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44–818 PDF 2008

S. HRG. 110–531 

HOW THE ADMINISTRATION’S FAILED DETAINEE 

POLICIES HAVE HURT THE FIGHT AGAINST 

TERRORISM: PUTTING THE FIGHT AGAINST 

TERRORISM ON SOUND LEGAL FOUNDATIONS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 16, 2008 

Serial No. J–110–107 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 29 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 4 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 5 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 82 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Gunn, Will A., Colonel, United States Air Force (retired), and former Chief 

Defense Counsel, Department of Defense, Office of Military Commissions, 

Fort Belvoir, Virginia ........................................................................................... 7 

Martin, Kate, Director, Center for National Security Studies, Washington, 

D.C. ........................................................................................................................ 9 

Rivkin, David B., Jr., Partner, Baker Hostetler, LLP, Washington, D.C. .......... 10 

SUBMISSIONS FOR THE RECORD 

Denbeaux, Mark P., Professor of Law, Seton Hall University School of Law, 

Newark, New Jersey, statement and attachment ............................................. 34 

Gunn, Will A., Colonel, United States Air Force (retired), and Former Chief 

Defense Counsel, Department of Defense, Office of Military Commissions, 

Fort Belvoir, Virginia, statement ........................................................................ 66 

Kassem, Ramzi, Clinical Lecturer in Law and Robert M. Cover Clinical 

Teaching Fellow, Yale Law School, New Haven, Connecticut, statement ...... 76 

Martin, Kate, Director, Center for National Security Studies, Washington, 

D.C., statement .................................................................................................... 84 

Rivkin, David B., Jr., Partner, Baker Hostetler, LLP, Washington, D.C., statement ...................................................................................................................... 96 

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HOW THE ADMINISTRATION’S FAILED DETAINEE POLICIES HAVE HURT THE FIGHT 

AGAINST TERRORISM: PUTTING THE FIGHT 

AGAINST TERRORISM ON SOUND LEGAL 

FOUNDATIONS 

WEDNESDAY, JULY 16, 2008 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, Cardin, Whitehouse, Specter, 

and Kyl. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you all. I was just explaining to Senator Specter that the traffic gets worse all the time. I was at a couple of breakfast meetings downtown, so I do apologize, and to Senator Kyl, too, of course. 

In the wake of the tragic attacks on September 11th and toward 

the end of President Bush’s first year in office, this country had an 

opportunity to show that we could fight terrorism, secure our Nation, and bring the perpetrators of those heinous acts to justice, 

and do it in a way that was consistent with our history and our 

most deeply valued principles. You will recall we had virtually the 

whole world on our side at that time. A number of us reached out 

to the White House, both Republicans and Democrats alike, in an 

effort to craft a thoughtful, effective bipartisan way forward. The 

White House chose another path. They diverted our forces away 

from al Qaeda and capturing Osama bin Laden instead to go to 

war and occupation in Iraq—a country that had nothing to do with 

9/11, and, of course, allowing Osama bin Laden to stay loose. And 

they chose to enhance the power of the President and to turn the 

Office of Legal Counsel at the Department of Justice into an apologist for White House orders—from the warrantless wiretapping of 

Americans to torture. Many of us feel, as I do, that that made our 

country less safe, not safer. 

We are all too familiar now with the litany of disastrous actions 

by this administration: rejecting the Geneva Conventions, which 

the President’s counsel, incidentally, referred to Geneva Conventions as ‘‘quaint’’; and doing this against the advice of the Secretary 

2 

of State; establishing a system of detention at Guantanamo Bay in 

an effort to circumvent the law and accountability; attempting to 

eliminate the Great Writ, the writ of habeas corpus, for anyone 

designated by the President as an enemy combatant. They set up 

a flawed military commission process that, after 6 years, has not 

brought even a single one of these dangerous terrorists to trial; and 

permitting cruel interrogation practices that in the worst cases 

amount to officially sanctioned torture. 

In her new book ‘‘The Dark Side,’’ journalist Jane Mayer has offered a major contribution to reporting these matters. In addition 

to providing previously unknown details of U.S. treatment of detainees, Ms. Mayer writes of a 2007 report from the International 

Committee of the Red Cross, the ICRC—incidentally a committee 

that the United States has relied on over the years to demonstrate 

whether things are done right or wrong. That concluded that interrogation techniques used by the United States constituted torture. 

The ICRC, like retired Major General Taguba, who investigated detainee abuses for the Army, suggested that the conduct of these officials could amount to war crimes. 

Another deeply troubling revelation in Ms. Mayer’s book is that 

one-third to one-half of the detainees at Guantanamo have been 

known, almost since the beginning, to have no connection to terrorism at all. But the White House refused to allow any new review 

of their status because, according to the Vice President’s chief of 

staff, David Addington, ‘‘The president has determined that they 

are ALL enemy combatants.’’ And, of course, that was the end of 

the inquiry, even if it was erroneous. 

Throughout all of this, the administration has been assisted by 

lawyers willing to give whatever answer the White House wanted 

and by a compliant Congress. The only real check on the administration, in fact, has been a 5–4 majority of the conservative U.S. 

Supreme Court. The Supreme Court has rightly rejected, time after 

time, backdoor efforts by the Bush administration and its congressional enablers’ to re-write our Constitution in the name of the 

‘‘war on terror.’’ 

From 2004 to 2008, the Supreme Court has rejected the administration’s attempts to deprive citizens and non- citizens of their 

right to challenge their indefinite detention in Federal court. The 

Court has sought through the power of judicial review to provide 

a check and balance. Last month, in the Boumediene case, the 

Court reinforced our Constitution and our core American values in 

holding that the habeas-stripping provision in the Military Commissions Act is unconstitutional. That case brings the administration’s record to 0 for 4. Four times the Supreme Court has repudiated the disastrous detainee policy. 

You know, the policy is not only illegal and immoral. It has been 

harmful in the fight against terrorism. If it actually helped in the 

fight against terrorism, it would be one thing. It has not. It has 

harmed it. We cannot defeat terrorism by abandoning our basic 

American principles and values. Look what the pictures from Abu 

Ghraib and tales of unjustified detentions and torture have done. 

They have provided the real enemies of this country with a recruiting field day. 

3 

And I am not alone in saying that these policies have made us 

less safe. Former Secretary of State Colin Powell said last summer 

that ‘‘Guantanamo has become a major, major problem for...the 

way the world perceives America. And if it was up to me, I would 

close Guantanamo not tomorrow, but this afternoon.’’ Then Secretary Powell added that Guantanamo had ‘‘shaken the belief the 

world had in America’s justice system.’’ When asked whether it is 

a problem for detainees to have habeas corpus rights he said ‘‘[s]o 

what? Let them. Isn’t that what our system’s all about? ’’ General 

Powell is correct. 

Even former Secretary of Defense Donald Rumsfeld questioned in 

a memo whether our tactics and policies are creating more terrorists than we are killing or capturing. And I think that is going to 

continue until we return to policies that reflect our values and uphold the rule of law which made our country great for 200 years. 

Adopting a detainee policy that reflects our values would mean 

closing Guantanamo, giving detainees due process, and releasing 

those who never should have been there in a timely and responsible manner. Detainees that pose a danger to this country and the 

world should swiftly be brought to justice within either our military or civilian justice systems. These systems are strong, they are 

flexible; more importantly, they are up to the job. 

Cleaning up this mess is not going to be easy. I think we have 

to join together in the months ahead to rethink the misconceived 

legal framework that has been devised and carried out by the administration. And I think we can do that. But let’s find out what 

went wrong during the past 7 years, and let’s figure out ways to 

put our legal system back on track. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator Specter? 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman, and thank you for 

convening this important oversight hearing. Regrettably, the oversight function of the Congress is not carried out the way it ought 

to be, and that is because there are so many things to have oversight on. And, candidly, it is such a difficult process, even when we 

find problems in moving ahead for any answers. 

The issues arising out of Guantanamo I fear are going to be with 

the United States for a long time. I made two trips to Guantanamo 

early on—the first in August of 2005—and I could see that there 

was a need for a determination as to whether there were people 

being detained there who should not have been detained. When we 

heard about the practices of taking people into custody, we were 

told that they would be rounded up on the battlefield with very little identification or specification as to who had done what. And 

that sort of a situation just cries out for some factual determination 

as to what is going on. 

We now have a lot of material coming out. There have been a lot 

of books written. Some of the books say that as many as one-third 

of those held in Guantanamo should not have been there at all. 

4 

Well, somebody has to find that out, and that is an important oversight function for this Committee. 

I saw a long time ago, as an assistant district attorney, the questionableness of a police report or of a citizen who initiates a criminal prosecution on a complaint once you have a hearing. Pennsylvania law requires a preliminary hearing before you are indicted. 

You do not have to do that in the Federal system. You can go to 

a grand jury without a hearing. Nothing like a hearing, because at 

a hearing, you hear. And there has to be a reason for detention, 

and that is why we struggled so hard to get the writ of habeas corpus applicable, and finally it is there. A long, tough battle. And 

that is what has to be done. 

