recommended for congressional action 

in response to the Boumediene case? 

Would you respond as to how—and I don’t know if you have the 

list of them there in front of you—would you respond as to your 

thoughts on each of them—I think there are six of them—please? 

Mr. OLESKEY. I don’t have a list in front of me, Mr. Chairman, 

but I am generally familiar with the attorney general’s suggestions. 

The CHAIRMAN. Why don’t you go ahead and tell us your 

thoughts? 

Mr. OLESKEY. Absolutely. Essentially what he has suggested is 

that Congress step in and tell the federal courts how to conduct the 

habeas proceedings to decide what the burden of proof should be, 

to decide how to deal with classified evidence, and a lot of other 

issues that trial judges who hear habeas cases every day, coming 

out of the federal and state courts, normally do in reviewing and 

deciding habeas cases. 

As I stated in my remarks, the problem with that one-size-fitsall approach is that no one sitting in Congress or in any advisory 

capacity over a habeas case is ever going to know enough about the 

facts that are at issue in a particular case because they are so 

varying and different and raise so many issues, to be able to devise 

a protocol that will work. 

So my view is that the federal courts have extensive experience 

dealing with these issues that are now presented by this ruling. It 

is only the ruling that is unusual, not the issues that have to be 

explored, which is, what is the basis to hold somebody indefinitely? 

What are their defenses? What are the facts that bear on that decision to hold? And what are the facts that bear on whether the person should be released? 

These are, if not garden variety issues, very common issues that 

federal habeas courts in every jurisdiction, represented by every 

one of you in the country, deal with, if not every day, then every 

week. 

So what happened with the MCA and the DTA, as we have all 

been saying in our various ways, were that some clarity was 

brought to some aspects of these military commission and habeas 

proceedings, but fundamentally we ended up with years of appeals 

that were foretold by many of us and many of you, resulting in 

delays from 2002, really, when the first case was brought, until 

2008, so six and a half years of appeals just to get to the fundamental issue in each individual case of whether someone should be 

held further or should be released. 
20 

Legislation, in my view, well-intentioned as it may be, is not 

going to clarify those circumstances. It is going to complexify and 

complicate those circumstances, delay the cases, lead to general appeals that are likely again to hold up all the cases. 

And, in contrast, Judge Leon and Judge Hogan are now moving 

these cases forward rapidly on schedules which they are very easily 

able to handle and establish. And the cases are going to be tried, 

it appears, in the relatively near future, certainly in my case is in 

front of Judge Leon. 

So I understand why the attorney general and the Administration say that, Mr. Chairman. But I don’t think that the result will 

be anything that any of us will be proud of, as Mr. Davis and Mr. 

Katyal were saying about what has happened in the military commission area. 

The CHAIRMAN. Thank you. I should have read the attorney general’s quick summary before asking you that question, Mr. Oleskey, 

but let me do that very quickly and then I will ask for brief comments from each of the other three panel members. 

One, prohibit the federal court from ordering the government to 

bring enemy combatants into the United States. Two, adopt procedural safeguards to protect the sources and methods of intelligencegathering. Three, to ensure that habeas proceedings do not delay 

military commission trials of detainees charged with war crimes. 

Four, acknowledge explicitly that this Nation remains engaged in 

armed conflict with al Qaeda and the Taliban and associated organizations and reaffirm that, for the duration of the conflict against 

these groups, we may—the United States may detain enemy combatants. 

Fifth and last, establish the sensible procedures for habeas challenges going forward by ensuring that the one district court has exclusive jurisdiction over the proceedings. 

And, excuse me, there is a sixth one. Limit the ability of detainees to pursue other forms of litigation. 

So that is—those are the six recommendations made by the attorney general. Let me ask you if you have comments or thoughts 

on them. We will go right down the line. 

Mr. OLESKEY. Let me just comment specifically, Mr. Chairman, 

on those six points then. 

The CHAIRMAN. Yes. 

Mr. OLESKEY. Release in the United States—the Supreme Court 

was very clear, the law is clear that a habeas judge can’t release 

anywhere. He can order a conditional release in this case or she 

can order a conditional release, subject to the decision by the executive branch about how to return and where to return the particular prisoner. So I think that is not a real issue, as I see it. 

In terms of classified evidence, Colonel Davis has referred to how 

the military commissions handle that. There is a federal statute 

that the Congress enacted, the Classified Information Procedures 

Act (CIPA) statute, that provides procedures for that. That has 

been done in every terrorist criminal trial I can think of. I don’t 

think more legislation is needed on that. 

The ranking member commented on delaying the military commissions as not being in anybody’s interest. I think we all agree 

with that. I can’t see how further legislation at this time with cases 
21 

going forward would not delay those cases and result in appeals. 

Others may differ. 

The President’s right to detain enemy combatants is something 

spelled out in the Authorization for Use of Military Force resolution of the Congress on September 18, 2001. That is in the process 

of being worked out. As to what it means as to each detainee on 

a case-by-case basis, that is what has to happen. 

Each detainee has a different story, a different set of facts, and 

the government’s right to detain them further will turn on where 

they fit in the scheme that you all outlined in general in that resolution. I don’t believe that that needs further clarification at this 

time. 

Consolidation of cases, the Supreme Court said they should all 

be heard essentially in one court. They are all being heard in the 

district court right down the street, as I said, and they are all 

being consolidated for preliminary purposes before two judges who 

are ruling on all the general and common issues that are likely to 

arise. 

And then, as to multiple avenues for litigation, you all decided 

in 2005 and 2006 to allow a process for review of the Combatant 

Status Review Tribunals (CSRT). Most of us went forward and filed 

both habeas actions, which were doubtful until the Supreme Court 

ruled in June, and DTA cases. Most of us will probably pursue habeas cases for the reasons I stated in my opening remarks. 

There is no showing that anyone has abused the second avenue, 

the DTA avenue. There are lots of statutes that allow more than 

one claim and sometimes in more than one court. This is more a 

theoretical concern right now than a real concern, as I see it. 

The CHAIRMAN. Thank you. 

Mr. Katyal, your comments? 

Mr. KATYAL. I support the idea of legislation in general. Our 

Founders in Article I, Section 8 gave this body, the Congress, the 

prerogative over legislation in this area. 

And I do think legislation is inevitable at some point, for reasons 

that I think Representative Hunter illustrated and also things that 

Justice Jackson said earlier in his famous Youngstown opinion, 

that legislation will put the program on more stable footing and 

produce a program that is more sustainable in courts and in the 

world’s community. 

However, having said that, this does not seem right now to be 

the appropriate time for legislation for a couple of reasons. One is, 

we don’t have any experience yet with how the federal courts are 

going to handle this. 

I think we should let the system play out a little bit, as Mr. 

Oleskey said, see how the federal courts are dealing with this. 

There is a system in place by very experienced judges. There isn’t 

some overwhelming need right now to act. And then this body can 

be informed by that legislative—by that judicial experience. 

In addition, I am very worried about a rush to judgment in this 

area. We did that in 2006. Some people warned Congress that, if 

you do so, if the program is not going to be sustainable, it is going 

to be struck down, that is exactly what happened. And so I think, 

before acting again, we need to do this very carefully, with all the 

relevant information. 
22 

Let me speak to one aspect of Attorney General Mukasey’s comments, his third one, about clarifying the writ of habeas corpus 

should not delay military commission trials. I think that is a very 

dangerous idea. 

These military commissions are unprecedented. We have never 

had trials like this before in America. And I think anyone who listened to Colonel Davis’ remarks a moment ago will understand just 

how different these trials are. 

The worst time to review the legality of these trials is after they 

have taken place. There are a lot of constitutional problems with 

the military commissions going on. 

And if, as I suspect, courts will invalidate that system down the 

road, you do run the prospect, as Chairman Skelton said last year, 

of terrorists going free or possibly having to be re-tried. That is a 

terrible way of meting out justice. 

Instead, we should do what Representative Skelton proposed before, which is expedite review over the military commission process. Let us make sure that system is legal, as its defenders say it 

is. If it is legal, let us have the trials. Let us have them go forward. 

If it is not, then let us have a new system come in and take place. 

I am very sympathetic to what Ranking Member Hunter said a 

moment ago, that the victims of 9/11 should not have to wait any 

longer for trials. Let us have real trials. Let us make sure they are 

on a stable footing and then have them, instead of have them be 

invalidated years after the fact. 

The CHAIRMAN. Thank you. 

Mr. Klingler was next on the list, and then Colonel. 

Go ahead, Mr. Klingler. 

Mr. KLINGLER. Thank you. 

If I could just address your question by picking up some of the 

comments that have been made, the notion that there are only garden-variety issues before the habeas courts I think is just a fantasy. The notion that there won’t be years of appeals I think has 

no basis at all. 

The chief judge of the district has welcomed quick congressional 

guidance. Judge Hogan isn’t processing cases; what Judge Hogan 

has done is request briefing, very extensive briefing from the government and from detainees’ lawyers, on a whole range of open 

issues. 

What types of discovery must there be? How much classified and 

intelligence information does the government have to offer up? 

What standard? Is it clear and convincing? Is it some traditional 

standard regarding the government’s showing that is required? 

What type of presumption, if any, does the government get? 

What kind of hearsay can be offered? What kind of witnesses can 

be pulled forth? Do they get to be called from Iraq and Afghanistan? Can the detainees personally participate? Are they going to 

be able to call other detainees as witnesses? 

All these are open, common issues that are being briefed right 

now. It is not as though the cases are being presented in the initial 

form. 

As to some of the particular issues, I mean, I have covered those 

in some of the written testimony. I would just address two briefly. 
23 

The release in the United States point, I was initially somewhat 

less sympathetic to that point than to the others of the attorney 

general’s. And then I found out that, in fact, some of the detainees’—one of the detainee’s lawyers has, in fact, requested release 

in the United States, in the case of Parhat, was my understanding. 

As to the timing of the military commission trials versus habeas 

proceedings, I think the notion of final resolution, either through 

legislation or through court processes of the lawfulness of the military commission process, before we have even seen how they perform, before we have seen how the judges and how the appeal process works, that is going to be a tremendous range of delay. 