There is no doubt from many, many sources, including polls, 

which I usually don’t pay a lot of attention to, but when they come 

in from all around the world about our popularity rating and our 

evaluation of our values being so low, you have to. And the United 

States has always been the leader. We have got to persuade a lot 

of people to do a lot of things that they do not want to do, like joining in the fight against terrorism, like helping out in Iraq, like 

helping out in Afghanistan. And if we do not have some moral 

ground to stand on, it is not possible to do that. 

So I think it is important that I am not about to make any prejudgments. I want to have the hearing. I want to see what people 

have to say. I want to know what the facts are. Once we find out 

what the facts are, usually people of good will can come together 

on what ought to be done. 

So I thank you, Mr. Chairman, for convening the hearing. As I 

said to you earlier, I am ranking on Health and Human Services. 

We are having a hearing on the National Institutes of Health, and 

that is one subject that is equally important to this one. So I am 

going to excuse myself. 

Chairman LEAHY. Thank you. That goes for all of us, and I appreciate that. I should note that Senator Kyl is the Ranking Member on the Terrorism Subcommittee. He is also the Assistant Republican Leader, and Senator Feingold is the Chairman of the Constitution Subcommittee. I would yield first to Senator Feingold and 

then Senator Kyl for brief opening statements. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman, and I, too, want 

to thank you for holding this important hearing. 

Since 9/11, America has faced a great challenge: responding aggressively to those infamous acts of terrorism and to the very real 

threat posed by al Qaeda without abandoning our freedoms and 

democratic values. Unfortunately, this administration has not successfully met that challenge, and its detention and interrogation 

policies are a major reason for that failure. 

The administration has claimed the right to pick up anyone anywhere in the world, and by simply labeling him an ‘‘enemy combatant,’’ lock him up for the rest of his life. Not only that, it has 

claimed the right to use abusive interrogation techniques on the 

people it detains—techniques that the U.S. Government has condemned other countries for employing. 

5 

Such violations of the rule of law can only diminish our credibility abroad and encourage the recruitment efforts of our enemies. 

In other words, these policies not only undermine the principles on 

which this country was founded, they are harmful to our national 

security today. But at last there may be some light at the end of 

the tunnel. Our legal system has long relied on review by an independent and neutral decisionmaker as a critical safeguard against 

wrongful detention. In particular, the writ of habeas corpus provides one of the most significant protections of human freedom 

against arbitrary government action that has ever been created. 

The Supreme Court last month reiterated exactly that in its decision in Boumediene v. Bush. The Court struck down the provisions 

in the Military Commissions Act that tried to strip detainees of the 

longstanding right to challenge their detention via habeas corpus 

and reaffirmed that the Government does not have the power to detain people indefinitely and arbitrarily without adequate judicial 

review. ‘‘The laws and the Constitution are designed to survive and 

remain in force in extraordinary times,’’ as Justice Kennedy said. 

‘‘Liberty and security can be reconciled, and in our system they are 

reconciled within the framework of the law.’’ 

I could not agree more. There were undoubtedly difficult legal 

issues raised in the case, but the decision is fundamentally sound. 

I am dismayed by those who attack this decision. Americans 

should all be grateful that the Supreme Court has again rejected 

the extreme arguments put forth by this administration. The decision represents the best of our Nation’s legal system, and we 

should celebrate the Court’s courage and independence in making 

it. I am pleased that the Committee is considering today how to 

best move past the destructive and counterproductive detention 

and interrogation policies of this administration. We can and must 

combat al Qaeda aggressively while maintaining our principles and 

our values. 

And, Mr. Chairman, I too am sorry that I cannot stay for the rest 

of the hearing, but I appreciate the opportunity to make these remarks. Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Kyl? 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Mr. Chairman, thank you. I will just make a brief 

remark. 

First of all, I would like to ask unanimous consent that Senator 

Cornyn has a statement to be included in the record. 

Chairman LEAHY. Of course, without objection. 

Senator KYL. Thank you. Also, you know, I have chaired a lot of 

Committee hearings over the last 12 years, oversight hearings as 

Chairman of the Terrorism Subcommittee, and we usually tried to 

find out what the facts were from the witnesses, and then we 

would write a report. But I note that you have already decided 

what the answer is with the title of this: ‘‘How the Administration’s 

Failed Detainee Policies Have Hurt the Fight Against Terrorism.’’ 

Not a very objective way, I suggest, to characterize this hearing. It 

is kind of a ‘‘hang them and then we will try them’’ approach. 

6 

I know that everything about this is partisan, and that is really 

regrettable because the people who had to deal with this issue 

when it first arose in the aftermath of 9/11 had a very tough job. 

And there has been a lot of sniping from the sidelines, a lot of criticism, very little of it constructive. And too much of it has been put 

into purely partisan terms. 

These are serious matters that we are seriously trying to deal 

with in order to defeat a serious enemy. And some of the suggestions or characterizations are most unfortunate. For example, Mr. 

Chairman, when you talk about the congressional enablers, I did 

not get each of the votes that we cast on those like the Detainee 

Treatment Act, but I remember one of them was 84–14. That suggests that there are a lot of Democrats and Republicans who are 

enablers. 

I think that is an unfair and unfortunate characterization. Clearly, we are talking about failed detainee policies in the context of 

decisions that the Supreme Court has rendered. We are talking 

about acts of Congress that have been declared partially invalid or 

unconstitutional. I find that regrettable when the Congress by 

overwhelming, bipartisan majorities passes legislation to deal with 

this unique and new problem that we resort to the kind of language that you have to be so critical in such a partisan way. 

I hope that our witnesses today—they are all distinguished observers here—can shed light on this in a way that suggests that 

these are not all easy answers, that the United States has a right 

to defend itself, and that no nation in the world can claim a higher 

moral ground in dealing with these issues than can the United 

States. It is uncontestable—I will give the witnesses a chance to respond if they would like—that the rights, even before the Supreme 

Court decisions, that we provided to detainees were far greater 

than any country on Earth has ever provided to enemy combatants. 

So I suggest that we try to focus constructively on what we have 

tried to do as best we can, following our moral precepts and legal 

precepts, and not focus on the partisan aspects of this where we 

each hold our views strongly. But that does not get us very far in 

figuring out where to go in the future. 

Chairman LEAHY. Thank you. I still agree in a bipartisan fashion 

with what General Powell and Secretary Rumsfeld said—and I 

quoted them—about the mistakes that have been made. 

Colonel Will Gunn, Retired, United States Air Force, has a distinguished record of public service. His last military assignment 

was Chief Defense Counsel in the Department of Defense Office of 

Military Commissions. He oversaw legal defense of detainees 

brought before the military commissions at Guantanamo Bay, 

Cuba. Colonel Gunn held a variety of other positions in the military ranging from trial attorney to the Air Force General Litigation 

Division’s Military Personnel Branch, to Executive Officer to the 

Air Force Judge Advocate General. In civilian life, Colonel Gunn 

served as Chief Executive Officer of the Boys and Girls Club of 

Greater Washington. He knows what support I and several members of both sides of the aisle have been to the Boys and Girls Club. 

He is now a private attorney in Northern Virginia, holds a Master 

of Laws degree in Environmental Law from George Washington 

7 

University, Master of Science degree from the Industrial College of 

the Armed Forces. 

Colonel Gunn, please go ahead, sir. 

STATEMENT OF WILL A. GUNN, COLONEL, UNITED STATES AIR 

FORCE (RETIRED), AND FORMER CHIEF DEFENSE COUNSEL, 

DEPARTMENT OF DEFENSE, OFFICE OF MILITARY COMMISSIONS, FORT BELVOIR, VIRGINIA 

Colonel GUNN. Thank you very much, Senator Leahy and other 

members. 

In 2003, former DOD General Counsel Jim Haynes named me as 

the first Chief Defense Counsel in the Office of Military Commissions. At that time I was given office space on the first floor of the 

Pentagon in the section next to the portion that has been seriously 

damaged on 9/11. Each day I had an opportunity to pass by a 

plaque, and that plaque included the words spoken by President 

George W. Bush on the night of September 11, 2001. And that 

plaque read: ‘‘Terrorists can shake the foundations of our biggest 

buildings, but they cannot touch the foundation of America.’’ 

Unfortunately, many of our detention policies and actions in creating the Guantanamo military commissions have seriously eroded 

the fundamental American principles of the rule of law in the eyes 

of Americans and in the eyes of the rest of the world. 

As Chief Defense Counsel, I was responsible for screening prospective defense personnel, doing my utmost to promote a zealous 

defense for any detainees brought before a military commission, 

promoting ‘‘full and fair trials,’’ and overseeing the entire defense 

function for the military commissions. 

I am going to focus my attention on those military commissions. 

As has already been stated, one of the things that happened in the 

early days was that the administration President made a determination that all of the individuals that were captured in Afghanistan as well as throughout the global war on terrorism were unlawful enemy combatants. Therefore, they were not entitled to the protections of the Geneva Conventions. And another decision was 

made that Article 5 tribunals, as called for under the Geneva Conventions, would not be conducted. This was a major break with policy. During Operation Desert Storm, for instance, more than 1,100 

such tribunals had been held in order to determine exactly how 

each and every prisoner should be treated. 

With the military commissions system that I inherited and was 

asked to take part in, there have been several problems, and I 

would just like to bring a few to this Committee’s attention. 

First of all, the rules were created from scratch or, more accurately, if you looked at the rules that were created, they bore a 

great resemblance to the rules that President Roosevelt put into effect in 1941 to try German saboteurs that had landed on our 

shores. They bore very little resemblance to modern-day courts 

martial. 