Legislation would take time to finally resolve any differences. 

And certainly the course that Professor Katyal would have of going 

into federal court and habeas proceedings to disrupt and delay the 

military commission trials is one that would just initiate a longstanding judicial process. 

And I think the judge who heard those arguments already that 

the professor has put forth didn’t reject them on their merits, but 

appropriately abstained, pending the operation of the military trial 

process. 

Thank you. 

The CHAIRMAN. Thank you very much. 

Colonel. 

Colonel DAVIS. I guess two points. One is—my personal opinion 

is I think the Boumediene decision was wrongly decided. Of course, 

you know, it is the court’s opinion that counts and not my own. My 

personal opinion is a foreign terrorist whose only connection to the 

Constitution is destroying it has no constitutional rights. The court 

disagreed, and it is their opinion that counts. 

So I disagree with the rationale, but if the result is that it gets 

folks to pay attention to the issue, then I can live with the rationale, if it gets a good result. 

My read of the Boumediene decision is what the court was—I 

think the court was very deferential to the executive branch. If you 

recall initially when Boumediene was filed, the court refused to 

hear it. Then, Colonel Steve Abraham came forward, who had sat 

on some of the CSRT proceedings and identified some defects, 

where in some cases the evidence was flimsy, and others, if the results wasn’t what the leadership wanted, they just re-did it until 

they got the right result. 

And then, amazingly, the only time in my lifetime the court reconsidered and agreed to hear the Boumediene case, which to me— 

and then the decision itself—is an expression of a lack of confidence in the executive branch to do it right, that folks have a 

right to some meaningful review before they are locked up for in 

excess of 80 months. 

And I think the attorney general’s comments were somewhat disingenuous, to kind of throw down the gauntlet and say Congress 

has got to fix this in the next couple of months, when the Administration has had 80 months since the President signed the order in 

November of 2001 to get this right. And they haven’t gotten it 

right. 

It was frustrating over a year ago, when the court granted a review in Boumediene—about that same time, we had two cases 
24 

down at Guantanamo (Gitmo), Qatar and Hamdan, where the 

judges in those cases dismissed charges for lack of jurisdiction because there was a disconnect in the wording—the jurisdictional 

language of the Military Commissions Act said we have jurisdiction 

over unlawful enemy combatants. 

The regulation for the CSRT process requires that tribunal to 

make a finding the individual is an enemy combatant, but not an 

unlawful enemy combatant. So we had a disconnect in the language. 

There were a number of us that proposed, since we had two problems—you had Boumediene, which was being heard by the Supreme Court. We had us thrown out of court out of the military 

commissions because of the defect in the jurisdictional language. 

Why not fix the CSRTs and do them right, which hopefully would 

allay the concerns of the Supreme Court and also fix the jurisdictional problem? 

But as tended to be the case quite often, there were a few people 

that—what I have described many times. I think it was a combination of arrogance and ignorance, that they knew the right way to 

do it and they didn’t need any assistance with doing it right, so 

rather than fix the CSRTs, here we are, more than a year later, 

you know, with this mess, and the attorney general suggesting that 

you have got to fix it the next couple of months. And I think that 

is wrong. 

The CHAIRMAN. Colonel, thank you. 

Mr. Hunter. 

Mr. HUNTER. Thank you, Mr. Chairman, again. And, gentlemen, 

thank you for your testimony. 

You know, again, I am looking at this bundle of rights that we 

went over, Senate and the House, when we put together the Detainee Treatment Act and the Military Commission Act, right to 

counsel, presumption of innocence, proof beyond a reasonable 

doubt, opportunity to obtain witnesses and other evidence, right to 

discovery, exculpatory evidence provided to defense counsel, statements obtained through torture are excluded. 

The classified evidence, I remember the exercise we went 

through, the difficulty of making sure that you maintain the secrecy of evidence, which nonetheless the accused has a right to confront, and we finally went through this exercise of redaction that 

would be utilized to try to make sure that they were given the fairest shot possible at being able to confront the evidence that was 

used against them. 

That went through a lot of iterations and a lot of analysis by 

counsel in the House and the Senate as we put this thing together. 

I am looking at the statements obtained through coercion are only 

admissible if the military judge rules that the statement is reliable 

and probative. 

Because most of these people come, while some of them—not all 

of them come from the battlefield situation, most of them do—the 

situation in which many of these statements are made is inherently 

coercive. And we had a—we obviously had to work our way through 

that. 

Certified impartial judge, we went to the—the question we were 

concerned about as to whether a—if you had military officers on 
25 

the tribunal, whether you would have a vote for guilty by a junior 

officer on the basis that his superiors were watching him and were 

on the body with him. So we provided for the secret ballot. We did 

things that went far beyond what I saw as a standard of Nuremberg, Rwanda, and other councils. 

So my first question would be is, have you looked at this bundle 

of rights that we gave to the accused in the MCA? And what additional rights would you give to them? 

Mr. KATYAL. Thank you very much, Ranking Member Hunter. 

I have looked at them. And they are the same rights largely as 

what the Administration said the last military commission system 

had in 2006. When I argued the Hamdan case before the Supreme 

Court, the solicitor general’s brief listed the very rights you said, 

the right to counsel, presumption of innocence, opportunity to get 

evidence, right to discovery, the use of torture being excluded, the 

impartial judge, and so on, the provision of a defense counsel, and 

so on. 

That was all at page two of their brief and what the solicitor general opened his argument to the Supreme Court with. 

It wasn’t enough. And it wasn’t enough for one simple reason: It 

is not about the rights on paper. It is about, rather, what the system—its ultimate backdrop is. 

In both 2006 and now, there has been assumption that the Constitution does not protect the detainees at Guantanamo Bay and, 

because of that, these rights, while there on paper, wind up not 

being very much in practice. 

And that is what I think Colonel Davis was getting at when he 

said that the military justice system that he knows is the gold 

standard of justice and what is happening at Guantanamo Bay is 

neither military nor justice. 

I mean, this is a remarkable thing. We have been adversaries for 

two years on the very same case, the chief prosecutor and one of 

the defense attorneys, and yet I think you are hearing some agreement from the people who have experience in the system in telling 

you that the rights on paper aren’t the rights that translate in 

practice. 

Mr. HUNTER. Yes, but, counsel, what we have the power to do 

here is to write the law with the expectation it is going to be followed. Now, obviously, if those rights are not allowed, then that is 

reversible error and is something that can be corrected. 

But the point is—my question to you is, when we put this thing 

together, we looked at terrorist tribunals, and we looked at Nuremberg, and we looked at Rwanda, and we looked at these other tribunals. And we gave a larger package of rights, it appears to me— 

for example, in Nuremberg, I believe you only had one layer of appeal. Here you have got three layers of appeal. 

We gave a larger package of rights than these previous terrorist 

councils. So my question to you is, in what we have laid out in the 

law—because that is what we are dealing with. You have got a 

trial going forward right now and you have got 20—as I understand—some 20 commissions gearing up to go, they are going to go 

with what I just laid out and what you just acknowledged are, in 

fact, this bundle of rights. 
26 

So my question to you is, do you think that additional rights— 

do you think that these are inadequate and there are additional 

rights that should be in the commissions law? 

Mr. KATYAL. Sir, we could have a debate about Nuremberg or 

Rwanda or the other tribunals. I certainly think that, for example, 

none of the other tribunals have such broad substantive offenses, 

such as conspiracy. That is something that Nuremberg rejected, yet 

it is being used in most of those 20 cases today. 

But my fundamental point, Ranking Member Hunter, is that we 

don’t live in Rwanda and we don’t live in Nuremberg. We live in 

the United States of America. And in the United States of America, 

we are governed by the United States Constitution. 

And the United States Constitution sets out some—sets out a 

backdrop from which—— 

Mr. HUNTER. And conceding that we don’t live there, that is why 

my question to you was, are there additional rights beyond this 

package of rights that we put in legislation that you think should 

be in the MCA? Very basic. What additional do you think we 

should give to the accused? 

Mr. KATYAL. The rights guaranteed by the Constitution writ 

large. That is, it is not the micro-rights that you are pointing to. 

It is the bigger right that says that all of these—you know, that 

these problems are constitutionally based. They are not just statutorily based. 

Without that fundamental backdrop of understanding that the 

Constitution constrains what is going on at Guantanamo, the 

rights can be chipped away at on either side. And that is what I 

think the Supreme Court was getting at in 2006, that it is not the 

rights on paper, but—— 

Mr. HUNTER. Okay, but when we write a law, the law is always 

on paper, and we presume that the law will be followed. And if the 

law is not followed, that is reversible error. 

My next—so let me ask the other gentlemen, do you see—are 

there other substantive rights—and, incidentally, I wouldn’t refer 

to the right to counsel and the presumption of innocence as trivial 

or somehow technical rights. Those are very fundamental rights. 

Do the other counsel have any additional rights that you would 

add to this package? And let me go left to right here, sir. 

Mr. OLESKEY. Ranking Member, I don’t have any clients, fortunately, in front of military commissions, so I haven’t—I really am 

not here today to testify on that subject. And I would defer it to 

Colonel Davis. 

Mr. HUNTER. Okay. If you could look for the record, if you could 

look through the MCA, as we put it together, and see if there are 

additional rights that you would recommend, I would like to see 

those for the record, if you could do it. 

Yes, sir, Colonel. 

Colonel DAVIS. No, I don’t think so. As I said—and I think, you 

know, we have a disagreement. My personal opinion is they don’t 

have constitutional rights. They have rights under Article 3 of the 

Geneva Convention, as expounded upon in—I think it is Article 75 

of the Additional Protocol, which to me lays out their fundamental 

rights, which are covered in the Military Commissions Act. 

Mr. HUNTER. Okay. 
27 

Mr. Klingler, do you see any additional rights beyond this package of 15 rights that I have enumerated that you think the accused 

should have? 

Mr. KLINGLER. Look, Boumediene simply didn’t hold that the 

Constitution extends all rights contained in the Constitution to 

Guantanamo detainees. I think that that is a mischaracterization 

of the decision, and I think they are contrary court decisions. 

I think the short answer to your question is that the only point 

that Boumediene called into question is potentially the exclusive direct review in the federal courts and the preclusion of habeas 

rights after there is any conviction that takes place. 

Mr. HUNTER. Okay, let me go to the habeas rights. We had the 

case—it was after World War II—in which an appeal was made to 

the Supreme Court or a request for habeas was made, presumably 

by one of the criminal accused of World War II. It was the 

Eisentrager case. 

And the Supreme Court was requested to give habeas, but they 

were imprisoned outside of the United States. And the decision by 

the court was they didn’t have a right to ask for habeas. 

Now, as I understand, both the Supreme Court ruled, both in 

Rasul v. Bush and on the instant case, Boumediene, that the holding in Eisentrager didn’t apply to Gitmo, to Guantanamo. 

So here is my question. You have all described to some degree— 

or at least several of you have described habeas as rising from 

basic American values. And I think that the chairman laid that out 

in his opening statement. 

But the court in Eisentrager said, ‘‘Wait a minute. If you are 

making this thing, you are a detainee and presumably in Germany, 

you don’t have the right.’’ And the recent court said, ‘‘We still agree 

with that. If you weren’t in Gitmo, we wouldn’t give you that 

right.’’ 

So my question to you is, do you think that the detainees in Iraq 

and Afghanistan—because when we talked about Guantanamo, we 

talked about control. We said, ‘‘Wait a minute. Maybe Guantanamo 

is not a state, but it is definitely under American control. It is an 

extension of American control.’’ That same argument could be made 

with respect to people that are under the supervision of a Marine 

sergeant in Afghanistan or Iraq. 

So my question to all four of you is, do you think that habeas 

should be applicable to detainees that are held in other parts of the 

world, and specifically Iraq and Afghanistan? I will just go from 

left to right. What do you think? 

Mr. OLESKEY. I think the court was proceeding cautiously on that 

question, as I read the decision. What they were saying was that 

what you have in Guantanamo is not only a place under total 

United States control and dominion; you also have people who have 

been held without any approximation of process for six and a half 

years. 

And it is that, the latter point, that seemed to me to be the driver for the court that we had held people for so long in such a place, 

said we had a process—what we are referring to as the CSRT process—given limited review of that limited process, and that wasn’t 

enough in those particular circumstances to hold people for that 

length of time—— 
28 

Mr. HUNTER. But don’t you think that same circumstance could 

take place in Iraq or Afghanistan, that people would be held for a 

long period of time, you could make that argument? 

Mr. OLESKEY. I imagine that that could happen and that people 

will make that argument. 

Mr. HUNTER. So do you see—— 

Mr. OLESKEY. And the courts will deal with it when it comes 

along. 

Mr. HUNTER. Okay. But in your opinion, should habeas be afforded to detainees under American control in Iraq or Afghanistan? 

Mr. OLESKEY. If they meet those circumstances as found in 

Boumediene. That would be a fact-intensive question arising in 

those cases. How long has the person been held? Is he a prisoner 

of war or enemy combatant? Has he had a CSRT? How long before 

did the CSRT take place? 

As was just said in answer to other questions, has the CSRT 

process been revised to make it more fair and adversarial? Those 

would all be fact—— 

Mr. HUNTER. Okay. So in some cases, it might be yes; in other 

cases, no. 

Mr. OLESKEY. That would be my view. 

Mr. HUNTER. Okay. 

Sir. 

Mr. KATYAL. I would agree with the way you had characterized 

it and believe that the Supreme Court’s decisions are clear that 

there is no habeas corpus rights in Iraq or Afghanistan. 

Guantanamo, the court has said, is different because no other 

law applies. There isn’t a law of Iraq or Afghanistan to protect the 

detainees. There is only United States law. We don’t recognize 

Cuban law as having any force at Guantanamo. 

Mr. HUNTER. Okay, but you wouldn’t—so you would not—you do 

not believe that habeas attaches to detainees in Iraq or Afghanistan? 

Mr. KATYAL. I do not. We do not have total control over those 

areas. 

Mr. HUNTER. Okay. Okay. 

Colonel. 

Colonel DAVIS. I don’t think it applies at Guantanamo, so certainly not Iraq or Afghanistan. 

Mr. HUNTER. Okay. 

Mr. Klingler. 

Mr. KLINGLER. I don’t. I think that that would be just a gross 

distortion of the history of the writ and the purposes for which it 

is used, if it were implemented in the battlefield areas, particularly, or anywhere, frankly. 

Mr. HUNTER. Okay. 

Mr. KLINGLER. But if I could, just one—I think Boumediene— 

that is the best reading of Boumediene, as well. However, it is clear 

that Boumediene’s open-ended test created the opportunity for 

counsel—and we heard it at the end of the table—to argue that, 

in fact, the writ does extend. 

And as you said, a case has—a petition has been filed in relation 

to that. There is going to be litigation over this and uncertainty for 

some time. 
29 

Mr. HUNTER. Okay. 

The Miranda rights, the right to—because you have talked, gentlemen, about the need to not undertake—to not accept testimony 

as been coerced. And by its very nature, the battlefield is coercive. 

And the safeguard that was imposed in our domestic system was 

to give Miranda rights so that people were told, they were instructed that they didn’t have to talk, so when they saw that police 

dog and they saw that snub-nosed .38 or .45 that the officer had, 

that wouldn’t coerce them into saying something that they wish 

they hadn’t said later. So we had—we inserted that safeguard. 

Do you think that, on the battlefield, that enemy combatants 

should have the right to be Mirandized, to be given the Miranda 

warning, so that they are not later in a court in which they feel 

that they are being prosecuted with coerced statements? 

Left to right, what do you think? 

Mr. OLESKEY. I don’t think the Supreme Court was saying that. 

I think the court—— 

Mr. HUNTER. I am not asking what the Supreme Court said. I 

am asking—I mean, they made a statement on a limited area. I am 

asking for your expert opinion or your feeling as to whether that 

is a right that should be afforded to enemy combatants to ensure 

that they don’t make coerced statements, that is, to make sure that 

they are advised on the battlefield upon being apprehended that 

they do not have to speak and that what they say will be used 

against them? Do you think they should have that right? 

Mr. OLESKEY. I wouldn’t advocate for that, Representative Hunter. I think that is not practical on the battlefield. And I do have 

to make my touchstone—— 

Mr. HUNTER. Well, okay. But let me hold off for a second then. 

If that is so—or maybe I should ask the next gentleman, because 

you said coerced statements should not be utilized—— 

Mr. OLESKEY. But he and I are talking about the situations that 

we are all familiar with, where people are taken into imprisonment, sent to Guantanamo, or sent to some other place, and then 

tortured and mistreated. And that has been basic in our law for 75 

years that that kind of a statement, post-apprehension, after you 

have been detained and seized and held, doesn’t produce reliable 

evidence and so it shouldn’t be admitted. 

Mr. HUNTER. Well, that may be so, counsel, but any good lawyer 

is not going to differentiate between the treatment on the battlefield, where he may make his most damning statements in which 

he is surrounded by people with weapons, which he will allege later 

were pointed right at him, when they took those statements, extracted those statements from him. 

That is why we have—that is why Miranda is always given early 

on. It is not given later on in the—when you are in the incarceration, when you are in jail or in prison. It is a given right at the 

point when you are suspected of criminal activity. And that was 

done for a reason, and that is so that you would know that you 

didn’t have to make the statements. 

So my question is, because our counsel advised us or one of our 

witnesses advised us at one hearing that, if you had followed the 

UCMJ, which was advocated by some Members of Congress, a Miranda warning would be necessary on the battlefield. 
30 

So my question is, to prevent coercive statements being taken, do 

you think that Miranda should be followed? 

Mr. KATYAL. Sir, I am not sure who that witness was that you 

are referring to, and I obviously have respect for any witness—— 

Mr. HUNTER. One of our JAG witnesses. 

Mr. KATYAL [continuing]. But my understanding is that there is 

no way that Miranda rights will apply to people on the battlefield, 

captured on the battlefield, right at that battlefield situation. 

And the reason is that our Nation’s highest military court, the 

Court of Appeals for the Armed Forces in 1992, decided a case— 

I think it is called United States v. Lonetree. And what Lonetree 

says is that when someone is even being interrogated and that the 

interrogation is motivated by intelligence, then there is no need to 

read Miranda rights. 

So it is an even broader exception in our current military system 

than the one you are positing about Miranda being read to people 

on the battlefield. So I think that would take care of your worry, 

the existing military law. 

Mr. HUNTER. But I think you may be wrong, because Lonetree, 

I believe, was an espionage case with respect to embassy activity. 

And I think that clearly the presence on the battlefield, the inherent coercive situation on the battlefield, lots of people with weapons, at least I would think most lawyers would use that as proof 

of a coercive environment—— 

Mr. KATYAL. Sir, it is—— 

Mr. HUNTER [continuing]. When statements were made. So you 

might be right that Lonetree will be brought up, but I think it 

might be difficult to make Lonetree—— Mr. KATYAL. The battlefield is undoubtedly coercive. And that aspect was—Lonetree. But Lonetree says that is not what is relevant. 

It is the purpose underlying the interrogation. And the purpose, I 

think, would be the same. I don’t see any good defense lawyer winning this argument. Sorry. 

Mr. HUNTER. Okay. But in your estimation, Miranda should not 

be a part—should not be extended? 

Mr. KATYAL. That is correct. 

Mr. HUNTER. Okay. 

Sir, Colonel, what do you think? 

Colonel DAVIS. Well, first off, you know, the witness that was referred to that was asked the question—I think the person you described in your opening statement as a very experienced military 

prosecutor, that was me. I was sitting in the back row at the hearing that you were the chairman of, and the issue came up—— 

Mr. HUNTER. That was you. That is right. We said, if you took 

the guy who shot at you with an AK–47, because we had a number 

of members saying, ‘‘Why can’t we use UCMJ?’’ And I asked you 

the question, would you have to Mirandize them? If you used the 

UCMJ, if you applied it, and you said, yes, you would. 