For instance, the system did not have a military judge, it did not 

allow for any type of independent judicial review, and there were 

other problems as well. Since then, the Military Commissions Act 

has been passed, and some of these problems have been corrected, 

but other remain. 

8 

One of the things that the system called for, one of the things 

that the system exemplified, was the lack of an independent chain 

of command for the Defense Counsel. As Chief Defense Counsel, I 

was supervised by a senior career attorney in the Office of the 

DOD General Counsel rather than having an independent chain, as 

was advocated by the various Judge Advocates General for the different services. That system remains in place today. 

The rules allow for a civilian counsel and the accused to be excluded from the courtroom when classified information was being 

considered, leaving only military counsel in the courtroom. Again, 

there have been some reforms to this system. However, this is still 

problematic. 

Use of hearsay and coerced testimony. The MCA still allows for 

the use of evidence that has been obtained by torture or evidence 

that is coerced, as long as it was obtained prior to the passage of 

the Detainee Treatment Act in 2005. Also, the Military Commissions Act shifts burden with respect to the use of hearsay to the 

party opposing such use. This is a fundamental shift in our system 

of justice and what we have done in the past. 

The Military Commissions Act included rules that allowed for the 

monitoring of attorney-client communications, and these rules disregard Common Article 3 protections. 

One of the things that is most disturbing, I believe, to our national prestige is that these rules, when taken together, encompass 

what one can barely say is secondhand justice. This was exemplified when our closest allies in the war on terror, the British, asked 

for the return of all of their citizens who were being detained at 

Guantanamo. Therefore, what they said was that this system was 

not good enough for their people. 

Thomas Paine said, ‘‘He that would make his own liberty secure 

must guard even his enemy from oppression; for if he violates this 

duty he establishes a precedent that will reach to himself.’’ 

Senators, I would just suggest that we need to look strongly at 

revising these rules and revising the way that we treat the enemy 

combatants. 

[The prepared statement of Colonel Gunn appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Colonel. 

We will go through each of the witnesses and then open it up for 

questions. The next witness is Kate Martin. She has been the Director of the Center for National Security Studies in Washington 

since 1992. She has litigated and written about a broad range of 

national security and civil liberties issues, including Government 

secrecy, intelligence, terrorism, enemy combatant detentions, the 

author of several well-known publications. Ms. Martin also served 

as General Counsel for the National Security Archive from 1995 to 

2001. In addition to teaching strategic intelligence and public policy 

at Georgetown University Law Center—I know that school well, 

having graduated from there—Kate Martin graduated from the 

University of Virginia Law School where she was a member of the 

Law Review, and cum laude from Pomona College. 

Ms. Martin, go ahead, please. 

9 

STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR 

NATIONAL SECURITY STUDIES, WASHINGTON, D.C. 

Ms. MARTIN. Thank you, Senator Leahy and Senator Kyl. I want 

to begin by agreeing with Senator Kyl that the United States does 

have a duty and an obligation to defend itself. I also agree that the 

United States Constitution and its respect for the rule of law is, in 

fact, the best system in the world. I spent a number of years in the 

1990s in Eastern Europe and Russia helping to revise laws to deal 

with the leftover KGB and was amazed, but not that surprised, to 

find that individuals who had spent time in the Soviet gulags understood First Amendment and due process protections and the 

United States Constitution as well or better than many high school 

graduates in the United States. And that is why I think that the 

detention policy since 2001 is so disturbing and unfortunate for our 

country. 

I think that the individuals who crafted that policy in secret, 

without consultation with the Congress, viewed the constitutional 

system of checks and balances and the rule of law as an obstacle 

to the United States ability to defend itself, and that they ignored 

the repeated challenges by and the views of the career military 

lawyers that respect for the rule of law, the Constitution, and the 

system of checks and balances is a source of strength for the 

United States. 

Underlying all the claims, underlying all the detention actions, 

which this Committee is well aware of, the detentions and seizures 

in Afghanistan without following the standard rules of war requiring Article 5 hearings, underlying the seizures and kidnapping of 

individuals from the streets of Europe with no due process to be 

transported to secret prisons and abused, and underlying the 

claims that the President has the authority to seize U.S. citizens 

and anyone else in the United States and hold them secretly for 

years without access to any kind of process is the claim that because we are at war, actions are permitted and necessary. 

In my limited time this morning I would like to suggest, a framework for answering the difficult questions about how to deal with 

detainees, people picked up on the battlefields of Afghanistan and 

Iraq, people who are suspected terrorists in Europe, and people 

who are suspected terrorists in the United States. The simplest answer is that there is a straightforward framework already available, and that is, to follow the law of war when military force is 

being used on the battlefield, in Afghanistan, and in Iraq, and to 

follow the criminal laws which have proven successful in the 

United States and in Europe for apprehending, detaining, and incapacitating individuals who are suspected of being al Qaeda terrorists. A return to this framework will restore U.S. credibility, it will 

strengthen our national security, and it will end the uncertainty 

that has been created as to what will happen to the detainees, the 

difficulties that have been created with regard to the United States 

relations with its allies, and most importantly, perhaps, end the 

national security harm that has been done by eroding the United 

States’ ability to take the high ground and be the most moral country in the world. 

Finally, the issue that is perhaps most complex because of the 

failure of this administration to follow either the laws of war or the 

10 

criminal law is what to do with the detainees in Guantanamo. I believe those detainees will now be afforded due process, as the Supreme Court has ruled. They will be entitled a writ of habeas corpus and a hearing, and that process will begin to sort out who can 

be detained, who should be released, restore the United States position is the world and strengthen our national security. 

Thank you. 

[The prepared statement of Ms. Martin appears as a submission 

for the record.] 

Chairman LEAHY. I thank you very much. 

Our next witness is David Rivkin, who is a partner in the Washington office of Baker Hostetler, a visiting fellow at the Nixon Center, contributing editor of the National Review magazine. He practices in the area of public international law, international arbitration, and policy advocacy, served on both President Reagan’s and 

President George H.W. Bush’s administrations with positions in 

the White House Counsel’s Office, Office of the Vice President, and 

the Departments of Justice and Energy. Prior to his legal career, 

he served as a defense and policy analyst. Mr. Rivkin holds a law 

degree from Columbia University Law School—and we did not really try to stack the deck with Georgetown people, but a Master’s degree in Soviet Affairs from Georgetown University. And he says in 

his statement he agrees with Senator Kyl that he does not agree 

with the title of the hearing. 

Go ahead, Mr. Rivkin. 

STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, BAKER 

HOSTETLER, LLP, WASHINGTON, D.C. 

Mr. RIVKIN. Mr. Chairman Leahy, members of the Committee, I 

appreciate the opportunity to appear before you today. I certainly 

realize that many legal positions taken by this administration to 

deal with the post-September 11 national security challenges have 

not found favor with many critics. With considerable respect, I disagree with this sentiment. 

I start from the premise that, both as a matter of law and policy, 

the tremendous challenge that this country had to confront after 

September 11 was how to prosecute successfully a war against al 

Qaeda, Taliban, and affiliated entities. That successful war prosecution required the choice of an appropriate legal paradigm. And 

as in all prior wars in American history, and consistent with both 

international and constitutional law requirements, this legal paradigm had to be rooted in the laws and customs of war. And how 

to deal with captured enemy combatants was certainly a key element of this paradigm. 

In general, while I do not endorse each and every aspect of the 

administration’s post-September 11 wartime policies, I would vigorously defend the overall exercise of asking difficult legal questions 

and trying to work through them. I also strongly defend the overarching legal framework featuring the traditional laws of war architecture that the administration chose. 

I want to emphasize here that—and I know I have been somewhat preempted by Senator Kyl on this point—despite all of the 

criticisms of the procedural facets of the administration’s detainee 

policy, detainees in U.S. custody today enjoy the most fulsome due 

11 

process procedures of any detainees or prisoners in any war in 

human history. Indeed, the much maligned Combatant Status Review Tribunals and Military Commissions, backed by what I consider to be appropriate judicial review procedures, are unprecedented in the history of warfare—and, by the way, much more protective and much lauded international criminal tribunals. 

This, by the way, was the case even before the Supreme Court’s 

recent decision in Boumediene, which further augmented the judicial review procedures. I will also submit to you that the administration’s legal positions up until recently have been substantially 

upheld by the courts. I know that is not a common perception, and 

I certainly appreciate the point made by you, Mr. Chairman. But 

I think that in most cases, including Hamdi, even Hamdan and 

Rasul, the U.S. Supreme Court law, while tweaking various elements of the Government’s positions, has upheld the key legal 

proposition. And indeed, the two political branches responded to 

the Court’s decisions with changes in policies, promulgating two 

major pieces of legislation—the Detainee Treatment Act and the 

Military Commissions Act. 

In my view, quite regrettably, in the just decided Boumediene 

case, the Supreme Court has abandoned this approach and effectively rendered non-viable a major portion of the administration’s 

wartime legal architecture, and Congress’s for that matter, even 

though it itself had helped to shape it for several years. The Court 

has now taken a central role in deciding who is an enemy combatant, ruling that detainees, akin to criminal defendants, are constitutionally entitled to challenge their confinement through habeas 

corpus proceedings in Federal courts. 