Colonel DAVIS. Right. And I believe it—— 

Mr. HUNTER. Right? 

Colonel DAVIS [continuing]. Was Professor Michael Sharaf was 

the witness. And he said he wasn’t an expert on military law, but 

the guy in the back row—— 

Mr. HUNTER. And I referred to you as some JAG guy. 
31 

Colonel DAVIS. That was me. 

Mr. KATYAL. That was you? Okay. 

Colonel DAVIS. But literally—if you applied the UCMJ literally— 

and it is not Miranda. It would be Article 31 of the UCMJ, which 

is comparable to Miranda. But if you read it literally in the scenario you described, I think—my recollection was you described 

they put him across the hood of the Jeep and want to ask him some 

questions. 

Literally, yes, that would require an Article 31 rights warning if 

you literally applied the UCMJ. But, again, as I said, I don’t think 

constitutional rights apply. 

Mr. HUNTER. Okay. Okay. 

And, sir, very quickly—and I apologize to my colleagues for taking as much time as I have. Go right ahead, sir, and then we will 

move—I will wrap up here. 

Mr. KLINGLER. I don’t believe Miranda rights are required. I 

don’t believe the full range of constitutional rights extend 

extraterritorially to people who aren’t U.S. citizens or who don’t 

have ties to the United States that are substantial. 

Mr. HUNTER. Okay. Thank you. 

Thank you, Mr. Chairman. 

And thank you, gentlemen. 

Mr. SPRATT [presiding]. Thank you, Mr. Hunter. 

Mr. Oleskey, I believe you are representing two petitioners at 

this point in time? 

Mr. OLESKEY. Six, Representative Spratt. 

Mr. SPRATT. Six? And six different procedures, six different 

cases? 

Mr. OLESKEY. It is one case, because they were all arrested together in Bosnia, but, in effect, there are six separate cases within 

that one petition, yes. 

Mr. SPRATT. And we have a request from the attorney general to 

the effect that Congress needs to intercede relating back to the 

finding, amongst other things, that the executive branch can’t do 

this unilaterally on its own, it requires out working together in a 

lawmaking capacity to create something like this. 

You seem to say, however, that the courts can do it, that there 

is sufficient law, sufficient known procedures, sufficient precedent 

for the courts to proceed, and that is what is happening in the 

cases you are conducting—where you are representing petitioners 

at the present time? 

Mr. OLESKEY. Yes, sir. 

Mr. SPRATT. And you are saying that Judge Leon, is it, and 

Judge Hogan are blazing this path as we go along and haven’t encountered any problems that require congressional intercession? 

Mr. OLESKEY. That would be the way I read what they have 

done. And I have been following both their proceedings carefully. 

They are consolidating all the cases, either between—either with 

Judge Hogan or Judge Leon, working out, as Mr. Klingler said, the 

common issues—and there are many common issues—and then 

coming to decisions on those common issues that will allow the 

cases to proceed, to be heard as a trial in a habeas court. 

Mr. SPRATT. What kind of evidentiary hearing do you think that 

will be, in this particular case? 
32 

Mr. OLESKEY. Well, that is still to be worked out, but it seems 

clear from what the Supreme Court said that, unlike what would 

have happened under the Detainee Treatment Act, where the circuit court of appeals could only review the CSRT record frozen in 

time, no matter what new evidence you had to present that might 

exonerate your client, that there was likely to be fact-finding by the 

district court judges based on evidence that will be offered that 

could tend to exonerate your client, either to show that the wrong 

person has been held or that there is no authority to hold that person in the case of my clients, because they weren’t in Afghanistan, 

they weren’t connected to 9/11, they had nothing to do with al 

Qaeda. 

Those would be the kinds of facts, I think, that will be heard in 

these cases. 

Mr. SPRATT. How does the court propose to handle coerced testimony? Is there—— 

Mr. OLESKEY. There is no decision on that yet, but I would expect—— 

Mr. SPRATT. Have you made motions to eliminate, to—— 

Mr. OLESKEY. Not yet, because we don’t know what the government is going to say. I think you need to understand that, about 

three weeks ago, the government suddenly said to all of us in the 

habeas cases that, instead of relying on the records they filed from 

the CSRTs in 2004, they now want to amend all those records and 

add new claims against virtually everyone who is still at Guantanamo. 

So we don’t know, as I sit here, what the claims will be against 

any particular person today, as opposed to the claims that were 

made in the CSRTs, which led to the findings four years ago that 

they were enemy combatants. It is a very odd situation to be in and 

rather unfortunate, but the government seems inclined to try that. 

And we will see whether the judges allow it. 

Mr. SPRATT. Now, if Congress decided that it needed to intercede 

to find coerced testimony, classified evidence, confrontational witnesses, to go back and revisit some of the law we have passed in 

light of the Supreme Court decision, would this delay the trial that 

you are now in the—the case that you are now conducting? 

Mr. OLESKEY. It certainly would delay our case because our judge 

has said that he intends to try every case in front of him by December 30 and that our case is the lead case. So we expect, based on 

what he said, that our case will be tried in October. 

It would seem unlikely, as I sit here, that this legislation that 

we are talking about hypothetically could work its way through all 

the committee process, and the thoughtful hearings that people 

would want to give it, and be out in time to be useful in our case. 

And I believe that would be true of other cases, as well. That 

would be likely to advance rapidly, in view of the Supreme Court’s 

directive. 

Mr. SPRATT. And your clients don’t appear to have been known 

combatants engaged in an ongoing conflict or—I don’t know if it is 

the allegation of association with al Qaeda, the Taliban, or anything of that nature. They appear to have been suspects of some 

kind of incipient terrorist activity. 
33 

If they are acquitted or if the court cannot find satisfactory evidence to continue holding them, what is their status? 

Mr. OLESKEY. Their status would be that the court could order 

them conditionally released, in the words of the Supreme Court, 

subject to the executive negotiating with, in their case, in the first 

instance, Bosnia, for their return to Bosnia under terms and conditions satisfactory to Bosnia and to the United States. 

That is what has been happening for the hundreds of men who 

have already been released. Our government has been negotiating 

with Afghanistan, Pakistan, Saudi Arabia, Kuwait and other countries, and that is how these men have been released, not because 

of anything the courts have done, but because the Executive has 

decided it is right and appropriate to release those men for whatever reasons. 

And the lawyers who are testifying before you haven’t been a 

part of that process. That has all been done by the executive 

branch. And that is how the releases of anybody cleared in habeas 

would have to be accomplished, as far as I can determine. 

Mr. SPRATT. Professor Katyal, you seem to be recognizing the 

need for more structure, and you expressed concern that if Congress doesn’t act and create better structure that the whole process 

is likely to come unraveled in different courts, and different rulings, and different decisions? 

Mr. KATYAL. I do. I think that this is an unprecedented system 

that is going on at Guantanamo. And if our desire is to actually 

bring justice to the victims of 9/11 who have suffered so much in 

the horrible attacks, we want a system that works, that is going 

to sustain—that is going to be sustained over the long-term. 

And what we have instead is a system that is woefully deficient 

on paper and in practice and is likely to get struck down. And so 

I think that this body does need to pause these military commissions, take a deep breath, and figure out, ‘‘What do we really want 

our trial system to look like? And let us figure out what structural 

guarantees shall we put in place to make sure it stands the test 

of time and metes out justice?’’ 

Mr. SPRATT. Are you concerned about the delays it may cause 

and the concerns on the part of counsel, like Mr. Oleskey, that it 

could deny his clients speedy justice? 

Mr. KATYAL. Oh, I am deeply concerned about that. I certainly 

don’t think that Congress should interfere with the ongoing process 

at this point in habeas corpus hearings that judges in the Washington, D.C., courts are undertaking at this moment. I think we 

should actually use that as a basis for legislation, if any, in the future. 

But with respect to the military commissions, this novel, unprecedented system, yes, I think they need to be put on pause now, 

which is the fastest way to mete out justice, because we are going 

to have these trials. We are going to have years of appeals. The 

system is going to get struck down, and we will all be at the starting point once again in 2012, 2013, something like that, with no 

convictions. 

We are six and a half years after 9/11. Only half of one trial has 

taken place at Guantanamo. The system keeps getting struck down 
34 

because there is a rush to judgment. And, instead, I think it is important to take a pause and adopt a durable system instead. 

The CHAIRMAN [presiding]. Thank you very much. 

Dr. Gingrey, five minutes. 

Dr. GINGREY. Thank you, Mr. Chairman. 

My question is going to be directed toward Mr. Klingler, but let 

me kind of set the stage first. Those before us today argue in favor 

of more rights for the terrorist detainees, implying that their detainee is motivated by something other than a simple desire by the 

President and likeminded Americans to keep our Nation safe. 

We are trying to balance the rights of these detainees as human 

beings with the rights of the American people to be safe and secure. We have bent over backwards to protect the detainees’ rights, 

providing them with a forum to challenge their status and detention, which, by the way, I think goes beyond the Geneva Conventions, which do not bestow rights to challenge detention or the opportunity to be released prior to the end of hostilities on the POWs. 

Many of those we are continually seeking to confer more and 

more rights upon have been involved with terrorist groups that 

have absolutely no respect for Geneva or international law. In fact, 

they behead prisoners; they fight out of uniform; they hide amongst 

women and children. 

My question is, where does it stop? How far is the liberal elite 

going to go to ensure that the terrorist detainees have all the rights 

afforded American citizens under the Constitution? 

This is the same group of people who want to make it more difficult for us to listen to the foreign communications of suspected 

terrorists, thus more difficult to prevent terrorist attacks, while at 

the same time continuing to provide more rights to those who do 

commit these acts. 

Mr. Klingler, this is absolutely appalling to me. Does the review 

process currently in place provide the detainees the ability to challenge their detention? And do you believe that those we capture 

trying to kill us should, in turn, be provided the rights reserved for 

American citizens under the Constitution? 

Mr. KLINGLER. There is a series of ways that detainees can assert—— 

Dr. GINGREY. Mr. Klingler, if you don’t mind, if you are turn that 

mike directly toward your mouth, I would appreciate it. 

Mr. KLINGLER. Thank you. Is that better? 