With all due respect to Senator Feingold, I think the Boumediene 

decision is one of the most deplorable examples of judicial overreaching and is flatly inconsistent with the Constitution, historical 

practice, and case law. 

But that aside, what I wanted to flag for you this morning is 

more important, that for years the administration critics have been 

saying that it is not a big deal to give detainees constitutional protection and additional rights, whether procedural or substantive in 

nature. It was only the administration’s obstinacy that was the 

problem. Well, in my opinion, the critics could not have been more 

wrong, proving, once again, that balancing individual liberty and 

public safety is never a cost-free exercise. Granting detainees the 

right to the traditional district court style habeas is going to be a 

momentous decision with many consequences, all of which are not 

good. We can expect that habeas proceedings will result in overturning a number of enemy combatant classification decisions of 

people in Guantanamo. In many cases, it would not happen because they were innocent shepherds or aid workers, who should not 

have been detained in the first place, but because the Government 

simply lacks sufficiently fulsome evidence of their combatancy or 

even if they do, they are facing a Hobbesian dilemma that if they 

put this information in their return, augmented return, it would 

run the risk of having this evidence being disclosed, therefore jeopardizing the war efforts. In my opinion, presented with this dilemma, what we are going to do in the future, unfortunately, is 

what I call catch-and-release policy. The United States for the first 

12 

time in the history of warfare, in the history of mankind, would basically not be able to hold anybody on a long-term basis. We would 

capture people, and to the extent they have good evidence, they put 

them before—schedule them for trial before military commissions. 

If they do not, they would have to release them or turn them over 

to the host government. And I would submit to you that that is not 

a great way to fight the war. 

Let me conclude by saying if there is a regular failure here, in 

my opinion it is the regular failure by the courts to abide by their 

constitutionally proper role, to conveniently change that position as 

to what constitutes an appropriate reach of the United States Constitution, and it is that situation that has created considerable 

problems for this country. 

Thank you. 

[The prepared statement of Mr. Rivkin appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Rivkin. 

Ms. Martin, you make the point that the administration’s claims 

that the war on terror justifies its detention practices. But then it 

does not use the rules applicable to armed conflicts such as the Geneva Convention carrying out these policies. Because we are at 

war, they also say our criminal rules are inapplicable, so it is hard 

to see which rules they feel are applicable. 

Of course, it did not work out that way. The Supreme Court has 

stepped in, and, Mr. Rivkin, I would disagree. I think they have rebuked them four times. I do agree the entire legal basis for the detention plan is somewhat in doubt, the military Commissions system in disarray. Six years later, we are waiting for the first trial 

in the military commission. 

So I would ask you: What is the view—what is your view of the 

administration’s insistence that the fight against terrorism, however defined, is too complex and difficult for our existing legal system to handle, and that it should have this sort of never-ending detainee policy? 

Ms. MARTIN. I don’t think there is any evidence at all to support 

that proposition. What the administration has done is basically 

make up law as it has gone along, and that has been the cause of 

most of the problems. One might think that the reason for doing 

so was to give them the opportunity to abuse prisoners. Whether 

or not that was the real reason behind the detention policy, I think 

that if you ask most career military officers, they would agree that 

in the case of people picked up on the battlefields of Afghanistan 

or Iraq, if they follow the traditional laws of war as to the detention and capture of such individuals, that those laws will be sufficient. They will be able to detain dangerous fighters and not allow 

them to return to the battlefield. They will not have to follow these 

criminal law procedures that Mr. Rivkin is worried about. On the 

other hand, when you find individuals in Europe or the United 

States who are suspected of aiding or planning terrorist attacks, 

the civilian criminal law has proved to be more than adequate to 

apprehend those individuals and to put them away usually for life. 

Chairman LEAHY. And you feel that both our civilian criminal 

courts and our courts of military justice are adaptable enough to 

handle these situations? 

13 

Ms. MARTIN. I do, and I believe, as to the civilian courts, the 

Committee has heard testimony about the study done by Human 

Rights First on the hundred or so terrorism prosecutions. And military lawyers have been quite clear that the uniform courts martial 

rules would be adequate to handle those detainees who are charged 

with war crimes and who are subject to military jurisdiction. 

Chairman LEAHY. Let me ask, Colonel Gunn, as you had mentioned being in the office next to Mr. Haynes, just let me tell you, 

I looked back in the book, the Mayer book. She talks about a letter 

that Jim Haynes sent to me in the summer of 2003. It was about 

the administration’s treatment of detainees. There have been a lot 

of press reports that have come out about cruel treatment of detainees. So I wrote Condolleezza Rice, who was then our National 

Security Adviser, asking for a clearer statement of the administration policy, whatever it might be. And the response came from Mr. 

Haynes, and I will put a copy of that letter in the record. He told 

me the Pentagon’s policy was never to engage in torture or in cruel, 

inhumane, and degrading treatment of detainees. This was a part 

of that letter, but the Pentagon released the letter to the press. 

And it was a great statement. I agreed with the statement. Unfortunately, it was not true. And it seemed almost like it was designed to silence critics like myself, and actually critics within the 

Department. 

What is your reaction to stories like this one? Were career military officers being listened to? Or was the policy set in such a way 

that they were ignored? 

Colonel GUNN. Senator, I believe it has previously been reported 

here before the Senate, the Judge Advocates General—at the time 

of—in 2002 I was Executive Officer to the then Air Force Judge Advocate General, so I was in the front office on the evening of the 

Pentagon at that particular time. I believe based upon what I saw 

at that particular point and based upon what had happened earlier 

and what was reported to me, there was not a great interest in 

what the senior military officers were saying. 

When various components of the military commissions system 

were being coordinated, it was coordinated in such a fashion that 

very little time, for instance, was given to the Judge Advocates 

General to provide a response. It seems as though there was an interest in checking off and being able to say that they had an opportunity to coordinate. However, there was very little interest in their 

opinions. 

It was not unusual, for instance, for a document of complex rules 

and measures to show up on a morning and being told that they 

had until that afternoon to return their feedback. So it did not 

seem as though there was a real interest in what they had to say. 

Chairman LEAHY. Thank you. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

Let me just ask all of the witnesses for very brief answers to 

some questions here, and I will just start with you, Colonel Gunn. 

First of all, do you think that the D.C. Circuit appeals rights provided to detainees until the DTA review provide less process to detainees than does habeas review? 

14 

Colonel GUNN. I cannot say that I am familiar with those rules, 

so I am not comfortable responding to that. 

Senator KYL. Ms. Martin? 

Ms. MARTIN. Well, I believe the Supreme Court held that they 

provided less process. 

Senator KYL. Thank you. Mr. Rivkin? 

Mr. RIVKIN. The Supreme Court certainly held in a portion of 

Justice Kennedy’s opinion talking about the lack of equivalence between the DTA/MCA process and the traditional habeas. I certainly 

do not like that opinion. I think it mangles at least the— 

Senator KYL. It was upheld. 

Mr. RIVKIN. Yes. 

Senator KYL. In view of that—and I would just go back this way 

here—is there any reason to preserve the alternative system of 

DTA review now that the Supreme Court has granted the detainees a right to pursue habeas review? Mr. Rivkin, would there be 

any reason to retain DTA? 

Mr. RIVKIN. I would consider this question carefully, and I would 

put it in two different parts. On the issue of DTA-style prescribed 

review for decisions or condensed as review tribunals is not only 

superfluous—in fact, I would volunteer my opinion that the entire 

CSRT system is dead and in part because there are not going to 

be CSRTs in the future because we are not going to be detaining 

people. So habeas certainly is all you are going to get there, and 

I think it is going to only apply to the Guantanamo population. I 

could be wrong, of course, but I don’t think so. 

On the military commissions side, my hope is that—and a fair 

reading of Boumediene says nothing about military commissions. 

Depending on what happens in the next couple days before Judge 

Robertson—by Judge Robertson in a case styled Hamdan II, if the 

military commission process gets going, which I hope it will, none 

of the—and habeas being a collateral entity, here you got people 

who are basically getting a fulsome criminal justice level process. 

For that segment of the cases, we might as well wait until the military process is complete, and then you would go through the D.C. 

Circuit and to the Supreme Court. 

So my hope is habeas would be inapposite to this population, but 

these days you never know. It depends on what the courts would 

say. 

Senator KYL. Ms. Martin, do you believe that there is a reason 

to preserve the DTA review in view of the Supreme Court’s ruling? 

Ms. MARTIN. I am not sure, Senator. I think that we have two 

problems before us. One is the future treatment of future detainees. I think that needs to be put back on a regularized footing. And 

the other problem is sorting out the detainees in Guantanamo, 

which habeas courts are beginning to do. There are many complicated questions, and both need to be played out. There are different kinds of detainees at Guantanamo, and the courts are now 

going to look at the law applicable to each of them. 

Senator KYL. If you have just a bit to think about it and you 

have the time and are willing to share a view with us about that, 

after you have done that, would you be willing to just drop us a 

note on that? 

Ms. MARTIN. Certainly. 

15 

Senator KYL. And, Colonel Gunn? 