Dr. GINGREY. That is better. 

Mr. KLINGLER. There are a series of ways that detainees can now 

press their rights in federal court. I think the main issue is how 

broad those rights should be and what interests should be taken 

into account in figuring out the scope and breadth of those rights. 

I would focus on two things. One is the point that you are making, the extent to which the detainees are U.S. citizens or have ties 

to the United States. For the detainees at issue, they don’t. 

And traditionally—and under established Supreme Court precedent—for particular components of the Constitution, they don’t 

have the same degree of underlying substantive rights. Now, that 

affects particularly the military commission process. 

The second area of discussion surrounds the habeas proceedings 

themselves. And there they clearly do have habeas rights. The 
35 

question there is, then how do you conduct those proceedings in a 

way that legitimately reflects the military and national security interests at stake? 

And there, it is a question of what type of hearing we are going 

to have. Is it going to be a trial-like hearing, a show hearing that 

really brings into question a whole range of issues surrounding 

Guantanamo that are extraneous to the immediate issues before 

the court, in terms of the substantive evidence supporting detention? 

And is there going to be a wide latitude for judicial policymaking 

in that context? Or, as the government has argued before Judge 

Hogan, is it going to be a relatively straightforward process? 

And then the third is the review process that is still on the books 

in relation to the federal court review of the CSRT process. And 

there, the attorney general has suggested that that is highly duplicative of the habeas proceedings and—I understand the government is seeking to have those at least held in abeyance. And I 

think that that would be appropriate. 

Dr. GINGREY. In the few seconds I have got left, let me ask you 

a follow-up. Does the right of the terrorist detainees to confront 

their accuser mean they need to be brought to America? Do we 

have to bring soldiers out of combat, as an example, so the detainees get to confront their accuser? 

Mr. KLINGLER. Well, I would argue that the right of confrontation is a criminal right that wouldn’t apply in the habeas context 

at all and that it would be perfectly appropriate for courts to allow 

that evidence to be presented through hearsay evidence, rather 

than pulling American soldiers from Iraq and Afghanistan. 

Dr. GINGREY. And, finally, if the courts forced the release of certain detainees, can they be released in the United States? Do 

judges have the right to say where they can be released? 

Mr. KLINGLER. That is an open issue. I think that that is very 

possible, and I expect that the detainees’ lawyers will argue that. 

Dr. GINGREY. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Dr. Snyder. 

Dr. SNYDER. Thank you, Mr. Chairman. 

For you sitting at that table that are defense attorneys in this 

business, I hope that you won’t go out of here thinking you are 

going to have opportunity that sometime to use the Miranda absence as a way to get your clients off the hook. 

There is not now—nor has there ever been—any interest by any 

Member of Congress in applying the Miranda warnings to the battlefield. And I don’t know why that topic keeps coming up. It was 

a red herring, every year it has been brought up since this war 

began. And there is not even point in talking about. 

Mr. HUNTER. Would the gentleman just yield on that for one second? 

Dr. SNYDER. No, Mr. Duncan. It is 11:55. Most of us have been 

here for almost two hours. The clock finally has been working after 

an hour and 50 minutes. It wasn’t used. And I am going to take 

the remaining time I have. 
36 

You will have all the time, unlimited time you want to when the 

rest of us are done. And let me please finish my question, because 

I don’t have—— 

Mr. HUNTER. Well, then if the gentleman is going to bring up an 

issue that I brought up, and he wants to discuss it in a meaningful 

way—— 

Dr. SNYDER. Mr. Chairman—— 

Mr. HUNTER [continuing]. I hope he would give me the opportunity to respond to it, because that issue was brought up and that 

was offered as a part of the UCMJ. 

Dr. SNYDER. Mr. Chairman, I would respectively request that my 

five minutes be begun anew. 

Mr. HUNTER. And I would second his request. I think that is fine. 

The CHAIRMAN. Start the clock over again. 

Dr. SNYDER. Thank you very much. 

The CHAIRMAN. There. 

Dr. SNYDER. I will repeat what I had said, which is there is no 

interest in this Congress in applying any Miranda warning to the 

battlefield. And if anyone were to apply it, I can assure you that 

every Member of Congress and the American people would be 

shocked and would not want that. So don’t—you defense attorneys, 

don’t take heart by anything said here today. 

Colonel Davis, what I wanted to ask you about was—in your 

statement, I sensed almost hopelessness that the military commissions can ever be revived with the integrity that you thought they 

would have at the beginning of it. But you—a glimmer of hope 

when you give four suggestions about how to give them. And I 

want to read what you say in your statement. 

One of them is ensure the independence of each component in 

the military commission process. Another one, make openness and 

transparency of the proceedings an imperative. The fourth one, expressly reject the use of evidence obtained by undue coercion. 

It is the first one that concerns me the most here, in which you 

say put the military back into military commissions and take the 

politics out. And then your written statement you provide to us— 

and you are very clear. You highlight, ‘‘Take the politics out.’’ 

And, unfortunately, we have had over the last several years too 

many examples in our justice system in this country of political influence, this most recently in the report that has just come out in 

the last few days, in which officials in the Justice Department have 

been castigated by the Justice Department for political influence. 

And Monica Goodling, I think, has been very candid about her having stepped over the line. And this obviously is not over yet. 

As I read your written statement, you are at least implying, if 

not alleging, that you thought there was political influence being 

exerted leading up to the 2006 congressional elections in this country and then also that political influence was being exerted perhaps 

to help Prime Minister Howard in Australia, who subsequently lost 

his election. 

Is that your allegation here? 

Colonel DAVIS. Yes, sir. And I think I described in a statement— 

it was September, I believe, 28th of 2006 was when Deputy Secretary of Defense Gordon England, right after the high-value detainees were transferred to Department of Defense (DOD) custody, 
37 

said that there could be strategic political value in getting some of 

them charged quickly, which was, you know, weeks before the November midterm elections. 

Dr. SNYDER. I think in your written statement you said it was 

six weeks before the 2006 election. You know, I think you are all— 

Mr. Hunter has been very eloquent today, as have some of you, 

about the importance of these trials is it is not just our safety. It 

is bringing justice to those families that lost so many people on 

September 11, 2001. 

And to see this process—you may not be right, Colonel Davis. 

You are a very well-respected man. You may not be right in your 

allegation, but I think, Mr. Chairman, these allegations concern me 

as much as anything we have read today, that it is not just some 

political appointee stepping in, in the spirit of, ‘‘Colonel Davis, you 

are not doing this job well enough,’’ but stepping in, in the spirit 

of trying to influence an ally’s election or trying to influence the 

congressional election. 

I don’t know where this aspect of this hearing today is going to 

go, but it is very concerning to hear a man of your experience and 

the position that you held in Guantanamo make those kind of allegations. 

And, Mr. Chairman, I will yield any remaining time I have to 

Mr. Hunter for any comments he wants to make about the Miranda 

warnings. 

Mr. HUNTER. Well, I thank my colleague for yielding and would 

simply say to my colleague that that was—that when we had our 

testimony, with respect to what body of law we were going to follow 

when we put together the MCA, we had witnesses who testified 

that they thought the UCMJ, the Uniform Code of Military Justice, 

was the right blueprint. 

Now, it was important for us to establish what ramifications that 

would have. And when I asked the question, what would that mean 

on the battlefield? 

In fact, the very colonel you have in front of you here, who I 

think you find to have some good degree of credibility, testified, if 

we adopted that—and you may recall, that was actually recommended by several Members of the Senate who were initial architects of the bill, that we follow the UCMJ, he testified to us, he 

said, ‘‘You can’t do that.’’ Or he said, ‘‘If you do it, you are going 

to require Miranda on the battlefield.’’ 

So that is not a red herring that is thrown up as a matter of 

something that is trivial to the discussion. That was a real ramification of a substantive direction that was testified to by witnesses 

and recommended by some of the architects of the bill. 

We are now looking at some expansions that may take place, in 

terms of the rights of the accused. I think it is an absolutely appropriate question to ask him. 

And I thank the gentleman for yielding to me so that I might describe that. 

The CHAIRMAN. The time has expired. 

Mr. Bartlett. 

Mr. BARTLETT. Thank you very much. 
38 

We are a very blessed people. We are 1 person out of 22 in the 

world, but we have a fourth of all the good things in the world. I 

have often asked myself the question, ‘‘Why?’’ 

It is certainly not because we have the world’s best work ethic. 

All you have to do is look at some of the immigrants that are 

among us, and that will be clear. 

It is not because we have the most focus on technical education. 

This year, India will graduate three times as many engineers as we 

graduate and China will graduate six times as many engineers as 

we graduate. 

It is not because we have the most commitment to the nuclear 

family. Nearly half of our children are born out of wedlock. 

There may be other reasons, but I think that it is largely because 

of our enormous commitment to civil liberties. There is no other 

constitution or no other bill of rights in the world that comes close 

to ours. I think this has created, established an environment in 

which creativity and entrepreneurship can flourish. 

To deny these rights, I think, puts at risk that we can continue 

to be who we are. If we set aside these great constitutional guarantees, even for national security reasons, have we not admitted that 

the enemy has already won? 

And most important security of all, the insurance of our civil liberties, is seriously at risk because, who next by edict might be denied these great constitutional guarantees? 

Therefore, I was very dismayed by our Gitmo statement that, 

one, since the detainees were unlawful combatants, they should not 

be afforded the protections of the Geneva Conventions—I don’t 

know how they thought to get around Geneva IV—and, two, since 

they were not on U.S. soil, the constitutional protections did not 

apply. 

One might logically conclude from these statements that we intended to treat these detainees in ways precluded by the Geneva 

Conventions and our Constitution. The constitutional issues seem 

very clear to me. If they were under our control, no matter where 

they were physically, our Constitution applied. 

Even if I agree that unlawful combatants should not be afforded 

Geneva Convention protection, how can I know that they are unlawful combatants minus a court trial that found them so? My declaring them so doesn’t make it so. Does not the simple declaration 

that a detainee is an unlawful combatant violate our treasured presumption of innocence? 