Colonel GUNN. I would just say what I am familiar with is the 

Combatant Status Review Tribunal process, and I believe that if 

those were changed in such a way to be deemed adequate, it is very 

likely that a court would give those substantial deference in the 

process. And the reason that I highlight the Article 5 problem with 

the Article 5 tribunals is that that said the fact that no Article 5 

tribunals were ever established, that led to the creation of the 

Combatant Status Review Tribunals, which in turn led—I believe 

contributed to a decision that led to habeas. 

So I believe just going back and having adequate procedures 

from the beginning is something that is desirable. 

Senator KYL. Right. Well, OK. We are just trying to determine 

what we need to do with respect to the law at this point. 

The point I was trying to make earlier was not to criticize anyone, but to make the point that a lot of people in this Government—and, Colonel, you are aware of this—have tried very hard 

to make this process work. And there was a statement that I made 

in my opening comments, and David Rivkin actually put it in his 

remarks. Let me just ask if any of you disagree with this: He said, 

‘‘Despite all the criticisms of the various procedural facets of the 

administration’s detainee policy, detainees in U.S. custody today 

enjoy the most fulsome due process procedures of any detainees or 

prisoners of war in human history.’’ And he noted that that was 

even the case before the Boumediene decision. 

Do either of you disagree with that proposition? 

Ms. MARTIN. I would disagree with that proposition. I think it— 

Senator KYL. Well, if you do, then tell me a country that had a 

procedure that was more fulsome in terms of constitutional protection. 

Ms. MARTIN. I think that both the U.S. citizen and the legal resident of the United States who were seized and held incommunicado 

for a number of years as enemy combatants were not given the due 

process that is required by the Fifth and Sixth Amendments of the 

Constitution, and— 

Senator KYL. The statement was that we enjoy the most—that 

detainees held by the United States enjoy more protections than 

those granted by any other country, and you disagreed. I am just 

wondering, OK, where is their greater protection than what the 

United States has provided? 

Ms. MARTIN. The countries of Europe, when they prosecute people for crimes who are alleged to be in the same position as many 

of these detainees—I think that the problem, Senator, respectfully, 

is that many of the detainees are not enemy combatants. And so 

it doesn’t answer the question to say do they have the same process 

as prisoners of war. That is one question. But they are not being 

held as prisoners of war— 

Senator KYL. OK. Let me— 

Ms. MARTIN.—and they are not—you know, they are criminals, 

not POWs. 

Senator KYL. My time is up. Think about that because in my second round I am going to ask you the question again. If there is 

somebody that does it better than we do, I would like to know. And 

16 

you say Europe, so I want you to be specific about that when we 

come back, and I will ask Mr. Rivkin, too. 

Thank you, Mr. Chairman. 

Chairman LEAHY. OK. We may be talking about different things. 

I am sure that we will consider Abu Ghraib as not being indicative 

of what we want to do, but I want to give Mr. Rivkin— 

Senator KYL. No. I am talking about detainee policy. That clearly 

was not the policy of the United States. People were prosecuted for 

what they did in contravention of American policy there. I think we 

would all agree on that. 

Chairman LEAHY. I will give Mr. Rivkin a copy of a recent column by Ruth Marcus that responds to his point. They characterize 

the rights given Guantanamo detainees as the greatest in the 

world. And I will put a copy of that in the record, and we can go 

on to that when we get back. 

Senator Whitehouse, if you would take over, please? And then 

Senator Cardin. 

Senator WHITEHOUSE.—[Presiding.] Thank you, Mr. Chairman. 

It strikes me that one of the things that distinguished the United 

States of America in history is that previous countries, empires, regimes, that have amassed great power have ordinarily done so 

through what you might call the hard use of force and power; and 

that one of the things that makes us categorically a bit different 

than previous powerful nations in history has been that we have 

figured out or managed to figure out how to use what I would call 

‘‘aspirational’’ power. 

My sense is that, you know, as the Earth spins and dawn sweeps 

around its circumference and people wake up in the morning and 

go off to do their business in countries on many, many continents, 

their vision of what America offers and their perception that we 

offer a new kind of leadership and a new kind of Government and 

principles that adhere to individuals in unique ways is something 

that provides our country enormous strategic, diplomatic, economic, 

and other kinds of strength. And I wonder if—let me start with 

you, Mr. Rivkin, first of all, if you agree with that proposition; and 

if you do, if you would care to quantify the extent to which you 

think that you may have a better way of describing it. I describe 

it as sort of aspirational power, that power of example and attraction, as opposed to power of force and compulsion, how important 

that is to our national strength and our national destiny. 

Mr. RIVKIN. Thank you, Senator. Of course, I give it a sentiment, 

and that sentiment is correct, but that to me is just the starting 

point of analysis. You have got to ask several questions then. 

Question No. 1— 

Senator WHITEHOUSE. Before you go off, if you don’t mind answering the quantification part of the question. How important in 

your own words do you think that part of our national character, 

reputation is? 

Mr. RIVKIN. It is quite important, and I would be foolish to deny 

that we have suffered a considerable decline in what some people 

have called ‘‘soft power,’’ which is what you were talking about. 

The question you have to ask yourself, which we as lawyers always 

ask: But for. Is that attributable to Guantanamo? Is that attributable to some regrettable incidents like Abu Ghraib? Is it attribVerDate Aug 31 2005 16:17 Oct 10, 2008 Jkt 044818 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44818.TXT SJUD1 PsN: CMORC
17 

utable to a particular legal paradigm at the sort of overarching 

level the administration chose? Or is it attributable— 

Senator WHITEHOUSE. Is ‘‘All of the above’’ an option? 

Mr. RIVKIN. Excuse me? 

Senator WHITEHOUSE. Is ‘‘All of the above’’ an option in that 

checklist? 

Mr. RIVKIN. Well, yes. But I would also submit to you, with all 

due respect, Senator, that our European allies in particular, if you 

accept the proposition I would advance, that they are not serious 

about warfare, just like my good friend Ms. Martin, they do not 

think it is, by and large, war. They do not like the robust use of 

force. They do not like our rules of engagement. They do not like 

our approach to surveillance. They do not like our approach to interrogations. The price, Senator, we have to pay to regain their respect is very high indeed. I don’t mind even paying the price as 

long as we clearly understand we are talking about a policy tradeoff. The thing that bothers me the most is that we are talking 

about the administration’s policy, this country’s policy, as if it was 

some kind of a shameless breach of our constitutional verities. Let’s 

pay more and let’s accept additional risk, if that is what it takes 

to make the Europeans happy. But let’s be clear. It is a policy 

tradeoff. 

Senator WHITEHOUSE. I am thinking less about, you know, European politicians than I am about the fellow waking up in an African village trying to figure out what his country and his community should look like with Islamic recruiters beginning to encroach 

and offering him a vision of the United States that is a hostile and 

unwelcome one. It is not so much elite European opinion that I am 

concerned about. It is the actual folks whose names we do not 

know on the ground in villages and towns and barrios we have 

never heard of, but who collectively hold the United States in a 

particular kind of respect, or at least always have, how powerful 

that force is. Elite opinion I am less concerned with. 

Mr. RIVKIN. Very briefly, two answers to that. 

Point No. 1, to some degree it is we ourselves—and, unfortunately, as a byproduct this vigorous discourse about what is right— 

have brought it upon ourselves, because if the entire American 

body polity spent the last several years basically feeling more positive about our policy and legal choices, it would not have been as 

difficult to demonize it. But perhaps it is inevitable in democracy. 

And, second, I would say very frankly, here again there are so 

many problems that some individuals who are inclined to move toward this particular path have with us. Look at the Danish cartoons. I mean, again, you always ask but for. If we had no Guantanamo, if we didn’t detain anybody, these people have problems with 

our support for Israel, our position of supporting repressive regimes 

in a world—this is not this kind of hearing. It is not a foreign policy hearing. But I can spend an hour telling you what problems 

they have with us, and unless we are ready to beat them all, this 

rating on our entire detention policy would not make that much 

difference with that proverbial person waking up in the village. 

Senator WHITEHOUSE. My time has now expired, and in the absence of the Chairman, I will recognize the distinguished Senator 

from Maryland, Senator Cardin. 

18 

Senator CARDIN. Thank you, Mr. Chairman. 

Let me followup on this line of questioning. I understand that we 

have a real challenge in dealing with this new type of threat 

against our country. But it is clear to me that our Constitution and 

laws and our international commitments require a certain degree 

of conduct that we did not comply with in dealing with the detainees that we were able to apprehend after the attack on our country 

on September 11th. 

Now, the 9/11 Commission made certain recommendations, one 

which I thought was an extremely important point dealing with 

this issue, and that is that we should seek international consensus 

as to how detainees in combat dealing with terrorism would be 

treated so that we establish a conduct that is recognized internationally and it is not just the United States determining what is 

the appropriate conduct. 

So I guess my question to us is: Recognizing where we are today 

and the fact that we are going to have an election and there will 

be a new administration that will be coming into power in January, 

what advice would you give as far as whether our current international treaties are adequate, whether we need to negotiate new 

agreements, whether our current criminal statutes are adequate to 

deal with this issue, what can we learn from other countries. And 

in response to Senator Kyl’s point, it is my understanding that the 

House of Lords in Great Britain has struck down indefinite detention, that you have to bring people to trial. And, of course, we are 

still contending that we can keep people indefinitely. 

So what process would you recommend or do you think the current laws are adequate? 

Ms. MARTIN. Well, I will take the first stab at that, Senator. I 

think that in general, the current framework is adequate, and I 

think that there is—although I think a lot of work is going to need 

to be done about working out the details of how to deal with the 

different kinds of detainees at Guantanamo and what to do about 

the military commissions that have started, I think that it is— 

there is a grave danger of trying to construct a new framework 

even in the context of international treaty making, because we 

start from behind, given where we are in the last 6 years. And as 

both you and Senator Whitehouse have mentioned, I think the key 

thing is for us to re-establish our position in the world and not be 

seen as constructing a framework that is only to detain suspected 

terrorists. 

Senator CARDIN. Well, let me challenge you at least as to one 

part of that. Clearly, I cannot justify, nor do I want to try to justify, 

the detaining of the individuals at Guantanamo Bay for the length 

of time without being brought to trial, the length of time being unable to seek counsel, and I could go on with a whole list of things. 

But when a suspected terrorist is first apprehended, there is a need 

for interrogation, and I am not an intelligence officer, but I have 

been told that it is compromised, if that individual has outside contact with counsel. 

So how do we reconcile the current need of interrogating suspected terrorists with, as I think you and I agree, the abuses of this 

administration? And how do we deal with moving forward in our 

efforts to protect the people of this country, but yet establish the 

19 

appropriate framework knowing what has happened during the 

past 5 years plus? Don’t we need some clarification of our laws or 

at least some international sanction to the appropriate way to 

move forward? 

Ms. MARTIN. Well, I think the details need to be worked out, but 

generally when individuals are picked up in Afghanistan or Iraq, 

they can be detained indefinitely until the end of hostilities in 

those countries. Second, the military has standard rules for interrogation, tried and true and good rules for interrogation; Third, that 

if you find a suspected al Qaeda member in Europe or the United 

States, he be arrested under the criminal law, criminal suspects 

have been interrogated for years quite successfully within the rules 

of the criminal justice system. Indeed the FBI agents who interrogated the al Qaeda individuals who were indicted and convicted before 9/11 have made a very convincing case that they were able to 

interrogate them within the law and obtain useful information. But 

the problem was that that information was not shared within the 

Government, not that the interrogation—and that there is no— 

Senator CARDIN. But there is a question as to whether the—at 

least the United States has raised, our Government has raised the 

issue whether they are subject to the Geneva Convention. 

Ms. MARTIN. If the individuals who were picked up in Europe 

and the United States had been picked up not as enemy combatants but as suspected criminals, they would be— 

Senator CARDIN. But they changed—you know, right now they 

use the classification to meet their needs. The United States has 

done that. 

Ms. MARTIN. Right, and that is the problem. 

Senator CARDIN. So moving forward, how do you move forward 

without clarifying that? I am not sure I understand your position 

that the current laws are adequate. It seems to me that we do need 

to seek the support and understanding of the international community moving forward. We are going to have the opportunity with a 

new administration. I think we have got to be prepared to go forward on that to restore not only the point that Senator Whitehouse 

raised about the United States’ ability to affect support internationally for our values, but also as a practical matter that these 

issues are going to be with us moving forward. 

Ms. MARTIN. I do think that the use of the criminal laws, which 

is what our European allies use to detain and interrogate individuals would be adequate in the United States. There is one category 

of individuals which is difficult to figure out whether they may be 

detained under the law of war or the criminal law and that is 

Osama bin Laden. And I favor—my view is that he could be detained under the laws of war, even if not captured on the battlefield, but some disagree with that. 

But that is a very small category of individuals, those who 

planned the 9/11 attacks. 

Senator CARDIN. We will continue this. I guess my point is that 

the international community may very well want a little bit more 

definitive findings rather than leaving it to the judgment of the 

United States in its current law’s interpretation. 

Thank you, Mr. Chairman. 

20 

Chairman LEAHY.—[Presiding.] Let me go into a couple of things. 

Recently—and this is for you, Colonel—we read about military 

commission judges and defense lawyers, even prosecutors, being 

fired or replaced or being driven to resign, apparently because they 

gave rulings adverse to the Government or they were critical of the 

military commission process. And you had mentioned earlier the 

lack of a chain of command. 

If you start firing key participants or replacing them or forcing 

resignations, doesn’t this kind of give the impression to not only us 

here in the United States but to the rest of the world that somehow 

this thing is rigged? I am not trying to put words in your mouth, 

but it bothers me when I see it. 

Colonel GUNN. No, Senator. I am actually comfortable with that 

terminology of saying that it gives the impression of a rigged or 

sham proceeding. And I am familiar with what you are referring 

to. My former Air Force colleague Colonel Morris Davis was the 

chief prosecutor. He felt motivated—compelled to resign from his 

position as chief prosecutor because the legal adviser to the appointing authority, a person who was supposed to have an impartial role, seemed to be more motivated by political considerations 

than by making sure that we had a system that was just and a system that functioned well. That individual seemed to be motivated 

by having trials in such a way that they might in some way influence the elections. And Colonel David, when Mr. Haynes sought to 

change his reporting chain, such that he reported directly to this 

person, he rejected that notion and submitted his resignation. 

The thing that I am proud about with respect to the system is 

that when you looked at it individual by individual, there are many 

folks that have done courageous things under that system, both on 

the prosecution side as well as the defense side. I am extremely 

proud of that. 

However, the arrangement, the fact that there is no independent 

chain for the defense counsel, the fact that that was a problem that 

was anticipated and it was not addressed, is quite disturbing. 

Chairman LEAHY. Thank you. We actually have had several flag 

officers who have come in here and testified similarly, and I think 

courageously, because they know that that may not be what the 

Pentagon wanted to hear at the time. 

I am reminded—which has nothing to do with this in way, but 

I am reminded that shortly after the break-up of the Soviet Union, 

a group of parliamentarians now from Russia came to visit me— 

and a number of other Senators, but they came to talk to me about 

judicial systems. And one of them said, ‘‘Is it true that in your 

country a lot of people can actually sue the Government? ’’ And I 

said, ‘‘Yes. It happens all the time.’’ And he said, ‘‘And are we right 

in understanding that sometimes the Government loses? ’’ I said, 

‘‘Yes. Happens all the time.’’ And they said, ‘‘Well, didn’t you replace the judge? ’’ And I said, ‘‘No.’’ And I think it was almost like 

a light bulb going on that we are truly independent. And that is 

the way I feel we should be. 

Now, I have been critical of aspects of the Military Commissions 

Act. There was an attempt to deny detainees, potentially others, 

from the habeas corpus rights. And Senator Specter and I worked 

hard to restore those rights through legislation. We got 56 votes in 

21 

the Senate. Unfortunately, we had a filibuster and we needed 60. 

I hailed the Supreme Court’s decision, Boumediene, because it recognized the constitutional right to habeas. Mr. Rivkin is saying— 

and I will certainly give you time to respond, Mr. Rivkin. The 

courts assumed it was going to lead to chaos in the courtroom even 

worse than the battlefield. 

Am I right, Ms. Martin, that the decision creates no new rights 

but simply restores what rights were there before the Congress unwisely, and now apparently unconstitutionally, tried to strip away 

habeas rights? 

Ms. MARTIN. That is precisely true as you have noted, Mr. Chairman. The Court, this very conservative Court decided, said it was 

simply restoring the rights that existed there before. 

Chairman LEAHY. And just for the people who may be watching 

this, habeas proceedings are not the same thing as a full trial by 

any means. I think there are thousands of habeas petitions heard 

every year through this country, and they are usually a fairly quick 

hearing, are they not? 

Ms. MARTIN. Yes, and I think if you look at the reason why the 

Supreme Court, a conservative Supreme Court rebuffed the Government and restored the habeas right is because Guantanamo was 

set up to be a place beyond the reach of law. It was not set up as 

a POW camp. It was not set up as a camp for prisoners held as 

combatants under the traditional laws of war. It was set up as a 

place where the administration could warehouse people subject to 

no law. And the Supreme Court said that since the Magna Carta 

the President may not pick up anybody he chooses anywhere in the 

world and hold them indefinitely without any court looking at the 

legality of the detention. 

Chairman LEAHY. My time is up. Senator Kyl, if you might, Mr. 

Rivkin obviously has a different view, and I wonder if you would 

have any objection to him giving his— 

Senator KYL. Go ahead, Mr. Rivkin. 

Mr. RIVKIN. Thank you very much, Mr. Chairman. I appreciate 

it. Several rejoinders to my good friend Kate. 

First of all, it is a canard that the reason Guantanamo was chosen was solely because of what was believed at the time, quite reasonably, a lack of Article III core jurisdiction. The key reason 

Guantanamo was chosen is because it solved the Mindy problem, 

because it is dangerous—I don’t think anybody would disagree—to 

hold several hundred enemy combatants. Remember all the history 

of the IRA trying to liberate their colleagues. And as a matter of 

fact, don’t take my word for it. The last time I checked, there was 

a vote last year in the Senate 94–3 against moving any detainees 

here. 