If we affirm our right to do this, even for national security reasons, have we not put at risk the rights of all of us, because by simple edict, in some future emergency, any of our constitutional protections could be set aside. 

Where have I gone wrong in my thinking? 

Mr. KLINGLER. That is a question to me, is it? I agree with most 

of what you said. I think that national security should not trump 

constitutional rights. 

I think, though, that what is at issue is what the scope of those 

constitutional rights are. I don’t think—and I don’t think that the 

courts’ precedents support the conclusion that simply because a 

person is under the control of the U.S. military or even at Guanta-
39 

namo outside of the United States proper, that the full range of 

constitutional rights apply. 

I would direct you to Verdugo-Urquidez and the case decided 

there, some of the insular cases. So the issue isn’t balancing or setting aside constitutional rights, but ensuring that there is a clear 

understanding of what those are and that there isn’t an assumption that, simply because the suspension clause has been held to 

apply to Guantanamo, that the full range of constitutional rights 

does so. 

I don’t think that is what the Supreme Court said. I don’t think 

that is how you can fairly read the decision. 

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

The CHAIRMAN. Thank you. 

Loretta Sanchez. 

Ms. SANCHEZ. Thank you, Mr. Chairman. And thank you, gentlemen, for being before us. I know some of you have been before us 

before. 

You know, I think we find ourselves in this position because it 

really was the job of the Congress to provide for a structure for the 

military commissions. And we just didn’t do it. We allowed the Administration to do it. I believe they did a bad job of it. 

I know that I had legislation in a bill drawn many years before 

we ever got to the Military Commissions Act and asked both the 

chairman and the ranking member at that time to give us a hearing on it and, unfortunately, didn’t happen. 

After three court rulings, including Supreme Court rulings with 

Hamdan, all of a sudden we realized it was our job, Article I, Section 8, to do this. And we put forward an MCA, one which I voted 

against, by the way, in particular because of the habeas issue. 

So here we come back again with the same issue. In fact, I had 

some legislation, a revised bill, H.R. 2543, which we have been revising with this latest court case to address some of the problems 

created by the MCA. 

And Justice Kennedy, in his majority opinion, invites us, us, the 

Congress, to find innovative solutions. That is on page 67 of the 

opinion. And he also states that certain accommodations can be 

made to reduce the burden of habeas proceedings that are placed 

on the military without impermissibly diluting protections of the 

writ. And that is also on page 67. 

So I think we do need to address this. And at the same time, I 

believe that we must give due deference to military and intelligence considerations in defining the terms and the procedures 

that will govern the writ going forward. 

You all were just asked—and with the exception of the first gentleman, who was wanted to know more circumstantial issues—you 

all agreed that the writ does not extend to Afghanistan, for example. 

So if the Administration closes Gitmo and moves the detainees 

to a detainee facility in Afghanistan, detention under our U.S. 

Army, for example, would they then be beyond the writ of habeas? 

Can the Administration avoid the ruling, this recent ruling, simply 

by moving the detainees back to Afghanistan, where many of them 

were captured? 
40 

And I want to say that this is a very important, pertinent question, because there are many, including Members of this Congress, 

who continue for the call to close Gitmo. 

And I have always felt that closing Gitmo would mean the transfer of these detainees back to Afghanistan, where they would have 

less access to the media, because it is a combat zone, less access 

to this Congress, as the overseer to some of this, again, because it 

is a combat zone, less access to the International Red Cross and 

others. 

So would these prisoners also be deprived of habeas if they were 

moved back to Afghanistan? That is my question for all of you. 

Mr. OLESKEY. Let me take the first crack at that, Congresswoman. The court now has jurisdiction over—the habeas courts 

have jurisdiction over everyone in Guantanamo, as far as I know. 

I don’t think that the courts would permit the Executive unilaterally to move people within its jurisdiction on pending habeas 

cases to Afghanistan or anywhere with the intent of ousting the jurisdiction of the courts. And I don’t believe that the Executive 

would do that, understanding and knowing that these cases are 

pending. 

I think Secretary Gates has made many important statements 

about his views about Guantanamo. There is nothing in what he 

says that leads me to believe that he would be a party to any such 

action. 

So while it is a theoretical possibility, I don’t think the Administration would do it. It would set up a conflict with the courts that 

would be very damaging. And I think, if it was attempted, that the 

courts would act to prevent it. 

Mr. KATYAL. Let me begin by thanking you for your historic leadership on these issues. I wish that Congress had listened to you 

many years ago. We would have had trials underway and a system 

that would have been stable. And, instead, we find ourselves six 

and a half years later without a trial taking place. 

With respect to closing Guantanamo, I don’t think the reason to 

close Guantanamo is really just about human rights of the detainees. It is about America’s self-interest. As Secretary Rice and Secretary Gates have said, Guantanamo is a foreign policy disaster. 

And so I think the reasons for closing it are not as much about the 

detainees but about us. 

I think if the detainees who are currently there are moved outside to an area outside of court control, I do think that the federal 

courts may have something to say about it, with respect to those 

current detainees. 

Ms. SANCHEZ. What about the future of somebody in action, 

caught in the same way, and now held in the prison in Afghanistan, controlled by the U.S. military, even though there are Afghan 

laws, those necessarily wouldn’t apply to our facility holding somebody who is a combatant supposedly against us? 

Mr. KATYAL. Precisely correct, that is—and I think that is happening now, that is, there aren’t many detainees being brought to 

Guantanamo. And the reason Guantanamo exists, the reason we 

used it in 2001 wasn’t because the military liked the weather. It 

was because the Bush Administration had a legal fiction that they 
41 

could bring people there and have them outside of the control of 

the United States courts. 

Now the Supreme Court has emphatically rejected that idea, so 

Guantanamo has outlived its usefulness, in terms of being an escape from federal court processes. 

The CHAIRMAN. The gentlelady’s time has expired. The monitor 

is not working, but time is up. 

Ms. SANCHEZ. I love being called on that after waiting for two 

hours. Thank you, Mr. Chairman. 

The CHAIRMAN. You bet. 

Five minutes, Mr. Murphy. 

Mr. MURPHY. Thank you, Mr. Chairman. And I thank the panel 

for being here today. 

I would start by saying, Colonel Davis, thank you for your service to our country. And I think it is very appropriate that today, 

in your opening testimony, you cited the prosecutor for the World 

War II saboteurs who said that—he said this in 2001 in his op-ed, 

as you mentioned—that how we prosecute al Qaeda members will 

say just as much about us as it will say about those al Qaeda members. 

The petitioners in the Boumediene case simply asked the court 

to make a ruling on exactly who the Administration can indefinitely hold as an unlawful enemy combatant, pursuant to the 2001 

Authorization for Use of Military Force. The court, however, has 

been silent on that issue. 

In subsequent cases after the Boumediene, they make their way 

through the courts, such as the al-Murri case and the Parhat case. 

It is becoming increasingly clear to this Congress, and myself specifically, that we will have to re-examine this question in the near 

future. 

Mr. Oleskey, as counsel in the Boumediene case, let me ask you. 

In your opinion, does the 2001 AUMF allow the President to detain 

in perpetuity someone who has little to no tangential connection to 

al Qaeda and who is not engaged in any belligerent acts against 

the United States? And a follow up: Does the Constitution give the 

President this authority? 

Mr. OLESKEY. I think that the Supreme Court hasn’t spoken definitively to the second point, so we don’t know what they will say, 

but it would be my view that the implication of Boumediene is that 

the Constitution does not give the President the authority to indefinitely detain someone suspected or accused of terrorist activity. 

The Constitution and our statutory scheme say there is a criminal justice system. And if there is terrorist activity that is not— 

that disqualifies you from POW status, then you indict the person. 

And we have had many examples of successful indictments and 

prosecutions. 

So I think that that is where we are headed on the second question. And your first question, again, was—— 

Mr. MURPHY. Well, one, does the Constitution give the President 

the authority to do so? And then—— 

Mr. OLESKEY. I think the better view is that you in the Congress 

intended to give the President limited authority to go after people 

directly involved in the atrocity of September 11th. 
42 

Instead, I think what the cases show is the Administration used 

that language to pick up people all over the world on a variety of 

bases, many of them people who appear to be innocent of any 

wrongdoing at all, others of whom may have had some activity 

with radical groups that had nothing to do with September 11th. 

The great strength of the habeas process that we are now at last 

embarked upon is it should sort out who those people are and if 

they have a connection to September 11th. And that is within the 

authorization. Then they presumably will continue to be held and 

some of those people, as we have been discussing, would be the 

subject of military commissions, where they may be found guilty or 

may not. 

The rest ought to be found—if they are not connected to September 11th, then not within that resolution—to be ordered released, subject to the Executive’s right to negotiate their return to 

some place that is safe for them and for us. 

Mr. MURPHY. Yes. And I think that, as the panel understands up 

here and as the members understand, obviously, this is a new case 

all coming out. We are looking at—as today is July the 30th, we 

have had two significant cases, obviously, the Parhat case, where 

we are talking about the 17 Chinese, and then al-Murri case, 

where we are talking about the citizen of Qatar who was a U.S. 

resident. 

So to follow up on my first question, if the Parhat decision and 

the al-Murri decisions, especially considering the opinion of Judge 

Wilkinson, who I think we would all agree is a conservative, but 

dissented in this case, and very well-respected, especially considering his opinion of Judge Wilkinson, if that is any guide, the Administration’s broad definition of who can be indefinitely detained 

under the AUMF is going to be struck down as either unconstitutional or, more likely, in my opinion, outside the authorization of 

the AUMF. 

If that is the case, it is possible that many detainees held at 

Gitmo and those held at other U.S. military facilities around the 

world are going to be released unless the courts and the Congress 

of the United States come up with a new legal framework for deciding who will be detained. 

So, Mr. Oleskey, if the court holds that the Administration is acting outside the scope of the AUMF, how do you see a path forward 

for this Congress to work in a bipartisan manner to reach a new 

legal and constitutionally valid framework that ensures that we are 

detaining those who are the most culpable and pose the greatest 

risk, while not, as Judge Wilkinson I think astutely noted, breaching this country’s most fundamental values? 

If you could comment, I would appreciate it. 

Mr. OLESKEY. I think that is a fair point. I remember that back 

when these cases were working their way up, Judge Green in the 

district court asked the deputy solicitor general, ‘‘Suppose a little, 

old lady in Switzerland is asked to send money to an orphanage 

in Afghanistan. She doesn’t know it is an al Qaeda front, but 

American intelligence does. Do you say the AUMF, Mr. Deputy, allows her to be seized in Switzerland by the American military, 

taken to Guantanamo, and held indefinitely?’’ 

And the answer was, ‘‘Yes, that is the government’s position.’’ 
43 

So I agree with the premise of your question, Congressman. The 

definition has been treated by the Administration as hugely 

overbroad and misused. 

In terms of what happens, I think I disagree with Mr. Katyal on 

the special courts that he has been advocating. I think the criminal 

justice system is perfectly competent to deal with people who committed crimes against the United States. 

That the crimes are unconnected with 9/11 doesn’t make them 

any less crimes, if they are within the scope of our federal criminal 

statues, such as the bombing of the USS Cole, the Khobar Towers 

bombings in Saudi Arabia, the first bombing of the U.S. World 

Trade Center. Those are all examples of how our criminal laws can 

deal with and have dealt effectively with people who have committed legitimate terrorist actions. 

Whether there is any role for Congress to play, I think, is a matter that I would at least like to see you wait on while some of these 

habeas cases go forward and we see what the facts are and what 

the judges do. After that, as Mr. Katyal and others have suggested 

here today, there may be a role for Congress to weigh in deliberately, as your question suggests, with a thoughtful approach to 

redefinition. 

I don’t think that would be useful now, because we have a process that at long last is underway, in which facts are going to be 

found very soon by experienced federal judges. 

Mr. MURPHY. Thank you, sir. 

Would anyone else on the panel like to comment? Colonel. 

Colonel DAVIS. Oh, I think if you try to treat these as ordinary 

criminal cases, it is a naive approach. These are not—these guys 

didn’t rob the corner liquor store. I think there is a war component 

to this. 

I was not a fan of—there are a number of folks that have pitched 

the national security courts in some form or another. Initially—— 

Mr. MURPHY. You can continue to answer. I just can’t ask anything else. 

The CHAIRMAN. Go ahead and answer the question. 

Colonel DAVIS. Okay. Initially, I was not a huge fan of it. I still 

think the Military Commissions Act was a pretty good piece of legislation that, if it was implemented properly, could render fair 

trials. 

I am beginning to come around to the national security court 

concept. What I would like to see—I think there is a war component to terrorism; it is not your ordinary Title 18 type of crime— 

would be a national security court that combines both military and 

federal judges and takes the best aspects of the Military Commissions Act, the CIPA procedures, and federal and military law. 

Because I think what—you know, we keep talking about Guantanamo, and that is the immediate, you know, issue in front of us, 

but I think this is a longer term issue. And whatever the solution 

is needs to address the Guantanamo problem, plus terrorism, you 

know, over a longer perspective. 

And, again, I think Guantanamo is grossly mischaracterized. I 

mean, I used to be a bail bondsman, so I have seen a lot of jails. 

It is a pretty decent place, but it has become such a blight on the 
44 

country that perhaps it is worth closing it just to—or try to erase 

that stain. 

Mr. MURPHY. Thank you, gentlemen. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Yes, thank the gentleman. 

You will note the monitor is working again. 

Mr. MURPHY. Yes, sir. 

The CHAIRMAN. Mr. Cummings. 

Mr. CUMMINGS. I would direct this to all of you or whoever wants 

to answer. First of all, I think it is very important that—and I 

know you all share this—that we safeguard our Constitution and 

the rights under that Constitution. I think this is our watch and 

we have a duty to do then. 

Boumediene suggested that habeas corpus might not be constitutionally required if there were suitable alternative processes in 

place to protect against the arbitrary exercise of governmental 

power. 

As such, do you believe that the comprehensive protective laws 

governing prisoners of war under the Third Geneva Convention, 

which the United States has decided is inapplicable to members or 

affiliates of al Qaeda or the Taliban, but which would be applicable 

in almost any conceivable future armed conflict against another nation-state, should be applied to detainees, particularly those suspected of being affiliated with al Qaeda or the Taliban? 

If you do believe that such obligations should be afforded to these 

individuals, what dangers exist in the United States failing to ensure that these detainees’ rights are protected as POWs? 

How can we ensure as a Nation that we are balancing our priority of protecting our Nation from any prospective act of terrorism, 

something that we must do, while ensuring that current detainees, 

even those that may be allegedly associated with terrorist organizations, are provided with the protections that they are deemed to 

have under the international humanitarian law and customary 

law? 

Mr. OLESKEY. I would say, if the Administration had adhered to 

the Geneva Conventions, we wouldn’t have had these Supreme 

Court cases and we wouldn’t be having this hearing today. We 

would have a very different kind of situation. 

As I said earlier, if there are people who have committed violations of international law and American law, there are recognized 

procedures to follow. 

The military commissions are being criticized here by lots of us 

for not providing adequate protection, but the same people on the 

panel and in the Congress who are criticizing that process are recognizing, as your question does, that we need some way to protect 

the United States against terrorists and ensure that they don’t 

commit crimes again. 

So whether it is an enhanced military commission, whether it is 

a special national security court, there is nothing inconsistent with 

those approaches to effectively criminalizing terrorist behavior in a 

different way, in a different process, and still treating people who 

are not put before those proceedings as POWs in accordance with 

international law. 
45 

So I take the premise of your question to be that we can both 

protect the country and respect our international obligations in a 

way that makes us, again, a beacon for the world in these areas 

and not the embarrassment we have become because of Guantanamo. And I agree with the premise. 

Mr. CUMMINGS. Well, going back to something that Mr. Davis 

wrote in his testimony—and he talked about how criminals we are 

punishing sort of after the fact, and these detainees are sort of before the fact, we are trying to prevent. 

And, you know, I guess that does present a very different kind 

of set of circumstances when you are trying to prevent something 

from happening, as opposed to saying you did something and now 

we are going to punish you. 

And I am just trying to figure out, where did that concept come 

from, that prevent concept? 

Mr. OLESKEY. Well, in the law of war, it comes from the notion 

that an enemy soldier can be lawfully held during the duration of 

the conflict so that he cannot return to the battlefield. 

But what the Administration has said is that the whole world is 

a battlefield, not just Afghanistan or Iraq, and therefore anybody 

picked up who can be claimed to be a member of some radical 

group or terrorist group, or that knows somebody who is, or to provide some support, however innocently to that group, can be held 

as if they were a POW for the duration of the war on terror, which, 

as Justice O’Connor said back in 2004, could be for the rest of your 

life. 

So that preventive function that comes out of the law of war 

doesn’t apply as the Administration has applied it. And that is why 

we have had these cases. 

Mr. CUMMINGS. Thank you very much. 

The CHAIRMAN. I thank the gentleman. 

Mr. Hunter. 

Mr. HUNTER. Thank you, Mr. Chairman. 

And, gentlemen, thanks for being with us and for spending as 

much time as you have. And, of course, this is very timely that you 

are with us. 

But we have got this problem. You have got—the habeas right 

has been extended by the Supreme Court decision. And you have 

the prospects now of habeas being applied for—and presumably before many, many federal courts by many folks who are presently 

detained. 

And the question is, is it appropriate for us at this point to have 

a direction, to put together some guidelines? I noticed—I think it 

is—the D.C. Circuit said, if Congress is going to do this, now is the 

time, because it looks like we are going to have the need for directions. I am paraphrasing, but that is essentially their statement. 

You know, if you look at the—if you are a court that has been 

petitioned for habeas, and let us say you have a guy who says, 

‘‘You know, I was picked up on a sweep in a firefight in an Afghan 

village, and I was apprehended because I had an AK or I had some 

ammo, and the reason I had that is because I am part of an ad hoc 

security service,’’ or, ‘‘I am out protecting the flock of sheep that 

this particular village maintains. And I got picked up wrongly.’’ 
46 

In a way, the farmer in the field argument that has been made 

a lot of times at Guantanamo—in fact, we have released a number 

of people at Guantanamo, as the colonel knows. A few of them went 

back and picked up arms against us, so we made a mistake in that 

case. We were too lenient and made a mistake of judgment. 

But my point is, that is thrust in the lap of a federal court. Now, 

here is a court in the United States. And the habeas—and they 

ask—they hold a little prayer meeting with their staff and their 

judge and say, ‘‘How do we conduct this? What is the extent of our 

review? Do we try to get villagers from this small village in Afghanistan? Do we try to pull back members of the military who are 

in that particular squad from the 10th Mountain Division that 

made this sweep?’’ 

It looks to me like it is going to be a very, very—without a prescription for how far they look, and what they do, and whether or 

not they have essentially a trial on the merits, it looks to me like 

you are going to have 101 different recipes by different courts as 

they try to figure out what we want them to do, in terms of a habeas review. 

So what are your thoughts on this? How do you—do you think 

there is a danger of having—going off in 50 different directions if 

we don’t have a prescription, or a recipe, or a set of directions as 

to how the court proceeds on this or how the courts proceed on 

this? 

Mr. KATYAL. Let me begin by saying I don’t think that there is 

some immediate crisis. We are only a month or so after the Supreme Court’s Boumediene decision. I think we should let that 

process play out, as Mr. Oleskey says, with experienced federal 

judges. And that will then inform what this body does. 

I am very worried about the number of misperceptions that have 

happened in this debate thus far in the past month. I mean, Representative Hunter, you know more about this issue that almost 

anyone, and yet you opened the hearing today by saying—and I 

think I am getting this quote exactly right—‘‘The right to habeas 

corpus is something no American soldier enjoys.’’ 

But, of course, since 1890 in the In re Grimley decision, the Supreme Court has extended habeas corpus rights to American soldiers. 

Mr. HUNTER. No, no, not as a POW. 

Mr. KATYAL. American soldiers have habeas corpus rights. They 

can’t be POWs because they are, after all, our own soldiers. 