But leaving that aside, on the question of what is the cost of habeas, first of all, with all due respect, Mr. Chairman, to the extent 

that—and I was present during the Boumediene oral argument. I 

remember. Justice Scalia posed a question to the lawyers, to the 

counsel for Mr. Boumediene asking for one example, one example 

in American history, in wars that we engaged in where enemy combatants were given access by habeas to the judicial system, and the 

answer was none. That was not the case in the Revolutionary 

War—that was before the Constitution—not the case in the Civil 

22 

War, not the case in World War I or World War II. So whether it 

existed there or not is a different issue, but the thing that bothers 

me the most is, frankly, the perception that it is very easy. I can 

tell you, it is not very easy because the style of habeas review that 

would be exerted here is quite different from that in a normal 

criminal case. We are talking about hundreds of Justice Department attorneys, beginning with 50, working on returns. We are 

talking about not only 200 pending cases with the detainees now, 

but roughly 300 old cases that have been held in abeyance. We are 

talking about a flurry of motions. We are talking about disputes 

over discovery. The— 

Chairman LEAHY. Mr. Rivkin, you were in the administration. 

Were you consulted on the choice of Guantanamo? 

Mr. RIVKIN. No. I was obviously not consulted on the choice of 

Guantanamo. 

Chairman LEAHY. I was just curious. 

Mr. RIVKIN. But I recall at the time—and since I am not in the 

administration, I would not be consulted in such matters. But I do 

recall vividly at the time Guantanamo was chosen talking to people 

and asking them, just informally, what were the key policy drivers, 

and, yes, one of the policy drivers, as I understand it, was the view 

that, consistent with the then existing legal baseline, there would 

be no legal jurisdiction. But another key problem was nobody wanted to have in her or her district 200-plus enemy combatants. And 

I don’t think that has changed today. 

But the last thing I would say very briefly -and I appreciate the 

opportunity to let me explain this. We are talking about a very difficult situation. A number of people will be held not to be enemy 

combatants—I stipulate that, everybody agrees with that—because 

of restrictions on transferring people to deferred country where 

they might be mistreated. We cannot find a home for them. And 

under immigration laws, you basically can hold people for 6 

months. So in the not too distant future, Mr. Chairman, we are 

going to face a spectacle of—unless you change the law, of giving 

some kind of a parole or asylum in the United States to a bunch 

of people who are not necessarily innocent shepherds and aid workers. 

Chairman LEAHY. I won’t go into the case of Mr. Arar, who was 

a Canadian citizen, because he just wanted to go back to Canada 

where he is a citizen. Instead, we sent him to Syria where he was 

tortured and eventually returned to Canada, and he got about a $2 

million settlement because of that. So it is not always quite as neat 

as you might suggest. 

Senator Kyl? 

Senator KYL. Well, thanks. Let me just followup on this question, 

because I think it is obvious that there is a severe practical problem. Let me ask all of you, please, to keep your answer yes or no, 

if you could. Do you think that a Federal habeas court in the U.S. 

would have the authority to order that a detainee be released into 

the United States? Colonel Gunn? 

Colonel GUNN. I believe that they would have such authority, but 

would not exercise it as a practical matter. 

Senator KYL. OK. Interesting. 

Ms. Martin? 

23 

Ms. MARTIN. The only court ruling I know of said it does not 

have authority. I think that ruling will be appealed, and I hope 

that the court does have the authority. I do not think they will 

have occasion to exercise that authority. 

Senator KYL. Mr. Rivkin? 

Mr. RIVKIN. I do not think they do have the authority, but I 

would bet you anything, Senator Kyl, that we will find a judge in 

months to come that would rule differently. 

Senator KYL. Well, if they do—let’s assume for the moment, take 

Ms. Martin’s question, that they would not exercise that authority. 

Your postulate was that an individual could not be voluntarily returned to his country because of either, A, the fact that the country 

would not take him or, B, our concern that he would be tortured 

and mistreated in that country. What is the alternative if we cannot find a country to take such a person? I will turn to Ms. Martin 

first and then to you. 

Ms. MARTIN. The alternative would be to allow him into the 

United States. But, of course, we are only talking about individuals 

whom the district court and the court of appeals have found are innocent and that— 

Senator KYL. Excuse me. No, no. The question was not guilt or 

innocence. You are aware of that. 

Ms. MARTIN. Well, they have found that the Government has no 

evidence and there is not a reasonable doubt standard to allow the 

Government to continue to hold him. My experience as a litigator 

for many years is that it is going to be extremely difficult to find 

three Federal judges—one district court judge and two appeals 

judges—who are going to sign, who are going to order the release 

of someone when the Government has real evidence that this person is a dangerous person. That just has not happened, and it is 

not going to happen. 

Senator KYL. Under the procedures that the Government has utilized thus far, which try very hard to distinguish people that are 

dangerous and those that are not—and we have returned, I think, 

something like 300, close to 300 detainees from Guantanamo Bay, 

the latest statistic I have is that at least 35 of those detainees who 

have been released from Gitmo have returned to committing acts 

of terror and have ended up killing people from other countries. 

Just, for example, a few months ago, they released a Kuwaiti detainee who committed a suicide bombing in Mosul, Iraq, killing 

seven Iraqis. So even when we try to make the decision as to 

whether we think somebody is safe to release or not, it has been 

very clear that about 10 percent of them have not been safe at all. 

And that does not even get to the point of trying to figure out, since 

when they were captured there was not this standard that you 

have to have evidence to satisfy a habeas court to justify their detention, I do not know where that evidence is going to come from. 

Mr. Rivkin, I did not give you a chance to answer. 

Mr. RIVKIN. Very briefly, I cannot disagree with Kate more, precisely because I assume a district court and an appellate court 

judges are going to in good faith follow the teaching of the Supreme 

Court. If you look carefully at the Boumediene decision, it envisions 

a traditional habeas in an environment where, as you, Senator, correctly pointed out, the Government has not amassed a factual 

24 

record that would approach that in the criminal justice system, not 

because, again, the wonderful people—and, by the way, with all 

due respect, guilt or innocence is not at all an issue here. The narrow question in the habeas case is, Does the Government have evidence to hold the person? And you can have two situations. You 

can have a Government that is not able to prepare a sufficient return just because this is—a battlefield is not a CSI scene. Or you 

can have an even more Hobbesian problem where the Government 

does have such evidence but is afraid to put it in the return because, remember, if your return is sufficient, it is only a prima 

facie case. Then the burden shifts. Then the defense counsel would 

press for discovery. Can you imagine the silly spectacle of a country 

in the middle of a war having attorneys for an—this is where the 

return is sufficient, so you know the person is presumptively an 

enemy combatant. His lawyers are pressing for discovery about intelligence information? 

So a lot of these people would be let go. I mean, we are a Government of laws, not man. The judges may feel terrible about it, but 

the table where Justice Kennedy sat, we all have to sup at. They 

will be released, and under the current law they can be held in immigration custody for 6 months. If you cannot find a country willing to take them or wanting to take them, it does not provide adequate assurances of your treatment. So some of these people, unless you change the immigration law, they will be released here. 

Senator KYL. Let me just ask one last question. Ms. Martin, you 

made the distinction between a battlefield capture and a capture 

off of the battlefield, but the laws of war are adequate to deal the 

person captured on the battlefield, you said. Does that include habeas rights? Is there anything in the laws of war that entitle people 

to habeas protection? 

Ms. MARTIN. The individuals captured on the battlefield and held 

in Afghanistan or Iraq under the laws of war may well not be entitled to habeas. The Supreme Court has not decided that. The problem in Guantanamo is quite different. Many of those were not captured on the battlefield, and those who were captured on the battlefield were not accorded the rights that they were due under the 

laws of war, and so now are being given habeas. 

Senator KYL. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator— 

Mr. RIVKIN. Just 30 seconds. I wish it were so. If you look at Justice Kennedy’s opinion, he makes no such distinctions, and we have 

attempted habeas petitions with people held in Bagram and 

Tambuka. The logic of a majority’s position has nothing to do with 

where you were captured. So basically, the United States is out of 

the detention business, unfortunately, for good. 

Senator KYL. All right. Let me thank all the panel. I am about 

half an hour late to get to the floor now myself, so I am going to 

have to run. 

Thank you. 

Chairman LEAHY. Thank you. 

Ms. Martin, did you want to respond to that? 

Ms. MARTIN. Well, yes. I read Justice Kennedy’s decision as 

much more limited. It is completely tied to the facts of Guantanamo. I think the Supreme Court has been very clear about decidVerDate Aug 31 2005 16:17 Oct 10, 2008 Jkt 044818 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44818.TXT SJUD1 PsN: CMORC
25 

ing one issue at a time. At the moment, it has decided that the individuals being held at Guantanamo have the right to habeas corpus. 

I think that if we have a new detention regime where individuals 

who are captured on the battlefield are treated according to the 

laws of war, they are not abused, they are given their Article 5 

hearings, you will not have Federal district courts or the Supreme 

Court reaching out to say we need to have judicial review of detentions in Afghanistan or Iraq. 

I know that people are seeking that, but I am doubtful that the 

courts will go in that direction. 

Chairman LEAHY. Thank you. 

Colonel GUNN. And, Senator, if I may, the Supreme Court decision does not overrule the Eisentrager decision from the 1950s, 

which held that German combatants that had been captured in 

China after World War II had ended, that they were not, in fact, 

entitled to habeas protections. And that decision was the fundamental reason why the detainees were being kept at Guantanamo. 