Mr. HUNTER. No, but I am talking about an American soldier 

who is a POW held in another country. And presumably I would 

think that would apply to POWs who are in other militaries. We 

don’t have—when we had our German camps of soldiers in this 

country, did we allow them to have habeas? 

Mr. KATYAL. If you are talking about other soldiers—I am sorry, 

I thought your statement—— 

Mr. HUNTER. I am talking about—yes. 

Mr. KATYAL [continuing]. I thought you had said a couple of 

times that American soldiers did not have habeas corpus rights, 

and American soldiers—— 

Mr. HUNTER. That is exactly what I meant. An American soldier 

held as a POW doesn’t have that right—obviously, it would be ex-
47 

tended by another country, nor do we, to my knowledge, extend 

that right to other soldiers when they are a POW of our country. 

In other words, a POW, whether you say he is a German POW, 

an Italian POW, an American POW, does not have that right. And 

yet people who are essentially soldiers in this war against terror 

now have, according to this five-to-four decision, have a habeas 

right. So we have extended a right which hasn’t extended to combatants in a war, okay? 

Mr. KATYAL. Sir, in the Ex Parte Kiernan decision in World War 

II, the Supreme Court extended the writ of habeas corpus both to 

Americans and to enemies, Nazi saboteurs. So it has been around 

for a while. 

Mr. HUNTER. Those were not soldiers. 

Mr. KATYAL. They were enemy—unlawful enemy combatants. 

Mr. HUNTER. They were not soldiers, were they? 

Mr. KATYAL. They were—— 

Mr. HUNTER. And so the point that I made was absolutely accurate. And that is part of—and I am not trying to beat you down, 

but that is the problem we have here. You have a soldier—let us 

say he is in Saddam Hussein’s army—and he shoots at Americans 

with his AK–47. He has a certain bundle of rights, but a very limited bundle of rights, when he is captured. 

That same person now decides he is going to be a terrorist, and 

he sheds the uniform, and he does something against American 

troops, and he ends up in Guantanamo, he now has a very different 

bundle of rights, indeed, one that we are defining right now with 

this list of rights that people have under the DCA act. 

So my point is, in ways—it is interesting that in ways we have 

expanded the rights for people who are killing Americans in battlefields and who are engaging in what heretofore in some cases was 

a war that was undertaken by people in uniform. 

And that is why I think—and that is why I brought up the 

point—and the colonel buttressed this point—when we had Members of Congress who said, ‘‘Let us give a UCMJ right,’’ that is why 

we brought up the fact that, in fact, that did, indeed, encompass 

certain things like Miranda that would now have to be attached to 

that person’s bundle of rights. 

So my question is, you are a federal judge. You have extended 

a habeas right to a person who says, ‘‘Hey, I was caught up in this 

sweep in this remote village.’’ Aren’t you going to have a real difficulty? Because much of whether or not that person was here is 

now being lawfully held turns on the facts, and the facts are 

whether or not he was, in fact, protecting the sheep with his AK– 

47, protecting the herd, and he was caught up in a sweep, he was 

a farmer in a field, and he was not purposefully attacking American forces as the rest of the people were. 

That is going to depend on the facts. And the ability of that court 

to retrieve those facts from a battlefield situation, which dissipated 

years ago, I think is going to be very difficult as a practical matter. 

Don’t you agree with that, that that is going to be tough to do? 

Mr. KATYAL. Courts can always appoint special masters. They 

have that existing power to go—and so they could have a military 

apparatus do the first cut of that. My fundamental point is this—— 
48 

Mr. HUNTER. Okay, but now let me—I want you to answer this 

question, though. You can appoint all the masters you want, but 

how do you, in a real sense, ascertain what the facts were three 

years ago in a remote village in Afghanistan as to whether or not 

this guy really had a rifle or not? 

Mr. KATYAL. And that is what—— 

Mr. HUNTER. Or had a rifle that he was using against Americans? 

Mr. KATYAL. And Representative—— 

Mr. HUNTER. That is my question. 

Mr. KATYAL. And that is what we warned about three years ago 

and five years ago. Let us have a system in place that is the Geneva Conventions to do that initial sorting. We didn’t do that. And 

so now we find ourselves in a mess. 

Mr. HUNTER. But you haven’t answered the practical question. 

We are at where we are, and you are now going to have habeas 

proceedings. How will a federal court today some place in the 

United States be able to reach back and retrieve facts so that they 

can give this defendant a fair hearing on whether or not he was 

picked up in a sweep and, in fact, was not part of a body of illegal 

combatants? 

Mr. KATYAL. We have experienced federal judges with investigative tools and the power to use special masters. Let us let that system play out and see what happens, instead of just cutting them 

off at the get-go and saying, ‘‘You are incapable of doing this.’’ 

Mr. HUNTER. Well, I think—I am not saying we have to tell them 

they are incapable, but once again you have used the statement 

‘‘special masters’’ and they have certain powers. In a practical 

sense, it is going to be difficult, I think, to do that and give the guy 

a fair shot at—if he wants to have essentially a little trial on the 

facts as to whether or not he was illegally picked up. You are going 

to have to be able to reach back and get people who have long since 

dissipated from the battlefield scene. 

And let me ask the other gentlemen what they think about that. 

Do you think that is going to be practical to be able to have without guidelines to have all these federal courts trying to come up 

with what they think is a fair habeas proceeding? Or do you think 

we should let it go and see if they can do it? 

Colonel DAVIS. Sir, I think the court in Boumediene I think reluctantly got into the fray. I mean, I think, as they say, had there 

been a viable, meaningful process in place to determine, you know, 

who is the sheep-herder from who is the terrorist, you know, who 

really is the enemy, had there been a meaningful process in place, 

I don’t think the court would have intervened. 

But we are stuck now with, you know, the court inserting itself 

into this process. So I think, you know, had we a year ago fixed 

the CSRT process to make it a meaningful review, we might not 

be sitting here today. 

Mr. HUNTER. I know. But we are here today, Colonel. 

Colonel DAVIS. Right. 

Mr. HUNTER. So what do we do? 

Colonel DAVIS. Well, again, I think we have got to look at—number one, you know, the immediate issue is Gitmo and what do we 

do with the 265 guys sitting at Gitmo? The solution has to be big-
49 

ger than that, as what do we do with the next group that comes 

along behind that? So, you know, Gitmo is the immediate problem, 

but this really requires a long-term solution. There needs to be a 

robust, meaningful process to sort out the enemy from the—— 

Mr. HUNTER. But, see, in the end, what you are going to have 

is basically battlefield reports, which are very sketchy. They are 

not detailed. 

Mr. Klingler, do you have any comments? Do you think this is 

going to be doable by the federal courts? 

Mr. KLINGLER. I think the courts have already asked for some 

help in this. The questions that they have already posed indicate 

that they are tremendously difficult issues in front of them. 

The pleadings that have been filed already indicate tremendous 

divergence in whether we are going to have something approaching 

a full-blown trial or something that is very streamlined and efficient. 

I do think that there is a path through this. I think it needs legislative help. I think it is the congressional imprimatur on standards of deferring to the government and the military’s determinations, once they put forth a substantial degree of evidence and a 

streamlining of the process, to avoid the questions that you are— 

and the difficulties that you are pointing to. 

Mr. OLESKEY. I would say, Representative, that the problem has 

been so far that all the issues that we have confronted have been 

abstract legal principles. Does habeas extend? Where does it extend? Now we are getting down to where the rubber meets the 

road, which is what trial judges do. They sort out the facts. 

I acknowledge the premise of your question. There will be some 

cases where the facts are difficult. The Supreme Court already said 

in 2004 that perhaps you would have to have something called a 

declaration in that case which would summarize the evidence, subject to limited cross-examination of the person making the declaration. 

But that is what courts do. And the notion that we can give you 

enough wisdom here to figure out a template for 275 cases to resolve the disgrace that Guantanamo has become, correctly or not, 

I think is far-fetched. 

Let that process go on. Let the facts get sorted out. Judges can 

handle these issues, as Professor Katyal said. If out of that mix the 

whole system still cries out for a legislative fix, then I think you 

should take another look at it, yes. 

Mr. HUNTER. You don’t think there is a problem with having all 

these different federal courts without us laying out a template for 

how you do this? You don’t think there is a problem with these 

courts going off in a lot of different directions? 

We have all agreed that the evidence in a lot of cases will be 

very, very skimpy, because it is coming—it is not coming from a 

crime scene. It is coming from a battlefield. And so if you have a 

court that says—what if you have a court that says, ‘‘You know, I 

can’t give this guy a fair trial because I can’t find anybody in that 

village, we can’t retrieve any of them, we can’t ascertain who was 

in that Marine unit or where they are, so we think we have got 

to let him go,’’ is that a possibility? 
50 

Mr. OLESKEY. Well, as you pointed out, and as we all acknowledge, more people have been released from Guantanamo by Executive decision without any input from any habeas lawyers or courts 

than the men who are still there. 

But to your central premise, I think I disagree. There is only one 

federal court hearing these cases by design. That is the United 

States District Court in Washington, D.C., right down the street. 

There is only one circuit that will hear these habeas appeals, the 

D.C. circuit, which has already weighed in under the DTA and the 

habeas, so—— 

Mr. HUNTER. So you think they will come up with a fairly—with 

a good structure? 

Mr. OLESKEY. I think they will come up with a thoughtful approach that will, since it is being run through only two judges, command respect and conformity by the other judges. 

And if they are wrong, there will be an appeal. And at that point, 

when it appears there is still a dispute about some basic legal principle, as opposed to the facts about whether a man was a sheepherder or a rifleman, then you may decide to get involved, yes. But 

I think now is not that time. 

Mr. HUNTER. Okay. Thank you very much, Mr. Chairman. 

Gentlemen, thank you for your time today. 

The CHAIRMAN. Gentlemen, thank you. We have three votes that 

have just been called for. And we have no further questions for you. 

However, we must tell you we appreciate your expertise and your 

testimony today. It has been very, very helpful. And we hope to see 

you again. Thank you. 

[Whereupon, at 12:39 p.m., the committee was adjourned.] 
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