I think the lawyers and the administration that viewed that as a 

basis for saying that Guantanamo was a safe zone that would not 

be subject to habeas protections, even though it has been cut back, 

the Supreme Court and Justice Kennedy goes on to say in 

Boumediene that that decision does, in fact, remain intact and that 

you have to look at the facts and circumstances. 

It is a fundamental law of war that a combatant—a nation can 

hold a combatant who is captured for the duration of hostilities. 

That remains in effect. And so Guantanamo is a unique situation. 

Chairman LEAHY. Thank you very much. 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Chairman. Just two quick responses to the debate that sort of swirled around me. 

First of all, I read Justice Kennedy’s decision exactly the same 

way, highly Guantanamo specific. So at least you have one supporter of that view on this panel. I am a little surprised, frankly, 

that Mr. Rivkin, given other views you share, sees this as such a 

broad mandate. I mean, it might not be a bad thing, but I certainly 

do not think it is where they went. 

The second point is that I think this question of the release of 

detainees who have gone back to the battlefield frankly is not a 

helpful fact in arguing the question that we are arguing. As I understand it, all of those folks were released by the Bush administration, and it was an executive determination, and it proved to be 

significantly erroneous. And perhaps had their procedures been a 

little better and they felt they were up against the standards of following law of war and so forth, they would not have made those 

improvident releases. In many ways, you could actually -you could 

turn that argument either way. So I am not particularly impressed 

by that. 

I would like to followup a little bit on Guantanamo, which I 

think at this point is pretty much conceded by all parties a stain 

on our national character. And I note with particular interest in 

the decision in Parhat v. Gates, the Court, at page 34, is addressing 

an argument by the Government seeking to designate as protected 

any names and/or identifying information of U.S. Government perVerDate Aug 31 2005 16:17 Oct 10, 2008 Jkt 044818 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44818.TXT SJUD1 PsN: CMORC
26 

sonnel. And they describe the argument in favor of this by the Government, by the Bush administration. It says—this is the Government’s words, quoted in the opinion. ‘‘It is appropriate to protect 

from public disclosure unclassified information identifying Government personnel because the risks to the safety of those personnel, 

particularly those who often deploy to locations abroad, would be 

heightened if their involvement in the detention of enemy combatants at Guantanamo were made public.’’ 

That to me is kind of a high watermark. The Government of the 

United States is conceding in court that Guantanamo is such a blot 

on our national character and reputation that it now, as a matter 

of security, is important that we not disclose anybody who worked 

there because it has become so offensive that it is now a risk to 

their safety to be associated with our conduct of that episode. So 

given that, it seems to me to be a matter of particular importance 

that we close Guantanamo. 

I am a fisherman, not a very good one, and I have had the experience that some problems you get into are very hard to unsnarl. 

You can spends hours trying to undo a knot in your line that took 

30 seconds to get into. And I am afraid that this Guantanamo mistake is now going to be very, very difficult to unsnarl. I see it as 

having legal dimensions, military dimensions, intelligence dimensions, corrections dimensions, diplomatic dimensions, logistical dimensions, JAG—so assume, A, that Guantanamo is, in fact, something we need to put behind us as a country and we need to try 

to move on as quickly as possible. Would it not be important in unsnarling that particular mess to have some sort of body that drew 

from all of those different areas of expertise to advise Congress on 

how to do this right and in the most effective way, sort of a Guantanamo Base Closing Commission of some kind? And what would 

your thoughts be on that, and what skills sets do you think should 

be involved in that? 

Since I spent all my time with Mr. Rivkin last time, let me start 

with Ms. Martin this time. 

Ms. MARTIN. I totally agree that it is a terrible snarl of a problem. I think that the habeas courts will begin to unsnarl that problem. There are some 200 people, I think, still there. I assume no 

more people will be transferred there. I think about 60 of them 

have been cleared for release and that the Government presumably 

will find a place to send them sooner or later. So we are really only 

talking about 100 or so people. 

Given the fact that they are entitled to habeas and those proceedings will go forward, the lawyer in me thinks, well, the courts 

will sort some of this out. There are some underlying issues about 

the definition of ‘‘enemy combatant’’ which are difficult. Perhaps a 

commission might be useful, and Congress needs to look at that 

question. But the initial question of are the wrong people being 

held—I think the habeas courts will do a good job sorting some of 

that out. 

Senator WHITEHOUSE. It could take years, and in the meantime 

you still have to hold everybody at Guantanamo, and it remains— 

Ms. MARTIN. I am not sure it will take years. I think the courts, 

once—I suppose the Government might try to delay it. It could take 

years. 

27 

Senator WHITEHOUSE. I am sorry. My time expired, and I went 

over. My apologies, Mr. Chairman. 

Chairman LEAHY. That is OK. Did you have a further question, 

Senator? 

Senator WHITEHOUSE. No. That was it. I am interested in how 

rapidly we can close Guantanamo and what the— 

Chairman LEAHY. Because of the situation— 

Senator WHITEHOUSE.—Government mechanism should be for 

overseeing it to make sure it is done right and rapidly. 

Mr. RIVKIN. May I weigh in very briefly on just— 

Chairman LEAHY. Very briefly, because we are going to have to 

go back to the floor. And, incidentally, I will keep the record open 

for each of you if you want to add to your testimony or put anything. Obviously, I do not want to cutoff any one of you on that, 

so you have that chance to add to it. 

Mr. RIVKIN. Thank you, Mr. Chairman. The only thing I was 

going to say is there is actually not a whole lot to do on the purely 

legal side. I agree with Kate in this respect. Let the habeas process 

work its way. 

A number of people will be determined not to be enemy combatants. At least the Government has been able to do that. You need 

to decide if you want to change immigration law to enable the U.S. 

to hold them in immigration custody or not. That is your decision. 

The biggest issue is political. Where are you going to put those 

people? Surely it would not be fair for the President alone, this 

President or his successor, be it Republican or Democrat, unilaterally to decide to impose that burden on people around, you know, 

Charleston or in any other location. So that is the issue for you to 

decide. Where do you want them to go? 

Senator WHITEHOUSE. Just for the record, maybe you can fill me 

in if it is not correct. I am not aware of a single human being who 

has ever escaped from a Federal correctional institution, ever. 

Mr. RIVKIN. It is not so much escape, Senator, with all due respect. There is a very real possibility there will be an unsuccessful 

but very bloody effort to rescue them, just like all the efforts to rescue IRA terrorists, which were mostly unsuccessful. If I were living 

in close proximity to Fort Leavenworth, I would not be very happy 

about it. I would strongly suspect—I forget her name, the woman 

who represents the District where Fort Leavenworth is, if I am not 

mistaken, in the discussion of this issue basically said on the 

House floor, ‘‘Over my dead body.’’ And all of you voted 94–3 last 

year against the idea of transferring detainees here. 

Ms. MARTIN. I just want to say I have more confidence than Mr. 

Rivkin in our intelligence agencies and FBI and that there will be 

no bloody attack on a Federal correctional institution in the next 

10 years, no matter who is in prison there. 

Chairman LEAHY. I also think that we would not have the kind 

of obvious cooperation that went on in other countries that terrorists had broken into prisons. I have a lot more confidence in our 

Federal corrections system. 

I am going to enter into the hearing record the written testimony 

of Ramzi Kassem, a clinical lecturer in law, Robert Cover Teaching 

Fellow at Yale Law School. He has represented seven detainees at 

the U.S. Naval Base in Guantanamo. At my request he provided 

28 

his thoughts to the Committee on the administration’s detainee 

policies and he shares the changes he feels necessary, and I will 

put that in the record. 

And both of the Senators who are going to be nominated to succeed the President—Senator McCain and Senator Obama—spoke 

yesterday about the current challenges we face in restoring America’s leadership and making America safer in a dangerous world. 

As part of America’s new strategy, we have to restore a sound 

legal footing and respect for the rule of law in how we deal with 

detainees. If we are going to reclaim our leadership in the world, 

we have to return to the America whose ideals and practices were 

the beacon of hope and human rights for the world. 

There will be no—pro or con, there will be no comments from the 

audience. 

I think that great strength has been sacrificed to a great extent, 

certainly those of us who travel around the world and talk to those 

nations that were solidly behind us the day after 9/11. Even since 

then, today we know how much we have lost. 

This Committee, with our newly created Subcommittee on 

Human Rights and the Law, our Subcommittees on Terrorism, 

Courts, Crime and the Constitution, can help. We will have other 

hearings on this. We will hear from both sides. It is not so much 

for legislation now. That will not occur. But for being able to give 

advice not only to the next President. The next President will be 

sending his Attorney General before this Committee, the Attorney 

General nominee, as well as many of the others in the Department 

of Justice for confirmation. I want to make sure that the questions 

asked by both Republicans and Democrats reflect what is going on. 

There was a suggestion we have not had oversight on this up 

until last year. To a large extent, that is true. I do recall, in due 

respect to the Republican Chairman of the Committee, he was prepared to hold those hearings, had subpoenas prepared to go out. It 

was blocked by the Vice President who said we should not be asking questions. Frankly, in a free Nation, a free country, we should 

never be afraid of asking question. 

With that, we will stand in recess. 

[Whereupon, at 11:43 a.m., the Committee was adjourned.] 

Questions and answers and submissions for the record follow.] 

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